CAS 2004/A/766 IAA.F v/ Athletics Australia & Stuart Lyall

In December 2001 the Australian Athlete Stuart Lyall was arrested on criminal charges for using and trafficking cocaine and ecstasy (methylenedioxymethamphetamine - MDMA). In April 2003 the Athlete pleaded guilty to the criminal charges against him and in May 2003 he was convicted on a number of counts, including the use of cocaine and trafficking ecstasy.

As a consequence of the criminal charges also anti-doping rule violations were reported against the Athlete in September 2003 followed by a number of significant admissions made by the Athlete that substantially shortened the length and lowered the cost of the hearing.

On 20 August 2004 the Athletics Austria Doping Control Tribunal decided to impose a 2 year period of ineligibility on the Athlete for trafficking. On 1 October 2004 the Tribunal decided to reinstate the Athlete immediately due to exceptional circumstances in this case.

Hereafter in December 2004 the International Association of Athletics Federations (IAAF) appealed the decision of the Athletics Australia with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the decision of Athletics Australia Doping Control Tribunal of 1 October 2004 and to impose a lifetime period of ineligibility on the Athlete.

The IAAF contended that Athletics Australia has no jurisdiction to consider exceptional circumstances and to allow the Athlete’s early reinstatement.

Considering the IAAF 2000 Procedural Guidelines for Doping Control the Panel concludes that the Athletics Australia Tribunal did not have the power to reinstate the Athlete (ultra vires). In the IAAF Guidelines this power lies exclusively with the IAAF Council only.

Therefore the Court of Arbitration for Sport decides on 20 October 2005 that:

1.) The appeal filed by the IAAF on 7 December 2004 is granted.

2.) The AUS decision of 1 October 2004 is amended as follows: Mr Stuart Lyall shall be declared ineligible for life.

3.) All other claims are dismissed.

4.) This award is rendered without costs, except for the Court Office fee of CHF 500 paid by the IAAF, which is retained by the Court of Arbitration for Sport.

5.) Each party shall bear its own costs.

TAS 2004/A/769 Franck Bouyer c/UCI & AMA

CAS 2004/A/769 Franck Bouyer vs WADA & UCI

Related case:

CAS 2005_A_965 UCI vs WADA & Franck Bouyer
March 13, 2006

On 8 September 2004 the TUE Committee of the  International Cycling Union (UCI) did grant the application of the French cyclist Franck Bouyer for the use of the prescribed medication Modafinil as treatment for his diagnosed Narcolepsy. Thereupon the WADA TUE confirmed this decision on 26 October 2004.

Hereafter in November 2004 the Athlete appealed the UCI Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to grant his TUE Application for the use of the prescribed medication Modafinil as treatment for his condition.

Following assessment of the evidence and the Parties' arguments the Panel establishes that there were no grounds to grant the Athlete's TUE application. The Panel holds that the UCI and WADA TUE Committees decisions to reject his TUE application were valid.

The Panel finds that the Athlete had the burden to demonstrate that he was entitled to receive a TUE. Yet the Panel deems that the Athlete failed to establish that his medication does not improve sport performance.

Therefore on 8 September 2004 the Court of Arbitration for Sport decides that:

1.) The appeal of the athlete was rejected.

2.) The decision of the UCI of September 8, 2004, is upheld.

3.) The athlete has to pay the administration fee of CHF 500,-. to the CAS.

4.) Each party bears its own cost.

5.) Any other or further parts of the conclucions of the parties are rejected.

CAS 2004/A/777 ARcycling AG v/UCI

CAS 2004/A/777 ARcycling AG v. Union Cycliste Internationale (UCI)

• Cycling
• UCI Pro Tour
• Violations of procedural rights with a critical bearing on the outcome of the case
• Annulment of the decision issued by the UCI Licence
• Commission
• Denial of UCI Pro Tour licence unjustified

1. The fact not to respect one party’s rights to be heard and to obtain a fair proceeding before the adoption of the negative Preliminary Opinion constitutes a breach of the fundamental due process rights. However, according to the constant jurisprudence of the CAS, a procedural violation is not enough in and by itself to set aside an appealed decision; it must be ascertained that the procedural violation had a bearing on the outcome of the case. Whenever a procedural defect or unfairness in the internal procedure of a sporting body can be cured through the due process accorded by the CAS, and the appealed decision’s ruling on the merits is the correct one, CAS panels has no hesitation in confirming the appealed decision.

