CAS 2019/A/6249 Roman Balandin v. Association Russian Anti-Doping Agency (RUSADA)

• Basketball
• Doping (meldonium)

Criteria for the determination of the intentionality of an ADRV
CAS panels have to conduct fact-based and case-specific analyses. In the case of a young professional player not contesting the anti-doping rule violation (ADRV), the following elements can be relied upon in order to determine intent: relative experience level (with the sport and the relevant anti-doping rules), general anti-doping education (or lack thereof), level of awareness of previous cases involving the same prohibited substance, motivation to consume the product containing the prohibited substance, circumstances surrounding the player’s visit to his team’s doctor and the accounts of the various participants and witnesses, consistency of the player’s explanations with the levels of prohibited substance found in his system.

On 28 June 2018 the RUSADA Disciplinary Anti-Doping Committee (DADC) decided to impose a 4 year period of ineligibility on the Russian basketball player Roman Balandin after his sample tested positive for the prohibited substance Meldonium. 

Hereafter in April 2019 the Athlete appealed the DADC decision with the Court of Arbitration for Sport.

The Athlete requested the Panel to set aside the DADC decision of 28 June 2018 and to impose a reduced sanction on the basis of No Significant Fault or Negligence. 

The Athlete denied the intentional use of the substance, argued that he is very young and lacked any formal anti-doping education. He acknowledged that his behavior was careless but not intentional nor significantly negligent.

He explained that he had used the Meldonium as an over-the-counter product. It was recommended by their team doctor and he further had confirmed that he could take this product. Only later the Athlete became aware that the product was prohibited in sports he stopped using it. The team doctor later admitted his fault in allowing the Athlete to use the meldonium which ultimately led to his dismissal from the basketball club. 

The Sole Arbitrator finds that the Athlete very narrowly, by a balance of probabilities, has met his burden of proving that his violation was not intentional. However the Sole Arbitrator deems that the Athlete’s level of fault is significant and considerable. Consequently that there are no grounds to further reduce the period of ineligibility. 

Therefore the Court of Arbitration for Sport decides on 13 September 2019 that:

1.) The appeal filed by Roman Balandin on 16 April 2019 against the decision issued by the RUSADA Disciplinary Anti-Doping Committee on 28 June 2018 is partially upheld.

2.) The decision issued by the RUSADA Disciplinary Anti-Doping Committee on 28 June 2018 is set aside.

3.) Mr Roman Balandin is sanctioned with a two-year period of ineligibility commencing as from the date of his provisional suspension (i.e.19 May 2017).

4.) (…).

5.) (…).

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

CAS 2019/A/6213 World Anti-Doping Agency (WADA) v. Czech Anti-Doping Committee (CADC) & Czech Swimming Federation (CSF) & Kateřina Kaškov

• Aquatics (swimming)
• Doping (metandienone)
• Sanction applicable to an ADRV involving a non-specified substance
• Burden of proof regarding the absence of intentionality of the violation

1. Article 10.2.1.1 CADC ADR provides the period of ineligibility shall be four (4) years where the anti-doping rule violation does not involve a specified substance unless the athlete can establish that the violation was not intentional.

2. The athlete bears the burden of establishing that the violation was not intentional. Lack of intention cannot be inferred from protestations of innocence (however credible), the lack of a demonstrable sporting incentive to dope, unsuccessful attempts by the athlete to discover the origin of the prohibited substance or the athlete’s clean record. The submissions, documents and evidence on behalf of the athlete must be persuasive that the occurrence of the circumstances which the athlete relies is more probable than their non-occurrence. It is not sufficient to suggest that the prohibited substance must have entered his/her body inadvertently from some supplements or other product. Concrete evidence should be adduced demonstrating that a particular supplement, medication or other product taken by the athlete, or that the specified product claimed to be taken, contained the substance in question. Absent any proof of purchase, information as to the specific type of supplement used, by whom it is produced, etc. and absent any disclosure of the food supplement on the doping control form, there is no element substantiating the athlete’s contention that s/he did use that product or that it was contaminated.

On 2 July 2018 the Disciplinary Committee of the Czech Swimming Federation (CSF) decided to impose a 2 year period of ineligibility on the swimmer Kateřina Kašková after her A and B samples tested positive for the prohibited substance Metandienone. When appealed the decision was upheld on 20 October 2018. Next the Czech Anti-Doping Committee (CADC) appealed the CSF decision before the Arbitration Committee of the Czech Olympic Committee. However in November 2018 the CADC withdrew its appeal and the appeal proceeding were terminated without any decision being taken. 

Hereafter in March 2019 the World Anti-Doping Agency (WADA) appealed the CSF decision of 20 October 2018 with the Court of Arbitration for Sport (CAS).

WADA requested the Panel to set aside the CSF decision and to impose a 4 year period of ineligibility on the Athlete. Both the CSF and CADC requested the Panel to confirm the decisions issued by the CSF. The Athlete did not file any submission in her defence. 

WADA contended that the presence of a prohibited substance had been established in her samples and accordingly that she committed an anti-doping rule violation. Futher the Athlete failed to demonstrate how the prohibited substance entered her system. 

The Sole Arbitrator holds that the Athlete has not established that the violation was not intentional and, instead of two years she should be sanctioned with a four-year period of ineligibility. 

Therefore the Court of Arbitration for Sport decides on 23 September 2019 that: 

1.) The Appeal filed by the World Anti-Doping Agency on 21 March 2019 against the decision rendered by the Executive Committee of the Czech Swimming Federation on 20 October 2018 is upheld.

2.) The decision rendered on 20 October 2018 by the Executive Committee of Czech Swimming Federation is set aside.

3.) Ms Katerina Kašková is declared ineligible for a period of four years starting from the date of 7 December 2017.

4.) All competitive results obtained by Ms Katerina Kašková from and including 4 November 2017 shall be disqualified, with all resulting consequences (including forfeiture of medals, points and prizes).

5.) (…).

6.) (…).

