CAS 2011/A/2645 Union Cycliste Internationale (UCI) v. Alexander Kolobnev & Russian Cycling Federation

• Cycling
• Doping (hydrochlorothiazide)
• Principle tempus regit actum
• Standard of proof with regard to specified substances
• Requirement to prove the absence of intent to enhance sport performance
• CAS power of review

1. In order to determine whether an act constitutes an anti-doping rule infringement, a panel applies the law in force at the time the act was committed. New regulations, unless they are more favourable for the athlete (lex mitior principle), do not apply retroactively to facts that occurred prior to their entry into force, but only for the future.

2. With regard to the evidentiary standard applicable to a Specified Substance, an athlete may establish how the Specified Substance entered his/her body by a balance of probability. In other words, a panel should simply find the explanation of an athlete about the presence of a Specified Substance more probable than not. In addition, a panel must be comfortably satisfied by the objective circumstances of the case that the athlete in taking or possessing a Prohibited Substance did not intend to enhance his or her sport performance. This condition is met when an athlete can produce corroborating evidence, in addition to his or her word, which establish to the comfortable satisfaction of a panel that he or she ingested a specified substance without the intent to enhance his or her sport performance.

3. The express language of the second paragraph of Article 295 ADR is ambiguous and susceptible to more than one interpretation. However, only a construction of this paragraph as having the same meaning of the (much clearer) first paragraph harmonizes the provision and appears to be consistent with the very concept of “Specified Substances”. As a result, an athlete only needs to prove that he/she did not take the specified substance with an intent to enhance sport performance. The athlete does not need to prove that he/she did not take the product (e.g., a food supplement) with the intent to enhance sport performance.

4. Even though a CAS panel has full power of review of the disputed facts and law in the exercise of its jurisdiction, the measure of the sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rules can be reviewed only when the sanction is evidently and grossly disproportionate to the offence. Far from excluding, or limiting, the power of a CAS panel to review the facts and the law involved in the dispute heard (pursuant to Article R57 of the Code), such indication only means that a CAS panel shall not consider warranted, nor proper, to interfere with a fully reasoned and well-evidenced decision, only to slightly adjust it.

In July 2011 the International Cycling Union (UCI) reported an anti-doping rule violation against the Russian cyclist Alexander Kolobnev after his A and B samples tested positive for the prohibited substance Hydrochlorothiazide. On 25 October 2011 the Anti-Doping Commission of the Russian Cycling Federation decided to impose a fine and a reprimand on the Athlete.

Hereafter in November 2011 the International Cycling Union (UCI) appealed the Russian decision with the Court of Arbitration for Sport (CAS).

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

•  the first concerns the satisfaction of the conditions for the application of a reduced sanction pursuant to Article 295 ADR. More specifically, it consists in the assessment of whether the Decision was correct in holding that such conditions are met; and
• the second concerns the identification of the consequences, under the rules found to be applicable, to be imposed on the Athlete for his anti-doping rule violation. More specifically, it consists in the assessment of whether the Decision was correct in imposing on the Athlete only a reprimand, with no period of ineligibility, and the other consequences it applied.

The Panel concludes that the appeal brought by UCI against the Decision is to be granted only to a very limited extent, i.e. only with respect to the costs claimed by UCI under Article 275 ADR. The relief requested by the UCI on all other respects, including ineligibility, disqualification and the financial sanction, is, on the other hand, to be denied.

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

1.) The appeal filed by the Union Cycliste Internationale (UCI) on 30 November 2011 against the decision taken by the Anti-Doping Commission of the Russian Cycling Federation on 25 October 2011 is partially granted.

2.) Kolobnev is ordered to pay the Union Cycliste Internationale (UCI):

• an amount of CHF 2,500.00 (two thousand five hundred Swiss Francs) for the costs of the results management sustained by the Union Cycliste Internationale (UCI); and
• an amount of EUR 690.00 (six hundred ninety Euros) for the cost of the B-sample analysis as well as the cost of the A-sample documentation package.