2. The procedural defects of the licensing procedure have however a critical bearing on the outcome of the same procedure if the involved party could for example have proven that it had organised its team in such a way as to combat doping effectively, thus avoiding the negative judgment on this issue before the Preliminary Opinion. The violations of one party’s fundamental procedural rights yield a ruling that is materially ungrounded and evidently unjustified.

3. The granting of a UCI ProTour Licence for a limited period of two years is proportionate taking into account the measures taken by the involved party to combat doping which will give the opportunity this party to demonstrate, as far as required, that there was in fact no connection between its riders’ high blood values and adverse analytical findings and its internal organisation, and to confirm that the team can reach the level of excellence necessary for the UCI ProTour.

ARcycling AG (the Appellant) is a Swiss limited company, having its seat in Hombrechtikon, Switzerland, the purpose of which is to operate professional cycling teams. The Appellant’s cycling team is sponsored by and named after the company Phonak Hearing Systems (the Phonak team).

In 2004 blood tests riders of the Phonak team showed average higher blood values for haematocrit and reticulicytes. The rider Oscar Camenzind tested positive for EPO and the rider Santiago Perez tested positive for blood transfusions. The rider Tyler Hamilton tested positive for blood transfusions and also his samples collected at the 2004 Olympic Games tested positive. Consequently ARcycling terminated the contracts with the riders Tyler Hamilton and Santiago Perez.

As a result of these doping cases in the Phonak team, the UCI Licence Commission in its final decision dated 22 November 2004 rejected the ARcycling's application for a UCI ProTour Licence. Hereafter in December 2004 ARcycling's appealed the UCI rejection with the Court of Arbitration for Sport (CAS).

After hearing the positions of the parties, the CAS Panel deems that the granting of a UCI ProTour Licence for a period of two years is proportionate. Such measure will give the opportunity to ARcycling to demonstrate, as far as required, that there was in fact no connection between its riders’ high blood values and adverse analytical findings and its internal organisation, and to confirm that the team can reach the level of excellence necessary for the UCI ProTour.

In any event, the Regulations allows the Licence Commission to withdraw the ProTour licence at any moment should the team no longer comply with the conditions set out by art. 2.15.040.114.

For those reasons, the Panel accepts the ARcycling’s application and, considering in particular some events of the year 2004 in light of the criterion no. 8 of art. 2.15.011 of the Regulations, holds that the granting of a UCI ProTour licence for two years is appropriate.

Therefore the Court of Arbitration for Sport decides on 31 January 2005 that:

1.) The appeal filed by ARcycling AG on 15 December 2004 is upheld.

2.) The appealed decision issued on 22 November 2004 by the Licence Commission of the Union Cycliste Internationale is set aside.

3.) The application of ARcycling AG for the obtainment of a UCI ProTour Licence for the Phonak Hearing System team is accepted, and a UCI ProTour Licence is granted to it for a period of two years, namely for the cycling seasons 2005 and 2006.

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

5.) (…)

CAS 2004/O/645 USADA vs Tim Montgomery

CAS 2004/O/649 USADA vs Chryste Gaines

Related cases:

• CAS 2004_O_645 USADA vs Tim Montgomery & IAAF
  December 13, 2005
• CAS 2004_O_645 USADA vs Tim Montgomery - Award on Jurisdiction
  February 9, 2005

1. On 9 November 2004, the Panel confirmed in writing various procedural orders rendered orally during a procedural hearing on 1 November 2004. As agreed during the 1 November 2004 hearing and as set out in the Panel's 9 November 2004 Order, a detailed procedural timetable for the conduct of these proceedings was established.

2. On 24 December 2004, the Panel issued an Award on Jurisdiction, without reasons, in which it affirmed both USADA's authority to bring these cases against Respondents and its own jurisdiction to hear the cases. The Panel's reasons in support of that award were issued on 9 February 2005.

3. included in the procedural timetable confirmed on 9 November 2004 was a procedure for the briefing and hearing, as preliminary issues, of Respondents' motions concerning certain evidentiary matters as well as concerning the dismissal of certain of the claims brought against them by USADA.

