CAS 98/211 B. / Fédération Internationale de Natation (FINA)

Related case:

FINA 1998 FINA vs Michelle Smith de Bruin
August 6, 1998

• Swimming
• Doping (testosterone)
• Hearing de novo
• Compliance with the testing procedure
• Burden of proof

1. The virtue of an appeal system which allows for a full rehearing before an appellate body is that issues relating to the fairness of the hearing before the tribunal of first instance fade to the periphery. The CAS appeals procedure allows any defects in the hearing before the first instance tribunal to be cured by the hearing before CAS.

2. The standard of proof required of the federation is high: less than the criminal standard, but more than the ordinary civil standard. To adopt a criminal standard (at any rate, where the disciplinary charge is not a criminal offence) is to confuse the public law of the state with the private law of an association.

In April 1998 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Irish swimmer Michelle Smith de Bruin.

The Athlete's sample was taken for a out-of-competition doping test at the her home in January 1998 and analysis of the urine samples showed the presence of alcohol. The concentration of alcohol (whiskey odor) was too high to be produced naturally and indicated physical manipulation. As a result the FINA Doping Panel decided on 6 August 1998 to impose 4 year period of ineligibility on the Athlete.

Hereafter in September 1998 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).

The Athlete disputed the validity of the chain of custody of her sample and asserted that the sample tested at the Barcelona Lab was in fact not her sample.Further the Athlete claimed that, if the sample tested was her sample, it had been manipulated by a person other than the Athlete herself.

Following assessment of the evidence regarding the process of collecting, transporting and testing of the Athlete’s samples the Panel establishes that there was no breach in the chain of custody. Accordingly the Panel concludes that in fact it was the Athlete’s sample that had been tested.

The Panel concludes that the Athlete had the opportunity to manipulate her sample and had the motive to do so if she was in fact engaged in the use of illicit substances. In this matter the Panel’s addressed the conclusion of the Barcelona Lab about the analysis of the Athlete’s A and B samples:

“Additional laboratory results obtained with the sample (especially, steroid profile and isotope ratio mass spectrometry measurements) suggest the administration of some metabolic precursor of testosterone. Longitudinal follow up is recommended.”

The Panel holds that there is unchallenged evidence that what was, even at the date of the testing, a banned substance (because it fell within the general category of substances related to those specifically listed) was found in the Athlete's urine; there is, therefore, actual evidence before the Panel that there was something to conceal. Not only was the manipulation not wholly successful, but there was an obvious motive for it.

Therefore the Court of Arbitration for Sport hereby decides on 7 June 1999:

1.) The Appeal filed by Michelle Smith de Bruin on 2 September 1998 is dismissed.

2.) The decision issued by the FINA Doping Panel on 6 August 1998 is confirmed.

(...)

CAS 98/212 Union Cycliste Internationale (UCI) / M. & Federazione Ciclistica Italiana (FCI)

• Cycling
• Doping (nandrolone)
• Determination of the competent appeals tribunal
• Endogenous substance
• “Effective” sanction
• Probation

1. Quantities up to 2 ng/ml are not considered to constitute a doping offence. The laboratories do normally not report concentrations below 2 ng/ml to the Federation. There is uncertainty among experts as to the maximum concentration of Nandrolone produced by a human body. Consequently, the mere finding of Nandrolone in a concentration between 2 and 5 ng/ml may constitute a doping offence, but requires further investigations in order to confirm the result of the analysis. However, within the “grey zone” the likelihood that Nandrolone is produced endogenously, is decreasing exponentially. The probability of an endogenous production of Nandrolone in quantities beyond 5 ng/ml was held to be very unlikely. Therefore quantities beyond 5 ng/ml are very likely to be confirmed by further investigations and may be regarded as sufficient evidence to constitute a doping offence.

2. Pursuant to the UCI Rules, a sanction, in order to be effective, must be served during the period of normal activity. As a consequence, a suspension falling to a considerable extent within a “dead period”, which means a period where the athlete does usually not compete, cannot be regarded as an effective sanction.

In May 1998 the Italian Cycling Federation (FCI), initiated by the International Cycling Union (UCI), has reported an anti-doping rule violation against the Italian Athlete M. after his A and B samples tested positive for the prohibited substances norandrosterone and noretiocholanolone (Nandrolone) in a low concentration.
On 31 August 1998 the FCI Disciplinary Commission decided to impose on the Athlete a 6 month period of ineligibility and a CHF 2’000,-- fine without specification of the starting and or ending of the suspension.

