• CAS 2009/A/1912 Claudia Pechstein v/ International Skating Union
• CAS 2009/A/1913 Deutsche Eisschnelllauf Gemeinschaft e.V. v/ International Skating Union
  
  
• CAS 2009/A/1912 Claudia Pechstein vs ISU
• CAS 2009/A/1913 DESG vs ISU

CAS 2009/A/1912 P. v. International Skating Union (ISU) &
CAS 2009/A/1913 Deutsche Eisschnelllauf Gemeinschaft e.V. (DESG) v. International Skating Union (ISU)

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• Speed skating
• Doping (blood doping)
• Meaning of the full power of review of the CAS
• Retroactive application of new scientifically sound evidentiary methods
• Longitudinal hematological profiling as a mere evidentiary method
• Anti-doping proceedings without adverse analytical finding and burden of proof
• Absence of adverse analytical finding and departures from the international standards for testing
• Comfortable satisfaction of the Panel as standard of proof for doping cases
• Chain of custody
• Abnormal hematological values and establishment of a doping offence

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1. The full power of review of the CAS means that the CAS appeals arbitration procedure entails a de novo review that it is not confined to deciding whether the body that issued the appealed ruling was correct or not. The mission of CAS Panels is thus to make its independent determination as to whether the parties’ contentions are inherently correct rather than to assess the correctness of the appealed decision

2. New scientifically sound evidentiary methods, even not specifically mentioned in anti-doping rules, can be used at any time to investigate and discover past anti-doping rule violations that went undetected, with the only constraint deriving from the eight-year time limitation and the timely initiation of disciplinary proceedings. As long as the substantive rule sanctioning a given conduct as doping is in force prior to the conduct, the resort to a new evidentiary method does not constitute a case of retrospective application of the law.

3. The “use” of a prohibited substance or prohibited method – not depending on an adverse analytical finding – constitutes nowadays an anti-doping rule violation exactly in the same way as it did under the old version of the WADA Code and the anti-doping regulations of the international federations.

4. The “longitudinal hematological profiling” constitutes evidentiary means to demonstrate the violation of the anti-doping rules and this could be utilized as evidence of a doping offence under the older versions of the WADA Code as well.

5. In case of a doping offence without adverse analytical finding, the federation claiming the violation must prove that
- (i) the blood samples used to acquire the athlete’s hematological values and portray her profile were properly taken,
- (ii) there was a reliable chain of custody of the blood samples from the place of collection to the laboratory,
-(iii) the machine used to analyse the blood samples was a reliable equipment to record accurate hematological values,
- (iv) the transmission of those values to, and the storage in, the federation’s data base was reliable, and
-(v) the hematological values of the athlete are reliable evidence of her use of a prohibited method.

6. There is no “factual presumption” that the blood screening tests produced correct result, because, according to the CAS case law, in anti-doping proceedings other than those deriving from positive testing, sports authorities do not have an easy task in discharging the burden of proving that an anti-doping rule violation has occurred, as no presumption applies. Accordingly, the federation bears the full burden to present reasonably reliable evidence to persuade the Panel, by the applicable standard of proof, that the athlete committed a doping offence in violation.

7. In the absence of an adverse analytical finding (where a presumption is provided in favour of the anti-doping organization), the international federation is not mandated to follow the WADA IST and WADA ISL in order to prove the Athlete’s use of a prohibited method. Any reasonably reliable practice of sample collection, post-test administration, transport of samples, analytical process and documentation would suffice. This view is confirmed, a fortiori, by the fact that, even in cases of adverse analytical findings, departures from WADA International Standards do not invalidate per se the analytical results, as long as the anti-doping organization establish that such departure did not cause the adverse analytical finding.

8. The “comfortable satisfaction” test is well-known in CAS practice, as it has been the normal CAS standard in many anti-doping cases even prior to the WADA Code. Several awards have withstood the scrutiny of the Swiss Federal Tribunal, which has stated that anti-doping proceedings are private law and not criminal law matters and that “the duty of proof and assessment of evidence [are] problems which cannot be regulated, in private law cases, on the basis of concepts specific to criminal law”. The standard of proof beyond reasonable doubt is typically a criminal law standard that finds no application in anti-doping cases.

