Abstract
This chapter analyses how Doping Control is organised and regulated in the WADC regime. Doping Control is a multifaceted process that raises a variety of evidentiary issues, with different ways of approaching these issues. In outlining the legal constraints on anti-doping, we have described, in Chap. 3, Doping Control as a process designed to collect scientific evidence for use in subsequent anti-doping proceedings. Section 5.1 focuses on the regulatory framework that provides the operational foundations for collecting such scientific evidence. This framework can be characterised as a “mechanism of control” (as described in Chap. 4), built on two pillars necessary for setting up an effective system of detection in anti-doping programs: i. The scientific participants responsible for Testing and analysis on the field, i.e. primarily the entities in charge of Sample collection and the anti-doping laboratories, and ii. the technical rules adopted by WADA to regulate Doping Control, i.e. the International Standards and related documents, but also the Guidelines adopted in some areas. Our analysis will point at some ambiguities in the options taken in the WADC regime with respect to these participants and rules, revealing the hesitant path taken by this regime between leaving a maximum flexibility to anti-doping science and forcing this same science into a normative corset. The analysis will show how these ambiguities may work to the detriment of legal predictability. Section 5.2 turns to a feature of the WADC regime that demonstrates the complementarity of the two above pillars and makes the entwinement between science and law in anti-doping particularly apparent. This section deals with procedural defects during Doping Control, i.e. situations in which scientific participants depart from applicable procedures set forth in technical rules. The WADC regime conceives these departures as procedural irregularities, but they may or may not have an impact on the scientific reliability of the process. The treatment of procedural defects, especially rules imposing a specific distribution of the legal burden of proof or rules circumscribing the materiality of defects, constitute “mechanisms of coordination” or “mechanisms of avoidance” as identified in Chap. 4, depending on their severity. Section 5.3 builds on the insights gained from Sects. 5.1 and 5.2, to assess the soundness of the WADC regime when it comes to securing a reliable process of evidence gathering in Doping Control, and makes suggestions for enhancing or making better use of the current system.
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Notes
- 1.
The need for a better allocation of resources in order to uncover and deter genuine doping schemes was also strongly emphasised by various stakeholders in the consultation rounds for the 2015 review process (see Rigozzi et al. 2013b, n° 38).
- 2.
WADA Report on the Lack of Effectiveness of Testing Programs, p. 3.
- 3.
WADA Report on the Lack of Effectiveness of Testing Programs, p. 3: “To date, testing has not proven to be particularly effective in detecting dopers/cheats.”
- 4.
Minutes WADA ExCo Meeting 11 May 2013, p. 35 and 41. On the prospects of this approach, see Sect. 10.2.1 below.
- 5.
- 6.
WADA is entitled, upon request, to receive a copy of the Test Distribution Plan. The ISTI enshrines some more precise guidance for ADOs to design their Test Distribution Plan (Section 4.0 “Planning Effective Testing”).
- 7.
Definition of Sample Collection Authority in the ISTI: “The organisation that is responsible for the collection of Samples in compliance with the requirements of the International Standard for Testing and Investigations, whether (1) the Testing Authority itself; or (2) another organization (for example, a third party contractor) to whom the Testing Authority has delegated or subcontracted such responsibility (provided that the Testing Authority always remains ultimately responsible under the Code for compliance with the requirements of the International Standard for Testing and Investigations relating to collection of Samples).”
- 8.
Article 4.9.2 of the ISTI: “Anti-Doping Organizations may contract other Anti-Doping Organizations or third parties to act as Sample Collection Authorities on their behalf. In the terms of the contract, the commissioning Anti-Doping Organization (which, for these purposes, is the Testing Authority) may specify how any discretion afforded to a Sample Collection Authority under the International Standard for Testing and Investigations is to be exercised by the Sample Collection Authority when collecting Samples on its behalf.”
- 9.
See e.g. for the UCI, Zorzoli and Rossi 2010, Section UCI’s Pilot Project/Sample collection; three major service providers in Testing are: Professional Worldwide Control (“PWC”), a commercial company incorporated in Germany (GmbH, i.e. limited company), which claims to count among its main clients the German NADO as well as the UCI for its Athlete Biological Passport Program http://www.pwc-dopingkontrolle.de/cms/ (accessed 12.02.15); Global Quality Sports (“GQS”), another commercial company incorporated in Germany, which advertises itself on its homepage as a “Sample Collection Authority under the WADA Code” http://gqs-antidoping.de/?lang=en (accessed 12.02.15); International Doping Tests and Management (“IDTM”), a commercial company with its head offices in Sweden and subsidiaries on various continents, which presents itself as having been founded to manage the IAAF’s Out-of-Competition Testing around the world, http://idtm.se/about-idtm/history (accessed 12.02.15).
