CAS 2004/A/748 Russian Olympic Committee (ROC) & Viatcheslav Ekimov v. International Olympic Committee (IOC), United States Olympic Committee (USOC) & Tyler Hamilton

• Cycling
• Characteristics features of a „decision‟
• No anti-doping rule violation
• Jurisdiction of the CAS
• Standing to appeal

1. When a letter contains a clear statement of the resolution of the disciplinary procedure and when that statement has the additional effect of resolving the matter in respect of all interested parties it can be considered as a decision. It seems also evident from the text of the letter that its author intended such communication to be a decision issued on behalf of the IOC. The letter is therefore a true “decision” which can be appealed under Art. R47 of the Code.

2. The decision taken by the IOC whereby it is stated that a rider had not committed an anti-doping rule violation because the B sample did not confirm the A sample is tantamount to stating that the IOC determined that no anti-doping rule violation had been committed. Therefore, the said decision falls under Art. 12.2 of the IOC Anti-Doping Rules which allows the CAS to rule on appeals against a „decision that no anti-doping rule violation was committed‟ and the CAS has jurisdiction to review it.

3. Art. 12.2.2 of the IOC Anti-Doping Rules, corresponding to Art. 13.2.3 of the WADA Code, provides that only the following parties have the right to appeal to the CAS: “(a) the Athlete or other Person who is the subject of the decision being appealed; (b) the IOC; (c) the relevant International Federation and any other Anti-Doping Organisation under whose rules a sanction could have been imposed; and (d) WADA”. Neither a competitor (of the athlete subject to an anti-doping decision) nor his National Olympic Committee are among the individuals or organisations listed therein. This interpretation is confirmed by the Comment on the WADA Code – particularly relevant in light of Art. 16.5 of the IOC Anti-Doping Rules – which unambiguously states that such list of persons or organizations having standing to appeal “does not include Athletes, or their federations, who might benefit from having another competitor disqualified”. An application submitted to the CAS by a party having standing to appeal long after the time limit for the appeal had expired cannot be considered.

Mr. Tyler Hamilton is an American professional Athlete competing in the cycling Men's Individual Time Trial event and the Men's Road Race at the Athens 2004 Olympic Games.

Mr Viatcheslav Ekimov is a Russian professional Athlete competing at the Athens 2004 Olympic Games.

In August 2004 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after his sample tested positive for blood doping. However the IOC Disciplinary Commission concluded on 23 September 2004 that no anti-doping rule violation was committed because the Athlete's B sample did not confirm the A sample.

Hereafter in October 2004 the Russian Olympic Committee (ROC) and the Athlete Viatcheslav Ekimov appealed the IOC Decision of 23 September 20014 with the Court of Arbitration for Sport (CAS).

The ROC and the Athlete requested the Panel to set aside the IOC decision and for the disqualification of the Athlete, including forfeiture of any medals, points and prizes won.
The Appellants contended that the new adverse analytical finding in respect of Mr Hamilton and the outcome of the related case would be relevant for the present procedure.

The Panel holds that the IOC Decision of 23 September 2004 falls under Art. 12.2 of the IOC Anti-Doping Rules and, thus, the CAS has jurisdiction to review it. However, a tribunal may have jurisdiction to decide a dispute, but it can only exercise that jurisdiction if the parties in front of it have standing to ask it to make the decision. Accordingly, the Panel must decide whether the Appellants are properly before it, i.e. whether they have locus standi to put the matter before the CAS under the IOC Anti-Doping Rules.

The Panel finds that both Appellants lack standing to appeal under Art. 12.2.2 of the IOC Anti-Doping Rules. As a result, the Panel may not entertain this appeal and must decline to adjudicate the case upon its merits.

On 27 June 2006 the Court of Arbitration for Sport decides:

1.) Mr Viatcheslav Ekimov and the Russian Olympic Committee have no standing to appeal against the decision issued on 23 September 2004 by the International Olympic Committee.

2.) The appeal filed by Mr Viatcheslav Ekimov and the Russian Olympic Committee on 14 October 2004 against the decision issued on 23 September 2004 by the International Olympic Committee is dismissed.

