CAS 2020/A/6892 Andrew Starykowicz v. United States Anti-Doping Agency

Related case:

WTC 2019 WTC vs Andrew Starykowicz
November 25, 2020

In October 2019 the American triathlon Athlete Andrew Starkowics suffered from an acute respiratory infection with bronchoconstriction. He underwent medical treatment and used several prescribed medication including the prohibited substances Methylprednisolone (Medrol), Glucocorticoids and Vilanterol (Breo).

The Athlete applied for a TUE for the use of Medrol and Breo and on 8 November 2019 the USADA TUE Committee granted the use of Medrol.

Previously on 2 November 2019 that Athlete had participated in a triathlon and was subjected to sample collection. In December 2019 the World Triathlon Corporation reported an anti-doping rule violation against the Athlete after he tested positive for the substance Vilanterol. After notification a provisional suspension was ordered.

At the time of the notification the Athlete had no TUE for Vilanterol due to his applications for Breo had been repeatedly denied by the USADA TUE Committee and finally by the WADA Therapeutic Use Exemption Committee. Both Committees deemed that suitable permitted alternatives were available but were not prescribed by his pulmonologist.

Hereafter in March 2020 the Athlete appealed with the Court of Arbitrarion for Sport (CAS). The Athlete challenged USADA's rejection of his TUE applications for Breo. He requested the Panel to set aside the decision of the USADA TUE Committee and to grant the use of the medication Breo from 25 October 2019.

The Athlete underlined that his case does not concern the commission of an anti-doping rule violation, but concerns the denial of a TUE for the medication Breo prescribed by his pulmonologist for a severe illness.

He asserted that the only question in this case is whether he could have treated his medical condition with another non-performance-enhancing beta-2 agonist that was not prohibited by WADA. The Athlete argued that he is entitled to such TUE since all conditions prescribed by the relevant rules have been satisfied.

USADA requested the Panel to dismiss the Athlete's appeal because the Athlete was unable to establish the decisions of both the USADA TUEC and WADA TUEC to deny his application for a TUE for Breo (Vilanterol) were without basis.

The Sole Arbitrator, having considered the experts' submissions, finds that other medication were not unreasonable alternatives in terms of therapeutic indications and effects, consistent with the anti-doping rules, to the use of Breo. The Sole Arbitrator concludes that the Athlete failed to demonstrate that the existing alternative therapies suggested by USADA were not reasonable.

Therefore the Court of Arbitration for Sport decides on 5 August 2020 that:

1.) The appeal filed by Mr Andrew Starykowicz against the United States AntiDoping Agency with the Court of Arbitration for Sport on 27 March 2020 is dismissed.
2.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne by Mr Andrew Starykowicz.
3.) Mr Andrew Starykowicz and the United States Anti-Doping Agency shall each bear their own legal and other expenses.
4.) All other motions or prayers for relief are dismissed.

CAS 2018/O/5754 Sergey Fedorovtsev v. Russian Anti-Doping Agency (RUSADA), World Anti-Doping Agency (WADA) & Fédération Internationale des Sociétés d’Avirons (FISA)

Related case:

Swiss Federal Court 4A_422_2019 Sergey Fedorovtsev vs RUSADA, WADA & FISA
April 21, 2020

• Rowing
  
• Doping (trimetazidine)
  
• Establishment of absence of intent in case of failure to establish source of prohibited substance
  
• Prerequisites to disprove intent
  
• Challenge of a B sample analysis completed in absence of the athlete

1. The establishment of the source of the prohibited substance in an athlete’s sample is not a sine qua non of proof of absence of intent. Indeed, the provisions of the Anti-Doping Rules concerning “intent” do not refer to any need to establish source, in direct contrast to Article 10.5 Russian Anti-Doping rules, combined with the definitions of “No Fault or Negligence” and “No Significant Fault or Negligence”, which expressly and specifically require establishment of source. However, in order to prove, by a balance of probability, that he did not engage in a conduct which he knew constituted an anti-doping rule violation or knew that there was a significant risk that said conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk, an athlete cannot simply assert his lack of intent without giving any convincing explanations to justify such assertion. Rather, to prove the same without proof of source is exceptional. An athlete, even though not bound to prove the source of the prohibited substance, has to show, on the basis of the objective circumstances of the anti-doping rule violation and his behaviour that specific circumstances exist disproving his intent to dope.