- 10.
See IDTM: “access to an international network of independent anti-doping experts who can be called upon to form an independent review panel and anti-doping tribunal when necessary” http://idtm.se/result-management-services (accessed 12.02.15).
- 11.
http://idtm.se/therapeutic-use-exemptions (accessed 12.02.15).
- 12.
Article 4.9.2 of the ISTI: “For example, the International Standard for Testing and Investigations confers discretion as to the criteria to be used to validate the identity of the Athlete (Article 5.3.4), as to the circumstances in which delayed reporting to the Doping Control Station may be permitted (Article 5.4.4), as to who may be present during the Sample Collection Session (Article 6.3.3), and as to the guidelines to be followed by the DCO in determining whether exceptional circumstances exist that mean a Sample Collection Session should be abandoned without collecting a Sample with a Suitable Specific Gravity for Analysis (Article G.4.6)”.
- 13.
This includes establishing a system of accreditation for the Sample Collection Personnel and ensuring their training and familiarity with the ISTI (Annex H of the ISTI).
- 14.
http://idtm.se/about-idtm/history (accessed 12.02.15).
- 15.
See e.g. http://gqs-antidoping.de/iso-zertifizierung/?lang=en (accessed 05.05.15).
- 16.
Appendix 1 (Definitions) of the WADC.
- 17.
Exceptionally, Breath Alcohol collection may have to be conducted in sports in which alcohol is prohibited In-Competition (WADA Prohibited List 2015, P1); the WADA Sample Collection Personnel Guidelines include a specific section dedicated to Breath Alcohol collection.
- 18.
The increased use of DNA analysis would trigger new challenges under applicable national laws (see Sect. 10.2.2.3 below).
- 19.
CAS 2008/A/1718, IAAF v. All Russia Athletic Federation & Yegorova et al.
- 20.
- 21.
Baddeley 1996, p. 178, considers that urine sampling does not affect the Athlete’s physical integrity, whereas blood sampling does; see also Bergerman 2002, p. 74 et seq.
- 22.
For a matter recently brought before CAS, see CAS 2008/A/1718, IAAF v. All Russia Athletic Federation & Yegorova et al..
- 23.
Lenz 2000, p. 86; Fuchs, 1999, p. 296; Berninger 2012, p. 112/113, with the reservation that the situation should be evaluated anew should analytical means in the future allow for uncovering all types of urine manipulation, which should replace “visual control” as the less intrusive means.
- 24.
Bergerman 2002, p. 210; Prokop 2000b, p. 181, points out that the mere prohibition of doping may already represent an issue of physical integrity, at least if it prohibits the use of a medication and prevents the Athlete from alleviating pain.
- 25.
Baddeley 1998, p. 44; Lenz 2000, p. 44 et seq., reaches the conclusion that blood Testing cannot benefit from any de minimis exemption.
- 26.
Baddeley 1998, p. 329; Bergerman 2002, p. 84.
- 27.
See analysis of Lenz 2000, p. 77, who concludes that in isolated cases where religious grounds should truly impede blood collection, urine should be taken. Same conclusion for Bergerman 2002, p. 84. In Appendix 1 (Definitions) of the WADC, the Comment to the defined term “Sample”/“Specimen” merely states laconically that “it has been determined that there is no basis for any such claim”.
- 28.
Saugy 2012, p. 649.
- 29.
Fuchs 1999, p. 287 considered that blood sampling was so unusual that it ought to be specifically highlighted to the Athlete. On proportionality of blood sampling, see also Bergerman 2002, p. 80 et seq.
- 30.
Lenz 2000, p. 61. The suggestion has been made that in case of an equivalent potency of several matrices, the Athlete should be given a choice.
- 31.
Article 2.3 (“Evading, Refusing or Failing to Submit to Sample collection”) of the WADC; Lenz 2000, p. 76. Contrary to this commentator’s view, this does not mean that the consent is invalid, but only that its admissibility must be verified with the help of other requirements, such as proportionality; similarly, Baddeley 1996, p. 178, considers that sanctions for refusing to submit to blood sampling are inadmissible.
- 32.
See Sect. 3.3.2.2 above.
- 33.
