CAS 2005/A/908 World Anti-Doping Agency (WADA) v. Coetzee Wium

• Paralympic powerlifting
• Doping (testosterone)
• Departures from standards with regard to transportation, collection and testing
• Burden to establish the cause of the Adverse Analytical Finding
• Standard of proof required by CAS

1. In a case where departures from the WADC International Standard for Testing and/or the WADA Technical Documents for Laboratory Analysis are established, the question a CAS panel has to answer is: “Do these deviations cast sufficient doubt on the reliability of the test results to an extent that the finding of a Prohibited Substance in the athlete’s urine was not sufficient to establish a doping offence to the comfortable satisfaction of the Panel”?

2. If an athlete establish that departures occurred during transportation, collection and/or testing, then the Anti-Doping Organisation shall have the burden to establish that such departures did not cause the Adverse Analytical Finding.

3. The standard of proof required by CAS in all such cases is comfortable satisfaction, that is, greater than mere balance of probability but less than proof beyond a reasonable doubt.

On 14 March 2005 the IPC Anti-Doping Committee decided to impose a 2 year period of ineligibility on the South African Parathlete Coetzee Wium after he tested positive for the prohibited substance Testosterone with a T/A ratio above the WADA threshold.

Thereupon on 2 May 2005 the IPC Management Committee decided to reinstate the Parathlete because a significant departure of the ISTI had occurred.

The IPC deemed that the chain of custody was broken because following the sample collection the Parathlete's samples were left unattended for 45 minutes, during which time they sealed Berlinger Test Kit had been moved around by a cleaning lady. Accordingly the IPC could not establish, on the balance of probabilities, that these events had not caused the Adverse Analytical Finding.

Hereafter in June 2005 the World Anti-Doping Agency (WADA) appealed the IPC Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

The Parathlete asserted that departures from standards occurred with regard to transportation, collection and testing. He argued that the case was conducted far away from standards.

WADA admitted that a departure from standards did occur, but holds that this was of minor significance and that, by no means, did this departure have any impact on the result of the IPC establishing an Adverse Analytical Finding for Testosterone in the Parathlete’s sample.

Following assessment of the evidence the Panel determines that:

• The delayd pick-up by DHL of the Athlete's samples resulting in a delay of one day could not cast any doubt on the reliability of test results under the given circumstances.
• The athlete could not rebut the presumption that a WADA-accredited laboratory conducted Sample Analysis and custodial procedures in accordance with the WADC International Standard for Laboratories.
• No departure from the International Standard, which would undermine the validity of the Adverse Analytical Finding, was established, once the exogenous origin of the Prohibited Substance had become clear.

Therefore the Court of Arbitration for Sport decides on 25 November 2005 that:

1.) The appeal filed by WADA on 21 June 2005 is upheld.

2.) The decision of the IPC Management Committee of 2 May 2005 is annulled.

3.) Coetzee Wium is sanctioned under art. 12.2 IPC Anti-Doping Code by a two (2) years ineligibility period, which starts on the date of this decision. The period of suspension from 13 December 2004 – 2 May 2005 shall be credited against the total period of ineligibility to be served.

4.) Coetzee Wium is sanctioned under art. 12.7 IPC Anti-Doping Code by the disqualification of all competitive results obtained by Coetzee Wium from 13 December 2004. This includes forfeiture of any medals, points and prizes.

(…).

CAS 2005/A/918 K. v. FIS

CAS 2005/A/918 Kowalczyk v/ FIS

• Cross-country skiing
• Doping (glucocorticosteroid)
• Erroneous classification of Dexamethason
• Unilateral and procedurally incorrect attempt by the FIS
• Doping Panel to reconsider the doping offence
• Difference of the sanctioning regimes contained in Art. 10.2 and 10.3 FIS-Rules
• Burden of proof
• Measure of the athlete's negligence

1. If an ineligibility sanction is to be considered in an Article 10.3 FIS-Rules, “first violation” case, the penalty reduction possibility set forth in Article 10.5 FIS-Rules cannot supersede, exclude or otherwise diminish the right also granted to the athlete under Article 10.3 FIS-Rules to plead against its imposition.

2. The Article 10.5.1 FIS-Rules defence of “no Fault or Negligence” must always be available to the accused athlete, regardless of whether an Article 10.2 FIS-Rules or an Article 10.3 FIS-Rules sanction is applicable. With regard to the Article 10.5.2 FIS-Rules defence of “no significant Fault or Negligence”, however, it would contradict the ratio legis of the “no enhancement” defence under Article 10.3 FIS-Rules if the reduction limit under Article 10.5.2 FIS-Rules (“not less than one half of the minimum period”) were to apply in parallel to the minimum “warning and reprimand” penalty for the first violation involving a Specified Substance.