2. In order to disprove intent, an athlete cannot merely speculate as to the possible existence of a number of conceivable explanations for the adverse analytical finding (“AAF”) and then further speculate as to which appears the most likely of those possibilities to conclude that such possibility excludes intent: a protestation of innocence, the lack of sporting incentive to dope, or mere speculation by an athlete as to what may have happened does not satisfy the required standard of proof (balance of probability) and the mere allegation of a possible occurrence of a fact cannot amount to a demonstration that fact did actually occur. Instead, an athlete has a stringent obligation to offer persuasive evidence that the explanation he offers for an AAF is more likely than not to be correct, by providing specific, objective and persuasive evidence of his submissions.

3. An athlete who allowed the B sample analysis to proceed in his absence, cannot, following completion of the B sample analysis, belatedly challenge the analytical process and claim that his rights have been breached.

In June 2016 an anti-doping rule violation was reported against the Russian rower Sergey Fedorvtsev after his A and B samples tested positive for the prohibited substance Trimetazidine. After notification a provisional suspension was ordered. Here the opening and analysis of the Athlete’s B-sample in the Lausanne Laboratory occurred in the presence of the Athlete and 2 representatives. 

In May 2018 the case was referred to the Court of Arbitration for Sport (CAS) for a first instance hearing panel. 

The Athlete denied the intentional use of the substance and asserted that the positive test results reported by the Lausanne Laboratory cannot be taken as a basis to establish that he committed the antidoping rule violation. Should the existence of an antidoping rule violation be established, this should be considered “not intentional” and the sanction should not exceed a period of ineligibility of two years.

He asserted that the B sample results must be discarded because his fundamental right to attend the B sample opening and analysis was breached, or in the alternative that the reason of the positive test would be the ingestion of a contaminated product. 

Both RUSADA and WADA requested the Panel to find that the Athlete committed an antidoping rule violation and that such violation was “intentional”, and therefore to impose on the Athlete a sanction of 4 years of ineligibility and to disqualify all the Athlete’s results following the doping test of 17 May 2016.

RUSADA and WADA contended that the Athlete failed to explain how the prohibited substance entered his system nor the origin of the Substance. They refuted in detail the issues raised by the Athlete effecting the establishment of an anti-doping rule violation. WADA considered these issues as attempts made by the Athlete to invalidate the positive test result or to mitigate its consequences. 

Based on the evidence in this case the Panel dismiss the Athlete’s contentions and it confirms that the A and B sample analyses show the presence of a prohibited substance while there is no basis to disregard such analytical results. The Panel finds that the Athlete has not discharged the burden which lies upon him to establish by a balance of probability non-intentional use of a prohibited substance. 

Therefore the Court of Arbitration for Sport decides on 26 June 2019 that: 

1.) Mr Sergey Fedorovtsev is responsible for the antidoping rule violation contemplated by Article 2.1(c) [“Presence of a Prohibited Substance or its Metabolites or Markers in a Athlete’s sample”] of the Russian antidoping rules, including the Anti-Doping rules approved by the order No 947 of the Ministry of Sport of the Russian Federation of 9 August 2016.

2.) Mr Sergey Fedorovtsev is declared ineligible for a period of four (4) years from 16 June 2016, the date of his provisional suspension. All competitive results obtained by Mr Sergey Fedorovtsev between 17 May 2016 and 16 June 2016 are disqualified, with all of the resulting consequences, including forfeiture of any medals, points and prizes.

