CAS 2020/A/6781 Andrus Veerpalu v. Fédération Internationale de Ski (FIS)

Related cases:

• CAS 2011_A_2566 Andrus Veerpalu vs International Ski Federation
  March 25, 2013
• CAS 2020_ADD_7 ISF vs Andrus Veerpalu
  March 17, 2021
• FIS 2011 FIS vs Andrus Veerpalu
  August 21, 2011

• Skiing (cross-country skiing)
• Doping (suspected anti-doping rules violation)
• CAS Jurisdiction
• Consequences of a provisional suspension
• Taking into account of irreparable harm in favour of a provisonally suspended athlete

1. The FIS Anti-Doping Rules (ADR) provides for an appeal to the CAS against decisions to impose a provisional suspension. Pursuant to Article R27 of the CAS Code, the parties’ agreement to refer a sports-related dispute to CAS may arise out of an arbitration clause contained in a contract or regulations. Similarly, pursuant to Article R47 of the Code, an appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide. Accordingly, the arbitral clause contained in the FIS ADR is sufficient to confer jurisdiction to the CAS to rule on an appeal. It would run counter to the fundamental aim of avoiding the fragmentation of international sports which aspire to, and indeed require, uniform application of the law, if statutory references to CAS would be binding, but the same would not be the case if CAS is referred to in a “mere” regulation – no matter how clearly spelled out, no matter how well notified to participants in the internationally regulated sport. In any case, a statutory basis for CAS jurisdiction is present as well, in the form of Article 57.4 of the FIS Statutes, which provides that: “Decisions of the Council and the Doping Panel which concern violations of the doping rules may be appealed to the Court of Arbitration for Sport (CAS) within twenty one (21) days”. The jurisdictional foundation of CAS is therefore fully supported by both regulatory and statutory references.

2. Provisional suspensions have the consequence of ineligibility to compete, with the result that the suspended individual is excluded from competitions which will not be repeated. This rule fulfills the goal of protecting participants who are not under the cloud of a “reasonable possibility” of having committed a doping violation. True enough, such is also the effect of definite suspensions. But the latter are established for a fixed period of time, and that makes all the difference; a provisional suspension may be overturned as soon as a CAS panel can reach a decision to that effect. It therefore makes sense that the hurdle to overturning provisional suspensions is higher than that of definite suspensions.

3. The factor of irreparable harm may be taken into account in favor of a provisionally suspended athlete, but the appellant must then demonstrate that the requested measures are necessary in order to protect him from damage or risks that would be impossible, or very difficult, to remedy or cancel at a later stage. The mere allegations of irreparable harm, without corroborating proof, fail to satisfy the appellant’s burden of proof to show substantial damage if the appealed decision is not set aside and if the provisional suspension thus remains.

On 27 February 2019, at the 2019 Nordic World Ski Championships in Seefeld, the Austrian police raided several cross-country athletes on suspicion of violation of the Austrian anti-doping laws. Among them were several members of the privately sponsored “Team Haanja”, a group of athletes and coaches mainly from Estonia, including the Appellant’s son Andreas Veerpalu, Karel Tammjärv and Alexey Poltoranin from Kazakhstan.

“Team Haanja” was completed by further athletes, who later voluntarily confessed blood doping, and Mati Alaver and Andrus Veerpalu as their coaches. The athletes admitted that they had blood taken from their circulatory system and later, immediately before certain competitions, re-injected into their system. Coach Mati Alaver also admitted having been part of the systematic blood doping scheme, which was actually performed by Dr. Mark Schmidt from Erfurt, Germany, and his assistants.

The discovery of the illegal blood doping scheme led to several decisions by Anti-Doping Organizations (ADO), which sanctioned athletes and athlete support personnel from various sports and countries with periods of ineligibility. The FIS Independent Anti-Doping Delegate (IADD) sanctioned four cross-country skiers and coach Mati Alaver with periods of ineligibility of four years.

In addition, the responsible Public Prosecutor in Innsbruck, Austria, has initiated criminal proceedings against a number of Austrian and Estonian cross-country skiers and coaches, including Andrus Veerpalu.

The Appellant was a coach of meanwhile banned Alexey Poltoranin and his son Andreas Veerpalu. On 28 September 2019, the FIS opened a disciplinary case also against the Appellant and imposed a provisional suspension.

In December 2019 Coach Veepalu sought to lift the provisional suspension which FIS rejected on 31 January 2020.

Hereafter in February 2020 the Athlete appealed the FIS decision of 31 January 2020 with the Court of Arbitration for Sport. The CAS Panel rendered a decision without a hearing based on the written submissions of the Parties.

Coach Veepalu disputed the validity of the provisional suspension since the evidence filed by FIS does not demonstrate sufficiently that there is a reasonable possibility that he had committed an anti-doping rule violation.

