CAS 2000/A/310 L. / International Olympic Committee (IOC)

Related case:

CAS 2000_A_312 L. vs FILA
October 22, 2001

• Wrestling/Olympic Games
• Doping (nandrolone)
• Use of nutritional supplements
• Strict Liability Rule
• Validity of the testing procedure

1. The express terms of Chapter II, Article 2.2 of the Olympic Movement Antidoping Code (OMAC) clearly provide for the application of the principle of strict liability in regard to the offence of doping. The IOC has the initial burden of proving the presence of a prohibited substance in the body of the athlete that is the objective elements of the offence of doping. If the IOC meets its initial burden of proof, the principle of strict liability creates a presumption that a doping offence has been committed. The burden of proof then shifts to the athlete who may rebut the presumption.

2. From a purely scientific perspective, there may always exist a possibility that concentrations of 19-norandrosterone above 2 ng/ml could occur endogenously. It may well be that further indeed better studies should be undertaken. However, absent expert evidence to the contrary, the CAS has no basis for questioning the reliability of the studies conducted by experts in this field or the experience of the IOC-accredited laboratories.

3. In the present case, the athlete has failed to rebut the resulting presumption of a doping offence:
(i) failure to prove any discrepancies in the volume of urine recorded on the doping control documents,
(ii) failure to prove a broken chain of custody,
(iii) failure to prove any procedural irregularity in regard to the opening and analysis of the B sample. Any minor irregularity cannot be considered to have affected the results of an otherwise valid test.

The German Athlete L. competed at the freestyle wrestling event at the Sydney 2000 Olympic Games.

In September 2000 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete L. after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

On 23 October 2000 the IOC Executive Board decided for the disqualification of the Athlete, withdrawal of medal and exclusion from the Syndney 2000 Olympic Games.

Hereafter in November 2000 the Athlete appealed the IOC decision with the Court of Arbitration for Sport (CAS).
The Athlete disputed the validity of the testing results and requested the Panel to set aside the IOC decision.

The Panel dismisses the Athletes arguments and concludes that the Athlete committed a doping offence under the IOC Rules during the freestyle wrestling competiotion held at the Olympic Games in Sydney.

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

1.) The appeal filed by L. on 7 November 2000 against the decision made by the Executive Board of the International Olympic Committee dated 23 October 2000 is dismissed.

2.) (...).

As a consequence of the Athlete's anti-doping violation at the Sydney 2000 Olympic Games the International Federation of Associated Wrestling Styles (FILA) decided on 24 October 2000 to impose a 2 year period of ineligibility on the Athlete L. which was revised by the Court of Arbitratrion for Sport (CAS) on 22 October 2001 to a 1 year period of ineligibility (CAS 2001/A/312).

CAS 2000/A/312 L. / Fédération Internationale des Luttes Associées (FILA)

Relaterd case:

CAS 2000/A/310 L. vs IOC
October 22, 2002

• Wrestling
• Doping (nandrolone)
• Use of nutritional supplements
• Strict Liability Rule
• Interpretation of conflicting doping rules
• Mitigating circumstances

1. The subjective element of the doping offence must be considered in assessing the appropriateness of suspensions, fines and other similar sanctions, irrespective of the terms of the doping control rules at issue. If the CAS is satisfied that the athlete did not intentionally or negligently commit the offence of doping, it then becomes necessary to consider the nature of the athlete’s fault in relation to the impact of a two-year ban from international competition. In the event that a two-year suspension appears disproportionately severe, the CAS has a general discretion to reduce this sanction.

2. On the basis of the circumstances of this appeal (the athlete had likely consumed food supplements containing a nandrolone precursor and had an outstanding and unblemished sports career), the CAS Panel concludes that there exist « specific and exceptional attenuating circumstances » which justify a reduction of the athlete’s two-year suspension in accordance with the FILA Doping Regulations.

On 23 October 2000 the International Olympic Committee (IOC) decided to disqualify and to exclude the German Athlete L. for the Sydney 2000 Olympic Games after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

On 22 October 2000 the Court of Arbitration for Sport (CAS) decided to dismiss the Athlete’s appeal against the IOC decision of 23 October 2000 (CAS 2000/A/310) and on 24 October 2000 the International Wrestling Federation (FILA) decided to impose a 2 year period of ineligibility on the Athlete for his anti-doping violation committed at the Sydney 2000 Olympic Games.