3.) The decision taken by the Anti-Doping Commission of the Russian Cycling Federation on 25 October 2011 is confirmed for all the remaining portions. The appeal filed by the Union Cycliste Internationale (UCI) on 30 November 2011 against the decision taken by the Anti-Doping Commission of the Russian Cycling Federation on 25 October 2011 is dismissed in all respects not specifically granted herein.

(…)

6.) All other prayers for relief are dismissed.

CAS 2010/A/2185 Alberto Blanco v. United States Anti-Doping Agency (USADA)

CAS 2010/A/2229 World Anti-Doping Agency (WADA) v. Fédération Internationale de Volleyball (FIVB) & Gregory Berrios

In January 2009 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the cyclist Alberto Blanco after his A and B samples tested positive for the prohibited substance Prasterone (DHEA).

Consequently on 14 July 2010 the North American Court of Arbitration for Sport Panel (AAA) decided to impose a 2 year period of ineligibility on the Athlete, starting on 15 December 2008.

In first instance the AAA Panel deemed that the Beijing Laboratory had provided sufficient information to permit interpretation of the results for the A and B Samples. There was no violation of the ISL.

Hereafter in July 2010 the Athlete appealed the AAA Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to annul the imposed sanction.

The Athlete argued that the test results showing the presence of a prohibited exogenous substance in his urine Samples are unreliable. This unreliability arises from the fact that no negative controls were run by the laboratory during the analyses of his A and B Samples, and the alleged lack of robustness and reproducibility with regard to the test results.

The Panel assessed and addressed the issued raised by the Athlete and determines:

• There has been no violation of the ISL with regard to the Beijing Laboratory's failure to run negative controls during the analysis of the Athlete's samples.
• The Beijing Laboratory has not deviated from the ISL on robustness or reproducibility grounds.
• WADA is invited to amed the ISL and to formulate the range of of uncertainty for the measurement during the IRMS process.
• WADA is also invited to formulate requirements for negative controls for IRMS analyses.

Therefore the Court of Arbitraton for Sport decides on 1 April 2011:

1.) The appeal filed by Mr. Alberto Blanco against the Award dated 14 July 2010 rendered by the AAA Panel is dismissed.

2.) Each party bears its own costs.

3.)The present award is rendered without costs, with the exception of the Court office fee of CHF 500, paid by the Appellant and to be retained by the CAS.

4.) Any further claim is dismissed.

CAS 2010/A/2107 Flavia Oliveira v. United States Anti-Doping Agency (USADA)

Related case:

AAA 2009 No. 77 190 00429 09 USADA vs Flavia Oliveira
April 6, 2010

• Cycling
• Doping (oxilofrine)
• Specified substance
• CAS power of review
• Requirement to prove no intent to enhance sport performance
• Degree of fault of the athlete
• Duty of care of the athletes
• Proportionality of the sanction
• Requirements for obtaining a reduced period of ineligibility
• Relevant factors to be considered in reducing the period of ineligibility

1. Pursuant to Article R57 of the Code, which provides the panel with full power to review the facts and law and authorizes it to issue a new decision which replaces the decision challenged, a panel must make its independent determination of whether the appellant’s contentions are correct, not limit itself to assessing the correctness of the appealed decision or award.

2. Clause two of Article 10.4 of the WADA Code does not require the athlete to prove that he/she did not take a product (for example a nutritional supplement) with the intent to enhance sport performance. If such construction was adopted, an athlete’s usage of nutritional supplements, which are generally taken for performance-enhancing purposes, but which is not per se prohibited by the WADA Code, would render Article 10.4 inapplicable even if the particular supplement that is the source of a positive test result contained only a specified substance. Therefore Article 10.4 of the WADA Code requires the athlete only to prove his/her ingestion of the specified substance was not intended to enhance his/her sport performance. This construction of Article 10.4 harmonises the clear language in clause one with the differing and ambiguous language of clause two, and is consistent with its explanatory Comment.

3. The athlete’s “degree of fault” is only relevant in determining whether his/her period of ineligibility should be reduced. It is not to be considered in determining whether he/she can prove his/her lack of intent to enhance sport performance.

4. Because the risks of mislabelling and/or contamination now are generally known or at least foreseeable, all athletes must exercise reasonable care to ensure a nutrition supplement does not contain a banned substance whether the WADA Code classifies it as a prohibited or specified substance.

