CAS 2019/A/6112 World Anti-Doping Agency (WADA) v. Romanian National Anti-Doping Agency (RANAD) & Anda-Mihaela Vâlvoi

• Sambo
• Doping (furosemide)
• Objection of lack of jurisdiction
• Shift of the burden of proof related to the establishment of the departure having reasonably caused the AAF

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1. An objection of lack of jurisdiction must be raised prior to any defence on the merits. This rule implies that an arbitral tribunal has jurisdiction if the respondent participates in the proceedings without raising any objection (“Einlassung”). An arbitral tribunal can only decide on its competence if its jurisdiction is disputed, except where the lack of objection results from the default of one of the parties.

2. According to the World Anti-Doping Code, it is first the athlete’s obligation to establish the departure from the WADA International Standard for Testing and Investigations which could reasonably have caused the adverse analytical finding (AAF). Only then shall the relevant national anti-doping agency have the burden − but also the opportunity − to establish that such departure did not cause the AAF.

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On 18 January 2018 the Hearing Commission of the National Anti-Doping Agency Romania (ANAD) decided to impose a 4 year period of ineligibility on the Romanian sambo Athlete after her sample tested positive for the prohibited substance Furosemide.

The Athlete appealed and on 16 October 2018 the ANAD Appeal Panel decided to set aside the Decision of 18 January 2018 and to acquit the Athlete.

In first instance the Athlete had accepted the test result, denied the intentional use of the substance and requested for a reduced sanction on the grounds of No Significant Fault or Negligence. During the Appeal Hearing she argued that there were procedural flaws in the sample collection process that would annul the testing and finding of an anti-doping rule violation.

Hereafter in January 2018 the World Anti-Doping Agency (WADA) decided to appeal the Decision of the ANAD Appeal Panel with the Court of Arbitration for Sport (CAS). The case was settled by the Sole Arbitrator based on the written submissions of the Parties.

WADA requested the Panel to set aside the Decision of 16 October 2018 and to impose a 2 year period of ineligibility on the Athlete. WADA contended that the Athlete had committed an anti-doping rule violation and failed to produce any evidence that the alleged departures of the ISTI reasonably could have caused the adverse analystical finding. 

WADA asserted that the Doping Control Officer (DCO) in question had testified that the partial sample equipement was sealed in the presence of the Athlete before she left for the medal ceremony. Furher the Athlete had never explained how the prohibited substance had entered her system nor the source of the positive test.

The Sole Arbitrator finds that the analytical results showing the presence of Furosemide in the Athlete's sample are valid and that the Athlete has committed an anti-doping rule violation.

Whereas the Athlete had not argued, explained or proven how the contended departure from the ISTI could have reasonably caused the advers analytical finding the Sole Arbitrator finds that evidence of a departure of the ISTI is insufficient for finding an annulment.

To the contrary, the Athlete had not contested the positive test, nor did she contend that the sample was manipulated in her absence from the doping control station or that it was not even her sample. She even declined to the opportunity to have the B sample analysis and to DNA testing, thereby demonstrating that she did not think that the sample was not hers.

Even if the sample collection procedure had not been in compliance with ISTI, such non-compliance would not be sufficient to invalidate the results as the Athlete has not even attempted to show or establish that the alleged procedural failures had resulted in the positive test.

Finally the Sole Arbitrator deems that Athlete has not shown that she bears No Fault or Negligence or that her fault or negligence was not significant in relationship to the anti-doping rule violation, and that as a consequence, the period of ineligibility should be eliminated or reduced.

Therefore the Court of Arbitration for Sport decides on 27 January 2020 that:

1. The appeal filed by WADA on 25 January 2019 against the decision rendered by the Appeal Panel of RANAD on 16 October 2018 is upheld.
2. The decision of the Appeal Panel of RANAD of 16 October 2018 is set aside.
3. Anda-Mihaela Vâlvoi is suspended for a period of two (2) years commencing on the date of this Award.
4. Any period of provisional suspension or ineligibility effectively served by Anda-Mihaela Vâlvoi shall be credited against the total period of ineligibility to be served.
5. All competitive results obtained by Anda-Mihaela Vâlvoi between 17 September 2017 and 18 January 2018 are disqualified with all resulting consequences, including forfeiture of medals, points and prizes.
6. The costs of the arbitration, to be determined and served to the Parties by the CAS Court Office, shall be borne by RANAD.
7. RANAD is ordered to pay WADA a total amount of CHF 4'000 as contribution towards the expenses incurred in connection with these arbitration proceedings).
8. All other motions or prayers forrelief are dismissed.

CAS 2019/A/6465 World Anti-Doping Agency (WADA) v. International Skating Union (ISU) & Vitali Mikhailov

Related case:

ISU 2019 ISU vs Vitali Mikhailov
August 12, 2019

In April 2019 the International Skating Union (ISU) had reported an anti-doping rule violation against the Belarussian Athlete Vitali Mikhailov after his sample tested positive for the prohibited substance Higenamine.

After notification the Athlete admitted the violation, denied the intentional use of the substance and explained that he had purchased in Canada a pre-workout supplement in a sports nutrition store. He mentioned the use of this supplement on the Doping Control Form and acknowledged that he was unaware that this supplement contained a prohibited substance.