Hereafter in November 2000 the Athlete appealed the FILA decision of 24 October with CAS. Again the Athlete disputed the validity of the testing results and requested the Panel to set aside the FILA decision of 24 October 2000.

The CAS Panel finds that the Athlete L. has not proven that he did not intentionally or negligently commit the offence of doping. The Panel concludes that after carefully considering all of the circumstances of this appeal that there exist “specific and exceptional attenuating circumstances” which justify a reduction of the Athlete’s two-year suspension in accordance with Article 26.5 of the FILA Doping Regulations.

Therefore the Court of Arbitration for Sport decides on 22 October 2001:

1.) The appeal filed by L. on 27 November 2000 against the decision made by the FILA Sports Judge dated 24 October 2000 is granted in part.

2.) The decision made by the FILA Sports Judge dated 24 October 2000 shall be modified as follows: L. is suspended for a period of one year (12 months) from 30 September 2000 to 29 September 2001.

3. (...).

CAS 200I/A/317 Aanes v/FILA

CAS 2001/A/317 A. / Fédération Internationale de Luttes Associées (FILA)

• Wrestling
• Doping (nandrolone)
• Use of nutritional supplements
• Strict Liability Rule
• Mitigating circumstances

1. The legal relations between an athlete and a federation are of a civil nature and do not leave room for the application of principles of criminal law. This is particularly true for the principles of in dubio pro reo and nulla poena sine culpa and the presumption of innocence as enshrined in Art. 6 ECHR.

2. It is perfectly proper for the rules of a sporting federation to establish that the results achieved by an athlete at a competition during which he was under the influence of a prohibited substance must be cancelled irrespective of any guilt on the part of the athlete. This conclusion is the natural consequence of sporting fairness against the other competitors. The interests of the athlete concerned in not being punished without being guilty must give way to the fundamental principle of sport that all competitors must have equal chances.

3. If the federation is able to establish the objective elements of a doping offence, there is a presumption of guilt against the athlete. The principle of presumed fault on the part of the athlete does not, however, leave him without protection because he/she has the right to rebut the presumption, i.e. to establish that the presence of the prohibited substance in his/her body was not due to any intent or negligence on his/her part.

4. An athlete cannot exculpate himself/herself by simply stating that the container of the particular product taken by him/her did not specify that it contained a prohibited substance. It is obvious that the sale of nutritional supplements, many of which are available over the internet and thus sold without an effective governmental control, would go down dramatically if they properly declared that they contain (or could contain) substances prohibited under the rules governing certain sports. Therefore, to allow athletes the excuse that a nutritional supplement was mislabelled would provide an additional incentive for the producers to continue that practice. In summary, therefore, it is no excuse for an athlete found with a prohibited substance in his/her body that he/she checked the label on the product he took and that the label did not specify that the product contained a prohibited substance.

In September 2000 the International Olympic Committee reported an anti-doping rule violation against the Norwegian weightlifter Fritz Aanes after he tested positive for the prohibited substances 19-norandrostenedione and 19-norandrosterone (Nandrolone).

Consequently on 1 October 2000 he was disqualified and excluded from the Sydney Olympic Games. Thereupon on 24 October 2000 the FILA Sport Judge decided to impose a sanction of 2 years on the Athlete.

Hereafter in Januari 2001 the Athlete appealed the FILA Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to declare it invalid.

The Athlete denied the intentional use of the substance nor that he acted negligently. He asserted that a contaminated supplement was the source of the positive test and because of exceptional circumstances there were no grounds to impose a sanction.

The Panel finds that the presence of a prohibited substance has been established in the Athlete's samples and accordingly that he committed an anti-doping rule violation.

The Panel determines that the violation was not intentional and that he had acted negligently. Further the Panel deems that mitigating circumstances justify the imposition of a reducted sanction.

Therefore on 9 July 2001 the Court of Arbitration for Sport decides:

1.) The appeal filed by A. on 3 January 2001 is partially upheld.

2.) The decision of the FILA Sport Judge of 24 October 2000 shall be modified as follows: A. is suspended for a period of 15 months from 27 September 2000 to 26 December 2001.

3.) (…).

