CAS 2008/A/1608 International Association of Athletics Federations v/ Athletic Federation of Slovenia & Ms Helena Javornik

In April 2008 the International Association of Athletics Federations (IAAF) has reported an anti-doping rule violation against the Slovenian Athlete Helena Javornik after her A and B samples tested positive for the prohibited substance recombinant human erythropoietin (rhEPO).

However on 19 June 2008 the Athletic Federation of Slovenia (AFS) decided that the Athlete had not committed an anti-doping rule violation and that the imposed provisional suspension was invalid.

In first instance the AFS deemed that the analytical results of the Athlete’s sample did not establish the presence of a prohibited substance, since they didn’t fulfil the criteria set in the WADA Technical Document TD2007EPO.

Hereafter in July 2008 the IAAF appealed the Slovenian decision with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

The IAAF rejected the grounds to declare the Athlete not guilty for a doping offence and considers the AFS decision to be erroneous and procedurally unsound. The IAAF contended that the tests results were valid, in accordance with the ISL and the relevant WADA Technical Document.

The Panel assessed and addressed the evidence in this case and concludes that the IAAF has established, to the comfortable satisfaction of the Panel, that the anti-doping rule violation has been committed. The Panel concludes that the analyses of the A sample and of the B sample of the Athlete’s urine show positive results. Such results cannot be held to amount to falsely positive results.

Further the Panel finds that no departures occurred and, in any case, that the validity of the analytical findings in the Athlete’s sample was not undermined. Also the Panel holds, in any case, that it has been demonstrated that the collection, storage and transport conditions of the Athlete’s sample did not undermine the validity of adverse analytical finding established in the Seibersdorf Lab.

Therefore the Court of Arbitration for Sport decides on 13 March 2009 that:

1.) The appeal filed by the International Association of Athletics Federations against the decision issued on 19 June 2008 by the Antidoping Commission of the Athletic Federation of Slovenia is upheld.

2.) The decision adopted on 19 June 2008 by the Antidoping Commission of the Athletic Federation of Slovenia is set aside.

3.) Ms Helena Javornik is found guilty of an anti-doping rule violation under IAAF Competition Rule 32.2(a) and is declared ineligible for a period of 2 years commencing on 11 June 2008.

4.) All other prayers for relief are dismissed.

5.) This award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss Francs) paid by the International Association of Athletics Federations, which is retained by the CAS.

6.) Each party shall bear its own costs.

CAS 2009/A/1805 IAAF v. RFEA & Josephine Onyia

CAS 2009/A/1847 IAAF v. RFEA & Josephine Onyia

In September 2008 the International Association of Athletics Federations (IAAF) reported two anti-doping rule violations against the Spanish Athlete Josephina Onyia after her A and B samples - provided on two occasions in Lausanne and in Stuttgart in September 2008 - tested positive for the prohibited substances Clenbuterol and Methylhexaneamine (dimethylpentylamine).

However on 21 January 2009 and on 12 March 2009 the Royal Spanish Athletics Federation (RFEA) concluded in both cases that the Athlete had committed no anti-doping rule violation and decided to lift the ordered provisional suspension.

The RFEA concluded regarding the reported presence of Clenbuterol that:

• the found concentration was below the Minimum Required Performance Limit;
• the Cologne Lab did not comply with the ISL;
• the presence of Clenbutrol could be caused by the ingestion of contamined meat; and
• the Athlete did not commit any punishable intentional doping conduct.

In the matter of the reported presence of Methylhexaneamine the RFEA concluded that:

• this substance was not prohibited under the WADA 2008 Prohibited List;
• when listed the substance should be classified as a Specified Substance;
• it was unlikely she would have committed a doping violation given the probalility to be tested;
• no stimulants were found in her other samples provided in the same month; and
• the Lausanne erred to quantify the substance that was found.

Hereafter in April 2009 the IAAF appealed the two Spanish decisions with the Court of Arbitration for Sport (CAS).

The IAAF rejected the grounds to exonerate the Athlete and argued that:

• the Cologne Lab tests results were valid;
• the Cologne Lab was obliged to analyse samples in accordance with the ISL and the relevant WADA Technical Document;
• Methylhexaneamine was no specifically mentioned, yet classified in the Prohibited List as related substances under section 6.
• the Athlete failed to establish in both cases how the substances had entered her system; and
• under the IAAF Rules there was no need to prove that the violation was intentional.

The Panel finds that in each case the Athlete was shown, to the requisite standard of proof (i.e. to a standard greater than a mere balance of probability), to have a prohibited substance in her samples. In each case therefore she has been shown to have committed an anti-doping rule violation.