See, already in the initial phase of the WADC, for FIFA, Dvorak et al. 2006, p. 17: “Although some sporting organisations and anti-doping agencies continue to employ coordinators who are not medical doctors, FIFA and its member confederations insist on physicians for doping controls”, adding that the presence of a specially trained physician can also have an educational function. Such presence is also mandated by the fact that the information regarding medications taken on the Doping Control form “is covered by patient confidentiality” (see idem, ibidem).
- 34.
The WADA Sample Collection Personnel Guidelines provide, among other requirements, that Blood Collection Officers should “possess qualifications in phlebotomy recognized by the relevant public authorities”.
- 35.
WADA Guidelines for Blood Sample Collection, Section 5.3.1.
- 36.
Clean the skin with a disinfectant, choose a location “unlikely to adversely affect the Athlete on his/her performance”, take blood from a superficial vein, terminate the Sample collection after a maximum of three attempts to remove a sufficient amount of blood.
- 37.
Annex E of the ISTI: “Procedures involving blood shall be consistent with the local standards and regulatory requirements regarding precautions in healthcare settings where those standards and requirements exceed the requirements set out below”.
- 38.
See also WADA Guidelines for Blood Sample Collection, section 7.1.6: “If the DCO does not agree with the Athlete’s opinion that all of the available kits are unsatisfactory, the DCO instructs the Athlete to proceed with the Sample Collection Session”.
- 39.
This is acceptable if the Athlete’s concerns are related to the integrity of the Sample collection process (e.g. the Athlete’s fears that the Sample is contaminated), but not if the Athlete fears for his or her health. In our view, the Athlete who is genuinely worried about the conditions of the Sample collection has no other choice but to refuse to submit to Sample collection and to have the reasons for his refusal recorded. Should the ADO initiate disciplinary proceedings based on this refusal, these reasons will have to be assessed by the hearing panel as possible “compelling justifications” under Article 2.3 of the WADC.
- 40.
See Sect. 5.2.1.1.1 below.
- 41.
Already anticipated in 2006, Dvorak et al. 2006, p. 19.
- 42.
Schamasch and Rabin, 2012, p. 1696.
- 43.
See Sect. 10.2.1.2 below.
- 44.
Giraud et al. 2014, p. 332.
- 45.
For a discussion on these multiple roles, see Sect. 10.2.2.1 below.
- 46.
See Sect. 8.3.1.2 below.
- 47.
In practice, this choice is restricted by the technological capacities of the laboratory to conduct the analyses at stake (see e.g. the Technical Document for Sport Specific Analysis (TD2014SSA)).
- 48.
See the WADA website for an up-to-date list of accredited and approved laboratories: http://www.wada-ama.org/en/Science-Medicine/Anti-Doping-Laboratories/Accredited-Lab-Locations/ (accessed 12.02.15).
- 49.
Schamasch and Rabin 2012, p. 1692.
- 50.
https://www.ilac.org/aboutilac.html (accessed 17.05.14).
- 51.
Schamasch and Rabin 2012, p. 1692.
- 52.
http://www.wada-ama.org/en/Science-Medicine/Anti-Doping-Laboratories/Laboratory-Assessors/ (accessed 13.01.14); see also, Minutes WADA ExCo Meeting 20 September 2008, p. 33.
- 53.
On the difficulty of monitoring the proficiency of forensic laboratories, see Vuille et al. 2013, p. 1102.
- 54.
The first actual decision of revocation by WADA was confirmed on appeal in CAS 2010/A/2162, Doping Control Centre, Universiti Sains Malaysa v. WADA. Other recent examples: the Rio laboratory had its accreditation revoked, after a first suspension for IRMS analysis (WADA Press Release of 27 August 2013, http://playtrue.wada-ama.org/news/wada-revokes-accreditation-of-rio-de-janeiro-laboratory/ (accessed 06.02.14)); the Moscow laboratory was under close scrutiny until WADA decided to impose a decision with staying effect, conditional upon the implementation of certain measures, which enabled the satellite laboratory in Sochi to perform its work during the 2014 Winter Olympic Games WADA Decision of 17 November 2013, (http://playtrue.wada-ama.org/news/wada-decision-on-the-status-of-compliance-regarding-the-moscow-antidoping-center/ (accessed 13.01.14)). Earlier announcements of suspension in 2011 included the Tunis Laboratory, as well as the Turkish laboratory.
- 55.
CAS 2011/A/2566, Veerpalu v. FIS, para 97: “As a preliminary point regarding accreditation, the Panel draws attention to CAS precedents stating that “[a] CAS panel cannot place in question whether an ISO [International Organization for Standardization] accreditation was correctly attributed to a laboratory, because this would render the whole international standardization and certification system meaningless and because, notoriously, compliance with ISO accreditation requirements is regularly checked by external auditors.”; see also CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 147.