3. Upon the athlete’s prima facie showing that her use of the substance was for medical reasons and was not intended to enhance performance, the burden of proof shifted to the FIS to prove the contrary, namely that the athlete used this substance as a doping agent. In order to provide this rebuttal, the FIS Doping Panel should have revoked its decision and called for a new hearing of the merits of the dispute on the basis of Article 10.3 FIS-Rules.

4. The athlete’s negligence derives not from any ignorance of the prohibited nature of Dexamethason; her negligence lies rather in her lack of knowledge and application of the proper TUE procedures for the Specified Substance in question. The measure of this negligence does not justify a one year term of ineligibility.

In February 2005 the International Ski Federation (FIS) has reported an anti-doping rule violation against the Athlete after her sample tested positive for the prohibited substance Dexamethasone without a TUE.

The Athlete admitted the violation and explained that she and her doctor had already completed an Abbreviated Therapeutic Use Exemption (ATUE) form in December 2004 which she alleges to have submitted to the Polish Ski Association, but neglected to show to the testing authorities at the time of the doping control in January 2005. Following the notification of the violation the Athlete's application for a TUE was rejected in March 2005 by the Therapeutic Use Exemption Committee (TUEC).

Considering the Athlete's negligence the FIS Doping Panel decided on 13 June 2005 to impose a 2 year period of ineligibility on the Athlete.

Hereafter the Athlete appealed the FIS decision with the Court of Arbitration of Sport (CAS). Yet, at the same time the FIS Doping Panel had decided on 12 July 2005 to impose a new reduced sanction of 1 year instead of the imposed 2 years of ineligibility.

The CAS Panel holds that the one year period of ineligibility unilaterally imposed by the FIS Doping Panel has not only deprived the Athlete of her fundamental right to a fair hearing, but it also does not stand in fair and just proportion to the measure of her negligence. The Panel holds that a period of ineligibility ending 8 December 2005 provides the fair and proportionate measure of sanction.

Therefore on 8 December 2005 the Court of Arbitration for Sport decides:

1.) The decision rendered by FIS Doping Panel on 13 June 2005 and amended by its announcement of 13 July 2005 shall be replaced by a de novo decision on the merits of this case.

2.) The Appellant is disqualified from all individual results obtained in the U23 OPA Intercontinental Cup Competition held on 23 January 2005. The period of ineligibility to be imposed upon the Appellant shall commence on 23 January 2005 and shall end on 8 December 2005.

(…)

CAS 2005/A/923 WADA vs Danilo Hondo & Swiss Olympics

CAS 2005/A/926 UCI vs Danilo Hondo & Swiss Olympics
January 10, 2006

Related case:

Swiss Federal Court 4P.148_2006
January 10, 2007

In March 2005 the International Cycling Federation (UCI) has reported an anti-doping rule violation against the Athlete Danilo Hondo after his A and B samples tested positive for the prohibited substance Carphedon. After notification by Swiss Cycling the Athlete was heard for the Disciplinary Chamber for Dopingcases of Swiss Olympic.

On 2 June 2005 the Disciplinary Chamber decided to impose 2 year period of ineligibility on the Athlete, with 1 year suspended for a 5 year period. Also the Disciplinary Chamber sanctioned the Athlete with a CHF 50,000 fine and ordered to pay CHF 5,000 for the procedural costs.

Hereafter in July 2005 the Athlete, UCI and WADA appealed the Swiss Olympic decision of 2 June 2005 with the Court of Arbitration for Sport (CAS).

Considering the Athlete’s arguments the Panel finds that:

• no departure from the ISL occurred in this case;
• the Athlete failed to establish how the substance entered his system and
• failed to establish grounds for reduction of the sanction.

Considering the arguments of UCI and WADA, the Panel concludes that the UCI Anti-Doping Rules doesn’t allow the imposition by Swiss Olympics of a suspended sanction, nor the possibility to fine an Athlete guilty of an anti-doping rule violation.

Therefore the Court of Arbitration for Sport Panel decides 9 March 2007:

1.) to allow the WADA appeal;

2.) to allow the UCI appeal;

3.) to dismiss the appeal of the Athlete Danilo Hondo;

4.) to set aside the decision of the Disciplinary Chamber for Dopingcase of Swiss Olympic of 2 June 2005;

5.) to impose a 2 year period of ineligibility on the Athlete, starting on 1 April 2005 until 31 March 2007.

