CAS OG 24/12 David Sánchez López v. Turkish Weightlifting Federation

In May 2024 the Independent Panel of the International Weightlifting Federation (IWF) opened proceedings against the Turkish Weightlifitng Federation (TWF) because of 3 anti-doping rule violations (ADRVs) within a 12 month period committed by 3 Turkish weightlifting athletes. 

Consequently the independent Panel deemed it proportionate to impose a fine on the TWF. In this matter it was considered disproportionate and not applicable to cancel the single Olympic quota place earned by the Turkish weightlifters.

On 5 July 2024 the IWF Independent Panel rendered its decision regarding the TWF. On 8 July 2024 the weightlifting entries for the Paris Olympic Games were published, including the Turkish weightlifter in the 73kg weight class.

Hereafter on 2 August 2024 the Spanish weightlifter David Sánchez López filed an application with the Court of Arbitration for Sport (CAS) Ad Hoc Division. The Athlete requested the Panel to replace the TWF's entry in the 73kg weight class with his entry.

The Athlete argued that the IWF had established three ADVRs by persons affiliated with the TWF. Consequently under the Rules the IWF was obligated to bar the TWF and all its affiliated athletes from competition in the 2024 Paris Olympic Games.

The TWF requested the Panel to confirm the participation of the TWF athletes into the 2024 Paris Olympic Games. The TWF, IWF and IOC contended that the Athlete lacks standing to pursue his claim and that the TWF lacks standing to be sued.

The Sole Arbitrator assessed and addressed the evidence and the issues raised by the Parties and determines that:

• The CAS Ad Hoc Division has jurisdiction to entertain this case.
• Under the Rules the Athlete is not one of the enumerated persons entitled to challenge the Appealed Decision.
• He was no participant in that proceedings and lacks standing to appeal.
• The TWF did not render the Appealed Decision.
• The IWF Independent Panel has jurisdiction and the Appealed Decision cannot be said to have been an abuse of its discretion or unreasonable.

Therefore the CAS Ad Hoc Division decides on 7 August 2024 to dismiss the application of Mr. David Sánchez López.

CAS OG 24/05 Livia Avancini v. World Athletics
CAS OG 24/06 Max Batista v. World Athletics
CAS OG 24/07 Hygor Bezerra v. World Athletics

In December 2022 the Athletics Integrity Unit (AIU), on behalf of World Athletics, released the Rules Road to Paris 2024 regarding the qualification period for individual events for the Paris Olympic Games 2024. However, in February 2024 the AIU established that the Brazilian Athletics Confederation (DBAt) had failed to meet its testing obligations for 2022.

In order to meet the testing requirements the Brazilian Doping Control Authority (ABCD) started testing a group of 102 athletes based on the criteria pursuant the AIU Additional Testing Requirements including for the athletes Livia Avancini, Max Batista and Hygor Bezerra.

Unexpectedly very late on 27 June 2024 and 5 July 2024 the 3 Athletes were qualified for the Paris Olympic Games 2024 whereas the Olympic Qualification period concluded on 30 June 2024. As a result none of the 3 Athletes fulfilled the Additional Testing Requirements imposed on the CBAt.

Thereupon the CBAt requested twice the AIU for an exception to the testing requirements due to truly exceptional and objectively proven circumstances. However the AIU Board rejected these two applications on 7 July and on 24 July 2024.

Hereafter on 23 July 2024, and amended on 24 July 2024, the 3 Athletes appealed the AIU Decisions with the Court of Arbitration for Sport (CAS) Ad Hoc Division. The Athletes requested the Panel to set aside the Appealed Decisions and to grant an exception of the testing requirements.

The Panel assessed and addressed the evidence and the issues raised by the Parties and determines that:

• The Additional Testing Requirements were implemented in a 3 month period, instead of a 10 month period.
• Available resources, including additional resources, were allocated to conduct the 6 tests on other athletes in the priority pool.
• The testing of the 3 Athletes was not completed because they were not in the priority group and were not reached in time.
• Two of the Athletes were the subject of a number of tests but not the necessary number in the mandated time.
• There was no suggestion that any of the Athletes was other than a clean athlete.
• Truly exceptional circumstances resulted in the failure to complete the Additional Testing Requirements for the 3 Athletes.

Therefore the CAS Ad Hoc Division decides on 1 August 2024 that:

1.) The amended application filed by Livia Avancini, Max Batista and Hygor Bezerra on 24 July 2024 is upheld.

