CAS A4/2016 Sarah Klein v. Australian Sports Anti-Doping Authority (ASADA) & Athletics Australia (AA)

• Athletics (long distance)
• Doping (failure to submit to sample collection)
• “Compelling justification” for failing to submit to sample collection
• Principle of proportionality
• Application of the principle of proportionality in case its absence would produce a harsh and unjust result

1. The word “justification” means that the person advancing the circumstances which are said to be “justifiable” must show good reason why he or she did such a thing. The presence of good reasons must be demonstrated to the satisfaction of the adjudicating body. Justification is the state of being justified. So that a justification is a demonstration that the circumstances advanced were just, right or valid. Of that condition the adjudicating body is to be the judge. The word “compelling” qualifies the word “justification”. Furthermore the word compelling must be given its ordinary natural meaning of forcing, driving or constraining. These are powerful qualifiers of the word “justifiable”. As a matter of language the two words in combination set the bar at a substantial height for the athlete to clear.

2. The principle of proportionality has often been referred to and applied in CAS awards and the substance and the possible application of the principle are not in doubt. Moreover the nature and character of the principle is clearly defined with the result that any reference to it is well and precisely understood by those working in the field. It is an accepted principle applied specifically in relation to the Athletics Australia Anti-Doping Policy 2015 (AA Policy) itself. It is in an important sense a part of the AA Policy. When giving consideration to whether the principle applies or not, the adjudicating body is obliged to give regard to numerous admonitions, to the effect that it is only in very rare cases that it would apply.

3. The mere absence of specific provisions in the AA Policy which would enable highly material circumstances, such as the fact that the athlete complied with the request to provide a sample, attempted bona fide to provide a full sample, showed willingness to complete his/her sample when found to be incomplete and returned negative results for all drugs except for EPO for which the sample was inadequate to test, to be taken into account is not sufficient of itself to engage the proportionality principle. However, where the absence of such an adjustment mechanism leads to the imposition of a period of ineligibility which is out of all proportion to the penalties imposed elsewhere in the AA Policy, and where it can be said to be contrary to the deliberate intention of the drafters to confer a discretion upon the adjudicating body, the result is a combination of such circumstances to produce a harsh and unjust result. It is in those circumstances that the doctrine of proportionality applies in rare cases. The sanction in a case which presents such highly material circumstances cannot be equated with a four year period of ineligibility which is the penalty applicable to a proven drug cheat who has deliberately injected a prohibited substance and must therefore be reduced.

In June 2016 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the Athlete Sarah Klein for refusing or failing without compelling justification to submit to sample collection in February 2016.

Here the Athlete was only able to produce a partial sample while she was in a hurry to leave for the airport. In spite of advice and warnings the Athlete chose not the complete the test. She signed the Doping Control Form and left the Doping Control Station.

After notification the Athlete filed a statement in her defence and she was heard for the Court of Arbitration for Sport (CAS) Oceania Registry.

The Athlete argued that the violation was not a strict liablility offence and bad for duplicity while bad in law and it deprived her of natural justice. Also there were serveral considerations against the allegation that there was no compelling justification for her actions.

Based on the evidence the Sole Arbitrator establish that the Athlete inteded to carry out the actions which constituted the anti-doping rule violation and did so knowing that she was obliged to provide a full 90 mL testing samle and had not done so.

The Sole Arbitrator is unconvinced by any of the matters which are said to be a compelling justification for the Athlete’s actions. They were a hotchpotch of wholly inadequate reasons each of which had an obvious simple solution which the Athlete simply decided to bother not to investigate or to invite assistance to help her investigate.

Much of the evidence itself is consistent with and strongly supports the Sole Arbitrator’s analysis of the Athlete’s decision to leave the Doping Control Station as a fatally flawed decision which ran counter to the careful advice repeatedly given to the Athlete by the three experienced ASADA staff.

Consequently the Sole Arbitrator concludes that the Athlete knew that her conduct could constitute an ADRV and that she knew that there was a significant risk that the conduct might constitute or result in an ADRV and manifestly disregarded that risk.

