CAS 2009/A/1870 World Anti-Doping Agency (WADA) v. Jessica Hardy & United States Anti-Doping Agency (USADA)

Related cases:

• AAA No. 77 190 00288 08 JENF USADA vs Jessica Hardy - Interim Award
  August 1, 2008
• AAA No. 77 190 00288 08 USADA vs Jessica Hardy
  May 30, 2009
• CAS 2011_O_2422 USOC vs IOC
  October 10, 2011
  
  

• Swimming
• Doping (Clenbuterol)
• Applicable law to the merits according to the principles of tempus regit actum and lex mitior
• Conditions for third parties to participate to a CAS procedure
• Provision granting a right to a third party to participate in the CAS proceedings
• Contaminated nutritional supplements and significant fault or negligence
• CAS review of a sanction imposed by a disciplinary body
• Negligence of an athlete with respect of the nutritional supplements
• Conditions for a Claimant to obtain a declaratory judgment

1. According to the principle “tempus regit actum”, new regulations do not apply retroactively to facts that occurred prior to their entry into force, but only for the future. However, according to the “lex mitior” principle, CAS Panels have the possibility to apply those rules subsequently entered into force which are more favourable to the athlete

2. In the CAS system a third entity can participate as a party to the arbitration proceedings already pending among other subjects in two situations, joinder or intervention, but subject to a common condition: that it agrees in writing to such participation or that it is bound by the same arbitration agreement binding the original parties to the dispute. The common condition is not satisfied if the third party has not agreed to participate in the arbitration, notwithstanding the opportunity to intervene granted by the Panel and if the same party is not bound by the same arbitration agreement binding the original parties to the dispute.

3. Under the FINA Rules, the IOC is given the right to appeal to CAS any decision rendered under the FINA Rules “where the decision may have an effect in relation to the Olympic Games, including decisions affecting eligibility for the Olympic Games”. Such provision grants a right of appeal to a subject that was not a party to the proceedings leading to the decision appealed against. Such provision, however, even if granting a right, does not create an obligation for the IOC to participate in the CAS proceedings: this obligation can rest only upon the IOC’s consent or a rule binding it – and the FINA Rules do not bind the IOC.

4. The fact that an adverse analytical finding is the result of the use of a contaminated nutritional supplement does not imply per se that the athlete’s negligence was “significant”. An athlete can avoid the risks associated with nutritional supplements by simply not taking them; but the use of a nutritional supplement “purchased from a source with no connection to prohibited substances, where the athlete exercised care in not taking other nutritional supplements” and the circumstances are “truly exceptional”, can give rise to “ordinary” fault or negligence and do not raise to the level of “significant” fault or negligence.

5. According to the CAS case law, the measure of the sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rules can be reviewed only when the sanction is evidently and grossly disproportionate to the offence.

6. An athlete’s behaviour is negligent if the Adverse Analytical Finding occurs years after that the risks connected to the use of nutritional supplements had first become known to athletes, since much information has been given and stringent warnings have been issued in this respect.

7. Swiss law subjects to stringent conditions the possibility for a Claimant to obtain from a Swiss court a declaratory judgment. Such conditions are also relevant in these arbitration proceedings, since Swiss law applies subsidiarily and Swiss law also defines the powers of adjudication of arbitration bodies having their seat in Switzerland. The prerequisites for a declaratory judgment are – in principle – threefold. The party seeking declaratory relief must show a legal interest to do so. The latter presupposes that the declaratory judgment is necessary to resolve a legal uncertainty that threatens the Claimant. A legal interest is missing if a declaratory judgment is insufficient or falls short of protecting the Claimant’s interests. Furthermore, the legal uncertainty must relate to the existence or non existence of a claim or a defined legal relationship between the parties to the dispute. Finally, there must be a certain urgency to resolve the uncertainty in order to protect the respective party’s right, i.e. there must be an immediate interest for solving the uncertainty now.

In July 2008 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the Athlete Jessica Hardy after her A and B samples tested positive for the prohibitied substance Clenbuterol.

Following an Interim Award of 1 August 2008 the North American Court of Arbitration for Sport Panel (AAA) considered the Athlete's negligence with the use of contaminated supplements and decided in a Final Award on 30 May 2009 to impose a 1 year period of ineligibility on the Athlete.