(…)

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

CAS 2019/A/6226 World Anti-Doping Agency (WADA) v. Spanish Anti-Doping Agency (Spanish Agency for Health Protection in Sport) & Ibai Salas Zorrozua

• Cycling
• Doping (Athlete’s Biological Passport (ABP))
• CAS Jurisdiction
• Denial of an evidentiary request for failure to satisfy the relevancy requirement
• Standing to be sued
• Lis pendens
• Athlete Biological Passport as a reliable and accepted means of evidence in establishing an ADRV
• Legality and predictability of the sanction

1. Article R47 of the CAS Code explicitly provides that, in the context of sport, consent to arbitrate can be based on an arbitration clause contained in the applicable regulations. An arbitration clause may be incorporated and accepted by reference; it does not have to be fully incorporated in the applicable rules or regulations. The applicable rules or regulations – here the Organic Law of Spain No. 3/2013 of 20 June “On the protection of the health of sportspeople and the fight against doping in sport activities” as modified by the Royal Decree-Law 3/2017 of 17 February “to adapt to the changes introduced in the 2015 WADC” (the Spanish ADA) – do contain a CAS arbitration clause which incorporates by reference the arbitration clause contained in the World Anti-Doping Code (WADC). In this respect, Article 40.6 of the Spanish ADA grants WADA the right to appeal “Tribunal Administrativo del Deporte” (TAD) decisions to the CAS and Article 13.2.3 WADC clearly states that in cases where a decision is taken by a national-level appeal body (such as the TAD), WADA has the right to appeal to the CAS. The athlete consented to Article 40.6 of the Spanish ADA and the incorporated Article 13.2.3 WADC when he applied for and obtained a license to compete at national level. The asymmetric nature of Article 40.6 of the Spanish ADA does not invalidate the arbitration clause or preclude WADA from bringing an appeal to the CAS as it has a right to do so under that provision and the incorporated Article 13.2.3 WADC, to which the athlete has consented. Moreover, there is a clear justification for granting WADA a right to appeal decisions of a national-level appeal body i.e. to give WADA the avenue to ensure that WADC signatories are properly and uniformly enforcing the WADC. The CAS does also have jurisdiction rationae personae over the national anti-doping organization (NADO) which did not issue the appealed decision but did issue a decision imposing sanctions on the athlete for committing an anti-doping rule violation (ADRV) and subsequently participated as a party in the national appeal proceeding before the TAD. Furthermore, the NADO, as a signatory to the WADC, is bound by the arbitration clause contained in Article 13.2.3 WADC, which was incorporated to the Spanish ADA by reference through its Article 40.6 and clearly grants to WADA the right to appeal to the CAS against a decision of the TAD stemming from an underlying NADO decision. Finally, the CAS’ jurisdiction is unaffected by the parties’ position on the merits.

2. Pursuant to Article R44.3 of the CAS Code, a party requesting the production of documents must show that said documents are (i) likely to exist and to be relevant; and (ii) in the custody of the other party. An Adaptive Model (and its underlying software) is only a statistical model which triggers alerts identifying abnormal profiles that warrant further attention and review; it does not in itself constitute evidence of doping. Therefore, the relevancy requirement of Article R44.3 of the CAS Code is not satisfied.

3. A party has standing to be sued (“légitimation passive”) only if it has some stake in the dispute because something is sought against it. A NADO has standing to be sued if it was affected by the appealed decision, in that the appealed decision overturned its own findings that the athlete had committed an ADRV, and the appeal involves an essential interest of the NADO (in particular, its disciplinary powers) and its resulting award will be enforceable and have a binding effect towards both respondents. The fact that the Spanish NADO does not dispute WADA’s position on the merits, or cannot respond for the TAD nor assume the appealed decision as its own is irrelevant to the issue of whether or not it is affected by the appeal.

4. According to Article 186.1bis of the Swiss Federal Act on Private International Law (PILA), there is lis pendens if three cumulative conditions are met: (i) a proceeding at a State court or another arbitral tribunal and the CAS arbitration are between the same parties and concern the same matter; (ii) said other proceeding is “already pending” before the CAS arbitration started; and (iii) the party claiming lis pendens proves the existence of “serious reasons” requiring the stay of the CAS proceedings. Absent the “already pending” requirement, there is no lis pendens within the meaning of Article 186.1bis PILA.