The ISU Disciplinary Commission considered this case and concluded that a value of 7 ng/mL of Higenamine should not have been reported as an Adverse Analytical Finding. Accordingly no weight can be given to a sanction flowing from it. Therefore the ISU Disciplinary Commission decided on 12 August 2019 to dismiss the case against the Athlete.

Hereafter the World Anti-Doing Agency (WADA) appealed the ISU Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the ISU Decision of 12 August 2019 and to impose a 2 year period of ineligibility on the Athlete. WADA accepts that the violation was not intentional but contended that the Athlete acted negligently due to he failed to check his supplement before using.

Further WADA contended that since a positive test for Higenamine has been reported by the Montreal Lab, the presence of a prohibited substance constitutes an anti-doping rule violation regardless of the fact that the presence of the substance is below the reporting limit of 10 ng/mL as foreseen in the WADA TD2018MRPL.

The ISU and the Athlete requested the Panel to uphold the findings in first instance of the ISU Disciplinary Commission:

• that the reporting limit for Higenamine established by Rule 4.0 of the WADA TD 2018MRPL is mandatory;
• that it was in violation of this rule to report the presence of Higenamine of 7 ng/mL in the Athlete's body as adverse analytical finding; and
• that therefore the Skater has to be acquitted of the charge to have violated the ISU Anti-Doping Rules and the Appeal dismissed.

The Panel holds that this case centers around one legal question, which is whether the Athlete could be sanctioned for an ADRV when the Prohibited Substance was reported by the Laboratory at levels which are below reporting levels foreseen under Rule 4.0 of the WADA TD2018MRPL.

Considering the arguments of the Parties the Panel concludes that the presence of Higenamine in the Athlete's sample is sufficient for the finding of an anti-doping rule violation under the ISU ADR. Further the Panel concludes that the concentration level of Higenamine in the Athlete's urine was an irrelevant factor to determine the anti-doping rule violation.

The Panel holds that an anti-doping rule violation under the ISU ADR could also be demonstrated since the Athlete had admitted having ingested a Prohibited Substance. Here the Panel considers that the Athlete indeed had admitted the use of a food supplement but not that he had committed an anti-doping rule violation. The matter of a Timely Admission was not raised by the Parties during the procedure.

The Panel finds that it was undisputed that the violation was not intentional but it deems that there are no grounds for No Significant Fault or Negligence since the Athlete failed to researcht his supplement before using it.

Therefore The Court of Arbitration for Sports decides on 30 September 2020 that:

1. The Appeal filed by WADA against the International Skating Union on 19 September 2019 against the decision rendered on 12 August 2019 by the Disciplinary Commission of the International Skating Union is upheld.
2. The decision rendered on 12 August 2019 by the Disciplinary Commission of the International Skating Union is set aside.
3. Vitali Mikhailov is found to have committed an anti-doping rule violation.
4. Vitali Mikhailov is sanctioned with a two-year period of ineligibility starting on the date of this Award.
5. All competitive results obtained by Mr. Vitali Mikhailov on 2 March 2019 and any other results achieved at the 2019 ISU World Allround Speed Skating Championships in Calgary, Canada, are disqualified, with all of the resulting consequences, including forfeiture of any medals, points and prizes.
6. The Award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss francs) paid by WADA, which is retained by the Court of Arbitration for Sports.
7. ISU is ordered to contribute CHF 3,000 to WADA's legal fees and costs.
8. All further motions and requests for relief are dismissed.

CAS 2015/A/3876 James Stewart Jr. v. Federation Internationale de Motocyclisme

In June 2014 the International Motorcycling Federation (FIM) has reported an anti-doping rule violation against the American professional rider James Stewart Jr. after his samples, provided in April 2014 and in June 2014, tested positive for the prohibited substance amphetamine.

After notification a provisional suspension was ordered. However the Athlete competed in 4 Lucas Motor Oil Series of races on the basis that these events were not FIM events, nor events of the American Motorcyclist Association (AMA).  

In 2012 the Athlete was diagnosed as suffering from ADHD and since then he used prescribed Adderall (Amfetamine) to treat his condition. Before April 2014 the Athlete had used his medication without a TUE. After the Athlete became aware that he had to obtain a TUE, his application in April 2014 was finally granted by the FIM TUE Board in October 2014 for a prospective TUE only. 

Because the Athlete had tested positive for a prohibited substance without a valid TUE the FIM International Disciplinary Court (DCI) deemed that he had committed an anti-doping rule violation and accordingly decided on 12 December 2014 to impose a 16 month period of ineligibility on the Athlete starting on the date of the sample collection, i.e. on 12 April 2014. 

Hereafter in January 2015 the Athlete appealed the FIM Decision with the Court of Arbitration for Sport (CAS). The Athlete requested to set aside the FIM decision of 12 December 2014 and for a reduced sanction. 

The Athlete admitted the violation and denied that it was intentional. He asserted that he bears No Significant Fault or Negligence and that he would have been able to obtain a retrospective TUE. He argued that before April 2014 he was unaware that he had to apply for a TUE since he had not received anti-doping education from FIM. 

