CAS 2021/A/7761 World Athletics v. Joyce Chepkirui & Anti-Doping Agency of Kenya (ADAK) & Athletics Kenya (AK)

In June 2019 the Athletics Integrity Unit (AIU) of World Athletics (WA) reported an anti-doping rule violation against the Kenyan Athlete Joyce Chepkirui after an AIU Expert Panel concluded unanimously in February 2018 in their Joint Expert Opinion that the Athlete’s hematological profile “highly likely” showed that she used a prohibited substance or a prohibited method: the use of EPO or Blood doping. 

This conclusion of the AIU Expert Panel was based on assessment of blood samples, collected in the period from 18 April 2013 until 4 August 2017 reported in the Athlete’s Biological Passport (ABP).

After notification the Athlete submitted several explanations for the abnormalities in her ABP. However after consideration the Expert Panel rejected the Athlete’s explanations in their 2nd (May 2019) and 3rd (August 2019) Joint Opinion.

A provisional suspension was ordered in June 2019 and the Athlete was heard for the Sports Dispute Tribunal of Kenya (SDT). Yet on 19 November 2020 the SDT decided to dismiss the ABP case against the Athlete.

Hereafter in March 2021 WA appealed the SDT Decision with the Court of Arbitration for Sport (CAS) while the Athlete filed a cross appeal in April 2021. WA requested the Panel to set aside the Appealed Decision, conversely the Athlete requested to dismiss the Appeal filed by WA.

WA contended that the ABP profile of the Athlete constitutes reliable evidence of blood doping in the period 2016 and 2017. None of the Athlete's arguments explain the abnormalities in her ABP, nor that her violation was not intentional. ADAK Athletics Kenya concurred with the submissions made by WA.

The Athlete disputed the validity of the ABP as a reliable means of evidencing intentional blood manipulation. Further she argued that her medical condition, her medication and diet could explain the abnormalities in her ABP.

The Sole Arbitrator finds that principal reliability of the ABP has been confirmed by CAS in numerous cases and has been codified by WADA and WA on the basis of reliable scientific evidence.

The Arbitrator deems that the Athlete failed to substantially contest the Expert Panel's findings of the Second Expert Panel Joint Opinion (confirmed by the Third Expert Panel Joint Opinion). Further there are no indications that would cast doubt on the plausibility and appropriateness of the Expert Panel's findings.

The Sole Arbitrator is comfortably satisfied by the assessment of the Athlete's ABP that the Athlete has committed an anti-doping rule violation, i.e. that WA succeeded in establishing that the abnormal values of samples 4 to 8 in the Athlete's ABP were caused by blood doping.

The Athlete failed to prove by a balance of probability that the abnormal values in her ABP resulted from vaginal bleeding following hormonal imbalance, the use of various medications or an iron-rich diet.

Finally the Sole Arbitrator considers that there were substantial delays in the proceedings not attributed to the Athlete and that it is unfair to disqualify all the results of the Athlete over a period of more than five years.

Therefore the Court of Arbitration for Sport decides on 28 March 2022 that:

1. The appeal filed on 5 March 2021 by World Athletics with the Court of Arbitration for Sport against the decision of the Sports Dispute Tribunal of the Republic of Kenya dated 19 November 2020 is upheld.
2. The decision of the Sports Dispute Tribunal of the Republic of Kenya dated 19 November 2020 is set aside.
3. A period of ineligibility of four years is imposed on Ms. Joyce Chepkirui starting from 28 June 2019.
4. All competitive results of Ms. Joyce Chepkirui from 6 April 2016 until 4 August 2017 are to be disqualified, with all resulting consequences, including forfeiture of any titles, awards, medals, profits, prizes, and appearance money.
5. The costs of the arbitration, to be determined and served to the Parties separately by the CAS Court Office, shall be borne by the Anti-Doping Agency of Kenya.
6. The Anti-Doping Agency of Kenya shall pay an amount of CHF 2,000 (two thousand Swiss Francs) to World Athletics as contribution to its legal costs and other expenses incurred in the present proceedings.

CAS 2020/A/7294 Aleksandr Shustov v. World Athletics & Russian Athletics Federation (RusAF)

Related case:

CAS 2019_O_6156 IAAF vs RusAF & Aleksandr Shustov
June 5, 2020

On 16 July 2016, Professor Richard McLaren (the Independent Person or the IP) issued a first report on the allegations of systemic doping in Russia. Some of the key findings of the First IP Report were that:

1. the Moscow Laboratory operated, for the protection of doped Russian athletes, within a state-dictated failsafe system, described in the First IP Report as the disappearing positive methodology (DPM) and
2. the Ministry of Sport of the Russian Federation directed, controlled, and oversaw the manipulation of athletes' analytical results or sample swapping, with the active participation and assistance of the Russian Federal Security Service, the Center of Sports Preparation of National Teams of Russia, and both Moscow and Sochi Laboratories.

On 9 December 2016, the IP elaborated on the First IP Report and released a second report on the doping allegations in Russia, together with the First IP Report. The Second IP Report confirmed the key findings of the First IP Report and described in detail the DPM and the Washout Testing.