The Panel concludes that the evidence submitted by FIS demonstrate that the Appellant was aware of the organized blood doping scheme being carried out by persons with whom he was so actively involved. The Panel also dismissed the Appellant’s alternative prayer for relief that impugned measures should be set aside specifically insofar as they affect his three minor children are concerned

Accordingly the Appellant's request to set aside the FIS Decision of 31 January 2020 and to lift the provisional suspension is denied. The alternative prayer for partially lifting the provisional suspension is dismissed as well.

Therefore the Court of Arbitration for Sport rules that:

1. The Court of Arbitration for Sport has jurisdiction to decide the appeal filed by Mr Andrus Veerpalu on 21 February 2020.
2. The appeal filed by Mr Andrus Veerpalu on 21 February 2020 is dismissed.
3. The Resolution issued by the FIS Independent Anti-Doping Delegate on 31 January 2020 is confirmed and the provisional suspension imposed on Andrus Veerpalu on 28 September 2019 is upheld.
4. (…).
5. (…).
6. All other and further motions or prayers for relief are dismissed.

CAS 2019/A/6254 Alexander Ivanov v. Russian Anti-Doping Agency (RUSADA), award of 14 February 2020

Related case:

World Athletics 2022 WA vs Aleksandr Ivanov
August 25, 2022

• Athletics (race walking)
• Doping (Athlete’s Biological Passport, ABP)
• Establishment of an anti-doping rule violation by the ABP
• ABP profile
• OFF Score
• Adaptive Model
• ABP as reliable means of evidence
• Standard of proof

1. The Athlete’s Biological Passport (ABP) is not, of itself, sufficient to establish an anti-doping rule violation; it is also a matter for the interpretation of the ABP by experts.

2. The ABP is an electronic record maintained for an individual athlete in which the results of the analysis of samples collected over a period of time are collated. It contains a haematological profile consisting of the combined results of haematological parameters analysed in respect of a series of blood samples. These parameters are subject to natural fluctuations. By tracking the parameters, it is possible to establish a range for these natural variations. The purpose of a passport is to individualise parameters within an expected range.

3. The OFF Score refers to the relationship between haemoglobin and reticulocytes in the athlete’s blood. Doping to increase endurance is designed to increase the oxygen-carrying capacity of blood which, in turn, will affect the amount of haemoglobin in blood and the percentage of reticulocytes. A significant fluctuation in an OFF score can indicate doping.

4. The haematological profile incorporates the use of “the Adaptive Model”, a mathematical model designed to identify unusual longitudinal results from athletes, based on a series of algorithms, which identifies a profile which deviates from an athlete’s usual parameters, referred to as “atypical”. An ATPF is a report generated by the Adaptive Model, which identifies either a single marker value or a longitudinal profile of marker values as being outside the athlete’s individual range. Under the ABP Guidelines, an ATPF requires further investigation and/or analysis.

5. The ABP is, and has been generally accepted as, a reliable mean of evidence to assist in establishing ADRV.

6. A conclusion drawn from an ABP by an expert panel that it is “highly likely” that an athlete used a prohibited substance or prohibited method and that any alternative explanation is “highly unlikely”, establishes the ADRV to the requisite standard of comfortable satisfaction of the adjudicating body, greater than a mere balance of probabilities.

In May 2017 the Russian Anti-Doping Agency (RUSADA) reported an anti-doping rule violation against the Athlete Alexander Ivanov after an Expert Panel concluded unanimously in March 2017 in their Joint Expert Opinion that the Athlete’s hematological profile “highly likely” showed that he used a prohibited substance or a prohibited method: the use of EPO or Blood doping. 

This conclusion of the Expert Panel was based on assessment of blood samples, collected in the period from 9 July 2012 until 9 February 2017 reported in the Athlete’s Biological Passport (ABP). 

After notification the Athlete submitted several explanations and objections to RUSADA about the circumstances surrounding the collected samples. However after consideration the Expert Panel rejected the Athlete’s explanations and objections in their 2nd (September 2017) and 3rd (January 2018) Opinion. A provisional suspension was ordered and the Athlete was heard for the RUSADA Disciplinary Anti-Doping Committee. 

Consequently on 22 March 2019 the Anti-Doping Committee decided to impose a 3 year period of ineligibility on the Athlete starting on the date of the provisional suspension including disqualification of his results.

Hereafter in April 2019 the Athlete appealed the Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Decision and to impose a reduced sanction.

The Athlete denied he committed an anti-doping rule violation and with an expert witness he disputed the validity of the samples in his ABP. He asserted that his altitude training and normal biological and analytical variabilities could explain his ABP profile.

RUSADA rejected the Athlete's assertions and contended that the Expert Panel's Opinions already had refuted the Athlete's explanations and objections.