(…)

CAS 2004/A/707 Mr. David Millar v The British Cycling Federation

As a result of an investigation in 2004 against certain members of the COFIDIS cycling team for possible doping offences, the residence of the British cyclist David Millar in Biarritz was searched and two used syringes found there. In consequence on 22 June 2004, he was arrested and held in custody by the French police. While in custody he admitted to doping offences.

On 1 July 2004 the Athlete was charged with possessing and using toxic substances. During his hearing by the Examining Magistrate, the Athlete explained he had taken Testosterone patches on one occasion and EPO on three occasions.

The Athlete explained the pressure placed upon him by his position as team leader, the need he faced to "produce results", and at the same time the personal isolation in which he found himself, all of which exacerbated his psychological vulnerability. Those factors in combination with a heavy race programme, various injuries, disappointing results in certain important races and consequential financial pressures made him succumb to the temptation to use prohibited substances.

On 6 August 2004 in the decision issued by the British Cycling Federation (BCF) a 2 year period of ineligibility and a minimum fine was imposed on the Athlete.

In this case the BCF considered:

• the Athlete gave a frank admission both to the French authorities and the BCF;
• the fact that he voluntarily stopped using banned substance prior to any investigation;
• the genuine contribution shown;
• his willingness to assist young riders to help them avoid falling into the trap of taking banned substances;
• the gravity of the consequences of the penaly for his sporting and economic position and the risk to his professional career.

Hereafter in August 2004 the Athlete appealed the BCF decision with the Court of Arbitration for Sport (CAS).

The Athlete accepted the fine and disqualification penalties and requested the Panel for a reduced sanction. The BCF argued that the imposed sanction was proportional and lenient while he deliberately had used doping and only admitted the offences after he was caught.

In view of the circumstances and the lenght of the sancion the Panel considers that it is necessary to have regard to the indisputable fact that notwithstanding the Athlete’s sincere change of heart in autumn 2003, his doping offence was a very serious one.

Given the particular circumstances of this case - in which the Athlete was arrested by the French police and admitted, before his discharge from custody, to being guilty of doping, thereby de facto excluding himself from the Tour de France and any other forthcoming competitions, while at the same time promptly announcing he was withdrawing from the British Olympic team for Athens - the Panel considers the 2 year suspension should in fairness take effect from the date of his arrest.

Therefore the Court of Arbitration for Sport decides on 17 February 2005:

1.) The appeal filed by David Millar on 23 August 2004 is partially upheld.

2. The decision of 6 August 2004 issued by BCF is modified in accordance with paragraph 3.

3.) Millar’s two-year suspension from all forms of cycling competition is maintained, except that the said suspension takes effect on 24 June 2004 and ends on 23 June 2006.

4.) This award is rendered without costs, except for the Court Office fee of CHF 500.-- (five hundred Swiss Francs) already paid by the Appellant, which shall be retained by the CAS.

5.) Each party shall bear its own costs.

CAS 2004/A/651 Mark French vs Australian Sports Commission & Cycling Australia

• Appeal Partial Award
  July 11, 2005
• Interlocutory Award
  January 31, 2005
• Interlocutory Award
  March 30, 2005

In December 2003 cleaners found in the guesthouse room previously occupied by the Australian cyclist Mark French a plastic bag of used syringes and needles in the cupboard and a bucket of the sort which normally contained protein powder, also containing used syringes and needles. This discovery was followed by an investigation conducted by the Australian Sports Commission (ASC) and Cycling Australia (CA).

Consequently in February 2004 the ASC and the CA reported anti-doping rule violations against the Athlete for:

(1) Trafficking in a prohibited substance, namely Glucocorticosteroid;

(2) Trafficking in a prohibited substance, namely equine growth hormone (eGH);

(3) Knowingly assisting a doping offence, namely assisting in trafficking glucocorticosteroid by others; and,

(4) Knowingly assisting a doping offence, namely assisting in trafficking equine growth hormone by others.