Due to his ADHD he alleged that he had no recollection that he had signed the Doping Control Forms confirming that he had not used any medication regularly. Furher he argued that FIM had no jurisdiction to impose a provisional suspension on any events outside its jurisdiction such als the Lucas Oil events. 

The Panel accepts that the Athlete had diagnosed ADHD and that he used the prohibited substance as a prescribed medication while non of his doctors were sports specialists and neither had they informed him about anti-doping. The granted TUE demonstrated that he had a valid therapeutic reason to use the Adderrall and he didn’t try to gain an unfair competitive advantage from use of the substance. 

Nevertheless the Panel holds that the Athlete failed in his duty to be aware whether the medication he used contained a prohibited substance and as a professional sportsman he had signed his Doping Control Forms confirming that he had not used any medication.

The Panel deems that under the Rules there are no grounds to grant the Athlete a retroactive TUE, nor to reduce the sanction based on No Significant Fault or Negligence. Considering the Athlete’s conduct regarding the available anti-doping information and his medication the Panel concludes that the imposed sanction of 16 months is proportionate.

Finally the Panel establishes that FIM has authority and jurisdiction not to recognize the Athlete’s results obtained during the Lucas Motor Oil Series events although its organiser is completely independent. 

Therefore the Court of Arbitration for Sport decides on 27 April 2015 that: 

1.) The appeal filed by Mr James Stewart Jr. against the decision rendered on 12 December 2014 by the International Disciplinary Court of the Federation Internationale de Motocyclisme is partially upheld.

2.) The decision rendered on 12 December 2014 by the International Disciplinary Court of the Federation Internationale de Motocyclisme is confirmed except that it is determined that the disqualifications of Mr James Stewart, Jr. from:

• (i) the Round of the Lucas Motor Oil Series at Blountville, Tennessee on 28 June 2014
• (ii) the Round of the Lucas Motor Oil Series at Buchanan, Michigan on 5 July 2014
• (iii) the Round of the Lucas Motor Oil Series at Mechanicsville, Maryland on 12 July 2014
• (iv) the Round of the Lucas Motor Oil Series at Millville, Minnesota on 19 July 2014

have effect only so far as Federation Internationale de Motocyclisme has jurisdiction or as so far as other authorities recognise the disqualifications.

3.) The award is pronounced without costs, except for the CAS Court Office of CHF 1000 ( one thousand Swiss Francs) already paid by the Appellant and to be retained by the CAS Court Office.

4.) Each party shall bear its own costs.

5.) All other and further claims are dismissed.

CAS 2007/A/1356 Tomaž Nose v/ Slovenian Cycling Federation (Kolesarska Zveza Slovenije)

In October 2006 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Slovenian cyclist Tomaž Nose after his sample tested positive for his elevated T/E ratio (testosterone / epitestosterone) above the WADA threshold. The Athlete did not test positive for Testosterone while he used prescribed Testosterone therapy due to his diagnosed low hormone levels.

In this matter the Athlete had a valid TUE issued by the Slovenian Olympic Committee for the use of the prescribed Testoviron. However the Athlete was unaware that he should have obtained a TUE from the UCI for international cycling events. 

Consequently on 10 August 2007 the Anti-Doping Commission (ADC) of the Slovenian Cycling Federation (KZS) decided to impose a 20 month period of ineligibility on the Athlete starting back dated on 6 November 2006. 

Hereafter in August 2007 the Athlete appealed the KZS decision with the Court of Arbitration for Sport (CAS). 

The Athlete admitted the use of Testosterone therapy and denied that the violation was intentional since he had a valid TUE and there was not positive test. He argued that he was unaware that his TUE was not valid for international races.

He had relied on experts to obtain a valid TUE and all assurances had been given by those experts as to the validity of the TUE. Also the response of WADA gave him sufficient reasons to believe that his current TUE was valid for international competitions. 

Furthermore the Athlete asserted that the ADC Decision of 10 August 2007 was based on erroneous and incomplete determination of the circumstances, erroneous application of material law and material breaches of procedure that impacted on the correctness and legality of the Decision. 

The Panel agrees that in First Instance certain material breaches of procedure occurred which impacted on the correctness an quality of the ruling. For that reason the Panel decided to deal with the merits of the case to decide de novo. It therefore does not have to deal with the procedural irregularities which occurred according to the Athlete. 

The Panel holds that the TUE issued by the Slovenian Olympic Committee was not valid for international events. As a result the Panel finds that under the UCI Rules the Athlete committed an anti-doping rule violation by using a Prohibited Substance with a valid TUE.

However the Panel finds that the circumstances in this case have been very exceptional and must be seen as a chain of unfortunate circumstances which may not easily be found in another case.

The Panel established that the Athlete was aware of his duty to obtain a TUE for the use of his medication, he consulted the best qualified expert on anti-doping matters in Slovenia and fully relied on his advice. Unfortunately the Slovenian expert was unfamiliar with the international TUE-procedure and the contacted WADA expert did not notify the Slovenian expert about his erroneous TUE application but rather provided confusing information. 