- 56.
CAS 2010/A/2185, Blanco v. USADA, para 9.4.6: “WADA and the ISO are the bodies possessing the expertise necessary to determine whether a particular control is appropriate and therefore mandatory with regard to any given test”.
- 57.
See Sect. 5.2.2.2.1.2 below.
- 58.
The most famous example is CAS 2007/A/1394, Landis v. USADA, para 235 et seq., in which the Athlete’s declared strategy laid in accusing the laboratory of “bias, inconsistent and false statements and fraudulent documents” to cover up its flaws during the initial analysis; for another rather speculative allegation of a “forged” document, see also CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.20.
- 59.
CAS 2007/A/1394, Landis v. USADA, para 238 et seq.
- 60.
CAS 2010/A/2041, Chepalova v. FIS, para 149; see Sect. 5.1.1.3.3.2 below.
- 61.
In an equine doping matter, with a laboratory approved by the FEI (WADA does not accredit laboratories for animal doping), CAS 2005/A/895, Lissarague et al., v. FEI & Sheikh Hazza, para 118, the fact that the competitor who would benefit from the Athlete’s Disqualification is a national of the laboratory’s host country was not considered an assertion strong enough to prove that the laboratory engaged in dishonest conduct.
- 62.
CAS 2007/A/1394, Landis v. USADA, para 243.
- 63.
CAS 2005/A/884, Hamilton v. USADA, para 70.
- 64.
CAS 2006/A/1119, UCI v. Landaluce & RFEC, para 115, where the laboratory had disregarded the “different analyst” rule. The panel felt confident about the fact that this was due to a work overload at the laboratory. The panel emphasised that dishonest individuals would have covered up their conduct so that no flaw could be discovered from the analysis report, whereas, in the matter at stake, the Athlete’s acquittal had been made possible by information truthfully communicated by the laboratory.
- 65.
CAS 2009/A/1752, Devyatovskiy v. IOC, Tsikhan v. IOC, para 5.103 et seq. In a matter involving the analyses carried out by the Beijing Laboratory during the Beijing Olympic Games, it becomes obvious that the laboratory had committed various errors, and, in addition, presented “artificial documents” by re-constructing in a “cut-and-paste” manner the sequence file of the Samples so that an interruption of the programmed sequence during the analysis with a manual alteration of the positioning of the Sample would nearly have gone unnoticed. The panel noted this “with concern” and declared itself “troubled by the incomplete explanation” of why the laboratory did so, but refrained from explicitly placing an accusation of lack of probity on the laboratory.
- 66.
At the time, the scope and purpose of such approval was disputed among stakeholders. It was suggested that A Sample screening or full analysis could be performed at those laboratories, with the opportunity for Athletes to request B Sample analysis at an accredited laboratory, at least for Samples taken at national level Competitions. No such possibility was finally introduced (see e.g. Consultation WADC review process: AFLD, 2nd phase 2009, ad Article 6.1, p. 4).
- 67.
See WADA website “Approved Laboratories”: https://www.wada-ama.org/en/what-we-do/science-medical/laboratories (accessed 12.02.15). Few applications have been received and WADA was to launch a more proactive search for blood laboratories in regions with insufficient laboratory coverage (Minutes WADA ExCo Meeting 11 May 2013, p. 64).
- 68.
WADA document of July 2010, “Criteria for the Approval of Non-WADA Accredited Laboratories for the Athlete Biological Passport”.
- 69.
See also CAS 2010/A/2178, Caucchioli v. CONI & UCI, para 37.
- 70.
Specifically for the regularity of the analysis, see Sect. 5.2.2.2.1.2 below.
- 71.
With the exception of the rare possibility for WADA to authorise subcontracting by a WADA-accredited or approved laboratory to an ISO-accredited laboratory, that has a specific technology which is not required for the WADA-accredited laboratory (Article 5.3.5 of the ISL).
- 72.
See now explicitly, Comment ad Article 6.1 of the 2015 WADC: “Violations of other Articles [i.e. other than Article 2.1] may be established using analytical results from other laboratories so long as the results are reliable”.
- 73.
See Sect. 5.2.2.2 below.
- 74.
See Sect. 8.1.2.2.3 below.
- 75.
Minutes WADA ExCo Meeting 11 May 2013, p. 64/65.
- 76.
- 77.
Sect Sect. 3.2.3.2.2.2 above.
- 78.
See Sect. 5.1.1.2.1 above.
- 79.