Finally the Sole Arbitrator deems that all of the unsatisfactory features of the Athlete’s behaviour may be adequately and properly dealt with by the imposition of a two-year penalty. Here the Sole Arbitrator finds that a 4 year penalty is disproportionate, harsh and unjust.

Therefore the Court of Arbitration for Sport decides on 25 May 2017 that:

1.) The application to the Court of Arbitration for Sport filed by Ms Sarah Klein on 5 July 2016 succeeds in part.

2.) Ms Klein has committed an Anti-Doping Rule Violation contrary to Article 2.3 of the Athletics Australia Anti-Doping Policy by refusing or failing to submit to Sample collection after notification on 13 February 2016.

3.) The period of ineligibility of four years imposed on Ms Klein is set aside.

4.) In lieu of the period of four years imposed upon Ms Klein a period of ineligibility of two years is imposed.

5.) The period of ineligibility is to commence on 13 February 2016.

6.) (…).

7.) (…).

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

CAS A9/98 Australian Olympic Committee (AOC) vs. Sarah Rockell

In May 1998 the Australian Olympic Committee (AOC) has reported an anti-doping rule violation against the minor cyclist (14) Sarah Rockell after her A and B samples tested positive for the prohibited substance pseudoephedrine in a concentration above the threshold. After notification the Athlete filed a statement in her defence and she was heard for the Court of Arbitration (CAS) Oceania Division.

The Athlete accepted the test results and denied the intentional use of the substance. She explained that she suffered from exercise induced asthma and that she used Demazin recommended by the family doctor. Also when the minor Athlete was selected for Doping Control her father as her coach was not notified while he was on site and could have been notified at any time.

She and her father testified that at the time of the test Demazin was used and that they were not aware that Demazin was prohibited. They had never received the banned substance list from the Australian Sports Drug Agency (ASDA) or from their Cycling Federations, nor did they receive any anti-doping advice.

The Sole Arbitrator accepts the Athlete’s explanation and establish that extenuating circumstances exist for a reduced sanction. The Arbitrator concludes that the Athlete clearly didn’t know that she had used a prohibited substance and that she acted reasonably in all the circumstances.
Further the Arbitrator establish that the Doping Control was not conducted in accordance with the Rules as the minor Athlete’s father was not notified about the sample collection while on site.

Considering the circumstances in this case the Arbitrator decides on 22 December 1998 that the Athlete should not be sanctioned for the reported anti-doping rule violation.
In addition recommendations were made to sporting organisations to ensure that they have anti-doping policies and anti-doping education programmes provided to athletes.

CAS ad hoc Division (AG Incheon) 14/003 Tai Cheau Xuen v. Olympic Council of Asia (OCA)

Wushu (nanquan & nandao)
Doping (sibutramine)
Requirements of the International Standard for Testing regarding transportation

There is no clear requirement in either the applicable OCA Anti-Doping Rules or the IST with respect to a specific time limit which must be met for the transportation of a sample to the accredited laboratory so as to comply with such regulations. Instead the only requirement is that the sample must be transported “as soon as practicable”. In the absence of any evidence to prove that a sample was tampered with during its period of transportation and together with the fact that the veracity of the sample itself is not challenged, a time period of 16 hours during which the sample was transported to the accredited laboratory, if warranted under the circumstances and the logistical arrangements associated with such transport, is reasonable and cannot constitute a reason on which to make a finding that there has been a violation of the IST.

Ms. Tai Cheau Xuen is an Malaysian Athlete competing in the Women’s wushu nanquan and nandao event at the 2014 Asian Games in Incheon.

On 23 September 2014 the Olympic Council of Asia (OCA) has reported an anti-doping rule violation against the Athlete Tai Cheau Xuen after her A and B samples tested positive for the prohibited substance sibutramine. After notification the Athlete and the Olympic Council of Malaysia (OCM) were heard for the OCA Disciplinary Committee. Here the Athlete disputed the doping test, the sample collection and chain of custody hereafter.
The OCA Disciplinary Committee concluded that the Athlete had committed an anti-doping rule violation and that the mentioned discrepancies by the OCM about the chain of custody were not material enough to invalidate the testing procedure and the analysis.