On that account the Panel deems that the Athlete cannot be blamed for relying on the offical’s advice regarding his TUE application. It concludes that the Athlete’s violaton was not intentional and that he bears No Significant Fault or Negligence. 

Therefore the Court of Arbitration for Sport decides on 11 March 2008: 

1. The Appeal filed by Tomaž Nose is partially admitted.
2. The decision issued by the Anti-doping Commission of the Slovenian Cycling Federation is amended as follows: The period of Ineligibility is set to 12 months and the commencement date of the period of Ineligibility is fixed on 11 September 2006 instead of 6 November 2006. The period of ineligibility thus ended on 10 September 2007.
3. Tomaž Nose is disqualified from the Tour of Slovenia race, which took place between 8 and11 June 2006, and his results obtained at this Tour are annulled.
4. All other motions or prayers for relief are dismissed.
5. This award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss francs) paid by Tomaž Nose, which is retained by CAS.
6. Slovenian Cycling Federation shall pay to Tomaž Nose the amount of CBF 5,000 (five thousand Swiss Francs) as a contribution towards the expenses incurred by Tomaž Nose inconnection with these arbitration proceedings.

CAS 2020/O/6689 World Anti-Doping Agency v. Russian Anti-Doping Agency

CAS 2020/O/6689 World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA)

• World Anti-Doping Agency (WADA)
• Russian Anti-Doping Agency (RUSADA)

Intervening Parties:

• International Olympic Committee
• International Paralympic Committee
• Russia Olympic Committee
• Russia Paralympic Committee
• European Olympic Committees
• International Ice Hockey Federation
• Russian Ice Hockey Federation
• Lilya Akhaimova, Regina Isachkina, Elena Osipova, Arina Averina, Olga Ivanova, Yana Pavlova, Dina Averina, Yulia Kaplina, Alexey Rubtsov, Ilya Borodin, Evgeniya Kosetskaya, Ekatarina Selezneva, Artur Dalaloyan, Elena Krasovskaia, Nikita Shleikher, Alina Davletova, Evgeny Kuznetsov, Vladimir Sidorenko, Evgenija Davydova, Sayana Lee, Inna Stepanova, Inna Deriglazova, Vladimir Malkov, Maria Tolkacheva, Yana Egorian, Polina Mikhailova, Dmitry Ushakov, Vladislav Grinev, Andrei Minakov, Sofiya Velikaya, Kristina Ilinykh, Nikita Nagornyy, and Andrey Yudin
• Sasha Gusev, Daniil Sotnikov, Ilya Borisov, Igor Ovsyannikov, Nachyn Coular, Valeria Koblova, Elizaveta Sorokina, Ivan Golubkov, Elena Krutova, and Viktoria Potapova

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• Multiple sports
• Doping (non-compliance procedure against RUSADA)
• Opportunity for a third party to take part in the constitution of the Panel
• Appointment of the President of the Panel from a list of arbitrators specifically designated by CAS
• Amendments to prayers for relief
• Interpretation of silence under Swiss law
• Characterisation of the WADC as general terms and conditions and rule of surprise
• Strict liability of a signatory
• Standard of proof that the signatory is non-compliant
• Condition for a measure to qualify as a sanction or disciplinary in nature
• Principles applicable to consequences imposed for non-compliance
• Application of the principle of proportionality
• Restrictions on participation and attendance of athletes
• Requirement to compete as neutral athlete and human rights
• CAS power to review reinstatement conditions

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This case deals with RUSADA’s alleged non-compliance of a critical requirement under the International Standard for Code Compliance by Signatories (ISCCS) to procure the delivery to WADA of authentic data from the Moscow Anti-Doping Laboratory.

In January 2020 WADA requested CAS for arbitration against RUSADA. Hereafter also the IOC, IPC, ROC, EOC, IIHF, FHR and two Athletes Groups filed their requests to intervene in the proceedings.

WADA contended that the Moscow Data had been materially and improperly altered prior to a copy being provided to WADA in January 2019. The alleged alterations included:

• back-dating;
• disk formatting;
• deletions of database back-ups;
• secure erasing of files;
• selective removal of user action commands from command logs;
• replacement of databases;
• deletion of records;
• removal of tables; and
• missing command logs.

On that account WADA sought a finding of such non-compliance and the imposition of a number of consequences deriving therefrom. RUSADA opposed WADA’s claims. It denied that the data retrieved by WADA from the Moscow Laboratory was manipulated and, in the alternative, denied any responsibility for manipulations and challenged the validity of the Signatory Consequences sought by WADA.

The Intervening Parties’ submissions, in a number of areas, bore substantial similarity to those made by RUSADA or overlapped with submissions made by other Intervening Parties.

As a result of the Parties’ submissions the CAS Panel examined the following issues:

• the validity of the ISCCS and WADA’s requirement that RUSADA procure the delivery to WADA of authentic data from the Moscow Laboratory;
• whether RUSADA complied with that requirement; and
• if not, what Signatory Consequences can and should be imposed.

At first the CAS Panel in this case dismissed the objections to its jurisdiction and settled a number of other procedural matters raised by the Parties.