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

CAS 2019/O/6152 International Association of Athletics Federations (IAAF) v. Russian Athletics Federation (RUSAF) & Anna Nazarova-Klyashtornaya

Related case:

IOC 2017 IOC vs Anna Nazarova (London Olympiad)
October 16, 2017

• Athletics (long-jump)
• Doping (dehydrochloromethyltestosterone)
• Purpose and effect of a disqualification of an athlete’s results
• Application of a general principle of fairness while determining the disqualification of an athlete’s results
• Principle of proportionality
• Factors assessed in relation to the application of a fairness test

1. The main purpose of a disqualification of results is not to punish a transgressor, but rather to correct any unfair advantage and to remove any tainted performances from the record. However, having regard to the fact that a disqualification of results embraces the forfeiture of any titles, awards, medals, points, and prizes, as well as appearance money, disqualification may be considered equal to a retroactive ineligibility period and therefore a sanction.

2. It cannot be excluded that a general principle of “fairness” may be applied under Swiss and Monaco laws including in regard to Rule 40.8 of the 2011 IAAF Rules and the 2012 IAAF Rules or its equivalents in deciding whether some of an athlete’s results are to be left untouched even in the absence of an explicit rule to this effect. Fairness exception is an embodiment of the principle of proportionality, which must be applied in doping cases. The sanction to be imposed for an Anti-Doping Rule Violation must be proportional considering the length of the ineligibility period and the disqualification of results, together and alone.

3. The principle of proportionality requires to assess whether a sanction is appropriate to the violation committed. Excessive sanctions are prohibited.

4. Among factors assessed in the application of a fairness test are an athlete’s degree of fault, the affected sporting results, the significant consequences of disqualification of results, an Athlete’s Blood Passport, specific issues, additional ineligibility period in a second instance, delays in results management, the overall length of the disqualification and longer periods of disqualification specifically associated with re-testing.

Ms. Anna Nazarova is a Russian Athlete competing in the Women’s Long Jump Athletics event at the London 2012 Olympic Games. 

In 2016, the IOC decided to perform further analyses on certain samples collected during the 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2012.

In April 2017 the International Olympic Committee reported an anti-doping rule violation against the Athlete after her 2012 sample tested positive for the prohibited substance dehydrochlormethyltestosterone (turinabol). 

After notification the Athlete failed to respond. Consequently the IOC Disciplinary Commission concluded that the Athlete had committed an anti-doping rule violation and decided on 16 October 2017 to disqualify the Athlete from the London 2012 Olympic Games and the events in which she participated. 

The case was referred from the IOC to the IAAF in November 2017 to determine the further consequences that should be imposed. Previously the IAAF had notified the Athlete in May 2017 and ordered a provisional suspension.

Because the Russian Athletics Federation (RusAF) was suspended by the IAAF the case was finally referred in February 2019 to the Court of Arbitration for Sport (CAS) for a Sole Arbitrator first instance hearing panel. The Athlete also failed to respond to the IAAF communications. 

The IAAF requested the Sole Arbitrator Panel to impose a 2 year period of ineligibility on the Athlete and for the disqualification of the her results obtained during the 2012 Olympic Games. In addition the results obtained by the Athlete obtained between 8 August 2012 and 17 May 2017 should also be disqualified. 

The IAAF contended that the Athlete’s sample showed the presence of a prohibited substance and that she had committed an anti-doping rule violation during the 2012 Olympic Games. 

Despite the numerous CAS communications both RusAF and the Athlete failed to provide any submission or communication on this matter. 

Considering the evidence the Sole arbitrator finds that the presence had been established of Turinabol in the Athlete’s sample and accordingly that she committed an anti-doping rule violation. Based on the principle of fairness the Sole Arbitrator deems it appropriate to disqualify the Athlete results between 8 August 2012 and 31 August 2014. 

Therefore the Court of Arbitration for Sport decides on 18 October 2019 that: 

1) The Request for Arbitration filed by the International Association of Athletics Federations against the Russian Athletics Federation and Mrs Anna Nazarova-Klyashtornaya on 6 February 2019 is admissible and is upheld.

2) Mrs Anna Nazarova-Klyashtornaya is sanctioned with a two-year period of ineligibility, commencing on the date of the present Award. The period of ineligibility served during the period of provisional suspension imposed on Mrs Anna Nazarova-Klyashtornaya from 17 May 2017 through the date of the present Award shall be credited against the total period of ineligibility.

3) All the competitive results obtained by Mrs Anna Nazarova-Klyashtornaya between and including 8 August 2012 and 31 August 2014 are disqualified, with all the resulting consequences, including the forfeiture of any titles, awards, medals, points and prize and appearance money.

(…)

6) Any other motions or prayers for relief are rejected.

CAS 2017/A/4998 Julia Ivanova v. International Ski Federation (FIS), award of 31 August 2017 (operative part of 29 May 2017)

Related cases:

• IOC 2017 IOC vs Yuliia Ivanova - Operative Part
  November 9, 2017
• CAS 2017_A_4998 Julia Ivanova vs FIS
  August 31, 2017
• CAS 2017_A_5438 Julia Ivanova vs IOC
  October 5, 2018

• Skiing (cross-country skiing)
• Doping (tampering or attempted tampering with doping control)
• Applicable law to a potential ADRV sanctioned by a provisional suspension
• Burden and standard of proof applicable to the imposition of a Provisional Suspension under the FIS ADR
• Burden and standard of proof applicable to the lifting of a Provisional Suspension under the FIS ADR
• Lack of infringement of the athlete’s fundamental and personality rights
• Assessment of the evidence upon which the provisional suspension is based
• Determination of the length of the provisional suspension

1. The 2014 FIS Anti-Doping Rules (ADR) lack any provision setting out criteria for challenging a suspension. They endow FIS with even broader discretion in suspending an athlete than their 2016 counterpart, whose Article 7.9.3.2 enumerates circumstances in which a suspension is invalidated and indeed which may preclude its imposition in the first place. Accordingly the 2016 FIS ADR apply as lex mitior.