Therefore on 30 September 2014 the OCA Disciplinary Committee decided:
1.) The Athlete should be disqualified from the 17th Incheon Asian Games 2014 and her accreditation withdrawn.
2.) Her results in the competition should be annulled and her medal withdrawn.
3.) As such the result of the event should be adjusted to reflect this disqualification.
4.) Together with this notification public disclosure of this violation will also be made.
5.) The Competitor has been made aware of her rights including the right to appeal to OCA Executive Committee within four days and /or to Courts Arbitration for Sport (CAS) within 21 days after the reception of the final decision of OCA-Disciplinary Committee. She also has the option to appeal to the CAS-Ad-hoc-committee which is sitting here in Incheon before the close of the Games.

On 1 October 2014 the Athlete appealed the decision of th OCA Disciplinary Committee with the Court of Arbitration for Sport Ad hoc Division in Incheon. The Athlete requested to annul the decision in full and reinstate her gold-medal victory. The Athlete challenged the long duration of the sample transportation and that the OCA denied the Athlete certain fundamental rights.

The CAS AD hoc Panel concludes that the Athlete failed to establish that there has been a violation of the IST and determines that the integrity of the chain of custody has not been compromised in any way.
Therefore on 3 October 2014 the Ad hoc Division CAS Panel decides to dismiss the Athlete’s appeal.

CAS Ad hoc Division (Commonwealth Games in Manchester), CG 02/001 G. / Commonwealth Games Canada (CGC) & Triathlon Canada (TC)

Triathlon
Eligibility of an athlete suspended provisionally
CAS jurisdiction
Right to a hearing before an interim suspension
Validity of the athlete removal from the team

1. The Applicant’s Entry Form contains a provision dealing with the resolution of disputes which provides for CAS jurisdiction. The Applicant is bound by this provision as well as CGC as a Commonwealth Games Association ("CGA"), that has sole authority to submit a competitor's entry (Games Management Protocol 2.1.1). It does so on behalf of TC as a representative governing body for triathlon. CGC has itself implicitly agreed to be bound by the same terms and conditions on the Entry Form as the Applicant and in particular, to the dispute resolution mechanism set out therein. The Panel concludes that CGC is for this purpose acting not only on its behalf, but on behalf of TC as a constituent member. Since the Panel has identified a dispute covered by the arbitration dispute resolution clause inserted in the Entry Form, the CAS Panel finds itself properly seized.

2. There is no provision in the ITU rules which requires that there be some form of hearing before an interim suspension. In this context it is important to bear in mind that under English law which is particularly relevant (the Entry Form specifies English law as its governing law) or indeed under general principles of law, a hearing before an interim suspension is not normally required by principles of fairness; moreover an interim or provisional suspension without a hearing is common in the rules of other governing bodies concerned with the problem of doping in sport. Such suspension, decided on an urgent basis, does not deprive the Applicant of a proper hearing at a later stage with the potential for an appropriate remedy.

In July 2002 the Canadian Centre for Ethics in Sport (CCES) has reported an anti-doping rule violation against the Athlete G. after his A and B samples tested positive for the prohibited substance nandrolone.
After notification a provisional suspension was ordered and Commonwealth Games Canada (CGC) decided to exclude the Athlete from the Manchester 2002 Commonwealth Games.

Hereafter on 31 July 2002 the Athlete appealed the decision to suspend him with the CAS Ad hoc Division at the Manchester Commonwealth Games.
The Athlete requested to be reinstated and argued that he was suspended without having had a fair hearing.

The Panel finds that a hearing before an interim suspension is not normally required by principles of fairness; moreover an interim or provisional suspension without a hearing is common in the rules of other governing bodies concerned with the problem of doping in sport. The rationale for summary reaction to a positive test is obvious: the public interest of the sport trumps the private interests of the athlete. It should be emphasised that such suspension, decided on an urgent basis, does not deprive the Applicant of a proper hearing at a later stage with the potential for an appropriate remedy.