In the matter of trafficking the substance Glucocorticosteroid and equine Growth Hormone (eGH) the Court of Arbitration for Sport (CAS) Oceania Registry decided on 8 June 2004 to impose a 2 year period of ineligibility on the Athlete and a A$ 1,000 fine.

In the Final Arbitration Award the Athlete was further ordered to:

(1) return to the ASC a trek road bike;
(2) pay the ASC the sum of A$12,031.37 for the financial assistance they provided to the Athlete; and
(3) pay the sum of A$20,000 to the ASC towards the costs of their proceedings.

Hereafter in June 2004 the Athlete appealed the first instance decision of with CAS.

In this case the scope of the appeal became controversial between the parties. The Panel was unable to deal with that controversy until it was reconstituted in late January of 2005. The Panel issued two interlocutory rulings dated 31 January 2005 and 30 March 2005 in which the Panel interpreted the CAS Code and prescribed the scope of this appeal.

By the interlocutory rulings the ASC and CA were permitted to file a cross-appeal against the finding of the Arbitrator at first instance that the Athlete did not breach CA Anti-Doping Policy by committing a Doping offence by using eGH. The finding was that the particular was not proven or accepted. The cross-appeal of the ASC and CA relates to this single particular.

Through the interlocutory rulings, all parties were able to file new evidence before the Panel in the rehearing and cross-appeal that had not been called at the first instance. The Athlete and the ASC and CA both filed extensive new evidence before the Panel.

The Athlete admitted to injecting himself with vitamins, supplements and the product Testicomp but denied injecting eGH. He admitted to injecting these substances in the company of other athletes but testified and stated that he was unaware of any athlete, who was present with him injecting eGH.

The Panel finds that this Athlete’s admission of Testicomp does not amount to an admission that there has been use of a prohibitied substance due to the product Testicomp was tested negative for the presence of a prohibited substance. As a result the Panel can’t find that a breach of the CA Anti-Doping Policy has occurred and that all allegations in the matter of Testicomp are dismissed as not established.

The Panel concludes that the scientific evidence does not demonstrate to the necessary degree of satisfaction the Athlete’s use of eGH and thereby breached the CA Anti-Doping Policy.

In the matter of trafficking eGH the Panel holds that the evidence in this case establish, unlike to the substance Testicomp, that there is evidence that the phials found in the bucket contained a prohibited substance, i.e. eGH, and it is being undisputed that the substance is a prohibited substance under the CA and UCI Anti-Doping Rules.

Further the Panel finds that not has been established that the requisite significant degree of satisfaction of proof that the Athlete knew he was in possession of eGH. In the absence of that knowledge the allegation of trafficking in eGH cannot be upheld nor the allegations for aiding & abetting. Finally the Panel is unable to uphold the conclusions of the Arbitrator in first instance.

Therefore the Court of Arbitration for Sport decides on 11 July 2005 that:

1.) The decision of Arbitrator Holmes QC at first instance be set aside and replaced with this decision of the Appeal Panel. As a consequence the two year period of ineligibility imposed as a sanction is terminated immediately. As a further consequence the fine of A$1,000 Australian dollars ordered to be paid at first instance is to be returned to French within one week of the date herein.

2.) The first instance order to return the trek bike and A$12,031.37 by way of an athlete scholarship are to be included in the written submission referred to in order number four below.

3.) This being an appeal procedure this award is public under CAS Rule 59 unless the parties agree otherwise; and

4.) Costs associated with the first instance decision; the interlocutory proceedings; and this appeal by rehearing and cross-appeal will be considered but on the principles of CAS international and the CAS Rule 65. Counsel are directed to make a written submission not exceeding 10 pages double spaced as to their costs and the matters referred to in order number two above within 15 days of this award.

5.) The Court office filing fees paid by the ASC and by CA at first instance and the filing fee paid by the Appellant French each in the amount of A$500 are retained by CAS.