CAS 2001/A/318 V. vs Swiss Cycling

TAS 2001/A/318 V. / Fédération Cycliste Suisse (Swiss Cycling)

• Cycling
• Doping
• Calculation and duration of the suspension
• Equal treatment

1. The cyclist who has the habit of using doping continuously, and subject to a veritable programme, commits innumerable acts, each liable to punishment, however these are not considered as one single act in the sense of a continuous infringement. However, in such a case, the period of limitation does not begin to run for the duration of a continuous offence but only to start from the commission of the last infraction.

2. Given the importance of the doping use admitted by the cyclist (regular use of high numbers of erythropoietin (EPO), anabolic steroids, corticosteroids and caffeine), a suspension of nine months is not excessive. The sanction should be closer to the maximum margin stated in the UCI Anti-Doping Rules, i.e. 1 year. However, CAS has not the possibility to aggravate the sanction, because no conclusions have been rendered by one of the parties.

3. The suspension is not justified for the cyclist who has admitted to use of doping constrained later hereafter.

The Festina affair was a series of doping scandals that occurred during and after the 1998 Tour de France. The affair began when numerous doping products were found in a car belonging to the Festina cycling team just before the start of the race.

A resulting investigation revealed systematic doping, and suspicion was raised that there may have been a widespread network of doping involving many teams of the Tour de France. Hotels were searched by police, confessions were made by retired and current riders, and team personnel were arrested or detained. Several teams withdrew from the race.

In October 2000, during a criminal trial, the cyclist Virenque admitted the use of doping. As a consequence of his admission Swiss Cyling, at the request of the UCI, opened proceedings against the Athlete and decided on 29 December 2000 to impose a CHF 4.000,- fine and a 9 month period of ineligibility, without a suspended sanction, starting on 1 February 2001.

Hereafter the Athlete appealed the decision of Swiss Cycling with the Court of Arbitration for Arbitration for Sport (CAS). The Athlete accepted the fine and requested the Panel to impose a reduced or suspended sanction, starting on December 2000 in stead of 1 February 2001.

The Panel finds that Athlete’s guilt is great considering his use of high numbers of doping products between 1993 and 1998 and compared to the 3 other sanctioned cyclist in this affair.

Therefore on 23 April 2001 the Court of Arbitration for Sport decides to impose a CHF 4.000,- fine and a 9 month period of ineligibility on the Athlete, starting on 30 December 2000 and ending on 14 August 2001 regarding the time already served.

CAS 2001/A/328 F. / International Sports Organization for the Disabled (ISOD), International Paralympic Committee (IPC), Disabled Sports USA (DS/USA)

• Doping (nandrolone)
• Stay of the execution of a sanction

The Appellant, is a Parathlete affiliated to Disabled Sports USA (DS/USA), competing at the 11th Paralympic Summer Games in Sydney.

In October 2000 at the Paralympic Summer Games in Sydney the Athlete tested positive for the prohibited substance Nandrolone i a low concentration. Consequently on 29 October 2000 the International Paralympic Committee (IPC) decided to impose a 4 year period of ineligibility on the Athletet including the 12th Paralympic Summer Games in 2004.

The CAS Panel establishes that in the instant case a hearing of the Appeal cannot take place prior to the 10 August 2001 because the IPC’s offices will be closed and the IPC representatives will not be able to respond and/or participate until that date.

The Panel finds that if the Appellant’s request for provisional relief is denied, he will be ineligible to compete in the International Challenge Track and Field Championship even if he is successful in his appeal of the decision of DS/USA; The interests of the Respondents in maintaining the suspension would appear to be minimally affected by the granting of limited interim relief.

The Court of Arbitration for Sport decides on 3 August 2001:

1.) Grants the request for a stay of the suspension of F. until the final award.

2.) States that the present order is pronounced without costs.

CAS 2001/A/330 R. / Fédération Internationale des Sociétés d’Aviron (FISA)

• Olympic Games
• Doping (nandrolone)
• Validity of a life ban for a first doping offence

1. The life ban sanction imposed was based upon valid provisions of the FISA Rules. Those provisions were well-known and predictable to all rowers, and had provided for the possibility of a life ban for a first doping offence for more than 12 years. In addition, the Appellant (rower) had signed the “rower commitment”, which clearly confirmed that doping violations in the sport of rowing were punishable with a life ban for a first offence. In the circumstances, therefore, the CAS has no hesitation in finding that the sanction contained in FISA’s Rules satisfied what might be called the “predictability test”.

