CAS 96/150 Scott Alexander Volkers vs FINA

TAS 96/150 Volkers/FINA

CAS 95/150 V. / Fédération Internationale de Natation Amateur (FINA)

• Doping of a swimmer (dextropropoxyphene)
• Suspension of the coach for 2 years
• Strict liability principle
• Consideration of mitigating circumstances

1. Pursuant to the FINA Rules, the strict liability principle is applicable in the case of a coach giving a banned substance to an athlete. The coach's act (in giving the competitor a prohibited substance) is the material and operative cause of the offence. The general ban of doping is wide enough to encompass such acts, even if they lack the subjective element of intent.

2. The Court of Arbitration for Sport has the power to review and to vary a sanction involving suspension taken by the FINA authorities.

3. In deciding the length of a suspension, it is necessary to take into account the circumstances and, in particular, the subjective elements of each case.

On February 20, 1996 the FINA Executive suspended Mr. Scott Alexander Volkers, the appellant, from all swimming activities for a period of two years commencing on December 1, 1995 which upon the appellants' appeal to the FINA Bureau was reduced on April 26, 1996 to one year.

Miss Samantha Riley, a swimmer coached by the appellant, tested positive for the prohibited substance propoxyphene metabolite in a doping test conducted after the World Swimming Short Course Championships held in Rio de Janeiro, in November and December 1995. The suspension was imposed on findings made as to how Miss Riley came to have the prohibited substance in her body. Mr. Volkers admitted having given a di-gesic pill to her in circumstances which the FINA Executive held to amount to negligence.

On May 16, 1996 the appellant appealed FINA's decisions to the Court of Arbitration for Sport (CAS). The CAS affirms FINA's findings as to the appellant's guilt and the sanction
imposed taking into account all the circumstances in which he committed the offence. The CAS considers that infractions of the FINA's rules, such as that of the appellant, must be met with adequate sanctions to punish the offender, and to discourage others. The appellants' conduct fell far below the standard of care and vigilance required of him in his professional duty as a swimming coach.

The effect of the appellants' suspension has been to impede him in his career by disqualifying him from taking part in international events for almost seven months.The appellants' negligence has damaged his international reputation and the shadow of the finding will continue to hang over him for the remainder of his career. Not only the appellant damaged his own career by his actions but also endangered the careers of those in his charge. Propoxyphene metabolite is not considered to enhance the performance of athletes and the appellant was found to have administered it to Miss Riley without actual knowledge of what he was doing. The appellant was strictly liable for the offence he committed. Upon being asked to explain the facts of the matter the appellant readily admitted that he had given the banned substance to Miss Riley, albeit mistakenly. Until the FINA's findings the appellant was a man with an impeccable professional reputation.

The CAS considers that the appellant has been properly sanctioned by suspension, however taking into account the special facts of this case, in particular the state of mind FINA found the appellant to have had, and the mitigation which has been put forward on his behalf, it has been decided the suspension shall be commuted to seven months ending on June 30, 1996.

The shortening of the appellants' suspension detracts no liability from him. The appellants' appeal has been successful only in part, as to the sentence, which has been reduced because of very special circumstances.

The Court of Arbitration for Sport decides:

1.) Upholds the decisions of the FINA Executive of February 20, 1996 and the FINA Bureau of April 26, 1996 as to the issue of the Appellant's guilt.

2.) Declares that the Appeal is upheld in part, as to sanction. Accordingly the Appellant's suspension shall be commuted to a period of seven months ending on June 30, 1996.

TAS 96/156 Jessica K. Foschi vs FINA

Facts
Jessica Foschi, appellant, appeals against the decision of the executive committee The FINA, respondent, dated June 21, 1996. The Appellant had provided samples for doping control purposes on August 4, 1995, in a post event doping control. The samples (A and B) showed the presence a metabolite of the prohibited substance mesterolone.