2. The provisional suspension occupies a space in which an anti-doping rule violation (ADRV) is asserted, but not yet proven. Provisional suspensions have therefore a necessarily preliminary character. The burden of proof and legal thresholds applicable must reflect the appealed suspension’s provisional nature and track the rules specific to its imposition. A provisional decision is overturned if it has “no reasonable prospect of being upheld”. In other words, the imposition of a provisional suspension requires a “reasonable possibility” that the suspended athlete has engaged in an ADRV. A reasonable possibility is more than a fanciful one; it requires evidence giving rise to individualized suspicion. This standard, however, is necessarily weaker than the test of “comfortable satisfaction” set forth in Article 3.1 FIS Anti-Doping Rules (ADR), relating solely to the adjudication of an ADRV. Accordingly, a reasonable possibility may exist even if the federation is unable to show that the balance of probabilities clearly indicates an ADRV on the evidence available. Pursuant to Article 7.9.2 FIS ADR, any ADRV suspected of an athlete can serve as cause for a provisional suspension against him or her, should the federation so decide. The federation’s burden under Article 7.9.2 is a limited one, but certainly not devoid of content. No plausible interpretation of Article 7.9.2 can require an athlete to disprove unsubstantiated assertions.

3. Once a suspension has been put in place and is challenged, Article 7.9.3.2 FIS ADR imposes three, independently sufficient criteria for lifting the suspension: a demonstrable lack of “fault” or “negligence” on the athlete’s part, “no reasonable prospect” of the assertion of an ADRV succeeding on the merits, or the presence of “other facts” making it “clearly unfair” to leave the suspension in place. Article 7.9.3.2 thus plainly imposes a higher threshold to lift a suspension than the FIS ADR require to impose one in the first place. Since additional evidence can be adduced in the period between a suspension’s imposition and ADRV proceedings, moreover, the rule does not require that “prospects” be assessed by reference to currently available evidence in isolation. Demonstrating the negative proposition, of no reasonable prospects, therefore requires more than an assertion as to shortcomings with current evidence, such as a patent flaw in the case against the athlete.

4. It is uncontroversial that certain norms and principles relating inter alia to the athlete’s rights of due process and personality inhere in Swiss law. These provide a minimum standard of process with which the FIS ADR must comply. However, those principles cannot be considered to be infringed where (i) there is neither “conviction” nor yet a formal “charge” of an ADRV, (ii) the suspected ADRV informing the athlete’s suspension is clear, (iii) as a matter of procedural due process, the parties’ equality of arms and the athlete’s rights to a fair hearing and opportunity to present his/her case were satisfied at the first instance and on appeal. Moreover, the athlete’s reference to a presumption of innocence cannot be considered to be availing. In this respect, Swiss “fundamental principles” including those relating to proof of guilt vary on a spectrum depending on the type of proceeding and cannot simply be transposed from criminal to private law. What is more, since there is no finding of guilt where a provisional suspension is at stake, the latter cannot implicate, still less violate, a presumption of innocence. Turning to the athlete’s personality rights, they must be balanced against those of associational autonomy. An athlete who joins an association and thereby submits to that association’s rules as a condition of participation may be deemed to have consented to those rules. Therefore, though a suspension infringes an athlete’s personality rights it is permissible if it is proportionate, i.e., not “excessive”. A determination of excessiveness depends on a balance of interests including inter alia the federation’s appreciable interest in guaranteeing for all athletes a “fundamental right to participate in doping-free sport”. Moreover, the fight against doping weighs even more heavily where the challenged measure is provisional and the infringement temporary.

5. The likelihood of an ADRV and the validity of provisional measures are clearly intertwined. The success of any ADRV charge will depend on further investigations, the outcome of which is at present unknown, indeed unknowable. This tension makes it all the more imperative that Article 7.9 FIS ADR be applied strictly to require evidence demonstrating at least a reasonable possibility of an ADRV. In this regard, the implication of an athlete in a clean urine bank whose existence is adduced by a report commissioned by the IOC i.e. the McLaren Report,, the existence of lists of names of athletes containing the athlete’s code purportedly authorized to take a “boosting cocktail” and scheduled to start in medal races and who likewise enjoyed “protected” status under Russia’s doping Scheme particularly when assessed collectively with evidence of tampering with the athlete’s sample bottle, indicate a reasonable possibility of an ADRV. The evidence suffices for the limited purpose of Article 7.9.2 of the FIS ADR.

6. An athlete cannot endorse an indefinite and indeterminable suspension as proportionate. Noting the athlete’s reasonable entitlement to legal certainty, it is deemed appropriate and just that the provisional suspension expire after 10 months, at which time it will be for the federation to consider whether or not to seek a further suspension justified by new developments and within the framework of the FIS ADR.

Two reports commissioned by WADA, published by Prof Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample. 

As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. In the context of this Commission the IOC decided that all the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated.

Yulia Ivanova is a Russian Athlete competing in the Women's Classic Cross Country Skiing Events at the Sochi 2014 Olympic Winter Games. 

In December 2016 the IOC Disciplinary Commission has reported multiple anti-doping rule violations against the Athlete for tampering, conspiracy and use of prohibited substances. Concurrently after notification a provisional suspension was ordered by the International Ski Federation (FIS). The IOC conducted further investigations after opening of the proceedings against the Athlete. 

In December 2016 the Athlete challenged the imposed Provisional Suspension. However on 6 February 2017 the FIS Doping Panel decided by majority to uphold this Provisional Suspension. Hereafter in February 2017 the Athlete filed an appeal with the Court of Arbitration for Sport CAS. 

The Athlete submitted that the practices alleged in the McLaren Report do not suffice to demonstrate individual guilt adequate to justify his suspension by FIS. Both the Federation’s internal rules and fundamental principles of Swiss and European law mandate, as a condition of any provisional suspension, that FIS adduce evidence that the Athlete himself committed an anti-doping rule violation. The McLaren Report’s intended scope, moreover, was limited to examining high-level practices and not specific athletes’ guilt; the Athlete accordingly submits that FIS falls short of its burden and that the Provisional Suspension must be lifted. 