Hereafter in June 2009 WADA appealed this AAA Panel Final Award of 30 May 2009 with the Court of Arbitration for Sport (CAS). In this matter both WADA and FINA withdrew in June 2009 their other filed appeals (CAS 2009/A/1852 & CAS 2009/A/1853) against the previous issued AAA Interim Award of 1 August 2008.

The CAS Panel notes that the AAA Final Award is challenged in this arbitration under several perspectives: both parties, in fact, dispute the measure of the sanction imposed on Hardy. On one side, the WADA submited that the AAA Panel wrongly held Hardy to be entitled to a reduction in the sanction under FINA DC 10.5.2 and therefore requested that a second year of suspension be imposed on Hardy.

On the other side, the Athlete argued that the sanction imposed on her, taking into account the IOC Rules, is excessive, and therefore requested that the Panel either declares that the IOC Rule is inapplicable or reduces the sanction to six months.

The Panel finds that the measure of the sanction cannot be determined taking into account the IOC Rules. In particular, the Panel finds that its approach does not prevent the Athlete Hardy from getting judicial relief and does, therefore, not amount to a denial of access to justice.

The sanction of the ineligibility for one year is proportionate to the kind of misconduct and level of negligence found with the Athlete. The prior body, i.e. the AAA Panel, therefore, was correct in imposing it on Hardy.

Therefore on 21 May 2010 the Court of Arbitration for Sport decides:

1.) The appeal filed by the World Anti-Doping Agency against the AAA Final Award issued on 30 May 2009 is dismissed.

2.) (…)

3.) (…)

4.) All other prayers for relief are dismissed.

Detecting growth hormone abuse in athletes / Richard I.G. Holt. - (Analytical and Bioanalytical Chemistry 401 (2011) 2 (August); p. 449-462).

• PMID: 21590497.
• DOI: 10.1007/s00216-011-5068-2

Abstract

It is believed that athletes have been abusing growth hormone (GH) for its anabolic and lipolytic effects since the early 1980s, at least a decade before endocrinologists began to treat adults with GH deficiency. There is an on-going debate about whether GH is performance enhancing. Although many of the early studies were negative, more recent studies suggest that GH improves strength and sprint capacity, particularly when it is combined with anabolic steroids. Although use of GH is banned by the World Anti-Doping Agency (WADA), its detection remains challenging. Two approaches have been developed to detect GH abuse. The first is based on measurement of pituitary GH isoforms; after injection of recombinant human GH, which comprises solely the 22-kDa isoform, endogenous production is down-regulated leading to an increase in the 22-kDa isoform relative to other isoforms. The second is based on measurement of markers of GH action. Insulin-like growth factor-I (IGF-I) and N-terminal pro-peptide of type III collagen (P-III-NP) increase in response to GH administration in a dose-dependent manner. When combined with discriminant function analysis, use of these markers differentiates between individuals taking GH and placebo. Subsequent studies have shown that the test is applicable across different ethnicities and is unaffected by injury. WADA regulations state that when analytes are measured by immunoassay, two assays are needed. Final validation of the marker test is currently being undertaken with modern commercially available immunoassays to finalise the threshold values to be used to determine whether a doping offence has been committed.

TAS 2000/A/270 David Meca-Medina & Igor Majcen v/FINA

Related cases:

• CAS 1999/A/234 David Meca-Medina vs FINA
• TAS 99/A/234 David Meca-Medina vs FINA
• CAS 1999/A/235 Igor Majcen vs FINA
• TAS 99/A/235 Igor Majcen vs FINA

David Meca-Medina (hereafter Appellant 1) is affiliated with the Spanish Swimming Federation, member of FINA, the International Federation governing swimming which is domiciled in Switzerland. Igor Majcen (hereafter Appellant 2) is affiliated with the Slovenian Swimming Federation, also a member of FINA.

The Appellants were each suspended for four years ("the decision") by the FINA doping panel on 8th August 1999, because they had tested positive for metabolites of Nandrolone, specifically norandrosterone ("NA"), as a result of doping control in a competition test conducted on January 31, 1999, after both Appellants took part in a long distance World Cup race in Salvador di Bahia in Brazil finishing first and second respectively.

On August 8, 1999, the FINA Doping Panel issued two separate decisions (“the decisions”) concerning Appellant 1, on the one hand and Appellant 2, on the other hand. In both cases, the Appellants were sentenced to a four-year ban.
By determinations [TAS 99/A/234 & TAS 99/A/235] dated 29 February 2000, the Court of Arbitration for Sport rejected the original appeal by both Appellants against the decisions (“the original award”).