5. According to Article 3.2 WADC, an ADRV can be proved by any “reliable means”, including by the use of an ABP. It is undisputed that the ABP profile is a method of proving blood doping and not an ADRV in and of itself under the WADC. However, an ABP profile is a reliable and accepted means of evidence in establishing an ADRV. As such, if, in interpreting abnormal values in an ABP and any other evidence from a quantitative and qualitative standpoint, a panel is convinced that the abnormal values were caused by a “doping scenario”, an ADRV can thereby be properly established, even without establishing a specific reason for the blood manipulation. The inference drawn from abnormal blood values is enhanced where the ascertainment of such values occurred at a time when the athlete could benefit from blood doping (i.e., if the levels coincide with the athlete’s racing schedule). A request for an athlete to provide an alternative explanation to the abnormal values in his or her ABP does not create a presumption of guilt nor a shift in the burden of proof; the burden continually remains on the anti-doping agency pursuant to Article 3.1 WADC to prove that the abnormal values in the ABP were caused by a “doping scenario” as opposed to any of the hypothesis put forward by the athlete. This is in full keeping with the legal principle of the presumption of innocence. Indeed, if an athlete submits explanations for abnormal results, it is the anti-doping agency’s burden to establish that those explanations do not rebut the high likelihood of an ADRV established through the assessment of the ABP.

6. For a sanction to be imposed, a sports regulation must prescribe the misconduct with which the subject is charged, i.e., nulla poena sine lege (principle of legality), and the rule must be clear and precise, i.e., nulla poena sine lege clara (principle of predictability). Under the applicable regulations, the utilization, use or consumption of prohibited substances and methods including blood doping is a serious offense sanctionable with a period of ineligibility. This is a sufficiently clear, precise and unambiguous rule that provides a sufficient legal basis to find an ADRV and sanction the athlete. It is unnecessary to establish the exact type of blood doping to find an ADRV and sanction an athlete. The fact that the ABP can only show that there has been blood manipulation but not the exact type of blood doping practice does not violate the principle of legality or any other fundamental principle.

The Spanish Agency for the Protection of Health in Sport (AEPSAD) reported an anti-doping rule violation against the cyclist Ibai Salas Zorrozua after an Expert Panel concluded unanimously in February 2018 in their Joint Expert Report 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 25 January 2017 until 3 August 2017 reported in the Athlete’s Biological Passport (ABP).

In July 2018 the Expert Panel confirmed their conclusion in a second Joint Expert Report and on 3 October 2018 AEPSAD decided to impose a fine and a 4 year period of ineligibility on the Athlete. 

However on 8 February 2019 the Administrative Court of Sport in Spain (TAD) decided to set aside the AEPSAD Decision and to annul the imposed sanction on the Athlete. Hereafter the World Anti-Doping Agency (WADA) had issues with AEPSAD and TAD about the release of the Athlete’s case file and finally appealed in March 2019 the TAD Decision with the Court of Arbitration for Sport (CAS). The CAS Panel rendered a decision based on the written submissions of the parties. 

WADA requested the Panel to set aside the TAD Decision of 8 February 2019 and to impose a 4 year period of ineligibility on the Athlete. It contended that the Athlete’s ABP profile clearly showed multiple abnormalities as evidence that he committed an anti-doping rule violation.

WADA asserted that TAD erred in annulling the sanction on the ground that the ABP was not a reliable means of establishing an anti-doping rule violation. Whereas CAS jurisprudence already has accepted the validity of ABP as a reliable means of detecting blood doping. 

AEPSAD denied that it has standing to be sued and that it had to be addressed against TAD as body that issued the Appealed Decision. 

Based on CAS jurisprudence the Panel finds that AEPSAD does have standing to be sued and it is convinced that the ABP model is a reliable and valid means of establishing an anti-doping rule violation. The Athlete failed to demonstrate that there are serious reasons, invoking the principle of lis pendens in seeking to preclude the CAS Panel from proceedings with the present arbitration because WADA and the Athlete had filed appeals before the Spanish courts. 

Considering the evidence regarding the Athlete’s ABP the Panel deems that an anti-doping rule violation can be found on the basis of an analysis of Samples 1 to 6 only, and that no taking into account Samples 7 to 10 is neither arbitrary nor in violation of article 9.3 of the Spanish Consititution. 

