CAS (Oceania registry) A2/2009 Australian Sports Anti-Doping Authority (ASADA), on behalf of Australian Sports Commission (ASC) and Golf Australia (GA) v. Daniel Nisbet

Golf
Doping (DHEA)
Possession of a Prohibited Substance
No Significant Fault or Negligence
Disqualification of results in competitions subsequent to commission of an anti-doping rule violation

1. In considering the defence of No Significant Fault or Negligence, evidence such as the young age and the inexperience of the athlete, his exemplary record, his good character, his full co-operation with the investigation authorities, the absence of consumption of any prohibited substance, the fact that the substance was acquired at an over-the counter retail pharmacy and not on the black market, the incorrect labelling of the bottle, or the fact that the substance was for the use of another person, can be taken into consideration.

2. So long as the decision-maker exercises its discretion in good faith, without bias, error, or undue influence, the provision according to which all competitive results obtained in competitions subsequent to commission of an anti-doping rule violation, through the commencement of any provisional suspension or ineligibility period, shall be disqualified unless fairness requires otherwise, extends to the decision-maker discretion to determine what fairness requires.

In August 2010 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the Athlete Daniel Nisbet for possession of the prohibited substance dehydroepiandrosterone (DHEA) after the Australian Customs seized several products in the baggage of the Athlete entering Australia.

ASADA on behalf of the Australian Sports Commission (ASC) and Golf Australia (GA) seeks from the Court of Arbitration for Sport (CAS) an Award imposing a sanction for the Athlete’s anti-doping violation.

The Sole Arbitrator Panel considers that Athlete was young and relatively inexperienced; there was no consumption of the prohibited substance; the substance was purchased at an over-the-counter retail pharmacy and not on the black market; and the product was purchased for a friend, a ‘non-athlete’.

Therefore the Court of Arbitration for Sport decides on 2 February that the appropriate saction is a 18 month period of ineligibility starting on 25 November 2009.

CAS A2/2011 Kurt Foggo v. National Rugby League (NRL)

• Rugby
• Doping (1,3-dimethylpentylamine)
• Lex mitior
• Interpretation of “intent to enhance sport performance”
• Corroborating evidence
• Standard of proof
• Duty of utmost caution of the athlete

1. The doctrine of lex mitior permits a disciplinary tribunal to apply current sanctions to the case before it if those sanctions are less severe than those which existed at the time of the offence.

2. Having regard to the context of the rules as a whole, the natural and ordinary meaning of the words in Rule 154 (WADC 10.4): “that such specified substance was not intended to enhance the Athlete’s sport performance” is to require the athlete to show that the ingestion of the product which contained the specified substance was not intended to enhance his sport performance. The time at which the absence of intent is to be shown is the time of ingestion of the substance. The athlete must negate an intention at that time to enhance his or her performance in the relevant sport by the taking of the substance. The rule focuses on the nexus or link between the taking of the substance and the performance as a player of the sport. Whether or not the link will be established will depend on the particular circumstances of the case. Rule 154 (WADC 10.4) would not be satisfied if an athlete believes that the ingestion of the substance will enhance his or her sport performance although the athlete does not know that the substance contains a banned ingredient. The athlete must demonstrate that the substance “was not intended to enhance” the athlete’s performance. The mere fact that the athlete did not know that the substance contained a prohibited ingredient does not establish absence of intent.

3. Rule 154 (WADC 10.4) also requires the production of corroboration evidence in addition to the athlete’s word which establish “…the absence of an intent to enhance sport performance”. Accordingly, the corroborating evidence must be sufficient to demonstrate the absence of intent, e.g. conduct inconsistent with intent at the relevant time. This is to be determined by the hearing panel undertaking an objective evaluation of the evidence as to the facts and circumstances relevant to the issue of intention.

4. Where the Policy or the WADC places the burden of proof upon the athlete to rebut a presumption or to establish specified facts or circumstances, the standard of proof borne by the athlete is a balance of probability. But the athlete must satisfy “a higher burden of proof” when the athlete seeks an elimination or reduction in the period of ineligibility under Rule 154 or WADC 10.4.

5. It cannot be too strongly emphasised that the athlete is under a continuing personal duty to ensure that ingestion of a product will not be in violation of the Code. Ignorance is no excuse. To guard against unwitting or unintended consumption of a prohibited or specified substance, it would always be prudent for the athlete to make reasonable inquiries on an ongoing basis while ever the athlete uses the product.