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In the period between February 2000 and April 2009 the Athlete Claudia Pechstein underwent numerous in-competition and out-of-competition anti-doping controls. None of these Controls resulted in an adverse analytical finding.

At the same time the ISU collected more than ninety blood samples from the Athlete as part of the ISU blood profiling program. In particular, from 20 October 2007 until 30 April 2009 the ISU collected twenty-seven blood samples from the Athlete, the last twelve of which were collected between January and April 2009.

In March 2009 the International Skating Union (ISU) reported an anti-doping rule violation against the Athlete Claudia Pechstein after her samples, collected in February 2009, showed abnormal blood values, due to the use of a prohibited substance and/or a prohibited method, i.e. blood doping.

Consequently the ISU Disciplinary Commission decides on 1 July 2009 to impose a 2 year period of ineligibility on the Athlete for the use of blood doping, including disqualification of her results.

Hereafter in July 2009 both the Athlete and DESG appealed the ISU decision of 1 July 2009 with the Court of Arbitration for Sport (CAS). The Athlete and DESG requested the Panel to set aside the Appealed Decision and to annul the imposed sanction.

Following assessment of the evidence the Panel, bearing in mind the seriousness of the allegation, finds that the ISU has discharged its burden of proving to the comfortable satisfaction of the Panel that the abnormal blood values recorded by P. in Hamar on 6 and 7 February 2009, and the subsequent sharp drop recorded on 18 February 2009, cannot be reasonably explained by any congenital or subsequently developed abnormality.

The Panel finds that they must, therefore, derive from the Athlete's illicit manipulation of her own blood, which remains the only reasonable alternative source of such abnormal values. As a consequence, the Panel upholds the sanctions already imposed by the Appealed Decision and holds that the Athlete is liable for the full two-year period of ineligibility.

Therefore the Court of Arbitration for Sport decides on 25 November 2009:

1.) The appeals of P. and of the Deutsche Eisschnelllauf Gemeinschaft e.V. against the decision dated 1 July 2009 of the Disciplinary Commission of the International Skating Union are dismissed.

2.) The decision dated 1 July 2009 of the Disciplinary Commission of the International Skating Union is upheld, with the following modification as set out in para. 3.

3.) P. is declared ineligible for two years as of 8 February 2009.

4.) The results obtained by P. on 7 February 2009 at the ISU World Allround Speed Skating Championships are disqualified, with related forfeiture of any medals, points and prizes.

5.) All other motions or prayers for relief are dismissed.

(…).

CAS 2011/A/2671 Union Cycliste Internationale (UCI) v. Alex Rasmussen & National Olympic Committee and Sports Confederation of Denmark (DIF; Dansk Idraetsforbund),

• Cycling
• Doping (whereabouts failure)
• Whereabouts failure within a period of 18 months
• Departure from the rule providing for a notice within 14 days of the unsuccessful testing attempt
• Determination of the applicable sanction

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1. Under Article 2.4 Danish National Anti-Doping Rules (NADR) (as well as under the corresponding provision – Article 21.4 – of the UCI ADR), any combination of three missed tests and/or filing failures within eighteen months constitutes an anti-doping rule violation. Such provision matches the obligation of the athletes, included in a Registered Testing Pool of athletes (RTP), to provide, and keep updated, his/her whereabouts information, in order to be located for out-of-competition testing. Out-of-competition testing is at the heart of any effective anti-doping programme.

2. There is no basis in the wording of art. 11.6.3 of the International Standard for Testing (IST) for finding that a deviation from the rule providing for a notice within 14 days of the unsuccessful testing attempt affects the possibility that a missed test be recorded as such. The basis of the anti-doping rule violation contemplated by Article 2.4 NADR is -in addition to the first two failures- the fact that the rider was not met by the competent anti-doping officer for out-of-competition testing at the time and place he had indicated in compliance with his obligation to provide accurate whereabouts information. Such factual basis is obviously not affected by events pertaining to the subsequent administration process regarding it. In other words, the fact that an unsuccessful testing attempt was notified within, or past, fourteen days thereof does change the fact that a test was missed by the rider. As a result, a departure from Article 11.6.3(b) IST cannot be invoked to invalidate the missed test. Furthermore, the recording of the missed after the 14 day s notice is not inconsistent with the respect of the athlete’s rights and does not run against the purposes of the rule intended to protect them.