Therefore the Ad hoc Division of the Court of Arbitration for Sport decides on 2 August 202:

The application filed by G. on 31 July 2002 for an order directing Commonwealth Games Canada and Triathlon Canada to reinstate him to Team Canada 2002, to return him immediately at their expense to Manchester, and to allow him to compete in the men's triathlon competition on Sunday 4 August 2002 is dismissed.

CAS CG 06/01 Commonwealth Games Federation (CGF) vs Raju Edwin

CAS CG 06/02 Commonwealth Games Federation (CGF) vs Tajinder Singh

In March 2006 during the Melbourne 2006 Commonwealth Games the Indian weightlifters Raju Edwin and Tajinder Singh tested positive for the prohibited substance Stanozolol.

Following notification the Athlete's denied the use of any prohibited substance and disputed the validity of the test results.

Because there were 4 adverse analytical findings reported on the occasion of doping controls carried out on the Indian national team members in 2006 consequently the International Weightlifting Federation decided to suspend the Indian Weightlifting Federation.

On 25 March 2006 in this interim order the Ad hoc Panel provides the Athletes the opportunity to consider with the aid of an expert whether the analysis of the their samples relied on to support a case of violation of the anti-doping rules was in any way flawed.

Therefore on 26 March 2006 the Ad hoc Division of the Court of Arbitration for Sport decides:

(1) By 06:00pm Swiss time on 28 March 2006, the Respondents produce a report from their expert on the analytical data to be distributed in accordance with directions of the CAS Secretariat.

(2) By 06:00pm Swiss time on 29 March 2006, the Respondents indicate to CAS in Lausanne whether in the light of such report, the Respondents continue to dispute the findings of violation of an anti-doping rule, and if so, on what basis.

(3) If and in so far as the Respondents continue to dispute the findings on the basis that the analysis of their samples was in some material way flawed, the CGF has until 06:00pm Swiss time on 31 March 2006 to produce a report in defence of the analysis to be distributed on the same basis.

(4) The Panel refers the dispute to arbitration by the CAS in accordance with the Code of Sports-related Arbitration (Article 20 (a) and (c) (i) and (iii) of the ad hoc Rules)

(5) If a defence is advanced by the Respondents, further directions will be given for its resolution.

If, however, the Respondents advance no defence, the Panel will as soon as possible determine that an anti-doping rule violation has been committed (see article 28.8 (d) of the CGF Constitution), and the Federation Court will thereafter impose the sanctions provided for under article 28.9. (The Panel further draws attention to article 28.10, although its implementation is not a matter for it.)

CAS OG_1996_03 Andrei Korneev vs IOC
CAS OG_1996_04 Zakhar Gouliev vs IOC
Arbitration No 003-4

Andrei Korneev is a Russian Athlete competing in the Men’s Swimming Events at the Atlanta 1996 Olympic Games and Zakar Gouliev is a Russian Athlete competing in the Men’s Greco-Roman Wrestling Events.

In July 1996 the International Olympic Committee (IOC) has reported anti-doping rule violations against the two Russian Athletes after their samples tested positive for the prohibited substance Bromantan. As a result the IOC Executive Board decided on 28 July 1996 to disqualify and to exclude both Athletes from the Olympic Games including withdrawal and return of medals and diplomas.

Hereafter on 29 July 1996 both Russian Athletes appealed the IOC decisions with the Court of Arbitration for Sport Ad hoc Division Atlanta. Here case scientific literature was filed and expert witnesses heard.

In this case the substance Bromantan has apparently been used by Russian athletes for a considerable number of years. It appeared that it was used by athletes competing in the 1988 and 1992 Olympic Games. The use of Bromantan was unknown to the IOC Medical Commission and its use was not detected by the testing methods then available. The Russian Olympic Committee did not inform the Commission of the existence and use of Bromantan and no athlete disclosed its use during drug testing. The Medical Commission became aware of the existence and use of Bromantan in June 1996 and in July 1996 it was proposed to regard Bromantan as a related substance to the forbidden class 1A (Stimulants).