CAS 2008/A/1470 World Anti-Doping Agency (WADA) v. Fédération Internationale des Luttes Associées (FILA) & Mohamed Ibrahim Abdelfattah

Related case:

CAS 2007_A_1365 WADA vs FILA & Mohamed Ibrahim Abdelfattah
December 11, 2007

• Wrestling
• Doping (refusal to submit to an out of competition doping control)
• Identification of the entities entitled to conduct out-of-competition testing
• Standard of proof under Swiss law
• Absence of departure from the applicable standards

1. Based upon the applicable rules of the relevant international federation, WADA as well as the national anti-doping organization of any country where an athlete is present is authorized to conduct out-of-competition testing on any athlete affiliated to the international federation.

2. Swiss law allows for a wide variety of methods of proof, ranging from a magistrate’s deductions from presumptions and evidence to direct proof such as written documents, witness statements, confessions, evidence of facts, experts, etc. It is on the basis of the evidence before them that the members of a CAS panel, in full discretion, must come to an opinion – their firm conviction (“intime conviction”) – as to facts established. A CAS panel may consider any evidence, even circumstantial evidence. Therefore, based on objective criteria, a panel must be convinced of the occurrence of an alleged fact. However, no absolute assurance is required; it suffices that the tribunal has no serious doubts on a specific fact or that the remaining doubts appear to be light. Those methods of proof are applicable for the evaluation by a CAS panel of an athlete’s actual command of the English language. Accordingly, a panel can consider than an athlete was able to understand the statements that were being made to him in English and to answer and to ask questions such that the sample-collection session could take place in a fair manner and that no interpreter was needed.

3. The requirements included in the applicable regulations regarding notification process, identification requirements, sample collection process, information about rights and duties and planning obligations are fully complied with when, based on the facts and evidence submitted by the parties, (i) the alleged deviations by the doping control officer from the anti-doping rules and the International Standard for Testing are not proven and (ii) the panel is convinced beyond reasonable doubt that the doping control officer correctly identified himself to the athlete who was informed of and understood his/her rights and obligations.

In July 2007 the World Anti-Doping Agency (WADA) reported an anti-doping rule violation against the Egyptian wrestler Mohamed Ibrahim Abdelfattah after he refused to provide a sample out-of-competition to USADA agents acting as representative of WADA.

However the International Federation of Associated Wrestling Styles (FILA) decided on 31 July 2007 to impose a warning on the Athlete for his anti-doping violation.

WADA appealed this decision with the Court of Arbitration for Sport (CAS) and on 11 December 2007 (CAS 2007/A/1365) the Panel decided to annul the Appealed Decision and to refer the case back to FILA.

During the CAS proceedings a set of FILA disciplinary decisions were rendered between July 2007 and September 2007 including the imposition on the Athlete of a 6 months sanction on 28 September 2007.

As a result of the CAS decision of 11 December 2007 (CAS 2007/A/1365) the Athlete's case was referred back to FILA and on 19 December 2007 the FILA Federal Appeal Commission decided to confirm the previous sanction imposed on 28 September 2007.

Hereafter WADA filed a new appeal with CAS against the confirmed FILA sanction of 6 months. WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

WADA contended that the USADA agents had the authority to conduct the out-of-competition testing on the Athlete. He was duly informed of his rights and obligations as well as of the consequences of a refusal to submit to doping control.

WADA asserted that the Athlete’s allegations are in contradiction with the statements made by the USADA agents. Here the Athlete alleged that departures from the Rules and the IST occurred and that serveral of his personal rights were violated, notably because of his lack of ability in English.

The Panel establishes that USADA had the authority to conduct the out-of-competition sample collection on the Athlete and that no departure from the applicable regulations occurred during the notification process. The Panel finds beyond any doubt that the Athlete’s level of English must have been sufficient to permit him to understand the statements that were being made to him in English.

The Panel concludes that the Athlete committed an anti-doping rule violation and he failed to establish that he bears No Significant Fault or Negligence in this case.

Therefore on 3 September 2008 the Court of Arbitration for Sport decides:

1.) The Appeal of the WADA against the decision rendered on 19 December 2007 by the FILA Federal Appeal Commission is admissible.

2.) The decision rendered on 19 December 2007 by the FILA Federal Appeal Commission is set aside.

3.) Mr Mohamed Ibrahim Abdelfattah is declared ineligible for a period of 24 months running from 18 June 2008, less a period of 6 months which has already been served by the athlete.