5. In determining the athlete’s period of ineligibility, the panel must impose an appropriate sanction that furthers the WADA Code’s objective of proportionate and consistent sanctions for doping offences based on an athlete’s level of fault under the totality of circumstances.

6. Unlike Article 10.5 of the WADA Code (and its implementation in the UCI Anti-Doping Regulations), Article 10.4 of the WADA Code (and its implementation in the UCI Anti-Doping Regulations) does not require the athlete to prove “no significant fault or negligence” to obtain a reduced period of ineligibility for testing positive for a specified substance. The appropriate inquiry is the athlete’s “degree of fault” under the circumstances. To resolve this issue, the panel must determine whether the nature and degree of his/her unreasonable conduct under the circumstances was so high that a two-year period of ineligibility is proportionate and consistent with other similar cases.

7. The fact that an athlete would lose the opportunity to earn large sums of money during a period of ineligibility or the fact that the athlete only has a short time left in his or her career or the timing of the sporting calendar are not relevant factors to be considered in reducing the period of ineligibility under Article 10.4 of the WADA Code.

In September 2009 the United States Anti-Doping Agency (USADA) reported an anti-doping rule violation against the cyclist Flavia Oliveira after her sample tested positive for the prohibited substance Oxilofrine (Methylsynephrine).

Consequently the American Arbitration Association (AAA) decided on 6 April 2010 to impose a 2 year period of ineligibility on the Athlete.

Hereafter in April 2010 the Athlete appealed the AAA Decision with the Court of Arbitration for Sport (CAS). The Panel was asked to determine the appropriate length of the Athlete’s period of ineligibility and the date on which the period of ineligibility should take effect.

The Athlete hoped to demonstrate to the Panel that her lack of intent to use a prohibited substance, her reasonable explanation as to how the prohibited substance entered her body, and her efforts to ensure that the Hyperdrive product that she ingested did not contain any prohibited substances, should support a reduction from the presumptive two-year period of ineligibility.

USADA contended that the Athlete should receive a 2 year period of ineligibility that should begin on the date that she accepted a provisional suspension.

The Panel finds that the Athlete has satisfied her burden of establishing that Oxilofrine entered her system as a result of her consumption of the supplement Hyperdrive 3.0+. Further the Panel concludes that the Athlete's testimony and other corroborating evidence establishes to its comfortable satisfaction that she did not intend to enhance her sport performance.

In view of the Athlete's conduct the Panel deems that she acted with a lowere degree of fault. Further the Panel considers that she gave a timely admission following the notification.

Therefore the Court of Arbitration for Sport decides on 6 December 2010:

1.) The appeal filed by Flavia Oliveira on April 27, 2010 against the decision of the American Arbitration Association dated April 6, 2010 is upheld.

2.) The decision of the American Arbitration Association dated April 6, 2010 imposing a period of ineligibility of two years is set aside and a period of ineligibility of eighteen (18) months commencing on August 30, 2009 is substituted therefor.

3.) This award is pronounced without costs, except for the Court Office fee of CHF 500 paid by Flavia Oliveira which shall be retained by the CAS.

(…)

5.) All other or further claims are dismissed.

CAS 2004/O/679 USADA v/Bergman

In July 2004 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the cyclist Adam Bergman after his A and B samples tested positive for the prohibited substance recombinant human erythropoietin (rhEPO).

After notification a provisional suspension was ordered. USADA deemed that Athlete had committed an anti-doping rule violation. Thereupon the Athlete did not accept the proposed fine and the sanction of a 2 year period of ineligibility.

Hereafter in August 2004 the Parties requested for arbitration with the Court of Arbitration for Sport (CAS).

Undisputed between the Parties is that rhEPO is a prohibited substance. However the only contested issue is what are the acceptable criteria for calling a sample positive for rhEPO.

The Athlete denied that he had committed an anti-doping rule violation because USADA had ignored the fact that he has not been tested positive according to the universally recognized BAP standard of 80%. He asserted that USADA was improperly relying on other criteria to establish a positive test.

