TAS 2001/A/345 M. v. Scheizerischer Radfahrer Bund (Swiss Cycling)

TAS 2001/A/345 Roland Meier v/Swiss Cycling
CAS 2001/A/345 M. / Swiss Cycling

• Cycling
• Doping (rhEPO)
• Procedural defects
• Reliability of the testing method for rhEPO

1. Pursuant to the first paragraph of R57 of the CAS Code, the Panel has full power to review the facts and the law of cases before it. Any procedural defects which occurred in the internal proceedings
of a federation are cured by arbitration proceedings before the CAS.

2. The "direct test method", which tries to directly detect the presence of recombinant (artificial) EPO (rhEPO) in the urine of the person being tested, combines an isoelectrical focussing with a double immunal blotting. The method is based on the finding that artificially produced rhEPO behaves differently in an electrical field than human nEPO and can therefore be distinguished from one another. A second basic assumption of the test method is that, as is the case with many steroids, the production of natural hormones is reduced when an artificial hormone is introduced. The direct method for detecting rEPO is to be considered as being, in principle, sufficiently scientifically proven.

3. The finding of rhEPO in an athlete’s urine means that a doping offence has been committed.

On 27 August 2001 the Swiss Cycling's Doping Tribunal decided to impose a 8 month period of ineligibility and a CHF 4,000 fine on the Athlete after his A and B samples tested positive for the prohibited substance EPO Erythropoietin (EPO).

Hereafter in September 2001 the Athlete appealed the decision with the Court of Arbitration for Sport (CAS). The Athlete made the following assertions:

• The B-sample was not analysed within the prescribed period of ten working days.
• His request for or access to original documents was not granted.
• The minutes of the hearing were signed by a representative of Swiss Cycling instead of the tribunal.
• The quantity of the B sample was not sufficient for carrying out a test for rhEPO.
• The testing method (direct test method) is questionable for conclusive results.
• The principal of "in dubio pro reo" (in case of doubts the court must decide in favor of the accused) should be applied.
• Appellant request to be fully acquitted.

Swiss Cycling requested the Panel that the original decision to be confirmed:

• There was no doubt that the findings confirm the rhEPO in the urine sample.
• The procedural errors had no effect on the test result. 
• The generally permitted rhEPO test has sufficiently proven in several studies.

On 28 January 2002 the Court of Arbitration for Sport decides:

1.) The appeal is allowed in part.

2.) The decision of the Swiss Cycling's Doping Tribunal of 27 August 2001 is amended as follows:

In application of Article 90(1) no. 1 of the UCI's Anti-Doping Examination Regulations, M. is suspended for 8 months. Taking into account the period for which he could not take part in cycling races because of the doping allegation and the period of inactivity (Article 90(2) and (3) of the UCI's Anti-Doping Examination Regulations), the suspension commenced on 18 June 2001 and shall last until 17 May 2002. In addition, M. is obliged to pay a fine of CHF 2,000 to the Respondent. He is disqualified from the cycling race "Flèche Wallone 2001".

3.) (...)

CAS 2002/A/358 UCI vs O. & Real Federacion Española de Ciclismo

TAS 2002/A/358 UCI / O. & Real Federacion Española de Ciclismo (RFEC)

• Cycling
• Doping (EPO)
• Validity of the EPO testing method

1. The human body by nature does not produce recombinant EPO. In accordance with UCI regulations, the simple detection of recombinant EPO in the urine of the cyclist establish the anti-doping infringement.

2. The reliability of the technique developed and tested by the laboratory responsible for the analysis of urine samples has not been seriously scientifically challenged by the defendants. The Laboratory followed the Rules in use and in force during the performance of the analysis. Thus, the stand out of a significant predominance of basic isoforms by comparison with acidic isoforms, the laboratory has emphasized that the positive samples with recombinant EPO were beyond doubt. Also, EPO levels of 96.3% and 89.8% are well above the 80% level, applied by the laboratory as measure of precaution, and allow the valid conclusion of the existence of an anti-doping case.

In July 2001 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Spanish cyclist O. after his A and B samples tested positive for the prohibited substance recombinant human erythropoietin (rhEPO).

However on 17 December 2001 the Spanish El Comite Nacional de Competicion y Disciplina Deportive (CNCDD) on behalf of the Spanisch Cycling Federation (RFEC) filed the case after it ruled that due to the principle of the presumption of innocence it was impossible to declare the validity of of the EPO testing method.