2. Although the CAS undoubtedly has the authority to correct any penalty as it sees fit, it would hesitate for a long time before over-ruling a decision by an International Federation, unless it thought that the Federation’s decision was disproportionate to the offence. While it is clear that many International Federations have decided that a two year suspension is appropriate for a first doping offence, it is equally clear that other International Federations, such as FISA, have chosen to impose higher minimum sanctions as a demonstration of their determination and commitment to the eradication of doping in their sport.

3. As a matter of principle, a life ban can be considered both justifiable and proportionate in doping cases. That is so even if the ban is imposed for a first offence.

R. (The Athlete) is a Latvian Athlete competing in the rowing regatta at the Sydney 2000 Olympic Games.

In September 2000 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance nandrolone.

On 23 September 2000 the IOC decided to disqualify the Athlete and excluded him from the Olympic Games.
On 14 May 2001 the Fédération Internationale des Sociétés d’Aviron (FISA), the World Rowing Executive Committee decided to impose a lifetime period of ineligibility on the Athlete.

Hereafter the Athlete appealed the FISA decision with the Court of Arbitration for Sport (CAS).
The Athlete stated that he was planning to finish his sports career after the Sydney Olympic Games, but that he wanted to support the development of rowing in Latvia. He said that it would be an advantage to those who were organising rowing regattas in Latvia to have him present, and participating in the regatta.

The Panel noticed that the Athlete R. has had a number of opportunities at hearings before the FISA Commission of Enquiry, the FISA Executive Committee and the Panel to adduce evidence to demonstrate his lack of culpability, but has failed to avail himself of any of those opportunities. In particular, he failed to produce any evidence to the Panel which might have persuaded the Panel that the sentence imposed was disproportionate.

The Panel is of the view that the Athlete willingly and foolishly exposed himself to a serious risk by taking such a cocktail of food supplements and other substances as is shown by the evidence that he did take.

Therefore the Court of Arbitration for Sport Panel decides on 23 November 2001 to dismiss the Athlete’s appeal.

CAS 2001/A/337 B. / Fédération Internationale de Natation (FINA)

• Swimming
• Doping
• Decision of a civil court applied by a national federation
• Jurisdiction of the international federation
• Validity of the testing procedure
• Conditions for the storage of urine samples
• Proportionality of the sanction

1. An international federation cannot be bound by decisions of state courts issued in proceedings to which this federation has not been a party. Thus, FINA enjoys full discretion to issue its own decisions based on a certain set of given facts despite any proceedings on a national level which may also concern these facts but to which this federation was not a party.

2. A pathway from testosterone or androsterone to 19-norandrsoterone outside the human body may be theoretically conceivable, for example in case of degradation of urine samples, but, absent any scientific evidence to this effect, it remains pure speculation.

3. The wording of the FINA Rules clearly shows that FINA itself does allow deviations from the catalogue of fixed sanctions in the light of special circumstances. Thus, CAS has the authority to adjust the sanction against the athlete in the light of the circumstances of the case at stake. A sanction may not be disproportionate and must always reflect the extent of the athlete's guilt. Therefore, CAS in its capacity as an appeals body enjoys the same discretion in fixing the extent of the sanction as do the IF's internal instances. In fact, the Panel would enjoy this discretion even if there were no "exceptional attenuating circumstances".

In December 1999 the New Zealand Sports Drug Agency (NZSDA) 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 (nandrolone).

On 14 June 2001 the International Swimming Federation (FINA) Doping Panel decided to impose a 4 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 22 May 2000, including disqualification of his results.

Before the FINA Doping Panel could render its decision on 14 June 2001 this case was appealed with three New Zealand courts between January and December 2000 ruling about the sample transport irregularities to the laboratory.

Following these court decisions, the national swimming federation of New Zealand declined to institute or continue further proceedings against the Athlete which could have led to sanctions being imposed.

Hereafter in July 2001 the Athlete appealed the FINA Doping Panel decision of 14 June 2001 with the Court of Arbitration for Sport (CAS).

The Athlete requested the Panel to set aside the FINA decision of 14 June 2001 and claimed that FINA does not have any power to impose a sanction against him because there has not been any valid or lawful positive doping test.