Considering the evidence the Sole Arbitrator is comfortably satisfied that RUSADA has established that the conclusion to be drawn from Mr. Ivanov’s ABP is that he used a prohibited substance or prohibited method. In its Expert Panel Opinion, the Expert Panel asserted that this was “highly likely” and that any alternative explanation was “highly unlikely”. This conclusion, which the Sole Arbitrator accepts, establishes the ADRV to the requisite standard, greater than a mere balance of probabilities.

Yet the Sole Arbitrator finds that the circumstances of the offence are not sufficient to support a finding of aggravated circumstances. Further the Sole Arbitrator concludes that the disqualification period should be from 9 July 2012 to 17 August 2014, which is coincident with the period of proven use.

Therefore The Court of Arbitration for Sport Decides on 14 Feburary 2020 that:

1. The appeal filed by Alexander Ivanov on 12 April 2019 is partially upheld.
2. A period of Ineligibility of two (2) years is imposed on Alexander Ivanov starting from 2 May 2017.
3. All competitive results of Alexander Ivanov from 9 July 2012 to 17 August 2014 are disqualified, with all resulting consequences (including forfeiture of any titles, awards, medals, profits, prizes, and appearance money).
4. (…).
5. (…).
6. All other motions or prayers for relief are dismissed.

CAS 2019/A/6541 Hiromasa Fujimori v. Fédération Internationale de Natation (FINA)

Related case:

FINA 2019 FINA vs Hiromasa Fujimori
October 31, 2019

• Aquatics (swimming)
• Doping (methylephedrine)
• Proof of the source of the prohibited substance required to reduce the period of ineligibility
• Balance of probability
• Proportionality of the sanction
• Imposition of an “alternative solution”
• Measure of the sanction

1. In order to benefit from a fault related reduction, an athlete must prove the source of the prohibited substance. The applicable standard of proof for an athlete to establish the source of the prohibited substance and that there was no significant fault or negligence is by a balance of probability. It is not sufficient for an athlete merely to make protestations of innocence and to suggest that the prohibited substance must have entered his/her body inadvertently from some supplement, medicine or other product. An athlete must adduce concrete evidence to demonstrate that a particular supplement, medication or other product that the athlete took contained the substance in question.

2. The meaning of “by a balance of probability” is that the occurrence of the scenario suggested by the athlete must be more likely than its non-occurrence and not the most likely among competing scenarios. There is no need to decide which is the most likely between two or more competing scenarios, but rather the athlete must prove that the chain of events presented by him/her did happen, more likely than not. Of course, the athlete is allowed to address other scenarios put forward in an effort to support his/her position. However, the other party does not have the burden of proving the prevailing likelihood of a different scenario and it is not obliged to put forward any other competing scenarios.

3. The principle of proportionality is embodied in the provisions of Article 10.5 of the World Anti-Doping Code (WADC). The “No Significant Fault or Negligence” and “No Fault or Negligence” exceptions to an otherwise strict liability anti-doping rule are indeed embodiments of the proportionality, and there is no gap in the rules that may allow the principle of proportionality to be utilized. Even an “uncomfortable feeling” regarding a sanction mandated in the rules is not sufficient to invoke the principle of proportionality where the applicable rules include a sanctioning regime which is proportionate and contains clear and concise mechanism which allows for a reduction of the applicable sanction.

4. There is no basis to find ways outside of the rules to circumvent the application of the provisions of the 2015 WADC and to impose “alternative solutions” to a decision based on the simple application of the rules and regulations in force.

5. 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.

In February 2019 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Japanese swimmer Hiromasa Fujimori after his A and B samples tested positive for the prohibited substance Methylephedrine in an extreme low estimated concentration of 16 picograms/mL.

Consequently the FINA Doping Panel decided on 31 October 2019 to impose a 2 year period of ineligibility on the Athlete, starting backdated on 1 January 2019.

In the complete and reasoned Decision the FINA Doping Panel went into substantial lengths to highlight the honesty and integrity of the Athlete. Against this analysis of the Athlete’s character, the FINA Doping Panel made it evident that it was bound to apply the rules and that it was limited by these rules and mandated to impose a sanction which it did not deem justified or appropriate for the Athlete’s fault.

Hereafter in October 2019 the Athlete appealed the FINA Decision of 31 October 2019 with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to annul the appealed Decision and to impose a reprimand or a reduced sanction.

The Athlete admitted the violation and denied the intentional use of the substance. He argued that he he identified the source of the prohibited substance and can prove No Significant Fault or Negligence or Negligence, or that the sanction is otherwise neither proportionate nor justified.

FINA accepted that the violation was not intentional and acknowledged that there were substantial delays in the procedure. Nevertheless it requested to dismiss the appeal and to uphold the appealed Decision.

The Sole Arbitrator remarks that there are four main issues which need to be addressed:

1. Was the Athlete able to prove the source of the prohibited substance allowing him to benefit from a reduction of the period of ineligibility?
2. Is the period of ineligibility proportionate or should it otherwise be eliminated or reduced?
3. Should an alternative solution be imposed?
4. When should the period if ineligibility commence?

