• CAS 1999/A/234 David Meca-Medina vs FINA
• CAS 1999/A/235 Igor Majcen vs FINA
• TAS 1999/A/234 David Meca-Medina v/ FINA
• TAS 1990/A/235 Igor Majcen v/ FINA

Related case:
CAS 2000/A/270 David Meca-Medina & Igor Majcen vs FINA
May 1, 2001

On 8 August 1999 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Spanish swimmer David Meca-Medina and the Slovenian swimmer Igor Majcen after their A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

Hereafter in August 1999 both Athletes appealed the FINA decision with the Court of Arbitration for Sport (CAS).

The Athletes argued that there were departures of the standards for testing and laboratories; the substance in question was not prohibited; the positive tests were caused by the ingestion of pork offal; and the imposed sanction was too severe.

The Panel rejects the arguments that it was not their urine which was analysed and finds that the duration of the transport to the laborary had no effect on the validity of the test. The Panel holds that the chain of custody including the documentation was complete and satisfactory.

Further the Panel finds that the Athletes failed to establish that any alleged departure from the procedure could lead to genuine doubt on the reliability of any finding. They also failed to demonstrate that the positive tests was the result of the ingestion of meat injected with Nandrolone.

The Panel establishes that the substances in question were prohibited as part of the “related substances” before they were expressly included in the newer lists of anabolic androgenic steroids.

The Court of Arbitration for Sport decides on 29 February 2000 with respect to David Meca-Medina:

1.) The appeal is rejected as far as it is filed on behalf of David Meca-Medina.
2.) The suspension of David Meca-Medina is confirmed for a duration of 4 years from August 20, 1999 under deduction of 77 days of provisional suspension (May 14, 1999 to July 30, 1999).
3.) All results achieved by David Meca-Medina between January 31, 1999 and August 19, 1999 shall be cancelled.
4.) The award is pronounced without costs, except for the Court Office fee of CHF 500,- which shall be kept by the CAS (art. R65.2 of the Code)
5.) David Meca-Medina is ordered to pay an amount of CHF 4’000,- (together with interest at 5% from the date of the decision) to Respondent FINA as a contribution towards its legal fees and expenses (art. R65.3 of the Code).

The Court of Arbitration for Sport decides on 29 February 2000 with respect to Igor Majcen:

1.) The appeal is rejected as far as it is filed on behalf of Igor Majcen.
2.) The suspension of Igor Majcen is confirmed for a duration of 4 years from August 20, 1999 under deduction of 77 days of provisional suspension (May 14, 1999 to July 30, 1999).
3.) All results achieved by David Meca-Medina between January 31, 1999 and August 19, 1999 shall be cancelled.
4.) The award is pronounced without costs, except for the Court Office fee of CHF 500,- which shall be kept by the CAS (art. R65.2 of the Code)
5.) Igor Majcen is ordered to pay an amount of CHF 4’000,- (together with interest at 5% from the date of the decision) to Respondent FINA as a contribution towards its legal fees and expenses (art. R65.3 of the Code).

CAS 2000/A/262 R. / International Basketball Federation (FIBA), preliminary award of 28 July 2000

Related cases:

• Swiss Federal Court 4P_230_2000 Stanley Roberts vs FIBA
  February 7, 2001
• DIS U (K) 1651_02 Stanley Roberts vs District Court Munich
  October 10, 2002
  
  

• Basketball
• Doping (amphetamines)
• CAS jurisdiction
• Arbitration clause referring to CAS

1. Swiss Law requires for an arbitration agreement to be valid, that it is made in writing. The written form has as a purpose firstly to warn the parties about the existence of an arbitration clause and secondly to serve as evidence. When reference is made to an external document, and particularly when this reference is of a global nature only (not specifically mentioning the arbitration clause) the question as to whether the
requirements of form are met, must be decided upon the principle of trust.