After examining and considering all the evidence, the Panel is comfortably satisfied that the Athlete's sample contalned the prohibited substance rhEPO. Accordingly the Panel finds that the Athlete is guilty of a doping vlolation under the UCI Antidoping Regulations.

Further the Panel considers that the Athlete failed to explain how the prohibited substance had entered his system and thereupon tested positive for rhEPO. The Panel can only conclude that the Athlete intentionally had used rhEPO.

Therefore the Court of Arbitration for Sport decides on 13 April 2005 that:

1.) The Respondent Adam Bergman is guilty of a doping offence under the UCI Antidoping Regulations applicable in April 2004.

2.) The Respondent is declared ineligible for a period of two years under article 261 of the new 2004 UCI Antidoping Regulations. The period of ineligibilty commenced 23 July
2004 and ends on 22 July 2006, having taken account of the provisional suspension already being served by the Respondent.

3.) The costs of the present arbitration, to be determined and notifled to the parties by the Secretary General of CAS, shall be borne by USADA.

4.) Each party shall bear its own costs.

CAS 2007/A/1284 & CAS 2007/A/1308 World Anti-Doping Agency (WADA) v. Federación Colombiana de Natación (FECNA) & Lina Maria Prieto

• Aquatics (swimming)
• Doping (norandrosterone; testosterone)
• Direct application of the rules of an International Federation to athletes
• Appealable decision before the CAS
• Applicable law by tacit agreement of the parties
• Condition for the admissibility of the appeal
• Consequences of an IF’s delay to communicate a decision to WADA
• Duty of the athlete to ensure that no prohibited substance enters his/her body

1. Provided that a National Federation is subject to the rules/regulations of an International Federation, such regulations and in particular the doping control rules can be deemed directly applicable to athletes. This may be either through an agreement/license or through the accreditation for a specific competition, or through a chain of references to the International Federation rules in by-laws or other regulations. This kind of factual assumption - based on experience and the fact that competitors generally submit themselves to all applicable regulations of the relevant competition (including doping rules) by their participation in the competition - has already been confirmed by CAS precedents.

2. The concept of an appealable decision (including an appeal against the failure to make a decision) has been defined in the well-established case law of the CAS. In this respect, the form of the communication has no relevance to determine whether there exists a decision or not; furthermore for a communication to be a decision, the communication must contain a ruling, whereby the body issuing the decision intends to affect the legal situation of the addressee of the decision or other parties. Neither the lack of knowledge of the form in which the official decision has been rendered nor the fact that a formal (written) decision with reasons has not yet been handed in, changes this in any way.

3. The election of governing law by tacit agreement is possible. For instance, by their behaviour, the parties could have clearly given their assent to the application of a specific law. Nevertheless, to admit this, it must undoubtedly emerge through the parties’ conclusive acts, that they agreed on the applicable law when they entered into the disputed contractual relationship.

4. In cases where a provision refers to the “receipt of the decision” for defining the time limit of the appeal (in contrast to the term “notification/notice of the decision”), this must be interpreted in a sense of a mere and common “time limit provision”. In no way does it indicate a requirement of admissibility to the effect that a party entitled to appeal cannot lodge an appeal before the actual receipt of the relevant formal decision. Rather, if there are no doubts as regards the existence of a decision, the term “receipt” has to be interpreted in a way that the “dies a quo” of the time limit is at least – as “a minus” of a receipt – the notice of the decision.

5. A delay of an International Federation to pass to WADA the information of the existence of the decision cannot be held against WADA. Should it be otherwise, it would imply for WADA to intervene in national cases and take measures or make inquiries, which obviously fall into the competence of the National or the International Federations.

6. It is each athlete’s personal duty to ensure that no prohibited substance enters his/her body. For an athlete, to allege that he/she made a few researches on the internet before he/she ingested nutritional supplements allegedly containing the prohibited substance is not enough to meet the standard of care expected of a top-level athlete, i.e. obtain assurances from his/her physician, pharmacist or team doctor that the supplements do not contain a prohibited substance.

In May 2006 the Colombian Swimming Federation (FECNA) reported an anti-doping rule violation against the swimmer Lina Maria Prieto after she tested positive for the prohibited substances 19-norandrosterone (Nandrolone) and with a T/E ratio above the WADA threshold. Consequently the FECNA Disciplinary Committee decides to impose a 1 year period of ineligibility on the Athlete.

