4 Brazilian swimmers had positive test results for Furosemide (a diuretic, on the prohibited list as a masking agent) at a Brazilian national swimming event (Maria Lenk) in May 2011. Each athlete accepted the A Test and waived the B sample analysis. The athletes had taken caffeine tablets, with the benefit of medical advice (caffeine is not a prohibited substance under the FINA Rules.) There was evidence from Mr Cielo (undisputed) that about 90% of elite male freestyle swimmers take caffeine at swimming events. The athletes, and team doctor, had taken extreme care in relation to the pharmacy, and taking of the caffeine tablets, without problem, for some months. At the Maria Lenk, in May 2011, however, all 4 had positive results. Ultimately, it was determined that the cause of the adverse test results was the contamination of the caffeine capsules by Furosemide. (There was evidence of an unusual, one-off, error, at the pharmacy.)

FINA agreed that the 2 pre-conditions for reduced penalty had been met:
1. that the athletes had established how the Specified Substance entered their bodies;
2. that the athletes had shown that the Specified Substance was not intended to enhance performance or mask the use of a performance enhancing substance.

The Tribunal concluded:
1. The taking of caffeine was to be treated as a “supplement” rather than a “medication”.
2. The degree of “fault” in this case was at the very lowest end of the spectrum contemplated by the FINA Rules/WADC. (It was difficult, the Tribunal concluded: “to see what, if anything, else the athletes could have done reasonably or practically to avoid the positive test results”.)
3. Under the FINA Rules/WADC, however, the defence of No Fault or Negligence was not available (see the detailed discussion of the relevant rules applying to this case).
4. Accordingly, the Tribunal concluded the appropriate sanction to be a Warning.
5. (In relation to 1 athlete, a previous sanction had been imposed. Rejecting an argument that a principle of proportionality ought to apply, the Tribunal imposed the minimum sanction of 1 year, and then, having regard to his waiving the B sample, exercised its discretion to start the 1 year from the date of his sample collection.)
 

110721-cielo-ors-v-cbda-no-significant-fault.pdf

Further, Ms Tong was told that requesting her B sample to be tested could result in antagonising the IJF, a delayed start to any suspension, and an increase on any ban, and suggested that co-operation might help her towards a possible return in time for the London 20101 Olympics (not possible, in fact, if she received a sanction greater than 6 months). Ms Tong insisted on the B sample being tested. (In fact, this request was never sent by the CJA to the IJF, and ultimately, on 14 November 2009, Ms Tong was convinced by the CJA to withdraw the request. In fact, the CJA had already written, a day earlier, to the IJF, withdrawing the request for testing of the B sample.) On 25 November 2009, the IJF nevertheless tested the B sample, which tested positive.

In October 2009, Ms Tong had written a draft letter to the IJF, which she sent to the CJA, advising that the only way clenbuterol might have entered her system was through eating contaminated meat at an informal BBQ with friends at a restaurant. The CJA did not send this letter to the IJF.

On 4 April 2010, without advising Ms Tong, the IJF imposed a 2 year ban. (Without Ms Tong’s knowledge, the CJA had agreed with the proposed ban at the time.)

Ms Tong eventually heard of her ban, on the internet, on 9 May 2010. On 19 June 2010, the CJA provided some (incomplete) documentation in relation to documents surrounding her positive clenbuterol test, and the IJF letter notifying the CJA of the 2 year ban.

At the Court of Arbitration for Sport hearing, the IJF did not participate. Ms Tong argued:
1. She did not knowingly ingest clenbuterol.
2. The lab testing her A sample used a machine that had not been calibrated for over 18 months, in violation of ISL standards.
3. She was not given any chance to be present/represented at the opening and testing of her B sample.
4. (Ms Tong initially argued that the concentration of clenbuterol fell below the lab’s testing protocol. This argument was later withdrawn.)
5. The IJF was guilty of repeated and serious failures to inform Ms Tong of her “essential procedural rights”. These failures were cumulatively so extreme as to invalidate the entire process (as per Varis v IBU and Tchachina v International Gymnastics Federation).
6. Alternatively, Ms Tong acted with “No Fault or Negligence”, or alternatively with “No Significant Fault or Negligence”.

The Tribunal agreed with Ms Tong that the IJF decision dated 4 April 2010 should be annulled on the grounds that was not given any chance to be present/represented at the opening and testing of her B sample.
 

