TAS 2002/A/378 Filippo Simeoni vs. UCl and FCI
CAS 2002/A/378 S. / Union Cycliste Internationale (UCI) and Federazione Ciclista Italiana (FCI)

• Cycling
• Acknowledgement of doping
• Duration of the suspension/probation period
• Calculation of the period of inactivity of the rider

1. The UCI Antidoping Examination Regulations (AER) apply to all licence holders irrespective of whether they admitted having been doped on the occasion of a specific race.

2. The period of normal inactivity should be construed restrictively, and should only be applied if there are no races during the period that the rider would otherwise participate in.

3. According to UCI AER, a probation to a sanctioned cyclist may be granted by CAS. In the present case, the athlete, who admitted having used prohibited and doping substances, did contribute in a relevant way to the fight against doping, insofar as he broke the «wall of silence» and contributed with his testimony to the criminal indictment and sporting penalisation of other people.

The Appellant, Filippo Simeoni, is a professional road cyclist. He is an Italian citizen and holder of a licence issued by the FCI. In the context of an investigation conducted by the Italian criminal authorities on the use of doping substances in cycling, the Athlete was called to testify as a witness in July 1999. In the course of that investigation, he admitted having used prohibited and doping substances from November 1996 until July 1997, at a time when his medical support was provided by Dr. Ferrari.

As a consequence of his anti-doping violation the FCI decided on 6 December 2001 to impose a 3 month period of ineligibility on the Athlete. However the UCI Commission Antidopage decided to set aside the FCI decision and imposed on 10 April 2002 a fine of CHF 2'000.- and a 6 month period of ineligibility on the Athlete.

In April 2002l the Athlete appealed the imposed sanction with the Court of Arbitration for Sport (CAS) and made the following assertions:

a) By rendering its decision of 10 April 2002 «automatically», the UCI violated fundamental rights of defence of the Appellant, i.e. his right to a fair trial and to cross-examination, the principle of ne bis in idem, the principle of separation between the investigating body and the disciplinary authority;

b) The UCI, by rendering its decision on 10 April 2002, did not act in due course and infringed upon the principle of certainty of law;

c) The rules on which the UCI based its decision of 10 April 2002 were either not in force or not applicable;

d) The UCI made an erroneous calculation of the period of inactivity applied in the Appellant’s case;

e) The Appellant should be rewarded for his co-operation and spontaneous recognition of his faults and, therefore, should have been granted probation.

The Panel feels that the Athlete did not show a fully co-operative and spontaneous behaviour since he only admitted having used doping substances in the course of the criminal investigation and, subsequently, he did not disclose this fact immediately to the national and international cycling bodies.

However, the Athlete did contribute in a relevant way to the fight against doping, insofar as he broke the «wall of silence» and contributed with his testimony to the criminal indictment and sporting penalisation of other people – in particular, one well-known physician – responsible of doping practices. The Panel concluded to follow the UCI’s proposal and to grant probation for two months to the Appellant.

In view of the foregoing reasons, the Panel holds that the term of suspension of the Athlete must be calculated.

• Beginning of the suspension: on the day following the decision of suspension rendered by the FCI: 24 November 2001.
• Minimum suspension of six months starting from 24 November 2001, thus ending on 24 May 2002.
• Period of inactivity for the Athlete.: from 24 November 2001 till 20 January 2002, i.e. 58 days to be added to the term of suspension.
• End of the term of suspension taking into account the period of inactivity of The Athlete (24 May 2002 plus 58 days): 21 July 2002.
• Addition of the period of time between 6 March 2002 and 10 April 2002 during which the Athlete was under no suspension and was free to compete (35 days): 25 August 2002.
• Reduction of two months of the term of suspension as a probation period: 25 June 2002 (end of the term of effective suspension imposed on the Appellant).

Therefore on 8 August 2002 the Court of Arbitration for Sport decides that:

1.) The Appeal filed by the Athlete, on 16 April 2002 is partially admitted.

2.) The Athlete is suspended, taking into account a period of inactivity, from 24 November 2001 until 25 June 2002. The fine of CHF 2'000.- is confirmed.

3. (...).

