CAS ad hoc Division (O.G. Sydney) 00/010 Alan Tsagaev / International Weightlifting Federation (IWF)

Weightlifting
Exclusion of a National Weightlifting Federation due to three positive doping cases
Lack of legal basis for such sanction

Although an international federation may have certain general discretionary powers to govern its sport even in the absence of specific provisions in the statutes or regulations, a suspension of an entire federation from participation in the Olympic Games, including innocent athletes who have not committed a doping offence or any other violation of the applicable rules, at least requires an explicit, and unambiguous legal basis.

Mr. Alan Tzagaev is a Bulgarian Athlete selected to compete in the weightlifiting events at the Sydney 2000 Olympic Games.

On 22 September 2000 the Executiver Board of the International Weightlifting Federation (IWF) rendered the following decision against the Bulgarian Weightlifting Federation after 3 Bulgarian weightlifters tested positive at the Sydney Olympic Games:

1.) The Bulgarian Weightlifting Federation is suspended forthwith for a period of not less than 12 months, pending further investigation.
2.) The Bulgarian Weightlifting Federation must present a detailed project – supported by their National Olympic Committee and National Sports Authorities – ensuring the elimination of the use of doping among their athletes.
3.) All remaining lifters as well as officials from Bulgaria will not be allowed to take part in the Olympic Games.

Hereafter on 22 september 2000 the Bulgarian Athlete Alan Tsagaev appealed this IWF decision of 22 September 2000 with the CAS ad hoc Division at the Sydney Olympic Games and requested the Panel to set aside his exclusion to compete at the Olympic Games.

The Athlete argued that under the IWF Rules after three positive doping tests within one year, the IWF must impose a $ 50.000 fine on the respective member federation. A suspension may be imposed only in the event of non payment of that fine and the IWF made no request for payment of a fine to the Bulgarian sports organisations.

The Panel rules that the IWF decision of 22 September 2000 lacked a sufficient legal foundation and must therefore be annulled in its relevant portions as far as the Athlete is affected, i.e. by reference to items 1 and 3 thereof.

Therefore the CAS ad hoc Division decides on 25 September 2000:

The application is granted insofar as points 1 and 3 of the decision made by the International Weightlifting Federation Executive Board on 22 September 2000 are annulled for lack of legal basis, with the consequence that the Applicant is allowed to participate in these Olympic Games.

CAS ad hoc Division (O.G. Sydney) 00/011 Andreea Raducan / International Olympic Committee (IOC)

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Gymnastics
Doping (pseudoephedrine)
Disqualification from the event
Principle of strict liability

1. The discrepancy in the volume of urine reported in the doping control form and by the laboratory cannot reasonably be considered to have affected the results of what is a valid test, provided that the laboratory received sufficient volume of urine to conduct a valid analysis.

2. The Anti-Doping Code considers doping as a strict liability offence. This means that no intentional element is required to establish a doping offence. The mere presence of a forbidden substance in the urine sample is sufficient. This has been repeatedly confirmed by the CAS.

3. To establish a doping offence, it is not required to demonstrate that a competitive advantage was reached.

Ms Andreea Raducan is a Romanian minor Athlete (16) competing in the Gymnastics (Artistic) Women’s Individual All-Around event at the Sydney 2000 Olympic Games.

On 25 September 2000 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after her A and B samples tested positive for the prohibited substance pseudoephedrine in a concentration above the IOC threshold.

After hearing the IOC Medical Commission and the IOC Executive Board established that the minor Athlete suffered from a headach, a running nose and a feeling of congestion. As treatment the team physician prescribed and provided to the Athlete a Nurofen Cold and Flu tablet on 20 and 21 September 2000.

Consequently the IOC Executive Board decides on 26 September 2000 to disqualify the Athlete including withdrawal of her medal and diploma.

Hereafter the Athlete appealed the IOC decision with the CAS ad hoc Division at the Sydney Olympic Games.
The Athlete requested the Panel to set aside the IOC decision of 26 september 2000 and for restoring the gold medal and diploma to the Athlete.

The Athlete accepted the test results and the validity of the samples analysis. However she argued that the sample volume of urine was unclear and not in accordance with the Anti-Doping Code and as a result the test result should be invalidated. Further she contended that she was not responsible for the anti-doping rule violation since the Nurofen was provided by her team physician.

The Panel finds the minor irregularity revealed in the record showing the volume of urine taken cannot reasonably be considered to have affected the results of what is a valid test. The Panel further finds, notwithstanding the discrepancy in the volume of urine reported, the laboratory received sufficient volume of urine to conduct a valid anaysis.