Hereafter in Febuary 2002 the UCI appealed the RFEC decision of 17 December 2001 with the Court of Arbitration for Sport (CAS).

Considering the evidence and statements of the laboratory and expert witnesses the Panel concludes that the EPO testing method is valid and clearly shows the presence of the prohibited substance in the Athlete’s samples.

Therefore the Court of Arbitration for Sport decides on 24 September 2002 to impose on the Athlete a CHF 2.000,- fine, a 1 year period of ineligibility and a 2 year period as suspended sanction.

CAS 2002/A/360 Jovanovic v/USADA

In January 2002 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the Athlete Pavle Jovanovic after his A and B samples tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

Consequently on 26 January 2002 the AAA Panel decided to impose a 9 month period of ineligibility on the Athlete.

Hereafter the Athlete appealed AAA Panel decision with the Court of Arbitration for Sport (CAS). In his defence the Athlete filed arguments about the strict liability, the chain of custody, the testing, supplement contaimination and the sanction.

The Panel does not accept the Appellant's evidence as to the care he took about the taking of supplements. He did not approach the United States Bobsleigh Federation, or any other body, for guidance. He did not take medical advice.

He relied only upon his own research, which, as we have found, was considerably less thorough than he would have had us believe. Further he ignored wamings about the dangers of contamination given by a number of bodies, including the IOC and USADA. Finally, he expressed no contrition, and accepted no blame, but sought to blame the IOC, WADA and USADA but not himself for the predicament in which he now finds himself.

For these reasons, even if it had had the discretion to reduce the mandatory minimum sentence of two-year suspension, the Panel would not find "specific, exceptional circumstances" for doing so.

Therefore The Court of Arbitration for Sport decides on 7 February 2002:

1.) The appeal filed by Mr. Pavle Jovanovic on 28 January 2002 is dismissed.

2.) The decision of the AAA Panel of 26 January 2002 is varied as follows:

The Appellant is ineligible for competition for a period of two years from 29 December 2001.

3.) The award is pronounced without costs, except for the court office fee of CHF 500.— (five hundred Swiss Francs) paid by the Appellant which is retained by the CAS.

4.) Each party shall bear its own costs.

CAS 2002/A/362 IAAF vs Czech Athletic Federation (CAF) & Roman Zubek

CAS 2002/A/362 International Association of Athletics Federations (IAAF) / CAF & Z.

• Athletics
• Doping (DHEA)
• CAS jurisdiction
• Time-limit for appeal by IAAF
• Distinction between exogenous administration and endogenous production of DHEA

1. The CAS has jurisdiction pursuant to Rule 21 of the IAAF Rules which provides that all the appeals to the CAS be made within sixty days of the date of communication to the prospective appellant of the decision that is to be referred. When a national federation issues several decisions related to the same case, any activity or decision which goes beyond stating that the previous decision is final and therefore untouchable constitutes a new decision. The last decision considered as final by the national federation starts a new time period for appeal under the IAAF Rules.

2. Pursuant to the IAAF Rules, a doping offence takes place when a prohibited substance is present within an athlete’s body tissues or fluids. DHEA is listed as a prohibited substance. The doping offence is established if the testing procedures show that the concentration of DHEA in the A and B samples greatly exceeds the concentration that might result from endogenous production and if the isotope radio mass spectrometry (IRMS) analysis clearly indicates the synthetic origin of DHEA.

The Czech Athletic Federation (CAF) reported an anti-doping rule violation after sprinter Roman Zubek’s A and B samples tested positive for the prohibited substance dehydroepiandrosterone (DHEA). The Czech Athletic Federation (CAF) notified Zubek of the doping violation and ordered a provisional suspension. Zubek was heared for the Disciplinary Committee and requested additional testing of his sample.

The CAF Disciplinary Commission decided not to punish Zubek for the positive test result of the DHEA urine sample for the reason that in their opinion the found substance is [the body‟s] own substance. There is no limit for this substance in the body that should be understood as doping given by any competent authority (COC, IOC, and AC CR). As a matter of principle, the Disciplinary Commission of the Czech Athletic Federation cannot fairly evaluate the quantity of the substance in the body, if it was delivered artificially or if it was a body-own quantity. The CAF decided to cease Zubek’s suspension and not to punish him further.
Nevertheless Zubek’s sample was sent to the Cologne Laboratory for IRMS-testing for testing and revealing a high concentration of DHEA. After several deliberations with CAF the IAAF appealed CAF’s decision.