CAS 2005/A/925 Laura Dutra de Abreu Mancini de Azevedo v/ FINA

In May 2003 the Brazilian Water Sports Confederation (CBDA) imposed a 2 year period of ineligibility on the Athlete Laura Dutra de Abreu Mancini de Azevedo after her A and B samples tested positive for the prohibited substances Stanozolol, Nortestosterone and Methyltestosterone.

On 16 September 2003 the CBDA decided to lift the suspension after the civil court in Rio de Janeiro had ordered the CBDA that as a provisional measure the suspension should be lifted.

On 15 January 2004 the Court of Arbitration for Sport (CAS) Panel decided (CAS 2003/A/510) to uphold the 2 year period of ineligiblility imposed by the CBDA on the Athlete.

Previously in December 2003 the Athlete, FINA and CBDA had signed an agreement with the stipulations that the Athlete can compete when she is not sanctioned by CAS, or when sanctioned she will serve the 2 year period of ineligibility.

Despite this agreement and the CAS decision the Athlete did not withdraw her claim before the Brazilian courts and she continued to participate in swimming competitions in Brazil.

In June 2004 the CBDA reported to the International Swimming Federation (FINA) that the Athlete’s had refused to submit to sample collection at a competition in Brazil. Consequently on 21 April 2005 the FINA Doping Panel decided to impose a liftetime ineligibility on the Athlete for her second anti-doping rule violation.

Hereafter in July 2005 the Athlete appealed with CAS and requested the Panel to set aside the FINA decision of 21 April 2005.

The Athlete argued that she had not committed the first doping violation in 2003 for which she was sanctioned by a two-year suspension. Her innocence notably had been established by the DNA tests relating to the May 2003 A and B samples.

She asserted that she had refused sample collection during the Winter State Swimming Championships on 6 June 2004, yet merely demanded that the test involve a different laboratory than LADETEC, whose previous test results she had questioned as part of her action pending in the Brazilian courts.

As a result she argued that she cannot be deemed to have committed a second violation. Also she disputed the irregularities during the sample collection in June 2004 where she refused to provide a sample.

FINA argued that the Athlete’s refusal has been established and admitted by the Athlete. The Athlete has no right to to choose the laboratory whereas the LADETEC is a WADA accredited laboratory to conduct doping control.

Following assessment of the case the Panel determines that:

• The Athlete failed to provide a sample and without compelling justification she committed an anti-doping ruleviolation, which is her second violation.
• The Athlete disregarded her own written agreement of 11 December 2003 to respect any period of ineligibility to which she might be sanctioned by CAS (CAS 2003/A/510).
• Aggravating circumstances re-emphasises the finding that a lifetime ban is not disproportionate.

Therefore the Court of Arbitration for Sport decides on 24 January 2006:

1) The appeal by Ms Azevedo is dismissed.

2) The award is pronounced without costs, except for the court-office fee of CHF 500 (five hundred Swiss Francs) already paid by the Appellant and to be retained by the CAS.

3) Each party shall bear its own costs.

CAS 2005/A/936 UCI v/ Bakker & KNWU

Related cases:

• CAS 2005/A/969 Erwin Bakker vs KNWU & UCI
  Mai 5, 2006
• Swiss Federal Court 4A_237_2010 Erwin Bakker vs UCI
  October 6, 2010
• ECHR 7198/07 Erwin Bakker vs Switzerland
  September 26, 2019

In April 2005 the Royal Dutch Cycling Federation (KNWU) has reported an anti-doping rule violation against the cyclist Erwin Bakken after his A and B samples - provided in Spain in March 2005 - tested positive for the prohibited substance testosterone with a T/E ratio above the WADA threshold.

However on 1 July 2005, the KNWU Anti-Doping Committee decided to acquit the Athlete from any charges related to an anti-doping rule violation.

Hereafter in August 2005 the UCI appealed the KNWU decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

In view of the evidence the Panel is of the opinion that the Laboratory complied with the procedures set by the UCI Anti-Doping Rules and provided two results that showed that a prohibited substance was found in the Athlete’s urine and such substance was of exogenous origin.

The Panel rejected the Athlete's argument concerning the lack of complementary research. The Laboratory conducted the GC/C/IRMS analysis and that shall be considered as the complementary research.

Further the Panel rejected the Athlete's contention that intense exercise can cause an important variation of the level of endogenous testosterone. In this matter the Panel relies on the GC/C/IRMS analysis that established that the testosterone found in the Athlete’s urine was of exogenous origin.

Therefore the Court of Arbitration for Sport decides on 20 april 2006:

1.) The appeal filed by Union Cycliste Internationale is upheld.

2.) The decision of the Koninklijke Nederlandsche Wielren Unie’s Anti-Doping Commission dated 1 July 2005 is annulled.