3. The period of ineligibility which can be imposed on a rider for the anti-doping rule violation contemplated by Article 2.4 NADR ranges from one to two years depending on the assessment of the athlete’s degree of fault. The fact that the behaviour of the rider shows a patent disregard of his whereabouts obligations, commands a sanction much higher than the minimum stipulated.

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In September 2011 Anti-Doping Denmark (ADD) has reported an anti-doping rule violation against the cyclist Alex Rasmussen for his 3 whereabouts filing failures and missed tests withing an 18 month period.

However on 17 November 2011 the DIF Anti-Doping Board decided to acquitt the Athlete on the bases that the UCI had failed to notify the Athlete about his 3rd Missed Test within the set deadline of 14 days. In fact the Athlete was notified by the UCI 10 weeks later in July 2011 following the 3rd Missed Test in April 2011. 

Hereafter in December 2011 the UCI appealed the DIF decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the Decision and to sanction the Athlete for 2 years.

The parties disagree as whether the Athlete had committed a third whereabouts failure. The Athlete defended the Decision that held that such missed test could not be recorded as a whereabouts failure. The UCI contended that the Appealed Decision is wrong, and that in April 2011 within an eighteen month period a third whereabouts failure was committed by the Athlete.

The Panel finds that, even conceding that Article 11.6.3(b) IST had to be applied, the failure by UCI to send a notice to the Athlete within 14 days of the unsuccessful attempt in April 2011 did not prevent UCI from recording it as a missed test.

The Panel deems that a whereabouts failure was committed by the Athlete in April 2011. Such failure was the third in an 18 month period, and the filing failure for the fourth quarter of 2011. Consequently the Panel holds that the Athlete committed the anti-doping rule violation contemplated by Article 2.4 NADR. Consequently the Panel finds that a period of ineligibility of 18 months is the appropriate sanction and proportional to his degree of fault.

Therefore the Court of Arbitration for Sport decides on 4 July 2012:

1.) The appeal filed by the Union Cycliste Internationale (UCI) on 22 December 2011 against the decision taken by the Anti-Doping Board (Dopingnaevn) of the National Olympic Committee and Sports Confederation of Denmark (Dansk Idraetsforbund) on 17 November 2011 is partially granted.

2.) The decision taken by the Anti-Doping Board (Dopingnaevn) of the National Olympic Committee and Sports Confederation of Denmark (Dansk Idraetsforbund) on 17 November 2011 is set aside.

3.) A suspension of 18 (eighteen) months is imposed on Mr Alex Rasmussen commencing on 1 October 2011, with credit given for the period of provisional suspension at that time already served.

4.) The results achieved by Mr Alex Rasmussen in the period from 28 April 2011 to the date of his provisional suspension shall not be disqualified.

(…)

7.) All other motions or prayers for relief are dismissed.

CAS 2011/A/2398 World Anti-Doping Agency (WADA) v. World Triathlon Corporation (WTC) & Timothy Marr, award of 20 February 2012

Related case:

CAS 2011_A_2398 WADA vs WTC & Timothy Marr - Partial Award
August 19, 2011

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• Triathlon
• Doping (amphetamine)
• Assessment of the ineligibility period

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In assessing the period of ineligibility to impose, a panel must have regard to the particular circumstances of each case. In a particular case where the facts are agreed to between the parties that the athlete had no intention to take the prohibited substance thus no intent to enhance sports performance, he was consuming a beverage he thought to be his, he was travelling with a friend, he was not in a hostile environment when he consumed the beverage, he was not aware that his friend suffered from Attention Deficit Disorder, nor was he aware that his friend was prescribed medication for the disorder, the degree of fault or negligence by the athlete is very limited.

