CAS 2019/A/6482 Gabriel da Silva Santos v. Fédération Internationale de Natation (FINA)

Related case:

FINA 2019 FINA vs Gabriel da Silva Santos
October 7, 2019

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• Aquatics (swimming)
• Doping (clostebol)
• CAS panels’ adjudicatory role
• Basis for the analysis of an athlete’s claim of No Fault or Negligence
• Limits to athletes’ required endeavours to defeat doping
• Athletes’ anti-doping-related responsibility for their entourage

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1. It is not up to CAS panels to engage in a review, or revision, of the rules applicable to a dispute, supplementing its views for that of the drafters of said regulations.

2. Panels confronted with a claim by an athlete of No Fault or Negligence must evaluate what this athlete knew or suspected and what s/he could reasonably have known or suspected, even with the exercise of utmost caution. In addition, panels must consider the degree of risk that should have been perceived by an athlete and the level of care and investigation exercised by an athlete in relation to what should have been the perceived level of risk as required by the definition of Fault.

3. There are, and must be limits to which the anti-doping rules can extend in terms of imposing obligations on athletes. There are circumstances where it is not reasonable, nor can there have been any way for an athlete to have appreciated any degree of risk of testing positive. It is an unreasonable and impractical expectation to obligate an athlete to endeavor to survey the ailments of family members and the use by family members of various substances when visiting them in their home for a short stay.

4. A brother an athlete does not live with, and to whom the athlete does not assign any responsibility or participation in fulfilling his/her anti-doping obligations, is not a member of the athlete’s entourage for whose actions the athlete bears anti-doping-related responsibility.

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On 7 October 2019 the FINA Doping Panel decided to impose a 12 month period of ineligibility on the Athlete after he tested positive for the prohibited substance Clostebol.

In first instance the Panel accepted on the balance of probabilities the Athlete’s explanation that cross contamination had caused the positive test result. The Panel deemed that the violation was not intentional and that the Athlete had established No Significant Fault or Negligence with a low degree of fault.

Hereafter in September 2019 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose no sanction or ineligibility period on him or alternatively a more reduced sanction.

FINA requested the Panel to uphold the Appealed Decision and contended that the FINA Anti-Doping Panel already had imposed the lowest possible sanction based on No Significant Fault or Negligence.

The Panel assessed and addressed whether the Athlete bore any fault or negligence, and, if so, he should receive the benefit of the contaminated products rule. If not applicable then what was his level of fault so that a determination of a reduction, if any, in his period of ineligibility could be computed.

The Panel rejects the Athlete's argument that Specified Substances and non-Specified Substances positive tests to be treated identically on fairness grounds. However in view of the circumstances the Panel deems that this case is truly unique and determines unanimously that the Athlete has established No Fault of Negligence.

Therefore the Court of Arbitration for Sport decides on 14 February 2020 that:

1.) The appeal filed by Mr Gabriel da Silva Santos against the Fédération Internationale de Natation with respect to the decision rendered by the FINA Doping Panel on 19 July 2019 (rectified on 22 July 2019) is upheld.

2.) The decision rendered by the FINA Doping Panel on 19 July 2019 (rectified on 22 July 2019) is set aside.

3.) Mr Gabriel da Silva Santos is found to have committed an Anti-Doping Rule Violation but bears no fault or negligence and no period of ineligibility shall be imposed on him.

4.) (…).

5.) (…).

6.) All other motions or prayers for relief are dismissed.

CAS 2019/A/6210 & 6277 Yang Gao v. Olympic Council of Asia (OCA)

• Athletics (shot put)
• Doping (betamethasone)
• Procedural flaws warranting annulation of the challenged decision (de novo hearing)
• ADRV based on the presence of a prohibited substance in-competition
• Interpretation of the Prohibited List
• Entitlement of the athlete to a retroactive TUE

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1. From a Swiss perspective, there is no uniform standard of independence with respect to adjudicatory bodies of associations. In particular, the majority of legal literature applies a lesser standard with regard to independence for association tribunals compared to state courts or arbitral tribunals. Furthermore, even if the members of an association tribunal were not sufficiently independent, such a procedural flaw may be healed in a proceeding before the CAS. According to Article R57 para. 1 of the CAS Code, the Panel has the full power to review the facts and the law. In principle, the de novo proceeding before the CAS cures any purported (procedural) violations that occurred in prior proceedings. There may be exceptions to this rule in case of exceptional circumstances. However, in any case, i.e. even if 2 members of the association’s disciplinary body were not sufficiently independent, such violation cannot be qualified as an irreparable breach of the applicable procedural standards. If the appellant has the opportunity to extensively present his/her case before the CAS, where all of his/her fundamental procedural rights are fully respected, any procedural flaw before the association’s disciplinary body fades to the periphery and is herewith cured.

2. It clearly follows from the applicable anti-doping regulations (ADR) that for an anti-doping rule violations (ADRV) based on presence of a Prohibited Substance it is irrelevant when the substance was administered. Instead, it suffices that the Prohibited Substance is still present in the athlete’s system in-competition.

3. Under Section S9 of the Prohibited List all glucocorticoids are prohibited when administered by intramuscular routes. The term “intramuscular” might appear clear and unambiguous at the outset i.e. injections of glucocorticoids into the muscle. Yet, to decide an important question related to the interpretation of the Prohibited List solely based on evidence submitted by one of the parties to the proceedings is not easy. Indeed, there could be a serious issue with regard to the principle of legal certainty in relation to Section S9 of the Prohibited List, should the term “intramuscular” injection be interpreted contrary to the ordinary meaning attached to such technical term by the relevant professional community. The question should be left open if – provided the route of administration was prohibited – the athlete was entitled to a Therapeutic Use Exemption (TUE).