Hereafter both parties filed their submissions and thereupon a hearing on the parties' evidentiary and procedural motions was held in order to settle these issues.

Accordingly on 4 March 2005 the Court of Arbitraton:

1.) Confirms the procedural directions set out above in Part II.A (paragraphs 8 et seq) of the present Decision;

2.) Remains seized and reserves judgement in respect of Respondents' Motions to Exclude Certain Exhibits;

3.) Grants Respondent Gaines' request for the dismissal of USADA's claims against her for alleged violations of lAAF Rule 56.4;

4.) Dismisses without prejudice all other elements of Respondents' Motions to Dismiss Certain Claims and Charges; and

5.) Declares that the costs associated with Respondents' Motions that are the subject of the present Decision will be taken into account in the final award to rendered by the Panel in each of their cases.

CAS 2004/O/645 United States Anti-Doping Agency (USADA) v. M. & International Association of Athletics Federation (IAAF)

• Athletics
• Doping (THG)
• Absence of any adverse analytical finding (“non-analytical positive” case)
• Burden and standard of proof
• Uncontroverted testimony
• Adverse inference
• Admission of the use of a prohibited substance
• Sanction

1. USADA bears the burden of proving, by strong evidence commensurate with the serious claims it makes that the athlete committed the doping offences. It makes little, if indeed any difference, whether a „beyond reasonable doubt‟ or „comfortable satisfaction‟ standard is applied to determine the claims against the athlete.

2. Doping offences can be proved by a variety of means. In the absence of any adverse analytical finding (“non-analytical positive” cases), other types of evidence can be substantiated. Among these is the uncontroverted testimony of a wholly credible witness, which can be sufficient to establish that the athlete has indeed admitted to have used prohibited substances in violation of applicable anti-doping rules.

3. The admission of the use of prohibited substances merits a period of ineligibility under IAAF Rules of two years. The date of commencement of the sanction takes into consideration the numerous delays in the hearing process which are not attributable to the Athlete. The retroactive cancellation of all the athlete results, rankings, awards and winnings as of the date of admission of the use of prohibited substances has to take place.

In June 2004 USADA seeks a four-year sanction of the Athlete Tim Montgomery for participating in a wide-ranging doping conspiracy implemented by the Bay Area Laboratory Cooperative (BALCO). USADA charges that, for a period of several years, the Athlete had used various performance-enhancing drugs provided by BALCO.

Althought Montgomery has never had a single drug test found to be a positive doping violation, the charges made by USADA are based on:

• all of the blood and urine tests he had provided in recent years;
• documents seized by the U.S. government from BALCO that have been delivered to USADA;
• statements made by BALCO officials and other documents.

USADA contended that BALCO was involved in a conspiracy for the purpose of the distribution and use of doping substances and techniques. They were either undetectable or difficult to detect in routine drug testing.

Further BALCO is alleged to have distributed several types of banned doping agents to professional athletes in track and field, baseball and football. Among these agents were tetrahydrogestrinome (THG), otherwise known as “the Clear” by BALCO and its users.

THG is a designer steroid that could not be identified by routine anti-doping testing until 2003, when a track and field coach provided a sample of it to USADA. It is undisputed that the Clear is a prohibited substance under the IAAF Rules.

After deliberations between the parties this case was transferred in July 2004 to the Court of Aribitration for Sport (CAS).

The Panel has no doubt in this case, and is more than comfortably satisfied, that the Athlete committed the doping rule violation in question. It has been presented with strong, indeed uncontroverted, evidence of doping by the Athlete.

The Panel establishes that there is an admission contained in his statements made to W. and to others while in her presence. On this basis, the Tribunal finds that the Athlete Tim is Montgomery guilty of a doping offence.

Therefore on 13 December 2005 the CAS Panel decides that:

1.) Respondent is guilty of the offence of admitting having used a prohibited substance under IAAF Rules 55.2(iii) and 60.1(iii).