In conclusion, the Panel taking following into account that:

1. the values detected in the Athlete’s ABP were highly abnormal and indicated a high probability of doping;
2. no contradictory evidence exists (i.e., that the Athlete has not provided any credible, physiological or pathological reason or condition to explain the abnormality in the ABP values); and
3. the timing of the detection relative to his competitions

The Panel is comfortably satisfied that the abnormal values were caused by a blood doping scenario. As a result, the Panel holds that the Athlete violated Article 22.1(b) of the Spanish ADA.   

Therefore the Court of Arbitration for Sport decides on 4 August 2020 that:

1.) The CAS has jurisdiction and the Appeal filed on 27 March 2020 by WADA against the Spanish Agency for Health Protection in Sport and Mr Ibai Salas Zorrozua is admissible.

2.) The appeal filed by WADA on 27 March 2019 against the Spanish Agency for Health Protection in Sport and Mr Ibai Salas Zorrozua is upheld.

3.) Mr Ibai Salas Zorrozua is guilty of an anti-doping rule violation.

4.) Mr Ibai Salas Zorrozua is sanctioned with a four-year (4) period of ineligibility starting on the date of this Award.

5.) All competitive results obtained by Mr Ibai Salas Zorrozua from the date of 25 January 2017 through to the commencement of his period of ineligibility shall be disqualified, with all of the resulting consequences, including the forfeiture of any medals, points, and prizes.

6.) (…).

7.) (…).

8.) All further or different motions or prayers for relief are dismissed.

CAS A1/2020 Shayna Jack v. Swimming Australia & Australian Sports Anti-Doping Authority

Related cases:

• CAS 2020_A_7579 WADA vs Swimming Australia & SIA & Shayna Jack; and
• CAS 2020_A_7580 SIA vs Shayna Jack & Swimming Australia
  September 16, 2021

In July 2019 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the swimmer Shayna Jack after her sample tested positive for the prohibited substance LGD-4033 (Ligandrol). Consequently the Anti-Doping Rule Violation Panel decided on 19 December 2019 to impose a 4 year period of ineligibility on the Athlete. 

Hereafter in January 2020 the Athlete appealed the Decision of 19 December 2019 with the Oceania Registry Court of Arbitration for Sport (CAS). 

ASADA contended that the Athlete failed to demonstrate how the prohibited substance entered her system and that there are nog grounds for a reduced sanction. It acknowledged that there was no evidence that the Athlete intentionally had used the substance to enhance performance nor was there evidence of long-term use of the substance. 

The Athlete accepted that she committed an anti-doping rule violation and denied the intentional use of the prohibited substance. She acknowledged that she did not know how the substance entered her system. She could only provide possible explantions: contaminated supplements; contamination through mixing supplements in a blender used by other persons; and contact or ingestion of the substance at training facilities she had visited. 

The Sole Arbitrator deems that the Athlete could not demonstrate how the prohibited substance entered her system but is willing to accept that the violation was not intentional.

Based on the Athlete’s evidence and presentation and the evidence and presentations of those who know her best, the Athlete presented to the Sole Arbitrator as a person who was inherently very unlikely to intentionally or recklessly ingest a Prohibited Substance. The history of testing is also consistent with the Athlete’s evidence of a lack of intention to cheat. Futher the found concentration of the prohibited substance in her sample was low and insufficient to enhance performance. 

Therefore the Court of Arbitration for Sport decides on 16 November 2020 that: 

1.) The appeal filed by Ms. Shayna Jack on 2 January 2020 is partly upheld.

2.) Ms. Shayna Jack has committed a violation of Article 2.1 the Swimming Australia Limited Anti-Doping Policy 2015 and as a result, is suspended for a period of two (2) years commencing as from the date of her provisional suspensions (i.e. 12 July 2019).

3.) (…).

4.) (…).

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

CAS 2020/A/6978 Andrea Iannone v. FIM
CAS 2020/A/7068 WADA v. FIM and Andrea Iannone

On 31 March 2020 the Disciplinary Court of the International Motorcycling Federation (FIM) decided to impose a reduced 18 month period of ineligibility on the Italian motorcycle racer Andrea Iannone after he tested positive for the prohibited substance Drostanolon.

Here the Disciplinary Court accepted that the positive test was the result of contaminated meat he had ingested in Malaysia prior to the 2019 Sepang FIM World Championship MotoGP. 