The CAS AD hoc Panel notes that in these cases the IOC Medical Commission acted with the following circumstances:

1. It was at about the beginning of the Olympic Games made aware of the covert use of an unknown substance substantially by Russian athletes over a number of years.
2. The existence of that substance only became known because of the disclosure by one Russian athlete in Canada in March 1996 of its use.
3. The substance was a product for the Russian military and was not available generally although it could apparently "be obtained in Moscow".
4. The scientific literature available relating to this substance was extremely limited and only in Russian.
5. That literature would reasonably lead a scientific reader to the conclusion that the substance possessed stimulant qualities.
6. The appellants did not declare their now undisputed use of the substance when tested for drugs although the use of vitamins was disclosed.
7. The denial of use was persisted in after testing disclosed the presence of the substance in samples which had been tested.

These circumstances would quite naturally and reasonably give rise to a suspicion that the substance possessed the qualities of a stimulant.

The Panel finds that the surrounding circumstances while suspicious do not form a basis for concluding, in the light of the scientific evidence, that Bromantan is a stimulant.
The surrounding circumstances, of themselves, are not evidence of the objective fact of the actual chemical composition and qualities of Bromantan. They could be evidence of the belief of those using the substance but not of the correctness of that belief.
While it may be that further study may establish that Bromantan is a prohibited substance the totality of the materiel before the Panel does not allow it to reach that conclusion.

Further in this case the Russian Olympic Committee offered to:

1. Cooperate fully in a study to determine whether Bromantan should be classed as a prohibited substance.
2. To make records relating to Bromantan available for that purpose.
3. To disclose to the Medical Commission all drugs which the Russian Olympic Committee recommend to Russian athletes for use on a general basis. The Russian Olympic Committee urged that consideration should be given to creating a rule that other national bodies should be required to make similar disclosures.
4. To discontinue the use of Bromantan pending further investigations.

The CAS Panel strongly urge the Russian National Olympic Committee to implement its offers. In particular the Panel believes that, in view of the probability that Bromantan can be indeed classified as a stimulant, its use should be discontinued forthwith.

The Court of Arbitration for Sport Ad hoc Division Atlanta Panel decides on 4 August 1996 that the appeals of the Athletes Andrei Korneev and Zakhar Gouliev are allowed and to set aside the IOC decisions of 28 July 1996.

CAS ad hoc Division (O.G. Nagano) 98/002 R. / International Olympic Committee (IOC)
CAS 1998 NAG 2 Ross Rebagliati vs International Olympic Committee (IOC)

Disqualification of an athlete for use of marijuana
Lack of legal basis to sanction the athlete

1. The sole basis to sanction the use of marijuana at the Olympic Games is Chapter II, article III, paragraph B of the IOC Medical Code, which treats the use of marijuana as doping only if there is an agreement between the IOC and the relevant international federation to that effect. Absence of any such agreement in this case.

2. The CAS recognizes that from an ethical and medical perspective, cannabinoids consumption is a matter of serious social concern. The CAS is not, however, a criminal court and can neither promulgate nor apply penal laws. The CAS must decide within the context of the law of sports, and cannot invent prohibitions or sanctions where none appear.

In February 1998 the Athlete Ross Rebagliati competed in the Canadian Men’s snowboard giant slalom during the Nagano 1998 Olympic Winter Games where he won the Olympic gold medal.

On 11 February 1998 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after his sample tested positive for the substance marijuana (cannabis).
Therefore the IOC Executive Board decided to rescind the Olympic gold medal due to the positive doping test.

Hereafter the Athlete appeals the IOC Executive Board decision with the ad hoc Division of the Court of Arbitration for Sport (CAS) present at the Nagano 1998 Olympic Winter Games.
The Athlete stated he did not use cannabis since April 1997 and argued that the positive test was the result of second hand cannabis smoke due to he attended two parties in January 1998 where people smoked cannabis.
The CAS Panel concludes that the sanction against the Athlete lack requisite legal foundation, due to marijuana (cannabis) wasn't actually on the IOC banned-substance list.