4. The presence of a Prohibited Substance shall not be considered an ADRV if it is consistent with the provisions of a TUE granted in accordance with the International Standard for Therapeutic Use Exemptions (ISTUE). Under Article 4.1 ISTUE, 4 conditions are to be met for granting a retroactive TUE, namely (a) the Prohibited Substance is needed to treat an acute or chronic medical condition, (b) the therapeutic Use of the Prohibited Substance is highly unlikely to produce any enhancement of performance, (c) there is no reasonable therapeutic alternative, (d) the necessity for the use of the Prohibited Substance is not a consequence of the prior use of a prohibited substance or method. The administration of Glucocorticoids, a non-threshold substance is not prohibited out-of-competition. Thus, an athlete is permitted to treat an acute medical condition with Glucocorticoids out-of-competition. In addition, retroactive TUEs want to ensure that there is immediate treatment available to an athlete in situations where a prospective TUE cannot be granted in due time and there is a danger that a medical condition turns chronic further damaging the athlete’s health. The purpose of retroactive TUEs is to reasonably balance between the protection of the athlete’s health and the athlete’s responsibilities under the anti-doping program.

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On 2 March 2019 the Disciplinary Commission of the Olympic Council of Asia (OCA DC) decided to disqualify the Athlete's results after she tested positive for the prohibited substance Betamethasone. Thereupon on 1 May 2019 the OCA decided  to dismiss the Athlete's application for a retroactive TUE.

Hereafter in March 2019 and in May 2019 the Athlete appealed both OCA decisions with the Court of Arbitration for Sport (CAS). The Parties agreed to consolidate both appeals and procedures.

The Athlete requested the Panel to set aside the Appealed Decisions of 2 March 2019 and 5 June 2019 and to deem that she had not committed an anti-doping rule violation. She denied the intentional use of the substance and accepted the test results.

She explained that the substance was used as prescribed medication as valid treatment for her acute medical condition and administered by her doctor out-of-competition. The medication was mentioned on the Doping Control Form and reported by her doctor to the OCA Medical Committee.

Further the Athlete alleged that procedural flaws occurred in the proceeding before the OCA DC due to two members of the Panel were not impartial and independent.

The OCA requested the Panel to dismiss the Athlete's appeal and denied that any procedural flaws had occurred in the proceedings before the OCA DC. The OCA contended that the Athlete used the Betamethasone in-competition and the injection was a prohibited route of administration.

Further the OCA contended that the found concentration in the Athlete's samples is of no relevance. Moreover in accordance with the Rules there are no grounds to grant a retroactive TUE.

The Panel assessed and addressed the following issues:

• 1.) Should the Decision be annulled for procedural flaws?
• 2.) Did the Athlete commit an ADRV?
• 3.) In case the aforementioned question (2) is answered positively, are the criteria for granting a retroactive TUE fulfilled?

The Panel determined that the members of the OCA DC were sufficiently independent whereas any procedural flaw may be healed in a proceedings before the CAS. The Panel finds that the substance was present in the Athlete's system in-competition while it is irrelevant when the substance was administered.

The Panel has serous doubts whether the term intramuscular in Section S9 of the Prohibited List covers the route of administration in question here. In view of the evidence the Panel concludes there was no reasonable therapeutic alternative for the administration of Betamethasone by the Athlete's doctor.

Consequently the Panel deems that the Athlete had not committed an anti-doping rule violation and the Athlete's appeals against both OCA Decisions must be upheld.

Therefore the Court of Arbitration for Sport decides on 20 February 2020 that:

1.) The appeals filed by Ms Yang Gao on 25 March 2019 and 13 May 2019 are upheld.

2.) The decision of the TUE Sub-Commission of the Olympic Council of Asia dated 1 May 2019 is set aside. Ms Yang Gao is granted a retroactive Therapeutic Use Exemption for the local injection of glucocorticoids administered to her on 24 August 2018. Consequently, the decision of the Disciplinary Committee of the Olympic Council of Asia dated 2 March 2019 is set aside.

3.) (…).

4.) (…).

5.) (…).

6.) All other and further motions or prayers for relief are dismissed.

CAS 2018/A/5853 Fédération Internationale de Football Association (FIFA) v. Tribunal Nacional Disciplinario Antidopaje (TNDA) & Damián Marcelo Musto

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• Football
• Dopage (hydrochlorotiazide; furosemide)
• Material scope of the FIFA Statutes’ arbitration clause related to doping-related decisions
• FIFA’s right to appeal doping-related decisions directly to the CAS in the context of national-level players
• Impact of the national anti-doping law on CAS jurisdiction
• Discretion not to issue a preliminary award on jurisdiction
• Late transmission of the Laboratory Documentation Package
• Determination of the applicable period of ineligibility in the context of a negligent ADRV
• Commencement of the period of ineligibility

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1. By virtue of holding a license, a player submits to an arbitration clause by reference and is bound to the FIFA arbitration clause related to appeals by FIFA against doping-related decisions. Doping-related decisions of anti-doping organizations to whom the interested national federations delegated their disciplinary responsibilities and powers in doping matters are covered by the material scope of the arbitration clause, since the list of decisions referred to in Article 58 para. 5 of the FIFA Statutes is not exhaustive (“in particular”).