Hereafter the Athlete, in April 2020, and WADA, in May 2020, appealed the FIM Decision with the Court of Arbitration for Sport (CAS).

Both parties sought to set aside the FIM Decision of 31 March 2020: the Athlete requested the Panel for a further reduced sanction while WADA requested the Panel for the imposition of a 4 year period of ineligibility. 

The Athlete asserted, supported by expert witnesses, that there are grounds for No Fault or Negligence to impose a further reduced sanction. He argued that the violation was not intentional; the source of the prohibited substance was contaminated meat; he was tested before without issues; he voluntarily underwent a hair test; and he made any possible and reasonable efforts to prevent the contested anti-doping violation.

FIM supported the Athlete’s assertations that the violation was not intentional and that he demonstrated on a balance of probability that the presence of Drostanolone was the result of his consumption of contaminated meat. 

WADA contended that the Athlete failed to establish on the balance of probability that the origin of the prohibited substance was contaminated meat, nor did he demonstrate that there are grounds to reduce the sanction. 

The Panel deems that the Athlete failed to establish neither the precise type of meat he had consumed nor the origin of the meat in question. It finds that the Athlete nor his expert witnesses were able to establish specifically that there was an issue of meat contamination by Drostanolone in Malaysia. 

The Panel concludes that the Athlete has not established on a balance of probabilities that the violation was not intentional and thus it upholds WADA’s Appeal and sets aside the FIM Decision of 31 March 2020.

Therefore the Court of Arbitration for Sport decides on 10 November 2020 that:

1.) The appeal filed by Mr. Iannone on 21 April 2020 against the decision rendered by the International Disciplinary Court of the Fédération Internationale de Motocyclisme dated 31 March 2020 is rejected.

2.) The appeal filed by WADA on 12 May 2020 against the decision rendered by the International Disciplinary Court of the Fédération Internationale de Motocyclisme dated 31 March 2020 is upheld.

3.) The decision rendered by the International Disciplinary Court of the Fédération Internationale de Motocyclisme dated 31 March 2020 is set aside.

4.) Mr. Iannone is sanctioned with a period of ineligibility of four years commencing on 17 December 2019.

5.) All competitive results obtained by Mr. Iannone within from and including 1 November 2019 through the commencement of his suspension are disqualified, with all resulting consequences, including forfeiture of any medals, points and prizes.

6.) (…)

7.) (…)

8.) (…)

9.) All other or further requests or motions for relief are dismissed.

CAS 2019_A_6180 WADA vs USADA & Ryan Hudson - Settlement 

Related case:

CAS 2019_A_6180 WADA vs USADA & Ryan Hudson - Preliminary Award
March 10, 2020

Previously in December 2016 the American weightlifter Ryan Hudson was sanctioned with a 4 year period of ineligibility after he tested positive in 2015 for the prohibited substance Stanozolol. 

In July 2017 the United States Anti-Doping Agency (USADA) reported an new anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance Dehydrochlormethyltestosterone (DHCMT).

USADA deemed on 27 November 2018 that there where grounds for the imposition of a sanction of 4 years for the Athlete’s second anti-doping rule violation instead of the otherwise applicable 8 year period of ineligibility. 

Hereafter in March 2019 the World Anti-Doping Agency (WADA) appealed the USADA Decision with the Court of Arbitration for Sport (CAS).

In this case the Sole Arbitrator on 10 March 2020 already settled preliminairy issues between WADA and USADA and ruled that the Court of Arbitration for Sport has jurisdiction over the present Appeal.

During the proceedings the Parties reached a settlement and requested the CAS Sole Arbitrator to ratify the Settlement Agreement into a Consent Award.

The Parties agreed as follows:

• The Acceptance of Sanction form signed by the Athlete and USADA on 27 November 2018 shall be set aside;
• The Athlete is sanctioned with an 8 year period of ineligibility, starting on 27 November 2018; and
• USADA shall bear the arbitration costs for the CAS Appeal.

The Sole Arbitrator, having reviewed the text of the Settlement Agreement and the evidence on file, finds no reason to object to or to disapprove of the terms of the Settlement Agreement and is satisfied that the agreement constitutes a bona fide
settlement of the dispute of which he was seized.