Also the Panel finds the subjective elements argued in the attack on the finding of doping by the IOC do not affect the decision on the existence of a doping offence and are submissions only related to the assessment of any disciplinary sanction imposed.

Therefore the CAS ad hoc Division decides on 28 September 2000:

1.) The Panel is aware of the impact its decision will have on a fine, young, elite athlete. It finds, in balancing the interests of Miss Raducan with the commitment of the Olympic Movement to drug-free sport, the Anti-Doping Code must be enforced without compromise.

2.) Accordingly, the Panel finds:

• a. The application is dismissed.
• b. The decision of the IOC of 26 September 2000 is upheld.

CAS ad hoc Division (O.G. Sydney) 00/015 Mihaela Melinte / International Amateur Athletic Federation (IAAF)

• Athletics
• Doping (nandrolone)
• Provisional suspension imposed by an IF during the Olympic
• Games CAS jurisdiction
• Principle of strict liability

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

2. If an athlete is removed from the field of play moments before his/her turn to compete, such action creates a dispute arising during the Games within the meaning of Article 74 of the Olympic Charter. On that basis CAS has jurisdiction to rule on the dispute.

In September 2000 the IAAF has reported an anti-doping rule violation against the Romanian Athlete Mihaela Melinte after her sample tested positive for 19-norandrosterone (Nandrolone). After notification to the Romanian Athletic Federation a provisional suspension was ordered.

The Athlete was participating at the Sydney Olympic Games and not notified when she was informed on 27 September 2000 that she has been removed from the participants’ list on account of a doping violation. She was then escorted off the field.

Hereafter on 28 September the Athlete filed an appeal with the CAS Sydney Ad hoc division.

At the conclusion of the hearing, the Panel rendered the following oral ruling on the Application:

• a.) This is an Application for urgent relief affecting the Applicant’s eligibility to compete in the hammer throw later today.
• b.) The Panel finds that the manner in which the Applicant was advised of her suspension and removed from the athletic field was embarrassing and disrespectful. During the hearing, the IAAF expressed its apology for this circumstance.
• c.) The Panel finds that it does have jurisdiction to order the relief requested if it deems that relief justified.
• d.) The Applicant’s essential contention is that the IAAF failed to follow its own rules - particularly because the athlete never had a chance to put forth her position explaining this positive test result.
• e.) However, the Applicant acknowledged at this hearing that she had the opportunity to present to this Panel the positions which she would have provided to the IAAF. The Panel has also heard the explanations of the IAAF.
• f.) The Panel has considered all of the forgoing and finds no violation by the IAAF of its rules which justifies granting the relief requested.
• g.) The Application is therefore denied.

CAS ad hoc Division (O.G. Salt Lake City) 02/001 Prusis & Latvian Olympic Committee (LOC) / International Olympic Committee (IOC)

Bobsleigh
Jurisdiction to rule on doping offences
Eligibility of an athlete for the OG

1. It is a matter for the relevant International Federation to decide how it deals with doping offences which come within its jurisdiction and what sanctions to impose. If it were otherwise, the International Federation’s autonomy would be illusory.

2. In the absence of a clear provision in the Olympic Charter and in the Rules of the relevant International Federation entitling the IOC to intervene in the disciplinary proceedings taken by that International Federation, an athlete has a legitimate expectation that, once he has completed the punishment imposed on him, he will be permitted to enter and participate in all competitions absent some new reason for refusing his entry. If it were otherwise, there would be a real risk of double jeopardy.

In November 2001 the International Bobsleigh and Tobogganing Federation (FIBT) has reported an anti-doping rule violation against the Latvian Athlete Sandis Prusis after his sample tested positive for the prohibited substance nandrolone.
Analysis of the Athlete’s food supplement provided by the Athlete’s doctor showed it contained the prohibited substance.
Considering the circumstance the Executive Committee of the FIBT decided on 21 January 2002 to impose a 3 month period of ineligibility on the Athlete, starting on the date of the sample collection until 9 February 2002.

Because the Athlete was eligible to compete at the Salt Lake City 2002 Olympic Winter Games 6 days before the first bobsleigh event, the suspended athlete together with other Latvian athletes arrived in the Olympic Village in January 2002.
Previously the Latvian Olympic Committee (LOC) had received confirmation that the Athlete could be accredited and reside in the Olympic Village even before the end of the suspension period.
However on 1 February 2002 the IOC Executive Board notified the Athlete and the LOC that he was excluded from the Olympic Winter Games.