History
Appellant, her parents and her coach consistently denied having knowingly taken or given the prohibited substance. They even underwent a polygraph examination. The father of the appellant hired a private investigator to find out if an intentional act by another person (sabotage) could explain the positive test. No conclusive results were produced.
On October 30, 1995, appellant appeared before the USS's (United States Swimming) National Board of Review and they imposed a sanction of two year probation from the date of decision November 2, 1995. Appellant appealed against this decision but the majority of the USS Board found that Appellant didn't rebut the presumption of doping. It imposed a two year suspension on Appellant starting August 4, 1995.
Appellant invoked her right to make a final appeal to the American Arbitration Association (AAA). The hearing was held on February 29 and March 1, 1996. This panel reinstates the appellant because the imposed sanctions violated fundamental fairness and were arbitrary and capricious.
The FINA executive held a hearing on June 20, 1996, in Lausanne (Switzerland). The FINA executive decision, dated June 21, 1996, was a two years suspension in accordance with the FINA rules beginning on August 4, 1995.
Appellant appeals against the decision of the FINA executive but in a meeting, without notice to or the presence of the appellant, they unanimously rejected the appeal.
On September 3, 1996, appellant filed a declaration of appeal against the decision of the FINA Bureau with the CAS in Lausanne, which was granted.

Submissions appellant:
- The samples were never retested.
- There were irregularities in the urine collection process.
- There had been inadequate security at the meet on August 4, 1995, enabling a third party to add something containing mesterolone to her food or drink without her knowledge.
- Appellant made the suggestion that the consumption of chicken meat could have caused the positive test.
- The FINA Executive violated it's obligation to provide appellant a fair hearing.
- The appeal proceedings before the FINA Bureau did not comfort with any concept of any due process, fundamental fairness or natural justice.
- The decision issued by the FINA Executive did not comfort with any concept of any due process, fundamental fairness or natural justice.
- Her performance was not enhanced which should require dismissal of her case.
- The refusal to permit an independent laboratory to test the samples violated the right to a fair hearing. By this the Appellant can't question the findings and suggest a cover up for a laboratory mistake (the test of the B-sample was aborted and re-run).

submissions respondent:
- The doping test performed was correct and proper.
- There is no evidence that the results of her test have been wrong or tampered with by the UCLA laboratory.
- The burden of establishing how the prohibited substance had entered the body rests entirely on the athlete.
- The strict liability principle is not put in question.
- The specific substance mesterolone doesn't allow a reduction of the sentence.
- Polygraph test are not accepted as evidence.

Submissions Panel:
The panel concludes that the performed test procedures were correct however there can be a flexibility in the sanction within the FINA rules. The suggestion that the positive result came from eating chicken is pure speculation.
The consumption of mesterolone knowingly at a time when appellant knew that it was likely to be tested and at a time when the substance would not enhance performance considers a lesser degree of guilt.

Conduct of the parties:
- Appellant has shown herself to be co-operative and has taken nearly and perhaps even every, conceivable step possible in order to try and prove that she is without fault.
- Respondent's conduct has lacked correctness in various ways.

Decision
- The decision of the FINA Executive Office of June 21, 1996, confirmed by the FINA Bureau on August 3, 1996 is reversed.
- The appellant is found to have committed an offence and is suspended for a period of six months from August 4, 1195 to February 3, 1996.
- The respondent has to pay the appellant as contribution towards her expenses 15,000 Swiss Francs.

TAS 97/175 Union Cycliste Internationale (UCI) / A.

• Cycling
• Doping (Bromantan and Clenbuterol)
• Authority UCI to agitate
• CAS competence
• Right to be heard
• Legal Status of the Prohibited List of substances

In July 1997 the International Cycling Union (UCI) has reported several anti-doping rule violations against the Uzbek Athlete A. after his samples tested positive for the prohibited substances bromantan and clenbuterol. The Athlete A. had provided these samples at 5 cycling competitions in France in 1997 and at one stage of the 1997 Tour de France.