See Sect. 5.1.1.3 above.
- 80.
Saugy 2012, p. 653; Botrè et al. 2014, p. 1/2.
- 81.
Laboratory Code of Ethics, Annex B of the ISL, Section 4.0: “Laboratories should exercise due diligence to ascertain that the Samples are collected according to the World Anti-Doping Code International Standard for Testing or similar guidelines. These guidelines shall include collection of Samples, appropriate Sample container security considerations, and formal chain of custody conditions”.
- 82.
Interestingly, the ISL provides that the laboratory shall “seek instructions” from the Testing Authority with respect to urine (Articles 5.2.2.3 and 5.2.2.4 of the ISL), while the equivalent sentence for blood invites the laboratory to “seek advice” from the Testing Authority (Articles 6.2.2.3 and 6.2.2.4), which could imply that the ultimate power of decision would lie with the ADO for urine and with the laboratory for blood.
- 83.
The Testing segment, especially Out-of-Competition involving continental travel of Doping Control Officers to the Athlete’s (remote) training locations and subsequent transport of the Sample, can reasonably be expected to trigger higher costs for ADOs than the analysis itself. Under this assumption, each Sample that reaches the laboratory and is not analysed represents a waste of resources for the Testing Authority, which will logically insist that the Sample be analysed irrespective of any suspected irregularities, be it only for targeting purposes.
- 84.
See the critical assessment by the CAS panel in CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 181, stressing the risk of an ADO systematically and willfully disregarding the ISTI.
- 85.
See the suggestion in WADA Report on the Lack of Effectiveness of Testing Programs, Recommendations, p. 9, to create “reference laboratories” to which suspicious Samples would have to be sent; when the IOC was responsible for doing laboratory accreditation, laboratories were divided into first and second class; in the latter, no confirmatory analysis could be performed (see Consultation WADC review process: ASOIF, 1st phase 2015, ad Article 6, p. 1).
- 86.
See e.g. initial condition that the country in which the candidate laboratory is located has a national anti-doping program compliant with the International Standards, has ratified the UNESCO Anti-Doping Convention and paid its financial contributions to WADA (Article 4.1.2 of the ISL).
- 87.
Letter of support from Signatory ADOs guaranteeing a minimum annual quantity of 3,000 samples from WADC-compliant clients within 2 years of accreditation, as well as the guarantee by entities acceptable to WADA of sufficient annual financial support for a minimum of 3 years and necessary analytical facilities and instrumentation will be provided (Article 4.1.3 of the ISL); Duty to maintain a minimum turnover of 3,000 Samples analysed from Code-compliant clients per year (Article 4.4.9 of the ISL).
- 88.
Strict restrictions on analysing Sample or other biological materials other than those collected in a regular Doping Control process (e.g. no analysis of nutritional supplements, no analysis for Athletes, Laboratory Code of Ethics, Annex B of the ISL).
- 89.
Laboratory personnel may be members of WADA expert groups, in particular the “Laboratory Expert Group”, which is responsible for the management of accreditation and re-accreditation and the revision of the ISL and Technical Documents, or the “List Group”.
- 90.
For example: Institute of Biochemistry—German Sport University Cologne; Drug Control Centre King's College London; Norwegian Doping Control Laboratory Department of Pharmacology Oslo University Hospital; Laboratoire Suisse d’Analyse du Dopage Centre Hospitalier Universitaire Vaudois et Université de Lausanne. Exceptionally, laboratories operate on a purely commercial basis: Finland United Medix Laboratories Ltd.
- 91.
For example: Agence Française de Lutte contre le Dopage (AFLD) Département des Analyses; Laboratório de Anáólises de Dopagem (LAD) Autoridade Antidopagem de Portugal (ADOP); Laboratorio de Control de Dopaje de la Agencia Estatal Antidopaje.
- 92.
Lack of independence of NADOs due to public funding and pressure exercised on NADOs and laboratories in certain countries, for example to avoid reporting positive results, is a negative factor that has been observed in the WADA Report on the Lack of Effectiveness of Testing Programs, Appendix A, p. 4 and 9.
- 93.
WADA Report on the Lack of Effectiveness of Testing Programs, Appendix A, p. 9: “Constant use by an ADO of a particular laboratory may lead to a level of financial dependence and erosion of independence”.
- 94.
See the multidisciplinary expert meeting that produced the consensus statement in November 2013, Dvorak et al. 2014b.
- 95.
- 96.
E.g. regarding the timing of the reporting, the need for collaboration with another laboratory for a second opinion, or even discussions about the application in time of an upcoming Technical Document to current Samples; see Sect. 5.1.1.2.2.2 above.