Within the context of the Second IP Report, the IP identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered. The IP made publicly available on the IP Evidence Disclosure Package (EDP) website the evidence of the involvement of the Identified Athletes. According to the IP and the IAAF, the evidence on the EDP was retrieved from the hard-drive of Dr Rodchenkov and, after the metadata of all the documents was examined, the documents were determined to have been made contemporaneously to the events.

Mr. Aleksandr Shustov is a Russian high jumper competing in the Moscow 2013 IAAF World Championships.

In November 2017 the International Association of Athletics Federations (IAAF) - now: World Athletics - reported an anti-doping rule violation against the Russian Athlete based on the findings of the First and Second IP Report and the disclosed evidence.

After deliberations between the parties the case was referred to the Court of Arbitration for Sport (CAS) in February 2019 for a Sole Arbitrator first instance hearing panel (CAS 2019/O/6156).

The Sole Arbitrator concluded that the Athlete is present in the Moscow Washout Schedules in respect of the 5 samples listed as belonging to the Athlete. Here the Athlete’s presence in the Moscow Washout Schedules are strong indication that the Athlete used the prohibited substances Methandrostenolone (Metandienone) and Methasterone in 2013 as corroborated by the evidence.

Accordingly the Sole Arbitrator decided on 5 June 2020 to impose a 4 year period of ineligibility on the Athlete including disqualification of his results from 8 July 2013 until 7 July 2017.

in July 2020 the Athlete appealed the CAS First Instance Decision of 5 June 2020 (CAS 2019/O/6156) with the CAS Appeal Arbitration Division. He requested the Panel to annul the Appealed Decision and not to impose a period of ineligibility, or in the alternative to impose a reduced sanction.

The Athlete denied the use of prohibited substances and disputed the reliability of the filed evidence in this case provided by the World Athletics (IAAF), Professor McLaren and Dr Rodchenkov. Sustained by expert witnesses, he pointed to various inconsistencies in this evidence.

World Athletics contended that the Athlete (like all the other athletes on the Moscow Washout Schedules) manifestly used multiple prohibited substances in the lead-up to the Moscow World Championships. In addition, the Athlete was subject to a sophisticated protection scheme, involving washout testing to avoid detection at the event, as well as urine swapping when it ultimately transpired that his sample was positive.

Further World Athletics asserted that the Sole Arbitrator was absolutely correct to find that the Athlete had committed anti-doping rule violations and to impose a four-year period of ineligibility on him.

Despite being duly invited to do so, RusAF did not participate in the present appeal arbitration proceedings. It did not file any written briefs or prayers for relief and did not attend the hearing.

The Panel assessed the following isues in this case:

1. Did the Athlete violate Rule 32.2(b) IAAF Rules?

• The credibility of Dr Rodchenkov' s testimony
• The authenticity and reliability of the Moscow Washout Schedules
• The authenticity and reliability of the email dated 2 August 2013 related to the official 31 July 2013 sample
• Evidence of the official Sample 5 collected at the Moscow World Championships being swapped
  
  • Marks and scratches
  • Specific gravity
  • Conclusion with respect to swapping of Sample 5
• Overall conclusion with respect to the alleged violation of Rule 32.2(b) IAAF Rules

2. What are the consequences of a violation of Rule 32.2(b) IAAF Rules?

The Panel finds that the evidential strands presented by World Athletics, taken individually, is sufficiently reliable. Taken together, the evidence is particularly forceful because the several individual pieces of (indirect) evidence mutually support each other and thereby make the overall body of evidence against the Athlete stronger.

All the evidence, particularly when taken together, leads the Panel to the clear conclusion that it is satisfied to its comfortable satisfaction that the Athlete used prohibited substances, more specifically Methasterone, Oxandrolone and Methandrostenolone in the period between 8 July and 17 August 2013 in the lead-up to the Moscow World Championships, thereby violating Rule 32.2(b) IAAF Rules.

Therefore the Court of Arbitration for Sport decides on 23 November 2021:

1. The appeal filed on 20 July 2020 by Aleksandr Shustov against the decision issued on 5 June 2020 by the Court of Arbitration for Sport is dismissed.
2. The decision issued on 5 June 2020 by the Court of Arbitration for Sport is confirmed.
3. The costs of the arbitration, to be determined and served on the Parties by the CAS Court Office, shall be borne by Aleksandr Shustov.
4. The Athlete shall bear his own costs and pay a contribution in the amount of CHF 2,000 (two thousand Swiss Francs) towards World Athletics' legal fees and other expenses
   incurred in connection with the present appeal arbitration proceedings.
5. All other and further claims or prayers for relief are dismissed.

CAS 2020/A/7510 Daniel Kinyua Wanjiru v. World Athletics

Related case:

World Athletics 2020 WA vs Daniel Kinyua Wanjiru
October 8, 2020

In April 2020 the Athletics Integrity Unit (AIU) of the IAAF (now: World Athletics) reported an anti-doping rule violation against the Kenyan Athlete Daniel Kinyua Wanjiru after an AIU Expert Panel concluded unanimously in September 2019 in their Joint Expert Opinion that the Athlete’s hematological profile “highly likely” showed that he used a prohibited substance or a prohibited method: the use of EPO or Blood doping. 

