Doping is fundamentally contrary to the spirit of sport

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

• General Observations
• Similar Substances
• Refusals
• Analytical Techniques
• Specified Substances
• Health/Start Checks
• Exceptional Circumstances
• Proportionality
• Evidence
• Costs
• Useful Websites

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Building Legal Vocabulary

• Intaxication drunk with happiness to get tax
  refund, until you realize it was your money in
  the first place
• Cashtration the act of buying a house, which
  renders you financially impotent indefinitely
• Giraffiti vandalism spray-painted very, very
  high
• Sarchasm the gulf between the author of
  sarcastic wit and the person who doesnt get it
• Inoculatte to take coffee intravenously when you
  are running late
• Hipatitis terminal coolness
• Decafalon the grueling event of getting through
  the day consuming only things that are good for
  you

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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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Similar Substances
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Similar Substances

• Calle Williams (CAS 2005/A/726)
• The classification of a substance as having a
  similar chemical structure or similar
  pharmacological effect(s) requires similarity to
  one or more Listed substances (noting that
  stimulants as a whole not banned because
  nicotine, caffeine and pseudoephedrine not
  prohibited)
• Similar substance must also meet 2 of 3
  criteria for Prohibited List set out in Code Art.
  4.3
• While listing a substance on Prohibited List
  cannot be challenged (Code Art. 4.3.3), that
  provision is silent on determinations that a
  substance is similar to a listed substance and
  therefore, such determinations may be challenged
  (or too much responsibility to WADA alone)

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Similar Substances

• Dubin (CAS 2005/A/834)
• Stimulant Propylhexedrine in epilepsy medication
  Maliasin found in sample of Paralympian
• Propylhexedrine specifically mentioned in 2003
  Prohibited List but not in 2004 Prohibited List
• No TUE requested or granted
• CAS finds that Propylhexedrine has similar
  chemical structure or similar pharmacological
  effect(s) to stimulants and in effect accepts
  IPC argument that Prohibited List stimulant
  category an open list (as opposed to a closed
  list)

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Similar Substances

• Chambers (UK Athletics Disc. Committee Feb 2004)
• Older language chemically or pharmacologically
  related much more flexible doping offence
  because clear evidence designer steroid THG
  pharmacologically related to prohibited
  substance gestrinone

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Refusals
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Refusals

• Fazekas (CAS 2004/A/714)
• Alleged aggressive conduct of Athens Olympic
  doping control staff, even if proven, not
  compelling justification for athletes decision
  to discontinue sample collection procedure by
  refusing to complete partial sample procedure at
  Athens Olympic Polyclinic

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Analytical Techniques
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Analytical Techniques

• Hamilton (CAS 2005/A/884)
• Rejects challenge to homologous blood transfusion
  test
• Methodology published in peer-reviewed journals,
  properly validated by three WADA-accredited labs,
  complied with lab-specific ISO 17025
  certification
• Note efforts by at least three labs to disclose
  documents as appellant searched for every
  possible sign of scientific debate about the
  validity and reliability of the analytical
  technique

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Specified Substances
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Specified Substances

• Jacobsen (FINA Doping Panel 2/04)
• warning reprimand for prednisone and
  prednisolone where team doctor administered wrong
  medication to athlete
• Kowalczyk (CAS 2005/A/918)
• Original 1 year suspension overturned due to
  failure to apply specified substances rule
  however, 10 ½ month suspension (to date of
  decision) for use of glucocorticosteroid
  (retroactive TUE was refused and refusal not
  appealed) because athlete failed to inform
  herself of 2005 Prohibited List and failed to
  advise treating physician of the List even though
  NF did not provide athlete with proper
  anti-doping information

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Specified Substances

• Kolyshin (IRB 2005)
• Ukrainian athlete denied using cannabinoids and
  claimed that source could only be
  non-prescription medication purchased in pharmacy
  in Prague
• While Panel found likelihood of cannabinoids in
  non-prescription medication remote and
  unconvincing and lack of corroborating evidence
  troubling, nonetheless gave six months
  suspension because satisfied that there was no
  intention to enhance performance where very
  little of the alleged source medication used
  nearly a week before the match at which sample
  taken

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Health/Start Checks
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Health/Start Checks