On 28 August 1997 the Uzbekistan Cycling Federation decided to impose on the Athlete a 6 month period of ineligibility and a Sfr. 4000 fine. Hereafter in September 1997 the UCI appealed the Uzbek decision with the Court of Arbitration for Sport (CAS).

The UCI requested the CAS Panel to set aside the Uzbek decision and to impose a 1 year period of ineligibility including a Sfr. 4000 fine and disqualification of his results and points. Consequently, even if the UCI does not necessarily intervene in disciplinary proceedings, the UCI must be considered as a party, according of Article R47 CAS Code.

The Panel makes the following observations in this case:

1.) Even if the UCI doest not participate systematically in the proceedings provided in its Rule, the UCI nevertheless remains the initiator of the prosecution of the Athlete guilty of an anti-doping violation and therefore invites the National Federation to open proceedings. Consequently, even if it does not necessarily intervene in disciplinary proceedings, the UCI must be considered as a party, within the meaning of Article R47 of the Code.

2.) When an Athlete signs for his licence he is expressly bound to submit to CAS, as authority in the final instance, his arguments in anti-doping cases.

3.) The party considering itself a victim of a violation of its right to be heard or of any other procedural fault must invoke this at once in the arbitral proceedings. Failing to do this, the party is no longer entitled to complain in the appeal against the sentence.

4.) It is not because a particular product isn’t mentioned in the UCI list of prohibited substances at the moment of the facts that it possibly can not be qualified as a doping product.

Therefore on 5 April 1998 the Court of Arbitration for Sport decides to uphold the UCI appeal, to reform the Uzbek decision of 28 August 1997 and to impose a 1 year period of ineligibility and a CHF 4000 fine on the Athlete including disqualifation of his results and poinst.

TAS 97/180, P. & consorts / Fédération Internationale de Natation (FINA)

• Swimming
• Doping (metandienone)
• Burden of proof

1. According to FINA Rules, only the presence of a prohibited substance, such as steroids, constitutes a violation and results in a suspension for a minimum of four years plus a retroactive sanction resulting in the cancellation of any results obtained during the competitions which took place over a period of six months before the violation occurred. However, the sanction may be mitigated in proportion to the circumstances in the particular case.

2. As consequence of testing positive in a doping control, competitors have the onus to reverse the burden of proof. In the case of exculpatory evidence, strict demands need to be made for the evidence showing absence of guilt or weak guilt of the sanctioned athletes.

In October 1997 the International Swimming Federation (FINA) reported an anti-doping rule violation against the 3 Russian Athletes K., M. and P. after their samples tested positive for the prohibited substance Metandienone.

All 3 Athletes were members of the Russian Swimming team and as a consequence of the positive tests criminal investigations were conducted in Russia. Another Russian Athlete T. admitted that she had spiked the food of the Athletes with the prohibited substance because of her frustration about her exclusion of the national swimming team.

Considering the burden of proof the FINA Anti-Doping Commission found that the Athletes could not explain how the prohibited substance came into their body and could not reverse the burden of proof with their statements and evidence that the violation was committed intentionally.
On 24 December 1997 the FINA Anti-Doping Commission decided to impose a 2 year period of ineligibility on the Athletes K., M. and P.

In December 1997 the Court of Arbitration (CAS) dismissed the request of the three Russian Athlete to lift the suspension ordered by the FINA for their participation in the World Championships in January 1998.
Hereafter in February 1998 the three Russian Athletes appealed the FINA decision of 24 December 1997 with CAS.

The Athlete requested the Panel to set aside the decision of the FINA Anti-Doping Commission and to impose no sanction on the Athletes or a sanction reduced to a 6 month period of ineligibility.

The CAS Panel did not accept the evidence and statements produced by the Athletes about the Russian criminal investigation and the admission of the Athlete T. that she had spiked the food of the Athletes with the substance 13 days before the doping test.
The Panel also upholds the FINA conclusion that the Athletes failed to explain how the substance came unintentionally into their body. Considering the circumstances in this case the Panel holds that the imposed sanction wasn’t disproportional.