2. The FIFA ADR, in principle, differentiate in relation to the internal means of recourses between national-level players and international-level players. A decision may be appealed to a national-level appeal body before the appeal to CAS in cases involving national-level players whereas a final decision may be appealed exclusively to CAS in cases involving international-level players. However, in special circumstances, FIFA has a right to appeal doping-related decisions in the context of national-level players directly to the CAS, i.e. where no other party with a right to appeal has challenged the decision (before the national-level appeal body) and, therefore, the decision became legally “final” within the national anti-doping organization’s process.

3. A player may be submitted to two different sets of rules, i.e. the FIFA ADR to which he submitted by entering into a license agreement with the interested national federation and a national law. Both sets of rules are not identical. The mere fact, however, that both sets of rules to which the player is submitted are not identical has no impact on the CAS jurisdiction. On the contrary, it suffices that the arbitration agreement is found in either one of the applicable sets of rules in order to establish the jurisdiction of the CAS. This is all the more true considering that the FIFA ADR make it clear that they want to be applicable to all players irrespective of any concurrent set of rules.

4. According to Article R55 para. 5 of the CAS Code, it is at the discretion of the panel (“may rule”) whether to render a preliminary decision on its jurisdiction or to rule on its jurisdiction in the final award. When applying such discretion the panel – in principle – takes account of the reasoning submitted by the party requesting a preliminary decision, in particular why a preliminary decision is necessary to safeguard its interests and to prevent it from possible harm or why a decision on jurisdiction, for some other reasons, is urgent. Absent any compelling reason and/or urgent necessity for a preliminary decision, a preliminary award on jurisdiction should not be rendered.

5. The fact that a player was only provided with the Laboratory Documentation Package (“LDP”) at a late stage in the proceeding does not affect the case in an irreparable manner. The LDP is – for sure – an important source of information. The documents help to understand whether or not there have been deviations from the applicable International Standards. But the latter is a legal analysis that can be performed also at a later stage, i.e. before the appellate instance. Thus, the fact that the player was only provided with the LDP before CAS does not amount to a breach of a party’s procedural rights.

6. The breadth of sanction for a negligent anti-doping rule violation under Article 22 para. 1 lit. a FIFA ADR is from a reprimand to 24 months ineligibility, depending on the player’s degree of fault. In exercising discretion to determine the appropriate sanction within this range, a difference is made between “normal degree of fault” ranging between 12-24 months and a “light degree of fault” ranging between a reprimand and 12 months. In order to determine into which category of fault a particular case might fall, it is helpful to consider both the objective and the subjective level of fault. The objective element describes what standard of care could have been expected from a reasonable person in the athlete’s situation. The subjective element describes what could have been expected from that particular athlete, in light of his/her personal capacities.

7. If there were delays in the context of the analysis of a player’s sample and, in particular, in the procedure before the anti-doping authority, if these delays were substantial and if they cannot be attributed to the player, there is room to backdate the player’s sanction at the discretion of the deciding body, pursuant to Article 28 para. 1 FIFA ADR. However, one must note that backdating a period of ineligibility in team sports effectively amounts to waiving part of the sanction, since – differently from individual sports – “competitive results achieved during the period of ineligibility” can – in principle – not be disqualified (the exception being when multiple players test positive at the same time). Thus, restraint must be shown when backdating the period of ineligibility in order not to undermine the FIFA ADR. The fact that the player was adversely affected by the sanction, because he could not participate in the team preparations for one season, should be taken into account.

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On 19 June 2018 the Argentinian National Disciplinary Anti-Doping Tribunal (TNDA) decided to impose a 7 month period of ineligibility on the football player Damián Marcelo Musto after his A and B samples tested positive for the prohibited substances Furosemide and Hydrochlorothiazide.

Hereafter in August 2018 FIFA appealed the TNDA decision with the Court of Arbitration for Sport (CAS). FIFA requested the Panel to set aside the Appealed Decision and to impose a sanction of 2 years.

FIFA contended that the Athlete failed to establish the source of the prohibited substances found in his samples. The Athlete had also not demonstrated on a balance of probability that the supplements and capsules were contaminated.

FIFA accepted that the violation was not intentional. However it argued that the Athlete had acted negligently as he had not checked his supplements, nor mentioned these products on the doping control form.

The Athlete requested the Panel to dismiss FIFA's appeal and to uphold the Appealed Decision. He denied the intentional use of the substances and argued that he had established on a balance of probabilities how the prohibited substances had entered his system.

Further he asserted that CAS had no jurisdiction to consider this appeal because he is an national-level player. His rights were violated in the course of the anti-doping process because a departure of the ISTI had occurred.

The Panel determines that CAS has jurisdiction to entertain the present appeal and it settled some other procedural issues raised by the Athlete.

The Panel assessed and adressed the following issues:

• Is the appeal to be dismissed because of fundamental and incurable breaches of the Player’s right to defense?
• Is the appeal to be dismissed because there were breaches of the WADA ISTI?
• In case the aforementioned questions are answered in the negative, did the Player commit an ADRV, what is the proper length of the period of ineligibility and when shall the latter commence?