Following deliberations between FINA and FECNA the World Anti-Doping Agency (WADA) appealed in April 2007 the FECNA decision with the Court of Arbitration for Sport (CAS).

WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of inelibility on the Athlete. WADA contended that the Athlete had committed an anti-doping rule violation and failed to explain how she tested positive.

In view of the evidence the Sole Arbitrator has no reason to put into question the quality and the results of the sample analysis conducted by the WADA-accredited laboratory. Ms Lina Maria Prieto must be considered as having committed a doping offence involving a prohibited substance governed by the sanctions in article DC 10 of the FINA Doping Control Rules and must take responsibility for it.

The Sole Arbitrator deems that Ms Lina Maria Prieto was unable to establish how the prohibited substance entered her system. Hence, elimination or reduction of the period of ineligibility based on exceptional circumstances cannot be applied and a minimum sanction of 2 years (for a first violation) must be imposed according to the rules in force.

Therefore the Court of Arbitration for Sport decides on 8 July 2008:

1.) The appeals filed by the World Anti-Doping Agency in the present matter are partially upheld.

2.) The appealed decision of the FECNA in the present matter is set aside.

3.) Ms Lina Maria Prieto is guilty of an Anti-Doping Rule violation committed during the Campeonato Internacional Ciudad De Cali, which took place between 7 and 9 April 2006 in Cali, Colombia.

4.) Ms Lina Maria Prieto shall be declared ineligible for two years. The period of ineligibility to be imposed upon her shall commence on 18 May 2006.

5.) Ms Lina Maria Prieto’s results obtained during the 2006 Campeonato Internacional Ciudad De Cali and or/during the above-mentioned period of ineligibility, her eventual medals, her points and prizes are forfeited.

(…)

9. All other motions or prayers for relief are dismissed.

TAS 2009/A/1873 WADA c/ Federation Portugese de Cyclisme (UVP-FPC) et M. João Paulo da Costa Cabreira

CAS 2009/A/1873 WADA vs FPC & João Paulo da Costa Cabreira

In May 2008 the Portuguese Police conducted criminal investigations against the cycling team LA-MSS. As part of their investigations the Athlete João Paulo da Costa Cabreira and other team members provided a sample for doping control. Thereupon in August 2008 the Portuguese Cycling Federation (FPC) reported an anti-doping rule violation against the Athlete for tampering with any part of the doping control.

Consequently on 24 February 2009 the FPC Disciplinary Council decided to sanction the Athlete for 2 years. Yet, following the Athlete's appeal the FPC Judicial Council decided on 6 May 2009 to set aside the decision of 24 February 2009 and to acquit the Athlete.

Hereafter WADA appealed the FPC Judicial Council decision of 6 May 2009 with the Court of Arbitration for Sport (CAS). WADA requested the CAS Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

The Athlete denied the possession and use of doping and argued that he was tested before without any issues. He disputed the reliability of the test result and asserted that there had been departures during the sample collection and the chain of custody.

Further the Athlete complained that he his reputation was damaged following the negative publicity whereas the search of his car and house had not revealed possession of prohibited substances.

Based on the evidence and statements made by expert witnesses the Panel concludes that the WADA Cologne Laboratory has established that it had applied a valid method to analyze the sample of the Athlete. The Panel determines that the sample showed that the Athlete intentionally had used the Bacillolysing powder which has the ability to degrade the prohibited substance EPO.

Therefore the Court of Arbitration for Sport decides on 19 April 2010 to annul the Appealed Decision of 6 May 2009 and to impose a 2 year period of ineligibility on the Athlete, starting on 24 February 2009.

CAS 2009/A/1802 World Anti-Doping Agency (WADA) v. Comitato Olimpico Nazionale Italiano (CONI) & Elena Perotto

• Cycling
• Doping (19-norandrosterone; 19-noretiocholanolone)
• Presence of two forbidden substances
• Distinction between “ineligibility” and “disqualification” as regards sanction
• Duration of the sanction

1. The established presence of two forbidden substances in the bodily sample of an athlete, namely 19-norandrosterone and 19-noretiocholanolone which are endogenous anabolic androgenic steroids, constitutes an anti-doping rule violation under the World Anti-Doping Code which applies directly under CONI Sports Anti-Doping Rules for any athlete not under the benefit of any Therapeutic Use Exemption.