2.) The decisions rendered by the Athletics Integrity Unit’s Board on 23 July 2024 concerning each individual Applicant are set aside.

3.) The Applicants are entitled to participate in the Paris 2024 Olympic Games.

CAS OG 24/03 Mahmoud Al Hamid vs IWF

In January 2024 the Saudi Arabian Anti-Doping Committee (SAADC) reported an anti-doping rule violation against the Saudi Arabian weightlifter after his A sample tested positive for the prohibited substance Erythropoietin (EPO).

Following notification a Provisional Suspension was ordered and the Athlete requested opening of his B sample. However the analysis of the his B sample did not confirm the analysis of the A sample and the Provisional Suspension was lifted in March 2024.

During the Provisional Suspension the Athlete could not participate in two qualifying events, which made it impossible for him to meet the qualification criteria for the Olympic Games 2024 in Paris.

Thereupon in May 2024 the Athlete requested the International Weightlifting Federation (IWF) for an Exemption to Compete in the Paris 2024 Olympics. Yet, on 24 May 2024 the IWF decided to dismiss his request and also deemed that his application was filed out of time.

Hereafter on 22 July 2024 the Athlete appealed the IWF Decision with the Court of Arbitration for Sport (CAS) Ad Hoc Division. The Athlete requested the Sole Arbitrator to set aside the Appealed Decision and to grant him an exceptional entry into the Paris 2024 Olympic Games Weightlifting competition.

The Sole Arbitrator concludes that the CAS Ad Hoc Division for the Olympic Games has no jurisdiction in this case as the dispute arose prior to a period of ten days preceding the Opening Ceremony of the Paris Olympic Games.

Furthermore, the Sole Arbitrator determines that the appeal will be in any event inadmissible because the Athlete failed to timely file an appeal in accordance with Article R49 of the Code of Sports-related Arbitration.

Finally, the Sole Arbitrator fully recognizes and appreciates the regrettable circumstances that the Athlete faced and the impact on him being deprived of the opportunity to qualify for the Paris Olympic Games. Unfortunately, this does not enable the Sole Arbitrator to assume jurisdiction where it does not exist under the CAS Ad Hoc Rules.

Therefore the CAS AD Hoc Division decides on 27 July 2024 that it does not have jurisdiction to hear the application filed by the Athlete on 22 July 2024.

CAS 2024/A/10291 US Anti-Doping Agency (USADA) vs. James ‘Michael’ Brinegar

On 26 December 2023 the New Era Arbitration concluded that the swimmer James Michael Brinegar had not committed an anti-doping rule violation based on the abnormal blood values in his ABP reported by the United States Anti-Doping Agency (USADA).

Hereafter USADA appealed the New Era Decision with the Court of Arbitration for Sport (CAS).

In this case, three samples collected from the Athlete between July 20, 2022 and September 27, 2022 showed values consistent with blood doping, specifically the use of ESAs, as confirmed by unanimous expert evaluation of the Athlete's blood profile in early 2023.

The Athlete's case was heard to ensure resolution in advance of team selection decisions related to the upcoming Paris Olympic Games. Because a decision was needed before team selection decisions were made, the CAS panel issued an operative award, which is an abbreviated document that only conveys the panel’s ruling.

The reasoned decision will be made publicly available once it is rendered. The Court of Arbitration for Sport decides on 21 June 2024 that:

1.) The appeal filed by US Anti-Doping Agency (USADA) on 9 January 2024 against the decision issued on 26 December 2023 by New Era Arbitration (Case No 2023082801) is partially upheld, as set out in paragraphs (3)-(6) below.

2.) The said decision issued on 26 December 2023 is set aside.

3. James ‘Michael’ Brinegar is found to have committed an Anti-Doping Rule Violation under Article 2.2. of the World Anti-Doping Code.

4.) James ‘Michael’ Brinegar is sanctioned with a period of Ineligibility (within the meaning of the World Anti-Doping Code) of four (4) years, commencing on the date of this decision.

5.) Credit is to be given for the period during which James ‘Michael’ Brinegar has already been provisionally suspended, from 18 August 2023 until 27 November 2023.

6.) James ‘Michael’ Brinegar’s competition results in the period from 20 July 2022 to 31 December 2022 are disqualified, with all resulting consequences, including forfeiture of any medals, titles, ranking points and prizes (all within the meaning of the World Anti-Doping Code).

7.) The costs of the arbitration, to be determined and served to the Parties by the CAS Court Office, shall be borne by James ‘Michael’ Brinegar.