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On 22 February 2011 the North American Court of Arbitration for Sport Panel (AAA) decided to impose a 6 month period of ineligibility on the Athlete Timothy Marr after his A and B samples tested positive for the prohibited substance Amphetamine.

Hereafter in April 2011 the World Anti-Doping Agency (WADA) appealed the AAA decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a period of ineligibility on the Athlete between 12 and 14 months.

The Athlete denied the intentional use of the substance and explained that he ingested the substance when he consumed his friend's drink. This drink contained prescribed Adderall and this medication was poured into his drink by his friend during his absence.

The Panel accepts that the violation was not intentional and finds that the Athlete had acted with very limited degree of fault or negligence in order to impose a reduced sanction.

Therefore the Court of Arbitration for Sport decides on 20 February 2012:

1.) The appeal filed by the World Anti-Doping Agency against the decision issued by the American Arbitration Association on 22 February 2011 is upheld.

2.) The Award rendered on 22 February 2011 by the American Arbitration Association in the matter of World Triathlon Corporation v. Mr. Timothy Marr is set aside.

3.) Mr. Timothy Marr shall serve a twelve months period of ineligibility, beginning 13 August 2010 and ending 12 August 2011. All competitive results obtained by Mr. Marr between 23 February 2011 and 12 August 2011 shall be disqualified, with all of the resulting consequences including forfeiture of any medals, points and prizes.

4.) This award is pronounced without costs, except for the Court Office fee of CHF 1,000 paid by WADA which shall be retained by the CAS.

5.) All other or further prayers for relief are dismissed.

CAS 2011/A/2582 World Anti-Doping Agency (WADA) v. Turkish Swimming Federation (TSF) and Karhan Akay


On 19 February 2011 the Turkish Swimming Federation (TSF) Disciplinary Committee decided to issue only a warning on the minor swimmer (15) after he tested positive for the prohibited substances Methandienone and Stanozolol.

In first instance the Committee deemed that the violation was not intentional and that the minor athlete had used prescribed Oxandrolone as medical treatment in order to stimulate body growth.

Thereupon further investigations revealed that the prescribed Oxandrolone medication used by the Athlete were fakes and not produced by the Italian company in question. Analysis revealed the presence of Methandienone and Stanozolol in this medication and not Oxandrolone.

Hereafter the World Anti-Doping Agency (WADA) appealed the TSF decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a 1 year period of ineligibility on the Athlete.

WADA deemed that:

• the violation was not intentional; 
• the Athlete was yound and inexperienced;
• he was not properly advised by his parents and his doctor;
• the fake Oxandrolone pills were the source of his positive test;
• there were mitigating circumstances; and
• there were grounds for No Significant Fault or Negligence.

The TSF and the Athlete asserted that there were grounds for No Fault or Negligence in this case whereas his father and an eminent doctor had initiated the medical treatment. Nevertheless the father had failed to make a TUE application for the use of Oxandrolone.

In view of the evidence the Sole Arbitrator determines that:

• there are no ground for No Fault or Negligence;
• there are mitigating circumstances;
• there are grounds for No Significant Fault or Negligence;
• there have been delays in the proceedings not attributed to the Athlete.

Therefore the Court of Arbitration for Sport decides on 29 May 2012 that:

1. The appeal filed by the World Anti-Doping Agency on 30 September 2011 against the decision of the Disciplinary Committee of the Turkish Swimming Federation of 19 February 2011 is admissible.
2. The appeal filed by the World Anti-Doping Agency is upheld.
3. The decision of the Disciplinary Committee of the Turkish Swimming Federation of 19 February 2011, is set aside.
4. Mr Karhan Akay is declared ineligible for a period of twelve months, commencing on 19 February 2011.
5. All competitive results obtained by Mr Karhan Akay (the Athlete) from 21 October 2010 until the commencement of the period of ineligibilily shall be disqualified with all the resulting consequences including forfeiture of any medals, points and prizes.
6. The costs of arbitration, to be determined by the CAS Court office, shall be borne in the proportion of ¼ (one quarter) by the World Anti-doping Agency and ¾ (three quarter) by the Turkish Swimming Federation.
7. The Turkish Swimming Federation shall pay a contribution of CHF 2,000 (two thousand Swiss Francs) towards World Anti-Doping Agency' s legal fees in the case.
8. All other requesfs for relief are rejected.