Hereafter on 3 February 2002 the Athlete and the LOC appealed the IOC decision of 1 February 2002 with the CAS ad hoc Division at the Salt Lake City Olympic Games.
The Applicants requested the Panel to set aside the IOC Executive Board decision and to participate in the Olympic Games in Salt Lake City.

The IOC submited that it alone has the right to accept or reject entries into the Olympic Games, and that the decision as to whether to accept or reject an entry is a purely administrative decision. The IOC relied in support of its decision principally upon the provisions of Rule 49 of the Olympic Charter.
The IOC further submited that its right in relation to entries is fundamentally different to the right to take measures or impose sanctions for which provision is made in Rule 25 of the Olympic Charter. Thus, the IOC argued that there is no necessity under Rule 49 for it to inform the athlete of its intention to refuse entry or of its reasons for refusal, or to give the athlete an opportunity to make representations.

The Panel notes that neither in its written pleading nor in its oral submission did the IOC attempt to hide the fact that it found the decision of the FIBT in Mr. Prusis’ case unacceptable, and that decision formed the background to its decision to refuse Mr. Prusis’ entry to the Olympic Games. That fact and the IOC’s decision raise two important issues for this Panel to decide. The first issue concerns the relationship between the IOC and the International Federations, and the second issue concerns the legitimate expectations of an athlete who has been punished by the relevant International Federation, and who has served his punishment.

In the Panel’s opinion, it was not legitimate for the IOC to rely on Rule 49 of the Olympic Charter to justify its decision. The Panel already stated their view on the possibility of double jeopardy that may arise if the IOC seeks to impose a further sanction over and above that imposed by the International Federation.

The Panel notes that Mr. Prusis was extremely fortunate to be the beneficiary of the FIBT’s improper conduct and of the lacuna in the Olympic Charter which at present precludes the IOC from intervening and appealing the sanction imposed by an International Federation.

The Panel is of the opinion that the FIBT ignored a number of CAS Awards in which it has been made clear that the “nutritional supplement defence” cannot be seriously invoked by athletes in the light of the many warnings by the IOC, WADA and the scientific community, and of the many instances of positive testing after use of such supplements. However, under the current rules, this failure by the FIBT does not empower the IOC to review the FIBT’s decision. This is, in fact, the essence of what the IOC Executive Board attempted to do by excluding the Athlete from the Winter Olympic Games. However, it is not within the Panel’s remit to make any order other than in relation to the appealed decision.

Therefore the CAS Ad hoc Division decides on 5 February 2002:

1.) The application is allowed.
2.) The decision of the IOC Executive Board dated 1 February 2002 that it would not accept Mr. Sandis Prusis’ inscription for the XIX Olympic Winter Games in Salt Lake City is set aside.
3.) Mr. Sandis Prusis is eligible to participate in the XIX Olympic Winter Games in Salt Lake City.

CAS ad hoc Division (OG Athens) 04/003 Torri Edwards v. International Association of Athletics Federations (IAAF) & USA Track & Field (USATF)

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• Athletics
• Doping (nikethamide)
• CAS ad hoc Division power of review
• Exceptional circumstances
• Negligence
• Sanction

1. The limitation in the IAAF Rules of the scope of review by CAS is not in line with Article 16 of the CAS ad hoc Rules, under which the Panel shall have unrestricted authority to review the facts and the law. It is also not in line with the WADA Code and, in particular, with the IAAF’s commitment thereunder to “incorporate (…) without any substantive changes”, inter alia, Article 13 (Appeals) of that Code.

2. Under the IAAF Rules, the exceptional circumstances provisions can only apply either when there is “no fault or no negligence”, as defined, in which case the athlete may have the period or ineligibility “eliminated”. Alternatively, if the athlete can demonstrate that there is “no significant fault or no significant negligence”, as defined, then the period of ineligibility may be reduced but the reduced period may not be less than half the minimum period of ineligibility otherwise applicable.

3. There is an obligation and a duty on an elite athlete to ensure that no prohibited substance enters his/her body, tissues or fluid. There is negligence in failing to inquire or ascertain whether a product contains a prohibited substance. The negligence (at a minimum) of the athlete’s chiropractor who had access to the box which stated the substances contained in the product (including nikethamide) and to the leaflet which even contained a warning for athletes must be attributed to the athlete who uses him in supplying either a food source or a supplement. It would put an end to any meaningful fight against doping if an athlete was able to shift his/her responsibility with respect to substances which enter the body to someone else and avoid being sanctioned because the athlete himself/herself did not know of that substance.