CAS 2002/A/383 IAAF vs CBAt & Dos Santos

In May 2001 the IAAF reported an anti-doping rule violation against the Brazilian Athlete Fabiane Dos Santos after her A and B samples tested positive for the prohibited substance Testosterone with a T/E ratio above the WADA threshold. The Athlete's samples were collected in May 2001 in Brazil and in June 2001 in Spain and thereupon tested in the Laboratories in Montreal, Madrid, Oslo and Cologne.

Considering the findings of the Laboratories and the opinion of experts the IAAF concluded that the positive findings of the samples provided in Brazil were related to application of exogenous androgenic steroids and not to a pathological of physiological condition.

However the Brazilian Athletics Confederation (CBAt) Sports High Court accepted the evidence of an expert witness and decided on 11 March 2002 to absolve the Athlete due to there was doubt about the reliability of the B sample results.

Hereafter in May 2002 the IAAF appealed the CBAt Decision with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the Appealed Decision and to impose a lifetime ban on the Athlete.

The Panel assessed and addressed the following issues raised by the Parties:

• The doping offence;
• The Athlete's T/E ratio is inconsistent with normal endogenous production;
• IRMS analysis demonstrates that synthetic Testosterone was exogenously administered;
• The Athlete's allegation that the A sample and B sample are not from the same person;
• The Athlete's submission that Prof. Ayotte and Prof. Hemmersbach are not independent;
• The Athlete's submission that there was a violation of due process.

Accordingly the Panel determines that:

1. a prohibited substance, Testosterone, was present in the body of Ms. Dos Santos;
2. the presence of this prohibited substancej in and of itself, constitutes "doping" within the meaning of IAAF Rule 55.2;
3. this is the Athlete's second doping offence;
4. pursuant to IAAF Rule 60.2, the sanction of “ineligibility for life” automatically applies in the case of a second doping offence, and, therefore;
5. the CBAt Sports High Court "reached erroneous conclusion" within the meaning of IAAF Rule 22.3 when it absolved M. Dos Santos of a doping offence in its decision dated 11 March 2002.

Therefore the Court of Arbitration for Sport decides on 27 January 2003:

1.) The Appeal filed by the IAAF on 13 May 2002 is granted in part.

2.) The decision lssued by the CBAt's Sport High Court in Mauaus City on 11 March 2002 shall be modified as follows:

"Ms. Fablane Dos Santos committed an offence of doping within the meaning of IAAF Rufe 55.2(i) and is declared ineligible for life pursuant to IAAF Rule 60. 2(a)(II)".

3.) The Court Office fee of CH 500.- (five hundred Swiss francs) already paid by the IAAF shall be retained by the CAS.

4.) IAAF and CBAt shall each bear their own costs. IAAF is ordered to pay an amount of CH 5'000 (five thousand Swiss francs), together with interests at 5% from tho date of the decision, to Ms Fabiane Dos Santos as a contribution towards her fogal fees and expenses.

CAS 2002/A/385 T. / International Gymnastics Federation (FIG)

• Gymnastics
• Doping (furosemide)
• Nutritional supplement
• Strict liability
• Failure to invite the athlete for the B-test
• Mitigating circumstances

1. The failure to provide the athlete with an opportunity to be present or be represented at the opening and analysis of the B-sample constitutes a procedural error compromising the limited rights of an athlete to such an extent that the results of the analysis of the B-sample and thus the entire urine test should be disregarded.

2. It is not a positive urine test but the presence of a prohibited substance in an athlete’s body which constitutes a doping offence. While the appellant in this case denies ever having taken Furosemide, the CAS Panel is of the view that there is overwhelming proof that she in fact did. The Appellant admitted having taken a version of “Hyper” (a nutritional supplement) which had not been previously tested and later turned out to contain a forbidden substance. The fact that the Appellant may not have been aware of the existence of Furosemide is of no relevance in respect of the objective elements of this case.

3. It has been a known and widely publicised fact for several years that food supplements can be – and sometimes intentionally are – contaminated with products which are prohibited in sports. An athlete who ignores this fact, does so at his/her own risk. It would be all too simple and would frustrate all the efforts being made in the fight against doping to allow athletes the defence that they took whatever the team doctor gave them, thus attempting to shift the responsibility to someone else. The athlete's negligence lies in the fact that he/she uses food supplements which include a generally known risk of contamination. The extent of the precaution taken to reduce the risk of contamination may have a bearing on the extent of the sanction.