Hereafter in September 1998 the Athlete M. appealed the decision of the FCI Disciplinary Commission both with the FCI Appeal Commission and with the Court of Arbitration for Sport (CAS).
Also the UCI appealed in October 1998 the FCI decision of 31 August 1998 with CAS. Meanwhile in October 1998 the Athlete withdrew his appeal with CAS.
UCI requested the CAS Panel to impose a sanction on the Athlete of at least 6 months and to increase the fine.

The Panel finds that the Athlete M. was not able to give any reasonable explanation for the origin of the prohibited substances. He further failed to submit any evidence in order to support the motion that in his particular case the endogenous production of Nandrolone could reach or even exceed the threshold of 5 ng/ml. The Panel therefore held that the analysis of the A-sample, confirmed by the analysis of the B-sample, revealed the presence of prohibited substances in a concentration not only higher than 2 ng/ml but also beyond the unofficial “grey zone” and as such established an infringement of the AER.
With regard to the sanction, the Panel only partially agrees and therefore modifies the decision of the FCI.

Therefore the Court of Arbitration for Sport decides on 24 February 1999:

1.) The appeal by the UCI is partially upheld.
2.) The decision of the Federazione Ciclistica Italiana (FCI) dated 31 August 1998 is partially modified:
The Athlete M. is sanctioned as follows:
- disqualification from the “Settimana Bergamasca” 1998;
- suspension for nine months from 14 July 1998 to 13 April 1999;
the suspension is lifted by 21 January 1999 and M. is granted probation for the remaining period of suspension, i.e. two months and three weeks (according to Art. 95 UCI AER);
- fine of CHF 2’000.-- (two thousand Swiss francs).
(...)

CAS 98/213 Union Cycliste Internationale (UCI) / C. & Federazione Ciclistica Italiana (FCI)

• Cycling
• Doping (testosterone)
• Jurisdiction of CAS
• Endogenous substance

1. By applying for a licence and by participating in races belonging to the international calendar of the UCI, athletes agree to comply with and to be bound by all provisions of the Regulations applying thereto, i.e. the UCI rules including the AER.

2. For endogenous steroids, a sample is deemed positive if the T/E ratio is higher than 6, unless it can be proven that this ratio is due to physiological or pathological condition.

3. Pursuant to the UCI Regulations, a sanction, in order to be effective, must be served during the period of normal activity. As a consequence, a suspension falling to a considerable extent within a “dead period”, which means a period where the athlete does usually not compete, cannot be regarded as an effective sanction.

In Juni 1998 the Italian Cycling Federation (FCI), initiated by the International Cycling Union (UCI), has reported an anti-doping rule violation against the Italian Athlete C. after his A and B samples, provided in April and May 1998, tested positive for the prohibited substance testosterone with a T/E ratio above the WADA threshold. Thereupon the Athlete underwent an endocrinological examination which showed that the Athlete did not have naturally elevated T/E ratio.

On 31 August 1998 the FCI Disciplinary Commission decided to impose on the Athlete C. a 6 month period of ineligibility and a CHF 2’000,-- fine without specification of the starting and or ending of the suspension.

Hereafter the UCI appealed in October 1998 the FCI decision of 31 August 1998 with the Court of Arbitration for Sport (CAS). The UCI requested the CAS Panel for disqualification of two competition results and to impose a sanction on the Athlete of at least 9 months including a higher fine.

The Panel – with the approval of the UCI – decides to consider the different positive results as one single offence. The Panel thus holds that the analysis of the A-samples, confirmed by the analysis of the B-samples, revealed the presence of prohibited substances, which as such constitutes an infringement of the UCI Rules.

With regard to the sanction, the Panel only partially agreed and therefore modifies the decision of the FCI.
The Panel notices that the discussion about the dead period is a consequence of the particular sanction system of the UCI, which provides for a minimal duration of suspension of less than one year. The discussion could be avoided if the UCI would harmonize its sanctions with other sport federations and provide for minimum suspension of at least twelve months.

Therefore the Court of Arbitration for Sport decides on 24 February 1999:

1.) The appeal by the UCI is partially upheld.

2.) The decision of the Federazione Ciclistica Italiana (FCI) dated 31 August 1998 is partially modified:

a.) The disqualification from the “Giro del Trentino” 1998 is cancelled.

b.) The Athlete C. is sanctioned as follows:
- disqualification from the “Tour de Romandie” 1998;
- suspension for nine months from 6 September 1998 to 5 June 1999;
- fine of CHF 2’000.-- (two thousand Swiss francs).