FIS contended that its imposition of an Optional Provisional Suspension was necessary and legally justified. In its view, the FIS ADR require the Athlete – and not the Federation – to demonstrate certain criteria in order to lift a suspension, once one has been instituted. The Athlete in its view has failed to make out these criteria, least of all that an eventual ADRV charge has “no reasonable prospect” of being upheld. The provisional suspension therefore survives scrutiny. 

The Panel concludes that the filed evidence establish a “reasonable possibility” of an anti-doping rule violation in the Athlete’s case. It further considered that the Athlete has not demonstrated with satisfaction the fulfillment of criteria necessary to lift the suspension, though the Panel decided that it should be modified. 

Therefore the Court of Arbitration for Sport decides on 31 August 2017 that: 

1.) The appeal filed on 22 February 2017 against the Decision of the FIS Doping Panel regarding Provisional Measures in the matter of Ms. Julia Ivanova, dated 6 February 2017, is partially upheld.

2.) The Decision of the FIS Doping Panel dated 6 February 2017 is amended as follows:

The Optional Provisional Suspension is maintained until 31 October 2017, after which such suspension shall lapse and Ms. Julia Ivanova shall, in the absence of any anti-doping rule violation sanction having been assessed against her, be restored to the status quo ante prevailing at the time of the suspension’s imposition.

3.) All other elements of the Decision of the FIS Doping Panel dated 6 February 2017 are confirmed.

4.) The International Ski Federation may, on or after 1 November 2017, re-impose an Optional Provisional Suspension in accordance with the FIS Anti-Doping Rules if the facts and circumstances so merit. Such suspension shall be subject to appeal in accordance with Article 13.7.1 of the FIS Anti-Doping Rules.

5.) (…).

6.) (…).

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

CAS 2017/A/4987 Maxim Vylegzhanin v. International Ski Federation (FIS), award of 31 August 2017 (operative part of 29 May 2017)

Related cases:

• CAS 2017_A_5436 Maxim Vylegzhanin vs IOC
  February 1, 2018
• IOC 2017 IOC vs Maksim Vylegzhanin - Operative Part
  November 9, 2017

• Skiing (cross-country skiing)
• Doping (tampering or attempted tampering with doping control)
• Burden and standard of proof applicable to the imposition of a Provisional Suspension under the FIS ADR
• Burden and standard of proof applicable to the lifting of a Provisional Suspension under the FIS ADR
• Lack of infringement of the athlete’s fundamental and personality rights
• Assessment of the evidence upon which the provisional suspension is based
• Determination of the length of the provisional suspension

1. The provisional suspension occupies a space in which an anti-doping rule violation (ADRV) is asserted, but not yet proven. Provisional suspensions have therefore a necessarily preliminary character. The burden of proof and legal thresholds applicable must reflect the appealed suspension’s provisional nature and track the rules specific to its imposition. A provisional decision is overturned if it has “no reasonable prospect of being upheld”. In other words, the imposition of a provisional suspension requires a “reasonable possibility” that the suspended athlete has engaged in an ADRV. A reasonable possibility is more than a fanciful one; it requires evidence giving rise to individualized suspicion. This standard, however, is necessarily weaker than the test of “comfortable satisfaction” set forth in Article 3.1 FIS Anti-Doping Rules (ADR), relating solely to the adjudication of an ADRV. Accordingly, a reasonable possibility may exist even if the federation is unable to show that the balance of probabilities clearly indicates an ADRV on the evidence available. Pursuant to Article 7.9.2 FIS ADR, any ADRV suspected of an athlete can serve as cause for a provisional suspension against him or her, should the federation so decide. The federation’s burden under Article 7.9.2 is a limited one, but certainly not devoid of content. No plausible interpretation of Article 7.9.2 can require an athlete to disprove unsubstantiated assertions.

2. Once a suspension has been put in place and is challenged, Article 7.9.3.2 FIS ADR imposes three, independently sufficient criteria for lifting the suspension: a demonstrable lack of “fault” or “negligence” on the athlete’s part, “no reasonable prospect” of the assertion of an ADRV succeeding on the merits, or the presence of “other facts” making it “clearly unfair” to leave the suspension in place. Article 7.9.3.2 thus plainly imposes a higher threshold to lift a suspension than the FIS ADR require to impose one in the first place. Since additional evidence can be adduced in the period between a suspension’s imposition and ADRV proceedings, moreover, the rule does not require that “prospects” be assessed by reference to currently available evidence in isolation. Demonstrating the negative proposition, of no reasonable prospects, therefore requires more than an assertion as to shortcomings with current evidence, such as a patent flaw in the case against the athlete.

3. It is uncontroversial that certain norms and principles relating inter alia to the athlete’s rights of due process and personality inhere in Swiss law. These provide a minimum standard of process with which the FIS ADR must comply. However, those principles cannot be considered to be infringed where (i) there is neither “conviction” nor yet a formal “charge” of an ADRV, (ii) the suspected ADRV informing the athlete’s suspension is clear, (iii) as a matter of procedural due process, the parties’ equality of arms and the athlete’s rights to a fair hearing and opportunity to present his/her case were satisfied at the first instance and on appeal. Moreover, the athlete’s reference to a presumption of innocence cannot be considered to be availing. In this respect, Swiss “fundamental principles” including those relating to proof of guilt vary on a spectrum depending on the type of proceeding and cannot simply be transposed from criminal to private law. What is more, since there is no finding of guilt where a provisional suspension is at stake, the latter cannot implicate, still less violate, a presumption of innocence. Turning to the athlete’s personality rights, they must be balanced against those of associational autonomy. An athlete who joins an association and thereby submits to that association’s rules as a condition of participation may be deemed to have consented to those rules. Therefore, though a suspension infringes an athlete’s personality rights it is permissible if it is proportionate, i.e., not “excessive”. A determination of excessiveness depends on a balance of interests including inter alia the federation’s appreciable interest in guaranteeing for all athletes a “fundamental right to participate in doping-free sport”. Moreover, the fight against doping weighs even more heavily where the challenged measure is provisional and the infringement temporary.