The Panel established that RUSADA consented to the 2018 WADC, the ISCCS and the Post Reinstatement Conditions. This consent was not compromised or invalidated by the safegards in its defence.

Also the Panel established that the Post-Reinstatements Data Requirement was valid and binding on RUSADA, and non-compliance could lead to consequences under the ISCCS. The Panel does not accept RUSADA’s submission that there were no changes, losses or deletions of data pertaining to results of doping sample analysis.

Based on the evidence the Panel concludes that RUSADA failed to procure an authentic copy of the Moscow Data and therefore failed to comply with the Post-Reinstatement Data Requirement. The steps taken to manipulate the Moscow Data and deceive WADA could hardly be more serious. For that reason the Panel deems that WADA has established that RUSADA in non-compliance with the 2018 WADC.

The Panel regards that, despite having an opportunity to come clean and draw a line under this scandal by providing access to the Moscow Data, Russian authorities engaged in an extensive manipulation of that data. This conduct is likely to thwart or at least substantially hinder the ability to identify those athletes who participated in the doping scheme.

Having further found that RUSADA failed to comply with the Post-Reinstatement Data Requirement, the Panel has accordingly imposed consequences to reflect the nature and seriousness of the non-compliance and to ensure that the integrity of sport against the scourge of doping is maintained.

Nevertheless the consequences which the Panel has decided to impose are not as extensive as those sought by WADA. This should not, however, be read as any validation of the conduct of RUSADA or the Russian authorities.

Therefore the Court of Arbitrtion for Sport decides on 17 December 2020 that:

1. The Request for Arbitration filed by the World Anti-Doping Agency (“WADA”) dated 9 January 2020 is partially upheld.
2. The Panel has jurisdiction to determine this matter.
3. The Russian Anti-Doping Agency (“RUSADA”) is found to be non-compliant with the World Anti-Doping Code (“WADC”) in connection with its failure to procure that the authentic LIMS data and underlying analytical data of the former Moscow Laboratory was received by WADA.
4. The orders below come into effect on the date of this Award and remain in effect until the second anniversary of that date (the “Two-Year Period”).       [...]
5. RUSADA is required to satisfy the following reinstatement conditions during the Two-Year Period (or any shorter period as agreed between WADA and RUSADA) in order to be reinstated as a compliant Signatory.      [...]
6. RUSADA is to pay a fine to WADA of 10% of its 2019 income or USD 100,000 (one hundred thousand United States dollars) (whichever is lower) within 90 (ninety) days from the notification of the present arbitral award. Such amount shall accrue interest at a rate of 5% per annum in case of non-timely payment.
7. The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne 80% by RUSADA and 20% by WADA.
8. RUSADA is ordered to pay WADA a total amount of CHF 400,000 (four hundred thousand Swiss francs) as contribution towards its legal and other expenses incurred in connection with these arbitration proceedings within 90 (ninety) days from the date the present award. Such amount shall accrue interest at a rate of 5% per annum in case of non-timely payment.
9. RUSADA and each Intervening Party shall bear its own legal costs and other expenses incurred in connection with this arbitration.
10. All other motions or prayers for relief are dismissed.

CAS 2020/A/6747 Mehdi Sohrabi v. Union Cycliste Internationale

Related case:

UCI-ADT 2019 UCI vs Mehdi Sohrabi
Januari 17, 2020

On 17 January 2020 the UCI Anti-Doping Panel decided to impose a fine and a 4 year period of ineligibility on the Iranian cyclist Mehdi Sohrabi due to the abnormal values in his Athlete’s Biological Passport (ABP).

In First Instance the UCI Anti-Doping Panel deemed that the Athlete failed to produce any evidence that contradicted the findings of the Expert Panel and it was comfortably satisfied that the Athlete committed an anti-doping rule violation in the form of a prohibited substance or prohibited method that had been used.

Hereafter in February 2020 the Athlete appealed the UCI decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Decision of 17 Januari 2020 and to establish and declare that he had not committed any anti-doping rule violation.

The Athlete disputed the reliability of the ABP and argued that the UCI ADT had ignored his explanations and arguments. He believed that his blood sample in question did not belong to him due there were many irregularities during the blood collection that resulted in departures of the ISTI.

The UCI contended that Athlete's ABP showed abnormalities and that many of his contentions and allegations should be dismissed. Not only failed the Athlete to establish that the violation was not intentional nor did he demonstrate that the alleged departures of the ISTI could have caused the anti-doping rule violation.

The Sole Arbitrator finds that CAS has no jurisdiction to address the Athlete's request for damage compensation and that his submissions not to lift the Provisional Suspension are not relevant.

The Arbitrator rejected the Athlete's defence that his blood sample in question did not belong to him. He also could not demonstrate on a balance of probability that a departure occurred and that such departure could have caused the anti-doping rule violation. Neither did he explain other sources convincingly for the abnormal blood values.

The Arbitrator upholds the findings of the UCI Expert Panel and he concludes that he is comfortably satisfied that the Athlete committed and anti-doping rule violation.