(...)

TAS 98/214 B. / Fédération Internationale de Judo (FIJ)

Related case:

CAS 1999_A_230 B. vs Fédération Internationale de Judo
December 20, 1999

• Judo
• Doping (nandrolone)
• Extension of a national decision to international level
• CAS Power to investigate
  strickt liability of the athlete
• Endogenous substance
• Mitigating circumstances

1.) It is imperative that international sports federations have the possibility to revise the decisions of national federations in anti-doping cases. The purpose of the power assigned to the International Federation is in particular to prevent the risk that international competitions are disrupted, in the situation that a national federation doesn’t sanction or sanctions too lenient one of its members, to enable it to participate in an important event or on the basis of an international convention.

2.) In accordance with Article R57 of the Code of Sports Arbitration, CAS reviews the facts and law with full power to investigate. The Court can scrutinize again the facts of the case to pass a new judgement about the case in its entirety. Consequently, given the devolving effect of the appeal, it is not necessary to refer the case back to the respondent authority for a new decision, the CAS award substitutes the contested decision.
Observed in this matter is that, according to a rule known in most legal system, a complete investigation, before a body of appeal which has full power of complete cognition, it can repair the procedural faults of the lower bodies, such as the violation of the right to be heard. Such a procedure is also in accordance with the principle of procedural economy.

3.) Every athletes has the advantage of the presumption of innocence until the presence is established of a prohibited substance in his or her body. According to the constant CAS jurisprudence, the system of strict liability must prevail when sports fairness is at stake. The presence of a prohibited substance in the body of an athlete has two consequences. The first consequence is that the athlete is disqualified from the competition where the anti-doping control took place. This sanction is imposed due to sports fairness towards the other athletes who participated in the competition. The second consequence is that the presence of the prohibited substance involves a presumption of guilt which can be reversed by the athlete.

4.) According to CAS jurisprudence, a fixed tariff system for anti-doping sanctions is not preferable and a more flexible system, which extends over de duration of the suspension, is preferable. Thus, an anti-doping rule of an international federation, providing for a system of fixed sanctions, maybe modulated considering the specific circumstances in each case, provided that this modulation is specifically motivated.

In October 1997 the French Judo Federation, Fédération Française de Judo (FFJ), has reported an anti-doping rule violation against the French Athlete B. after his A and B sample tested positive for the prohibitied substances 19-norandrosterone, 19-noretiocholanolone (Nandrolone).

The Athlete denied the intentional use of the prohibited substance; disputed the validity of the testing method; and argued that the positive test could be the result from the possible ingestion of food contaminated with nandrolone.

A scientific commission of experts concluded that the test results of the accredited laboratory were valid, showing the presence of nandrolone, and rejected the Athlete’s arguments.
On 18 April 1997 the FFJ Anti-Doping Commission decided to impose a 2 year period of ineligibility on the Athlete with the second year as suspended sanction.

The Athlete filed for an appeal, however on 25 May 1998 the FFJ Appeal Commission concluded that it had no jurisdiction.

The Athlete’s case was referred to the French National Anti-Doping Commission (CNLD), who had doubts about the origin of the presence of nandrolone metabolites in the Athlete’s samples and decided on 9 July 1998 to impose a 1 year period of ineligibility on the Athlete.

In the meantime in May 1998 the test results were reported of a second more elaborate counter analysis performed on the Athlete’s samples and confirming the presence of the prohibited substances.

The International Judo Federation (IJF) was already informed in October 2007 about the Athlete’s anti-doping violation and on 10 October 1998 the ordered suspension was extended by the IJF pending a final decision was redenered against the Athlete. Hereafter in October 1998 the Athlete filed an appeal with the Court of Arbitration for Sport (CAS).

With full power to investigate and all the facts reviewed in this case the CAS Panel finds that the Athlete failed to prove that he was not at fault and therefore that he is guilty.

Considering the circumstances and the proportionality in this case the Court of Arbitration for Sport decides on 17 March 1999 to cancel the IJF decision of 10 October 1998 and to impose a 15 month period of ineligibility on the Athlete, ending on 19 March 1999.

CAS 98/218 H. / Fédération Internationale de Natation (FINA)

• Swimming
• Doping (cannabinoids)
• Adoption of IOC Medical Code by International Federations
• Out-of-competition testing for cannabinoids

1. The requirement of an agreement between the IOC and the relevant federation in order to proscribe cannabinoids applies only in the context of Olympic competition. Outside that context, the IOC Medical Code is applicable only to the extent it is voluntarily adopted by the relevant federation.