- 97.
Minutes WADA ExCo Meeting 11 September 2013, p. 12; WADA Report on the Lack of Effectiveness of Testing Programs, p. 9: “Laboratories have been willing to disclose and discuss suspicious samples with the IF concerned and even the Athlete involved”; p. 7: “No further examination occurs in many cases where thresholds are involved or extra fees are required to proceed with confirmation (e.g., where the T-E ratio is under 4:1, CIR analysis to detect synthetic testosterone is not required to be used)—some laboratory directors have seen profiles with abnormal T-E ratios of 10–12 and no IRMS performed”.
- 98.
WADA Report on the Lack of Effectiveness of Testing Programs, Recommendations, p. 8: “No communication shall occur between any laboratory and the ADO before the sample analysis has been completely concluded and documented”.
- 99.
See Sect. 10.2 below.
- 100.
WADA Report on the Lack of Effectiveness of Testing Programs, p. 7. The new steroidal module in the Athlete Biological Passport Program, effective as of 1st January 2014, limits the ADOs discretion in this respect, since IRMS becomes mandatory in certain circumstances.
- 101.
As described in Sect. 6.2.3.2 below. The revised 2015 regime enhances transparency while upholding the pragmatic approach prevailing today, since the contacts before the A Sample Confirmation Procedure with respect to substances with limited tolerated use are explicitly allowed, but need to be in writing and copied to WADA (Article 5.2.4.3.1.1 of the ISL). See the discussions in Minutes WADA ExCo Meeting 10 September 2013, p. 12 and 29.
- 102.
See Sect. 10.2 below.
- 103.
- 104.
The term “technical” instead of “scientific” is used to avoid conveying an impression that these rules are not “legal”. Thus “technical” refers to the contents of the rules, as opposed to their nature. In fact the nature of some of these rules—legal or non-legal—is debated, as shown in Sect. 5.1.2.4 below.
- 105.
See Sect. 2.2.2.1 above.
- 106.
The “Prohibited List” defines the scope of the prohibition of doping and is addressed in Sect. 7.1 below, as an example of a standardising mechanism. The International Standard for the Protection of Privacy and Private Information (“ISPPPI”) is a document with a more legal connotation, which only bears limited—though important—implications for scientific evidentiary purposes, in particular with respect to the retention times for analytical data and biological Samples. This document will be mentioned selectively where relevant for the topics discussed in this book. Similarly, the International Standard for Therapeutic Use Exemptions (“ISTUE”) is a document with a strong medical character that is only indirectly relevant to the Doping Control process and will be addressed selectively where relevant to evidence-gathering.
- 107.
Section “Purpose, Scope and Organization of the World Anti-Doping Program and the Code” in the WADC, as well as Section 1.0 “Introduction and Scope” of the ISTI and ISL.
- 108.
Appendix 1 (Definitions) of the WADC, International Standard: “International Standards shall include any Technical Document issued pursuant to the International Standard”.
- 109.
“Purpose, Scope and Organization of the World Anti-Doping Program and the Code” in the WADC.
- 110.
Appendix 1 (Definitions) of the WADC “International Standard”; see also Section 1.0 of the ISL “Introduction, Scope and References”: “Compliance with an International Standard (as opposed to another alternative standard, practice or procedure) shall be sufficient to conclude that the procedures covered by the International Standard were performed properly”.
- 111.
CAS 2006/A/1162, Iglesias v. FILA, para 3.6.
- 112.
Berninger 2012, p. 70/71, considers that Signatories have no duty to transpose the International Standards word-by-word, but that non-implementation would amount to a lack of compliance with the WADC.
- 113.
CAS 2009/A/1931, Yourieva & Akhatova v. IBU, para 7: “the ISL is therefore not directly applicable to Athletes but rather to the signatories to the WADAC”. Though this finding left the CAS panel apparently undisturbed, one can easily imagine the risks that might arise if one were to follow through with this view in an inconsiderate manner and to the detriment of the Athlete, as indeed occurred in a matter decided by a sole CAS arbitrator (CAS 2012/A/2779, IAAF v. CBAt & Alves Da Silva), which extended the statement to the ISTI (at the time IST) and anti-doping regulations themselves: “the Athlete cannot therefore invoke any alleged departures from the IST, ISL or the IAAF Anti-Doping Regulations with a view to having them applied in her favour because these regulations are purely aimed at easing the work of the national antidoping organizations and the WADA accredited laboratories for effective testing. It was within the ANAD´s discretion to decide whether or not to follow the IST, the ISL and/or IAAF Anti-Doping Regulations when collecting the Athlete´s sample because these regulations do not specify the consequences of failing to follow the laid down procedures”.