The Panel concludes:

• There were no fundamental (and not otherwise curable) breaches of the Athlete's right of defense demanding that FIFA's appeal be dismisses.
• The Athlete's samples were in proper condition when analysed by the Madrid Laboratory.
• A breach of the WADA ISTI per se does not invalidate the AAF. Only if the Athlete can establish that the departure from the WADA ISTI could have reasonably caused the ADRV, the onus shifts to FIFA to proof that in the case at hand such departure did not cause the AAF.
• The samples tested in the Madrid Laboratory stem from the Athlete and were not tampered with throughout the whole external chain of custody.
• The alleged degradation of the samples may not invalidate the findings of the Madrid Laboratory.
• The presence of prohibited substances has been established in the Athlete's samples by the Madrid Laboratory and accordingly he committed an anti-doping rule violation.
• The Athlete acted at the higher end of light degree of fault or negligence.

Therefore the Court of Arbitration for Sport decides on 2 July 2019:

1.) The appeal filed by the Fédération Internationale de Football Association on 7 August 2018 against the decision issued by the Tribunal Nactional Disciplinario Antidopaje on 19 June 2018 is partially upheld.

2.) The decision of the Tribunal Nacional Disciplinario Antidopaje dated 19 June 2018 is set aside.

3.) Mr Damián Marcelo Musto is declared ineligible for a period of 11 months for having committed an anti-doping rule violation pursuant to Article 6 of the FIFA Anti-Doping Regulations. The period of ineligibility shall start on 5 April 2019. Mr Damián Marcelo Musto shall receive credit for the period of ineligibility effectively served from 19 June 2018 until 15 August 2018.

4.) (…).

5.) (…).

6.) All other motions or prayers for relief are dismissed.

In August 2021 the International Tennis Federation (ITF) has reported an anti-doping rule violation against the American tennis player Varvara Lepchenko after her A and B samples tested positive for the prohibited substances Adrafinil and Modafinil.

The ITF Independent Tribunal concluded that the Athlete failed to demonstrate that the violation was not intentional and decided on 3 March 2022 to impose a 4 year period of ineligibility on the Athlete. Hereafter in March 2022 the Athlete appealed the ITF decision with the Court of Arbitration for Sport (CAS).

The Athlete testified that following the ITF Tribunal hearing she returned home and found, in the lining of a travel bag that had been stored away, a bottle of bemetil capsules. She had purchased this product in Ukraine in October 2020 and from which she had consumed capsules in the days prior to the competition.

Those capsules, and an unopened bottle independently sourced by the ITF, were sent for testing at a WADA-accredited laboratory, both of which were found to contain Modafinil, which was not listed on the bottle label.

As a result the ITF accepted that the source of the Modafinil acid in the Athlete's samples was her ingestion of capsules of bemetil that she had purchased in Ukraine and were, unknowen to her, contamined with Modafinil.

The ITF holds that this is the Athlete's second Anti-Doping Rule Violation. However, because she bore No Fault or Negligence for her first violation, the current violation is treated as her first for the purpose of sanction. 

In October 2022 the Parties reached an agreement and they requested the Panel to confirm the content of a Settlement agreement into a Consent Award.

The parties have agreed with the written approval of WADA that:

1. Ms. Lepchenko has committed a violation of the Programme;
2. she must serve a period of ineligibility of twenty-one months; and
3. that period starts on 19 August 2021, and so ends at midnight on 18 May 2023. In accordance with Programme articles 9.1 and 10.1.1, all ranking points and prize money obtained by Ms. Lepchenko at the Event and subsequent events prior to 27 July 2021 are disqualified.

Following assessment the Panel deems that it is right to ratify the Settlement Agreement and its terms are incorporated into this Consent Award.

Therefore the Court of Arbitration for Sport decides on 31 January 2023 that:

1. The Settlement Agreement submitted to the CAS Court Office by the Parties on 26 October 2022 is hereby ratified by the Panel with the consent of the Parties and its terms are incorporated into this Consent Award.
2. The arbitral procedure CAS 2022/A/8766 Varvara Lepchenko v International Tennis Federation is terminated and deleted from the CAS roll.
3. The Parties are hereby ordered to perform their respective obligations and duties in accordance with the terms of the Settlement Agreement.
4. In accordance with the Settlement Agreement, the arbitration costs shall be borne by the CAS, save that the CAS Court Office fee of CHF 1,000 paid by Varvara Lepchenko shall be retained.
5. In accordance with the Settlement Agreement, each Party shall bear its own costs and expenses incurred in connection with the present proceedings.
6. All other motions or prayers for relief are dismissed.

CAS 2019/A/6292 Asbel Kiprop v. International Association of Athletics Federations (IAAF)

Related case:

IAAF 2018 IAAF vs Asbel Kiprop
April 10, 2019

On 10 April 2019 the IAAF Disciplinary Tribunal decided to impose a 4 year period of ineligibility on the Kenyan Athlete Asbel Kiprop after his A and B samples tested positive for the prohibited substance Erythropoietin (EPO).

In first instance the Athlete's explanations for the positive test results were rejected. Also the Panel dismissed the applications filed by the Athlete in his defence.

Hereafter the Athlete appealed the IAAF Decision with the Court of Arbitration for Sport (CAS). Thereupon the Athlete requested repeatedly to suspend the proceedings or to extend the set deadlines.

Ultimately in July 2019 the President of the CAS Appeals Arbitration Division established that the Athlete had failed to file timely his Appeal Brief before the deadline had lapsed.

Therefore on 23 June 2020 the  President of the Appeals Arbitration Division of the Court of Arbitration for Sport, rules in camera, pronounces:

1.) The procedure CAS 2019/A/6292 Asbel Kiprop v. International Association of Athletics Federations (IAAF) is terminated and removed from the CAS roll.

2.) This Order is rendered without costs, except for the Court Office fee of CHF 1,000 paid by Mr. Asbel Kiprop, which is retained by the Court of Arbitration for Sport.