4. The likelihood of an ADRV and the validity of provisional measures are clearly intertwined. The success of any ADRV charge will depend on further investigations, the outcome of which is at present unknown, indeed unknowable. This tension makes it all the more imperative that Article 7.9 FIS ADR be applied strictly to require evidence demonstrating at least a reasonable possibility of an ADRV. In this regard, the implication of an athlete in a clean urine bank whose existence is adduced by a report commissioned by the IOC i.e. the McLaren Report,, the existence of lists of names of athletes containing the athlete’s code purportedly authorized to take a “boosting cocktail” and scheduled to start in medal races and who likewise enjoyed “protected” status under Russia’s doping Scheme particularly when assessed collectively with evidence of tampering with the athlete’s sample bottle, indicate a reasonable possibility of an ADRV. The evidence suffices for the limited purpose of Article 7.9.2 of the FIS ADR.

5. An athlete cannot endorse an indefinite and indeterminable suspension as proportionate. Noting the athlete’s reasonable entitlement to legal certainty, it is deemed appropriate and just that the provisional suspension expire after 10 months, at which time it will be for the federation to consider whether or not to seek a further suspension justified by new developments and within the framework of the FIS ADR.

Two reports commissioned by WADA, published by Prof Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample.  

As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. In the context of this Commission the IOC decided that all the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated.

Maksim Vylegzhanin is a Russian Athlete competing in the Men's Skiathlon and Classic Cross Country Skiing Events at the Sochi 2014 Olympic Winter Games. 

In December 2016 the IOC Disciplinary Commission has reported multiple anti-doping rule violations against the Athlete for tampering, conspiracy and use of prohibited substances. Concurrently after notification a provisional suspension was ordered by the International Ski Federation (FIS). The IOC conducted further investigations after opening of the proceedings against the Athlete.  

In December 2016 the Athlete challenged the imposed Provisional Suspension. However on 6 February 2017 the FIS Doping Panel decided by majority to uphold this Provisional Suspension. Hereafter in February 2017 the Athlete filed an appeal with the Court of Arbitration for Sport CAS.  

The Athlete submitted that the applicable provisions regulating Optional Provisional Suspension in the FIS ADR require the Federation to should a legal burden which it has failed to meet.  

FIS contended that its imposition of an Optional Provisional Suspension was necessary and legally justified. In its view, the FIS ADR require the Athlete – and not the Federation – to demonstrate certain criteria in order to lift a suspension, once one has been instituted. The Athlete in its view has failed to make out these criteria, least of all that an eventual ADRV charge has “no reasonable prospect” of being upheld. The provisional suspension therefore survives scrutiny.  

The Panel concludes that the filed evidence establish a “reasonable possibility” of an anti-doping rule violation in the Athlete’s case. It further considered that the Athlete has not demonstrated with satisfaction the fulfillment of criteria necessary to lift the suspension, though the Panel decided that it should be modified.  

Therefore the Court of Arbitration for Sport decides on 31 August 2017 that:  

1.) The appeal filed on 16 February 2017 against the Decision of the FIS Doping Panel regarding Provisional Measures in the matter of Mr. Maxim Vylegzhanin, dated 6 February 2017, is partially upheld.

2.) The Decision of the FIS Doping Panel dated 6 February 2017 is amended as follows:

The Optional Provisional Suspension is maintained until 31 October 2017, after which such suspension shall lapse and Mr. Maxim Vylegzhanin shall, in the absence of any anti-doping rule violation sanction having been assessed against him, be restored to the status quo ante prevailing at the time of the suspension’s imposition.

3.) All other elements of the Decision of the FIS Doping Panel dated 6 February 2017 are confirmed.

4.) The International Ski Federation may, on or after 1 November 2017, re-impose an Optional Provisional Suspension in accordance with the FIS Anti-Doping Rules if the facts and circumstances so merit. Such suspension shall be subject to appeal in accordance with Article 13.7.1 of the FIS Anti-Doping Rules.

5.) (…).

6.) (…).

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

CAS 2017/A/4986 Evgenia Shapovalova v. International Ski Federation (FIS), award of 31 August 2017 (operative part of 29 May 2017)

Related cases:

• CAS 2017_A_5439 Evgenia Shapovalova vs IOC
  November 30, 2018
• IOC 2017 IOC vs Evgeniya Shapovalova - Operative Part
  November 9, 2017

• Skiing (cross-country skiing)
  Doping (tampering or attempted tampering with doping control)
• Burden and standard of proof applicable to the imposition of a Provisional Suspension under the FIS ADR
  Burden and standard of proof applicable to the lifting of a
• Provisional Suspension under the FIS ADR
• Lack of infringement of the athlete’s fundamental and personality rights
• Assessment of the evidence upon which the provisional suspension is based
• Determination of the length of the provisional suspension

1. The provisional suspension occupies a space in which an anti-doping rule violation (ADRV) is asserted, but not yet proven. Provisional suspensions have therefore a necessarily preliminary character. The burden of proof and legal thresholds applicable must reflect the appealed suspension’s provisional nature and track the rules specific to its imposition. A provisional decision is overturned if it has “no reasonable prospect of being upheld”. In other words, the imposition of a provisional suspension requires a “reasonable possibility” that the suspended athlete has engaged in an ADRV. A reasonable possibility is more than a fanciful one; it requires evidence giving rise to individualized suspicion. This standard, however, is necessarily weaker than the test of “comfortable satisfaction” set forth in Article 3.1 FIS Anti-Doping Rules (ADR), relating solely to the adjudication of an ADRV. Accordingly, a reasonable possibility may exist even if the federation is unable to show that the balance of probabilities clearly indicates an ADRV on the evidence available. Pursuant to Article 7.9.2 FIS ADR, any ADRV suspected of an athlete can serve as cause for a provisional suspension against him or her, should the federation so decide. The federation’s burden under Article 7.9.2 is a limited one, but certainly not devoid of content. No plausible interpretation of Article 7.9.2 can require an athlete to disprove unsubstantiated assertions.