2. A global reference is not sufficient, when the party proposing an arbitration clause in this way knew or should have known by experience, that the other party did not want to agree to such a clause or if such a clause was unusual under the given circumstances. A global reference on the other hand is valid and sufficient between two parties, who are experienced in the field or when an arbitration clause is customary in the particular
sector of business, regardless of whether the other party has indeed read the document of reference and therefore knew, that it contained such a clause. The Swiss Federal Court has applied and confirmed this principle of trust also to sports related disputes.

3. A professional basketball player can be considered experienced in the field of professional sports. Arbitration clauses have become customary in most international sports federations and many By-Laws or procedural regulations of these organisations refer to CAS arbitration with the explicit exclusion of the right to appeal to ordinary courts. Arbitration is also a widely applied way of dispute settlement in the sport in the
US. An arbitration clause such as the one contained in the FIBA Rules can therefore not be considered as unusual.

On 24 November 1999 the U.S. National Basketball Association (NBA) imposed a 2 year period of ineligibility on the Athlete after he tested positive for a prohibited substance Amphetamine .
Based on the NBA decision, FIBA also sanctioned the Athlete with a 2 year period of ineligibiltiy for FIBA competitions. As a consequence the Athlete’s contract to join the Turkish basketball team Efes Pilsen was cancelled.

The FIBA sanctioned the Athlete under a new set of rules in order to prevent basketball players go overseas without restrictions to resume their career after being expelled from the NBA. The Athlete claimed the FIBA decision damaged his career.

Between 2009 until 2003, the Athlete filed without success severals lawsuits before courts in the USA, Germany and Switzerland against the FIBA seeking cancellation of the sanction and damages of just under $1 million.

• The FIBA Appeal Commission dismissed the Athlete's appeal on 4 February 2000.
• On 31 August 2000 (CAS 2000/A/262) the CAS Panel ruled it has jurisdiction about the imposed FIBA sanction, but considered itself incompetent to rule about damages.
• The Swiss Federal Court decided to dismissed his complaint on 7 February 2001.
• The German Distric Court in Munich dismissed the Athlete's appeal on 20 December 2001.
• The German Institution of Arbitration dismissed his appeal on 10 October 2002).

TAS 2000/A/270 David Meca-Medina & Igor Majcen v/FINA

Related cases:

• CAS 1999/A/234 David Meca-Medina vs FINA
• TAS 99/A/234 David Meca-Medina vs FINA
• CAS 1999/A/235 Igor Majcen vs FINA
• TAS 99/A/235 Igor Majcen vs FINA

David Meca-Medina (hereafter Appellant 1) is affiliated with the Spanish Swimming Federation, member of FINA, the International Federation governing swimming which is domiciled in Switzerland. Igor Majcen (hereafter Appellant 2) is affiliated with the Slovenian Swimming Federation, also a member of FINA.

The Appellants were each suspended for four years ("the decision") by the FINA doping panel on 8th August 1999, because they had tested positive for metabolites of Nandrolone, specifically norandrosterone ("NA"), as a result of doping control in a competition test conducted on January 31, 1999, after both Appellants took part in a long distance World Cup race in Salvador di Bahia in Brazil finishing first and second respectively.

On August 8, 1999, the FINA Doping Panel issued two separate decisions (“the decisions”) concerning Appellant 1, on the one hand and Appellant 2, on the other hand. In both cases, the Appellants were sentenced to a four-year ban.
By determinations [TAS 99/A/234 & TAS 99/A/235] dated 29 February 2000, the Court of Arbitration for Sport rejected the original appeal by both Appellants against the decisions (“the original award”).

In this Appeal the Court of Arbitration for Sport decides on 1 May 2001:

1.) The appeal of each Appellant is allowed to the extent of substituting a sentence of two years suspension for one of four years (such period to take account of any period already served, but to ignore the period from 20 April 2000 to date in which the Appellant's, pursuant to the arbitration agreement, have been free to compete).

2.) The present award is rendered without costs.

3.) Each party shall bear its own costs

TAS 2000/A/272 UCI v/ Outchakov
CAS 2000/A/272 UCI vs Outchakov

In September 1999 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Ukrainian cyclist Sergiy Oukchakov after his A and B samples tested positive for the prohibited substances Human chorionic gonadotrophin (hCG) and Testosterone with at a T/E ratio above the UCI threshold.