The Sole Arbitrator concludes that the Athlete failed to establish the origin of the Prohibited Substance and therefore cannot enjoy a reduction of the sanction under Rule 10.5.1 FINA DC. It is inappropriate to circumvent the application of the applicable rules by imposing the principle of proportionality which is already embodied in the FINA DC rules or by seeking an alternate solution.

There is no justification not to confirm the 2 year period of ineligibility issued by the FINA Doping Panel in application of Rule 10.2.2 FINA DC. The Sole Arbitrator further refuses to replace his discretion with that of the FINA Doping Panel and modify the start date of the sanction which was already backdated to shortly after the sample collection date.

Therefore the Court of Arbitration for Sport decides on 6 March 2020 that:

1.) The appeal filed by Mr Hiromasa Fujimori on 28 October 2019 against the decision rendered on 27 August 2019 by the Doping Panel of the Federation Internationale de Natation is dismissed.

2.) The decision rendered on 27 August 2019 by the Doping Panel of the Federation Internationale de Natation in the case relating to Mr Hiromasa Fujimori is confirmed.

3.) (…).

4.) (…).

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

CAS 2018_A_6025 Lenka Ferenčuková vs Czech Bodybuilding & Fitness Federation & CDAC

CAS 2018/A/6025 Lenka Ferenčuková v. Association of Bodybuilding and Fitness of the Czech Republic & Anti-Doping Committee of the Czech Republic (ADCCR)

• Bodybuilding and fitness
• Doping (failure to submit to doping control)
• CAS jurisdiction
• Sanction for participation in a competition during a period of provisional suspension

1. If the appeal to an independent and impartial body in accordance with rules established by the national anti-doping organisation in the sense of Article 13.2.2 of the World Anti-Doping Code (WADC) does not respect the principles of a timely hearing, a fair and impartial hearing panel and a timely, written, reasoned decision, but rather is conducted in clear violation of the principles of fair legal proceedings, it constitutes a denial of justice making an appeal to the CAS the only appellate remedy and giving CAS jurisdiction to consider the matter.

2. Articles 10.1, 10.2 and 10.3 provide sanctions for violation of WADC, but participation in competition during a period of provisional suspension is not one of the enumerated violations permitting a sanction to be imposed on the athlete. A review of the various provisions of the WADC indicate that there is no provision which allows for a suspension following an athlete’s breach of his/her provisional suspension. Such a breach only affects the starting date once a suspension is implicated and, of course, disqualifies any results received during the period of suspension. However, it does not appear possible to impose a separate sanction for breaching a provisional suspension.

Ms. Lenka Ferenčuková is an amateur body builder and fitness model, as well as a police woman, from Prague, in the Czech Republic.

On 1 November 2017 a Doping Control Officer (DCO) from the Czech Anti-Doping Committee (CADC) attempted to collect an out-of-competition sample from the Athlete at her private residence. Yet the DCO reported that the woman at the door refused to take any test and slammed the door on the DCO.

By contrast the Athlete testified that her roommate answered the door and explained tot the DCO that the Athlete was not at home. Also the Athlete alleged that the DCO proceeded to utter threats against the roommate and began kicking the door.

• On 2 November 2017 the CADC reported an anti-doping rule violation against the Athlete for her missed test.
• After notification a provisional suspension was ordered on 21 November 2017.
• On 22 November 2017 the Athlete filed a criminal complaint with the Czech police departiment following the incident with the DCO at her home.
• On 25 November 2017 the Athlete participated in a competition during the provisional suspension.
• In January 2018 the CADC filed a criminal complaint with the General Inspectorate of Security Corps whereby it asserted potential use of prohibited substances used by the Athlete, a member of the foreign police of the Czech Republic in Ruzyne, following her alleged refusal to cooperate with the out-of-competition testing.
• In April 2018 the SKFCR Disciplinary Commission adjourned the hearing due to the criminal investigations conducted by the Police Directorate of Praque.
• In October 2018 the Disciplinary Commission proceeded the hearing.
• On 31 October 2018 the SKFCR Disciplinary Commission decided to impose a 2 year period of ineligibility on the Athlete on the basis that she wilfully had violated her provisional suspension by competing in a competition on 25 November 2017.

Hereafter in November 2018 the Athlete appealed the Decision of 31 October 2018 the Court of Arbitration for Sport (CAS).

The Athlete asserted that the SKFCR and CADC have a personal bias and aversion against her. Futher she argued that her right was violated for a timely hearing, a fair and impartial decision-making authority, and a timely written and substantiated ruling. Also the Athlete claimed damages as the unlawful decision of the SKFCR effected her financial situation.

The SKFCR and CADC contended that the Athlete had evaded sample collection and breached the provisional suspension. They rejected the Athlete's assertions and questioned her integrity due to several inconsistencies in her witness statements. Further they argued that her appeal is inadmissible because she had failed to exhaust all internal appeal remedies.