In October 2010 the National Rugby Leage (NRL) reported an anti-doping rule violaton against the rugby player Kurt Foggo after his A and B samples tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).

Becaus of his use of the supplement Jack-3d the NRL Tribunal decided on 15 November 2010 to impose a 2 year period of ineligibility on the Athlete.

Hereafter in February 2011 the Athlete appealed the NRL decision with the Oceania Registry Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.

The Athlete accepted the test results and denied the intentional use of the substance. Undisputed is that the supplement Jack-3d he had used was the source of the prohibited substance.

The Athlete asserted that on the ASADA website 1,3-dimethylamylamine, also known as Methylhexaneamine, could not be identified as constituent ingredient in Jack-3D. The NRI contended that the Athlete failed, deliberately or otherwise, to make enquiries as to the content of the supplement and so claiming ignorance of the violation.

The Sole Arbitrator assessed and addressed the following issues:

• The Athlete's intention to enhance sports performance;
• The existence of corroborating evidence;
• The Relevant Tests under Rules 154 and 156 of the Policy/Article 10.4 and Article 10.5.2 of the World Anti-Doping Code

The Arbitrator determines that:

• The presence of a prohibited substance has been established in the Athlete's samples and accordingly he committed an anti-doping rule violation.
• The doctrine of lex mitior is applicable in this case.
• The prohibited substance was an ingredient of the supplement Jack-3d.
• The Athlete's use of the supplement Jack-3d was not intentional.
• Although it was not on the ASADA website, when the Athlete had conducted more exhaustive inquiries he may have been able to locate information about the product which could have alerted him to the risk of violation if he used it.

Therefore the Court of Arbitration for Sport decides on 3 May 2015:

1.) The appeal filed on 15 February 2011 by Kurt Foggo against the decision of the National Rugby League (NRL) Tribunal of 15 November 2010 is declared admissible and is partially upheld.

2.) The decision of the NRL Tribunal is amended as follows: The period of ineligibility of Kurt Foggo shall be 6 months from 11 October 2010.

(…)

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

CAS (Oceania Registry) A2/2015 Australian Sports Anti-Doping Authority (ASADA), on behalf of Cycling Australia v. Jeone Park

Cycling
Doping (prohibited method: intravenous infusion of grape syrup and vitamins)
Establishment of an anti-doping rule violation and shifting of the onus to the athlete to mitigate the sanction
Athlete’s youth and ignorance that an intravenous injection constituted a breach of the WADA Code
Athlete’s personal duty to ensure that no prohibited method is used according to the WADA Code

1. Once the anti-doping rule violation is established, the athlete must be suspended for two years, unless the conditions for eliminating or reducing the period of ineligibility are met. The onus then shifts to the athlete to mitigate the sanction and, in that regard, to satisfy the CAS of any specified facts or circumstances on the balance of probabilities.

2. Ignorance that an intravenous injection constituted a breach of the WADA Code (prohibited method) is no excuse. An athlete’s youth and his propensity to accept direction from his family members are also not excuses. They are relied upon to alleviate the consequences for the purposes of assessing culpability. That lack of knowledge is not an exculpatory or mitigating factor.

3. Article 2.2 of the WADA Code provides that it is each athlete’s personal duty to ensure that no prohibited method is used and that it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated. Further, the success or failure of the attempted use is not material.

In January 2015 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the Athlete for the attempted use of a Prohibited Method: the intravenous infusion of grape syrup and vitamins.
After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Oceania Registry Ordinary Division of the Court of Arbitration for Sport (CAS).

The violation occurred previously in August 2014 in Korea when the Athlete’s cousing, a fully trained nurse, administerd this intravenous infusion to assist the Athlete recovery after he felt unwell.

ASADA requested the Panel to impose a 2 year period of ineligibility on the Athlete for committing the anti-doping rule violation of Attempted Use of a Prohibited Method with the IV infusion in August 2014. ASADA argued that the Athlete was not inexperienced and he failed to establish that he bears no significant fault or negligence.

The Athlete accepted that he committed the anti-doping rule violation in August 2014 and contended that the violation was principally the result of the actions conducted by the adults around him. The Athlete argued that he gave a prompt admission; there is no allegation of use of a prohibited substance; he gained no benefit from the attempted use; he was a minor at the time and in his situation unaware that he was committing an anti-doping rule violation.

The Sole Arbitrator finds that the Athlete’s arguments are insufficient for establishing that he bears no significant fault or negligence and concludes that the Athlete has committed a violation of the CA Anti-Doping Policy.