2.) The following sanctions shall be imposed on Respondent:

• a) A period of ineligibility under IAAF Rules for two years commencing as of 6 June 2005, including his ineligibility from participating in U.S. Olympic, Pan American or Paralympic Games, trials or qualifying events, being a member of any U.S. Olympic, Pan American or Paralympic Games team and having access to the training facilities of the United States Olympic Committee (“USOC”) Training Centers or other programs and activities of the USOC including, but not limited to, grants, awards, or employment pursuant to the USOC Anti-Doping Policies;
• b) The retroactive cancellation of all awards or additions to Respondent's trust fund to which he would have been entitled by virtue of his appearance and/or performance at any athletics meeting occurring between 31 March 2001 and the date of this Award.

3.) (…).

4.) (…).

5.) This Award deals definitively with all charges brought against Respondent by Claimant in this arbitration. All charges not expressly dealt with herein are dismissed.

CAS 2004/O/649 USADA vs Chryste Gaines - Award on Jurisdiction

On 24 December 2004, the Court of Arbitration for Sport Panel rendered its unanimous decision on Respondents' Motion. The Panel unanimously dismissed Respondents' Motions and affirmed the jurisdiction of the CAS in both of the present cases.

The Panel has considered carefully the many documents submitted by the parties which describe and define the rights and responsibilities of the various bodies involved in doping control and adjudication in the United States, and which establish the framework for the exercise of those rights and responsibilities, including the arbitration of disputes.

The Panel has also reviewed the legal authorities filed by the parties and drawn to the Panel's attention during the 15 December 2004 hearing. In those undertakings, the Panel has been greatly assisted by the cogent, albeit conflicting, submissions made by the parties' counsel in writing and orally.

The Panel is unanimously of the opinion that both the letter and spirit of the various understandings, agreements and protocols binding on the relevant sport bodies and their members and athletes, support the conclusion that the authority and responsibility to prosecute the present cases resides in USADA. In particular, the Panel rejects the Respondents' claim that non-analytical positive doping cases could only be prosecuted, in the circumstances of these cases, by USATF.

The notional division of anti-doping responsibilities that Respondents postulate, as between USATF and USADA, does not accord with the facts. USADA was established as an independent entity with responsibility over doping control and adjudication. That responsibility extends beyond "drug testing" and covers all cases of alleged doping violations. It possessed, and possesses, full authority to prosecute these cases.

For all of the foregoing reasons, the Court of Arbitration for Sport hereby decides on 9 February 2005:

1.) The Respondents' Motions to Dismiss for Lack of Jurisdiction filed respectively by Mr. Montgomery on 12 November 2004 and Ms. Gaines on 15 November 2004 are dismissed;

2.) The jurisdiction of the CAS in cases no. 2004/O/645 and 2004/O/649 is affirmed.

CAS 2004/O/649 United States Anti-Doping Agency (USADA) v. G.

• Athletics
• Doping (THG)
• Absence of any adverse analytical finding (“non-analytical positive” case)
• Burden and standard of proof
• Uncontroverted testimony
• Adverse inference
• Admission of the use of a prohibited substance
• Sanction

1. USADA bears the burden of proving, by strong evidence commensurate with the serious claims it makes that the athlete committed the doping offences. It makes little, if indeed any difference, whether a ’beyond reasonable doubt’ or ’comfortable satisfaction’ standard is applied to determine the claims against the athlete.

2. Doping offences can be proved by a variety of means. In the absence of any adverse analytical finding (“non-analytical positive” cases), other types of evidence can be substantiated. Among these is the uncontroverted testimony of a wholly credible witness, which can be sufficient to establish that the athlete has indeed admitted to have used prohibited substances in violation of applicable anti-doping rules.

3. The admission of the use of prohibited substances merits a period of ineligibility under IAAF Rules of two years. The date of commencement of the sanction takes into consideration the numerous delays in the hearing process which are not attributable to the Athlete. The retroactive cancellation of all the athlete results, rankings, awards and winnings as of the date of admission of the use of prohibited substances has to take place.

In June 2004 USADA seeks a four-year sanction of Chryste Gaines for participating in a wideranging doping conspiracy allegedly implemented by the Bay Area Laboratory Cooperative (BALCO).

USADA charges that, for a period of several years, Ms. Gaines used various performance-enhancing drugs provided by BALCO. As noted, Ms. Gaines has never had a single drug test found to be a positive doping violation, but USADA’s charges are based, in part, on all of the urine tests at IOC-accredited and non-IOC-accredited laboratories that she has had in recent years.