2. Once a suspension has been put in place and is challenged, Article 7.9.3.2 FIS ADR imposes three, independently sufficient criteria for lifting the suspension: a demonstrable lack of “fault” or “negligence” on the athlete’s part, “no reasonable prospect” of the assertion of an ADRV succeeding on the merits, or the presence of “other facts” making it “clearly unfair” to leave the suspension in place. Article 7.9.3.2 thus plainly imposes a higher threshold to lift a suspension than the FIS ADR require to impose one in the first place. Since additional evidence can be adduced in the period between a suspension’s imposition and ADRV proceedings, moreover, the rule does not require that “prospects” be assessed by reference to currently available evidence in isolation. Demonstrating the negative proposition, of no reasonable prospects, therefore requires more than an assertion as to shortcomings with current evidence, such as a patent flaw in the case against the athlete.

3. It is uncontroversial that certain norms and principles relating inter alia to the athlete’s rights of due process and personality inhere in Swiss law. These provide a minimum standard of process with which the FIS ADR must comply. However, those principles cannot be considered to be infringed where (i) there is neither “conviction” nor yet a formal “charge” of an ADRV, (ii) the suspected ADRV informing the athlete’s suspension is clear, (iii) as a matter of procedural due process, the parties’ equality of arms and the athlete’s rights to a fair hearing and opportunity to present his/her case were satisfied at the first instance and on appeal. Moreover, the athlete’s reference to a presumption of innocence cannot be considered to be availing. In this respect, Swiss “fundamental principles” including those relating to proof of guilt vary on a spectrum depending on the type of proceeding and cannot simply be transposed from criminal to private law. What is more, since there is no finding of guilt where a provisional suspension is at stake, the latter cannot implicate, still less violate, a presumption of innocence. Turning to the athlete’s personality rights, they must be balanced against those of associational autonomy. An athlete who joins an association and thereby submits to that association’s rules as a condition of participation may be deemed to have consented to those rules. Therefore, though a suspension infringes an athlete’s personality rights it is permissible if it is proportionate, i.e., not “excessive”. A determination of excessiveness depends on a balance of interests including inter alia the federation’s appreciable interest in guaranteeing for all athletes a “fundamental right to participate in doping-free sport”. Moreover, the fight against doping weighs even more heavily where the challenged measure is provisional and the infringement temporary.

4. The likelihood of an ADRV and the validity of provisional measures are clearly intertwined. The success of any ADRV charge will depend on further investigations, the outcome of which is at present unknown, indeed unknowable. This tension makes it all the more imperative that Article 7.9 FIS ADR be applied strictly to require evidence demonstrating at least a reasonable possibility of an ADRV. In this regard, the implication of an athlete in a clean urine bank whose existence is adduced by a report commissioned by the IOC i.e. the McLaren Report,, the existence of lists of names of athletes containing the athlete’s code purportedly authorized to take a “boosting cocktail” and scheduled to start in medal races and who likewise enjoyed “protected” status under Russia’s doping Scheme particularly when assessed collectively with evidence of tampering with the athlete’s sample bottle, indicate a reasonable possibility of an ADRV. The evidence suffices for the limited purpose of Article 7.9.2 of the FIS ADR.

5. An athlete cannot endorse an indefinite and indeterminable suspension as proportionate. Noting the athlete’s reasonable entitlement to legal certainty, it is deemed appropriate and just that the provisional suspension expire after 10 months, at which time it will be for the federation to consider whether or not to seek a further suspension justified by new developments and within the framework of the FIS ADR.

Two reports commissioned by WADA, published by Prof Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample. 

As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. In the context of this Commission the IOC decided that all the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated.

Evgeniya Shapovalova is a Russian Athlete competing in the Women's Cross Country Skiing Event at the Sochi 2014 Olympic Winter Games. 

In December 2016 the IOC Disciplinary Commission has reported multiple anti-doping rule violations against the Athlete for tampering, conspiracy and use of prohibited substances. Concurrently after notification a provisional suspension was ordered by the International Ski Federation (FIS). The IOC conducted further investigations after opening of the proceedings against the Athlete. 

In December 2016 the Athlete challenged the imposed Provisional Suspension. However on 6 February 2017 the FIS Doping Panel decided by majority to uphold this Provisional Suspension. Hereafter in February 2017 the Athlete filed an appeal with the Court of Arbitration for Sport CAS. 

The Athlete submitted that the applicable provisions regulating Optional Provisional Suspension in the FIS ADR require the Federation to should a legal burden which it has failed to meet. 

FIS contended that its imposition of an Optional Provisional Suspension was necessary and legally justified. In its view, the FIS ADR require the Athlete – and not the Federation – to demonstrate certain criteria in order to lift a suspension, once one has been instituted. The Athlete in its view has failed to make out these criteria, least of all that an eventual ADRV charge has “no reasonable prospect” of being upheld. The provisional suspension therefore survives scrutiny. 

The Panel concludes that the filed evidence establish a “reasonable possibility” of an anti-doping rule violation in the Athlete’s case. It further considered that the Athlete has not demonstrated with satisfaction the fulfillment of criteria necessary to lift the suspension, though the Panel decided that it should be modified. 

Therefore the Court of Arbitration for Sport decides on 31 August 2017 that: 

1.) The appeal filed on 16 February 2017 against the Decision of the FIS Doping Panel regarding Provisional Measures in the matter of Ms. Evgenia Shapovalova, dated 6 February 2017, is partially upheld.

2.) The Decision of the FIS Doping Panel dated 6 February 2017 is amended as follows:

The Optional Provisional Suspension is maintained until 31 October 2017, after which such suspension shall lapse and Ms. Evgenia Shapovalova shall, in the absence of any anti-doping rule violation sanction having been assessed against her, be restored to the status quo ante prevailing at the time of the suspension’s imposition.