110223-wen-tong-v-ijf-b-sample.pdf

101206-oliviera-v-usada-no-significant-fault.pdf

 

100616-ioc-v-anderson-ors-relay-teams-retain-medals.pdf

In that case, the Panel was persuaded by the following non-compliances: 

1. non-reproducibility of the results between the A and B samples (though in 1 instance, the Panel concluded, however, that there was sufficient qualitative, if not quantitative reproducibility);
2. failure of the Laboratory to properly record the “mid-stream” interruption and changes made in the sequencing of the vials for IRMS analysis, constituting a departure” from the ISL, in particular, in “cutting and pasting”/”manually re-constructing” the original Sequence List in such a manner that its deviation from the original would not be noticed, the laboratory analyst: “violated a fundamental safeguard which ensures transparency to the testing process and its authenticity”;
3. the Laboratory did not, at the time of the analysis, properly document the quality control procedures, in particular, the failure of the positive control and the use of the internal standards, in accordance with the the ISL standard;
4. the Laboratory failed to disclose, in the proceedings, its SOPs, despite several requests for information concerning alleged deficiencies in the Laboratory’s quality control and handling procedures;
5. the same analyst was involved in the testing of both the A and B samples.

The Tribunal concluded (repeating the important principle from Quigley and other CAS cases):

6.9 In the view of the Panel, both of the above provisions of the ISL (relating to the same analyst performing testing of the A and B sample)constitute mandatory procedural safeguards, the violation of which, independently of each other, justifies the annulment of the test results.

6.10 Doping is an offence which requires the application of strict rules. If an athlete is to be sanctioned solely on the basis of the provable presence of a prohibited substance in his body, it is his or her fundamental right to know that the Respondent, as the Testing Authority, including the WADA-accredited laboratory working with it, has strictly observed the mandatory safeguards.

6.11 Strict application of the rules is the quid pro quo for the imposition of a regime of strict liability for doping offenses. This fundamental rule which has formed the anchor for CAS rulings for more than two decades of anti-doping arbitrations was laid down eloquently in USA Shooting & Q./ International Shooting Union already in 1995:

“The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule appliers must begin by being strict with themselves.”

6.12 The Panel wishes to emphasize that its decision should not be interpreted as an exoneration of the Athletes. The Panel is not declaring that the Appellants did not, prior to the competition, administer exogenous testosterone. The Panel is merely concluding that the Respondent has not been able to prove, to the comfortable satisfaction of the Panel, diligent adherence to the rules set out in the International Standard for Laboratories and the relevant Technical Documents.

(emphasis added)

 

devyatovskiy-tsikhan-v-ioc.pdf

 

100531-wada-v-valverdi.pdf

The Panel discussed the circumstances where an athlete’s negligence might be “significant”, referring to the substantial CAS jurisprudence. The Panel reasoned that a period of ineligibility could be reduced based on no significant fault or negligence only in cases where the circumstances were truly exceptional and not in the vast majority of cases (for instance, a reduced sanction based on “no significant fault or negligence” could be applied where the athlete established that the cause of the positive test was contamination in a common multiple vitamin purchased from a source with no connection to prohibited substances and the athlete exercised care in not taking other nutritional supplements). The fact that an adverse analytical finding was the result of the use of a contaminated nutritional supplement did not imply per se that the athlete’s negligence was “significant”.

The Panel concluded that Ms Hardy’s case was “truly exceptional”: Ms Hardy had personal conversations with the manufacturer about the supplements’ purity prior to taking them; Ms Hardy had been told by the manufacturer that its products were tested by an independent company for purity, and its website confirmed that, though only with respect to one of its products; the manufacturer’s website assured that its products were “formulated with quality ingredients”; Hardy had obtained the supplements directly from the manufacturer, not from an unknown source; the supplements Ms Hardy took were not labelled in a manner which might have raised suspicions; Ms Hardy took the same supplements for at least eight months prior to her positive doping control result; Ms Hardy had obtained an indemnity from the manufacturer with respect to its products; Ms Hardy had consulted with various swimming personnel, including the team nutritionist and the USOC sports psychologist, and her coach, about the quality of the the manufacturer’s products. In other words, Ms Hardy appeared to have purchased the supplements which caused the Adverse Analytical Finding from a source unrelated to prohibited substances, and exercised care in not taking other nutritional supplements.

The Panel noted that in determining the length of the sanction, the degree of negligence was relevant: in deciding the period of ineligibility in a range between one and two years, the Panel had to review the level of the athlete’s fault or negligence. The Panel concluded that, not in a significant measure, Ms Hardy was negligent: her Adverse Analytical Finding occurred years after that the risks connected to the use of nutritional supplements had first become known to athletes. Much information had been given and stringent warnings had been issued in this respect. The Panel concluded that the level of diligence due by an athlete had risen over the years; and the athlete’s behaviour should be considered with care, when assessing the measure of the reduction of the sanction he or she should receive. The Panel confirmed the 1 year sanction on Ms Hardy.

