CAS 2017/A/4968 Mr Alexander Legkov v. International Ski Federation (FIS) On 18 July 2016 and on 9 December 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent reports (the McLaren Reports) describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games. Names of individual athletes in the McLaren Report were encrypted by its author prior to publication. By confidential letter dated 9 December 2016, Professor McLaren stated to the International Ski Federation (FIS) that one sample indicative of potential tampering matched the Russian Athlete Alexander Legkov. Professor McLaren further confirmed that the Athlete appeared underneath the code A0467 in his report. Acting on this information, on 22 December 2016, the Disciplinary Commission of the IOC notified FIS that it was opening an investigation against the Appellant. It noted that, of three urine samples and one blood sample collected and analyzed by the Sochi Laboratory, one of the Athlete's B-samples contained marks indicative of tampering. On 22 December 2016 the FIS Doping Panel notified the Athlete that a provisional suspension was ordered with immediate effect pending determination of whether or not he had committed and ADRV on basis of allegations described by Professor McLaren. At the request of the Athlete the IOC informed him in January 2017 that: "At this stage, the IOC considers that the alleged anti-doping rule violation is, without limitation, "tampering or attempted tampering with any part of Doping Control" pursuant to Art. 2 of The International Olympic Committee Anti-Doping Rules applicable to the XXII Olympic Games in Sochi, in 2014 and the concerned samples have been collected in the context [of the] Olympic Games." On 25 January 2017 the FIS Doping Panel decides to uphold the imposed provisional suspension pending the findings of the IOC investigations (the Oswald Commission). Hereafter on 30 January 2017 the Athlete appealed the FIS decision with the Court of Arbitration for Sport (CAS). The Athlete submited 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 the 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 the FIS falls short of its burden and that the Optional Provisional Suspension must be lifted. FIS maintains 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 CAS Panel assessed the provisional suspension against the evidence filed in this case. Accordingly, the Panel asks whether the FIS has demonstrated that, based on the evidence before it, a "reasonable possibility" existed that the Athlete committed an ADRV. It does so de novo in light of Articles 13.1.l and 13.1.2 of the FIS ADR. The Panel concludes that the evidence establishes a "reasonable possibility" of an ADRV in the Athlete's case. It further considers that the Athlete has not demonstrated with satisfaction the fulfillment of criteria necessary to lift the suspension, though the Panel has decided that it should be modified. De Panel notes that for some athletes, the McLaren Report unveiled a relatively comprehensive suite of documentary evidence linking them to the Russian Federation's circumvention of doping controls. In these appeals, the Panel is asked to draw inferences based on a small combination of evidence particularly symptoms of tampering observed on the Athlete's urine samples with his appearance in the Duchess List, which purports to explain why such tampering was necessary and to determine whether such inferences meet the legal standards contemplated by the FIS ADR. Although the Athlete has strongly challenged the credibility of Dr. Rodchenkov, the Panel observes first of all that the testimony of persons guilty of wrongdoing themselves can be decisive in establishing the guilt of others, and that the extent of their own culpability may even add to their value, since it is likely to be the result of their extensive involvement, at high levels, in the unlawfulness being examined. Secondly, the Panel notes that Professor McLaren, after intensive inquiries, including an experimental verification that a previously unheard-of method of manipulation described by Dr. Rodchenkov was indeed feasible, came to the conclusion that he was a credible witness. It may be that an examination of individual cases, such as the present ones, will lean to exoneration of the Athlete on the grounds that, irrespective of this troubling background, the evidence ultimately uncovered does not meet the standard of proof that is necessary for sanctions to be pronounced (i.e., that irrespective of the proof of systemic wrongdoing, individual guilt in particular cases is not established to that standard). But at this stage, the context just described leads the Panel to the conclusion that individual connecting factors and inferences which might emerge meet the test of "reasonable possibility" of success, and therefore justify the provisional suspension. The Athlete has not shown cause to lift the suspension pending the conclusions of the Oswald Commission. At the same time the Panel is sensitive to the concern of the Athlete who