Avis consultatif TAS 93/109 Fédération Française de Triathlon (FFTri) et International Triathlon Union (ITU)

• Anti-Doping Rules
• Application of the anti-doping rules of an IF by a national federation
• Right of a national federation to adapt the minimum sanction under the IF rules (suspended sanction instead of a firm suspension) provided that such a decision is specifically motivated

On 29 January 1993 and on 19 April 1993 the French Triathlon Federation, Fédération Française de Triathlon (FFTri), decided to impose a 1 year suspended sanction on two athletes for committing an anti-doping rule violation.
The International Triathlon Union (ITU) reproached these sanctions due to under the Rules the FFTri had to impose a 2 year period of ineligibility on the athletes.

After deliberations between the parties this matter was transferred in July 2004 to the Court of Aribitration for Sport (CAS) to render an opinion about two questions:

1.) Does FFTri have the right to opt out of the obligations imposed by its membership in the International Federation by virtue of a ruling by the French Sports Ministery?

2.) Are the provisions of the ITU Rules compatible with the general principles as the autonomy of the judge, the absence of application of fixed sanctions, the proportionality of sanctions according to the facts, in consideration of the athlete's personality and, in any event, with the Anti-Doping Convention of Strasbourg?

The ITU argued that the ITU Anti-Doping Rules are conform the recommendations of the International Olympic Committee and are without provisions to impose a suspended sanction on athletes.
The FFTri argued that the sanctions were imposed according to French law, International law and Human Rights.

The CAS Panel ruled about these two questions on 31 August 1994:

1.) The ITU Anti-Doping Rules don’t prohibit a national triathlon federation in cases with prohibited substances to adapt the minimum sanction available in their Rules and considering the circumstances in each case.
French law doesn’t compel at all a national federation to impose a suspended sanction due to this is an exceptional measure which must be specifically motivated.
A decision from a national federation to impose a suspended sanction in the case of a first violation, in special circumstances and specifically motivated, is not inconsistent with the ITU Anti-Doping Rules.

2.) The ITU Anti-Doping Rules are not incompatible with the general principles of law and in particular are in accordance with the Council of Europe Anti-Doping Convention, signed on 16 November 1989 in Strasbourg.

Avis consultatif TAS 94/128 Union Cycliste Internationale (UCI) et Comité National Olympique Italien (CONI)

Anti-Doping Rules
Conflict between the rules of an International Federation and those of a National Olympic Committee

In August 1994 the Italian Cycling Federation (FCI) initially decided to impose a 2 year period of ineligibility on a cyclist following the guidelines of the Italian National Olympic Committee (CONI).
The cyclist appealed the decision and the sanction was reduced to a 3 month period of ineligibility.

The International Cycling Union (UCI) asserted that under the 1994 UCI Rules an anti-doping violation for using caffeine can only be sanctioned by a 3 month suspension.

In this matter the Court of Arbitration for Sport (CAS) received in October 1994 the requests from UCI and CONI to render an advisory opinion about 4 questions.

The two questions of the UCI:

1.) Who is competent to regulate the anti-doping control: the international federation on the one hand or the National Olympic Committee (NOC) or another national sports body on the other?

2.) If the rule of the international federation conflicts with a rule issued or imposed by an NOC or national sports body, which of the two rules would prevail?

The two questions of CONI:

3.) Given that Italian federations are bound by Italian law to follow CONI anti-doping rules, and CONI is bound by Italian law to follow IOC anti-doping rules, what should CONI do if an Italian federation is part of an International federation whose anti-doping rules differ from those of the IOC.?

4.) Given that IOC anti-doping rules may change from time to time, in case a substance is moved from those sanctioned with a heavier penalty to those sanctioned with a lighter penalty, should the lighter penalty automatically apply when it enters into force also to previously sanctioned athletes?

On 5 January 1995 the CAS Panel rules:

1.) The UCI, the NOC or the national sports body are authorized to regulate doping. In this case it concerned a national competition under national Rules. In international competitions the UCI is authorized as International Federation and NOC and any other national sports body are subsidiair.