The Panel determines that in neither case was the Athlete able to impugn the analysis or provide evidence to show, on the balance of probabilities, how the Prohibited Substance had come to be in her samples. She was therefore not in a position to assert that she bore no, or no significant, fault or negligence for the violations.

The appeals by the IAAF will therefore be allowed. The two anti-doping rule violations are to be considered as one single first anti-doping rule violation.

Therefore the Court of Arbitration for Sport decides on 22 September 2009 that:

1.) The appeals of the International Association of Athletics Federations are allowed.

2.) Ms Josephine Onyia is declared ineligible for all competition in respect of the two anti-doping rule violations for a period of two years, commencing on 22 September 2009.
However, credit is given for the periods of ineligibility already served because of the provisional suspensions totaling 316 days from 30 September 2008 to 21 January 2009 and from 4 March 2009 to 21 September 2009.

3.) Ms Josephine Onyia is disqualified from the 100m hurdles at the IAAF Golden League meeting "Athletissima" held in Lausanne on 2 September 2008 and from all subsequent events until the commencement date of the period of ineligibility with all resulting consequences, including the forfeiture of all titles, awards, medals, points and prize and appearance money.

4.) (…)

CAS 2011/A/2353 Erik Tysse v. Norwegian Athletics Federation (NAF) & International Association of Athletics Federations (IAAF)

• Athletics (race walking)
• Doping (EPO CERA)
  Validity of the method to find Continuous Erythropoetin
• Receptor Activator (CERA) in a urine sample
• Adverse analytical finding
• Departure from International Standards
• Violation of the European Convention for Human Rights
  
  

1. To establish a CERA doping violation, the applicable TD2009EPO (Technical Document issued by WADA) provides that the criteria of analysis has been established to ensure harmonization in the performance of the EPO test. For the detection of EPO, and in particular of EPO CERA, the isoelectrofocusing (IEF) analysis method must first meet the acceptance criteria. Once the analysis meets the acceptance criteria, TD2009EPO requires that the lab apply the identification criteria. Once the identification criteria is met and an Adverse Analytical Finding is suspected, the lab, in the confirmation phase, must perform a stability test on the sample.

2. Iron injections cannot explain an adverse analytical finding of EPO CERA where the evidence of an athlete’s experts is not supported by any reliable evidence.

3. Regarding any alleged breaches or departures in general, the IAAF Rules provides that the laboratory is presumed to have conducted the analysis in accordance with the International Standards for Testing. An athlete may of course rebut this presumption, but must do so on the balance of probabilities.

4. Even if it were applicable, there is no violation of the European Convention for Human Rights due to the fact that the No Fault and No Significant Fault provisions in both the WADA Code and the IAAF Rules protect athletes against any violation in this respect.

On 31 January 2011 the Norwegian Athletics Federation (NAF) Tribunal decided to impose a 2 year period of ineligibility on the race walker Erik Tysse after his A and B samples tested positive for the prohibited substance Methoxy polyethylene glycol-epoetin beta (CERA).

Hereafter in February 2011 the Athlete appealed the Norwegian decision with the Court of Arbitration for Sport (CAS).

The Athlete asserted that the NAF Tribunal erred in confusing the quality of the tests and the interpretation of the test results and, as such, incorrectly concluded that his doping tests were positive. He argued that the method used by the Rome Laboratory to detect CERA is unreliable nevertheless when interpreted correctly does not show the presence of CERA.

Also the results from the Rome Lab do not meet the standards as set out in the WADA Technical Document in question and there were several procedural errors in the Rome Lab.

The NAF and IAAF rejected the Athlete’s arguments and asserted that a validated and reliable method for detecting rhEPO and analogues and the analytical data from the Athlete’s test was correctly interpreted in accordance with the WADA Technical Document.

The Panel finds that the presence has been established of CERA in the Athlete’s sample and that the Athlete’s expert’s evidence in this case is not relevant. Regarding the requirements in the WADA Technical Document, the Panel finds that the acceptance criteria, the identification criteria, and the stability criteria are met in this case.

Further the Panel finds that the evidence establishes that the used IEF method is both valid and has a high degree of specificity. The Panel finds that the medical records show no direct evidence that the Athlete suffers from any kidney condition.

The Panel concludes that the Athlete failed to establish any departure on the balance of probabilities.

Therefore the Court of Arbitration for Sport decides on 29 August 2011 that:

(1) The appeal filed by the Appellant Mr Erik Tysse on 16 February 2011 is dismissed.

(2) The decision of the NAF Tribunal dated 31 January 2011 is hereby confirmed.