Therefore on 14 January 1999 the Court of Arbitration for Sport decides to dismiss the appeal of the Athletes K., M. and P. and confirms the decision of 16 December 1997 of the FINA Anti-Doping Commission.

TAS 98/189 Michael Dionne and US Bobsled & Skeleton Federation (USBSF) vs. Fédération Internationale de Bobsleigh et de Tobogganing (FIBT)

Facts
Michael Dionne, appellant and the United States Bobsled and Skeleton Federation (USBSF) appeal against the decision of the executive committee of the International Bobsleigh and Tobogganing Federation (FIBT). Appellant had been sanctioned with a period of ineligibility of three months for being positive tested for the prohibited substance ephedrine (A and B sample). The reason was the use of products against a cold which contained the prohibited substance. Appellant appealed because he believes the sanction was too harshly and he wanted to have the opportunity to take part in the Olympic Games of Nagano.

History
The representative of the appellant took the position that the three month suspension would violate:
- the International Olympic Committee (IOC) Medical code,
- the FIBT's own rules, and
- principles of fairness and proportionality reflected in previous decisions of the CAS.
The FIBT maintains that the appeal must fail because appellant didn't exhausted internal remedies within the FIBT rules. However the arbitrator remarks that it may be useful for the FIBT to reexamine and clarify its own procedure for appeals.
The arbitrator considers the penalty put upon the appellant and concludes that it was the lowest possible.
I was taken in consideration that the appellant wasn't cheating but careless towards the use of supplements.

Decision
1. The FIBT decision regarding appellant is upheld.
2. In the circumstances, the sanction thus confirmed is not considered to affect the status of appellant as an accredited member of the U.S. Olympic Team.
3. The application has not occasioned significant costs. There is no award in that regard.
4. This award shall immediately be made public.

CAS 98/192 Union Cycliste Internationale (UCI) / S., Danmarks Cykle Union (DCU) and Danmarks Idraets-Forbund (DIF)

• Cycling
• Doping (testosterone)
• Conflict between the rules of an International Federation and those of a National Olympic Committee

1. Rule 30 of the Olympic Charter assigns the international federations the responsibility to “establish and enforce, in accordance with the Olympic spirit, the rules concerning the practice of their respective sports and to ensure their application”. The mission of the NOC's, on the other hand, is to “fight against the use of substances and procedures prohibited by the IOC or the IFs”. This mission is focused upon political actions vis-à-vis the competent authorities of their respective countries.

2. The international federations enjoy the principal competence with regard to the fight against doping. The natural consequence of this is that their rules prevail over those which an NOC or national sports authority (for example an NF) might have enacted.

3. Pursuant to the UCI regulations, in case of endogenous steroids, a sample is deemed positive if the urine T/E ratio is above 6, unless this ratio is attributable to a physiological or pathological condition.

In August 1997 the Danish national cycling federation (DCU) - initiated by the International Cycling Union (UCI) - has reported an anti-doping rule violation against the Athlete S. after his A and B samples tested positive for the prohibited substance testosterone with a T/E ratio above the WADA threshold.

On 18 January 1998 the Doping Tribunal of the Danish NOC decided to impose a 2 year period of ineligibility on the Athlete under the Danish Rules starting on 13 December 1997.
The Athlete appealed this decision and on 4 May 1998. The Danish Commission for Appeals and Arbitration of the Danish NOC decided to uphold the imposed 2 year sanction.

After deliberations between the UCI. the DCU and the Danish NOC about the imposed sanction and respecting the UCI Rules the UCI filed an appeal in February 1998 with the Court of Arbitration for Sport (CAS).

Pending the appeal of the Athlete S. with the Danish Commission for Appeals and Arbitration the UCI’s appeal with CAS was postponed and resumed after the Danish Commission for Appeals and Arbitration issued its decision on 4 May 1998.