2.) In the case of an conflict, the Anti-Doping Rules of an International Federation prevail over the rules of an NOC or any other national sports body.

3.) CONI is legally bound to follow the IOC Anti-Doping Rules and to impose these on the Italian Federations.

4.) New IOC provisions are not applied automatically, except when the sports body has a clause in their statutes or regulations that such provisions are applied at once. In the situation that the IOC provision is applied automatically, the new provisions must also be applied to cases that occurred before these provisions came into force, if it lead to a more favourable result for the sanctioned athlete in anti-doping cases.

CAS 94/129 USA Shooting & Q. / Union Internationale de Tir (UIT)

• Doping of a shooter (ephedrine)
• Disqualification and suspension for 3 months
• Absence of strict liability rule in the UIT Antidoping Regulations
• Need to establish the guilty intent of the shooter to sanction him
• Right to be heard and due process

1. If the strict liability standard is to be applied, this fact must be clearly stated. The fact that the Court of Arbitration for Sport has sympathy for the principle of a strict liability rule obviously does not allow the CAS to create such a rule where it does not exist.

2. The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule-appliers must begin by being strict with themselves. Regulations that may affect the careers of dedicated athletes must be predictable. They must emanate from duly authorised bodies. They must be adopted in constitutionally proper ways. They should not be the product of an obscure process of accretion. Athletes and officials should not be confronted with a thicket of mutually qualifying or even contradictory rules that can be understood only on the basis of the de facto practice over the course of many years of a small group of insiders.

3. If the “hearing” in a given case was insufficient in the first instance, the fact is that as long as there is a possibility of full appeal to the Court of Arbitration for Sport the deficiency may be cured.

The Court of Arbitration for Sport decides on 23 May 1995:

1.) Grants the relief requested by the Appellants, and accordingly:
2.) reinstates Q. as the winner of the 1994 UIT Cairo World Cup entitled to retain the gold medal from that event, and
3.) declares that USA Shooting was therefore in principle entitled to the Olympic country quota slot earned as a result of Q.’s performance (it being recognised that this slot cannot be used in practice to the extent that U.S. athletes have already attained the maximum of three slots for any one country).
4.) Makes no award of costs.

CAS 95/122 National Wheelchair Basketball Association (NWBA) / International Paralympic Committee (IPC)

• Doping of an athlete member of a team (dextropropoxyphene)
• Disqualification of a national basketball team from the
• Paralympics
• Principle of strict liability

1. Pursuant to the rules applicable in casu, the presence of a drug in the urine is sufficient to constitute an offence, irrespective of the route of administration.

2. If a competitor, member of a team, tests positive for doping during a tournament, does it mean that the match during which the infringement took place must be forfeited by that team or that the team must be disqualified from the entire tournament? Interpretation of a rule, the wording of which is controversial.

The Paralympic Athlete K competed in the USA Wheelchair Basketball Team at the 1992 Barcelona Paralympic Games.

In September 1992 the International Coordinating Committee of World Sports Organizations for the Disabled (ICC) reported an anti-doping rule violation against the Parathlete after his sample tested positive for the prohibited substance dextropropoxyphen.
Due to an injury the Athlete had used the painkiller Darvocet provided to him by his coach who had checked Darvocet on the list of banned drugs. However the coach did not know that one of the components in Darvocet is the prohibited substance dextropropoxyphene.

On 29 September 1992 the ICC decided that K. forfeit any medal with the recommendation to the IWBF to suspend him for six months.
As a consequence of the Athlete’s violation the ICC decided that the USA Basketball Team forfeit the match and to re-allocate their medals.

Hereafter in March 1995 the National Wheelchair Basketball Associaton (NWBA) appealed this decision with the Court of Arbitratio for Sport (CAS) against the International Paralympic Committee (IPC) as successor to the ICC.

The NWBA requested that the disqualification decision be reversed, and, in the alternative, either (a) that the USA wheelchair basketball team retain the 1992 Barcelona Paralympics championship, and that the USA team members retain the gold medals, or (b) that the USA wheelchair basketball team retain the 1992 Barcelona Paralympics championship, and that, with the exception of [K.], the USA team members retain the gold medals”.