100521-wada-v-hardy-and-usada-no-significant-fault.pdf

In other new anti-doping measures announced today, AFL football operations manager Adrian Anderson said the league would also conduct extensive blood testing and profiling and freeze samples obtained from players for a period of up to eight years.

Anderson said the new measures were being taken to ensure the integrity of the sport was not threatened.

"Performance-enhancing drugs are a massive threat world-wide to sports and their integrity and we are determined to stay ahead of the game, that is why we are entering into this agreement," Anderson said.

ASADA acting chief executive Richard Ings said the new AFL deal contained every element his agency had wanted and set the example for other Australian sports.

"ASADA considers the AFL 2010 anti-doping program to be the gold standard of anti-doping programs in Australian sports," Ings said.

Anderson said the freezing of samples for future testing would give the league the ability to retrospectively penalise players who used drugs that were currently unable to be detected, once the testing technology became more advanced in future years.

He said it was possible that the AFL could use that power to strip players of individual awards such as the Brownlow Medal or even to strip a club of a premiership if they were later found to have been using banned substances at the time.
 

Source: The Age 9 March 2010

The Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, dismissed the German's appeal against a ban imposed by the International Skating Union (ISU). The ban runs until February 2011.

Pechstein has never failed a drug test and denied doping. However, the ISU said she returned blood samples with abnormal levels, based on her historic blood passport values, at the World Allround Championships last season.  This is the first such case based on blood passport values.

In ruling on Pechstein's appeal, the three-man CAS Panel did not agree with Pechstein’s contention that the standard of proof must be very close to “proof beyond reasonable doubt” because of the seriousness of the allegation. In the Panel’s view, the seriousness of the allegations put forward by the ISU were “exactly the same seriousness as any other anti-doping case brought before the CAS and involving blood doping; nothing more, nothing less” [at 125].

On this basis, the Panel applied [at 123 – 136] the normal “comfortable satisfaction” standard provided under Artitcle 3.1 of the ISU ADR which states:

“The standard of proof shall be whether the ISU or its Member has established an Anti-Doping rule violation to the comfortable standard of the hearing panel bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond reasonable doubt”

This “comfortable satisfaction” test has been applied in many CAS cases concerning allegations of blood manipulation or other serious forms of doping, even prior to the WADA Code.
 

cas-final-award.pdf

australian-sports-anti-doping-authority-amendment-bill-2009.pdf,1253080005_australian-sports-anti-doping-authority-amendment-bill-2009-explanatory-memorandum.pdf

Volandri was found guilty by an independent Anti-Doping Tribunal convened under the 2008 Tennis Anti-Doping Programme to have committed a Doping Offence. The independent Tribunal found that a sample provided by Mr Volandri on 13 March 2008 at the Indian Wells tournament, California, USA, contained an asthma drug, salbutamol, at a concentration greater than 1,000 ng/ml.

The tribunal imposed a three month suspension on Volandri, commencing on 15 January 2009, despite evidence that after receiving the test result, Volandri immediately sent an explanation to the testing official manager stating that he had suffered a serious asthma attack just a few hours before the tournament.

The CAS rejected Volandri's appeal against the original tribunal's finding that he had committed a doping offence, but found that the sanction should be a warning and no ban (not a 3 month ban, as the original tribunal had imposed), and disqualification of only one event's results (not any subsequent results, as the original tribunal had imposed). Volandri was therefore reinstated immediately.

090512-itf-v-filippo-asthma-reduced-penalty.pdf

After the decision, Busch also played in the 2008 International Ice Hockey Federation (IIHF) World Championship in Canada.

The World Anti-Doping Agency (WADA) filed an appeal against the DEB Pane's deicion with the ad-hoc CAS and requested inter alia that the court set aside the DEB Panel's deicion and sanction Busch with a two year suspension. WADA also filed an appeal with the CAS against the IIHF decision dated 7 May 2008 by which Busch was declared eligible to compete at the 2008 IIHF World Championship.

The CAS Panel set aside the IIHF decision of 7 May 2008, finding that Busch had internationally refused to submit to sample collection pursuant to the IIHF statutes and disciplinary regulations which would justify a two year suspension. The CAS also stated that a reduction of the period of ineligibility is not possible according to the WADA Code as it only covers the issue of "failing to submit a sample collection" but not a "refusal". WADA's other appeal against the ad-hoc decision was declared inadmissible due to lack of jurisdiction of the CAS.