Therefore the Court of Arbitration for Sport decides on 17 March 2016:

1.) Jeone Park committed an anti-doping rule violation of Attempted Use of a Prohibited Method, namely an intravenous infusion, in breach of Art. 7 of the Cycling Australia Anti-Doping Policy 2010, which incorporates by reference Art. 2.2 of the 2009 World Anti-Doping Code.
2.) In accordance with Art. 17 of the Cycling Australia Anti-Doping Policy 2010 (which incorporates by reference Art. 10 of the 2009 World Anti-Doping Code), a period of ineligibility be imposed upon Jeone Park for a period of two (2) years, backdated to commence on 11 June 2015.
3.) All competitive results obtained by Jeone Park from 11 June 2015 shall be invalidated with all resulting consequences, including forfeiture of any medals, points or prizes.
4.) (…)
5.) All other motions or prayers for relief are dismissed.

CAS A3/1999 & CAS A4/1999 Australian Olympic Committee & Australian Handball Federation vs A.

CAS (Oceania registry) A3, A4 / 99; Australian Olympic Committee (AOC) and Australian Handball Federation (AHF)/ A.,

Handball
Doping (salbutamol)
Extenuating circumstances

1. Any form of medication should be first considered and authorised by a medical practitioner who is familiar with the anti-doping regulations of both the AOC and the particular sport. An elite athlete should be aware of possible risks and must normally bear some responsibility for such an enquiry.

2. In the present case, given the age of the athlete, his history of medical need for a medication containing salbutamol, his prior written advice that he was taking this medication to the State Body of the AHF and the fact that responsible officials within the AHF had assisted him with this medication in the past, the athlete has committed a technical breach of the anti-doping policies but bears no moral responsibility for the breaches and that he was not in any way culpably involved in the breaches.

In October 1998 the Australian Athlete tested positive for the prohibited substance salbutamol which he used as prescribed medication Ventolin for his asthma.

The alleged breach of the Australian Handball Federation (AHF) anti-doping policy occurred on the day following the adoption by the AHF of its anti-doping policy. On Sunday 11 October 1998 The Athlete A. was participating in an event in Victoria. Even though it was the day after the AHF had adopted its anti-doping policy and the anti-doping control officer was present, neither the officer nor any other team official told the Athlete A. or any other member of the team or participant that the AHF had adopted an anti-doping policy.

Considering the circumstances the sole arbitrator is satisfied that extenuating circumstances do exist within the meaning of both anti-doping policies and that no sanction should be imposed on the Athlete A. The evidence establish that A. did not know or suspect that the relevant substance was prohibited and had no reasonable grounds to know or suspect that the substance was prohibited.

The Court of Arbitration for Sport decides on 2 August 1999 that:

1.) On 11 October 1998, the Respondent A. committed a breach of the AOC Anti-Doping Policy and the AHF Anti-Doping Policy in that there was present in his body tissues or fluids substances belonging to classes of pharmacological agents which were prohibited, namely the substance Salbutamol which was present as a result of his inhalation of an anti-asthmatic medication Ventolin.
2.) On the balance of probabilities extenuating circumstances do exist and that as a result of those extenuating circumstances there should be no sanction imposed on A.

CAS A3/2007 ASADA v/ Belinda Van Tienen

In October 2005 four Australian weightlifters tested positive for the prohibited substance Benzylpiperazine due to they had used the supplement Fortius Synephrine containing this banned substance.

Thereupon an investigation conducted by the Australian Sports Anti-Doping Authority (ASADA) established that the weightlifter Belinda Van Tienen was involved in the sale of this product. Furthermore reanalysis in the UCLA Laboratory of her test results revealed the presence of Benzylpiperazine.

Accordingly ASADA in November 2007 reported an anti-doping rule violation against the Athlete. Following notification the Athlete accepted a provisional suspension whereas the case was referred to the Oceania Registry Court of Arbitration for Sport (CAS).

The Athlete accepted the test results and denied the intentional use of the substance. She acknowledged that she had used and sold supplements and that she was not aware that any batches of Synephrine contained Benzylpiperazine contaminations.

Following assessment of the evidence the Sole Arbitrator determines that:

• The computer data produced by the analysis of the Athlete's A sample in June 2005 is evidence of substantial weight and probative value.
• ASADA has established that the Athlete had committed an anti-doping rule violation.
• The Athlete had used Synephrine from the same batch the other athletes had used.