After notification the Athlete submitted several explanations and objections to the AIU about the circumstances surrounding the collected samples. However after consideration the Expert Panel rejected the Athlete’s explanations and objections in their 2nd (March 2020), 3rd (June 2020) and 4th (August 2020) joint report. A provisional suspension was ordered and the Athlete was heard for the World Athletics Disciplinary Tribunal. 

Based on the formidable scientific evidence the Disciplinary Tribunal Panel was comfortably satisfied that the AIU has discharged its burden that blood manipulation is the irresistible explanation for the abnormal HB and OFF-score values in sample 14 in the Athlete’s ABP. The Panel deemed that the AIU and the Expert Panel established that the presented doping scenario caused the abnormalities in the Athlete’s ABP and that the Athlete committed an anti-doping rule violation.

Consequently the Disciplinary Tribunal decided on 8 October 2020 to impose a 4 year period of ineligibility on the Athlete starting on the date of the provisional suspension.

Hereafter in November 2020 the Athlete appealed the Decision with the Court of Arbitration for Sport (CAS).

World Athletics relied on the Joint Expert Reports submitted by the Expert Panel and the subsequent opinions they have provided in addition to their testimony during the hearing; it contended that there is no pathological or physiological explanation for the HGB value in Sample 14.

The principal abnormality in the Athlete’s passport – the extraordinarily high HGB value of 19.4 g/dL in Sample 14 – is a concentration so high that it would according to Prof. d’Onofrio represent a serious danger to the Athlete’s health, including the risk of thrombosis.

The Athlete’s case had evolved considerably as time has passed and he has consulted different experts who have considered the likelihood of there being innocent explanations for the adverse passport finding.

The Athlete submited that this case is about one single suspect HGB value in sample 14 and that one suspect ABP value is in itself insufficient to prove an anti-doping rule violation.

The Athlete argued that World Athletics must put the value in sample 14 in some context and present a credible doping scenario; and the case against him must be dismissed if World Athletics fails to do so even if the Panel was to find the Athlete’s explanation of inadequate mixing unlikely.

the Panel finds that the ABP is a reliable means that may assist in establishing an anti-doping rule violation, and although not definitive, it is highly convincing when supported by Joint Expert Reports such as those presented in this case.

The Panel finds that WA and the experts have provided plausible scenarios, consistent with scientific literature, which support the finding that the Athlete did transfuse himself, most likely on 7 or 8 March 2019.

In sum, considering (i) the values detected in Sample 14 of the Athlete’s ABP were highly abnormal and indicated a high probability of doping; (ii) the absence of any indication of improper handling of the Sample or failures to follow the laboratory protocol and (iii) the absence of contradictory evidence (i.e. that the Athlete has not provided any objective, physiological or pathological reason or condition to explain the abnormality in the ABP values); the Panel is comfortably satisfied that the abnormal ABP values were caused by a transfusion.

Therefore the Court of Arbitration for Sport decides on 1 February 2022 that:

1. The appeal filed by Mr Daniel Kinyua Wanjiru on 9 November 2020 against the decision rendered by the World Athletics Disciplinary Tribunal on 8 October 2020 is dismissed.
2. This Award is made without costs, except for the Court Office fee of CHF 1,000 paid by Mr Daniel Kinyua Wanjiru, which is retained by CAS.
3. Mr Daniel Kinyua Wanjiru is ordered to pay World Athletics a contribution of CHF 2,000 (two thousand Swiss Francs) towards its legal fees and other expenses incurred in connection with these proceedings.
4. All other and further applications for relief are dismissed.

Related case:

UCI-ADT 2020 UCI Raúl Alarcón García
March 8, 2021

On 8 March 2021 the UCI Anti-Doping Tribunal decided to impose a fine and a 4 year period of ineligibility on the Spanish cyclist Raúl Alarcón García due to the abnormal values in his Athlete’s Biological Passport (ABP).

In First Instance the Sole Arbitrator concluded that the Athlete failed to establish a departure from the ISL, the ISTI or any other applicable Rule. Furthermore there was no departure that could reasonably have caused the Adverse Analytical Finding, nor did the Athlete set forth any other potential legal basis on which his arguments may rely.

Hereafter in April 2021 the Athlete appealed the UCI-ADT Decision with the Court of Arbitration for Sport (CAS) and requested the Panel to annul the Appealed Decision.

The Athlete denied the violation and raised a number of issues regarding:

• the lack of independence of the UCI-ADT;
• the burden and standards of proof;
• the refusal to translate the ABP documentation package;
• the departures of the ISL;
• the departures of the ISTI;
• the reliability of the ABP data.

The UCI contended that the Athlete's ABP profile displays clear abnormalities and that none of the Athlete's explanations or attempts to establish that there are no such abnormalities are convincing.