2. According to FINA Regulations, cannabinoids fall within the list of prohibited substances which are the target of out-of-competition testing.

On 6 November 1998 the International Swimming Federation (FINA) Doping Panel decided to impose a 3 month period of ineligibility on the Athlete H. after he tested positive for the prohibited substance cannabis.

Hereafter on 24 November 1998 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).
On 30 November 1999 the CAS Appeals Arbitration Division of CAS dismissed the Athlete’s appeal for preliminary relief.

Also on 30 November 1999, the Athlete H. obtained a Temporary Restraining Order from the United States District Court for the District of Arizona which purported to order FINA not to enforce the suspension of H. decided by the Doping Panel, and furthermore purported – without any explanation of the basis for its jurisdiction with respect to events taking place outside Arizona and indeed the United States – to declare that H. was permitted “to participate in any activities of FINA or any of its member federations, including international competition, as a competitor until further notice of this Court.”

The Athlete H. accordingly competed in a World Cup competition in December 1998 in disregard of both the FINA Doping Panel’s decision and the Order of the CAS Appeals Arbitration Division.

The CAS Panel is not impressed with H.’s reliance on alleged oral representations made to him and to his father to the effect that cannabinoids were not the target of out-of-competition testing. The proper reflection of such concern on their part would have been for them to read the relevant rules, rather than to rely on any oral statements that there was a “policy” of, in effect, selective application.

Given H.’s unwillingness to accept rules of competition designed to be applied in the interest of all athletes, his persistence in pursuing an unmeritorious challenge, and his de facto evasion of sanctions legitimately imposed upon him by going outside the dispute resolution mechanism to which both he and FINA are subjected, the Panel awards costs to FINA.

Therefore on 27 May 1999 the Court of Arbitration for Sport:

1.) Rejects the appeal against the FINA decision dated 6 November 1998.

2.) Declares that any results achieved by H. in competitions during the period of his suspension shall be considered null and void.

3.) Orders H. to pay FINA the amount of CHF 10’000.-- with interest running at 5% per annum starting with the 30th day after notification of this Award.

CAS 98/222 B. / International Triathlon Union (ITU)

• Triathlon
• Doping (nandrolone)
• Threshold for endogenous substances
• Strict liability
• In dubio pro reo

1. Low concentrations of nandrolone metabolites no longer permit a reliable conclusion as to the ingestion of nandrolone. In other words, it appears to be beyond scientific doubt that such low concentrations falling within what is often referred to as the “grey zone” (i.e., concentrations between 2,0 and 5,0 ng/ml), can as well be the result of endogenous production of the human body. When the concentration of nandrolone falls within the “grey zone”, the likelihood that nandrolone is produced endogenously, is decreasing exponentially within the limits of the “grey zone”.

2. The rule on strict liability is essential and indispensable for an efficient fight against doping in sport and for the protection of fairness towards all competitors and of their health and well-being. The principle of strict liability rule does not exempt the sports federations to prove the existence of a doping offence. The effect of any rule of law imposing strict liability is merely to render obsolete the proof of guilt on the part of the person subjected to the regime of strict liability, while on the other hand such rule does not eliminate the need to establish the wrongful act itself and the causal link between the wrongful act and its consequences.

3. The legal impact of a “grey zone” should be reflected in a rule that, in such cases, the sanctioning body can no longer rely on legal presumption that the presence of a prohibited substance is a consequence of external application, but should provide additional evidence supporting this presumption, or, at least, excluding all other causes.

In June 1998 the Swiss Triathlon Federation (STF) has reported an anti-doping rule violation against the Athlete B. after his A and B samples tested positive for the prohibited substance 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

Consequently on 10 December 1998 the STF Doping Commission decided to impose a 1 year period of ineligibility on the Athlete.

Hereafter in December 1998 the Athlete appealed the STF Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel te set aside the Appealed Decision and to annul the imposed sanction.

In this case the Panel determines that this is a typical example of multiple and possibly parallel causes leading to the presence of the forbidden substance. The Panel considers that it would be unrealistic to require from the Athlete to establish that the presence of metabolites was not and could not have been the external application of Nandrolone: even if alleged by the athlete, it could hardly be supported by convincing evidence.

The Panel concludes that the Athlete has established at least a probability that the concentrations of Nandrolone metabolites found in his urine were a result of endogenous production of his body. Although it is clear that the Athlete was unable to prove with certainty such endogenous production, the evidence provided can be deemed sufficient to create reasonable doubt concerning external application.