The Tribunal unanimously concludes that both tests in Praque and Cologne individually provide sufficient evidence to find a doping violation. Therefore, even if Zubek’s challenge to the second procedure had merit, it would be irrelevant. The tribunal also unanimously concludes that the original decision of the CAF not to sanction Z. for the doping violation was wrong.

Therefore the Court of Arbitration for Sport on 27 August 2002:

1.) Upholds the appeal filed by the IAAF on 31 January 2002.

2.) Finds that tests of Zubek’s samples from the 13 May 2000 athletics meeting in Prague provide evidence of a doping violation.

3.) Finds that the CAF failed to appropriately declare Zubek ineligible.

4.) Suspends Zubek from competition for 21 months, 13 days (two years less the two months, seventeen days served under the provisional suspension) from the date of this decision; i.e., until 10 May 2004.

TAS 2002/A/363 Pastorello c./USADA

Related case:

AAA 2001 No. 31 190 00164 01 USADA vs Joseph Pastorello
Janaury 15, 2002

In March 2001 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone (Nandrolone) due to a supplement he had used.

Consequently on 21 December the American Arbitration Association Panel decided to impose a 18 month period of ineligibility on the Athlete.

Hereafter in February 2002 the Athlete appealed the AAA decision with the Court of Arbitration for Sports (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.

The Athlete denied the intentional use of the substance, nor that he acted negligently and therefore had not breached the AIBA Doping Regulations. He asserted that a contaminated supplement was the source of the positiv test.

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

Following assessment of the case the Panel has considerable misgivings about the AAA's reduction of the sanction below the mandatory minimum, as well as about the condition imposed as a purported justification for that reduction and the jurisdictïon to impose such a condition. The Panel concludes, with considerable reluctance, that, on this occasion, it should not interfere with the AAA's decision.

Therefore the Court of Arbitration for Sport decides on 27 June 2002:

1.) The appeal fïled by Joseph Pastorello on the 7 February 2002 is dismissed.

2.) The decision of the AAA Panel dated the 18 January 2002 is affirmed.

3.) The award is pronounced without costs, except for the court office fee of CHF 500- (five hundted Swiss, Francs) paid by the Appellant, which is retainted by the CAS.

4.) Each party shall bear its own costs.

CAS 2002/A/370 Lazutina v/ IOC
CAS 2002/A/370 L. / International Olympic Committee (IOC)

Related cases:

• IOC 2002 IOC vs Larissa Lazutina
  February 24, 2002
• IOC 2002 IOC vs Olga Danilova
  February 24, 2002
• Swiss Federal Court 4P.267_2002 Larissa Lazutina & Olga Danilova vs IOC and FIS
• Swiss Federal Court 4P.268_2002 Larissa Lazutina & Olga Danilova vs IOC and FIS
• Swiss Federal Court 4P.269_2002 Larissa Lazutina & Olga Danilova vs IOC and FIS
• Swiss Federal Court 4P.270_2002 Larissa Lazutina & Olga Danilova vs IOC and FIS
  May 27, 2003

• Cross Country Skiing/Olympic Games
• Doping (darbepoetin)
• Reliability of the testing method

1. Although darbepoetin is not specifically listed as a prohibited substance in the Olympic Movement Anti-Doping Code (“OMAC”), it is an analogue or mimetic of erythropoietin which is recombinant EPO in that it is an artificial substance which is not naturally produced by the human body unlike natural EPO. Therefore it is a prohibited substance. In accordance with the OMAC, its use is permitted only to treat insulin-dependent diabetes and even then, only if written notification has been given prior to the particular competition by an endocrinologist or the team physician. In the present case no written notification has been given.

2. Contrary to the allegation that the methodology of testing for darbepoetin is experimental and not legally nor scientifically accepted, evidence was given as to the methodology and reliability of the combined blood and urine test. The existing test for EPO whether natural or recombinant can be used without modification to detect darbepoetin. On the basis of the existing evidence, the CAS considers that the methodology of testing for erythropoietin and darbepoetin is scientifically sound, and that the results produced by the tests are reliable.

Ms. Larissa Lazutina is a Russian Athlete competing in the 4x5 kilometer women’s relay cross-country skiing race ath the Salt Lake City 2002 Olympic Games.

In February 2002 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after her A and B samples tested positive for the prohibited substance Darbepoetin (dEPO)

The IOC Disciplinary Commission concluded that the Athlete had committed a doping offence. On the 24 February 2002 the IOC Executive Board accepted the conclusions and recommendations of the Disciplinary Commission. The Disciplinary commission disqualified the Athlete from the women’s 30 kilometre classical cross-country skiing race, ordered the withdrawal of her medal and diploma and ordered her exclusion from the Olympic Winter Games 2002.