• CAS 2009/A/1926 International Tennis Federation (ITF) v. Richard Gasquet
• CAS 2009/A/1930 World Anti-Doping Agency (WADA) v. ITF & Richard Gasquet
• CAS 2009/A/1926 International Tennis Federation (ITF) v. Richard Gasquet & CAS 2009/A/1930 World Anti-Doping Agency (WADA) v. ITF & Richard Gasquet

Related cases:

• ITF 2009 ITF vs Richard Gasquet
  July 15, 2009
• SDRCC 2016 CCES vs Shawnacy Barber
  August 11, 2016
  
  

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• Tennis
• Doping (Cocaine)
• Choice of law by the parties and ordre public
• CAS full power of review “in order to do justice”
• Meaning of the balance of probability test
• No fault or negligence and principle of ne ultra petita

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1. The application of the (rules of) law chosen by the parties has its confines in the ordre public. Usually, the term ordre public is thereby divested of its purely Swiss character and is understood in the sense of a universal, international or transnational sense. The ordre public proviso is meant to prevent a decision conflicting with basic legal or moral principles that apply supranationally. This, in turn, is to be assumed if the application of the rules of law agreed by the parties were to breach fundamental legal doctrines or were simply incompatible with the system of law and values

2. The concept of “in order to do justice” means that the Panel is a fortiori allowed to review the appealed decision if it is arbitrary, i.e. if it severely fails to consider fixed rules, a clear and undisputed legal principle or breaches a fundamental principle. A decision may be considered arbitrary also if it harms in a deplorable way a feeling of justice or of fairness or if it is based on improper considerations or lacks a plausible explanation of the connection between the facts found and the decision issued. In order to exercise such a review, the CAS must be able to examine the formal aspects of the appealed decisions but also, above all, to evaluate – sometimes even de novo – all facts and legal issues involved in the dispute.

3. In case the Panel is offered several alternative explanations for the ingestion of the prohibited substance but it is satisfied that one of them is more likely than not to have occurred, the Athlete is deemed to have met the required standard of proof regarding the means of ingestion of the prohibited substance. It remains irrelevant that there may also be other possibilities of ingestion, as long as they are considered by the Panel to be less likely to have occurred. In other words, for the Panel to be satisfied that a means of ingestion is demonstrated on a balance of probability simply means, in percentage terms, that it is satisfied that there is a 51% chance of it having occurred. The Athlete thus only needs to show that one specific way of ingestion is marginally more likely than not to have occurred.

4. Upon the finding that the Athlete acted with no fault or negligence, the Panel normally has to overrule the decision of the Tribunal imposing a period of ineligibility and to replace the challenged decision with the decision that no period of ineligibility should be imposed on the Athlete for his doping offence. However, the Panel is bound by the principle ne eat iudex ultra petita partium and is thus not in a position to grant the Athlete more than what he asked for, if the Athlete only asked for the appeals to be dismissed and did not express a request for the decision of the Tribunal to be overruled and set aside.

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In April 2009 the International Tennis Federation (ITF) has reported an anti-doping rule violation against the Athlete Richard Gasquet after his A and B samples tested positive for the prohibited substance Cocaine in a low concentration.

After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the ITF Independent Anti-Doping Tribunal.

The Athlete denied the intentional use and asserted that he tested positive for Cocaine after he had kissed a woman in a club who had been ingesting Cocaine prior to their rendezvous.
the Athlete argued that if there was a doping offence, the Athlete could establish “No Fault or Negligence” or alternatively “No Significant Fault or Negligence”.