In this Appeal the Court of Arbitration for Sport decides on 1 May 2001:

1.) The appeal of each Appellant is allowed to the extent of substituting a sentence of two years suspension for one of four years (such period to take account of any period already served, but to ignore the period from 20 April 2000 to date in which the Appellant's, pursuant to the arbitration agreement, have been free to compete).

2.) The present award is rendered without costs.

3.) Each party shall bear its own costs

High-sensitivity chemiluminescence immunoassays for detection of growth hormone doping in sports / Martin Bidlingmaier, Jennifer Suhr, Andrea Ernst, Zida Wu, Alexandra Keller, Christian J. Strasburger, Andreas Bergmann. - (Clinical Chemistry 55 (2009) 3 (March); p. 445-453)

• PMID: 19168559.
• DOI: 10.1373/clinchem.2008.112458

Abstract

Background:
Recombinant human growth hormone (rhGH) is abused in sports, but adequate routine doping tests are lacking. Analysis of serum hGH isoform composition has been shown to be effective in detecting rhGH doping. We developed and validated selective immunoassays for isoform analysis with potential utility for screening and confirmation in doping tests.

Methods:
Monoclonal antibodies with preference for pituitary hGH (phGH) or rhGH were used to establish 2 pairs of sandwich-type chemiluminescence assays with differential recognition of rhGH (recA and recB) and phGH (pitA and pitB). We analyzed specimens from volunteers before and after administration of rhGH and calculated ratios between the respective rec- and pit-assay results.

Results:
Functional sensitivities were <0.05 microg/L, with intra- and interassay imprecision < or =8.4% and < or =13.7%, respectively. In 2 independent cohorts of healthy subjects, rec/pit ratios (median range) were 0.84 (0.09-1.32)/0.81 (0.27-1.21) (recA/pitA) and 0.68 (0.08-1.20)/0.80 (0.25-1.36) (recB/pitB), with no sex difference. In 20 recreational athletes, ratios (median SD) increased after a single injection of rhGH, reaching 350% (73%) (recA/pitA) and 400% (93%) (recB/pitB) of baseline ratios. At a moderate dose (0.033 mg/kg), mean recA/pitA and recB/pitB ratios remained significantly increased for 18 h (men) and 26 h (women). After high-dose rhGH (0.083 mg/kg), mean rec/pit ratios remained increased for 32 h (recA/pitA) and 34 h (recB/pitB) in men and were still increased after 36 h in women.

Conclusions:
Using sensitive chemiluminescence assays with preferential recognition of phGH or rhGH, detection of a single injection of rhGH was possible for up to 36 h.

• CAS 1999/A/234 David Meca-Medina vs FINA
• CAS 1999/A/235 Igor Majcen vs FINA
• TAS 1999/A/234 David Meca-Medina v/ FINA
• TAS 1990/A/235 Igor Majcen v/ FINA

Related case:
CAS 2000/A/270 David Meca-Medina & Igor Majcen vs FINA
May 1, 2001

On 8 August 1999 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Spanish swimmer David Meca-Medina and the Slovenian swimmer Igor Majcen after their A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

Hereafter in August 1999 both Athletes appealed the FINA decision with the Court of Arbitration for Sport (CAS).

The Athletes argued that there were departures of the standards for testing and laboratories; the substance in question was not prohibited; the positive tests were caused by the ingestion of pork offal; and the imposed sanction was too severe.

The Panel rejects the arguments that it was not their urine which was analysed and finds that the duration of the transport to the laborary had no effect on the validity of the test. The Panel holds that the chain of custody including the documentation was complete and satisfactory.

Further the Panel finds that the Athletes failed to establish that any alleged departure from the procedure could lead to genuine doubt on the reliability of any finding. They also failed to demonstrate that the positive tests was the result of the ingestion of meat injected with Nandrolone.

The Panel establishes that the substances in question were prohibited as part of the “related substances” before they were expressly included in the newer lists of anabolic androgenic steroids.