Therefore the Court of Arbitration for Sport decides on 29 October 2020 that:

1.) The Court of Arbitration for Sports has no jurisdiction to rule on the appeal filed by Mr Mehni Sohrabi on 3 February 2020 in respect to paragraph 4 of the request of relief in the Statement of Appeal about the damage compensation.
2.) The appeal filed by Mr Mehni Sohrabi on 3 February 2020 against the decision rendered by the UCI Anti-Doping Tribunal on 17 January 2020 is dismissed.
3.) The decision rendered by the UCI Anti-Doping Tribunal on 17 January 2020 is confirmed.
4.) The Award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Mr Mehni Sohrabi, which is retained by the Court of Arbitration for Sport.
5.) Mr Mehni Sohrabi shall pay to the Union Cycliste Internationale a contribution in the amount of CHF 1,000 (one thousand Swiss Francs) toward its legal fees and expenses incurred in connection with the present proceedings.
6.) All other motions or prayers for relief are dismissed.

CAS 2018/A/5990 World Anti-Doping Agency (WADA) v. South African Institute for Drug-Free Sport (SAIDS) & Ruann Visser

Related case:

• SAIDS 2018_02 SAIDS vs Ruann Visser
  October 5, 2018
• Swiss Federal Court 4A_146-2019 Ruann Visser vs WADA & SAIDS
  June 6, 2019

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• Boxing
• Doping (stanozolol)
• Qualification of a communication as decision
• Standing to be sued of SAIDS
• Admissibility of amendments of prayers for relief
• Breach of the applicable international standards and invalidation of the analytical results
• Use of Berlinger kits
• Storage and transportation of samples
• Discrepancy in urine volumes and establishment of swapping or manipulation
• Disparity in concentrations between the A and B samples
• Duty to establish the route of ingestion to discharge the burden of establishing lack of intent
• Disqualification of results unless fairness requires otherwise

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1. The term “decision” must be interpreted in a broad manner so as not to restrain the relief available to the persons affected. Even letters addressed from a federation to an athlete may qualify as appealable decisions if they affect the legal situation of the addressee. A communication qualifies as a decision if it contains a ruling intending to affect the legal state of the addressee. Even a decision of a judicial body of a federation not to open a disciplinary procedure against a third party and a negative decision not to entertain a case constitute appealable decisions.

2. A decision rendered by the Independent Doping Hearing Panel (IDHP) of SAIDS in a case for which SAIDS has the result management responsibility under Article 7.1 of the SAIDS Anti-Doping Rules (ADR) can be considered a ruling for which SAIDS has the responsibility. Consequently, SAIDS has standing to be sued in the arbitration.

3. A party’s abusive procedural conduct causing CAS proceedings to last significantly longer than what could have been reasonably expected may constitute exceptional circumstances justifying to authorise the other party to amend its prayers for relief with a view to prevent the first party to take undue advantage of its abusive conduct.

4. In principle, a breach of the applicable international standards does not automatically invalidate the analytical results. Only if the athlete establishes a specific departure or departures and a causality between such departure(s) and the adverse analytical finding can the analytical results be invalidated. However, certain international testing standards and anti-doping rules are considered so fundamental and central in ensuring integrity in the administration of sample collection that certain departures therefrom can result in the automatic invalidation of the test results. An athlete’s right to attend the opening and analysis of his/her B sample is fundamental and, if not respected, the B sample results must be disregarded. The other benchmark question is whether a breach or breaches, together or alone, reach(es) a level which may call into question the entire doping control process, after which it is impossible for a reviewing body to be comfortably satisfied that a doping violation has occurred.

5. It has been established in other contexts that Berlinger kits can be opened and closed after the initial sealing without leaving marks visible to the naked eye. However, the opening and resealing of the Berlinger bottles requires specific skill and tools, and such manoeuvring will leave marks that can be detected with a microscope. Therefore, the mere use of such Berlinger kits does not constitute a departure from the applicable anti-doping rules, let alone a departure that would automatically invalidate the sample.

6. The WADA International Standard for Testing and Investigations (ISTI) does not impose an absolute deadline within which a sample must be delivered to the laboratory. Instead, the ISTI sets out an obligation to transport samples to the laboratories “as soon as practicable”, which undoubtedly implies that transportation should be made at the first reasonable opportunity. In addition, the rules take into account the possibility of the transportation of a sample to the laboratory being delayed. Furthermore, it is a standard practice that Doping Control Officers (DCO) take samples to their homes in case they are not able to immediately take or send them to an anti-doping organisation or a laboratory. Considering that the samples are in sealed bottles, which cannot be opened and resealed without exceptional skill and particular tools, the samples are not jeopardised even if they are occasionally kept at DCOs’ homes.

7. Disparity in the urine volumes may be an indication that two samples have been mixed – accidentally or intentionally – or that the sample has been manipulated. As such, nothing prevents an adjudicatory body from giving evidentiary weight to a discrepancy between the reported urine volumes. However, there is no rule stipulating that the urine volume measurement recorded on the doping control form must not be under or exceed the volume measured by the laboratory by more than a certain percentage. The purpose of the urine volume information is not to secure the identity of a particular sample. It is also common knowledge that the sample collection does not always take place in optimal conditions enabling precise urine volume estimation. Therefore, the evidentiary value of volumes with regard to the identity of a sample is secondary in relation to, for instance, the sample code, whose particular purpose is to confirm the identity of a sample. Therefore, discrepancy between the reported urine volumes is not alone sufficient to establish by a balance of probability that an athlete’s sample has been swapped or manipulated, especially when more relevant facts support a finding that no switching or tampering has occurred.