CAS 2021/ADD/42 International Weightlifting Federation (IWF) v. Nicu Vlad

• Weightlifting
• Doping (assistance with an anti-doping rule violation)
• CAS ADD jurisdiction
• Admissibility of the request for arbitration
• Interpretation of the scope of the IWF ADR
• Statute of limitation
• Means of proof regarding the ADR
• Offence of assisting an anti-doping violation
• Sanction

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1. According to Article 8.1.1 of the 2021 IWF Anti-Doping Rules (ADR), the IWF has delegated its responsibility to act as first instance to the CAS ADD. Furthermore, Article A2 of the CAS ADD Rules provides that the CAS ADD has jurisdiction to rule as a first-instance authority on behalf of any sports entity which has formally delegated its powers to the ADD to conduct anti-doping proceedings and impose applicable sanctions.

2. Pursuant to Article A13 of the CAS ADD Rules, a Request for Arbitration must contain “the name and full address of the Respondent(s)”. Yet, the addresses communicated after the filing of the Request for Arbitration by the claimant may be considered valid where there is no contrary indication by the respondent. To decide otherwise would give a disproportionate importance to the formal conditions of the Request for Arbitration, as soon as the respondent was successfully notified by email and, thereafter, by courier via his counsel and in light of the minimal impact for the respondent to have his case heard on the merits rather than to have it disposed of on a technicality.

3. According to Swiss law, statutes and regulations of associations have to be construed and interpreted in the same way as public laws. Accordingly, the interpretation of the statutes and rules of sport associations must be objective and always start with the wording of the rule. The intentions (objectively construed) of the association including any relevant historical background may be taken into consideration. In any event, anti-doping rules shall be construed in a manner which will “discern the intention of the rule maker” rather than frustrate it. Recourse may be had to supplementary means of interpretation to determine the meaning when the interpretation “leads to a result which is manifestly absurd or unreasonable”. In this respect, the scope of the 2009 IWF ADR, worded “shall apply to the IWF, each National Federation of the IWF, and each Participant in the activities of the IWF”, is broad. An interpretation according to which natural persons holding high offices of the IWF or of other IFs or NFs do not fall under the categories “IWF” and “National Federations” of the scope of the 2009 IWF ADR would de facto grant immunity for anti-doping rule violations (ADRVs) committed by those persons although, in accordance with Article 3.4.2 of the IWF Constitution and Article 14.1 of the 2009 IWF ADR), said persons in their capacity as board members etc., are responsible to fully comply with the World Anti-Doping Code (WADC) and to implement effective mechanisms to combat any doping by its members. Such interpretation leads to a result that is both “manifestly absurd” and “unreasonable”, and which the draftsmen of the 2009 IWF ADR (and the 2009 WADC) could surely not have intended.

4. Article 49 (1) and (4) (“Prescription”) of the Final Chapter of the Swiss Civil Code provides that “Where the new laws specifies a longer period than the previous law, the new applies, provided prescription has not yet taken effect under the previous law”. Therefore, any retroactive extension of the limitation period provided by the IWF ADR 2015 from 8 to 10 years does not violate Swiss law. Moreover, the difficulty related to gathering evidence is inherent to long statute of limitation periods, which do not in and of themselves violate the respondent’s rights.

5. Pursuant to Article 3.2 of the 2009, 2012 and 2015 IWF ADR, an ADRV can be established by any reliable means including the content of an authentic and contemporaneous correspondence.

6. Article 2.8 of the 2009 IWF ADR covers numerous acts, which are intended to assist another or a third party’s ADRV. The assistance can constitute assistance provided in the preliminary stages before an ADRV is committed. It also covers acts, which are supposed to prevent an ADRV from being discovered after it has been committed. The rule does not stipulate how substantial the assistance has to be in order to fulfil the elements of the Article 2.8 IWF ADR, however, the standard is probably low because according to the wording of the provision, even just “any type of complicity” is sufficient. An act of assistance for the purposes of Article 2.8 also requires that the person concerned is aware of the anti-doping rule violation committed by another party, otherwise there is no intent to assist a third-part in the first place.

7. Pursuant to Article 10.3.2 of the 2009 IWF ADR, the period of ineligibility imposed for the violation of Article 2.8 shall be a minimum of four years up to a lifetime unless the conditions for exceptional circumstances pursuant Article 10.5 of the 2012 IWF ADR are met. The fact that (i) an ADRV is committed by a person holding high offices, (ii) the ADRVs are serious and (iii) the official’s conduct is both deceptive and obstructing, are all elements allowing to consider a lifetime period of ineligibility.

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Mr Nicu Vlad is the former President (1997-2021) and former Head-Coach (1998-2010) of the Romanian Weightlifting Federation (FRH), Vice-President of the International Weightlifting Federation (IWF) Anti-Doping Commission (2010-2013) and Chairman of the IWF Technical Committee (2017-2021).

In his capacities as Chairman of the IWF’s Anti-Doping Commission and Vice-President of the Romanian Olympic Committee Mr Vlad was also involved and supervised the FRH and IWF anti-doping activities. In particular the administration of Adverse Analytical Finding (AAFs) and anti-doping rule violations committed by FRH athletes.

In June 2021 the ITA, on behalf of the IWF, reported anti-doping rule violations against the Romanian weightlifter Roxana Cocos for the presence of a Prohibited Substance in her 13 April 2012 Sample and for resorting to sample substitution on 27 June 2012. Consequently on 26 November 2021, the ITA issued a decision imposing a lifetime eligibility on the Athlete for her multiple anti-doping rule violations.

