Doping is fundamentally contrary to the spirit of sport

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ANADO WORKSHOP Cape Town November 2006 Even
More Doping Tribunal Decisions Even More
Lessons Learned Joseph de Pencier Director
Sport Services/ General Counsel
www.cces.ca
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Outline of Presentation

• General Observations
• Strict Liability
• Whereabouts Failure/Missed Tests
• Sample Analysis
• Specified Substances
• Exceptional Circumstances
• Sanctions
• Rights of Other Competitors
• Useful Websites

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General Observations

• Consistent tribunal decisions fundamental to the
  core purposes of the World Anti-Doping Code
• Tribunal consistency depends on acknowledging and
  adopting relevant decisions
• Most tribunals dont yet know the relevant
  decisions
• Foreign decisions are as good as domestic
  ones
• Use relevant decisions before the hearing to
  negotiate acknowledgment of the violation,
  acceptance of the sanction and waiver of the
  hearing
• Share the good, the bad and especially the ugly
• Take special care to get it right in the early
  hearings

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Strict Liability
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Strict Liability

• Ribero (CAS 2005/A/958)
• While a small quantity of cocaine has no
  enhancing effect on performance, given the
  principle of strict liability, the absence of a
  doping effect does not excuse the athlete
• Decision imposed period of suspension (six
  months) that does not comply with Code
• consequences of suspension differ from sport to
  sport
• football a more sensitive discipline in terms
  of career
• number of competitions, financial interests and
  competition for places in select competitions
  extreme
• first years of footballers career decisive in
  establishing capacity to play at highest level
  and gain selection for top competitions

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Whereabouts Failures/Missed Tests
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Whereabouts Failures/Missed Tests

• Ohuruogo (UK Athletics Disc. Comm. Sept. 2006)
• Athlete inconsistent in notifying ADO of numerous
  schedule and therefore location changes, some due
  to coachs schedule changes, some due to
  treatment for injury
• Athletes conduct more haphazard than deliberate
• This is a most stringent regime, which penalizes
  the merely inefficient with the aim of deterring
  and detecting the small minority who might be
  tempted to take drugs to enhance their
  competitive performance.
• 1 year suspension (application of IAAF rule)
  instead of the 3 months the tribunal would have
  preferred to impose

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Whereabouts Failures/Missed Tests

• Mortenson (AAA-CAS 30 190 00405 06)
• Failure to file whereabouts information for four
  consecutive quarters, failure to provide
  explanations for failures
• Plus a missed test
• 2 year suspension
• Tribunal rejected claim that athlete considered
  himself semi-retired and not competing
• He took no formal steps to retire, was racing
  locally and against other athletes in the OOC
  testing pool
• In other cases, retirement has been abused to
  avoid testing

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Sample Analysis
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Sample Analysis

• Hellebuyck (CAS 2005/A/831)
• Rejects challenge to EPO test on various
  scientific grounds
• No evidence to establish a false positive
• Forde (CAS 2006/A/1057)
• Rejects challenge to IRMS test (confirming
  testosterone) because no evidence presented to
  substantiate claims of inconsistencies in testing
  processes, errors in transmitting electronic data
  to paper, inaccuracies of reporting procedures

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Sample Analysis

• Sailor (Australian Rugby Union Judicial Comm.
  2006)
• Adverse analytical finding from in-competition
  test 4 days after alleged ingestion of cocaine
• Athlete argued that his use of cocaine four days
  before the competition was out-of-competition
  and not in-competition
• There is no reference in the expressions Doping
  Control or In Competition to the time at which
  the drug was ingested by the athlete. Whether
  Sailor took the drug one hour or 10 hours of 100
  hours before the game is entirely irrelevant to
  the definition of those terms, and their meaning
  and usage All that is required is that the
  metabolite is present in the sample.