4.) All results achieved between 24 January 2008 and 17 June 2008 are disqualified and any medals, points and prizes obtained during such period are forfeited.

5.) This award is pronounced without cost, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) already paid and to be retained by the CAS.

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

CAS 2007/A/1365 WADA v/FILA & Mohamed Ibrahim Abdelfattah

Related case:

CAS 2008_A_1470 WADA vs FILA & Mohamed Ibrahim Abdelfattah
September 3, 2008

In July 2007 the World Anti-Doping Agency (WADA) reported an anti-doping rule violation against the Egyptian wrestler Mohamed Ibrahim Abdelfattah after he refused to provide a sample to USADA agents acting as representative of WADA.

Consequently the International Federation of Associated Wrestling Styles (FILA) decided on 31 July 2007 to impose only a warning on the Athlete for his refusal.

Hereafter in August 2007 the World Anti-Doping Agency (WADA) appealed the decision of FILA with the Court of Arbitration for Sport (CAS). WADA requested the CAS Panel to set aside the FILA decision of 31 July 2007 and to impose a 2 year period of ineligibility on the Athlete.

Also in this case a number of FILA disciplinary decisions were rendered between July 2007 and September 2007 regarding the Athlete’s provisional suspension and the imposition of a 6 months sanction.

The Panel establishes that the Appealed Decision was a ‘final’ decision and that the appeal filed by WADA was admissible. The Panel finds that the Appealed Decision was adopted by a FILA body - the Executive Committee - which clearly did not hold the power and competence to adopt such a disciplinary decision. Accordingly, the Panel deems the Appealed Decision to be null and void.

The Panel determines to refer the case back to FILA, so that the FILA Federal Appeal Commission may adopt a final disciplinary decision with regard to the Athlete's case. Thereafter, any dissatisfied party will still have the right to appeal before the CAS.

Therefore the Court of Arbitration for Sport decides on 11 December 2007 that:

1.) The Appeal of WADA against the FILA Executive Committee's decision of 31 July 2007 is admissible.

2.) The FILA Executive Committee's decision of 31 July 2007 is set aside.

3.) The case of Mr Mohammed Ibrahim Abdelfattah is referred back to FILA, so that the FILA Federal Appeal Commission may render its decision within the currently pending appellate procedure.

4.) The award is pronounced without costs, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) already paid by WADA and to be retained by the CAS.

5.) FILA shall pay an amount of CHF 1'500 (one thousand five hundred Swiss Francs) to WADA as a contribution towards its costs.

CAS 2009/A/1915 World Anti-Doping Agency (WADA) v. Polish Wrestling Federation (PWF), Kamil Blonski & Wojciech Zieziulewicz

• Wrestling
• Doping (methyltestosterone)
• Applicability of the WADA Code
• No significant fault or negligence and principle of proportionality
• High standard of athletes’ responsibility for nutritional supplements
• Investigation required before the consumption of a nutritional supplement
• Duty of care required for no significant fault or negligence

1. In accordance with Article R58 of the Code the “applicable regulations” refer to the statutes and regulations of the International Federations (IFs) which must be incorporated by the National Federations (NFs). As a signatory of the WADA Code (WADC), IFs incorporate the WADC into their Constitution and Anti-Doping Rules (ADR). Through this channel only, the WADC may apply. The rules of NFs are applicable to the extent that they do not conflict with the rules of IFs.

2. The proportionality principle which had been applied by CAS panels as a general legal principle in its earlier jurisprudence has been codified in Article 10.5 of the WADC 2003 allowing a sanctioning authority to consider exceptional circumstances of the case in order to lower the sanction instead of imposing a fixed sanction. Through the WADC 2003 the principle of proportionality was codified and thereby adjusted to the needs of the anti-doping law. The codification is in line with the requirements of the general proportionality principle and human rights. CAS has stated at various occasions that the WADC “enables the Panel to satisfy the general principle of proportionality” and there is no room to apply the proportionality principle beyond the application of Article 10.5.2 WADC 2003.