stands under the shadow of a suspension undefined in length (which must be balanced, inter alia, against the legitimate interest of other athletes not to find themselves competing against athletes who may well be cheaters). The Panel appreciates the unusual magnitude and complexity of cases awaiting Mr. Oswald's attention. It cannot however endorse an indefinite and indetenninable suspension as proportionate. Noting the Athlete's reasonable entitlement to legal certainty, the Panel accordingly deems it appropriate and just that the current provisional suspension expire after 31 October 2017, at which time it will be for FIS to consider whether or not to seek a further suspension justified by new developments and within the framework of the FIS ADR. This approach is entirely in accord with Article 220.127.116.11, particularly point (c), as in the Panel's view to impose a longer suspension in all the present circumstances would be clearly unfair. Therefore the Court of Arbitration for Sport decides on 31 August 2017 that: 1.) The appeal filed on 30 January 2017 against the Decision of the FIS Doping Panel regarding Provisional Measures in the matter of Mr. Alexander Legkov, dated 25 January 2017, is partially upheld. 2.) The Decision of the FIS Doping Panel dated 25 January 2017 is amended as follows: The Optional Provisional Suspension is maintained until 31 October 2017, after which such suspension shall lapse and Mr. Alexander Legkov shall, in the absence of any antidoping rule violation sanction having been assessed against him, be restored to the status qua ante prevailing at the time of the suspension's imposition. 3.) All other elements of the Decision of the FIS Doping Panel dated 25 January 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.) This award is rendered without costs, except for the CAS Court Office fee of CHF 1,000, which was paid by Mr. Alexander Legkov and is retained by the CAS. 6.) Each party shall bear its own costs and other expenses incurred in connection with this arbitration. 7.) All other motions or prayers for relief are dismissed.
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Swiss Federal Court 4A_222_2015 Johan Bruyneel vs USADA & WADA Related cases: AAA No. 77 190 00225 12 USADA vs Johan Bruyneel, Pedro Celaya Lezama & José Martí Martí April 21, 2014 CAS 2013_A_3285 Johan Bruyneel vs USADA May 13, 2014 Mr. Bruyneel served as a team director for the U.S. Postal Service team between 1999 and 2004 and the Discovery Channel team between 2005 and 2007. In June 2012, the United States Anti-Doping Agency (USADA) informed Johan Bruyneel, Mr. Lance Armstrong and others that a formal action was opened based on evidence that each party had engaged in anti-doping violations under the UCI Rules from 1998 to 2012, the World Anti-Doping Code (WADC) from inception to 2012 and the USADA Protocol for Olympic and Paralympic Movement Testing from inception to 2012. Johan Bruyneel, Pedro Celay Lezama (the team physician), José Martí Martí (the team trainer) were charged of possession, trafficking, administration and to have assisted, encouraged, and facilitated the use of prohibited doping agents to the professional cyclists on these U.S.-based teams. The banned doping agents and methods alleged to have been administered in this case: erythropoietin, hGH, blood transfusions, cortisone, testosterone and/or saline, plasma or glycerol infusions. On 21 April 2014 the Panel of the American Court of Arbitration (AAA) in its final Award decided to impose a 10 year period of ineligibility on Johan Bruyneel starting from 12 June 2012 and continuing through and including 11 June 2022. In May 2014 Johan Bruyneel, Pedro Celay Lezama, José Martí Martí and the World Anti-Doping Agency (WADA) appealed the AAA Award of 21 April 2014 with the Court of Arbitration for Sport (CAS). Bruyneel and the others asserted with arguments that USADA and the AAA Court had no jurisdiction and they requested the CAS Panel to annul the AAA Award of 21 April 2014. However on 11 March 2015 CAS submitted a partial decision stating that the CAS Panel had decided that USADA had results management jurisdiction and the AAA the disciplinary authority over the Appellants. Hereafter in April 2015 Bruyneel appealed this CAS decision of 11 March 2015 with the Swiss Federal Court. Bruyneel requested the Court to set aside this CAS decision, to annul the AAA Court Award asserting that the CAS Panel and AAA Court have no jurisdiction. The Swiss Court concludes that the submission of 11 March 2015 was a simple letter and a partial decision about a substantive matter regarding the jurisdiction of USADA and the AAA. It was in fact a pre-judicial award and final settlement only about this specific matter, pending the final Award. The CAS Panel has not rendered a real partial award in the technical sense. The Swiss Federal court decides on 28 January 2016 to dismiss the appeal because the CAS Panel submission of 11 March 2015 did not settle the matter of CAS jurisdiction as contended by Bruyneel.