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Specified Substances
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Specified Substances

• Boyle (SDRCC DT 06 0040)
• 1 year suspension for ephedrine
• Athlete could not prove source (suggested it
  might have been an herbal tea given to her by a
  friend)
• Follows Faric (CAS) and Vadym (IRB Judicial
  Panel) in not accepting account of how the
  specified substance had been ingested but
  nevertheless accepting no intent to enhance
  performance (even though finding athlete foolish
  and careless in failing to check products
  including supplements)

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Exceptional circumstances
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Exceptional circumstances

• Harris (AAA-CAS 30 190 01114 05)
• Athlete prescribed medicinal dexedrine for
  Attention Deficit Disorder without a proper TUE
• Approval from university authorities to use
  medication for university sport gave rise to
  athletes mistaken believe that he had the
  approval to use a prohibited substance for
  national/international competition
• No significant fault or negligence and 2 year
  suspension reduced to 1 year

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Exceptional circumstances

• Hartman (AAA-CAS 30 190 00900 05)
• Athlete prescribed testosterone for disability
  (pituitary gland malfunction due to a head
  injury) without a TUE
• Tribunal finds diagnosis of disability
  speculative (no evidence of head injury and
  questionable evidence of pituitary malfunction)
  and administration of testosterone medically
  unjustifiable no exceptional circumstances

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Exceptional circumstances

• Pobyedonostev (CAS 2005/A/990)
• While unconscious in hospital emergency room, ice
  hockey player treated with retabolil (nandrolone)
  for heart stoppage due to injury during match
• Six weeks later sufficiently recovered to play
  for Ukraine in international match against Sweden
  
• Treatment while unconscious (athlete had no
  control) deemed an exceptional circumstance 2
  year suspension overturned
• Tribunal rejected argument that athlete had a
  duty to afterwards gather information on
  treatment in hospital, advise team doctors of
  details and seek retroactive TUE

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Exceptional circumstances

• Canas (CAS 2005/A/951)
• Tennis player tested positive for diuretic from
  medication received from tournament medical
  personnel but intended for another player
• Reliance on tournament medical personnel gives
  rise to no significant fault or negligence to a
  degree and 2 year suspension reduced to 15 months
• Full 1 year reduction not granted because athlete
  took medication without reviewing contents,
  failed to list on doping control form, and as an
  experienced athlete active on Player Council
  aware of the risks of ingesting unknown substances

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Exceptional circumstances

• Munoz Fernandez (CAS 2005/A/872)
• Cyclist tested positive for EPO
• Claimed given recuperative substances by team
  doctor
• Claim of exceptional circumstances rejected
• it is not open to an athlete simply to say I
  took what I was given by the doctor, who (sic) I
  trusted.
• Athletes must ask to be informed of contents of
  medicines, must ask if they contain prohibited
  substances and obtain written confirmation of
  that from the doctor

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Sanctions
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Sanctions

• Morunga (NZSDT 13/06)
• Second violation for same specified substance
  (cannabis) first violation received 2 month
  suspension
• While no intent to enhance performance, previous
  violation a clear warning therefore 2 year
  suspension
• Forde (CAS 2006/A/1057)
• Second violation (for testosterone) first
  violation for specified substance (ephedrine)
• 2 year 2 month suspension (from range of minimum
  of 2 years to maximum of 3 years) given
  circumstances of first violation and its mild
  sanction (warning)

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Rights of Other Competitors
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Rights of Other Competitors

• Ekimov (CAS 2004/A/748)
• Challenge by silver medalist to IOC decision not
  to pursue alleged doping violation by gold
  medalist (Hamilton) at Athens Olympic Games
• No authority in World Anti-Doping Code or in IOC
  Anti-Doping Rules giving CAS the authority to
  adjudicate on a competitors challenge to a
  decision not to pursue a possible case of doping
  no standing
• Code Art. 13.2.3 only gives the Athlete or other
  person who is the subject of the decision right
  of appeal to CAS and IOC Anti-Doping Rules
  exclude standing to appeal by athletes who might
  benefit from having another competitor
  disqualified

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Useful websites

• ANADO (www.anti-doping.no/anado)
• National and International Doping Decisions,
  Vols. 1 and 2
• Court of Arbitration for Sport (www.tas-cas.org)
• Check weekly and in both English and French
• New Zealand Sport Dispute Tribunal
  (www.sportdisputes.org.nz)
• American Arbitration Association
  (www.usantidoping.org/what/management/arbitration.
  aspx)
• Sport Dispute Resolution Centre of Canada
  (www.adrsportred.ca)
• FINA (Swimming) (www.fina.org/doping/doping.htm)
• IRB (Rugby) (www.irb.com/playing/antidoping/anti
  dopingarchive.htm)
• Association of Tennis Professionals
  (www.atptennis.com/en/antidoping/info_warnings.asp
  )

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Your experiences?