As a result of the Athlete's violation the FIS decided on 3 June 2002 to impose a 2 year period of ineligibility on the Athlete.

Hereafter the Athlete filed several appeals against the imposed sanctions with the Court of Arbitration for Sport (CAS 2002/A/371 [IOC] and CAS 2002/A/398 [FIS]).

The issue in this appeal can be shortly stated. The Athlete  contends that the methodology of testing for darbepoeitin is experimental, and is neither legally nor scientifically accepted. In particular, she contends that it is not permissible to use the method of testing for erythropoietin in order to test for darbepoetin.

Furthermore, she contends that the test on the B sample was improperly carried out as the urine sample was poured from the sample bottle into a dirty, non-sterile container. There was, therefore, she submits, a danger of contamination.

Considering the evidence, the Panel has no hesitation in finding that the methodology of testing for erythropoietin and darbepoetin is scientifically sound, and that the results produced by the tests are reliable.

The Court of Arbitration for Sport decides on 29 November that:

1.) The appeal filed by Larissa Lazutina on 13th March 2002 is dismissed.

2.) The decision of the IOC Executive Board of 24th February 2002 is confirmed.

3. (...).

CAS 2002/A/374 M. / International Olympic Committee (IOC)

Related cases:

• CAS 2002_A_400 Johann Muehlegg vs FIS
  January 24, 2003
• IOC 2002 IOC vs Johann Muehlegg
  February 24, 2002
  
  

• Cross Country Skiing
• Doping
• Accreditation of the laboratory to conduct EPO testing
• Nature of Aranesp
• Validity of the testing procedure to detect Aranesp Sanction in case of out-of-competition doping control

1. The fact that an accreditation for the isoelectric focusing test was not granted to the laboratory at the time when the samples were tested does not mean that this laboratory was not capable of conducting the r-EPO test. The Olympic Movement Antidoping Code (OMAC) specifically provides for the evolution of scientific knowledge and testing procedures. What must be established to the comfortable satisfaction of the tribunal is that the testing procedure as carried out was in accordance with the prevailing standards and practices of the scientific community.

2. Aranesp is a substance, which has the effect of artificially boosting the oxygen in the blood by the introduction of a greater number of red blood cells, and for an elite performance athlete these additional red blood cells translate into enhanced stamina. The natural hormone EPO and r-EPO have precisely the same physiological effects. Aranesp is an analogue and mimetic of the Prohibited Substance r-EPO.

3. Aranesp is a Prohibited Substance and can not be produced naturally unlike r-EPO that has an overlapping fingerprint with EPO and can cause doubts as to whether the isoform is natural or artificial in nature. Therefore, it does not matter that there may be overlap with the natural bands of EPO as there can be no doubt that there was use of Aranesp and its source can not possibly be that of the human body. Therefore, the direct urine test employed to detect r-EPO can also be applied to detect Aranesp. The notable difference between the two applications is that Aranesp does not require a threshold safety margin to protect against false positives because of overlap, as does r-EPO.

4. The closing words of Article 3.5 OMAC indicate that where an athlete commits an out-of-competition doping offence, at least all the results obtained after the date the sample was taken shall be invalidated. The proper interpretation of this Article could be construed as limiting the invalidation of results to those results that were achieved after the later of the date the positive result was recorded or the date final judgment on the issue is rendered. This interpretation would result in the absurdity that an athlete could compete up until the final adjudication of a doping infraction and not have any results obtained in the interim period invalidated. This is contrary to the purpose of the OMAC and such an interpretation cannot be accepted. This article operates not to determine what results will be invalidated, but the date on which the invalidation of results is effectively imposed.

The Spanish Athlete Johann Muehlegg competed in the Men's 30 km Free Mass Start (February 9, 2002), the Men's 10 km Free Pursuit (February 14, 2002) and the Men's 50 km Classical (February 23, 2002). Muehlegg placed first in all three events acquiring Spain's only medals of the Games.

In February 2002 the International Olympic Committee (IOC) reported an anti-doping rule violation againt the Athlete after his A and B samples tested positive for the prohibited substance Darbepoetin (dEPO).

Consequently on 24 February 2002 the IOC decided that the Athlete was disqualified and excluded from the 2002 Salt Lake City Olympic Winter Games.