The Sole Arbitrator finds that the SKFCR violated stipulations of the WADC because of the established procedural inadequacies of the process and a lack of response regarding the filed appeal. The Sole Arbitrator concludes that these actions of the SKFCR constitue a denial of justice making the appeal to the CAS the only appellate remedy for the Athlete.

The Sole Arbitrator remarks that substantial evidence and pleadings were submitted by the parties in regard to the alleged anti-doping rule violation. However this violation is not an issue subject to this appeal since that SKFCR Decision in question has not found that a violation had been committed by the Athlete for failing or refusing to take the test. The Sole Arbitrator does not grant any damages to the Athlete.

The Sole Arbitrator holds that there is no provision of the WADC which allows for a suspension of the Athlete for breaching her provisional suspension. Since it was determined in the appealed Decision that the Athlete has not committed an anti-doping rule violation for not submitting to the doping test, no sanction can or should be imposed on the Athlete. Consequently the Sole Arbitrator deems that the appealed Decision was wrong in imposing a sanction on the Athlete and the imposition of such sanction should be set aside.

Therefore the Court of Arbitration for Sport decides on 16 December 2019 that:

1. The appeal filed by Ms. Lenka Ferenčuková on 21 November 2018 against the Association of Bodybuilding and Fitness of the Czech Republic and the Anti-Doping Committee of the Czech Republic is upheld.

2. The decision issued by the Disciplinary Commission of the Association of Bodybuilding and Fitness of the Czech Republic dated 31 October 2018 to impose on Ms. Lenka Ferenčuková a two-year period of ineligibility is set aside.

3. (…).

4. (…).

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

TAS 2018/A/6015 Franck Herman Blahoua Betra c. Conseil national pour la lutte contre le dopage de la République hellénique

• Football
• Dopage (dimethylpentylamine)
• Principle de compétence-compétence
• Contrôle de compétence ex officio en cas de défaut du défendeur
• Indication des voies de droit
• Epuisement des voies de droit internes

1. Conformément au principe dit de “compétence-compétence”, les arbitres ont la compétence pour statuer sur leur propre compétence. Une telle compétence constitue le corollaire de l’autonomie arbitrale.

2. Aux termes de l’article 186 al. 2 de la Loi fédérale sur le droit international privé, l’exception d’incompétence doit être soulevée préalablement à toute défense sur le fond. C’est un cas d’application du principe de la bonne foi, ancré à l’article 2 al. 1 du Code civil suisse, qui régit l’ensemble des domaines du droit, y compris l’arbitrage. Cette règle implique que le tribunal arbitral devant lequel le défendeur procède au fond sans faire de réserve est compétent de ce seul fait. Dès lors, celui qui entre en matière sans réserve sur le fond (“Einlassung”) dans une procédure arbitrale contradictoire portant sur une cause arbitrable reconnaît, par cet acte concluant, la compétence du tribunal arbitral et perd définitivement le droit d’exciper de l’incompétence dudit tribunal. Il résulte de ce constat que le tribunal arbitral ne peut trancher la question de sa compétence que si celle-ci est contestée, sauf lorsque l’absence de contestation immédiate découle du défaut d’une partie. Lorsque le défendeur fait défaut, le tribunal arbitral doit contrôler sa compétence d’office, à la lumière des informations dont il dispose, mais sans avoir à aller au-delà ni à mener lui-même ses propres investigations.

3. Les vices de communication d’un acte judiciaire n’entraînent pas nécessairement la nullité de l’acte judiciaire concerné. Dans ces cas, il faut examiner, d’après les circonstances du cas concret, si la partie intéressée a réellement été induite en erreur par l’irrégularité de la communication et a, de ce fait, subi un préjudice. On déduit du principe de la bonne foi que le défaut d’indication ou l’indication incomplète ou inexacte des voies de droit ne doit en principe entraîner aucun préjudice pour les parties. Ce principe comporte toutefois une réserve: l’art. 5 al. 3 in fine de la Constitution impose au citoyen d’agir de manière conforme aux règles de la bonne foi. Ainsi, lorsque l’indication des voies de droit fait défaut, on attend du justiciable qu’il fasse preuve de diligence en recherchant lui-même les informations nécessaires. Le destinataire d’une décision, reconnaissable comme telle, mais ne contenant pas la mention des voies et des délais de recours, doit entreprendre dans un délai raisonnable les démarches voulues pour sauvegarder ses droits, notamment se renseigner auprès d’un avocat ou de l’autorité qui a statué sur les moyens d’attaquer cette décision et, après avoir obtenu les renseignements nécessaires, agir en temps utile. Une partie représentée par un avocat est donc en mesure d’être informée des voies de recours ouvertes contre une décision.