ITA conducted an anti-doping investigation and thereupon reported anti-doping rule violations agains Mr Vlad for Tampering with the Doping Control process and for his complicity in covering the anti-doping rule violations committed by the Athlete Roxana Cocos.

After notification the IWF filed a request for Arbitration with the Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD) as first-instance authority. The Sole Arbitrator settled the case based on the Parties' written submissions.

The IWF contended that Mr Vlad knowingly did not enforce Ms Cocos’ Provisional Suspensions. The content of the emails of 20 and 24 July 2012 are abundantly clear: the Athlete was to be removed from the 2012 London Olympic Games and the fear of having her test positive (and not being able to conceal it) were expressly mentioned by the Mr Vlad. The fact that the email audit trail stops after 24 July 2012 is not only expected, but further corroborates the evidence of the ADRV.

Mr Vlad asserted that he is not subject to the IWF ADR; the 10-year statitute of limitation is not applicable in this case; and he denied that he had tampered the doping control process.

Following assessment of the Parties' written submissions and annexes the Sole Arbitrator concludes:

• Mr Vlad is bound by subsequent versions of the 2009 IWF ADR including the 2021 IWF ADR.
• The present case in not time-barred regarding the statutes of limitations.
• With knowledge and intent Mr Vlad acted complict in the anti-doping rules committed by the Athlete Cocos in 2012.
• A lifetime period of ineligibility is appropriate to the severity and Mr Vlad’s misbehaviour.

Therefore the Court of Arbitration for Sport decides on 16 June 2022 that:

1. The request for arbitration filed by the International Testing Agency on 22 December 2021, acting on delegation from the International Weightlifting Federation, against Mr. Nicu Vlad is upheld.
2. Mr Nicu Vlad is found to have committed violations of Article 2.8 of the 2009 International Weightlifting Anti-Doping Rules.
3. A lifetime Ineligibility is imposed on Mr Nicu Vlad starting on the date of this Award.
4. (…).
5. (…).
6. All other motions or prayers for relief are dismissed.

CAS 2021/A/8296 World Anti-Doping Agency (WADA) v. Fédération Internationale de Football Association (FIFA) & Vladimir Obukhov

• Football
• Doping (methandienone)
• Non-binding force of CAS precedents
• Purpose and limits of the provision on substantial assistance
• Conditions for finding substantial assistance
• Consequences of a finding of substantial assistance
• Determination of the period of ineligibility to be suspended

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1. Each case must be decided on its own facts. Although consistency is a virtue, correctness remains a higher one.

2. Substantial Assistance is an essential mechanism in the fight against doping. It is therefore important that the objective to encourage athletes, subject to the imposition of an ineligibility period, to come forward if they are aware of doping offences committed by other persons, is not undermined by an overly restrictive application of the provision. At the same time, however, it is important that “benefits” to athletes are not applied too lightly, without clear evidence of Substantial Assistance: the fight against doping is a serious matter, and only effective assistance in its pursuit can entitle an athlete to obtain a benefit with respect to the ineligibility period he/she has to serve for his/her anti-doping rule violation.

3. For Substantial Assistance to be found, it is not necessary that the information is in itself a sufficient basis to secure the finding of an anti-doping rule violation, but only for the bringing of a case – which means that there is a likelihood, and not necessarily a certainty, of a violation. Indeed, Substantial Assistance may also result in “discovering” an anti-doping rule violation – irrespective of its subsequent “establishment”, for which additional elements (such as a hearing of the accused) may be needed. In summary, concrete (and not merely speculative) information must be provided, which (at least) would be considered sufficient to bring a case – even though this information, however important, might need further corroboration in order to secure a finding against another person.

4. A finding of Substantial Assistance may only entail the suspension of a portion of the ineligibility period, and not the reduction of the sanction. In other words, the deciding body cannot directly impose a reduced sanction, it has to impose the full ineligibility period to be served for the anti-doping rule violation, and then suspend a portion of such period.

5. The criteria to be considered in the determination of the extent to which the otherwise applicable period of ineligibility may be suspended are i) the seriousness of the anti-doping rule violation; and ii) the significance of the Substantial Assistance rendered, provided however that iii) no more than three-quarters of the otherwise applicable period of ineligibility may be suspended. In connection with the seriousness of the anti-doping rule violation, any performance-enhancing benefit which the person providing Substantial Assistance may be likely to still enjoy must be considered, while in the assessment of the importance of the Substantial Assistance, a) the number of individuals implicated, b) the status of those individuals in the sport, c) whether a scheme of trafficking under Article 2.7 or administration under Article 2.8 of the WADC was involved, and d) whether the violation involved a substance or method which is not readily detectible in testing, are to be taken into account. As a general matter, the earlier in the results management process the Substantial Assistance is provided, the greater the percentage of the otherwise applicable period of ineligibility may be suspended. The maximum suspension of the ineligibility period shall only be applied in very exceptional cases.

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In 2016, Professor Richard McLaren issued two reports about systemic doping in Russia. These reports identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered.

Hereafter in January 2019 the World Anti-Doping Agency (WADA) recovered the internal database of the Moscow Laboratory (LIMS). Following investigation of allegations of organized doping practices, and in particular of the LIMS, WADA provided international federations with investigation reports on the athletes implicated in these organized doping practices.