• Sachenbacher (CAS OG 06/004)
• Elevated haemoglobin level (16.5 mg/ng in female
  athlete) from full field blood start check by
  FIS prior to Torino Olympic competition resulting
  in 5 day exclusion from competition to protect
  athletes health
• Panel rejected argument that athlete has
  naturally elevated Hb level noting that the
  reading was a four year high for the athlete (and
  previous applications for dispensation from Hb
  level had not been granted by FIS)
• Panel unwilling to substitute its views for those
  of medical experts who declined to grant the
  dispensation
• Panel defers to experts on Hb limit established
  by FIS

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Exceptional circumstances
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Exceptional circumstances

• Lund (CAS OG 06/001)
• Athlete has been using finasteride since 1999 and
  it became prohibited in 2005
• Athlete tested positive in domestic test and NADO
  gave warning and reprimand
• WADA appealed to CAS
• Plea of no fault or negligence could not stand as
  athlete admitted that he had failed to inform
  himself of the 2005 Prohibited List (Code Art.
  10.5.1)

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Exceptional circumstances

• Lund (CAS OG 06/001)
• Athlete always declared finasteride on doping
  control forms, even after the September 2004
  announcement that it would be banned as of
  January 1, 2005, and neither IF nor NADO alerted
  him to the danger -- Tribunal left with the
  uneasy feeling that Mr. Lund was badly served by
  the anti-doping organizations.
• Athlete found to bear no significant fault or
  negligence and suspended for only one year (and
  missed Olympic Games for which he had qualified)
  (Code Art. 10.5.2)
• Note that Tribunal declined to disqualify
  athletes results after the test as fairness
  requires otherwise (Code Art. 10.7)

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Exceptional circumstances

• Dubin (CAS 2005/A/834)
• Change to Prohibited List from 2003 to 2004
  (ambiguous listing/delisting of substances)
  without explanation from WADA sending out wrong
  signals to the athlete
• Athlete victim of the (sic) missing
  communication within the Anti-doping system
  therefore no fault or negligence on part of
  athlete cancellation of warning and reprimand
• However, due to strict liability, automatic
  disqualification of Paralympic results and return
  of silver medal stands

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Exceptional circumstances

• Robinson (SDRCC DT 2005)
• Athlete worked as bouncer at nightclub -- seized
  packet of white powder (as well as cannabis)
• Packet spilled 70 of contents in athletes
  pocket -- he did not realize it for several days
  and continued to wear the same pants including
  the day of the competition
• Powder never tested so not clear it was the
  source of the cocaine in the athletes sample
• No exceptional circumstances as athlete failed to
  exercise appropriate care by not taking
  precautions to avoid contact with a prohibited
  substance and not making inquiries about impact
  of exposure to powder

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Proportionality
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Proportionality

• Hondo (CAS 2006)
• In competition UCI control March 2 negative, but
  controls March 3/4 positive for low level of a
  stimulant (Carphedon)
• Code (and UCI implementation of Code) clearly
  means to set strong and common penalties for
  doping and relaxing penalties for reasons other
  than those provided in the Code endangers the
  effectiveness and harmonization of the Codes
  sanctions
• Given a coherent and complete system of
  sanctions, proportionality will not apply unless
  the case involves a violation with a range of
  sanctions (such as a case involving a specified
  substance with evidence of no intent to enhance
  performance)

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Evidence
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Evidence

• Fazekas (CAS 2004/A/714)
• De novo proceedings before CAS, with full
  opportunity to present all evidence, cures any
  violation of due process that may have occurred
  in the prior proceedings
• Panel refused to consider the written statements
  of witnesses who failed to appear at the hearing.
  
• Hamilton (CAS O2005/A/884)
• Panel expects full and fair referral to factual
  record, not reference to isolated facts out of
  context giving incomplete account of events or
  views

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Costs
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Costs

• Lund (CAS OG 06/001)
• Panel refuses to award costs to athlete but does
  not award costs against him (even though his
  sanction was increased from a reprimand and
  warning to a suspension)
• Fazekas (CAS 2004/A/714)
• CHF 20,000 costs awarded against the athlete due
  to the outcome, and due to the conduct and
  financial resources of the parties (IOC had
  requested CHF 40,000)

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Costs

• Dubin (CAS 2005/A/834)
• Appellant athlete unsuccessful but IPC has to
  refund athletes CAS Court Office fee due to
  athletes invidious and unfortunate situation
  (which was not caused by the IPC)
• Hamilton (CAS 2005/A/884)
• Separate cost award forthcoming (exchanges of
  written submissions just completed)

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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?