3.) Mr Erwin Bakker is disqualified from the “Vuelta Internacional a Valladolid 2005” and any other race in which he competed between 26 March 2005 and 2 February 2006.

4.) Mr Erwin Bakker shall be declared ineligible for competition for two years, commencing on 2 February 2006.

5.) The award is rendered without costs, except for the Court Office fee of CHF 500 which is retained by the CAS.

6.) Koninklijke Nederlandsche Wielren Unie shall contribute the amount of CHF 2000 to the legal fees and other expenses incurred by Union Cycliste Internationale in connection with the proceedings.

CAS 2005/A/946 IAAF v/ FIDAL & Marco Giungi

On 25 May 2005 the National Judging Commission of the Italian Athletics Federation (FIDAL) decided to close the case against the Athlete Marco Guingi after his A and B samples tested positive for the prohibited substances 19-norandrostenedione and 19-norandrosterone (Nandrolone). Established were exceptional circumstances in this case due to the Athlete non intentially had used contamined supplements.

Hereafter in August 2005 the International Association of Athletics Federations (IAAF) appealed the FIDAL decision of 25 May 2005 with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to impose a 2 year period of ineligibility on the Athlete for committing an anti-doping rule violation.

The Athlete requested to dismiss the IAAF appeal because the IAAF had to apply its appeal with the FIDAL Appeals Commission and not with CAS and argued that no sanction had te be imposed on him on the basis of exceptional circumstances.

The Panel finds that under IAAF and FIDAL Rules, IAAF had no right to appeal the FIDAL decision of 25 May 2005 with CAS. Because the IAAF had the right to appeal the FIDAL Commission decision with the Federal Appeals Commission, but did not do so, this case ended when the time limit to make such an appeal expired.

The IAAF therefore did not have the right to make this appeal to CAS. The Panel concludes that, due to lack of jurisdiction of the Court of Arbitration for Sport, the appeal filed by the lAAF shall be dismissed.

Therefore the Court of Arbitration for Sport decides on 2 March 2006 to dismiss the IAAF appeal of 15 August 2005 against the FIDAL decision of 25 May 2005.

CAS 2005/A/951 Guillermo Cañas v. ATP Tour, revised award of 23 May 2007

Related case:

• ITF 2005 ATP vs Guillermo Cañas
  August 7, 2005
• Swiss Federal Court 4P.172_2006 Guillermo Cañas vs ATP Tour & CAS
  22 March 2007

• Tennis
• Doping (hydrochlorothiazide)
• Burdens and standards of proof
• Duty of utmost caution
• Level of fault or negligence

1. Under the ATP Rules, once it has been established that a Prohibited Substance was present in the player’s specimen, there is a Doping Offense. The burden of proof then shifts to the player to establish by a balance of probability, first how the prohibited substance entered his system, and second that he bears No Fault or Negligence, or in the alternative No Significant Fault or Negligence, for the Doping Offense in order for the two years period of ineligibility to be eliminated or reduced.

2. A player is being clearly negligent when relying blindly on the system set up to take care of him at a Tournament site, assuming that it is foolproof. The player has a duty of utmost caution after visiting the Tournament doctor, when actually ingesting medications. It would be normal for him to rely on the trustworthiness and knowledge of the Tournament doctor if the doctor handed the medications to him, but any professional athlete these days has to be wary when, as in this case, he receives medications which, he knows, have gone through several hands. Thus, the player cannot establish that he bears No Fault or Negligence for the Doping Offense.

3. What is determinative of the level of fault or negligence is not only what the player actually knew or expected but also what he could have suspected.

In March 2005, the Association of Tennis Professionals (ATP) has reported an anti-doping rule violation against the Athlete Guillermo Cañas after his A and B samples tested positive for the prohibited substance hydrochlorothiazide (HCT). After notification the Athlete was heard for the ATP Anti-Doping Tribunal.

The Athlete stated that he had no idea how he took the prohibited substance. Arriving at the tournament he suffered from a sore throat and symptoms of a cold or influenza. He went for a prescription at the offices of the ATP physicians and before using he didn't read the label.

The Athlete argued that it is likely that the prescription of the ATP physicians is the source of the contamination, which would mean the ATP is the origin of the contamination. The small amounts of the prohibited substances prove it was not taken to eliminate other doping substances. The urine was insufficiently diluted to have traces of other substances, this is a technical violation of the Anti-Doping

The ATP Tribunal concluded that not has been established how the prohibited substance had entered his body. There is no evidence that the contamination is caused by the medicine he claimed to have used. He also didn’t reseach the ingredients of the medication before using. Therefore the ATP Anti-Doping Tribunal decided on 7 August 2005 to impose a 2 year period of ineligibility on the Athlete, starting on 11 June 2005.