In this case the Panel considered all the facts, allegations, legal arguments and evidence submitted by the Parties:

• It first recalls the specific context and debates over the finding of an ADRV based on abnormalities identified in an ABP and the applicable burden of proof.
• It then sets out the burden and standard of proof applicable in determining whether departures from certain applicable standards in sample collection, preservation and analyses are performed.
• The Panel goes through said alleged departures to determine whether they have been characterized, and, if so, whether they had an impact over the finding of an ADRV;
• before determining the justifications of the abnormalities debated between the Parties; and
• determining the corresponding sanction.

The Panel concludes that the Athlete failed to provide credible explanations for the abnormalities in his ABP, but that such failure cannot automatically induce that an ADRV has been committed.

Ultimately the Panel is comfortably satisfied that the cause for the abnormalities is most certainly the use of a Prohibited Method, i.e. blood transfer. The Panel considers that the Athlete's profile shows a high possibility of blood manipulations. The timing of which reinforces this conclusion, as these abnormalities coincided with the Volta a Portugal 2015, 2017 and 2018.

Therefore the Court of Arbitration for Sport decides on 28 January 2022 that:

1. The appeal filed by Mr. Raúl Alarcón García on 6 April 2021 against the decision rendered by the UCI Anti-Doping Tribunal dated 8 March 2021 is rejected.
2. The decision rendered by the UCI Anti-Doping Tribunal dated 8 March 2021 is confirmed.
3. The award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Mr. Raúl Alarcón García, which is retained by the Court of Arbitration for Sport.
4. Mr. Raúl Alarcón García is ordered to pay CHF 2,500 (two thousand and five hundred Swiss Francs) as a contribution towards the legal fees and other expense incurred by the UCI in connection with this procedure.
5. All other or further requests or motions for relief are dismissed.

CAS OG 22/08 - CAS OG 22/09 - CAS OG 22/10 International Olympic Committee (IOC), World Anti-Doping Agency (WADA) & International Skating Union (ISU) v. Russian Anti-Doping Agency (RUSADA), Kamila Valieva, Russian Olympic Committee (ROC)

• Skating (figure skating)
• Lifting of a provisional suspension imposed on an athlete for doping
• Jurisdiction ratione materiae of the CAS ad hoc Division
• Jurisdiction ratione temporis of the CAS ad hoc Division
• Protected Person
• Mandatory provisional suspension for Protected Persons
• Filling of a lacuna in the World Anti-Doping Code
• Treatment of provisional suspensions for Protected Persons as optional provisional suspensions
• Irreparable harm
• Delay in the process of samples

1. The CAS ad hoc Division has jurisdiction over disputes envisaged under Article 61(2) of the Olympic Charter, i.e. dispute “arising on the occasion or in connection with the Olympic Games” which means that attention should be paid to the dispute and what the dispute is about. Therefore, even if an alleged anti-doping violation has not been committed on the occasion or in connection with the Olympic Games and the provisional suspension imposed as a result of the alleged anti-doping violation does not specifically target the Olympic Games, the dispute might nevertheless be directly connected with the Olympic Games if the dispute is about whether or not the decision to lift such provisional suspension should be confirmed and the outcome of the dispute is relevant for the athlete’s further participation in the Olympic Games.

2. If the decision which gave rise to the dispute was rendered during the period considered to be relevant under Article 1 of the CAS Ad Hoc Rules, the CAS ad hoc Division has jurisdiction ratione temporis over the dispute. In this respect, it is irrelevant whether the initial facts at the basis of the dispute may have arisen at a previous stage.

3. The World Anti-Doping Code (WADC) 2021 intends to treat Protected Persons differently than other Athletes or Persons in certain circumstances based on the understanding that, below a certain age or intellectual capacity, an Athlete or other Person may not possess the mental capacity to understand and appreciate the prohibitions against conduct contained in the Code.

4. The WADC does not provide an exemption to a mandatory Provisional Suspension for a non-specified substance used by a Protected Person even though the ultimate sanction range for the Protected Person is the same as for other categories of athletes who can avoid a mandatory Provisional Suspension. Put differently, a Protected Person is subject to the same ultimate sanction as other athletes who avoid a mandatory Provisional Suspension. But only Protected Persons can potentially receive a public reprimand and no period of ineligibility and yet be subject to a mandatory Provisional Suspension preventing them from competing for months while their case is being handled. This different and harsher treatment for Protected Persons is inconsistent with the oft-expressed intent of the Code drafters to make the Code apply more leniently and flexibly to Protected Persons in light of their age and inexperience, and their diminished responsibility for rule violations. Exempting older athletes from mandatory Provisional Suspensions in most instances in which they might ultimately be able to establish basis for a short sanction or reprimand but not exempting younger, legally incapable, and immature Protected Persons who might be entitled to a short sanction or reprimand appears clearly to be an unintended gap in the Code.

5. When CAS panels find a lacuna, or a gap, in the WADC, this has been the basis for a CAS panel to find a gap filling construct that would ameliorate an overly harsh or inconsistent outcome applying the overarching principle of justice and proportionality on which all systems of law, and the WADC itself, is based. This is an exercise in interpretation, not in rewriting rules or making policies that are better made by sporting bodies exercising proper governance.