Further, he argued that there should be no period of ineligibility because of the circumstances of the offence – accidental contamination in a social setting after the Athlete had decided to withdraw from the competition through injury - were such that any ban would be grossly disproportionate to the offence and therefore unlawful.

Also in June 2009 the Athlete filed a complaint with the French prosecuting authority, alleging against the woman that a harmful substance had been administered to him, contrary to the French penal code. A criminal complaint was, at some point in time, also filed by the woman against the athlete for defamation.

The French newspaper, Aujourd’hui, published an interview with the woman that reportedly took place the afternoon before, and in which she denied having either taken or been offered any Cocaine during the evening of the rendezvous. However, she admitted having taken Cocaine on previous occasions in her life. Furthermore, she asserted that she had kissed the Athlete only briefly and not mouth to mouth, and that she was willing to give evidence and undergo a hair test herself.

On September 2009, the public prosecutor’s department of Paris issued a communiqué stating that the proceedings initiated by the Athlete on 4 June 2009 against the woman for administration of a harmful substance to him had been closed, as no criminal offence had been revealed.

The communiqué furthermore noted that the toxicological examination carried out on “a young lady heard during this procedure” revealed that she regularly consumed Cocaine, and that she would be subject to a therapeutic order from the public prosecutor’s department.

The ITF Tribunal Panel accepted that the Athlete has discharged the onus on him of establishing, on the balance of probability, how Cocaine entered his system. The Panel noted that the most likely explanation is that advanced by the Athlete, namely that Cocaine was transferred to the Athlete from mouth to mouth kissing with the woman.

The Panel ruled that this explanation is more likely than not to be the correct one. The Panel holded that in this case, the Athlete’s inadvertent ingestion of Cocaine occurred in circumstances in which the degree of his fault was very small, as small as the miniscule quantity consumed.

On 15 July 2009 the ITF Tribunal decided to impose a 2 months and 15 days period of ineligibility on the Athlete for the time already served, starting on the date of the provisional suspension until the date of the decision.

Also Athlete’s results in competitions in Barcelona and Rome during April 2009, should remain undisturbed and the prize money and ranking points obtained by the Athlete in those competitions should not be forfeited.

Hereafter in August 2009 the ITF and WADA appealed the decision of the ITF Independent Anti-Doping Tribunal of 15 July 2009 with the Court of Aribitration of Sport (CAS).

The ITF and WADA requested the Panel to annul the Appealed Decision and to impose a period of ineligibility of not more than 2 years and not less than 1 year.

Following assessment of the evidence the Panel, on a balance of probability, concludes that it is more likely than not that the Athlete’s contamination with Cocaine resulted from kissing the woman. Any other source is either less likely than the kissing to have resulted in the contamination, or is even entirely impossible.

The Panel thus concludes that the Athete has met the required standard of proof, such as stipulated in Art. K.6.2 of the Programme and Art. 3.1 of the WADA Code, with regard to the way of ingestion.

Futher the Panel states that under the given circumstances, even if the Athlete exercised the utmost caution, he could not have been aware of the consequences of kissing a girl who he had met in a totally unsuspicious environment. It was simply impossible for the Athlete, even when exercising the utmost caution, to know that in kissing the woman, he could be contaminated with Cocaine. The Athlete therefore acted without fault or negligence.

Therefore the Court of Arbitration for Sport decides on 17 december 2009:

1.) The appeal of the International Tennis Federation (ITF) against the decision of the Anti-Doping Tribunal convened under the ITF regulations dated 15 July 2009 regarding the tennis Athlete Richard Gasquet is dismissed.

2.) The appeal of the World Anti-Doping Agency (WADA) against the decision of the Anti-Doping Tribunal convened under the ITF regulations dated 15 July 2009 regarding the tennis Athlete Richard Gasquet is dismissed.

(…)

6.) All other motions or petitions for relief are dismissed.

CAS 2008/A/1511 O'Hara v/WADA & UEFA

Mr. Jamie O'Hara is a British football player and at the time under contract to Tottenham Hotspur. He suffered from severe acne and Urticaria pigmentosa whereas he used prescribed medication with a valid TUE.