Between September 2001 and February 2002 the International Gymnastics Federation (FIG) reported two anti-doping rule violation against the Russian Athlete after her A and B samples, collected in Australia and in Spain, tested positive for the prohibited substance furosemide.

On 20 February 2002 the FIG Special Commission decided to impose a 1 year period of ineligibility on the Athlete followed by 1 year’s suspension with probation.
On 9 May 2002 the FIG Executive Committee dismissed the Athlete’s appeal against the FIG decision of 20 February 2002. Hereafter in May 2002 the Athlete appealed both FIG decisions of 20 February and 9 May 2002 with the Court of Arbitration for Sport (CAS).

The Athlete requested the Panel to annul the FIG decisions and argued that her rights were infringed during the doping test procedure because the laboratory reports showed signs of irregularities and because she was not informed of the date and the time when the B-sample was to be opened and analysed by the Australian laboratory. Furthermore, the Athlete denied that she ever admitted having taken a forbidden substance.

Consideration all the elements of this case, in particular the fact that the Athlete acted negligently but without intent and that she was only 19 years old at the time of the offence, the Panel is of the view that, based on the evidence produced, there are mitigating circumstances which warrant a considerable reduction from the maximum penalty allowed under the rules and regulations of the Respondent.

As a result, the Panel is of the opinion that the suspension for a 12 month period and a "probation" for an additional 12 month period, as imposed by the FIG, is adequate and appropriate.

Therefore on 23 January 2003 the Court of Arbitration for Sport decides:

1.) The appeal filed by T. is rejected.

2.) The decision of the FIG Executive Committee of 8/9 May 2002 is confirmed.

3. (...).

CAS 2002/A/389, 390, 391, 392 & 393 A., B., C., D. & E. / International Olympic Committee (IOC)

• CAS 2002/A/389 Walter Mayers vs IOC
• CAS 2002/A/390 Marc Mayer vs IOC
• CAS 2002/A/391 Achim Walcher vs IOC
• CAS 2002/A/392 Peter Baumgart vs IOC
• CAS 2002/A/393 Volker Müller vs IOC

• Cross country skiing
• Blood doping
• Use of a prohibited method
• No legitimate medical treatment

1. The definition of Blood Doping pursuant to the Olympic Movement Antidoping Code (OMAC) includes the administration of the athlete’s own blood. The definition of blood doping is met irrespective of the amount of blood withdrawn and re-injected and whether or not it is potentially harmful to athletes’ health and/or capable of enhancing their performance.

2. The conditions under which a certain medical treatment, which would otherwise fall under the definition of doping, may be justified are truly exceptional and must therefore be demonstrated by the athlete or the person performing such treatment. To determine whether a certain medical treatment is legitimate under the OMAC, the CAS applies the following test:
a) The medical treatment must be necessary to cure an illness or injury of the particular athlete;
b) Under the given circumstances, there is no valid alternative treatment available which would not fall under the definition of doping;
c) The medical treatment is not capable of enhancing the athlete’s performance;
d) The medical treatment is preceded by a medical diagnosis of the athlete;
e) The medical treatment is diligently applied by qualified medical personnel in an appropriate medical setting;
f) Adequate records of the medical treatment are kept and are available for inspection.

3. In the present case, the UV Blood Transfusions were administered in a private place by a coach with no medical support and without supervision of, or disclosure to, the team doctor, the IOC Medical Commission or the team management. The UV Blood Transfusions were not even documented by proper records. Consequently, the test for legitimate medical treatment was not met and the blood transfusion must be considered as blood doping.

On 26 February 2002, shortly after the Salt Lake 2002 Olympic Winter Games, various items were found by a cleaner in a chalet in Midway, Utah, which was occupied by the Austrian cross-country and biathlon coach along with his wife. It was subsequently determined that the chalet had been frequently visited by members of the Austrian cross-country and biathlon teams.

The material discovered by the cleaner included vials and ampoules, various phosphate and sodium salts, vitamins and amino acids and transfusion equipment, including 3 blood bags (with blood residue), a blood transfusion device, multiple infusion sets (with blood in the IV lines), butterfly needles, syringes and used needles.