The UCI notified the Cycling Federation of Ukraine (FVSU) about the Athlete’s violation but the FVSU deemed in November 1999 that there was no doping and the Athlete was not subject to sanction. After deliberations between the UCI and the FVSU about implementing disciplinary proceedings the FVSU decided on 22 March 2000 to acquit the Athlete.

Hereafter in April 2000 the UCI appealed the FVSU decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the FVSU decision of 22 March 2000 and to sanction the Athlete.

The FVSU requested the Panel to dismiss the UCI appeal and argued that in this case decisions were already rendered in November and December 1999. Here the UCI failed to appeal these decisions within the time limit and there were more delays attributed to the UCI.
Further the FVSU contended that the Athlete only had used homeopathic products, and not pharmaceutical. These products were not prohibited and when ingested could have produced an increased hCG reading and a positive test.

The Panel deems that a FVSU decision was made on or about 22 March 2000 which was appealed by the UCI within the time limit. The Panel establish that there was the admission of the positive test and that an anti-doping rule has been committed. The Panel concludes that the Athlete failed to explain the concentration levels of hCG found in his system nor did he explain with evidence how and when he had used the homeopathic products.

The Panel also considers that the UCI could have responded in a more timely fashion, particularly between 23 December and 6 March and may have resolved this dispute earlier if it had been more specific between November 1999 and March 2000 on exactly what the FVSU was required to do.

Therefore the Court of Arbitration for Sport decides on 30 August 2000 and directs as follows:

1.) That the appeal of the Union Cycliste Intemationale (UCI), the Appellant, against the decision of the Ukrainian Cycling Federation (UCF), the Respondent, is granted and therefore the decision of UCF dated 22nd March, 2000 is hereby cancelled.
2.) That Mr. Outchakov is found guilty of a doping offence under UCI Regulations.
3.) That Mr. Outchakov is hereby disqualified from the "Vuelta a Espana 1999".
4.) That Mr. Outchakov is suspended under the UCI Regulations with effect from the 22nd March 2000 for a period of six (6) months ending on the 22nd September 2000 with the consequence that all results and points are cancelled and other penalties or sanctions, if any, under the aforesaid Regulations shall apply during this period.
5.) That Mr. Outchakov shall pay a fine under the UCI Regulations of CHF 4'000.--.
6.) That Mr. Outchakov shall pay the UCI costs of this appeal limited to the amount of CHF 3'000.-- inclusive of the UCI Court Office fee of CHF 500.--.
7.) That all financial amounts referred to above shall be payable within seven (7) days of the date of this award and any sums paid later shall attract interest at the rate of 6% per annum calculated on a daily basis.

CAS 2000/A/274 S. / Fédération Internationale de Natation (FINA)

Related case:

CAS 2000_A_274 S. vs FINA - Preliminary Award
May 26, 2000

• Swimming
• Doping (testosterone)
• Burden of proof
• Right to be heard
• Prohibition of the retroactive application of substantive rules

1. The fundamental evidentiary nature of the IRMS Rule is not altered by the fact that this provision precludes athletes from raising a defence based upon evidence of a physiological or pathological condition. The T/E Rule only permits such a defence because an elevated T/E ratio does not constitute direct and conclusive evidence of the exogenous administration of testosterone. There may be other physiological or pathological reasons for an elevated T/E ratio. By contrast, IRMS analysis provides direct evidence of the exogenous administration of testosterone and, accordingly, there is no place for such a defence under the IRMS Rule.

2. Where a party adopts a position contrary to one it has previously taken, its conduct may constitute an abuse of right when the other party has relied on the initial position to its detriment. The prohibition against venire contra factum proprium does not however preclude a party from tendering new evidence or raising new arguments in an appeals arbitration procedure.

3. Under the Swiss Private Law Act, the right to be heard in adversarial proceedings specifically guarantees each party’s right to participate in the evidentiary proceedings, to rebut allegations made by the opposite party, to examine and criticize evidence adduced by the opposite party and to bring its own evidence in rebuttal before an award is rendered to its detriment. However, a party must immediately protest if it considers that its right to be heard has been violated, failing which, the party shall be deemed to have waived the right to protest at a later stage.