Therefore the Court of Arbitration for Sport decides on 23 October 2020 that:

1.) The Settlement Agreement submitted to the CAS Court Office by the Parties on 4 June 2020 is hereby ratified by the CAS with the consent of the Parties and its relevant terms
are incorporated into this arbitral A ward.

2.) Each Party is hereby ordered to perform the obligations and duties as per the Settlement Agreement referred to above.

3.) The arbitral procedure CAS 2019/A/6180 World Anti-Doping Agency v. United States Anti-Doping Agency & Ryan Hudson is terminated and deleted from the CAS roll.

4.) In accordance with the Settlement Agreement, the arbitration costs, to be determined and served to the Parties by the CAS Court Office, shall be borne by the United States Anti-Doping Agency.

5.) The United States Anti-Doping Agency shall pay to the World Anti-Doping Agency the amount of CHF 9,000 (nine thousand Swiss Francs) as a contribution to the costs and
expenses the latter incurred in connection with the present proceedings. Ryan Hudson shall bear his own costs and expenses incurred in these proceedings.

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

CAS 2019/A/6180 World Anti-Doping Agency (WADA) v. United States Anti-Doping Agency (USADA) and Ryan Hudson - Preliminary Award

Related case:

CAS 2019_A_6180 WADA vs USADA & Ryan Hudson - Settlement
October 23, 2020

Previously in December 2016 the American weightlifter Ryan Hudson was sanctioned with a 4 year period of ineligibility after he tested positive in 2015 for the prohibited substance Stanozolol. 

In July 2017 the United States Anti-Doping Agency (USADA) reported an new anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance Dehydrochlormethyltestosterone (DHCMT).

Here USADA deemed on 27 November 2018 that there where grounds for the imposition of a sanction of 4 years for the Athlete’s second anti-doping rule violation instead of the otherwise applicable 8 year period of ineligibility. 

Hereafter in March 2019 the World Anti-Doping Agency appealed the USADA Decision with the Court of Arbitration for Sport (CAS).

This Award centres around these preliminairy issues: 

• whether the CAS has jurisdiction over the appeal;
• if the CAS does have jurisdiction, what is the scope of the appeal, i.e. does it extend to whether the Athlete committed a second ADRV or is it limited to the sanction for such violation; and
• whether a "presence" violation is committed (for the purposes of Article 10.7.4.1 of the WADC) on the date of ingestion of a prohibited substance or on the date of the doping control test.

WADA's essential submission is that:

• The issue of whether the Athlete committed a second ADRV has been already determined;

• WADA's prayer for relief that the CAS find the Athlete has committed a second ADRV, is a mere formality.

USADA's essential submission is that:

• It is for WADA to establish that the Athlete committed a second ADRV before any question of sanction can arise;
• WADA's prayers for relief that the CAS find the Athlete has committed a second ADRV, has made whether he has done so an issue in these proceedings.

Considering the submissions of the parties the Sole Arbitrator holds that there is a specific arbitration agreement in the Appealed Decision entitling WADA to appeal it to the CAS. Moreover, an applicable regulation – the USADA Protocol – properly interpreted, also provides such a right of appeal to WADA. 

The Sole Arbitrator deems that USADA's attempt to change the basis of the agreed sanction i.e. that the DHCMT positive should be treated as a second ADRV - should not be entertained. The fact of the Athlete's second ADRV is the very premise of WADA's appeal and hence outwith its scope. The scope of WADA's appeal is limited to the appropriate sanction for the Athlete's second ADRV; his commission of that second violation is to be treated as res judicata. 

Further the Sole Arbitrator concludes that an ADRV contrary to Article 2.1 WADC (i.e. a "presence" violation) cannot be committed on any date other than the date of the sample on which the prohibited sample is found to be present. 

Therefore the Court of Arbitration for Sport decides on 10 March 2020 in this Preliminary Award that: 

1.) The Court of Arbitration for Sport has jurisdiction over the appeal filed by the World Anti-Doping Agency on 4 March 2019 against the decision rendered by the United States Anti-Doping Agency on 27 November 2018, regarding Ryan Hudson.