Hereafter in March 2002 the Athlete appealed the IOC Decision with the Court of Arbitration for Sport (CAS 2002/A/374). Also in June 2002 the Athlete appealed with CAS the decision of the International Ski Federation (FIS) to sanction the Athlete for 2 years after he tested positive for dEPO) (CAS 2002/A/400).

The Athlete requested the Panel to set aside the IOC decision and he disputed the reliability of the testing method and the  testing result.

Following assessment of the case the Panel concludes that the IOC Executive Board properly found Muehlegg to have committed a doping infraction and hereby upholds that decision. Also the Panel finds that the IOC Executive Board properly exercised its authority under the Olympic Charter and the OMAC to invalidate Muehlegg’s results in the 50km classical cross-country event, withdraw the gold medal obtained, and exclude him from the Games.

Therefore on 24 January 2003 the Court of Arbitration for Sport decides:

1.) The appeal filed by Johann Muehlegg on 16 March 2002 is dismissed.

2.) The decision of the Executive Board of the International Olympic Committee of 24 February 2002 is upheld.

3.) The award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss Francs) paid by Johann Muehlegg which is kept by the CAS.

4.) Johann Muehlegg is ordered to pay the sum of CHF 12’000.- (Twelve thousand Swiss Francs), to the IOC in contribution towards its legal costs.

CAS 2002/A/376 Baxter / International Olympic Committee (IOC)

• Alpine skiing / Olympic Games
• Doping (methamphetamine)
• Strict liability
• Irrelevance of any fault or of any enhancing effect
• Disqualification and exclusion from the Olympic Games

1. Consistent CAS case law has held that athletes are strictly responsible for substances they place in their body and that for purposes of disqualification (as opposed to suspension), neither intent nor negligence needs to be proven by the sanctioning body. Article 2.2 of Chapter II of the Olympic Movement Anti-Doping Code (OMAC) states that doping is the “presence in the body of a prohibited substance”, whether or not intentional or negligent, can affect the results of the event so that the presence of the substance is sufficient to find a doping violation.

2. Appendix A (I) to the OMAC lists among the classes of prohibited substances “amphetamines”. Thus, any form of amphetamines is covered by this listing, and there can be no doubt that both isomers of methamphetamine, including levmetamfetamine, are amphetamines within the meaning of that term. The IOC has not established any threshold level for methamphetamine. As a result, any level of methamphetamine constitutes a doping violation.

3. Disqualification is the minimum sanction that automatically follows a doping offence, in accordance with Article 3.3 of the OMAC. It is reasonable for the IOC to have determined that it may not always be possible to prove or disprove fault or performance-enhancing effect, but that in order to ensure the integrity of results the mere presence of a prohibited substance requires disqualification and invalidation of the result obtained.

Mr. Alain Baxter competed for the British team in the men's alpine skiing slalom event on 23 February 2002 at the Salt Lake City 2002 Olympic Winter Gamesy. He finished third and was awarded a bronze medal in the event.

On 21 March 2002, the IOC Executive Board decided for disqualifying Mr. Baxter and removing his bronze medal and diploma after his A and B samples tested positive for the prohibited substance Levmetamfetamine and Methamphetamine.

As a consequence of the positive urine test, the Fédération Internationale de Ski (“FIS”) suspended the Athlete from competition for three months. Mr. Baxter did not challenge the suspension or the length of the suspension.

Yet, in a separate CAS proceeding the Athlete appealed the manner of calculating the three-month period. Another CAS panel upheld the appeal and re-calculated the effective dates of the three-month suspension.

The issue of any suspension is therefore not before this Panel, which is only asked to determine the appropriateness of the disqualification of Mr. Baxter‟s Olympic results.

The Panel is not without sympathy for the Athlete, who appears to be a sincere and honest man who did not intend to obtain a competitive advantage in the race. It is unfortunate that, for whatever reason, he did not see the term levmetamfetamine on the package he bought or did not understand its import, and that he did not consult with his team doctor before taking the medication.

Nevertheless, because Mr. Baxter took the medication, at the time of his slalom race his body contained a prohibited substance. The consequence for this doping violation must be a disqualification and the loss of his bronze medal.

On 15 October 2002 the Court of Arbitration for Sport:

1.) Denies the appeal filed by Mr. Baxter and upholds the ruling of the IOC Executive Board disqualifying Alain Baxter from the men‟s alpine skiing slalom event at the Salt Lake City Winter Olympics, withdrawing his Bronze medal and diploma, and excluding him from the XIX Olympic Winter Games, Salt Lake City 2002;

2.) (…).