4. In general, it is necessary to apply the laws, regulations or rules that were in force at the time that the facts at issue occurred. This general principle is, however, subject to several exceptions, including an exception for laws or rules that are procedural in nature. In the absence of an express provision to the contrary, laws and rules relating to procedural matters apply immediately upon entering into force and regardless of when the facts at issue occurred.

On 25 March 2000 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Italian Athlete S. after her A and B samples tested positive for the prohibited substance testosterone with a T/E ratio above the threshold.

Hereafter in May 2000 the Athlete S. appealed the FINA decision of 25 March 2000 with the Court of Arbitration for Sport (CAS). The Athlete requested the CAS Panel to set aside the FINA decision and disputed the validity of the testing results related to the IRMS analysis of the samples.

The Panel finds that in this case it is common ground that the elevated T/E ratio detected on 24 January 1999 did not recur over the period of the Athlete’s longitudinal hormonal study. The Panel does not accept the Athlete’s submission that the sole finding of an elevated T/E ratio on 24 January 1999 can be explained by her physical condition.

Accordingly, the Panel finds that the longitudinal hormonal study constitutes additional evidence that the Athlete’s elevated T/E ratio was due to an exogenous administration of testosterone.

The Court of Arbitration for Sport Panel concludes that the Athlete has committed a doping offence under FINA Rules and decides on 19 October 2000:

1.) The Appeal filed by S. on 4 May 2000 is dismissed.

2.) The decision issued by the FINA Doping Panel on 25 March 2000 is confirmed.

CAS 2000/A/274 S. / Fédération Internationale de Natation (FINA), order of 26 May 2000

Related case:
CAS 2000_A_274 S. vs FINA
October 19, 2000

Conditions for granting a stay of a decision

On 25 March 2000 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Italian Athlete S. after her A and B samples tested positive for the prohibited substance testosterone with a T/E ratio above the threshold.

In May 2000 the Athlete S. appealed the FINA decision with the Court of Arbitration for Sport (CAS).
The Athlete requested the CAS Panel in this proceedings for the stay of the execution of the FINA decision in order to compete at the European Swimming Championships (in Helsinki between 29 June and 6 July 2000) and to be able to qualify for the Sydney 2000 Olympic Games.

In this Preliminary Award the CAS Panel finds that a doping offence has been established and that the FINA decision of 25 March 2000 is not contrary to the FINA Doping Control Rules.

Therefore the CAS Appeals Arbitration Division decides on 26 May 2000:

1.) Dismiss the application for provisional measures filed by S. on 4 May 2000.
2.) States that the present order is pronounced without costs.

CAS 2000/A/281 H. / Fédération Internationale de Motocyclisme (FIM)

• Motorcycling
• Doping (ephedrine)
• Strict liability

1. As a general rule, in cases of strict liability offences it is sufficient that the federation is able to show that a forbidden substance was found in the urine of the athlete and that the positive test result of the sample was not affected by procedural defects in the laboratory. Under the FIM Rules it is not a requirement that the forbidden substance is contained in medication. The FIM Medical Code also expressly prohibits the use of chemical identical substances. This includes herbal or homeopathic substances. More generally, it can also be found in the jurisprudence of the CAS that it is sufficient that the active substance appears on the doping list. The name of the product is not relevant.

2. The established IOC testing procedures need to be applied strictly and do not leave room for the transfer of certain methods from one testing procedure to another on a case by case basis. If there was a need for the application of a correction factor in ephedrine cases this decision had to be taken by the competent authorities of the IOC. It cannot be the task of the CAS to amend on a case by case basis the rules established by the International Olympic Committee and applied by the IOC accredited doping laboratories.

3. In a case of strict liability it is irrelevant whether the athlete was aware that he was using a substance appearing on the doping list. The CAS considers that products and homeopathic substances that do not give the chemical name of the substances but the names of herbal substances need to be examined with great care by the athlete.