After an investigation, the IOC sanctioned on 26 May 2002 the Austrian team coach, the team chiropractor, and two Austrian athletes. Hereafter in June 2002 the IOC decision was appealed with the Court of Arbitration for Sport (CAS).

The main issues to be resolved by the Panel are:

(a) Was the IOC EB competent to issue a sanction against the Appellants?

(b) If yes: Did the IOC EB violate the minimum requirements regarding due process by not explicitly referring to the witness statement of Dr. Frick?

(c) Does the UV-Blood Transfusion as admittedly performed by Mr. Walter Mayer qualify as Prohibited Method according to the OMAC?

(d) If yes: Does the UV-Blood Transfusion as performed by Mr. Walter Mayer have to be considered as legitimate medical treatment?

(e) If UV-Blood Transfusions as performed by Mr. Walter Mayer are considered as a prohibited method: did Dr. Peter Baumgartl or Mr. Volker Müller facilitate the use of doping?

(f) Do the treatments performed by Mr. Volker Müller at the 2002 Winter Games have to be considered infractions on regulations applicable during these Games?

The Court of Arbitration for Sport decides on 20 March 2003:

1.) The Appeals filed by Walter Mayer, Marc Mayer, Achim Walcher and Dr. Peter Baumgartl are dismissed.

2.) The Appeal filed by Volker Müller is partially upheld.

3.) The CAS renders the following decision:

The ineligibility of Volker Müller to participate in all Olympic Games up to and including the Olympic Games held in 2010 is replaced by a strong warning.

4.) The Court Office fee of CHF 500.-- per Appellant remains with the Court Office. The Award is rendered without further costs.

5.) The Appellants shall pay to the Respondent as contribution towards its expenses the following amounts:

• Walter Mayer CHF 3.000.--,
• Marc Mayer, Achim Walcher and Dr. Peter Baumgartl CHF 2.000.-- each, and
• Volker Müller CHF 1.000.--.

CAS 2002/A/395 UCI vs D.& Federazione Ciclistica Italiana

TAS 2002/A/395 UCI / D. et Federazione Ciclistica Italiana (FCI)

• Cycling
• Doping
• Possession of prohibited substances
• Representation before CAS
• Calculation of the suspension: taking into account the period of inactivity of the cyclist

The UCI Rules provide, in the matter of a first infraction for possession of doping substances, a fine of CHF 3.000,- and a 6 month period of effective suspension. According to the same Rules, the principle of compensation for a period of inactivity prior to the decision can possibly be allowed when this period of inactivity is imposed by the employer of the cyclist’s team. However the suspension must be effective and must therefore not coincide with a period of regulatory inactivity of cyclists.

In June 2001 the Italian police conducted anti-drugs raids on the hotels of the cycling teams in San Remo during the Giro d’Italia 2001. Police officers searched the rooms of the riders from all 20 teams, confiscating prohibited sustances. The organizers decided to cancel the 18th stage after the Italian cyclist D. was suspended by his cycling team after prohibited substances were found in his room.

On 7 May 2002 the Disciplinary Commission of the Italian Cycling Fedeation (FCI) decided to impose a 6 month period of ineligibility on the Athlete for the possession of a syringe containing traces of insulin.
In a seperate disciplinary proceeding the Athlete was also sanctioned on 16 October 2001 with a 3 month period of ineligibility for the possession of substances containing caffeine but this appealed decision was annulled on 11 February 2002.

Hereafter in June 2002 the International Cycling Union (UCI) appealed the FCI decision of 7 May 2002 with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to impose a more severe suspension and a higher fine in accordance with the UCI Anti-Doping Rules. The UCI contended that the Athlete’s possession of a flask IGF1 was excluded in the proceedings against the Athlete.

The Panel finds that the Athlete’s possession of the syringe with traces of insulin has been established and agrees that the flask IGF1 in the possession of the Athlete is also a anti-doping violation under de UCI Rules.

Therefore on 19 November 2002 the Court of Arbitration for Sport (CAS) decides to impose a CHF 3.000,- fine and a 6 month period of ineligibility on the Athlete, starting on 1 October 2002 and regarding the time already served.