8. A difference in stanozolol concentrations of 23 ng/mL between the A and B samples cannot be considered sufficient proof or even an indication that either sample has been manipulated. First, it is undisputed that the method to detect stanozolol is not quantitative but qualitative. Thus, the estimates given by the laboratory need not be and are not exact, which in and of itself frustrates any detailed conclusions based on the concentrations. Second, according to the WADA Technical Document TD2017MRPL on the minimum required performance levels (MRPL) for detection and identification of non-threshold substances, the MRPL for stanozolol is 2 ng/mL and the limit of detection is even lower than that.

9. An athlete must establish how the prohibited substance has entered his/her system in order to discharge the burden of establishing the lack of intention. To establish the origin of the prohibited substance, it is not sufficient for an athlete to merely protest his/her innocence. The standard of proof is the balance of probabilities, i.e. an athlete has to show that the occurrence of the circumstances on which s/he rely is more probable than their non-occurrence. An ADRV may be deemed unintentional even if an athlete has failed to prove the source of a prohibited substance. However, such a finding is only possible in extremely rare cases. In such a case, the athlete should establish a lack of intention with other robust evidence, such as the possibility that the prohibited substance came from a specific product, a credible testimony, or the implausibility of the scenario that the athlete had intentionally used prohibited substances.

10. In general, equivalents to Article 10.8 of the SAIDS ADR allow the disqualification of results from the period between the expiry of the ineligibility period and the imposition of an additional ban. Results may remain valid if fairness so requires in the circumstances of each case. The factors to be assessed in the fairness test include, but are not restricted to, the athlete’s intent and degree of fault, as well as the length of the disqualification period.

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In April 2018 the South African Institute for Drug-Free Sport (SAIDS) reported an anti-doping rule violation against the boxer Ruann Visser after his A and B samples, collected in February 2018, tested positive for the prohibited substance Stanozolol.

Howevere in September 2018 SAIDS informed the Athlete that it withdrew the charges against the Athlete. Accordingly the Independent Doping Hearing Panel (IDHP) of SAIDS decided on 5 October 2018 to acquit the Athlete. 

In December 2018 the Lausanne Lab reported, after a DNA cross-check analysis, that the sample in question provided in February 2018 and the Athlete's sample provided in November 2018 came from the same male individual.

Hereafter in November 2018 the World Anti-Doping Agency appealed the IDHP Decision of 5 October 2018 with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the IDHP Decision of 5 October 2018 and to impose a 4 year periode of ineligibility on the Athlete. 

In this case there were delays in the CAS proceeding attributed to the Athlete due the number of extensions he requested. Further he filed an exceptionally large number of letters with CAS, presented a number of procedural requests and arguments and appointed various witnesses and experts. 

The Sole Arbitrator dealed with some issues of preliminary nature and ruled that SAIDS was properly named as a Respondent in this arbitration by WADA and therefore cannot be removed from the proceedings. Under the Rules WADA was allowed sample collection for purposed of DNA profiling as evidence in this case. Also due to the Athlete’s exceptional procedural conduct WADA was granted to amend its requested prayers for relief. 

WADA contended that the presence of a prohibited substance had been established in the Athlete’s samples and accordingly that he committed an anti-doping rule violation. The test results were valid and WADA rejected the Athlete’s allegations that there had been several departures of the ISTI. Also the conducted DNA analysis was valid and it confirmed that the samples collected in February 2018 originated from the Athlete. 

The Athlete asserted that more than 30 alleged departures occurred with respect to the different aspects of the doping control procedure:

• The Doping Control Station was not secure and doping control items were left unattended;
• The used Berlinger kits in question can be opened and re-closed;
• The Athlete’s signatures on the Doping Control Form are forged;
• The samples were not delivered immediately to SAIDS after the sample collection;
• Dispartity in the urine volumes;
• Disparity in the Stanozolol Concentrations;
• The DNA Cross-check Analysis.

After addressing the raised issues and evaluating the evidence in this case the Sole Arbitrator is comfortably satisfied that the Athlete has committed an anti-doping rule violation and failed to establish, on a balance of probabilities, that the departures from the applicable rules had occurred. Neither was there a departure that caused a fundamental breach invalidating the entire sample or that it could have reasonably caused a positive test. 

The Sole Arbitrator concludes that the Athlete has not met his burden of proof in establishing that the violation was not intentional. Finally the Arbitrator considers that no reason for fairness is engaged and that the Athlete had contributed to the delays of the CAS Proceedings. 

Therefore the Court of Arbitration for Sport decides on 19 February 2020 that: 

1.) The appeal filed on 6 November 2018 by the World Anti-Doping Agency against the South African Institute for Drug-Free Sport and Mr Ruann Visser is upheld.