6. In cases involving Protected Persons, Provisional Suspensions should be evaluated as optional Provisional Suspensions under the WADC 2021 and its progeny.

7. While it is not in itself sufficient that an athlete is prevented from competing in sports events to justify a stay in itself, given the finite and brief career of most athletes, a suspension (subsequently found to be unjustified) can cause irreparable harm, especially when it bars the athlete from participating in a major sports event.

8. While athletes are held to a high standard in meeting their anti-doping obligations, at the same time, the anti-doping authorities are subject to mere recommendations on time deadlines that are designed to protect athletes from late- or inconveniently-arising claims. The flexibility of the recommendations and guidelines applicable to WADA-accredited labs contrasts with the stringency of the rules on Provisional Suspensions. Although all athletes’ samples are anonymous, it should be possible for anti-doping laboratories and authorities to handle anti-doping tests in a swift manner when the samples are collected at significant pre-events that may constitute selection events for the Olympic Games.

In February 2022 the Russian Anti-Doping Agency (RUSADA) has reported an anti-doping rule violation against the Russian figure skater Kamila Valieva (15) after her sample, collected on 25 December 2021, tested positive for the prohibited substance Trimetazidine.

After notification a provisional suspension was ordered on 8 Februay 2022 and consequently the Athlete was prohibited from participation in the 2022 Beijing Olympic Games.

Yet the RUSADA Disciplinary Anti-Doping Committee (DADC) decided on 9 February 2022 to lift the Athlete's provisional suspension as it established that under the Russian ADR and the WADC 2021 the minor Athlete is a Protected Person.

The DADC accepted the explanation and evidence that the prohibited substance entered the Athlete's system through the use of a contaminated product, i.e. the medication used by her grandfather.

Hereafter on 11 and 12 February the IOC, WADA and ISU appealed the DADC Decision of 9 February with the CAS Ad Hoc Division at the Beijing Olympic Games. IOC, WADA and ISU requested the Ad Hoc Panel to set aside the Appealed Decision and to re-instate the Provisional Suspension imposed by RUSADA on 8 February 2022.

The Athlete in her defence argued that:

• The source of the inadvertent contamination has been established by the DADC after careful analysis, in connection with her interacton with her grandfather, who regularly takes the medicine Trimetazidine.
• The DADC correctly had acknowledged that the Athlete is a Protected Person due to her age;
• The DADC accepted that the Athlete would not have any competitive advantages by consuming the Trimetazidine based on the medical experts' testimonies.
• Under the Rules the conditions are met in order to lift the Provisional Suspension.

RUSADA contended that the analysis in the Stockholm Lab was delayed due to pandemic-related staff shortages and is confident that the Athlete will be able to complete her submission with respect of evidenc in the proceedings before CAS whereas she has a lesser burden of proof as a Protected Person.

The ROC asserted that in the present case concrete evidence showing the source of the contamination is not required (as the Athlete is a Protected Person) and are not available (due to the undue delay in the reporting of the adverse analytical finding by the Anti-Doping Laboratory). As a result the Panel must rely on circumstantial evidence and decide to confirm the Appealed Decision if the scenario submitted by the Athlete with regard to contamination with the Prohibited Substance is more likely that the different scenario of a voluntary ingestion.

The CAS Ad Hoc Panel holds that it is uncontested that the Athlete is clearly a Protected Person under the Russian ADR and that the WADC 2021 intends to give special treatment to the Protected Persons like the Athlete.

The Panel finds that in cases involving Protected Persons, their Provisional Suspensions should be evaluated as optional Provisional Suspensions under WADC 2021 Article 7.4.2 and its progeny.

The Panel determines that the Athlete was entitled to benefit from being subject to an optional Provisional Suspension as a Protected Person and that, under the facts and circumstances, the option not to impose a Provisional Suspension should have been exercised so that she would not be prevented to compete in the Games.

Further the Panel considers in this case:

• the length of time it took for the laboratory to submit its report of an AAF involving the Athlete;
• the timing of that relative to the conduct of the Women’s Single Skating event at the Games;
• the difficulty to be faced in the Athlete not being able in
  the current situation, right in the middle of the Games, to muster proof to support her defence of the ADRV being asserted against her;
• the relatively low level of the prohibited substance found
  in her sample;
• the fact that she has tested negative in multiple tests before;
• after the test in question the case she has attempted to muster on contamination whether in a product or through domestic contamination, and the likely low level of sanction
  she will face if found to have committed an ADRV.

The Panel deems that athletes should not be subject to the risk of serious harm occasioned by anti-doping authorities’ failure to function effectively at a high level of performance and in a manner designed to protect the integrity of the operation of the Games. Accordingly the Panel finds that the Provisional Suspension should remain lifted.