The CAS Panel concludes that none of the NWBA’s filed contentions survive the Panel's analysis.
First, the ICC's reliance on Rule 1.1.4 was correct insofar as it declared the USA team to be the loser of the championship and therefore also of the gold medals.
Second, the ICC's conduct in administering its regime of penalties, while hesitant and confused, did not reach a level where it must be characterized as unfair or unreasonable; the result was the perfectly predictable consequence of a strict rule which the Panel can neither annul nor disregard.
That is also why the third contention must fail; as it stands, Rule 1.1.4 creates a regime that does not accommodate considerations of proportionality. Whether more flexible rules are desirable is a matter for debate within the appropriate governing bodies; they cannot be imposed by this Panel.

Therefore on 5 March 1996 the Court of Arbitration for Sport decides:

1.) Rejects each of the NWBA's alternative prayers for relief, and accordingly.
2.) Invites the Secretary General of CAS to dispose of the medals in his custody in accordance with the instructions of the IPC, and to release the cheque in the amount of US$ 2,000 to the IPC upon written certification by the latter that it will apply said amount to the cost of replacing the two missing medals.
3.) Makes no award of costs.

CAS 1995/141 Anne Chagnaud vs FINA
TAS 95/141 C. / Fédération Internationale de Natation Amateur (FINA)

• Dopage d'une nageuse (étiléfrine)
• Disqualification et suspension de deux ans
• Responsabilité objective de la nageuse même en l'absence de faute
• Prise en considération de circonstances atténuantes

1. Selon le règlement de la FINA, la seule présence d'une substance interdite, telle que l'étiléfrine, dans le corps d'une athlète constitue une infraction, entraînant une suspension automatique de deux ans.

2. Le fait que la nageuse n'ait pas eu l'intention de se doper et qu'elle ait été dopée à son insu ne peut remettre en cause sa disqualification.

3. C'est au niveau de la sanction disciplinaire (suspension de l'athlète ayant subi un contrôle positif) que les éléments subjectifs de chaque cas doivent être pris en considération. Le principe de présomption de culpabilité de l'athlète doit demeurer, mais, par contre, l'athlète doit avoir la possibilité de renverser cette présomption en apportant une preuve libératoire.

FACTS
Anne Chagnaud, the athlete, appeals before the Court of Arbitration for Sport (CAS) against the decision, dated July 27, 1995, of the FINA Executive Office.

History
On January 28, 1995, the athlete provided a sample for an in-competition doping test. The sample tested positive for the prohibited substance etilefrine. Her trainer had given her a capsule of effertil which contained the prohibited substance, together with her nourishment. The French Swimming Federation (FFN) disciplinary body didn't sanction the athlete in her decision of July 7, 1995. In their view it had been impossible for the athlete to have known she ingested a prohibited substance.
The International Swimming Federation (FINA) Executive Office didn't agree with this decision and sanctioned the athlete with a period of ineligibility of two years.

On August 10, 1995, the athlete submitted a declaration of appeal before the CAS. But FINA had made a mistake in her decision of July 27, 1995, about where she could appeal. She could appeal to the FINA's Board. On September 1995 the athlete appealed to the FINA's Board against the decision of July 27, 1995, by the FINA Executive Office. The appeal was rejected because the panel regards the positive test as sufficient to establish the violation.

Submissions athlete
The athlete criticizes the system of responsibility without fault. Even though she does not contest the result of the tests, she however argues that the alleged substance was not substantial enough to improve her performance. Besides that she argues that her penalty is unjust, since she was doped without her knowledge by her trainer and she had no intention of consuming capsules of effortil (containing etilefrine), the athlete insists on the disproportionate nature of the penalty.

However the court concludes that the testimonies of her trainer did not permit to establish if he had acted without her knowing consuming the prohibited substance. However, in view of the facts of the brief, the court considers that the penalty pronounced against the appellant is not proportionate to the circumstance of the case. In view of what comes before and in application of the principle of proportionality, the court considers that the fault of the appellant is not sufficiently grave for a period of ineligibility lasting two years. The penalty will last till the day of this hearing, the period from January 28, 1995 through march 12, 1996, which is in corresponds to the guilt of the athlete and is consequently sufficient.