2. Under constant CAS jurisprudence relating to CONI matters, in a case where an athlete is not or not anymore a “soggetto tesserato”, that is a “licensed member”, no other sanction is possible than a sanction of “inibizione” or “ineligibility”. CONI and any sport federation have the power to keep out of their activities athletes, doctors, coaches, and any other individual that has proven to have committed a serious misconduct and, lacking any affiliation with CONI or with a relevant sport federation, cannot be disqualified.

3. Under the applicable regulations, the period of “inibizione” or ineligibility for a first offence of presence of a prohibited substance in an athlete’s sample is a minimum of two years since the athlete has no given any legitimate reason for a reduction of the otherwise applicable period of ineligibility. In this respect, an athlete cannot benefit from any reduction of the otherwise applicable sanction if he or she did not prove by a balance of probability, how the prohibited substance entered his/her body.

In December 2008 an anti-doping rule violation was reported against the Italian amateur cyclist Elena Perotto (45) after her sample tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

Consequently on 26 January 2009 the National Anti-Doping Tribunal, Tribunale Nazionale Antidoping (TNA), decided to impose a 1 year period of inelgihibility on the Athlete based on No Significant Fault or Negligence.

Hereafter in March 2009 the World Anti-Doping Agency (WADA) appealed the TNA 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 contended that the Athlete failed to establish how the prohibited substances had entered her system. She also failed to demonstrate that she acted with No Significant Fault or Negligence.

The Panel finds that the presence of prohibited substances has been established in the Athlete's sample and accordingly that she had committed an anti-doping rule violation.

In view of the evidence the Panel determines that under the applicable Rules the amateur cyclist is not a licensed athlete. Further the Panel deems that she failed to establish how the substances had entered her system.

The Panel finds that the Athlete only presented hypotheses, but witheld information which could amount to adducting the necessary evidence. Finally the Panel deems that there are no grounds that the Athlete acted with No Significant Fault or Negligence.

Therefore the Court of Arbitration for Sport decides on 28 August 2009:

1.) The appeal of WADA against the decision of the TNA of CONI dated 26 January 2009 is declared admissible and partly upheld.

2.) The Panel imposes a period of two year ineligibility (“inibizione”), which shall start on 26 January 2009.

(…)

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

TAS 2008/O/1643 Vladimir Gusev c/ Olympus sarl

CAS 2008/O/1643 Vladimir Gusev vs Olympus Sarl

Related cases:

• Swiss Federal Court 4A_352/2009
  October 13, 2009
• Swiss Federal Court 4A_368/2009 Vladimir Gusev vs Olympus Sarl
  October 13, 2009
  
  

The case involved a Russian racing cyclist, Vladimir Gusev and a Belgian Company Olympus Sarl. Olympus hired Gusev for two years on 15 November 2007 and the contract was governed by Swiss law. On 23 July 2008, Olympus Sarl terminated the contract, alleging that a medical report seriously suggested that the cyclist had used exogenous EPO.

Hereafter the Athlete Gusev opened arbitration proceedings with the Court of Arbitration for Sport (CAS). The Athlete asserted that Olympus Sarl had breached his employment contract and he requested for damages.

In this case the Panel assessed the stipulations in the Athlete's employment contract and the events that resulted in the termination of this contract. The Panel established that following the medical report about the suspicious test results the Kreischa Laboratory had recommended to subject the Athlete to further testings in order to determine that the Athlete indeed had used a prohibited substance.

Instead Olympus Sarl decided to terminate the Athlete's contract immediately. The Panel concludes that Olympus Sarl was not entitled to terminate the Athlete's employment contract with immediate effect in July 2008.

Consequently on 15 June 2009 the Panel decides in favour of the Athlete and ordered Olympus to pay damages. Thereupon Olympus Sarl's attempt to appeal this case with the Swiss Federal Court was dismissed in October 2009.