The Court of Arbitration for Sport decides on 29 February 2000 with respect to David Meca-Medina:

1.) The appeal is rejected as far as it is filed on behalf of David Meca-Medina.
2.) The suspension of David Meca-Medina is confirmed for a duration of 4 years from August 20, 1999 under deduction of 77 days of provisional suspension (May 14, 1999 to July 30, 1999).
3.) All results achieved by David Meca-Medina between January 31, 1999 and August 19, 1999 shall be cancelled.
4.) The award is pronounced without costs, except for the Court Office fee of CHF 500,- which shall be kept by the CAS (art. R65.2 of the Code)
5.) David Meca-Medina is ordered to pay an amount of CHF 4’000,- (together with interest at 5% from the date of the decision) to Respondent FINA as a contribution towards its legal fees and expenses (art. R65.3 of the Code).

The Court of Arbitration for Sport decides on 29 February 2000 with respect to Igor Majcen:

1.) The appeal is rejected as far as it is filed on behalf of Igor Majcen.
2.) The suspension of Igor Majcen is confirmed for a duration of 4 years from August 20, 1999 under deduction of 77 days of provisional suspension (May 14, 1999 to July 30, 1999).
3.) All results achieved by David Meca-Medina between January 31, 1999 and August 19, 1999 shall be cancelled.
4.) The award is pronounced without costs, except for the Court Office fee of CHF 500,- which shall be kept by the CAS (art. R65.2 of the Code)
5.) Igor Majcen is ordered to pay an amount of CHF 4’000,- (together with interest at 5% from the date of the decision) to Respondent FINA as a contribution towards its legal fees and expenses (art. R65.3 of the Code).

A robust test for growth hormone doping : present status and future prospects / Anne E Nelson. Ken K Ho. - (Asian journal of andrology 10 (2008) 3 (May); p. 416-425).

• PMID: 18385903.
• DOI: 10.1111/j.1745-7262.2008.00395.x

Abstract

Although doping with growth hormone (GH) is banned, there is anecdotal evidence that it is widely abused. GH is reportedly used often in combination with anabolic steroids at high doses for several months. Development of a robust test for GH has been challenging because recombinant human 22 kDa (22K) GH used in doping is indistinguishable analytically from endogenous GH and there are wide physiological fluctuations in circulating GH concentrations. One approach to GH testing is based on measurement of different circulating GH isoforms using immunoassays that differentiate between 22K and other GH isoforms. Administration of 22K GH results in a change in its abundance relative to other endogenous pituitary GH isoforms. The differential isoform method has been implemented; however, its utility is limited because of the short window of opportunity of detection. The second approach, which will extend the window of opportunity of detection, is based on the detection of increased levels of circulating GH-responsive proteins, such as insulin-like growth factor (IGF) axis and collagen peptides. Age and gender are the major determinants of variability for IGF-I and the collagen markers; therefore, a test based on these markers must take age into account for men and women. Extensive data is now available that validates the GH-responsive marker approach and implementation is now largely dependent on establishing an assured supply of standardized assays. Future directions will include more widespread implementation of both approaches by the World Anti-Doping Agency, possible use of other platforms for measurement and an athlete's passport to establish individual reference levels for biological parameters such as GH-responsive markers. Novel approaches include gene expression and proteomic profiling.

Discrimination of recombinant from natural human growth hormone using DNA aptamers / John G. Bruno, Maria P. Carrillo, Taylor Phillips, Allison Edge. - (Journal of Biomolecular Techniques 22 (2011) 1 (April) ; p. 27-36)

• PMID: 21455479
• PMCID: PMC3059541

Abstract

Detection of athletes who use synthetic human growth hormone (hGH; or somatotropin) to enhance physical strength and obtain an advantage in competitive sports is a formidable problem, as rhGH is virtually identical to the natural pituitary hormone. However, some post-translational and other modifications have been documented by chromatographic separation and mass spectrometry (MS) in a small percentage of rhGH. In the present work, development of DNA aptamers against research-grade rhGH and natural hGH with adsorption of the rhGH aptamers against natural hGH was shown to produce a small family of aptamer sequences that bound consistently with greater affinity to rhGH over a low nanogram-to-microgram range in ELISA-like microplate assays. This collection of rhGH discriminatory aptamer sequences shared some short sequence segments and secondary structural features. The top rhGH discriminatory aptamers also appeared to cross-react with human myoglobin and BSA but not with bone collagen peptides and an unrelated viral envelope peptide. The cross-reactivity results suggested several strings of up to five consecutive amino acids that might serve as common epitopes for aptamer binding. SDS-PAGE revealed that the rhGH existed largely as a 45-kDa dimer, and the natural hGH was almost exclusively monomeric. The existence of the rhGH dimer suggests that a discontinuous "bridge" epitope may exist on the rhGH, which spans the subunits, thereby accounting somewhat for the difference in detection. Overall, these results suggest that aptamers might be useful for routine, presumptive laboratory screening to identify athletes who are potentially cheating by administration of rhGH.