090623-wada-v-iihf-and-busch-test-refusal.pdf

sports-notes.pdf

Manly footballer Brett Stewart's drunken antics last week saw him charged with sexual assault and suspended from the competition until round five.

According to Australian Sponsorship News, the Bulldogs – formerly known as the Canterbury-Bankstown Bulldogs - claim it lost out on two sponsorship deals since the publicity broke.

Bulldogs general manager Dirk Melton said the club had been close to signing deals with two "blue chip" companies.

"They would have not only provided the Bulldogs with great dollars but more importantly for us at the moment, they would have provided great equity growth in our brand," Melton said.

Both are believed to have cited concerns over the recent NRL publicity as a reason for withdrawing from negotiations.

 

The association has been working on draft image-rights agreements for a number of months and the idea is set to be made public later this year. "It's about changing the whole culture," said the JA's chief executive, Josh Apiafi.

Most jockeys get by on £144 per race. Typically, once race fees, agents' payments, taxes and expenses have been taken into account, a trip to a meet for only one ride will earn a jockey a net wage of £6. Only with multiple rides on a day does it become worthwhile, and careers can be short: Flat jockeys often retire at the age of 33, jump riders at 30.

Tony McCoy and Timmy Murphy are the only jump jockeys earning significant retainers – the former with JP McManus, the latter with David Johnson. But, unlike players in sports such as football, rugby and cricket, they receive nothing from the use of their image in advertising billboards or on television commercials.

Jockeys are also set to receive better promotion and the sport is willing to remunerate them properly for media appearances they currently eschew in favour of the 2.15 at Uttoxeter.

 

Key changes in the WADA code 2009:

Increased Sanctions: “Aggravating circumstances”
The 2009 Code provides for an increase of sanctions in doping cases involving aggravating circumstances eg being part of a large doping scheme, the athlete having used multiple prohibited substances or a prohibited substance on multiple occasions, or the athlete engaging in deceptive or obstructing conduct to avoid the detection or adjudication of an anti-doping rule violation. Aggravating circumstances also include situations in which a normal individual would be likely to enjoy the performance-enhancing effects of the anti-doping rule violation(s) beyond the otherwise applicable period of ineligibility.

Sanction Flexibility
The 2009 Code provides for enhanced sanctions, (eg aggravating circumstances) and for lessened sanctions where the athlete can establish that the substance involved was “not intended to enhance performance”.

“Specified Substances”
2009 Code provides that all prohibited substances, except substances in the classes of
anabolic agents and hormones and those stimulants so identified on the Prohibited List, shall be “specified substances” for the purposes of sanctions. Where an athlete can establish how a specified substance entered his/her body or came into his/her possession and that such specified substance was not intended to enhance sport performance, the sanction may be reduced to a reprimand and no period of ineligibility at a minimum, and a 2-year ban at a maximum.

Increased Incentives to “provide assistance” / “come forward”
Incentives to come forward have increased. The potential extent of the suspension of an ineligibility period (one-half of the otherwise applicable ineligibility period in the 2003 Code) has been increased to three-quarters of the otherwise applicable ineligibility period in the 2009 Code, for “substantial assistance” to an anti-doping organization, criminal authority or professional disciplinary body which results in the anti-doping organization discovering or establishing an anti-doping rule violation by another person or which results in a criminal or disciplinary body discovering a criminal offence or the breach of professional rules by another person.

Where an athlete or other person voluntarily admits the commission of an anti-doping rule violation prior to receiving notice of a sample collection which could establish an anti-doping rule violation, or in circumstances where no anti-doping organization is aware that an anti-doping rule violation might have been committed, the period of ineligibility may be reduced, but not below one-half of the period of ineligibility otherwise applicable.

Financial Sanctions
The 2009 Code does not preclude anti-doping organizations from providing, in their own rules, for financial sanctions against cheaters, in addition to the period of ineligibility or other sanction imposed.

Accelerated Management of Doping Cases
The 2009 Code addresses delays and calls for the acceleration of the process and management of doping cases (e.g., reduced period between analysis of the A- and B-samples, and mandatory provisional suspension following an adverse analytical finding through analysis of the A-sample for non-specified substances).

WADA’s Right of Appeal
The 2009 Code also clarifies WADA’s right to appeal directly to the Court of Arbitration for Sport a case in which an anti-doping organization fails to render a decision with respect to whether an anti-doping rule violation was committed within a reasonable deadline, as if the anti-doping organization had rendered a decision finding no anti-doping rule violation.