The UCI argued that the imposed sanction of 2 years under the Danish Rules on the Athlete exceeds the maximum sanction prescribed in the UCI Rules and it requested the CAS Panel to impose an appropriate sanction under the UCI Rules. Also UCI disputed the fact that no disqualification from the Tour of Denmark or a fine was imposed on the Athlete.

The Panel concludes that the jurisdiction of the CAS is based on Art. 84 UCI. The Doping Tribunal of the Danish NOC acted as the “competent body” of the DCU with the knowledge and consent of the UCI. The DCU, in turn, exercised the original jurisdiction of the UCI as prescribed by the applicable provisions of the UCI Rules.

The UCI initiated the doping proceedings against the Athlete S. in accordance with UCI Rules, informed the DCU regarding applicable deadlines and requested to be kept informed of all measures taken by the DCU in the proceedings. Its good faith reliance upon the DCU's representations is evidenced in the exchange of information between the UCI and the DCU, on the one hand, and the DCU/Danish NOC and the Athlete S., on the other.

It is shown clearly in the UCI's timely filing of its appeal to the CAS in accordance with Art. 84 and its refusal to accept the jurisdiction of the Danish NOC with regard to the appeal by the Athlete S. to the Commission of Appeals of the Danish NOC.

The Panel dismissed the arguments filed by the Athlete and reduced the imposed sanction from 2 years to 9 months. The Panel has taken into consideration the fact that the UCI Rules prescribes a maximum suspension of one year for the first offence as opposed to the maximum suspension of two years prescribed in the Rules applied by the Danish NOC.

It cannot be overlooked, however, that the reduction in the sentence is also justified by the disadvantages suffered by the Athlete S. in formulating his defence as a result of the jurisdictional dissent between the UCI, the DCU and the Danish NOC.

Therefore on 21 October 1998 the Court of Arbitration for Sport decides:

1.) The 19 January 1998 Decision of the Doping Tribunal of the National Olympic Committee and Sports Confederation of Denmark (Danmarks Idreaets-Forbund) as modified by the Decision of the Commission of Appeals and Arbitration of 4 May 1998 shall be modified as follows:

(a) The term of the sentence shall be reduced from two years to nine months commencing on 12 December 1997. Accordingly, the term of suspension ends 11 August 1998.

(b) The Court of Arbitration for Sport imposes a fine on the Athlete S. in the amount of CHF 2’000.00 (two thousand Swiss Francs).

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TAS 98/203 Union Cycliste Internationale (UCI) / F. & Federazione Ciclistica Italiana (FCI)

• Cycling
• Doping (testosterone and metenolone)
• Double infringement

1.) When an athlete tested positive for the same substance or method several times in a short period of time and it is decided that these positive test results are caused by one anti-doping violation, these cases will be joined into one imposed sanction and into one imposed fine. On the other hand, when the athlete tested positive for two different substances and that these positive tests are the result from different doping acts, there is a double infringement. In both cases disqualification will be applied on all competition events where the athlete tested positive.

2.) The CAS summary proceedings is a guarantee of double degree of jurisdiction. Therefore, and provided that there is a domestic legal remedy in de legislation of the country in question, the UCI considers that CAS is the only court of appeal.

In August 1997 the International Cycling Union (UCI) reported an anti-doping rule violation against the Italian Athlete F. after his 2 samples provided at the Tour of Switzerland in June 1997 tested positive for the prohibited substances metenolone and testosterone with a T/E ratio above the threshold.

Also in October 1997 the UCI reported a second anti-doping rule violation against the Athlete after his sample provided at the Tour of Poland in September 1997 tested positive for methyltestosterone.

On 12 January 1998 the Italian Cycling Federation, Federazione Ciclistica Italiana (FCI), decided to impose a 6 month period of ineligibility and a CHF 2.000,- fine on the Athlete including 50 points loss.