On 2 June 2000 the Fédération Internationale de Motocyclisme (FIM) decided to impose a 1 month period of ineligibility on the Athlete H. after his A and B samples tested positive for the prohibited substance ephedrine. Thereupon on 15 June 2000 the FIM International Tribunal of Appeal (TIA) decided to uphold the Athlete’s disqualification and to reduce the imposed sanction to 3 weeks.

Hereafter the Athlete appealed the FIM TIA decision with the Court of Aribitration for Sport (CAS).
In addition the Athlete H. requested CAS for interim relief to stay the execution of the FIM TIA decision which CAS dismissed on 6 July 2000.

In favour of the Athlete the Panel considers that there is no evidence that the he acted intentionally. Furthermore it is not easy to recognise the substance MaHuang as a herbal sister of ephedrine.

The Panel also notes that the concentration of ephedrine in his urine sample tested was only slightly over the limit. Finally the Athlete presented himself as an honest man during the hearing and showed great regret for what he had done.

On the other hand, the Athlete also admitted that he made a terrible mistake and acted carelessly. His behaviour shows a certain degree of negligence which makes it necessary to raise the sanction above the minimum.

Therefore the Court of Arbitration for Sport decides on 22 December 2000:

1.) The appeal filed by H. on 4 July 2000 is partially upheld.

2.) The decision rendered by the FIM International Tribunal of Appeal on 30 June 2000 is annulled.

3.) The CAS renders the following decision:

• a.) H. is disqualified from the second race of the FIM World Championship event held in Kyalami on 2 April 2000 and has to return all trophies, prizes and any other entitlements won;
• b.) The disqualification of H. in connection with the first race of the FIM World Championship event held in Kyalami on 2 April 2000 is invalid; H. is entitled to the trophies, prizes, points and any other entitlements on the basis of the result achieved;
• c.) H. is suspended from any competition under the governance of FIM for a period of three weeks beginning 12 October 2000, exclusive of the suspension already served (7 days).

CAS 2000/A/289 UCI vs C. & Fédération Française de Cyclisme

TAS 2000/A/289 Union Cycliste Internationale (UCI) /C. & Fédération Française de Cyclisme (FFC)

• Cycling
• Doping
• Confession of a rider

1. In accordance with the general principle of non-retroactivity, which is widely applied in criminal matters, the UCI Rules effective at the time of the anti-doping violation must be applied in order to determine the nature of the anti-doping violation and the sanctions as result of the same violation.

2. According to the principle of lex mitior, applied in criminal matters and the regulatory adopted by CAS in accordance with to the constant jurisprudence, the competent authority in charge of sanctioning must apply the new law, if this is more favourable for the accused, even when the violations occurred before these came into force. In addition, the principle of lex mitior can be applied to anti-doping rules in view of the quasi-criminal character of the disciplinary sanctions they are permitted to impose.

In April 2000 the French elite level Athlete C. mentioned in an interview with the French magazine his cycling experiences with doping for many years and the effect on the athlete’s health and the falsification of sport results.

He acknowledged that he had used EPO in 1996 when he became winner of the 1996 UCI Mountain Bike World Championships. With his confession the athlete wanted to attract attention to the current and persistent phenomenon of doping in cycling.

As a consequence of his confession the Disciplinary Commission of the French Cycling Federation (FCC) decided on 28 June 2000 to impose a 1 year period ineligibility on the Athlete as suspended sanction, a CHF 4.000,- fine including disqualification of the 1996 UCI Mountain Bike World Championships.

Hereafter the International Cycling Union (UCI) appealed the FCC decision of 28 June 2000 with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the FCC decision and to impose an active sanction on the Athlete C.

The Panel considers the particular circumstances of this case and finds it appropriate to impose a 3 month period of ineligibility on the Athlete starting on the day of the hearing, i.e. on 24 November 2000.

Therefore the Court of Arbitration for Sport decides on 12 January 2001 to impose a 6 month period of ineligibility on the Athlete with 3 months as suspended sanction, including a CHF 4.000,- fine and disqualification of the 1996 UCI Mountain Bike World Championships.