8.) Each party shall bear its own costs and other expenses incurred in connection with this arbitration.

9.) All other motions or prayers for relief are dismissed.

CAS 2022/A/9341 Federation Internationale de Football Association (FIFA) v. Abdullah Alrouwely & Saudi Arabian Anti-Doping Committee (SAADC)

In June 2022, the Saudi Arabian Anti-Doping Committee (SAADC) reported an anti-doping rule violation (ADRV) against the football player Abdullah Alrouwely after his sample tested positive for the prohibited substance Amfetamine.

Consequently the SAADC decided on 14 December 2022 to impose a 3 month period of ineligibility on the Athlete. The Panel deemed that the substance was used recreationally, out-of-competition and unrelated to sport performance.

Hereafter the International Football Federation (FIFA) appealed the SAADC Decision with the Court of Arbitration for Sport (CAS). FIFA requested the Panel to set aside the Appealed Decision and to impose a sanction of 4 years on the Athlete.

The Athlete in his defence asserted that:

• The violation was not intentional.
• the concentration in his sample was very low.
• He was unaware of contamination of the tea he was drinking at a wedding.
• Adding stimulants to beverages at wedding parties is a tradition in his region, in order to help people dance.

The SAADC acknowledged that in first instance the Panel made a mistake and by misunderstanding had considered the prohibited substance a "Substance of Abuse".

FIFA disputed the conclusion that the anti-doping rule violation was the result of out-of-competition recreational use of a Substance of Abuse. Moreover the Athlete failed to demonstrate with corroborating evidence that the violation was not intentional, nor how the substance had entered his system, nor grounds for No Significant Fault or Negligence.

The Sole Arbitrator assessed and addressed the evidence and arguments presented by the Parties and determines that:

• The presence of a prohibited substance has been established in the Athlete's sample.
• He committed an anti-doping rule violation.
• Amfetamine is not a "Substance of Abuse", nor prohibited out-of-competition.
• The substance was detected in-competition, despite it may have been ingested out-of-competition.
• The Athlete failed to demonstrate with evidence that the ingestion occurred out-of-competition in a context unrelated to sport performance.
• He failed to establish that the violation was not intentional.

Therefore the Court of Arbitration for Sport decides on 22 April 2024 that:

1.) The appeal filed by the Federation Internationale de Football Association (FIFA) on 14 December 2022 against the decision rendered on 28 July 2022 by the Saudi Arabian Anti-Doping Committee (SAADC) is upheld.

2.) The decision rendered on 28 July 2022 by the Saudi Arabian Anti-Doping Committee (SAADC) is set aside.

3.) Mr Abdullah Alrouwely is declared ineligible for a period of four years from the date of the present Award. Credit is given for the period of suspension served by Mr Abdullah Alrouwely from 21 June 2022 to 20 September 2022.

4.) The costs of this arbitration, to be determined and served to the Parties by the CAS Comi Office, shall be borne by the Saudi Arabian Anti-Doping Committee (SAADC) and by Mr Abdullah Alrouwely as to 50% each. The Saudi Arabian Anti-Doping Committee (SAADC) shall be jointly liable for the payment of the Mr Abdullah Alrouwely's share.

5.) Each Party shall bear the expenses it has incurred in connection with this arbitration.

6.) All other motions or prayers for relief are dismissed.

CAS 2023/A/9551 Georgi Yomov v. Union Européenne de Football Association (UEFA)

In August 2022 the Union of European Football Associations (UEFA) reported an anti-doping rule violation against the Bulgarian football player Georgi Yomov after his A and B samples tested positive for the prohibited substance Dehydrochlormethyltestosterone (Turinabol).

Consequently the UEFA Appeals Body decided on 10 February 2023 to impose a 4 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 25 August 2022.

Hereafter in April 2023 the Athlete appealed the UEFA Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.

The Athlete accepted the test results and denied the intentional use of the substance. He argued that the positive test was caused by the consumption of a contaminated product.

He testified that he inadvertently had ingested the substance by drinking the leftover of one or more smoothies prepared by his brother whereas unbeknown to him, his brother was taking Turinabol in April 2022. In support of his allegation he produced the witness statements of family, friends and expert witnesses. 

He also relied on the evidence of the person who sold Turinabol to his brother. In addition to the witness evidence, he produced scientific evidence, in particular a polygraph test, a negative hair test for him and a positive nail test for his brother.