On 8 April 1998 the FCI decided for the Athlete’s second violation to impose an additional 1 year period of ineligibility and a CHF 4.000,- fine including including 75 points loss. Here the Athlete admitted that he had used doping during the Tour of Switzerland but denied the use of doping during the Tour of Poland.

The Athlete appealed the FCI decision of 8 April 1998 and on 16 May 1998 the FCI Appeal Commission concluded that no double infringement occurred and decided to set aside the challenged sanctions and to impose on the Athlete a 8 month period of ineligibility and a CHF 3.500,- fine including 70 points loss.

Hereafter the UCI appealed the FCI Appeal Commission decision of 16 May 1998 with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the decision of the FCI decision and to uphold the FCI decisions of 12 January and 8 April 1998.

Considering the evidence and statements in this case the Panel concludes that the Athlete has committed two anti-doping violations for the use of the substances testosterone and metenolone during the 1997 Tour of Switzerland and for methyltestosterone during the 1997 Tour of Poland.

Therefore the Court of Arbitration for Sport decides on 20 November 1998:

• To set aside the decision of the FCI Appeal Commission of 16 May 1998;
• To uphold the FCI decision of 12 January 1998 (1997 Tour of Switzersland);
• To disqualify the Athlete’s results obtained at the 1997 Tour of Poland;
• To impose a 1 year period of ineligibility, including 5 months as suspended sanction, for the Athlete’s second violation (1997 Tour of Poland); and
• CHF 4.000,- fine.

CAS 98/208 N., J., Y., W. / Fédération Internationale de Natation (FINA)

• Swimming
• Doping (Triamterene)
• (Non-) discrimination
• Burden of proof
• Strict liability

1. The burden of proof lay upon FINA to establish that an offence had been committed. This flows from the language of the doping control provisions as well as general principles of Swiss Law. The presumption of innocence operates in the athlete’s favour until FINA discharged that burden. The standard of proof required of FINA is high: less than criminal standard, but more than the ordinary civil standard.

2. It is the presence of a prohibited substance in a competitor's bodily fluid which constitutes the offence under the FINA rules, irrespective of whether or not the competitor intended to ingest the prohibited substance.

3. If the presence of a prohibited substance is established to the high degree of satisfaction required by the seriousness of the allegation, then the burden of proof shifts to the competitor to show why the maximum sanction should not be imposed. It is only at the level of sanction, not of finding of innocence or guilt, that the concept of shifting burden becomes relevant at all. And it is only at this juncture that questions of intent become relevant.

In January 1998 the International Swimming Federation (FINA) has reported anti-doping rule violations against the four Chinese Athlete’s N., J. Y. and W after their A and B samples tested positive for the prohibited substance triamterene.

Consequently and on 24 July 1998 the FINA Doping Panel decided to impose a 2 year period of ineligibility on the four Athletes. Hereafter in August 1998 the Athletes appealed the FINA decision of 24 July 1998 with the Court of Aribitration for Sport (CAS).

The CAS Panel finds that there was no evidence that ingestion of six tablets a day (paying all due regard to the contention that Actovegin tablets are not chemically formulated and can vary from tablet to tablet) since 22 December 1997 (the Athletes unchallenged evidence as to their own consumption) would produce the results shown in the “A” and “B” samples. The Athletes accordingly failed to discharge the burden that lies upon them.

In reaching the conclusion that the offence was committed, and that the Athletes had not discharged the burden which lay upon them to mitigate the maximum sanction of two years, the Panel have borne in mind that all the swimmers have denied on affidavit that they took Triamterene. The Panel has treated that evidence as if it had been given on oath. However, it is regrettable that the currency of such denial is devalued by the fact that it is the common coin of the guilty as well as of the innocent.

The Court of Arbitration for Sport decides on 22 December 1998:

1.) The appeal filed by the Athletes N., J., Y., W. on 18 August 1998 is dismissed.

2.) The decision issued by the FINA Doping Panel on 24 July 1998 is confirmed.

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