3.) All other elements of the Decision of the FIS Doping Panel dated 6 February 2017 are confirmed.

4.) The International Ski Federation may, on or after 1 November 2017, re-impose an Optional Provisional Suspension in accordance with the FIS Anti-Doping Rules if the facts and circumstances so merit. Such suspension shall be subject to appeal in accordance with Article 13.7.1 of the FIS Anti-Doping Rules.

5.) (…).

6.) (…).

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

CAS 2017/A/4985 Alexey Petukhov v. International Ski Federation (FIS), award of 31 August 2017 (operative part of 29 May 2017)

Related cases:

• CAS 2017_A_5437 Alexey Petukhov vs IOC
  November 27, 2018
• IOC 2017 IOC vs Alexey Petukhov - Operative Part
  November 9, 2017

• Skiing (cross-country skiing)
• Doping (tampering or attempted tampering with doping control)
• Burden and standard of proof applicable to the imposition of a Provisional Suspension under the FIS ADR
• Burden and standard of proof applicable to the lifting of a Provisional Suspension under the FIS ADR
• Lack of infringement of the athlete’s fundamental and personality rights
• Assessment of the evidence upon which the provisional suspension is based
• Determination of the length of the provisional suspension

1. The provisional suspension occupies a space in which an anti-doping rule violation (ADRV) is asserted, but not yet proven. Provisional suspensions have therefore a necessarily preliminary character. The burden of proof and legal thresholds applicable must reflect the appealed suspension’s provisional nature and track the rules specific to its imposition. A provisional decision is overturned if it has “no reasonable prospect of being upheld”. In other words, the imposition of a provisional suspension requires a “reasonable possibility” that the suspended athlete has engaged in an ADRV. A reasonable possibility is more than a fanciful one; it requires evidence giving rise to individualized suspicion. This standard, however, is necessarily weaker than the test of “comfortable satisfaction” set forth in Article 3.1 FIS Anti-Doping Rules (ADR), relating solely to the adjudication of an ADRV. Accordingly, a reasonable possibility may exist even if the federation is unable to show that the balance of probabilities clearly indicates an ADRV on the evidence available. Pursuant to Article 7.9.2 FIS ADR, any ADRV suspected of an athlete can serve as cause for a provisional suspension against him or her, should the federation so decide. The federation’s burden under Article 7.9.2 is a limited one, but certainly not devoid of content. No plausible interpretation of Article 7.9.2 can require an athlete to disprove unsubstantiated assertions.

2. Once a suspension has been put in place and is challenged, Article 7.9.3.2 FIS ADR imposes three, independently sufficient criteria for lifting the suspension: a demonstrable lack of “fault” or “negligence” on the athlete’s part, “no reasonable prospect” of the assertion of an ADRV succeeding on the merits, or the presence of “other facts” making it “clearly unfair” to leave the suspension in place. Article 7.9.3.2 thus plainly imposes a higher threshold to lift a suspension than the FIS ADR require to impose one in the first place. Since additional evidence can be adduced in the period between a suspension’s imposition and ADRV proceedings, moreover, the rule does not require that “prospects” be assessed by reference to currently available evidence in isolation. Demonstrating the negative proposition, of no reasonable prospects, therefore requires more than an assertion as to shortcomings with current evidence, such as a patent flaw in the case against the athlete.

3. It is uncontroversial that certain norms and principles relating inter alia to the athlete’s rights of due process and personality inhere in Swiss law. These provide a minimum standard of process with which the FIS ADR must comply. However, those principles cannot be considered to be infringed where (i) there is neither “conviction” nor yet a formal “charge” of an ADRV, (ii) the suspected ADRV informing the athlete’s suspension is clear, (iii) as a matter of procedural due process, the parties’ equality of arms and the athlete’s rights to a fair hearing and opportunity to present his/her case were satisfied at the first instance and on appeal. Moreover, the athlete’s reference to a presumption of innocence cannot be considered to be availing. In this respect, Swiss “fundamental principles” including those relating to proof of guilt vary on a spectrum depending on the type of proceeding and cannot simply be transposed from criminal to private law. What is more, since there is no finding of guilt where a provisional suspension is at stake, the latter cannot implicate, still less violate, a presumption of innocence. Turning to the athlete’s personality rights, they must be balanced against those of associational autonomy. An athlete who joins an association and thereby submits to that association’s rules as a condition of participation may be deemed to have consented to those rules. Therefore, though a suspension infringes an athlete’s personality rights it is permissible if it is proportionate, i.e., not “excessive”. A determination of excessiveness depends on a balance of interests including inter alia the federation’s appreciable interest in guaranteeing for all athletes a “fundamental right to participate in doping-free sport”. Moreover, the fight against doping weighs even more heavily where the challenged measure is provisional and the infringement temporary.

4. The likelihood of an ADRV and the validity of provisional measures are clearly intertwined. The success of any ADRV charge will depend on further investigations, the outcome of which is at present unknown, indeed unknowable. This tension makes it all the more imperative that Article 7.9 FIS ADR be applied strictly to require evidence demonstrating at least a reasonable possibility of an ADRV. In this regard, the implication of an athlete in a clean urine bank whose existence is adduced by a report commissioned by the IOC i.e. the McLaren Report,, the existence of lists of names of athletes containing the athlete’s code purportedly authorized to take a “boosting cocktail” and scheduled to start in medal races and who likewise enjoyed “protected” status under Russia’s doping Scheme particularly when assessed collectively with evidence of tampering with the athlete’s sample bottle, indicate a reasonable possibility of an ADRV. The evidence suffices for the limited purpose of Article 7.9.2 of the FIS ADR.

5. An athlete cannot endorse an indefinite and indeterminable suspension as proportionate. Noting the athlete’s reasonable entitlement to legal certainty, it is deemed appropriate and just that the provisional suspension expire after 10 months, at which time it will be for the federation to consider whether or not to seek a further suspension justified by new developments and within the framework of the FIS ADR.

Two reports commissioned by WADA, published by Prof Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample. 