UEFA contended that:

• The Athlete failed to establish, on a balance of probability, that the violation was the result of an unintentional and inadvertent ingestion of the substance as a result of his brother’s secret use of Turinabol.
• There are several contradictions in the Athlete's witness statements.
• Experts’ opinions confirmed that the low concentration of Turinabol in his hair test does not enable to exclude a deliberate administration of the substance.
• Low concentrations in his samples might also be expected to be found in a case of intentional use.

The Panel assessed and addressed the evidence and arguments presented by the Parties and determines by majority that:

• It is not possible to draw any material conclusions, one way or another, from the scientific evidence on record.
• The Athlete was unable to establish, on a balance of probabilities, the source of the prohibited substance.
• He has not established that the violation was not intentional.
• The results of the polygraph tests are considered inadmissible or mere statements.

Therefore the Court of Arbitration for Sport decides on 21 September 2023 that:

1.) The appeal filed by Mr Georgi Yomov on 5 April 2023 against the Decision rendered by the UEFA Appeals Body on 10 February 2023 is dismissed.

2.) The Decision rendered by the UEFA Appeals Body on 10 February 2023 in the matter Mr Georgi Yomov v. UEFA is confirmed.

3.) (…).

4.) (…).

5.) All other motions or prayers for relief are dismissed.

CAS 2023/A/9377 Kristian Jensen v. World Rugby

In December 2021 World Rugby reported an anti-doping rule violation against the Australian rugby player Kristian Jensen after his A and B samples tested positive for the prohibited substance LGD-4033 (Ligandrol).

Consequently the World Rugby Judicial Committee decided on 20 December 2022 to impose a 4 year period of ineligibility on the Athlete. The Panel did not accept the Athlete's explanation that contamination had caused the positive test result.

Hereafter in January 2023 the Athlete appealed the Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.

The Athlete accepted the test results and denied the intentional use of the substance. Supported by witness statements and scientific evidence he asserted that there are sufficient grounds for a reduced sanction.

The Athlete explained that a blender which he regularly shared with his housemate at the time was contaminated, because the housemate had admitted using a Selective Androgen Receptor Modulator (SARM) - called RAD-140 - which he believed may have been contaminated with other SARMs such as Ligandrol.

World Rugby contended that the Athlete failed to demonstrate that the violation was not intentional. It rejected his blender contamination theory whereas four other contamination scenarios have not been properly investigated.

The Panel assessed and addressed the evidence and the issues raised by the Parties and determines that: 

• The presence of a prohibited substance has been established in the Athlete's samples.
• He committed an anti-doping rule violation and had accepted the test results.
• The Athlete's scientific evidence failed to establish, on a balance of probabilities, the source of the Ligandrol.
• He did not demonstrate successfully the source of the prohibited substance.
• There are no grounds for a reduced sanction based on no fault or negligence or no significant fault or negligence.
• There are no grounds for a proportional reduced sanction, neither for backdating the commencement of the ineligibility period.

Therefore the Court of Arbitration for Sport decides on 4 December 2022 that:

1) The appeal filed by Mr. Kristian Jensen against the decision rendered by the World Rugby Independent Judicial Committee on 20 December 2022 is dismissed.

2) The decision rendered by the World Rugby Independent Judicial Committee on 20 December 2022 is confirmed.

3) (…).

4) (…).

5) All other motions or prayers for relief are dismissed.

CAS 2022/A/8700 Anna Harkowska v. Polish Anti-Doping Agency (POLADA)

• Cycling
• Doping (meldonium)
• CAS Jurisdiction
• Interpretation of a NADO’s arbitration clause for national level athletes
• Compliance of a NADO’s arbitration clause for national level athletes with article 6.1 ECHR

1. According to Article 186 para. 1 of the Swiss Private International Law Act, the arbitral tribunal shall rule on its own jurisdiction. The objection of a lack of jurisdiction must be raised prior to any defence on the merits. In order for the CAS to have jurisdiction to hear an appeal, there must exist either a specific arbitration agreement between the parties, or the jurisdiction of the CAS must be expressly recognized in the statutes or regulations of the sports-related body that issued the decision appealed against.

2. The National Anti-Doping Organisation’s Anti-Doping Rules (NADO ADR) adopted pursuant to the applicable provisions of the World Anti-Doping Code (WADC) and the International Standard shall be interpreted in a manner that is consistent with said provisions and standard. With respect to national level athletes not involved in international events, a NADO can provide either that the appellate body be an independent and impartial national-level appeal body provided the principles of a fair hearing are respected or provide that a national-level athlete not involved in international events has a right to appeal directly to CAS. Where the NADO ADR has clearly opted for a right to appeal to a national appellate body, there is therefore no CAS arbitration clause entitling a national-level athlete to file an appeal to CAS.