4. Dans certaines circonstances particulières, un appel au TAS peut être considéré admissible malgré que les voies de recours n’aient pas été épuisées. Cela put être le cas si l’instance de recours tarde excessivement ou refuse d’entrer en matière ou de prendre une décision impartiale. C’est à l’appelant de prouver qu’il a épuisé les voies de droit internes, leur inexistence ou leur caractère illusoire. A défaut, il faut considérer que ces voies de droit internes n’ont pas été épuisées et que le TAS n’est pas compétent pour connaître du litige.

In March 2018 the Hellenic National Council for Combating Doping (ESKAN) has reported an anti-doping rule violation against the French football player Franck Herman Blahoua Betra after his A and B samples tested positive for the prohibited substance 5-Methylhexan-2-amine (1,4-dimethylpentylamine, 1,4-dimethylamylamine, 1,4-DMAA).

Consequently on 19 September 2018 the ESKAN Disciplinary Committee decided to impose a 4 year period of ineligibility on the Athlete. 

Hereafter in November 2018 the Athlete appealed the ESKAN First Instance Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose a reduced sanction. 

The Athlete denied that the violation was intentional and complained about several deficiencies. He disputed the jurisdiction of ESKAN and claimed that departures of the relevant Standards and Guidelines could have caused the positive test results. 

The Sole Arbitrator establish that under the FIFA Rules the football player is an international Athlete, yet he is not an international level Athlete. Therefore the Athlete at first should have appealed the ESKAN First Instance Decision with the ESKAN Appeal Committee before he could file an appeal with CAS. 

Further the Sole Arbitrator deems that the Athlete failed to demonstrate that a national appeal body in Greece does not exist, or had ceased to exist. He also failed to establish that he unsuccessfully had tried to appeal the First Instance Decision with ESKAN, or with the ESKAN Appeal Committee, or that his appeal was denied, or was unable to render a decision. As a result the Sole Arbitrator concludes that CAS has no competence to hear the case. 

Therefore on 29 October 2019 the Court of Arbitration for Sport decides that it has no competence to rule on the Athlete’s appeal and it rejects all other or further submissions of the parties.

CAS 2018/A/5592 Olga Kazankevich v. Russian Anti-Doping Agency (RUSADA)

• Para-powerlifting
• Doping (oxandrolone and metabolite)
• Proof of lack of intent in absence of establishment of source
• Burden of proof for absence of intent
• Burden of proof for source of prohibited substance

1. Until the entry into force of the 2015 edition of the World Anti-Doping Code (WADC) it was the athlete’s burden of proof to establish that the violation was unintentional and thus to establish how the relevant prohibited substance entered into his/her body; with the consequence that in case the athlete failed to establish the source of the prohibited substance, the anti-doping rule violation shall be deemed intentional and sanctioned accordingly. Following the entry into force of the 2015 WADC, and given that in contrast to the definitions to the WADC of “No Fault or Negligence” or “No Significant Fault or Negligence”, where proof of the source of the prohibited substance is required, no such requirement is found in the article addressing “intent”, or the definitions for establishment of absence of intent, a certain number of CAS panels have accepted that – in yet very exceptional cases – an athlete might be able to succeed in demonstrating lack of intent even where he/she cannot establish the source of the prohibited substance.

2. The burden of proof with respect to intent lies with the athlete, who has the duty to establish, on a balance of probability, that the anti-doping rule violation was not intentional; i.e. the athlete has the burden of convincing the CAS panel that the occurrence of the circumstances on which he/she relies is more probable than their non-occurrence.

3. In order to establish the source of the prohibited substance it is not sufficient for the athlete to protest innocence and to suggest that the substance must have entered his/her body inadvertently from some contaminated food or water. Rather, the athlete must adduce concrete and credible evidence to demonstrate that a particular supplement, medication or other product taken contained the substance in question. The mere presentation of invoices or bills as evidence for the purchase of contaminated foods cannot fulfil the athlete’s burden of proof that the food was indeed the source of the contamination.

On 22 November 2017 the RUSADA Disciplinary Anti-Doping Committee decided to impose a 4 year period of ineligibility on the para powerlifter after her sample tested positive for the prohibited substance Oxandrolone.

The Anti-Doping Committee established that:

a) the Athlete was unable to establish how the prohibited substance entered her system,

b) she failed to establish that Elevite Prenatal or Indinol was at the origin of her positive findings and

c) she obviously did not take “all possible precaution measures in order to prevent the prohibited substance into her body”.

Hereafter in February 2018 the Parathlete appealed the decision with the Court of Arbitration for Sport (CAS).

The Athlete requested the Panel for a reduced sanction because the anti-doping rule violation was not intentional. The Athlete argued that she was tested before without issues and assumed that she consumed the prohibited substance unintentionally throught contaminated food or water.

RUSADA contended that the Athlete failed to meet her burden of proving how Oxandrolone entered her body. RUSADA can accept that it is not necessary to establish the route of ingestion of the prohibited substance in order to demonstrate that the anti-doping rule violation was not intentional. However it deemed that proof is still required, and the evidence must be such that the unintentional use is more probable than the intentional use.