(3) (…)

CAS 2010/A/2296 Simon Vroemen v/ Koninklijke Nederlandse Atletiek Unie & Anti-Doping Autoriteit Nederland

CAS 2010/A/2296 Simon Vroemen v. Koninklijke Nederlandse Atletiek Unie (KNAU) & Anti-Doping Autoriteit Nederland (ADAN)

• Athletics (steeplechase)
• Doping (metandienone)
• Burden and standard of proof regarding departures from International Standards
• Validity of sample collection and storage
• Minor documentation defect
• Transportation of sample
• “Different analyst” rule
• CAS scope of review regarding the validation of a detection method
• Delivery of the Laboratory’s standard operating procedures (SOPs)
• Purpose of the analysis of the B sample for a non-threshold substance

1. According to the applicable provisions of the Dutch Institute for Sports Law (ISR) Doping Regulations, when an adverse analytical finding is reported by a WADA-accredited laboratory, there is a presumption that the applicable International Standards were respected throughout the whole anti-doping process. The burden is thus on the athlete to establish, by a balance of probability, a departure from the International Standard for Testing (IST) or International Standard for Laboratories (ISL) either during the collection, handling and transport of the samples or during the analysis, custodial and review procedures in the laboratory. If the athlete does prove any such departure, the burden shifts back to the anti-doping organization to prove – to the comfortable satisfaction of the hearing body, bearing in mind the seriousness of the allegation which is made – that the departure did not cause the adverse analytical finding.

2. Where on the balance of probability, an athlete’s allegations concerning the sample collection and storage procedure have not been proven, it must be concluded that the anti-doping test performed by the Doping Control Officer (DCO) on the athlete was properly carried out and that the samples were properly stored in accordance with the applicable collection procedures.

3. A declaration signed by an athlete that s/he was satisfied with the sample collection procedure cures any minor documentation defect such as the absence on the Doping Control Form of the athlete’s address and sport discipline, which, as a consequence and in terms of the applicable rules, cannot even be regarded as a true “departure” from the IST.

4. Three and half days between the end of the sample collection and the arrival of the sample at an accredited Lab does not constitute an unacceptable period of transport and certainly cannot be characterized as being “too long” in terms of the IST. This time-frame is arguably not ideal but it is in line with common testing practice, especially when sample collection occurs far away from a WADA-accredited laboratory.

5. No departure from ISL relating to the “different analyst rule” prohibiting the same person to participate in the A and B sample analysis can be retained if an athlete did not satisfy his/her burden of proof in this respect on the balance of probability.

6. A CAS panel cannot place in question whether an ISO accreditation was correctly attributed to a laboratory, because this would render the whole international standardization and certification system meaningless and because, notoriously, compliance with ISO accreditation requirements is regularly checked by external auditors. However, a CAS panel may certainly verify whether a given method used by a laboratory is covered by the accreditation or not. In any event, it is for an athlete to establish on a balance of probability, that either method is not validated for specificity.

7. No rule obliges an accredited Lab to deliver the Laboratory’s standard operating procedures (SOPs). In fact, pursuant to the WADA Technical Document TD2003LDOC, the Laboratory is not required to support an Adverse Analytical Finding by producing SOPs, general quality management documents (e.g., ISO compliance documents) or any other documents not specifically required. However, the above WADA provision does not and may not preclude a CAS panel, if the conditions set forth by article R44.3 of the CAS Code are met, from ordering an anti-doping organization to produce specified and relevant extracts from the SOPs of a WADA-accredited laboratory.

8. ISL provisions make clear that, in the case of a non-threshold substance, the laboratory method for analyzing the B sample is not aimed at having identical analytical results or at gaining information on the background or the quantification, but only at confirming the presence of the prohibited substance. In other terms, the ISL only requires the identification in the B sample of the same prohibited substance that was found in the A sample.

In June 2008 the Royal Dutch Athletics Association (KNAU) reported an anti-doping rule violation against the Dutch Athlete Simon Vroemen after his A and B samples tested positive for the prohibited substance Metandienone.

In first instance the Athlete disputed the irregularities in the sample collection procedure, the chain of custody and the competence and capability of the Cologne Laboratory. The KNAU Decision Disciplinary Committee accepted the Athlete's arguments and decided ultimately on 28 January 2010 for acquittal of the Athlete.

The Anti-Doping Authority Netherlands (ADAN) appealed this decision and thereupon on 22 September 2010 the KNAU Appeal Committee decided to impose a 2 year period of ineligibility on the Athlete.

Hereafter in November 2010 the Athlete appealed the KNAU Appeal Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the CAS Panel to set aside the Appealed Decision and to acquit him.