3. As it is generally known, nutritional supplements are often contaminated with or contain prohibited substances which are not declared on the label or package. The high standard of responsibility has been specified by warnings issued by the sport organizations. In practicing sport the athletes are bound by the provisions of their IF including its ADR and the high duty of care requested therein. This is a severe professional duty of care which is not incumbent on normal citizens and goes far beyond the standards of duty applicable to normal people.

4. Against the background of the content of the manufacturer’s website and the leaflet of the product, further investigation is mandatory before the consumption of a nutritional supplement. A check of the announcements in the internet and the product label, its package or leaflet is not sufficient. Even if the website and leaflet do not indicate prohibited substances openly, it is common knowledge that food supplements often contain undeclared substances or are contaminated with prohibited substances. Therefore, it is part of the athletes’ responsibility not to trust publicity on the website or the content of the label or leaflet.

5. By simply trusting the club personnel in what nutritional supplements they are given and the oral information provided by the support personnel that the products are clean, the athletes do not exercise the duty of care which is required in order to bear no significant fault or negligence only. Even if it is accepted that the athletes are misled by the club personnel and the seller and distributor of the supplements which are in close economic relation with the club, they are not relieved from their personal responsibility to make sure that no prohibited substance enters their bodies. Athletes do not escape liability when they simply trust their club’s staff or other supporting personnel.

On 15 May 2009 the Polish Wrestling Federation (PWF) decided to impose a 1 year period of ineligibility on the Polish wrestlers Kamil Blonski and Wojciech Zieziulewics after their A and B samples tested positive for the prohibited substance Methyltestosterone. Despite the appeal of the World Anti-Doping Agency (WADA) the decision was uphold by the PWF on 29 June 2009.

Hereafter in July 2009 WADA appealed the PWF decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the decision of 29 June 2009 an to impose a 2 year period of ineligibility on the Athletes.

WADA rejected the arguments in favour of the Athletes and argued that the Fault or Negligence of the Athletes was significant for using a product that clearly indicated that it enhance performances.

The PWF contended that the Athletes had established how the prohibited substance had entered their system and that they had acted not intentionally and with a normal degree of fault. The Athletes used the product to gain weight and they did not conceal the use of the product.

Considering the evidence in this case the Panel concludes that the Athletes could not demonstrate No Significant Fault or Negligence because they failed to conduct a thorough investigation of the product in question before using it.

Therefore on 12 August 2010 the Court of Arbitration for Sport decides:

1.) Tho appeal of WADA is declared admissible and upheld.

2.) The decision of the Disciplinary Arbitration Commission of the PWF adopted on 29 June 2009 is set aside.

3.) Mr. Kamil Blonski and Mr. Wojciech Zieziulewics are sanctioned with a two year period of ineligibility starting on the date of this Award. The period of provisional suspension served by Mr. Kamil Blonski and Mr. Wojciech Zieziulewics since 17 December 2008, i.e.,one year, seven montht and 26 days, shall be credited against the total period of two years.

4.) All competitive results obtained by Mr. Kamil Blonski and Mr. Wojciech Zieziulewics from 17 December 2008 through the commencement of the applicable period of ineligibility shall be disqualified with all resulting consequences, including forfeiture of any medals, points and prizes.

5.) This Award is pronounces without costs except for the non-reimbursable Court Office Fee of CHF 500,- allready paid and to be retained by the CAS, The parties bear their own legal and other costs. PWF is ordered to contribute CHF 3.000,- to the costs incurred by WADA.

6.) All other prayers for relief are dismissed.