The ad hoc Division of the Court of Arbitration for Sport Panel decides:

1.) The IOC Executive Board's decision of 11 February 1998 is reversed.
2.) No costs are awarded.
3.) The decision shall be subject to immediate publication.

Cannabis has since been listed by the World Anti-Doping Agency (WADA) as a banned substance.

CAS ad hoc Division (O.G. Sydney) 00/006 Dieter Baumann / International Olympic Committee (IOC), National Olympic Committee of Germany and International Amateur Athletic Federation (IAAF)

• Athletics
• Doping (nandrolone)
• Removal of accreditation for the Olympic Games
• CAS jurisdiction
• Principle of res judicata
• De novo hearing

1. By reason of their commitment to the Olympic Movement and their participation in the Olympic Games, the IFs must be deemed to have subscribed to the arbitration clause in the Olympic Charter.

2. A res iudicata defence can only succeed if the parties and the subject matter of the new dispute are the same as in the former action.

The Deutscher Sportbund e.V. (the German Sports Association, the “DSB”) held a without warning out of competition control test on 19 October 1999. The test was carried out on Mr. Dieter Baumann (the “Athlete”) while he was at training. The analysis of the A-sample in the IOC laboratory in Kreischa showed the following result: 19-norandrosteron 23.2 ng/ml and 19 noretiocholanolon 5.1 ng/ml. The B-sample test was norandrosteron 20.7 ng/ml. On 15 November 1999, the DSB arranged for another test to be carried out on the Athlete without giving warning. The analysis of the A-sample in the IOC laboratory Cologne shows the following result: 19 norandrosteron 24 ng/ml. The B-sample test was 26 ng/ml. The Athlete was given a hearing before the Anti-Doping Commission of the Deutscher Leichtathletikverband e.V. (the “DLV”). On 19 November 1999, the Anti-Doping Commission of the DLV temporarily suspended the Athlete on the grounds of a suspected doping offence. On 29 and 30 November 1999, employees of the IOC laboratory in Cologne took food substitutes and cosmetics from the Athlete’s home for the purpose of examining them and to locate a possible source for the positive findings. On 1 December 1999, an examination of a tube of toothpaste of the brand “Elmex” taken from the Athlete’s house revealed that the toothpaste contained norandrostendion. On 1 December 1999, an excretion test with a test person in the IOC laboratory in Cologne showed a positive finding in respect of nandrolon-metabolites after a specially prepared toothpaste containing norandrostendion had been used (Analysis of Prof. Dr. W. Schänzer, 2 December 1999). On 2 December 1999, the Athlete reported the commission of an offence by persons unknown to the Tübingen public prosecutor’s office. He claimed that his toothpaste had been manipulated. The public prosecutor’s office commenced an investigation. On 7 December 1999, while searching the Athlete’s house the police found a tube of toothpaste of the brand “Signal” in a sport bag in the basement. An examination of it showed that the toothpaste contained norandrostendion. On 30 May 2000, the Tübingen public prosecutor’s office discontinued the investigative proceedings started by the Athlete on the basis that no criminal involvement by a third party could be established. On 23 June 2000, the Rechtsausschuss (Legal Committee) of the DLV removed the Athlete’s suspension on the grounds that the necessary suspicion for a doping offence did not exist. On 13 July 2000, the Athlete was cleared by the Legal Committee of the DLV in respect of the doping suspicions. On 11 August 2000, a “Notice of Referral to Arbitration and Statement of the IAAF” was received by the DLV.
In August 2000, the Athlete was nominated by the NOC as a member of the German Olympic Team. On 30 August 2000, the Regional Court of Stuttgart granted an interim order against the IAAF on the application of the Athlete. Pursuant to such order the IAAF was prohibited under penalty of up to DM 500’000 for each breach from placing a competition ban on the Athlete until the end of the Olympic Games 2000 in Sydney.