4. In the fight against doping in sport, federations must be supported in their adoption of the WADA Code. Therefore, a sanction of two years of ineligibility in application of the newly promulgated IAAF rules is not inequitable even if all Olympic Movement sports athletes are currently not subject to the same sanction for the same type of doping offence because not all federations have yet implemented the WADA Code.

In June 2004 the United States Anti-Doping Agency (USADA) has reported and anti-doping rule violation against the Athlete Torrie Edwards after her sample tested positive for the prohibited substance Nikethamide.

Consequently on 10 August 2004 the American Arbitration Association (AAA) Panel decided in its final award to impose a 2 year period of ineligibility on the Athlete including disqualification of all her results.

Hereafter the Athlete appealed the AAA decision of 10 August 2004 with the CAS ad hoc Division.

The Appellant didn't contest the occurrence of the doping infraction or the fact that Nikethamide was detected in her body fluids, but she argued that exceptional circumstances exist that should allow her to have the sanction eliminated or reduced pursuant to IAAF Rules 40.2, 40.3 and 40.4.

The Panel has considered, and was entitled to consider the materials before the IAAF Doping Review Board, its decision and the submissions and additional evidence placed by the parties before the Panel to determine whether or not the decision under appeal was correct. The Panel is satisfied that the determination of the IAAF Doping Review Board is the correct decision according to the terms of the IAAF Rules.

On the basis of the facts and legal aspects, the ad hoc Division of the Court of Arbitration for Sport renders the following decision on 17 August 2004:

1.) The appeal by Ms Edwards is dismissed.

2.) The decision issued by the North American Court of Arbitration for Sport Panel dated 10 August 2004 is upheld.

CAS OG 04/004 David Munyasia v. International Olympic Committee

CAS ad hoc Division (OG Athens) 04/004 David Munyasia v. International Olympic Committee (IOC)

CAS arbitration N° CAS OG 04/004 Mr. David Munyasia vs International Olympic Committee (IOC)

Related case:

IOC 2004 IOC vs David Munyasia
August 10, 2004

• Boxing
• Doping (cathine)
• Jurisdiction of the CAS ad hoc Division in case of exclusion from the Olympic Games and withdrawal of the Olympic accreditation

If an appeal is lodged against a decision of exclusion from the Olympic Games and withdrawal of the Olympic accreditation, the jurisdiction of the CAS ad hoc Division is to confirm or reverse the decision of the IOC Executive Board. Any submission regarding deferral of the decision until further analysis of the urine had been undertaken and the implications thereof must be made before the International Federation within whose competence it is to further sanction or not sanction the athlete.

Mr. David Munyasia is a Kenyan Athlete competing in the boxing event at the Athens 2004 Olympic Games.

In August 2004 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance Cathine.

On 29 August 2004 the IOC Executive Board unanimously concluded that the Athlete had committed an anti-doping rule violation and decided to exclude the Athlete from the Athens 2004 Olympic Games. Thereupon the Board requested the International Boxing Association (AIBA) to consider any further action within its own competence.

Hereafter the Athlete appealed the IOC decision with the Court of Arbitration for Sport ad hoc Division.

The Athlete denied the use of prohibited substances during his career, he asserted that he was tested before without issues and that he had only used antibiotics.

The Panel finds that a doping offence has been established after a prohibited substance was founde in his samples and it cannot accept the request for deferral of the IOC-decision. Any submission regarding further lab analysis are properly made before the AIBA.

Therefore the CAS ad hoc Division confirms the IOC decision and decides on 15 August 2004 to reject the Athlete’s appeal.

CAS OG 06/001 World Anti-Doping agency (WADA) vs United States Anti-Doping Agency (USADA) & United States Bobsled & Skeleton Federation (USBSF) & Zachery Lund

• Skeleton
• Doping (Finasteride)
• No Significant Fault or Negligence
• Period of ineligibility resulting in the exclusion from the Olympic Games

1. The use of Finasteride which has been included on the WADA Prohibited list since 1 January 2005 as a masking agent constitutes a doping violation in breach of the USADA Protocol and of the FIBT Doping Control Regulations.

2. Under the FIBT Doping Control Regulations, in order to establish “No Fault or Negligence” an athlete has to show that he did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he had used the Prohibited Substance. It cannot seriously be argued that an athlete who realized (and has been told by his national federation) that he had to check the Prohibited List each year and who failed to look at the list at all for over a year had exercised the utmost caution. It is a failure not to continue to monitor the Prohibited List, in accordance with his duty as an athlete.