The Panel assessed and addressed the following issues raised by the Athlete:

• Several procedural violations in the anti-doping control process that occurred before the samples arrived at the Cologne Lab;
• Several procedural violations or mistakes in analysing the samples committed by the Cologne Laboratory;
• The analyses performed on the samples do not support the reported adverse analytical finding.

The Panel determines that the Athlete has not satisfied his burden of proving, in accordance with the balance of probability standard, that these alleged departures had caused his adverse analytical finding.

By contrast the KNAU and ADAN have discharged their burden of proving to the comfortable satisfaction of the Panel that a metabolite of Metandienone was present in the Athlete's urine samples.

Therefore the Court of Arbitration for Sport decides on 12 September 2011:

1.) The appeal filed by Mr. Simon Vroemen against the decision issued on 10 November 2010 by the Appeal Committee of the Dutch Institute for Sports Law is dismissed.

2.) The decision issued on 10 November 2010 by the Appeal Committee of the Dutch Institute for Sports Law is hereby confirmed.

3.) Mr. Simon Vroemen is declared ineligible for a period of two years, starting from 10 November 2010, whereby the period of ineligibility already served by Mr. Vroemen on the basis of the decision of the KNAU dated 21 July 2008 shall be credited to this sanction.

(…)

6.) All other requests, motions or prayers for relief are rejected.

CAS 2001/A/328 F. / International Sports Organization for the Disabled (ISOD), International Paralympic Committee (IPC), Disabled Sports USA (DS/USA)

• Doping (nandrolone)
• Stay of the execution of a sanction

The Appellant, is a Parathlete affiliated to Disabled Sports USA (DS/USA), competing at the 11th Paralympic Summer Games in Sydney.

In October 2000 at the Paralympic Summer Games in Sydney the Athlete tested positive for the prohibited substance Nandrolone i a low concentration. Consequently on 29 October 2000 the International Paralympic Committee (IPC) decided to impose a 4 year period of ineligibility on the Athletet including the 12th Paralympic Summer Games in 2004.

The CAS Panel establishes that in the instant case a hearing of the Appeal cannot take place prior to the 10 August 2001 because the IPC’s offices will be closed and the IPC representatives will not be able to respond and/or participate until that date.

The Panel finds that if the Appellant’s request for provisional relief is denied, he will be ineligible to compete in the International Challenge Track and Field Championship even if he is successful in his appeal of the decision of DS/USA; The interests of the Respondents in maintaining the suspension would appear to be minimally affected by the granting of limited interim relief.

The Court of Arbitration for Sport decides on 3 August 2001:

1.) Grants the request for a stay of the suspension of F. until the final award.

2.) States that the present order is pronounced without costs.

CAS 2010/A/2090 Finnish Ski Association & Aino-Kaisa Saarinen v. FIS

On 20 December 2009, the FIS disqualified Ms Saarinen after a World Cup 15 km race at Rogla, Slovenia for a violation of the ICR Article 392.5 (intentional obstruction during a race).
On 22 December 2009, the Appeals Commission of the FIS dismissed her appeal.

On 5 March 2010, the FIS Court dismissed her further appeal against the decision of the Appeals Commission, that this appeal is brought.

On 1 April 2010, Ms Saarinen and the FSA filed their statement of appeal with the Court of Arbitration for Sport (CAS).

The CAS Panel has no means (any more than the FIS Court did) of comparing Ms Saarinen's case with others of necessity unexplored before it. It is in any event axiomatic that reasonable people (including sporting bodies) may reasonably have different views as to the gravity of different breaches of the rules of the sports and the sanctions appropriate to them.

While CAS enjoys the power to form its own view on the proportionality of any sanction, it ought not to ignore the expertise of the bodies involved in the particular sport in determining what sanctions are appropriate to what offence. It is notable that in this case three separate ski bodies reached the same conclusion as to penalty even if by different routes. The Panel considers that the FIS Court had a margin of appreciation not exceeded in this case.

The Panel finds that Ms Saarinen can at least be consoled by this that on the finding of the FIS Court she was not guilty of a deliberate effort to frustrate in an improper manner a competitor. She was guilty only of an offence of lesser seriousness. She is an experienced, successful and well respected cross country skier. This incident has caused, the Panel trusts, only a transient blow to her reputation.

The Court of Arbitration for Sport rules on 7 February 2011 that:

1.) The appeal filed by the Finnish Ski Association & Aino-Kaisa Saarinen on 1 April 2010 is dismissed.

2.) The decision rendered by the FIS Court on 5 March 2010 is confirmed.

3.) (...)