In December 2007 the Athlete's condition deteriorated and he underwent medical treatment in a hospital. He received an  intravenous injection of hydrocortisone and used prescribed Prednisolone.

Thereupon the Athlete applied for a retroactive TUE. However in January 2008 the UEFA TUE Committee refused to grant the retroactive TUE and in February 2008 the WADA TUE Committee confirmed this decision.

Hereafter in March 2008 the Athlete appealed the UEFA and WADA TUE Committee's decisions with the Court of Arbitration for Sport. The Athlete requested the Panel to set aside the decisions of the UEFA and WADA TUE Committee and to grant a retroactive TUE for Hydrocortisone and Prednisolone.

In this case the Panel assessed and addressed the following issues:

• emergency treatment or treatment of an actute medical condition;
• significant impairment to healt;
• reasonable therapeutic alternative.

The Panel concludes that in view of the Athlete's acute condition the prescription for Prednisone was necessary. The Athlete has also met his burden of proving on the balance of probabilities that, in the circumstances of the case, there were no reasonable therapeutic alternatives to Prednisolone. The Panel deems that in accordance with the International Standards he could apply for a retroactive TUE.

Therefore the Court of Arbitration for Sport decides on 21 October 2008:

1.) The decision issued on 8 January 2008 by the UEFA TUE Committee and the decision issued on 29 February 2008 by the WADA TUE Committee are set aside.

2.) Mr Jamie O'Hara is granted a retroactive TUE for the use of Prednisolone between 29 December 2007 and 1 January 2008.

3.) The costs of the arbitration, to be determined and served on the parties by the CAS Court Office, shall be borne by UEFA.

4.) UEFA shall pay to Mr Jamie O'Hara an amount of CHF 3,000.00 (Three Thousand Swiss Francs) as contribution to costs incurred in connection with this arbitiatlon.

5.) Each party shall otherwise bear lts own legal costs and all other expenses incurred in connection with this arbitratdon.

6.) All other prayers for relief are dismissed.

CAS 2008/A/1452 Kazuki Ganaha v/ Japan Professional Football League

• Football
• Doping
• Burden of proof
• Intravenous infusion justified by a legitimate medical treatment
• No fault of the athlete

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1. Under the applicable 2007 WADA Code and the Anti-Doping Regulations of the J-League, the prohibited method is described as “Intravenous infusions are prohibited, except as a legitimate medical treatment”. Under the wording of the 2007 WADA Code, the party alleging the infraction has to prove that there was an intravenous infusion and that it was not legitimate medical treatment.

2. The intravenous infusion of normal saline and vitamin B1 performed by the team doctor of a Japanese football club is a legitimate medical treatment for the Player within the meaning of the 2007 WADA Code, taking into consideration that at the time of the facts, the Japanese League had not adopted those provisions of the WADA Code which related to sanctions. The Anti-Doping Regulations of the - League which were in force at the time of the infusion provide that the Anti-Doping Special Committee is “entitled” to impose a sanction. There is an entitlement to impose a penalty but there is no mandatory obligation that a penalty be imposed for every infraction. In such circumstances, there is no need to decide if there has been a violation because it is not a case where any sanction should be imposed on the Player whose conduct is not deserving of any sanction.

3. Under the Anti-Doping Regulations of the J-League, a Player who bears no fault should not be sanctioned even he had committed an anti-doping violation by using a prohibited method.

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In April 2007 an intravenous infusion was performed on Mr. Ganaha by Dr Goto, The Kwasaki Frontale team doctor. Yet in May 2007 the Japan Professional Football League (J.League) determined that this treatment was not an approved legitimate medical treatment.

Consequently on 3 May 2007 the J.League's Doping Control Committee decided to suspend Mr Ganaha for 6 official games.

The decision to sanction Mr Ganaha was then the subject of ongoing correspondence between the parties and also with a number of other parties involved in, or interested in professional football in Japan. Ultimately in December 2007 Mr Ganaha filed an appeal against the J.League decision with the Court of Arbitration for Sport (CAS).