2.) The decision rendered on 5 October 2018 by the Independent Doping Hearing Panel established under Article 8 of the SAIDS ADR is set aside.

3.) Mr Ruann Visser is found to have committed an anti-doping rule violation and sanctioned with a four-year ( 4) period of ineligibility, starting from the date of this Award, with credit given for the provisional suspension already served by the Athlete (i.e. from 16 April 2018 to 27 September 2018).

4.) All competitive results of Mr Ruann Visser between 23 February 2018 and 16 April 2018 and from 10 April 2019 until the entry into force of this Award (inclusive of the dates specified) are disqualified, with all resulting consequences (including forfeiture of medals, points, and prizes).

5.) The costs of the arbitration to be determined and served to the Parties by the CAS Court Office shall be borne by SAIDS and Mr Ruann Visser in equal shares.

6.) SAIDS and Mr Ruann Visser are ordered to pay CHF 5,000.00 (five thousand Swiss Francs) each to the World Anti-Doping Agency as a contribution towards its legal fees and expenses. SAIDS and Mr Ruann Visser shall bear their own legal fees and expenses.

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

CAS 2019/A/6587 Badminton World Federation v. Kate Jessica Foo Kune

In 2017 the Badminton World Federation (BWF) launched an investigation against the official of the Mauritius Badminton Association (MBA) Mr. Raj Gaya and established that he had diverted funds intended for the MBA into his personal bank account.

Consequently the BWF Ethics Hearing Panel decided on 21 November 2018 to impose a fine and a lifetime ban from performing any function in badminton. In this ethics case the Mauritian badminton player Kate Jessica Foo Kune and another key withness assisted the BWF in their investigation and testified against Mr. Gaya. 

In June 2019 the BWF reported an anti-doping rule violation against the Athlete Kate Foo Kune after her A and B samples tested positive for the prohibited substance 1-androstenedione. On 21 October 2019 the BWF Doping Hearing Panel deemed that the Athlete had committed an anti-doping rule violation but decided not to impose a period of ineligibility on the Athlete due to no fault or negligence.

Here the Doping Hearing Panel determined that the Athlete more likely than not had demonstrated that she had consumed water that was deliberately spiked with the prohibited substance and victim of malicious sabotage by the MBA. 

Hereafter in November 2019 the BWF appealed the decision of its Doping Hearing Panel with the Court of Arbitration for Sport. The BWF requested the Panel to set aside the Decision of 21 October 2019 and to impose a 2 year period of ineligibility on the Athlete. 

The BWF accepted that the Athlete’s violation was not intentional but contended that she failed to establish the origin of the prohibited substance. She didn’t demonstrate on the balance of probabilities how the prohibited substance had entered her system nor how an ill-intentioned individual could have deliberately spiked her food or drink with this prohibited substance. 

The BWF argued that it is willing to accept any new evidence, and that it is open to re-evaluate its position regarding such new evidence, that would allow the Athlete to demonstrate that sabotage took place, or any other mitigating circmumstances. 

The Athlete explained why an accidental contamination of her supplements or her food and water consumed during the Championships in Nigeria was not possible. Instead she submitted that the positive test resulted by way of the malicious sabotage by the MBA or Mr. Gaya, or an associate of either. In particular, she asserted that her team backpack had been left out-of-sight several times during the Championships in Nigeria and that the most likely explanation for the positive test is that her water was intentionally spiked without her knowing during this period. 

The Panel regards that the Parties in this case did not dispute that the Athlete’s anti-doping rule violation was unintentional. It also finds that it is not absolutely necessary for the Athlete to show the origin of the prohibited substance to establish absence of intent.

Nevertheless the Panel deems that the Athlete didn’t provide sufficient evidence that supports her assertion while the scientific analysis of an independent expert witness underminded the allegation of sabotage.

The Panel concludes that the Athlete failed to establish on a balance of probabilities how the prohibited substance entered her system. Consequently andy plea of no (significant) fault or negligence must be rejected. 

Therefore the Court of Arbitration for Sport decides on 15 December 2020 that:

1.) The appeal filed by the Badminton World Federation against the decision rendered by the BWF Doping Hearing Panel on 21 October 2019, is upheld.

2.) The decision issued by the Badminton World Federation Doping Hearing Panel on 21 October 2019, is partially set aside.

• Ms. Kate Jessica Foo Kune has violated Article 2.1 of the BWF Anti-Doping Regulations and committed an anti-doping rule violation.
• Ms. Kate Jessica Foo Kune is suspended for two (2) years as from the date of this decision in accordance with Article 10.1 of the BWF Anti-Doping Regulations, with credit given for any period of ineligibility already served.
• The results obtained by Ms. Foo Kune during the All African Championships on 28 April 2019 shall automatically be disqualified, pursuant to Article 9 of the BWF Anti-Doping Regulations.

3.) The present arbitration procedure shall be free of charge, except for the CAS Court Office Fee of CHF 1,000 (one thousand Swiss francs), which has already been paid by the Badminton World Federation and is retained by the CAS.

4.) Each party shall bear its own legal and other costs.

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