As a result in March 2021 the International Football Federation (FIFA) reported an anti-doping rule violation against the football player Vladimir Obukhov for the use of the prohibited substance Metandienone in March 2013. After notification the Athlete admitted the violaton and provided substantial assistance to FIFA.

The Athlete provided evidence to FIFA about players of the Football Club Torpedo Moscow under instructions using medical products administered by medical personel. Following a Cooperation Agreement the FIFA Disciplinary Committee decided on 14 July 2021 to impose a reduced 6 month period of ineligibility on the Athlete.

Hereafter in September 2021 the World Anti-Doping Agency (WADA) appealed the FIFA decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibilty on the Athlete.

WADA finds that in this case there is no dispute that the Athlete committed an anti-doping rule violation attracting a period of ineligibility of two years. The only issue to be decided within these appeal proceedings is whether any part of the applicable two-year period of ineligibility could be suspended based on the Substantial Assistance provision set by the 2012 FIFA ADR.

WADA contended that this should be answered in the negative. Therefore, it requests the Panel to set aside the Decision and impose on the Athlete a period of ineligibility of two years.

FIFA and the Athlete argued that the Appealed Decision was correctly adopted, with full regard for the specificities of the case and with a sanction that is just and proportionate.

In light of the Parties’ submissions and requests, the Panel assessed and addressed the following issues:

• did the Athlete provide Substantial Assistance within the meaning of the FIFA ADR?
• if he did, is the Athlete entitled to a “reduction” or to a “suspension” of the otherwise applicable ineligibility period? If so, in what measure?
• if he did not, what are the consequences to be drawn?

The Panel confirms that FIFA’s finding that the cooperation given by the Athlete amounted to Substantial Assistance under Article 20 of the FIFA ADR. The challenge brought in this respect by WADA to the Decision is to be dismissed.

The Panel deems finds that the period of ineligibility to be imposed on the Athlete should be suspended only in the measure of 12 months. Even though the Substantial Assistance did not lead to any further proceedings, it concerned an anti-doping rule violation occurring 8 years before it was rendered, it was promptly given as soon as the Athlete received a notification of his potential anti-doping rule violation, it concerned the practice of a doctor, i.e. of an individual having peculiar responsibilities within a football club, it exposed a potential violation that could involve a number of other players and individuals.

Therefore the Court of Arbitration for Sport decides on 16 June 2022 that:

1. The appeal filed by the World Anti-Doping Agency (WADA) on 8 September 2021 against the decision rendered by the Disciplinary Committee of the Fédération Internationale de Football Association (FIFA) on 14 July 2021 in the matter concerning Mr Vladimir Obukhov is partially granted.
2. The decision rendered by the Disciplinary Committee of the Fédération Internationale de Football Association (FIFA) on 14 July 2021 is modified as follows:
   
   

   1. Mr Vladimir Obukhov is declared ineligible for a period of twenty-four (24) months starting the date of this Award, with credit given for the period of suspension already served from 2 June 2021 to 2 December 2021.
   
   2. The remaining ineligibility period imposed on Mr Vladimir Obukhov is suspended in a measure of 12 months on the basis of the Substantial Assistance provided pursuant to the Cooperation Agreement signed by Mr Obukhov and the Fédération Internationale de Football Association (FIFA).
   
   

3. The Award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by the World Anti-Doping Agency (WADA), which is retained by the CAS.
4. (…).
5. All other prayers for relief are dismissed.

• CAS 2018/A/5885 Scott Salmond v. International Ice Hockey Federation (IIHF) &
• CAS 2018/A/5936 World Anti-Doping Agency (WADA) v. IIHF & Scott Salmond
  
  

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• Ice Hockey
• Doping (complicity)
• Comfortable satisfaction
• Departures from the ISTI
• Identification of the DCO
• Notification of potential consequences for failing to provide a sample
• Right of a coach or employee of a national federation to participate in the doping control process
• Departures from the RMHD Guidelines and DCO Tool Kit Manual
• Intent in the context of complicity
• Requirement of an underlying ADRV in the context of complicity
• Minimum sanction

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1. The “comfortable satisfaction” standard of proof is higher than a mere balance of probabilities. The test of comfortable satisfaction must take into account all the circumstances of the case. Those circumstances include the paramount importance of fighting corruption of any kind in sport and also considering the nature and restricted powers of the investigation authorities of the governing bodies of sport as compared to national formal interrogation authorities.

2. The existence of certain standards as detailed in the International Standard for Testing and Investigations (ISTI) and anti-doping rules is considered to be fundamental and central to ensuring integrity in the administration of sample collection such that certain departures therefrom could result in the automatic invalidation of an anti-doping rule violation (ADRV). To demonstrate such departure, the consideration of the evidence presented by the parties concerning the circumstances of the doping control would have to show that violations of mandatory requirements, if any, could have reasonably caused the ADRV.

3. A Doping Control Officer (DCO) will have satisfied the requirements regarding identification under the ISTI by carrying an authorization letter from the testing authority as well as an identification which includes his/her name, photograph, and the expiry date of the identification. The Letter of Authorization is a document used to show that the sample collection personnel has the authority to collect the sample. There is no specific rule that requires mandatorily the presentation of a paper identification and a contrario that forbids electronic identification (a modern form of ID increasingly used in other contexts). Consequently, an electronic identification is satisfactory for the purposes of identification under the ISTI.

4. In accordance with Article 5.4.1 (e)(iii) of the ISTI, the athlete should be advised of the possible consequences of failure to comply. On the plain reading of this provision, there is no reference to providing such a warning to a coach or other employee of the national federation. Moreover, the word “should” implies some form of recommendation or guideline and therefore does not impose an obligation. “Should” does not read as a “must”.