3. In order to establish “No Significant Fault or Negligence”, an athlete has to show that his fault or negligence, when viewed in the totality of the circumstances and taking into account the criteria for “No Fault or Negligence” was not significant in relation to the anti-doping rule violation. Once the test has been satisfied, the period of ineligibility can be reduced. An athlete has satisfied the test where he has shown to be an honest athlete, open and frank with his failure, who for a number of years regularly checked the Prohibited List but failed to do so one year continuing however to include on the Doping Control Form the information that he was taking medication. The fact that the information was not picked up by any anti-doping organisation until the positive test is relevant.

In January 2006 the United States Anti-Doping Agency (USADA) reported an anti-doping rule violation against the Athlete Zach Lund after his sample tested positive for the prohibited substance Finasteride.

Consequently on 22 January 2006 the Athlete admitted the violation and accepted the sanction of a warning and disqualification of his competition results.

Hereafter in February 2006 the World Anti-Doping Agency (WADA) appealed the USADA Decision with the CAS ad hoc Division. WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

USADA contended that the Athlete was not a cheat and that the Athlete was mislead by the contents of the FIBT website regarding the substance Finasteride. Further it asserted that the Athlete's doping test record and medical history demonstrated that the Athlete used the product for medical purposed.

By contrast the Panel established the athlete who realized (and has been told by his national federation) that he had to check the Prohibited List each year and who failed to look at the list at all for over a year had exercised the utmost caution, albeit that for several years previously he had scrutinised the list with care. It is his failure to continue to monitor the Prohibited List, in accordance with his duty as an athlete, that has placed the Athlete in his present predicament.

In these circumstances, the Panel concludes that the Athlete, on his own admission, an admission which was contained on the Doping Control Form, committed an anti-doping violation and cannot escape a period of ineligibility.

Therefore the ad hoc Division of the Court of Arbitration for Sport renders the following decision:

1.) The Appeal filed by the World Anti-Doping Agency on 2 February 2006 is allowed in part.

2.) The USADA Decision made on 22 January 2006 is overruled.

3.) Mr Lund’s period of ineligibility is for one year commencing on 10 November 2005 and concluding on 9 November 2006.

4.) WADA’s request for the disqualification of Mr Lund’s results after 10 November 2005 is rejected.

CAS ad hoc Division (OG Turin) 06/004 Deutscher Skiverband & Evi Sachenbacher-Stehle v. International Ski Federation (FIS)

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• Cross-country skiing
• Haemoglobin (Hb) value exceeding the threshold under the FIS Rules
• Alleged naturally high elevated level of Hb
• Application for a dispensation from the FIS Hb Rule

Since 2003 requests have been made each year to issue a dispensation for a naturally elevated high level of Haemoglobin (Hb) for this Athlete. All requests have been unsuccessful in persuading the FIS that this Athlete has a naturally high elevated level of Hb. FIS does agree that this Athlete does have a modestly elevated level of Hb but it is not sufficient to justify issuing a dispensation pursuant to Rule FIS B.4.8. Far be it for the CAS Panel to substitute its views to those of the experts who have declined to grant the dispensation to this Athlete for a naturally high elevated level of Hb over the past 3 years. The Panel is being asked to make a medical expert’s judgement through the guise of cancelling a Notification of Start Prohibition. It is not for the Panel to perform an evaluation similar to that contemplated by the FIS B.4.8, which would apply for the duration of theOlympic Games.

Ms Evi Sachenbacher-Stehle is a German Athlete selected to compete in the Women's Cross Country Skiing Events at the Turin 2006 Olympic Winter Games.

Following a blood screening/testing on 9 February 2006 that showed a level of haemoglobin above the maximum tolerated values, Ms Sachenbacher-Stehle was obliged by the FIS not to start any competitions for five consecutive days. As a result, the athlete would be forced to miss her first Olympic Games event on 12 February 2006.

Hereafter the German Ski Federation and the German cross-country skier Ms Evi Sachenbacher-Stehle filed an application in order to cancel the “Notification of Start Prohibition” issued by the International Ski Federation (FIS).

The athlete further asked the Panel to declare that the levels of haemoglobin were naturally elevated and had no connection with any haematological disease. The Panel refused to make a medical expert’s judgment and dismissed the application; moreover, it was convinced that the athlete did not have a naturally high level of haemoglobin.

On the basis of the facts and legal aspects, the ad hoc Division of the Court of Arbitration for Sport renders the following decision:

1.) The application filed by Ms Evi Sachenbacher-Stehle and Deutscher Skiverband against the International Ski Federation is denied.

2.) (…).