As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. 

Mr. Alexey Petukhov is a Russian Athlete competing in the Men’s Cross Country Skiing Events at the Sotchi 2014 Olympic Winter Games.  

In December 2016 the IOC Disciplinary Commission has reported an anti-doping rule violation against the Athlete for tampering. Concurrently after notification a provisional suspension was ordered by the International Ski Federation (FIS). The IOC conducted further investigations after opening of the proceedings against the Athlete. 

The Athlete challenged the imposed Provisional Suspension, however on 6 February 2017 the FIS Doping Panel decided by majority to uphold this Provisional Suspension. Hereafter in February 2017 the Athlete filed an appeal with the Court of Arbitration for Sport CAS.  

The Athlete submitted that the applicable provisions regulating Optional Provisional Suspension in the FIS ADR require the Federation to should a legal burden which it has failed to meet. 

FIS contended that its imposition of an Optional Provisional Suspension was necessary and legally justified. In its view, the FIS ADR require the Athlete – and not the Federation – to demonstrate certain criteria in order to lift a suspension, once one has been instituted. The Athlete in its view has failed to make out these criteria, least of all that an eventual ADRV charge has “no reasonable prospect” of being upheld. The provisional suspension therefore survives scrutiny.  

The Panel concludes that the filed evidence establish a “reasonable possibility” of an anti-doping rule violation in the Athlete’s case. It further considered that the Athlete has not demonstrated with satisfaction the fulfillment of criteria necessary to lift the suspension, though the Panel decided that it should be modified.  

Therefore the Court of Arbitration for Sport decides on 31 August 2017 that:  

1.) The appeal filed on 16 February 2017 against the Decision of the FIS Doping Panel regarding Provisional Measures in the matter of Mr. Alexey Petukhov, dated 6 February 2017, is partially upheld.

2.) The Decision of the FIS Doping Panel dated 6 February 2017 is amended as follows:

The Optional Provisional Suspension is maintained until 31 October 2017, after which such suspension shall lapse and Mr. Alexey Petukhov shall, in the absence of any anti-doping rule violation sanction having been assessed against him, be restored to the status quo ante prevailing at the time of the suspension’s imposition.

3.) All other elements of the Decision of the FIS Doping Panel dated 6 February 2017 are confirmed.

4.) The International Ski Federation may, on or after 1 November 2017, re-impose an Optional Provisional Suspension in accordance with the FIS Anti-Doping Rules if the facts and circumstances so merit. Such suspension shall be subject to appeal in accordance with Article 13.7.1 of the FIS Anti-Doping Rules.

5.) (…).

6.) (…).

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

CAS 2016/A/4770 Margarita Goncharova et al. v. International Paralympic Committee (IPC)

• Paralympics
  
• Eligibility of paralympic athletes for the Rio 2016 Paralympic Games
  
• Principle of competence-competence
  
• Incompetence of CAS resulting of an absence of arbitration
• agreement between the relevant parties

1. According to art. 186 of the Swiss Private International Law (PILA), CAS has the power to decide on its own jurisdiction. If it makes an error in so doing then art. 190(2) of the PILA confers a right of appeal to the Swiss Federal Tribunal.

2. CAS is incompetent to deal with an appeal lodged by a Paralympic athlete against an International Paralympic Committee (IPC)’s decision rejecting to exercise its discretion to enter said athlete as “neutral” athlete in the Rio 2016 Paralympic Games. Paralympic athletes only become bound by the arbitration agreement contained in art. 2.8 of the IPC Handbook if and when, having submitted their respective applications for accreditation, they are eligible to compete or participate in the Paralympic Games.

On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the McLaren Report) describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games. Also Professor McLaren provided CAS a sworn affidavit in this case. 

By letter the International Paralympic Committee (IPC) notified on 22 July 2016 the Russian Paralympic Committee (RPC) that it had opened suspension proceedings against it, based on a list of seven, non-exhaustive facts that it believed were established according to the McLaren Report. 

After deliberations between the IPC and the RPC about the suspension proceedings the IPC decided on 7 August 2016 to suspend the membership of the RPC. As a consequence of the suspension the Russian paralympic athletes were excluded for the Rio 2016 Paralympic Games. 

On 15 August 2016 the RPC appealed the IPC decision of 7 August with the Court of Arbitration for Sport (CAS). However the CAS Panel decided on 30 August 2016 (CAS 2016/A/4745) to dismiss the RPC appeal and to confirm the IPC decision of 7 August 2016. Next the RPC appealed the CAS decision of 30 August 2016 with the Swiss Federal Court, however the Court rejects the RPC’s arguments and decided on 3 April 2017 to dismiss the RPC appeal. 

All 34 Appellants in this case are Russian para-athletes of international level who are affiliated to the Russian Paralympic Committee (RPC).

Following the aforementioned events the IPC received approximately 227 individual athlete requests from Russian athletes to be entered as such neutral athletes, including requests, from each of the 34 Russian Para-athletes. None of those requests were received prior to 25 August 2016 and, as the Rio Paralympics were scheduled to start on 7 September 2016, those applications had to be considered under considerable time pressure. 

On 31 August 2016 the IPC submitted to the 34 Para-athletes that it refused to exercise its “discretion” to enter each of them as a “neutral” athlete in the Rio 2016 Paralympic Games. On the same day the 34 Russian Para-athletes appealed the IPC refusal of their request with the Court of Arbitration for Sport.

Applying the relevant legal principles to the dealings between the parties, a majority of the Panel concludes that it has no jurisdiction to hear or determine these appeals. In these circumstances, it is unnecessary and inappropriate for the Panel to express any views upon the issues of mootness or the “merits” of the appeal.

Therefore the Court of Arbitration for Sport decides on 20 October 2017 that:

1.) CAS has no jurisdiction to deal with the appeal filed on 31 August 2016 by Margarita Goncharova and the 33 other people listed in the Schedule hereto.
2.) (…).
3.) (…).
4.) All other motions or prayers for relief are dismissed.