Considering the particular circumstancess in this case the CAS Panel establishes that the intravenous infusion was a legitimate medical treatment for Mr. Ganaha within the meaning of the 2007 WADA Code. The Panel notes that at the time the J.League had not adopted those provisions of the WADA Code which related to sanctions. In this matter the Panel concludes that Mr. Ganaha acted totally without fault.

Therefore the Court of Arbitration for Sport decides on 28 May 2008:

1.) The Appeal is upheld and the sanction imposed on the Appellant by the Respondent dated 10 May 2007 that the Appellant be suspended from six official games be cancelled.

2.) The costs of the present arbitratiort, to be determined and served by the CAS Court Office, shall be borne by the Respondent.

3.) The Respondent shall contribute towards the legal and other costs incurred by the Appellant in connection wjth these arbitration proceedings, in the amount of US $ 20.000,00.

4.) The Respondent shall bear its own costs.

CAS 2007/A/1446 WABA v/ Qatar Football Association & Hamad Rakea Humood Alanezi

In June 2007 the Qatar Football Association (QFA) reported an anti-doping rule violation against the Bahrain football player Hamad Rakea Humood Alanezi after his sample tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

However on 7 June 2007 the QFA Disciplinary Committee decided not impose a sanction on the Athlete because he had used a medication, prescribed by his urologist, as treatment for his prostatitis.

Hereafter in December 2007 the World Anti-Doping Agency (WADA) appealed the QFA Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a sanction of 2 years on the Athlete.

WADA finds that under WADC, FIFA and QFA Rules the Athlete had committed an anti-doping rule violation whereas it is entitled to appeal the QFA decision in December 2007 within the set deadline of 21 days.

WADA contended that the Athlete had not made an application for a TUE; nor checked his medication; nor mentioned to his urologist that he was a professional football player; nor mentioned his medication on the Doping Control Form.

Further WADA asserted that some of the prescribed medication as treatment for the Athlete's prostatitis were legitmate and they can not explain the presence of 19-norandrosterone in his sample. Besides WADA considers that the prescribed medication Proviron is not recommended by good medical pratice to treat the Athlete's condition.

The Athlete admitted the violation and denied the intentional use of the substance. He asserted that the prescribed medication Proveron was the source of the positive test and that the treatment was justified for his condition.

Further the Athlete disputed the direct applicability of the WADC and WADA's right to appeal. Since the Doping Control Form only requested medication used the last 72 hours he did not mention Proveron because he has already suspended it for 1 month.

Following assessment of the evidence and the Parties submissions the Panel concludes:

• WADA was entitled to appeal the QFA Decision.
• WADA was notified of the QFA Decision on 2 December 2007 and it thereupon filed an appeal within the set timeline of 21 days.
• Under the FIFA Rules the Athlete was playing as a professional in Qatar and was subject to the FIFA Rules.
• The presence of a prohibited substance has been established in the Athlete's sample and accordinghly he committed an anti-doping rule violation.
• There are no grounds for No Significant Fault or Negligence.
• The use of the medication Proviron (containing Mesterolone) can not explain the presence of the prohibited substance 19-norandrosterone in the Athlete's sample.
• The Athlete failed to make an application for a TUE with FIFA.
• The Athlete failed to demonstrate that there was no reasonable and indicated therapeutic alternative available
• He failed to verify whether his urologist had anti-doping knowledge in this matter.

Therefore the Court of Arbitration for Sport decides on 21 Augustust 2008:

1.) The World Anti-Doping Agency's appeal against the decision dated 7 June 2007 of the QFA Disciplinary Committee is upheld.

2.) The decision issued by the Qatar Football Association Disciplinary Committee is set aside.

3.) The Player, Mr. Hamad Rakea Alanezi, is declared ineligible for a period of two years starting from 28 May 2008.

4.) All other motions or prayers for relief are dismissed.

5.) This award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss francs) paid by WADA, which is retained by CAS.

6.) The QFA is ordered to pay the amount of CHF 5,000 (five thousand Swiss Francs) as a contribution towards the expenses incunred by WADA in connection with this arbitration proceeding.