- 114.
See also Section 1.0 of the ISL: “The main purpose of the […] ISL is to ensure laboratory production of valid test results and evidentiary data and to achieve uniform and harmonized results and reporting from all laboratories”.
- 115.
The Athlete must apply proper conduct during the analysis, under penalty of being “removed by proper authority” from the laboratory and with the risk of being exposed to disciplinary proceedings for Tampering with Doping Control (Articles 5.2.4.3.2.6 (urine) and 6.2.4.2.2.6 (blood) of the ISL). Note that it is hardly imaginable how a laboratory might ever actually enforce this provision in practice, given the enormous underlying responsibilities and consequences for the prosecution of the case.
- 116.
See Sect. 11.1.3 below.
- 117.
See Sect. 6.2.2.2 below.
- 118.
CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 104.
- 119.
See Sect. 5.1.2.3 below.
- 120.
An ADO who would dispute before CAS the application of the International Standards based on lacking consent of the Athletes would not only act strategically in an unwise manner, but would probably be found to commit a “venire contra factum proprium”.
- 121.
The laboratories and the ADOs benefit from a presumption of adherence to the International Standards. It is for the Athlete to show that a departure from these International Standards occurred that could reasonably have caused the Adverse Analytical Finding or other anti-doping rule violation. Departures that did not cause the Adverse Analytical Finding or other anti-doping rule violation shall not have an invalidating effect (Articles 3.2.2 & 3.2.3 of the WADC, and Sect. 5.2.1.1 below).
- 122.
On these departures, see Sect. 5.2 below. The sole arbitrator’s findings in CAS 2012/A/2779, IAAF v CBAt & Alves Da Silva, para 209, denying in effect the Athlete the right to invoke departures from the International Standards, is at odds with the WADC system.
- 123.
This was apparent both from the “Athlete Consent Form” in Appendix 2 of the 2009 Model Rules (“I confirm that I shall comply with and be bound by all of the provisions of the [IF] Anti-Doping Rules, including but not limited to, all amendments to the Anti-Doping Rules and all International Standards as issued by the World Anti-Doping Agency and permanently published on its website”) and the text of the Model Rules themselves (Article 5.3: “Testing conducted by IF and its National Federations shall be in conformity with International Standard for Testing in force at the time of Testing”), emphasis added.
- 124.
As recommended by Article 6.4 of the 2009 and 2015 WADA Model Rules; the German NADA, for example, has adopted its own Standards, see Berninger 2012, p. 71.
- 125.
In CAS 2011/A/2671, UCI v. Rasmussen & DIF, para 68, a discrepancy between the applicable UCI rules and the IST with respect to notification to the Athlete of a whereabouts failure was invoked, though against the UCI. The CAS panel, however, was able to leave the question of the prioritisation of the rule undecided; similarly, the same issue was left undecided in CAS 2008/A/1607, Varis v. IBU, para 15, with respect to the amended time limit for conducting the B Sample analysis (from 30 to 7 working days) in the ISL, which had not yet been reflected in the IBU rule at the time.
- 126.
The Model Rules recommend the following provision in Article 5.1: “Testing and investigations shall only be undertaken for anti-doping purposes. They shall be conducted in conformity with the provisions of the International Standard for Testing and Investigations and the specific protocols of [IF/NADO] supplementing that International Standard”.
- 127.
David 2013, p. 60, considers that when Athlete agrees to the Code, the scope of the agreement will depend on its interpretation, but that “the agreement will usually have the effect of incorporating the provisions of the various International Standards which are incorporated into the Code and the relevant results management and hearing rules under the Code” (emphasis added). In our view, this could in any event only apply to rules that are sufficiently precise to be directly applicable to a particular matter, which is not the case for a significant number of the provisions in the ISL or ISTI.
- 128.
This technique may not be admissible in all national laws, in particular dynamic references in associations’ rules to incorporate the regulations of the international federation are not considered valid in Germany (see Haas and Martens 2011, p. 70).
- 129.
See Sect. 2.1.1.2.2 above.
- 130.
See Sect. 2.1.1.2.2.1 above.
- 131.
David 2013, p. 39; see e.g. CAS 2009/A/1879, Valverde v. CONI, para 15; for an overview of CAS awards and other sports authorities having dealt with lex mitior, see the AAA Panel, USADA v. Brunemann, No. 77 190 E 00447 08 JENF, 26 January 2009, para 10.1; the doctrine was initially recognised in an Advisory Opinion CAS 94/128, UCI & CONI, para 33.