The Athlete is of the opinion that FINA could not rely on the doping test results of the Sydney laboratory and the NZ-SDA. The test result was flawed due to the circumstances of this case.

The Panel finds that the proceedings in this case have unveiled a number of irregularities in the transportation, testing and analysis of the Athlete's samples which the Panel has examined one by one and with respect to each of which the Panel was not convinced that they were sufficient to discard the Athlete's test results.

The Panel is aware that doping control is a complex process susceptible to errors. However, the Panel is concerned about the number of irregularities in this case and wishes to point out that there may well be instances where the number of irregularities (even if insignificant on a stand-alone basis) reaches a level which may call into question the entire doping control process. The Panel is convinced that the number of errors stays below this threshold.

When taking into consideration all the elements of this case, in particular the fact that the Athlete is presumed to have acted at least negligently but without intent to indulge in doping, the Panel is of the view that, based on the evidence produced, there are mitigating circumstances which warrant a reduction of the maximum penalty allowed under the rules and regulations of the FINA.

In the absence of any explanation for the presence of the prohibited substance in the Athlete's body, other than the transformation theory which the Panel does not adopt, it must remain a period of suspension which is meaningful in all the circumstances. As a result, the Panel is of the opinion that it is adequate and appropriate to suspend the Athlete for two years.

Therefore the Court of Arbitration for Sport decides on 22 March 2002:

1.) The appeal is partially upheld.

2.) The decision of the FINA Doping Panel of June 14, 2001 is modified as follows:

The Athlete B. is suspended for a period of two years beginning on 19 May 2000. All results obtained by the Appellant six months prior to May 19, 2000 are cancelled.

3. (…)

CAS 2001/A/343 Union Cycliste Internationale (UCI) / H.

• Cycling
• Doping (rhEPO)
• Reliability of the analysis method
• Objective criteria to identify rhEPO
• Timeliness of the appeal

1. There is no UCI rule or regulation whereby the existence of rhEPO can be concluded only from a combined blood and urine test. The UCI’s rules do not contain any provision whereby a sample can be considered positive only if the rhEPO exceeds a certain threshold. Evidence of even only minimal quantities of rEPO is sufficient for it to constitute a violation of the UCI’s Antidoping Regulations. The UCI has laid down that exogenously administered rhEPO must be established using the direct test method (urine test without a blood test).

2. A sample cannot be declared positive or negative depending on the subjective opinion and/or experience of the laboratory staff according to the maxim "I know it when I see it". Rather it is imperative that the laboratory applies reliable and verifiable criteria, making it possible for third parties to objectively understand the conclusions reached.

3. It is not acceptable for the B sample to be subjected to different standards from the A sample. The whole purpose of the B sample is to confirm the A sample. However, such confirmation only makes sense if the same test method has been applied to both samples and if the test results are evaluated pursuant to the same principles. If the test results of the B sample have not been measured using the same standards as in the A sample, the A sample is not confirmed, rather a new analysis has been carried out pursuant to a different method of evaluation.

In May 2001 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Danish Athlete H after his A and B samples tested positive for the prohibited substances recombinant erythropoietin (rhEPO).

However on 9 August 2001 the Doping Tribunal of the National Olympic Committee and Sports Confedertion of Denmark acquitted the Athlete.

Hereafter in August 2001 the UCI appealed the Danish decision of 9 August 2001 with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the Danish decision and to sanction the Athlete for the anti-doping violation.

The Athlete H. argued that the UCI appeal with CAS was filed out of time, and the test results do not constitute unequivocal evidence of rhEPO in his sample.

In this case one of the Athlete’s two B samples showed a level of 78.6% and thus lay below the 80% threshold. Nevertheless the laboratory found the Athlete's sample to be positive. The CAS Panel concludes that the result is that the B sample did not confirm the A sample because one of the B samples did not attain the level of 80% laid down by the laboratory itself for the A sample. The Panel does not consider the conditions to be met for a penalty to be imposed because of a contravention of the UCI's Antidoping Regulations.

Therefore on 28 January 2002 the Court of Arbitration for Sport decides that:

1.) The appeal is dismissed.

2.) The decision of the Doping Tribunal of the National Olympic Committee and Sports Confederation in Denmark of 9 August 2001 (case 6/2001) is upheld.

3.) (…)