Hereafter in August 2005 the Athlete appealed the ATP decision of 7 August 2005 with the Court of Arbitration for Sport (CAS).

Considering the evidence and statements the Panel finds that the Athlete has established that he bears No Significant Fault or Negligence in this exceptional case although he acted negligently in ingesting a banned substance.

The majority of the Panel rejected the Athlete’s arguments regarding EU law. Assuming that EU law would be applicable to the present case, as alleged by the Athlete and such application of EU law has not been specifically agreed by the parties, the Panel is of the view that the present decision does not violate EU law.

Thefore the Court of Arbitration for Sport decides on 23 May 2007:

1.) The appeal filed by the Athlete Mr Guillermo Cañas on 29 August 2005 is partially upheld.

2.) Mr Guillermo Cañas has committed a Doping Offense during the “Abierto Mexicano de Tenis” held in Acapulco, Mexico on 21 February 2005 and his results from the competition shall be disqualified. Any prize money collected at such Tournament not previously returned to ATP Tour shall be returned to ATP Tour within 7 days of the date of this award.

3.) Mr Cañas shall be ineligible to compete on the ATP Tour for the fifteen months period beginning from 11 June 2005.

4.) To the extent that ATP Tour has collected prize money for competitions in which Appellant competed after the Tournament, those amounts shall be returned to Appellant by ATP Tour within 7 days of the date of this award.

5.) The award is pronounced without costs, except for the Court Office fee of CHF 500.- already paid by the Appellant and to be retained by the CAS.

6.) Each party shall bear its own costs.

Hereafter the Athlete appealed the original CAS decision of 23 May 2006 (CAS 2005/A/951) with the Swiss Federal Court.
On 22 March 2007, the Swiss Federal Court determined that the Appellant’s right to be heard was disregarded by the CAS Panel and on that basis, the Swiss Federal Court annulled the Panel’s award (Swiss Federal Court 4P.172_2006 Guillermo Cañas vs ATP Tour & CAS).

In the light of the judgment of the Swiss Federal Tribunal, the CAS Panel has reviewed the submissions and evidence originally submitted by the parties and hereby issues a new revised award (23 May 2007) in substitution of the award rendered on 23 May 2006.

Arbitrage TAS 2005/A/958 R. c. Union des Associations Européennes de Football (UEFA), sentence du 29 juin 2006

• Football
• Doping (Cocaine)
• Competence of CAS
• Applicable law
• Valid evidence
• Minimum level of detection required from laboratories
• Proportionality of the sanction

On 7 July 2005 the Union of European Football Associations (UEFA) Control and Disciplinary Body decided to suspend the minor Dutch football player after his A and B samples tested positive for Cocaine in a low concentration. The Athlete appealed and before the UEFA Appeals Body the Athlete introduced his hair test which showed no presence of cocaine.

The UEFA Appeals Body considered the Athlete’s hair test invalid and based on extenuating circumstances it decided on 30 August 2005 to impose a reduced sanction of 8 months on the Athlete.

Hereafter in September 2005 the Athlete appealed the UEFA Appeals Body decision with the Court of Arbitration for Sport (CAS).

The Athlete argued that the concentration of Cocaine found in his samples was too low to be scientifically verifiable while another football player of the opposing team also had the same test results. The Athlete raised the hypothesis that his positive test was the result of contamination throught inadvertent skin contact.

At the request of the CAS Panel the World Anti-Doping Agency (WADA) responded in this matter. Here WADA deemed the hypothesis of a contamination by simple accidental cutaneous contact for a urinary concentration of benzoylecgonine of 10 ng/ml not to be credible.

Based on the evidence in this case the Panel finds that the Athlete failed to demonstrate grounds regarding the validity of the Paris Lab test results and the concentrations found.

The Panel also rejects the Athlete’s hair test because it was not analysed in an accredited laboratory, considered less relevant than an urine test and inadmissible under the Rules.

Futher the Athlete could not show circumstances where possible passive contamination occurred. Considering the mitigating circumstances in this case the Panel holds that there are grounds to reduce the imposed sanction by 2 months.

Therefore the Court of Arbitration for Sport decides on 29 June 2006:

1.) The Athlete’s appeal is admissible and partially upheld;

2.) To reform the UEFA Appeals body decision of 30 August 2005 and to reduce the Athlete’s period of ineligibility to 6 months;

3.) The period of ineligibility of 5 months an 22 days already served by the Athlete shall be credited against the imposed period of ineligibility.