Therefore the CAS Ad Hoc Division decides on 17 February 2022:

1. The Ad Hoc Division of the Court of Arbitration for Sport has jurisdiction to determine the Applications filed by the International Olympic Committee (IOC), World Anti-Doping Agency (WADA) and International Skating Union (ISU).
2. The Applications filed by the International Olympic Committee (IOC), World Anti-Doping Agency (WADA) and International Skating Union (ISU) are dismissed.

CAS 2021/A/7628 Fabián Hernando Puerta v. Union Ciclista Internacional (UCI)

Related case:

UCI-ADT 2020 UCI vs Fabian Hernando Puerta Zapata
December 16, 2020

On 16 December 2020 the UCI Anti-Doping Tribunal decided to impose a 4 year period of ineligibility on the Colombian Rider Fabian Hernando Puerta Zapata after his A and B samples tested positive for the prohibited substance Boldenone.

In First Instance the Athlete denied the intentional use of the substance and argued with expert opinions that his positive tests were the result of his consumption of Boldenone contaminated meat on the evening before the doping control. He asserted with evidence that Boldenone is widely used in farming of beef cattle in Columbia.

After consultation with external scientific experts the UCI rejected the Athlete's explanation because the concentration Boldenone found in his samples was not consistent with the alleged consumption of contaminated meat. Moreover the found concentration was consistent with the intentional injection of Boldenone 1-2 days before the test.

Herafter in January 2021 the Athlete appealed the UCI-ADT Decision with the Court of Arbitration for Sport (CAS).

The Athlete argued that the anti-doping rule violation for which he was sanctioned was not committed intentionally and, therefore, the Panel must set aside the Appealed Decision, reduce his sanction to a two-year period of ineligibility under Article 10.2 of the UCI ADR, and eliminate the mandatory costs imposed on him under Article 10.10.2 of the same.

Further the Athlete complained that the delays in the UCI investigation and proceeding were unacceptable and unfair. The UCI, on the other hand, sought to have the Appealed Decision upheld. The UCI contended that the Athlete has failed to prove on a balance of probability that the violation committed was not intentional.

Regarding the Athlete's procedural complaints the Panel finds that there is no indication that the UCI or the UCI Tribunal purposely delayed the investigation of final decision. Also no procedural violation occurred regarding UCI's consultation with WADA and the Panel observes that the UCI Single Judge considered and addressed explicitly or implicity in no little detail all of the Athlete's evidence and arguments.

In view of the evidence in this case the Panel finds that the presence of the prohibited substance Boldenone has been established in the Athlete's samples and accordingly that he committed an anti-doping rule violation.

The Panel holds that the Athlete only established that he ate meat on the night before the positive doping test and that there is a possibility that the AAF resulted from meat contamination. However, the Panel concludes that he has failed to:

• (i) sufficiently trace the origin of the meat;
• (ii) prove there is a systematic and significant Boldenone meat contamination problem in Antioquia or Colombia;
• (iii) prove that there is a probability that the AAF resulted from meat contamination; and
• (iv) rule out other routes of ingestion (in particular, the intentional oral intake of Boldenone, which in reality appears to the Panel to be the most probable scenario).

Under such circumstances and even considering the Athlete's clean history, the Panel finds that the he failed to establish on a balance of probability that the ADRV was not intentional for the purposes of 10.2 of the UCI ADR.

Therefore the Court of Arbitration for Sport decides on 10 November 2021:

1. The appeal filed by Fabian Hernando Puerta against the decision of the UCI AntiDoping Tribunal rendered on 16 December 2020 is dismissed.
2. The decision of the UCI Anti-Doping Tribunal rendered on 16 December 2020 is confirmed.
3. The award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Fabian Hernando Puerta, which is retained by the CAS.
4. Each Party shall bear its own legal fees and other expenses incurred in connection with this arbitration.
5. All other or further requests or motions submitted by the Parties are dismissed.

CAS 2017/A/5209 Clara Victoria Patrugan v. Romanian National Anti-Doping Agency

• Canoe
• Doping (prohibited method; meldonium)
• Arbitration agreement
• Arbitration agreement conferring jurisdiction to CAS based on a private act incorporating normative statutory act
• Athlete Support Personnel

1. An arbitration agreement conferring jurisdiction to the CAS must be based on a private act between the relevant parties. Such act can either derive from a specific contract or express agreement, or otherwise from membership or other affiliation with a (private) sports organization or sports governing body and reference to an arbitration clause provided in the statutes or regulations of that sports federation. By contrast, a judicial body whose competence is based on a statutory provision enacted by the legislator (only) does not qualify as a court of arbitration under Swiss law, but rather as a special court established by statutory law.

2. In case a sports federation, in its statutes or regulations, expresses its commitment to respect and follow the national anti-doping provisions, the respective national provisions are to be understood as incorporated into, or to be applied under the statutes and regulations of the sports federation. If furthermore the respective national anti-doping provisions recognize the CAS as the highest adjudicatory body, an individual affiliated to the sports federation and therefore bound by the latter’s rules and regulations may be considered to have concluded, with the respective federation, an arbitration agreement conferring jurisdiction to the CAS. Specifically, the arbitration agreement conferring jurisdiction to the CAS is based on a private act attributable to the parties (i.e. the statutes or regulations of the sports federation) which incorporates the normative statutory act (i.e. the national anti-doping rules recognizing the CAS as the highest adjudicatory body).