Therefore the Court of Arbitration for Sport decides on 9 August 1999:

1.) The appeal lodged by B. is upheld.

2.) The decision of the ITU Hearings and Appeals Board of 10 December 1998 is hereby cancelled.

3.) The suspension of the Appellant for a one-year period (from 1 September 1998 until 31 August 1999), pronounced by the Swiss Triathlon Federation on 29 August 1998 is lifted.

4.) The disqualification of the Appellant from all competitions between 7 June 1998 and 31 August 1998, pronounced by the Swiss Triathlon Federation on 29 August 1998 is cancelled; the results and titles achieved by the Appellant during this period are confirmed.

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

6.) The Respondent shall reimburse to the Appellant the half of the Court Office fee in the amount of CHF 250.--; moreover, each party shall bear its own costs.

CAS 99/A/223 International Tennis Federation (ITF) / K.

• Tennis
• Doping (nandrolone)
• Collection procedure
• Exceptional circumstances

1. Pursuant to the ITF Anti-doping Programme, any deviation or deviations from the anti-doping control procedures, including, but not limited to, sample collection, chain-of-custody or laboratory analysis, do not invalidate any finding, procedure or positive test result, unless that deviation or deviations raises a material doubt as to the reliability of the finding, procedure, decision or positive test result.

2. It is for the ITF to establish with appropriately convincing evidence the existence of a doping offence, including compliance with anti-doping control procedures. A player who seeks to rely upon 'Exceptional Circumstances' to mitigate penalty must do so on the balance of probabilities. Exceptional circumstances are defined to mean that circumstances occurred in which the player had no knowledge that he had taken or been administered the prohibited substance found in his body.

In March 1999 the ITF filed an Appeal with the Court of Arbitration for Sport (CAS) against the light sanction imposed on K. after his A and B samples tested positive for 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

The Court of Arbitration for Sport decides on 21 August 1999:

1.) The appeal by the ITF is upheld.
2.) The decision of the Appeals Committee of the ITF of 22 December 1998 shall be modified as follows:
K. is suspended for a period of 12 months from 1 September 1999 to 31 August 2000.
(...)

CAS 1999/A/230 B. vs Fédération Internationale de Judo
TAS 99/A/230 B. / Fédération Internationale de Judo (FIJ)

Related case:

CAS 1998_214 B. vs International Judo Federation
March 17, 1999

• Judo
• Doping (nandrolone)
• Absence of legal basis to sanction the athlete

1. Neither the IJF Anti-Doping Rules nor the IOC Medical Code provide for the disqualification in the case of an out-of-competition positive test result. In casu, the results of the appellant can’t be invalidated, from the moment he has obtained his title and medal, certainly after the positive out of competition control, but before the notification of the decision informing him of his suspension.

2. According to its jurisprudence, CAS can not invent sanctions, when these don’t exist. Where regulatory instruments define penalties and their conditions of application to specific facts, the principle of strict interpretation must be respected in all its rigor by sports bodies and by CAS. In casu, neither the IJF Anti-Doping Rules nor the IOC Medical Code provide for disqualification in the matter of an out-of-competition positive test result.

On 17 March 1999 the Court of Arbitration for Sport decided to impose a 15 month period of ineligibility on the French Athlete (TAS 98/214) after his A and B samples tested positive for the prohibitied substances 19-norandrosterone, 19-noretiocholanolone (Nandrolone).

As a consequence of the CAS decision of 17 March 1999 the International Judo Federation (IJF) decided in April 1999 to disqualify the Athlete’s results obtained at the World Championships in October 1997 including withdrawal of his medal. This decision was notified to the Athlete on 8 June 1999.

Hereafter in June 1999 the Athlete appealed the IJF decision of 8 June 1999 with the Court of Arbitation for Sport (CAS).

The CAS Panel finds that the imposed sanction on the Athlete started on the date of the notification of the anti-doping violation on 22 October 1997 and not on the date of his participation to the World Championships from 8 to 11 October 1997.

herefore the IJF was not authorized to invalidate the Athlete’s results obtained at this event and also neither the IJF Anti-Doping Rules nor the IOC Medical Code provide for disqualification in the matter of an out-of-competition positive test result.

Therefore on 20 December the Court of Arbitration for Sport decides to allow the Athlete’s appeal and to cancel the IJF decision for the Athlete’s to annul his results and medal won at the 1997 World Championships.