Therefore the Court of Arbitration for Sport decides on 16 June 2008 that:

1.) Belinda Van Tienen has breached Article 5 of the Anti-Doping Policy of the Australian Weightlifting Federation and has thereby committed an Anti-Doping Rule Viotation.

2.) Belinda Van Tienen's individual results obtained in the Mermet Cup competition or event held in the USA in June 2005 are disqualified; accordingly Belinda Van Tienen forfeits all
placings, medals, points and prizes obtained in that competition or event.

3.) Belinda Van Tienen is ineliglble to compete during the period commencing on 27 November 2006 and expiring at midnight on 26 November 2008.

4.) Save for the Court fees whlch have been paid by the Applicant each party shall contribute equally to the Court's costs. The final assessment of the arbitration costs will be served by the CAS Court Office after the communication of the present award.

5.) The Award be made public.

CAS A4/2006 Australian Weightlifting Federation vs Camilla Fogagnolo

In January 2006 the Australian Weightlifting Federation (AWF) reported an anti-doping rule violation against the weightlifter Camilla Fogagnolo after her A and B samples tested positive for the prohibited substance Benzylpiperazine.

Following notification - without a provisional suspension - the case was referrred to the Oceania Registry Court of Arbitration for Sport (CAS).

The Athlete accepted the test results and denied the intentional use of the substance. She argued that she was tested before without issues, she had mentioned the supplements she used on the Doping Control Form and she had properly checked the safety of the products before using.

The Athlete stated that she had used a Fortius Synephrine product in order to reduce her body weight. She was not aware that this product contained the prohibited substance due to Benzylpiperazine was not listed as an ingredient on the lable of the bottle.

This product was recommended by another weightlifter and considered safe to use. Yet, the Athlete was later advised that other weightlifters also had tested positive after using this product.

In January 2006 Fortius Products confirmed that the batch in question used by the athletes was contaminated with Benzylpiperazine. On being asked their manufacturer and supplier of this product failed to provide an explanation about this contamination.

The AWF contended that the Athlete failed to demonstrate that she acted with No (Significant) Fault or Negligence. She failed to read the read the warnings on the website of the Australian Sports Drug Agency (ASDA) nor had checked properly her supplements before using the products.

The Sole Arbitrator finds that the presence of a prohibited substance had been established in the Athlete's samples and accordingly that she committed an anti-doping rule violation.

Undisputed is that the product Fortius Synephrine was the source of the prohibited substance and that the violation was not intentional. Considering the Athlete's conduct the Arbitrator finds that she acted with Significant Fault or Negligence regarding the products she had used.

Therefore the Court of Arbitration for Sport decides on 22 February 2006 that:

1.) Camilla Fogagnolo has breached Article 5.1 of the Anti-Doping Policy of the Australian Weightlifting Federation and has thereby committed an Anti-Doping Rule Violation.

2.) Camilla Fogagnolo's individual results obtained in the Australian Weightlifting Championships held in Brisbane, Queensland in October 2005 are disqualified; accordingly Camilla Fogagnolo forfeits her second placing achieved at that Championship including all medals, points and prizes, pursuant to Article 13.1 of the Anti-Doping Policy of the Australian Weightlifting Federation.

3.) Camilla Fogagnolo is ineligible to compete during the period commencing on 3 February 2006 and expiring at midnight on 2 February 2008.

4.) Camilla Fogagnolo is required to pay the sum of $1000.00 in respect of costs to the Australian Weightlifting Federation.

CAS A4/2007 ASADA v/ Andrew Wyper

In November 2005 the Athlete Andrew Wyper was charged with the criminal offence of importing prohibited products following quantities of human growth hormone and (hGH) and Erythropoietin (EPO) were seized in Sydney by the Department of Customs on their arrival into Australia. In November 2006 the Athlete entered a plea of guilty and was fined $2,000.

Thereupon the Australian Sports Anti-Doping Authority (ASADA) reported anti-doping rule violations against the Athlete for constructive possession of a prohibited substances, and attempted use of a prohibited substances.

Whilst The Athlete had admitted to the facts which are necessary to support the ingredients of the criminal offence of importing prohibited imports, he disputed that the admitted matters established the two violations alleged by ASADA.

In essence the Athlete asserted that the elements in the criminal offence of importing EPO and hGH differed from the elements of the two violations of the terms of the Anti-Doping Policy which were alleged by ASADA.

In view of the evidence the Sole Arbitrator determines that the allegation of possession of prohibited substances does not stand because the prohibited substances were intercepted by the Australian Department of Customs.