CAS 2007/A/1399 World Anti-Doping Agency (WADA) v. International Federation of Associated Wrestling Styles (FILA) & Maria Stadnyk

Related case:

Swiss Federal Court 4A_416_2008 Maria Stadnyk & Azerbaijan Wrestling Federation vs WADA & FILA
March 17, 2009

• Wrestling
• Doping (furosemide)
• WADA’s obligations with respect to decisions taken by associations and federations
• CAS power of review
• Precondition to the defence of No Significant Fault or Negligence
• Sanction in case of delays in the process not attributable to the athlete

1. There is no obligation for WADA to inform itself on an ongoing basis about decisions that are going to be taken by associations and federations. Rather, federations, such as FILA, obligate themselves to report on compliance with the World Anti-Doping Code in order to keep WADA updated (according to Article 17 of FILA Anti-Doping Regulations). It cannot possibly be expected of WADA to monitor the web sites of sport associations in order to find out whether any sanctions have been suspended. As a matter of practice, it is also often impossible for WADA to monitor such decision-making processes as these proceedings and decisions are not necessarily displayed on websites.

2. According to Article 57 of the CAS Rules, a CAS panel is entitled to review the case de novo and the athlete’s rights are preserved notwithstanding how the earlier decision-making process took place within the first instance.

3. Establishing how a prohibited substance entered an athlete’s system is a fundamental precondition to the defence of “no significant fault or negligence” under the applicable rules.

4. According to the applicable Anti-Doping Regulations, delays in the hearing process or other aspects of Doping Control not attributable to the athlete, the federation concerned or the Anti-Doping Organization imposing the sanction may start the period of ineligibility at an earlier date commencing as early as the date of sample collection. Fairness does require that the period of ineligibility starts earlier if – for reasons beyond the athlete’s control, notably linked to the fact that WADA was informed very late about the decision under appeal and therefore this proceeding began later and linked to the fact that the number of questions raised by this case made the CAS proceedings more protracted than usual – the athlete had to live with the uncertainty of whether s/he could prepare for and validly participate in qualifications for the Olympic Games, despite this being a particularly important event in any athlete’s career.

On 31 May 2006 the International Federation of Associated Wrestling Styles (FILA) decided to impose a 1 year period of ineligibility on the Ukrainian wrestler Maria Stadnyk after her sample tested positive for the prohibited substance Furosemide. At that time she was registered with the Ukrainian Wrestling Association and later registered with the Azerbaijan Wrestling Federation.

Following deliberations between the World Anti-Doping Agency (WADA) and FILA the case was reopened and on 4 September 2006 a sanction of 2 years was imposed by FILA. However on 20 June 2007 the FILA Appeal Commission decided to reduce the sanction and to impose a 15 month period of ineligibility on the Athlete. Here new evidence was introduced that showed that the Athlete’s drink was spiked by another Athlete.

Hereafter in October 2007 WADA appealed the FILA decision of 20 June 2007 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 ineligibility on the Athlete.

WADA contended that the Athlete tested positive for a prohibited substance and that she failed to establish how the substance entered her system. Neither had she established No Fault or No Significant Fault.

The Athlete denied the intentional use of the substance, nor that she had problems to fit into her weight category. She asserted that the evidence demonstrated that another Athlete had spiked her drink.

The Panel considered the coinciding statements and testimony of the Athletes in question and the certain points of relevance. Here the Panel finds on balance that it is improbable that the Athlete’s drinking water was spiked with Furosemide by another Athlete as alleged while it is more probable than not that the other Athlete did not sabotage the Athlete’s drink.

As a result the Panel concludes that the Athlete failed to establish how the substance entered her system nor that she establish No Fault or Nog Significant Fault.

Therefore on 17 July 2008 the Court of Arbitration for Sport decides:

1.) The Court of Arbitration for Sport has jurisdiction to decide the present dispute.

2.) The appeal filed by the World Anti-Doping Agency on 11 October 2007 is admissible.

3.) The World Anti-Doping Agency's appeal is granted.

4.) The decision of FILA, dated 20 June 2007, is set aside.

5.) Ms. Maria Stadnyk is sanctioned with a two-year period of ineligibility, starting on 26 April 2006 and having expired on 25 April 2008.

6.) All results obtained by Ms. Maria Stadnyk in any competitions between 26 April 2006 and 25 April 2008 are disqualified and any medals, points or prizes obtained are forfeited.

7.) The Azerbaijan Wrestling Federation shall pay to WADA an amount of CHF 5,000 (five thousand Swiss Francs) as compensation for fees and expenses incurred in connection with this atbitration.