Swiss Federal Court 4A_692_2016 WADA vs Kristen Shaldybin & USADA In June 2016 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the gymnastics Athlete Kristen Shaldybin after her sample tested positive for the prohibited substance hydrochlorothiazide. However on 14 July 2016 USADA announced that the Athlete accepted the finding of No Fault for the reported ADRV. USADA concluded on a balance of probabilities that the Athlete unknowingly ingested the substance through tapwater obtained from the municipal water supply. Therefore no sanction was imposed on the Athlete. In August 2016 the World Anti-Doping Agency (WADA) filed an appeal with the Court of Arbitration for Sport (CAS) against this USADA award. However USADA and the Athlete indicated in September 2016 that they refused to pay for the costs in advance and CAS requested WADA to pay for full costs. After deliberations with WADA the President of the CAS Appeals Arbitration Division decided on 11 November 2016 to terminate the CAS appeal because WADA had failed to settle full payment of the costs in advance before the deadline of 20 September 2016. The case CAS 2016/A/4743 WADA vs Kristen Shaldybin & USADA was closed and deleted from the CAS roll. Hereafter WADA appealed the CAS award decision of 11 November 2016 with the Swiss Federal Court. WADA contended that CAS acted excessively formalistic in following the CAS Code and in terminating the appeal proceedings. As a result WADA asserted that their right to be heard was violated including infringement of the Swiss Ordre Public. WADA did not dispute the late payment of the costs in advance. CAS submitted that WADA each year filed about a dosen appeals with CAS and it occurred frequently that requests were made to WADA to fulfil full costs in advance. WADA can not claim any surprise or confusion in this case. The Swiss Federal Court concludes that CAS didn’t acted excessively and was entitled to cease the proceeding due to WADA’s failure for payment within the time limit. Therefore the Swiss Federal Court decides on 20 April 2017 to dismiss the WADA appeal.
Swiss Federal Court 4A_80_2017 Alexei Lovchev vs IWF Related case CAS 2016_A_4632 Alexei Lovchev vs IWF December 1, 2016 On 13 May 2016 the International Weightlifting Federation (IWF) Panel decided to impose a 4 year period of ineligibility on the Russian Athlete Alexei Lovchev after his A sample tested positive for the prohibited substance ipamorelin in a very low concentration. Also later conducted analysis showed the presence of the substance ipamoreling in the Athlete’s B sample. In June 2016 the Athlete appealed the IWF Panel decision of 13 May 2016 with the Court of Arbitration for Sport (CAS). The Athlete argued that the IWF had failed to establish to the standard of comfortable satisfaction that the substance in his sample was ipamorelin as distinct from some other benign substance. The CAS Panel noted that there was, underlying the debate between the parties, a single (but decisive) question. Have the IWF proved to the standard of comfortable satisfaction pursuant to Article 2.1 IWF ADP that the substance found in the Appellant’s urine was Ipamorelin (or its metabolites) as distinct from some other (non-prohibited) substance? Because the Athlete previously was claiming that the Montreal Laboratory reported a false positive the Montreal Laboratory repeated the analysis showing again the presence of the substance ipamoreling in the Athlete’s B sample. The CAS Panel observed that the main thrust of the Athlete’s argument was that this matter could and should be resolved one way or another by a further analysis bearing on the detected substance’s ion structure. The Panel noted that the Athlete appears to have sought various and inconsistent explanations for the AAF reported by the Montreal Laboratory supported by the testimony of three experts. Therefore the Court of Arbitration for Sport decided on 1 December 2016 to dismiss the Athlete's appeal and to confirm the IWF decision of 13 May 2016. Hereafter the Athlete appealed the CAS decision with the Swiss Federal Court. The Athlete asserted that the CAS Panel breached his right to be heard, his right for equal treatment and his right for a fair trial as violation of the Swiss Ordre Public. The Athlete argued that the CAS decision was based on a false positive concentration in his samples for the prohibited substance ipamoreling. Also CAS rejected the Athlete’s request to conduct further analysis on his B-sample by the Montreal Laboratorium with another Testing Method. The Swiss Federal Court considers the Athlete’s arguments and concludes that he failed to demonstrate that the CAS decision was an infringement of the Ordre Public. Therefore the Swiss Federal Court decides on 25 July 2017 to dismiss the Athlete’s appeal.