3. A medical doctor who, in official correspondence denotes himself “Medical doctor Kayak – Canoe Olympic Pool” and who furthermore renders himself to training camps of athletes affiliated with a national federation in order to perform treatments to the athletes falls into the category of “Athlete Support Personnel” under Appendix 1 to the World Anti-Doping Code (and the respective identic national anti-doping rules), given that he treated and assisted athletes participating in, or preparing for, sports competitions pursuant to said rule. In order to qualify as Athlete Support Personnel it is irrelevant whether the individual in question holds a specific degree (e.g. sports medicine) or similar. Furthermore, by participating in the activities of the national federation and those of its athletes, the medical doctor consented to the statutes and regulations of the national federation; provided those statutes and regulations foresee the possibility of arbitration of anti-doping rule violations, the consent expressed by means of participation also includes that possibility of arbitration.

On 27 July 2016 the Hearing Commission of the Romanian National Anti-Doping Commission (ANAD) decided to impose a lifetime period of ineligibility on the medical doctor Clara Victoria Patrugan for the treatment of athletes with ozone-therapy. Also ANAD prosecuted the doctor for her failure to report the use of Meldonium when she became aware that some athletes were using this prohibited substance.

Hereafter the doctor appealed, yet the ANAD Appeal Commission confirmed on 3 April 2017 the sanction whereas on 27 November 2017 the Bucharest Court of Appeal concluded that it had no competence to hear the appeal.

Meanwhile in June 2017 the doctor had also appealed the ANAD Appeal Decision of 3 April 2017 with the Court of Arbitration for Sport (CAS). The Athlete questioned the jurisdiction of CAS, but alternatively, she requested the Panel to annul the Appealed Decision.

The doctor denied she committed anti-doping rule violations because she does not qualify as Athlete Support Personnel under the Rules. She admitted that she applied ozone-therapy to athletes and withheld certain information regarding the use of Meldonium by athletes.

She argued that she applied the ozone-therapy only as physician specialized in family medicine and that she was unaware that this was forbidden for athletes. Further she argued that in December 2015 the use of the substance Meldonium by the athletes was still allowed.

The Sole Arbitrator establishes that Ms Petrugan worked as medical doctor for the Olympic kayak-canoe team and the Romanian Kayak and Canoe Federation (RKCF). This undoubtedly qualifies her as Athlete Support Personnel and that she has standing to be sued by ANAD.

The Arbitrator holds that it is undisputed that the doctor applied ozone-therapy to athletes and as a medical doctor supporting athletes she should have known that this treatment offered by her was a prohibited method under the Rules.

The Arbitrator establishes that at the relevant time the doctor had conducted research and that she was aware that athletes could still be tested positive for Meldonium once its ban had come into force. Conversely the doctor failed in her duty to inform the RKCF and ANAD in order to act properly thereafter.

With this information RKCF and ANAD could submitt the athletes for target testing and warn athletes that the use of Meldonium was prohibited as from 1 January 2016. This could have possibly have prevented the athletes from any furher use of the substance whereas later in spring 2016 a number of kayak athletes tested positive for the use of Meldonium.

The Sole Arbitrator deems that the doctor committed a considerable offence and regards that only 9 athletes had received 10 ozone-therapy treatments. There was also no evidence that the doctor was involved into a large anti-doping conspiracy or scheme that justifies the imposition of a lifetime ban.

Therefore the Court of Arbitration for Sport decides on 28 June 2018 that:

1.) The appeal filed by Ms Clara Victoria Patrugan against the decision rendered on 3 April 2017 by the Appeal Commission of the Romanian National Anti-Doping Agency is partially upheld.

2.) The decision rendered on 3 April 2017 by the Appeal Commission of the Romanian National Anti-Doping Agency is amended as follows as far as the period of ineligibility is concerned:

Ms Clara Victoria Patrugan shall be ineligible for a period of 6 (six) years to participate in any competition or activity authorized or organized by a signatory of the WADC, to act in any capacity within a sport body of a signatory of the WADC, to enter any contract relationship with or to act as volunteer for a signatory of the WADC. The period of ineligibility shall be deemed to have started on 3 April 2017.

(…)

5. All other motions or prayers for relief are dismissed.

CAS 2018/A/5615 Jared Higgs v. Bahamas Football Association (BFA)

• Football (beach soccer)
• Doping (failure to submit to sample collection/doping control)
• Sample collection for anti-doping purposes
• Ex post substitution of grounds for the conduct of tests
• Duty to substantiate
• Onus to substantiate
• Threshold of sufficient substantiation

1. A sample collection needs to have anti-doping purposes for an appellant’s non-compliance therewith to potentially constitute an Anti-Doping Rule Violation. In case of doubt, it must be assessed and interpreted from a reasonable person’s perspective whether the sample collection was conducted for anti-doping or for other (permissible) medical purposes. When doing so, a panel takes into account that, absent any indication to the contrary, a sports organisation would opt for the alternative most in line with the applicable regulations. Regulations such as the FIFA Anti-Doping Regulations, the World Anti-Doping Code and the International Standard on Testing and Investigations were all drafted with a view to safeguarding “the principles of respect for human rights, proportionality, and other applicable legal principles”, so any tests conducted under its guise must abide by all the mandatory requirements in those regulations.