8.) The award is rendered without costs, except for the CAS office fee that is retained by CAS.

9.) All other prayers for relief are dismissed.

CAS 2008/A/1565 World Anti-Doping Agency (WADA) v. International Military Sports Council (CISM) & Federico Turrini

Related case:

Swiss Federal Court 4A_10_2009 Federico Turrini vs WADA & CISM
July 8, 2009

• Aquatics (swimming)
• Doping (19-norandrosterone)
• Dies a quo of the time limit for the filing of the appeal
• Presence of a prohibited substance
• Conditions of reduction of the period of ineligibility based on exceptional circumstances
• Determination of the disciplinary sanction

1. It is very important that international sports law rules are equally applied for all parties, no matter if they are athletes or organizations, and that the application also must be foreseeable for those involved. If a party which have not taken part in the proceedings leading to the appealed decision shall have a fair opportunity to file an appeal it must be aware of that decision. In spite of the wording of the applicable rule, according to the applicable procedural rules, international sport law and CAS case law, the time limit for the filing of the appeal should not be counted from the date when the decision has been made, but when the party appealing the decision has been notified of such decision. In any event, it is for the respondent to prove that the decision was communicated more than 21 days prior to the appellant’s statement of appeal.

2. The presence of 19-norandrosterone which is an endogenous anabolic androgenic steroid at a concentration greater than 2 ng/ml in an athlete’s bodily specimen constitutes a doping violation incompatible with an endogenous production of the substance.

3. It is the professional duty of an athlete to consult the rules and to be well aware of all the duties an athlete has to fulfil. In this respect, an athlete must be active to ensure that no prohibited substance enters his/her body. As said in the Commentary to WADC, an athlete cannot rely on advice from his/her personal physician in these matters, especially when the doctor is no expert on sports medicine. The fact that an athlete is a professional is also relevant. If the athlete has not done anything to ensure this, s/he has not established that he bears no significant fault or negligence. There is therefore no ground to reduce the sanction on this basis.

4. It is well established that a two-year suspension for a first time doping offence is legally acceptable. Pursuant to the rules, the period of provisional suspension voluntarily accepted by an athlete shall be credited against the total period of ineligibility to be served. Furthermore, it is required by fairness that the starting date of the period of ineligibility should not constitute a disadvantage for the athlete when the process from the sample collection to the date when the sanction can be imposed has been far too long.

On 15 January 2008 the International Military Sports Council (CISM) decided to impose a suspended sanction of 2 years on the Italian swimmer Frederico Turrini after his sample tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

Here the Athlete denied the intentional, accepted the test result and explained that the postitive test was caused by prescribed eye drops that contained the prohibited substance.

Hereafter in May 2008 the World Anti-Doping Agency (WADA) appealed the CISM 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 ineligibility on the Athlete.

Following assessment of the case the Panel concludes that the Athlete committed an anti-doping rule violation and that he failed to establish that he bears No Significant Fault or Negligence.

The Panel deems that the Athlete, in order to fulfil his or her duty according to Art. 2.1. of the WADC, has to be active to ensure that a medication that he or she uses does not contain any compound that is on the Prohibited List. In the present case, the Athlete has not done anything to ensure this.

Therefore the Court of Arbitration for Sport decides on 4 November 2008 that:

(1) The appeal filed by WADA on 30 May 2008 is admissible.

(2) The decision of CISM Discipline Commission dated 15 January 2008 in the matter of Federico Turrini. is set aside.

(3) Federico Turrini is sanctioned by a two (2) years ineligibility, which started on 6 February 2008. The period of voluntary suspension from 3 December 2007 to 5 February 2008 shall be credited against the total period of ineligibility to be served.

(4) All competitive results obtained by Federico Turrini from 19 October 2007 until the date of the present decision shall be disqualified with all of the resulting consequences including forfeiture of any medals, points and prizes.

(5) All other prayers for relief are dismissed.

(6) The award is pronounced without costs except for the Court Office fee of CHF 500,- (five hundred Swiss Francs) paid by Mr Federico Turrini and which is kept by the CAS.

(7) Each party shall bear its own costs.