Decision
- The decision in partially upheld.
- The decision of suspension pronounced by FINA against the appellant on October 21, 1995 is terminated immediately.
- The decision is rendered without cost, except for the fee of 500 Swiss francs claimed by CAS.
- FINA will contribute 1,500 Swiss francs to the legal fees of the appellant.

[The attached file contains the French text and an unauthorized English translation]

CAS 95/142 L. / Fédération Internationale de Natation Amateur (FINA)

• Doping of a swimmer (salbutamol)
• Special status of salbutamol in the FINA rules
• Omission to declare the use of such substance to the testing agent
• Damage claim for breach of contract and infringement of personality

1. The FINA Medical Rules provide for the application of the “strict liability” standard as an effective instrument in the fight against doping. The concept of “strict liability”, as it is used in doping cases, does not imply an intentional element. There is no link between sanction and intent.

2. The substance salbutamol has an exceptional status in the FINA doping list: it is not completely banned; its inhalation is explicitly permitted, subject to prior notification to the relevant authorities. Therefore, the mere presence of salbutamol is not conclusive proof of a doping offence.

3. The failure to mention salbutamol in the doping test form may create the assumption that there is a doping offence. In the present case, the swimmer had clearly established that he had suffered from asthma for many years; that from the beginning of his sports career, the relevant medical authorities had been repeatedly informed of his use of medication containing salbutamol; that in prior doping tests, the swimmer had declared his use of salbutamol and been found negative; and that there were no indications that he had taken salbutamol other than by inhalation. These specific and exceptional circumstances justify acceptance of the swimmer's numerous records, reports and notifications about his asthma treatment as a sufficient equivalent to the declaration in the test form. Accordingly, there is no doping offence in this case.

4. Dismissal of the damage claim: FINA did not commit a fault or act in bad faith when it began a doping procedure after salbutamol was identified because no medication containing salbutamol had been declared in the test control form.

In April 1995 the Féderation Internationale de Natation (FINA) has reported an anti-doping rule violation against the Finnish swimmer Petteri Lehtinen after his sample tested positive for the prohibited substance salbutamol.

The Athlete and the Finnish Swimming Association submitted a statement about his asthma, prepared by the doctor who had been treating him, and a copy of the prescription on the basis of which he had purchased his medicine. The national Swimming Association informed FINA that it was not necessary to examine the Athlete's B-sample, because he was regularly taking Ventoline.

Also FINA's Medical Committee stated that the Committee maintained that the use of salbutamol for medicinal purposes was acceptable and it recommended sending the Athlete and the Finnish Swimming Association a “Warning Letter”.
However on 23 June 1995 the FINA Executive decided to impose a 2 year period of ineligibility on the Swimmer.

Hereafter in August 1995 the Swimmer appealed the decision with the Court of Arbitration for Sport (CAS).

The Athlete requested the Panel to set aside the decision taken by the FINA Executive and confirmed by the FINA Bureau and, in addition, that the CAS enjoin FINA to pay him damages for a breach of contract, infringement on his personality and for loss of earnings due to the damage caused to his professional activity.

The CAS Panel concludes that the Athlete has not established that he suffered a financial loss nor that a possible loss was caused by the doping procedure. In addition, FINA has not committed any unlawful act by initiating a doping procedure when the Athlete failed to declare his taking of Ventoline on the doping test form.

Furthermore, the FINA Executive and the FINA Bureau did not act in bad faith or abusively when it decided against the Athlete and imposed the sanction provided in the FINA rules. Therefore, the necessary prerequisites to award damages are not present.

Therefore the Court of Arbitration for Sport decides on 14 February 1996:

1.) The appeal by Petteri Lehtinen of 11 August 1995 against the FINA Bureau's decision of 27 July 1995 is upheld.

2.) The decision taken by the FINA Executive on 23 June 1995 and confirmed by the FINA Bureau on 27 July 1995 imposing a two-year suspension on Petteri Lehtinen is quashed.