5. The ISTI does not give any right to a coach or employee of a national federation to participate in the doping control process.

6. The Results Management, Hearings and Decisions (RMHD) Guidelines and the Doping Control Officer’s Training Tool Kit Manual contain guidelines, not requirements. These guidelines contain guidance as to how best to comply with the mandatory requirements in the ISTI or the anti-doping rules, but they do not themselves constitute mandatory requirements. Besides, the “Introduction and Scope” of the RMHD Guidelines underlines that the Guidelines are not mandatory but are intended to provide clarity and additional guidance to anti-doping organisations as to the most efficient, effective and responsible way of discharging their responsibilities in terms of results management.

7. In order to determine a violation of the Complicity article, intent is to be determined based on the conduct of the individual charged with the alleged violation, not the person who himself/herself is the subject of the doping control. In this context, intent refers simply to the intent to act, not necessarily to the intent to achieve the result or to commit a doping violation. The act of encouragement itself constitutes sufficient intent for the purposes of Article 2.9 WADC.

8. The act of encouraging an anti-doping rule violation necessarily occurs before any commission of the ADRV that has been encouraged. Therefore, no underlying ADRV is required for the purposes of Article 2.9 WADC.

9. As complicity is an intentional ADRV, no reduction is permitted below the two year minimum sanction on grounds of No Significant Fault or Negligence. Consequently, a one-year period of ineligibility cannot be imposed on grounds of proportionality, since such decision departs from the mandated minimum set out in the WADC. The deciding body must impose a sanction that respects the applicable rules, including the mandated two-year minimum. Further reduction on the basis of proportionality is not acceptable. The WADC has been found repeatedly to be proportional in its approach to sanctions, and the question of fault has already been built into its assessment of length of sanction.

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Mr. Scott Salmond is a former Senior Vice President and Head of Men’s Elite Performance for Hockey Canada.

On 26 July 2018 the Disciplinary Board of the International Ice Hockey Federation (IIHF) determined that Mr. Salmond had committed an anti-doping rule violation in December 2017 when he allegedly instructed Mr. Brandon Kozun, a member of the National Ice Hockey Team of Canada, to refuse sample collection during a doping control. As a result of his actions, Mr. Salmond was suspended from all ice hockey activities for a period of one year.

Hereafter both Mr. Salmond and the World Anti-Doping Agency (WADA) appealed the IIHF decision with the Court of Arbitration for Sport (CAS).

WADA seeked to increase Mr. Salmond’s period of ineligibility to between two to four years. By contrast Mr. Salmond seeked a finding that he did not commit an anti-doping rule violation, or alternatively, apply the principle of proportionality to reduce the period of ineligibility to less than 12 months.

Mr. Salmond alleged that did not commit an ADRV because various departures from the International Standard for Testing and Investigations and associated rules that occurred on 12 December 2017 caused the alleged doping violation.

Both WADA and the IIHF contended that Mr. Salmond explicitly and intentionally instructed Mr. Kozun not to provide a sample and thus intended the actions he undertook.

They disputed Mr. Salmond's attempts to associate state-sponsored doping control manipulations in Russia with the events that took place on 12 December 2017. Further they argued that the sample collection was never abandoned and there were no departures from the ISTI and associated rules.

Regarding preliminary procedural matters the Panel determines:

• to deny Mr. Salmond's request that the case file in Mr. Kozun's procedure be turned over to Mr. Salmond;
• it had no access to all the original video footage that recorded the events in question;
• the witness statement of the WADA Director of Standards and Harmonization was not admitted.

Following assessment of the evidence and the Parties' written and oral submissions the Panel concludes:

• Mr. Salmond and its sports offial were seeking retrospectively to put the best construction possible on the unfortunate events of that morning in order to justify Mr. Salmond's actions, uncharacteristic as they may have been.
• The sample collection was never abondoned but concluded when Mr. Salmond instructed Mr. Kozun not to provide a sample.
• Mr. Salmond did not successfully establish any departures from the ISTI and, if (quod non) he had established any, these could not reasonably (or sensibly, based on the facts presented) have caused the ADRV in the present case.
• The IIHF was not estopped from asserting that Mr. Salmond committed and ADRV since IIHF (via IDTM) was largely responsible for the events of 12 December 2017.
• Mr. Salmond must have known or should have known as an experienced executive in Hockey Canada, having participated in over 200 doping controls, that the failure or the refusal of Mr. Kozun to submit to doping control could constitute an ADRV.
• Mr. Salmond intentionally encouraged Mr. Kozun to not submit a sample, and that not submitting a sample once doping control has been properly notified is an ADRV, within the meaning of Article 2.9 of the WADC.

Therefore the Court of Arbitration for Sport decides on 6 March 2020 that:

1.) The appeal filed by Mr. Scott Salmond on 4 September 2018 against the International Ice Hockey Federation with respect to the decision of the Disciplinary Board of the IIHF dated 26 July 2018 is dismissed.

2.) The appeal filed by the World Anti-Doping Agency on 4 October 2018 against the International Ice Hockey Federation and Mr. Scott Salmond with respect the decision of the Disciplinary Board of the IIHF dated 26 July 2018 is upheld.

3.) Mr. Scott Salmond is sanctioned with a two-year period of ineligibility as from 1 June 2018.

4.) (…).

5.) (…).

6.) All other motions or prayers for relief are dismissed.