USADA also relies, among other things, on documents seized by the U.S. government from BALCO that have been provided to USADA; statements made by BALCO officials; and other documents.

According to USADA, BALCO was involved in a conspiracy the purpose of which was the distribution and use of doping substances and techniques that were either undetectable or difficult to detect in routine drug testing. BALCO is alleged to have distributed several types of banned doping agents to professional athletes in track and field, baseball and football. Among these were tetrahydrogestrinome (THG), otherwise known as “the Clear” by BALCO and its users.

THG is a designer steroid that could not be identified by routine antidoping testing until 2003, when a track and field coach provided a sample of it to USADA. It is undisputed that the Clear is a prohibited substance under the IAAF Rules.

After deliberations between the parties this case was transferred in July 2004 to the Court of Aribitration for Sport (CAS).

The Panel has no doubt in this case, and is more than comfortably satisfied, that Ms Gaines committed a doping offence. It has been presented with strong, indeed uncontroverted, evidence of doping by the Athlete, in the form of an admission contained in her statements made to W. On this basis, the Tribunal finds Respondent guilty of a doping offence.

On 13 December 2015 the Panel unanimously finds and orders as follows:

1.) Respondent is guilty of the offence of admitting having used a prohibited substance under IAAF Rules 55.2(iii) and 60.1(iii).

2.) The following sanctions shall be imposed on Respondent:

• a.) A period of ineligibility under the IAAF Rules for two years commencing as of 6 June 2005, including her ineligibility from participating in U.S. Olympic, Pan American or Paralympic Games, trials or qualifying events, being a member of any U.S. Olympic, Pan American or Paralympic Games team and having access to the training facilities of the United States Olympic Committee (USOC) Training Centers or other programs and activities of the USOC including, but not limited to, grants, awards, or employment pursuant to the USOC Anti-Doping Policies;
• b.) The retroactive cancellation of all awards or additions to Respondent‟s trust fund to which she would have been entitled by virtue of her appearance and/or performance at any athletics meeting occurring between 30 November 2003 and the date of this Award.

3.) (…).

4.) (…).

5.) This Award deals definitively with all charges brought against Respondent by Claimant in this arbitration. All charges not expressly dealt with herein are dismissed.

CAS 2004/O/679 USADA v/Bergman

In July 2004 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the cyclist Adam Bergman after his A and B samples tested positive for the prohibited substance recombinant human erythropoietin (rhEPO).

After notification a provisional suspension was ordered. USADA deemed that Athlete had committed an anti-doping rule violation. Thereupon the Athlete did not accept the proposed fine and the sanction of a 2 year period of ineligibility.

Hereafter in August 2004 the Parties requested for arbitration with the Court of Arbitration for Sport (CAS).

Undisputed between the Parties is that rhEPO is a prohibited substance. However the only contested issue is what are the acceptable criteria for calling a sample positive for rhEPO.

The Athlete denied that he had committed an anti-doping rule violation because USADA had ignored the fact that he has not been tested positive according to the universally recognized BAP standard of 80%. He asserted that USADA was improperly relying on other criteria to establish a positive test.

After examining and considering all the evidence, the Panel is comfortably satisfied that the Athlete's sample contalned the prohibited substance rhEPO. Accordingly the Panel finds that the Athlete is guilty of a doping vlolation under the UCI Antidoping Regulations.

Further the Panel considers that the Athlete failed to explain how the prohibited substance had entered his system and thereupon tested positive for rhEPO. The Panel can only conclude that the Athlete intentionally had used rhEPO.

Therefore the Court of Arbitration for Sport decides on 13 April 2005 that:

1.) The Respondent Adam Bergman is guilty of a doping offence under the UCI Antidoping Regulations applicable in April 2004.

2.) The Respondent is declared ineligible for a period of two years under article 261 of the new 2004 UCI Antidoping Regulations. The period of ineligibilty commenced 23 July
2004 and ends on 22 July 2006, having taken account of the provisional suspension already being served by the Respondent.

3.) The costs of the present arbitration, to be determined and notifled to the parties by the Secretary General of CAS, shall be borne by USADA.

4.) Each party shall bear its own costs.