2. The original purpose of a testing cannot be substituted with another purpose at a later point in time. It must be clear from the outset for the subject of the test, for what purpose the testing is being conducted and therefore what rules shall apply to it.

3. The duty to substantiate and, in particular the prerequisites that a party must fulfil in order to dispose of its duty to sufficiently substantiate its submissions is intrinsically linked to the principle of party presentation and thus is a procedural question. There are links also to the law applicable to the merits since, in particular, what must be submitted by a party will be dictated by the law applicable to the merits.

4. The onus of substantiation is linked to the law applicable to the merits as the onus of presentation follows from the burden of proof.

5. Submissions are in principle sufficiently substantiated if they are detailed enough (i) for a panel to determine and assess the legal position claimed and (ii) for a counterparty to be able to defend itself.

In January 2017 the Bahamas Football Association (BFA) ordered a Provisional Suspension of the football player Jared Higgs for his failure to attend a drug test with the Bahamas Beach Soccer National Training Team on 17 January 2017.

Between January and June 2017 the BFA attempted to contact the Athlete while the Athlete neither attempted to contact the BFA. When the Athlete finally appeared at a competition on 10 June 2017 and was informed about the Notification and the Provisional Suspension resulting in the Athlete's misconduct and bicker with the BFA.

Consequently on 17 July 2017 the BFA Disciplinary Committee decided to impose a fine and a ban of 4 matches on the Athlete for his misconduct and failure to submit to sample collection.

The Athlete appealed the Disciplinary Decision with the BFA Appeals Committee. Yet in accordance with the WADC and the FIFA-ADR the BFA Appeals Committee decided on 22 January 2018 to impose a 4 year period period of ineligibility on the Athlete for his refusal to take a drug test.

Hereafter in March 2018 the Athlete filed an appeal with the Court of Arbitration for Sport (CAS) and requested the Panel to set aside both the BFA Disciplinary Decision of 17 July 2017 and the BFA Appeal Decision of 22 January 2018.

The Athlete denied that he had committed an anti-doping rule violation and argued that both Appealed Decisions were erroneous and invalid due to procedural failures and numerous violations of due process.

Considering the parties’ submissions and the testimonies of the witnesses and experts at the hearing, the Panel observes that the main issues to be resolved are:

• Did the Athlete’s failure to report to the BFA offices on 16 January 2017 constitute an ADRV?
• If not, did the Athlete’s conduct violate any other rules of the BFA?
• Were the sanctions imposed in the Appealed Decision appropriate?
• Did the Athlete’s conduct on 10 June 2017 at the Beach Soccer Stadium violate BFA rules?
•  If so, were the sanctions imposed in the BFA Disciplinary Committee Decision and/or the Appealed Decision appropriate?
• Is the Athlete entitled to damages?

The Panel determines that the Athlete had received the Appealed Decision on 19 February 2018 and that the Appeal with CAS was filed in March 2018 within the 21-day deadline. The Panel rejects the Athlete's request for damages because he failed to provide any evidence of financial losses.

The Panel establishes that the sample collection conducted by the BFA on 17 January 2017 was not intended to fall under the FIFA ADR, the WADC, the Bahamas ADR and the ISTI. Accordingly, it follows that the Athlete’s failure to participate in the testing cannot be qualified as an ADRV, since the sample collection was – clearly – not for anti-doping purposes.

The Panel deems that the Athlete should not have been sanctioned under the FIFA ADR or the WADC. Instead, the Panel finds that the Athlete – in principle – should have been disciplined under the Code of Conduct for not complying with the Pre-Competition Testing.

As such, the Appealed Decision, regarding the Athlete's sanction under the FIFA ADR and WADC is set aside whereas there is no need anymore to consider the various alleged procedural violations during the proceedings.

The Panel regards that the Athlete indeed had used offensive, insulting or abusive language or gestrues on 10 June 2017 when he was informed about the Provisional Suspension. In this matter the Panel confirms the Decision of 17 July 2017 for the imposition of a fine and a ban of 4 matches.

Therefore the Court of Arbitration for Sport decides on 25 March 2019 that:

1. The appeal filed on 12 March 2018 by Jared Higgs against the decision rendered by the Bahamas Football Association Appeals Committee on 22 January 2018 is upheld.
2. The decision rendered by the Bahamas Football Association Appeals Committee on 22 January 2018 is set aside, and replaced as follows:

   Jared Higgs shall serve (to the extent he has not already done so) a ban of four (4) matches and pay a fine or USD 40 to the Bahamas Football Association.

3. (…).
4. (…).
5. All other motions or prayers for relief are dismissed.