CAS 2002/A/396, Baxter / International Ski Federation (FIS)

• Alpine skiing
• Inadvertent doping
• Calculation of the suspension
• Interpretation of regulations

1. Suspensions based on Section D, Rule 2, art. 1.2.1 of the FIS Medical Guide, which provides the following sanction for inadvertent doping : « Suspension from participation in all international ski competitions for three months for the first offence (during a fixed period within the actual or next competition season) », should
a) begin to run on the day the sample was taken until the end of the competition season underway,
b) be interrupted between competition seasons (in order to be effective) and
c) resume during the next competition season(s), either Northern or Southern Hemisphere season, until the suspension period has entirely run.
The exact starting and ending date of each competition season (Northern and Southern Hemispheres) to be accounted for when calculating the period of suspension should be the most up-to-date FIS Calendar at the time the decision to sanction is made by the FIS.

2. The Panel considers that “all” international ski competitions must mean all the competitions classified as such by the FIS in its International Ski Competition Rules (“ICR”) and listed by it in the FIS Calendar. Thus, the current wording of the regulations does not allow calculating a suspension period in such fashion that only certain competitions on the FIS Calendar are selectively covered by the suspension.

Mr. Alain Baxter is a British Athlete competing in the men’s alpine slalom event at the Salt Lake City 2002 Olympic Winter Games.

On 11 June 2002 the International Ski Federation (FIS) decided to impose a 3 month period of ineligibility on the Athlete after his A and B samples, provided in February 2002 at the Olympic Winter Games, tested positive for the prohibited substance methamphetamine.

After deliberations between FIS, the British Ski & Snowboard Federation (BSSF) and the Athlete about the calculation of the suspension the Athlete appealed the FIS decision of 11 June 2002 with the Court of Arbitration for Sport (CAS).

The Athlete argued that the FIS violated the applicable regulations by incorrectly accounting several factors when deciding the 3 month period of ineligibility.

Following assessment of the case the Panel deems that FIS' decision to sanction the Athlete with a three-month suspension period did not observe the applicable regulations insofar as the calculation of the suspension period is concerned.

The Panel understands FIS' desire to seek effectiveness in its sanctions. However, since such effectiveness must be sought while observing the regulations in force, the FIS would need to modify its regulations if it wished to have the right to distinguish certain categories of competitions and/or the two competition seasons when calculating a suspension period for certain categories of racers or all racers.

That said, such distinctions are not easy to make because they involve speculating on the relative effectiveness of a sanction for given individuals (this being illustrated by the precedents listed by FIS in relation to prior sanctions for inadvertent doping offences). Also, the goal of achieving effective sanctions must be appropriately balanced with the need for the FIS to decide upon and notify sanctions rapidly (in order to account for the competitors’ need for planning).

The Court of Arbitration for Sport decides on 30 September 2002 that:

1.) The appeal filed by Alain Baxter on 24 June 2002 is upheld.

2.)This decision made by the International Ski Federation (FIS), notified to the Appellant on 11 June 2002 is modified as follows:

The three-months suspension is fixed between 23 February and 30 April 2002 (Northern-Hemisphere competition season) and between 25 July and 18 August 2002 (Southern-Hemisphere competition season).

3.) (…)

CAS 2002/A/399 P. / Fédération Internationale de Natation (FINA)

Related case:

FINA 2002 FINA vs Claudia Poll
June 3, 2002

• Swimming
• Doping (nandrolone)
• Validity of the sampling procedure
• Reliability of the analyses
• Sanction

1. The CAS has neither authority to apply or interpret the rules set by ISO (International Organisation for Standardisation), IEC (International Electrotechnical Commission) and ILAC (International Laboratory Accreditation Cooperation), or to force any laboratories to comply with those rules. The CAS is in no way a supervising authority for laboratories, being either IOC – ISO/IEC accredited or not. The CAS relies upon the accreditation process and is without authority to intervene and impose its views on the laboratory procedures to be applied by accredited labs. The absence of the “global uncertainty” in the A and B reports cannot, by any means, be considered as a gross violation of the ISO/IEC and ILAC guidelines, and therefore lead to arbitrary results and should consequently be corrected by the CAS Panel.