The Sole Arbitrator finds that the presence of a prohibited substance has been established in the Athlete's sample and accordingly that she committed an anti-doping rule violation.

Further the Sole Arbitrator concludes that the establishment of the source of the prohibited substance in an athlete's sample is not mandatory in order to prove absence of intent.

The Sole Arbitrator holds that the Athlete did not supply any actual evidence, which could explain how the unintentional ingestion of Oxandrolone may have occurred. In this case, the Athlete’s suggestion that her water or food must have been contaminated with Oxandrolone is nothing more than speculation, unsupported by any evidence of any kind. Such bare speculation is not nearly sufficient for the Athlete’s burden of establishing that the anti-doping rule violation was unintentional.

As a result, the Sole Arbitrator finds that there are no exceptional circumstances in the present case, which show on the balance of probability that the anti-doping rule violation was not intentional. Accordingly, the Sole Arbitrator considers that the Athlete must therefore be sanctioned with a four-year period of ineligibility.

Therefore the Court of Arbitration for Sport decides on 15 October 2018:

1.) The appeal filed by Mrs Olga Kazankevich against the decision issued on 22 November 2017 by the Disciplinary Anti-Doping Committee of the RUSADA is dismissed.

2.) The decision issued on 22 November 2017 by the Disciplinary Anti-Doping Committee of the RUSADA is confirmed.

(…)

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

CAS 2008/A/1712 Marta Bastianelli v. Comitato Olimpico Nazionale Italiano (CONI) 

CAS 2008/A/1742 Union Cycliste Internationale (UCI) v. Marta Bastianelli, Federazione Ciclistica Italiana (FCI) & CONI

• Cycling
• Doping (norfenfluramine)
• Athlete’s responsibility for ingesting a substance not expressly listed in the Prohibited List
• Athlete’s responsibility for the fault or negligence of his/her entourage
• Significant fault of the athlete
• Determination of the commencement of the applicable disciplinary sanction

1. It is the duty of all athletes to be responsible for their own bodies, and the presence of prohibited substances. To meet their duty, athletes must exercise “utmost caution” at all times. Accordingly, the athlete’s duty is rigorous in the WADA Code (and the UCI Rules). In this respect, a substance needs not be explicitly listed in the Prohibited List to be illegal, so long as it can be classified within a group of substances that are included in the Prohibited List. The Prohibited List also clearly states that it is not a definitive and complete list of all banned substances. The broad scope and inclusive wording of the Prohibited List is designed to put athletes on notice that extra vigilance is required because many products could contain one or a number of the listed substances. In this regard, there are numerous available sources of information (both commonly accessible and medical).

2. The implications of the WADA Code and the CAS jurisprudence are clear: athletes are responsible for their choice of medical personnel, a provision that prevents athletes from justifying their conduct based on their medical advisors’ errors in all but the most exceptional circumstances. Therefore an athlete cannot rely on the fact to have receive a wrong advice from a physician s/he consulted to contend s/he committed no fault or negligence.

3. It is the athlete’s duty to know that ingesting substances that could contain a prohibited substance for non-medical reasons is an inherently risky activity. In this respect, an athlete cannot be without any fault or negligence if he did not exercise the “utmost caution” by failing to make any research. More specifically, an athlete is at significant fault for taking medication not medically necessary like diet pills without taking all necessary precautions for the purpose of determining whether the pills contained a prohibited substance and contrary to the advice of a physician.

4. An athlete who has committed an anti-doping violation shall be declared ineligible for a period of two years. Considering the athlete’s cooperation with the investigators and the prompt acceptance of an interim suspension, a panel has some discretion as to the commencement of the period of ineligibility which can run from the date of the collection of the first positive doping test.

On 15 October 2008 the Italian Tribunale Nazionale Antidoping (TNA) decided to impose a 1 year period of ineligibility on the cyclist Marta Bastianelli after she tested positive twice for the prohibited substance Norfenfluramine.

Hereafter in November and in December 2008 both the Athlete and the International Cycling Union (UCI) appealed the TNA decision with the Court of Arbitration for Sport (CAS).

The Athlete admitted the violation, accepted the test results and denied the intentional use of the substance. She stated that the pills she used to assist weight loss were the source of the positive test. Analysis of these pills in the Rome Lab had confirmed that they contained the substance Benfluorex with Norenfluramine is a metabolite of Benfluorex.

The Athlete argued that she should not be sanctioned because she ingested the Norfenfluarmine through No Fault of Negligence of her own. She asserted that Benfluorex is not a substance that is expressly included on the WADA Prohibted List and so she could not have known she was ingesting a prohibited substance.

The UCI contended that the Athlete acted with Significant Fault or Negligence because there was no medical ground for the Athlete to seek to lose weight or to take the substance for those purposes. Further she failed to take all necessary precautions for the purpose of determining whether the pills contained a prohibtied substance.

