CAS 2011/A/2353 Erik Tysse v. Norwegian Athletics Federation (NAF) & International Association of Athletics Federations (IAAF)
- Athletics (race walking)
- Doping (EPO CERA)
Validity of the method to find Continuous Erythropoetin - Receptor Activator (CERA) in a urine sample
- Adverse analytical finding
- Departure from International Standards
- Violation of the European Convention for Human Rights
1. To establish a CERA doping violation, the applicable TD2009EPO (Technical Document issued by WADA) provides that the criteria of analysis has been established to ensure harmonization in the performance of the EPO test. For the detection of EPO, and in particular of EPO CERA, the isoelectrofocusing (IEF) analysis method must first meet the acceptance criteria. Once the analysis meets the acceptance criteria, TD2009EPO requires that the lab apply the identification criteria. Once the identification criteria is met and an Adverse Analytical Finding is suspected, the lab, in the confirmation phase, must perform a stability test on the sample.
2. Iron injections cannot explain an adverse analytical finding of EPO CERA where the evidence of an athlete’s experts is not supported by any reliable evidence.
3. Regarding any alleged breaches or departures in general, the IAAF Rules provides that the laboratory is presumed to have conducted the analysis in accordance with the International Standards for Testing. An athlete may of course rebut this presumption, but must do so on the balance of probabilities.
4. Even if it were applicable, there is no violation of the European Convention for Human Rights due to the fact that the No Fault and No Significant Fault provisions in both the WADA Code and the IAAF Rules protect athletes against any violation in this respect.
On 31 January 2011 the Norwegian Athletics Federation (NAF) Tribunal decided to impose a 2 year period of ineligibility on the race walker Erik Tysse after his A and B samples tested positive for the prohibited substance Methoxy polyethylene glycol-epoetin beta (CERA).
Hereafter in February 2011 the Athlete appealed the Norwegian decision with the Court of Arbitration for Sport (CAS).
The Athlete asserted that the NAF Tribunal erred in confusing the quality of the tests and the interpretation of the test results and, as such, incorrectly concluded that his doping tests were positive. He argued that the method used by the Rome Laboratory to detect CERA is unreliable nevertheless when interpreted correctly does not show the presence of CERA.
Also the results from the Rome Lab do not meet the standards as set out in the WADA Technical Document in question and there were several procedural errors in the Rome Lab.
The NAF and IAAF rejected the Athlete’s arguments and asserted that a validated and reliable method for detecting rhEPO and analogues and the analytical data from the Athlete’s test was correctly interpreted in accordance with the WADA Technical Document.
The Panel finds that the presence has been established of CERA in the Athlete’s sample and that the Athlete’s expert’s evidence in this case is not relevant. Regarding the requirements in the WADA Technical Document, the Panel finds that the acceptance criteria, the identification criteria, and the stability criteria are met in this case.
Further the Panel finds that the evidence establishes that the used IEF method is both valid and has a high degree of specificity. The Panel finds that the medical records show no direct evidence that the Athlete suffers from any kidney condition.
The Panel concludes that the Athlete failed to establish any departure on the balance of probabilities.
Therefore the Court of Arbitration for Sport decides on 29 August 2011 that:
(1) The appeal filed by the Appellant Mr Erik Tysse on 16 February 2011 is dismissed.
(2) The decision of the NAF Tribunal dated 31 January 2011 is hereby confirmed.
(3) (…)