Detection of GH abuse in sport: Past, present and future / Osquel Barroso, Patrick Schamasch, Olivier Rabin. - (Growth Hormone & IGF Research 19 (2009) 4 (August) ; p. 369-374)

• PMID: 19482501
• DOI: 10.1016/j.ghir.2009.04.021

Abstract:

Due to its considered performance enhancing effects, human growth hormone (hGH) is abused as a doping agent in sport. Its misuse also carries potentially serious side effects to a person’s health. Consequently, hGH and its releasing factors are prohibited in sport, as established in the Prohibited List which is updated and published yearly by the World Anti-Doping Agency (WADA). In order to fight the menace that hGH doping poses to the spirit of sport and to the health of athletes, the sport movement and the anti-doping authorities, initially led by the International Olympic Committee (IOC) and later by WADA, have put substantial efforts into developing tests for its detection. Currently, a primary analytical approach, the isoform differential immunoassay, has been implemented in WADA-accredited laboratories. In parallel, a second, indirect approach for the detection of hGH abuse, based on the quantification of hGH-associated biological markers, has been developed. The final aim is to combine both methodologies to improve the sensitivity and expand the time window to detect doping with hGH. In addition, novel analytical procedures, based on proteomic and genomic technologies as well as the use of mass spectrometry-based methods of detection, are being investigated for future application in hGH anti-doping tests.

CAS 2003/A/484 Kicker Vencill vs USADA - Interim award

The Court of Arbitration decides on 18 November 2002:

1. The Jurisdiction oif CAS is affirmed;

2. Ibe appeal filed by mr. Vencill on 14 July 2003 is dismissed;

CAS 2003/A/484 Kicker Vencill vs USADA

Related documents:

• AAA No. 30 190 00291 03 USADA vs Kicker Vencill
  July 24, 2003
• CAS 2003_A_484 Kicker Vencill vs USADA - Interim award
  November 18, 2003
• USADA - Supplement 411 - Kicker Vencill, Introduction Video
  May 24, 2012

On 23 June 2003 the North American Court of Arbitration (NACAS) decided to impose a 4 year period of ineligibility on the American swimmer Kicker Vencill after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

Hereafter in July 2003 the Athlete appealed the NACAS decision with the Court of Arbitration for Sport (CAS). The Athlete requested for a reduced sanction on the basis of No Significant Fault or Negligence.

The Athlete argued a number of issues in support of his appeal, ranging from:

• questions concerning the chain of custody of his sample;
• alleged violations of his right to be present for the testing of his B sample;
• supposed inaccuracies in the results reported by the UCLA Lab; and
• allegations to the effect that the low concentration of 19-norandrosterone found in the athlete's sample is consistent with endogenous production as opposed to exogenoμs administration or ingestion of a prohibited substance.

The Panel finds that there is no question that the Athlete is guilty of committing an anti-doping rule violation and he failed to establish that the chain of custody of his sample was anything other than intact. Further the Panel concludes that the laboratory analysis was correctly conducted, the Athlete’s samples had not deteriorated or been contaminated and the proper laboratory procedures had been followed.

The Panel accepts that the violation was not intentional and that laboratory analysis revealed that the supplement in question was contaminated. However the Athlete showed also a total disregard of his positive duty to ensure that no prohibited substance enters his body.

As a result the Panel holds that the Athlete’s Fault or Negligence in the circumstances is exceptionally significant in relation to the doping violation.

Therefore the of Court of Arbitration for Sport decides on 11 March 2004 that:

1.) The jurisriction of the CAS is affirmed;

2.) The appeal filed by Mr. Vencill on 14 July 2003 is dismissed;

3.) Save for the applicable period of ineligibility as specified in paragraph 4 below, the decision in this matter issued by the North American Court of Arbitration for Sport Panel dated 23 June 2003 is upheld;

4.) Kicker Vencill shall be declared ineligible for competition for two years commencing as of 22 May 2003:

5.) The Court Office fee of CHF 500 already paid by Mr. Vencill shall be retained by the CAS;

6.) Each party shall bear its own costs.