Considering the totality of the circumstances the Panel finds that the Athlete's positive analytical test is attributable to her own fault and negligence, which in the circumstances is significant.

• She ingested dieting pills absent a medical need and contrary to the advice of her physician;
• she failed to conduct any independent research as to the chemical or biological nature of the substances included in the pills;
• she assumed without investigation that none of those substances would produce a prohibited metabolite;
• she consulted only her personal physician rather than a doctor associated with her professional team or the Italian national team as to the appropriateness of ingesting Benfluorex.

Therefore the Court of Arbitration for Sport decides on 29 May 2009:

1.) The appeal filed by the Union Cycliste Internationale on 22 December 2008 is partially upheld.

2.) The award of the Italian National Anti-Doping Tribunal of 15 October 2008, file number 76/2008, is set aside.

3.) Ms. Marta Bastianelli is declared ineligible for a period of two years, commencing on 5 July 2008; all her results from competition on or after 5 July 2008, are disqualified.

4.) The appeal filed by Ms. Marta Bastianelli on 14 November 2008, is dismissed.

(…)

7.) All other requests for relief are rejected.

CAS 2020/A/7528 Christian Coleman v. World Athletics

Related case:

World Athletics 2020 WA vs Christian Coleman
October 22, 2020

In June 2020 the Athletics Integrity Unit (AIU) of World Athletics reported an an anti-doping rule violation against the American Athlete Christian Coleman for his Whereabouts Filing Failure and 2 Missed Tests in a 12 month period.

Consequently the World Athletics Disciplinary Tribunal decided on 22 October 2020 to impose a 2 year period of ineligibility on the Athlete.

In First Instance the Panel rejected the Athlete's allegations that the authorities had developed a strategy in an effort to catch him out, and finds that he persisted in an exculpatory version of events as to what happened on 9 December 2019. The Panel deemed that the Athlete's behaviour was very careless at best and reckless at worst.

Hereafter in November 2020 the Athlete appealed the Decision of 22 October 2020 with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed decision and to impose a reduced sanction.

The Athlete did not challenge the Missed Test of 16 January 2019 or the Filing Failure of 26 April 2019. The challenge is
limited to the Missed Test of 9 December 2019. It follows that, if the Missed Test of 9 December 2019 is sustained, then there will be three Missed Tests and/or Filing Failures within a 12-month period and an ADRV will have been committed.

The Athlete asserted that the Doping Control Officer (DCO) did not do what was reasonable in the circumstances to locate the Athlete on 9 December 2019. Specifically because the World Athletics had instructed the DCO not to call the Athlete thereby precluding the DCO from doing what was reasonable.

World Athletics contended that the Athlete in fact was not home at any time during the 60-minute slot. Futher the DCO did what was reasonable in the circumstances to try and locate the Athlete at that time on that date. The fact that the DCO was instructed not to call the Athlete does not mean that the DCO failed to act reasonably.

The Panel concludes that, on 9 December 2019, the DCO did do what was reasonable in all the circumstances, given the nature of the residential premises and the time of day, to try to locate the Athlete at his home in Lexington, Kentucky. On the evening of 9 December 2019, the DCO knocked on the door and rang the bell in such a manner, as is accepted by the Athlete, that if anyone were home at the time they would have been made aware that the DCO was there.

The Panel is more than satisfied that, had the Athlete been at home, the attempts made by the DCO on the night in question would have been perfectly adequate to let the Athlete know that someone was at the door. Had he been at home and answered the door, the test could have been conducted without issue.

The Panel does not accept the Athlete's evidence and finds the Athlete's account wholly implausible. The Panel concludes that there was no evidence supporting any claim that the Athlete was at the location identified by him at any time during the 60-minute slot specified by him for testing on 9 December 2019.

By contrast the Panel holds there is no reason at all not to accept the evidence of the officers that they were at the Athlete's home on 9 December 2019 during the 60-minute slot.

The Panel considers the Athlete's conduct on 9 December 2019, and deems that the his degree of fault falls to be characterised as "medium", i.e. within the 16-20 months band, with a midpoint of 18 months.

Therefore the Court of Arbitration for Sport decides on 15 April 2021 that:

1.) The appeal filed by Mr Christian Coleman against World Athletics on 19 November 2002 is partly upheld.

2.) The decision of the AIU Disciplinary Tribunal on 22 October 2020 is set aside and replaced as follows:

Mr Christian Coleman has committed an Anti-Doping Rule Violation under Article 2.4 of the World Athletics Anti-Doping Rules and shall serve a period of ineligibility of eighteen (18) months as from 14 May 2020.

3.) The award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Mr Christian Coleman, which is retained by the CAS.

4.) Mr Christian Coleman is ordered to pay World Athletics a total amount of CHF 4,000 (four thousand Swiss Francs) as contribution towards the expenses incurred in connection with these arbitration proceedings.

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