2. There is no provision which stipulates that a sampling agent is under no circumstances allowed to repeat a sample procedure and provides for that the possibilities to take another test is in any case exhausted after a first try. This does not mean that a sampling agent is more or less and always respectively allowed to make more than one urine collection. However, there is no provision which hampers him to do so when there are doubts about the regularity of the first test, especially when the athlete is casting doubts about that regularity.

3. Regarding the duration of the suspension, the CAS already had the opportunity to establish in previous awards that a four-year ban and even a life time ban were not disproportionate. Therefore, in a straightforward case of doping and when no circumstances tend to diminish the responsibility of the athlete, the policy set by FINA, IOC and other sporting federations in relation to doping is strict and consequently a four-year suspension and a six-month retroactive period involving cancellation of all result achieved shall be considered as proportionate.

In March 2002 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Athlete Claudia Poll after her A and B samples tested positive for the prohibited substance norandrosterone (nandrolone).

On 3 June 2002 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Athlete. Hereafter in July 2002 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).

The Athlete requested the Panel to annul the FINA decision of 3 June 2002 and claimed that the doping test upon which FINA's decision was based has no legal basis under FINA's own rules, as the Doping Officer was not authorised to perform a second sampling procedure. In addition the Athlete disputed the validity of the test results and the competence and capability of the laboratory.

The CAS Panel considers, that this is a straightforward case of doping, that the policy set by FINA, IOC and other sporting federations in relation to doping is strict and that no circumstances are present in this case which would tend to diminish the responsibility of the athlete.

Regarding the duration of the suspension, the CAS already had the opportunity to establish in previous awards that a four-year ban and even a life time ban were not disproportionate. Therefore, both sanctions imposed on her shall be considered as proportionate and shall be confirmed.

Therefore the Court of Arbitration for Sport decides on 31 January 2002 that:

1.) The appeal filed by Claudia Poll of 8 July 2002 is dismissed.

2.) The decision of the FINA dated 3 June 2002 is confirmed.

3.) (...)

CAS 2002/A/400 M. / International Ski Federation (FIS)

Related cases:

• CAS 2002_A_374 Johann Muehlegg vs IOC
  January 24, 2003
• IOC 2002 IOC vs Johann Muehlegg
  February 24, 2002
  
  

• Cross Country Skiing
• Doping
• Deliberate use of prohibited substance
• Applicable sanction

1. The substance Darbepoetin alfa is an analogue-mimetic to EPO, which is a Prohibited Substance under the FIS Medical Guide. Darbepoetin is an artificial substance, which is never produced naturally by the human body and is different than EPO. Darbepoetin is easily detected using testing methods similar to those used to detect exogenous EPO.

2. In the absence of any explanation by the athlete of the presence of the Prohibited Substance in his body, there is no alternative, given the nature of Darbepoetin and its very effective performance enhancing effect, but to conclude that there is no other explanation than deliberate use.

3. In the absence of a personal appearance by the athlete (and a corresponding explanation of how the Prohibited Substance might have found its way into his body in a situation where there could only be exogenous administration of the Prohibited Substance) there is simply no reason whatsoever for CAS to consider reducing the disciplinary sanction imposed.

The Spanish Athlete Johann Muehlegg competed in the men’s cross-country ski event at the Salt Lake City 2002 Olympic Winter Games.

On 3 June 2002 the International Ski Federation (FIS) decided to impose a 2 year period of ineligibility on the Athlete after his sample, provided in February 2002 at the Olympic Winter Games, tested positive for Darbepoetin.

Hereafter the Athlete appealed the FIS decision with the Court of Arbitration for Sport (CAS). The Athlete argued that the imposed automatic fixed suspension cannot be justified and asserted that there a grounds for a reduced sanction.

The CAS Panel rules that the Athlete committed a doping infraction and that he shall be sanctioned for a period of two years. The Panel deems that the Athlete has not provided any acceptable reason for to reduce his sanction.

Furthermore the Athlete failed to appear before the Panel. The Panel notes that it is difficult to imagine how a reduction of a sanction could ever be warranted without an opportunity to assess the credibility of the Athlete and the explanations, which he might have. He most certainly did not express remorse for his actions.

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

1.) The appeal filed by M. on 12 July 2002 is dismissed.

2.) The decision of the FIS Council of 3 June 2002 is upheld.

3.) (…).