3. As a matter of principle, according to the case law of the European Court of Human Rights, a violation of Article 6.1 of the European Convention on Human Rights (ECHR) cannot be grounded on the lack of independence or impartiality of a decision-making tribunal or on the breach of an essential procedural guarantee by that tribunal, if the decision taken is subject to subsequent control by a judicial body that has “full jurisdiction” and ensures respect for the relevant guarantees by curing the failing in question. Accordingly, in cases where a final appeal to CAS is possible, the requirements of independence and impartiality are always met, since the CAS has been found to be a true and independent arbitral tribunal. If the appellate body established by the rules of a NADO is competent to finally decide the case i.e. in a case involving a national-level athlete (not involved in international events), Article 13.2.2 WADC ensures that the same standards of independence and impartiality are met at the local appellate level. If not, the national-level athlete has a right to appeal the first instance decision directly to CAS. From the perspective of the principle of equal treatment, the purported asymmetric nature of the adjudicatory system established by a NADO ADR in so far as it entitles only WADA, to file an appeal to CAS against decisions of the national federation’s appellate body does not amount to a violation of Article 6.1 ECHR. Indeed, the positions of a national-level athlete (not involved in international events) and WADA are not comparable. The athlete’s rights are fully respected by a national two-instance adjudicatory mechanism provided that the national appellate body respects the principles of independence and impartiality as well as the right to be heard stemming from Article 6.1 ECHR. Conversely, WADA’s right to appeal to CAS against decisions issued by a national appellate body is consistent with the role of WADA, which is charged, i) to ensure the uniform application of anti-doping rules worldwide and the respect of the principle of equal treatment of athletes at transnational level; ii) to correct potential mistakes in the interpretation and/or application of anti-doping rules by the anti-doping national sports bodies; iii) to avoid the risk of unredressable “home-town” decisions.

On 16 August 2021 The Disciplinary Panel of the Polish Anti-Doping Agency (POLADA) decided in first instance to impose a 4 year year period of ineligibility on the cyclist Anna Harkowska after she tested positive for the prohibited substance Meldonium.

Thereupon on 21 December 2021 the POLADAD Disciplinary Panel of Second Instance dismissed the Athlete's appeal in its entirety. Hereafter the Athlete appealed the POLADA decision of 21 December 2021 with the Court of Arbitration for Sport (CAS). 

The Athlete requested the Panel to set aside the Appealed Decision of 21 December 2021. She asserted that under the Rules she is a national level athlete and that she has the right to appeal her case to CAS.

The Athlete denied the intentional use of the substance and requested for a reduced sanction. She argued that there are grounds for No Fault or Negligence, or alternatively, that she acted with No Significant Fault or Negligence.

POLADA contended that CAS has no jurisdiction in this case and that the Appealed Decision rendered by the Disciplinary Panel of Second Instance was final. It argued that only a limited number of entities are entitled to file an appeal to CAS.

In view of the issues raised by the Parties the Sole Arbitrator determines that:

• The present Award is dedicated to the issue of CAS Jurisdiction.
• Under the POLADA ADR international level athletes are entitled to appeal to CAS.
• The provisions of the POLADA ADR concerning the appeals are fully consistent with the WADC.
• in the POLADA ADR there is no CAS arbitration clause entitling a national-level athlete (not involved in international events) to file an appeal to CAS against decisions of the Second Instance Disciplinary Panel.
• The two-instance adjudicatory system established by POLADA ADR is fully consistent with both WADC and Art. 6.1 ECHR.
• Article 13.2.3.2 of the POLADA ADR is not in contrast with Article 6.1 ECHR.
• This Article 6.1 does not entitle national-level athletes to file an appeal to CAS against decisions of the Second Instance Disciplinary Panel.

Therefore the Court of Arbitration for Sport decides on 24 April 2023 that:

1.) CAS has no jurisdiction to decide on the appeal filed on 29 March 2022 by Ms. Anna Harkowska against the decision rendered by the Disciplinary Panel of Second Instance on 21 December 2021 with reasons notified on 9 February 2022.

2.) The appeal filed by Ms. Anna Harkowska against the decision rendered by the Disciplinary Panel of Second Instance on 21 December 2021 with reasons notified on 9 February 2022 is not entertained.

3.) (…).

4.) (…).