2.) The scope of the appeal filed by the World Anti-Doping Agency on 4 March 2019 is limited to the appropriate sanction for Ryan Hudson's second Anti-Doping Rule Violation; his commission of that second violation is to be treated as res judicata.

3.) An Anti-Doping Rule Violation contrary to Article 2.1 (i.e. a "presence" violation) of the World Anti-Doping Code cannot be committed on any date other than the date of the collection of the sample in which the prohibited substance is found to be present.

4.) The substantive proceedings will now go forward in the basis of the above premises 1-3.

5.) The costs of this award will be allocated in the final award.

6.) All other claims or issues will be assessed and determined in the final award.

CAS 2018/A/5904 Diego Dominguez v. Federation Internationale de I' Automobile

In October 2015 the International Automobile Federation (FIA) has reported an anti-doping rule violation against the Paraguayan rally driver after his sample tested positive for the prohibited substance Amfetamine.

Here the Athlete established that from 2006 had used prescribed medication for his condition and since 2014 he had been prescribed a different medication that contained the Prohibited Substance.

FIA accepted that the violation was not intentional and granted in March 2016 the Athlete's application for a prospective TUE. However the FIA TUE Committee (TUEC) denied repeately the Athlete's applications for a retroactive TUE between October 2015 and July 2018.

Hereafter in September 2018 the Athlete appealed the latest negative FIA TUEC Decision of 3 July 2018 with the Court of Arbitration for Sport (CAS).

During the proceedings the parties reached a settlement and requested the CAS Panel to ratify the Settlement Agreement into a Consent Award.

The parties agree as follows:

1. The Decision dated 3 July 2018 is confirmed, and so the Athlete's application for a retroactive TUE is denied.
2. The Appellant committed an anti-doping rule violation as a result of the presence of amphetamine (and its metabolite) in the urine sample collected from him on 28 August 2015 at the Event.
3. The Athlete did not intend to cheat and therefore his violation was not intentional within the meaning of FIA ADR Article 10.2. 3.
4. The Athlete bears No Significant Fault or Negligence for his violation and is entitled to the maximum reduction permitted under FIA ADR Article 10.5.2, so that the period of ineligibility applicable to him shall be one year.
5. In accordance with FIA ADR Articles 10.11.1 and 10.11.3, the period of ineligibility will start on the date of sample collection (28 August 2015), will include the period of provisional suspension (from 5 October 2015 to 1 April
   2016), and so will expire at midnight on 27 August 2016. No period of ineligibility will be served going forward.
6. Pursuant to FIA ADR Article 9, the results achieved by the Athlete at the Event are disqualified, with all resulting consequences, including forfeiture of trophies,
   medals, points and prizes awarded based on those results. In accordance with FIA ADR Article 10.8, all results obtained subsequent to the Event during the period of ineligibility are also disqualified (with all resulting consequences).
7. The parties will pay the CAS arbitration costs in equal shares, and each party will bear its own legal and other costs.

After reviewing the terms of the Settlement Agreement and a prima facie review of the evidence on file, the Panel finds no grounds to object or disapprove the terms of the Settlement Agreement and is satisfied that the Settlement Agreement constitutes a bona fide settlement of the dispute brought to its attention. The Panel considers the Settlement Agreement reached by the parties and the outcome of the present proceedings not ureasonable. The Panel also notes that the present award may be published, considering that a sanction has been imposed on the Athlete.

Therefore the Court of Arbitration for Sport decides on 7 August 2019:

1.) The procedure CAS 2018/A/5904 Diego Dominguez v. Federation Internationale de l 'Automobile is terminated and removed from the CAS roll.

2.) The Settlement Agreement entered into by the parties on 28 June 2019 is hereby ratified by the Court of Arbitration for Sport with the consent of the parties and its terms are incorporated into this arbitral award.

3.) Each party is hereby ordered to perform its obligations and duties as per the Settlement Agreement.

4.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne in equal shares by Mr Diego Dominguez and by the Federation
Internationale de l 'Automobile.

5.) Both parties shall bear their own legal fees and other expenses incurred in connection with the present arbitration proceedings.