3.) The damage claims requested by Petteri Lehtinen are rejected.

(...)

6.) The award is immediately enforceable.

Avis consultatif TAS 95/144 Comités Olympiques Européens (COE)

Related case:

CAS 1994/128 UCI vs CONI
January 5, 1995

• Anti-Doping Rules
• Competence to regulate doping in multidisciplinary competitions organized by Associations of National Olympic
• Committees

On 5 January 1995, at the request of UCI and CONI (TAS 94/128 UCI-CONI), the Court of Arbitration for Sport (CAS) ruled in an advisory opinion about four questions. In the matter about the authority in international competitions the CAS Panel ruled that the UCI is authorized as International Federation and NOC and any other national sports body are subsidiair.

Because of this remdered opinion TAS 94/128 the Intenational Olympic Committee (IOC) requested in August 1995 the CAS Panel to render an advisory opinion about 2 questions:

1.) Can Associations of National Olympic Committees (NOC) that organize multidisciplinary international competitions, such as the Pan American Games, the Mediterranean Games, the European Youth Olympic Days, in particular, fully implement the IOC Anti-Doping Rules?
2.) Are the NOC Associations authorized in this matter?

On 21 December 1995 CAS Panel rules:

1.) The Anti-Doping Rules applied to multidisciplinary competitions organized by continental or regional NOC Associations fall under the IOC Medical Code as enforcement of Rule 48 of the Olympic Charter.

2.) Without prejudice to the answer to the first question, it seems advisable that NOC Associations organizing multidisciplinary competitions in their constitutive texts should clearly refer to the IOC Medical Code constituent the applicable anti-doping rules.

3.) In multidisciplinary competitions organized by NOC Associations any other anti-doping regulations than the IOC Medical Code can only be applied subsidiair.

CAS 96/149 A.C. / Fédération Internationale de Natation Amateur (FINA)

TAS 96/149 Cullwick v/ FINA

• Doping of a waterpolo player (salbutamol)
• Special status of salbutamol in the FINA rules
• Omission to declare the use of such substance to the testing agent Good faith of the athlete

1. On the basis of the FINA Rules and Guidelines, the omission to declare the use of salbutamol prior to the doping control constitutes an offence equivalent to a technical breach only.

2. The doctrine of lex mitior, i.e. that which permits a criminal court to apply current sanctions to the case before it, if such sanctions are less severe that those which existed at the time of the offence, is applicable to disciplinary matters such as doping cases.

On 1 December 1995 the International Swimming Federation (FINA) Executive decided to impose a sanction of 2 years on the New Zealand waterpolo player Antony Cullwick after he tested positive for the prohibited substance Salbutamol related to his prescribed Asthma medication.

Hereafter the Athlete appealed the FINA Decision with the Court of Arbitration for Sport (CAS).

The Athlete asserted that he had used Salbutamol as prescribed medication for his Asthma. He argued that and under the rules or regulations Salbutamol by inhalation is a permitted and not a banned substance and therefore no doping offence was committed.

FINA contended that under the rules and guidelines in order to constitute Salbutamol a permitted as distinct from a banned substance not only had it to be taken by inhalation, but also there must be prior notification to a relevant authority, either a national federation or FINA itself.

In view of the evidence the Panel determines that the Athlete's violation was a technical breach and not an intentional violation because of the prescribed medication he used for his Asthma. However the Athlete, his doctor, or other appropriate agent, failed to inform his national federation, or FINA or other relevant body about his use of the Ventolin inhaler for medical purposes.

The Panel deems that the fault in this matter appears to lie with the NZL swimming federation in their obligation to take every step to ensure that competitors under their jurisdiction were familiar with all rules, regulations, guidelines and requirements in sucht a sensistive area as doping control.

In addition the Panel made recommendations to FINA to make clear and more precise the relevant rules so that athletes could understand them more easily and disputes over the meaning, if possible, avoided.

Therefore the Court of Arbitration for Sport decides on 13 March 1997:

1.) The appeal lodged by A.C. is partially upheld.

2.) The sanction pronounced against the Appellant is cancelled.

3.) (...)