The Sole Arbitrator deems that the Athlete had committed an anti-doping rule violation for use of the prohibited substances. The Arbitrator finds that there was sufficient evidence that the Athlete had investigated the use of prohibited substances and had ordered specific quantities of both hGH and EPO.

Therefore the Court of Arbitration for Sport rules on 21 August 2008:

1.) On or about 18 October 2005 Mr Wyper committed an Anti-Doping Rule Violation of attempting to use hGH and EPO which were prohibited substances under the Cycling Australia Anti-Doping Policy.

2.) Mr Wyper is ineligible to compete in cycling races for a period of two years starting from 7 February 2008.

3.) All competitive results obtained by Mr Wyper from 18 October 2005 shall be invalidated with all resulting consequences including forfeiture of any medals, points and prizes.

4.) Cycling Australia shall bear the costs of the Court of Arbitration for Sport in these proceedings.

5.) This Award be made public.

CAS (Oceania Registry) A4/2014 Australian Sports Anti-Doping Authority (ASADA) (on behalf of Athletics Australia) v. Kim Mottrom

Doping (dextran / S5 - Diuretics and other Masking Agents)
Burden and standard of proof
Dextran as a blood (plasma) expander and effect of dextran as masking agent for steroids
Presence of dextran in the athlete’s urine and intravenous administration

1. The burden of proving (presence and use) of a prohibited substance by an athlete lies upon the anti-doping organisation. The standard of proof is comfortable satisfaction, a term of art, in so far as deployed in sports law derived from a decision of a CAS ad hoc panel at the Atlanta Games in 1996 and regularly applied by CAS panels since then.

2. To consider the effect of dextran in a urine sample it is necessary to understand the chemistry of sugar and also the digestion of carbohydrates in the human digestive tract. Dextran is a blood (plasma) expander. When in the blood it draws in fluid which increases the fluidity of the blood. The blood volume is expanded. The blood has the ability to transport oxygen around the system releasing energy and thereby assisting acrobat performance. Dextran can also act as a masking agent for steroids.

3. If the overwhelming scientific evidence establish the presence of dextran in the athlete’s urine and oral ingestion cannot explain the concentration detected, then the panel is comfortably satisfied that the substance detected in the athlete’s sample was by intravenous administration.

In March 2014 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the Athlete Kim Mottrom after his A and B samples tested positive for the prohibited substance dextran.
After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Oceania Registry Ordinary Division of the Court of Arbitration for Sport (CAS) with the right of appeal.

ASADA argued that the presence of high concentration dextran was established in the Athlete’s samples as result of intravenous administration.
The Athlete rejected ASADA’s evidence and contended that ASADA’s “intravenous injection” case rests on an unstable foundation of unqualified and inappropriately retained expert witnesses, contaminated urine samples, unexplained and less than thorough scientific analysis by the Laboratory and sloppy speculation.

The Sole Arbitrator accepts that the scientific evidence satisfies as to the presence of dextran and this was not challenged. The challenge was how the dextran entered the Athlete’s blood stream.

The Sole Arbitrator notes that both the Athlete’s A and B samples revealed the analytical finding was of high concentration of high molecule weight dextran. It was, even at the lowest reported range, a concentration far in excess of the allowable level. While there may have been a contaminated ceramic dish used that affected the A sample with bacteria that does not negate that the detection of dextran and the calculations of its concentration were done by the laboratory in accordance with accredited techniques.

The Sole Arbitrator rejects the proposition of the Athlete’s expert witness that the dextran was added to or made by the bacterial activity in the sample. The bacterial activity asserted could not have made the type of dextran detected. From the evidence, the Sole Arbitrator accepts the bacteria which was recognised by the laboratory in no way discredited the adverse analytical finding of the presence of dextran.

The overwhelming scientific evidence established the presence of dextran in the Athlete’s urine. Oral ingestion cannot explain the concentration detected. The Sole Arbitrator is comfortably satisfied on the evidence the dextran detected in the Athlete’s sample was by intravenous administration.

Therefore the Court of Arbitration for Sport decides on 21 March 2016:

1.) Kim Mottrom has committed two anti-doping rule violations under the Athletes Australia Anti-Doping Policy that of:
a) The Presence of a Prohibited Substance; and
b) The Use of a Prohibited Substance.
2.) Mr Mottrom is suspended from competition for two years from 21 March 2014 with credit for the period of provisional voluntary suspension served by Mr Mottrom.
(…).