- 132.
The prohibition of retroactivity has also been applied by German courts for sports associations (see Fritzweiler et al. 2014, p. 244 with references); contra, however, CAS 2004/A/626, IAAF v. öLV & Lichtenberger, p. 24, where the panel refused to apply the doctrine of lex mitior because the IAAF rules implementing the 2003 WADC contained only the provision that the rules in force at the time of the offence apply.
- 133.
Swiss Supreme Court, 4A_620/2009, para 4.2 et seq.; Swiss Supreme Court, 4A_612/2009, para 6.3; Swiss Supreme Court, 4A_624/2009, para 3.2.2.
- 134.
However, the Swiss Supreme Court left undecided whether lex mitior falls within the ambit of public policy (see Swiss Supreme Court, 4A_620/2009, para 4.2 et seq.); rather against making lex mitior fall within the concept of public policy, see Swiss Supreme Court, 4A_612/2009, para 6.3.
- 135.
To the extent relevant here, the provision has not been modified in the 2015 WADC.
- 136.
Article 25 of the WADC raises various issues, in particular with respect to the relevant timing of the anti-doping rule violation and the concrete determination of the lex mitior version. This book only addresses the approach to technical rules, in particular International Standards and related Technical Documents and Guidelines.
- 137.
In order for the prohibition of retroactivity to apply under Article 25.2 of the WADC, the anti-doping rule violation must have “occurred prior to the Effective Date” of the revised WADC. Once it has so been determined that an issue of transitory law arises, the consequence is that “the case shall be governed by the substantive anti-doping rules in effect at the time the alleged anti-doping rule violation occurred unless the panel hearing the case determines the principle of “lex mitior” appropriately applies under the circumstances of the case”.
- 138.
Article 2 of the Swiss Criminal Code, Article 7 para 1 of the ECHR; CAS 2010/A/2083, UCI v. Ullrich & Swiss Olympic, para 76.
- 139.
CAS 2009/A/1752 and 53, Devyatovskiy & Tsikhan v. IOC, para 4.27; see e.g. in Swiss constitutional law, Tanquerel 2011, n° 419.
- 140.
CAS 2009/A/1870, WADA v. Hardy & USADA, para 93.
- 141.
Lenz 2000, p. 43.
- 142.
CAS 2009/A/1782, Volandri v. ITF, para 50; similar definition in CAS 2000/A/289, UCI v. FFC, para 7; see also CAS 2009/A/1817 and 1844, WADA & FIFA v. CFA, Marques, Eranosian et al., para 134: “the new provisions must also apply to events which have occurred before they came into force if they lead to a more favourable result for the Athlete”.
- 143.
The lex mitior thus applies if the new rules are more favourable than the ones that were in force at the time of the offence. Contrary to the AAA panel’s statement in USADA v. Brunemann, para 10.1, the objective is not “to ensure that an Athlete who commits a doping offence is not sanctioned more severely if the WADA doping rules and sanctions change from the date of the Athlete’s doping offence to the date of the hearing”. This is the purpose of the non-retroactivity principle.
- 144.
Article R67 of the CAS Code contains a similar provision.
- 145.
Piquerez and Macaluso 2012, p. 22; some CAS panels refer, however, to the principle tempus regit actum to describe the prohibition of retroactive application of substantive rules (see e.g. CAS 2011/A/2645, UCI v. Kolobnev & RCF, para 62).
- 146.
CAS 2002/O/410, Gibraltar v. UEFA, para 8.
- 147.
A CAS panel in 2004 determined that the lex mitior does not apply to sporting sanctions. The Athlete’s Disqualification must be upheld for having participated in the race in breach of the rules in force at the time, even if the substance at stake is no longer prohibited (see CAS 2004/A/591, Kleynen v. RLVB, p. 16). It is doubtful whether a CAS panel would decide in the same way today under the explicit Article 25.2 of the WADC. Excluding Disqualification from the reach of the lex mitior can hardly be reconciled with the structure of the WADC. The prohibited character of the substance is an element of the anti-doping rule violation. If the substance is no longer prohibited under the new rules, there is no anti-doping rule violation and thus no room for Disqualification.
- 148.
CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 24; this includes the starting point of the Ineligibility period, see CAS 2008/A/1471 and 1486, FINA v. Tagliaferri & Federazione Italiana Nuoto, WADA v. CONI & Tagliaferri, para 9.6.1.
- 149.
CAS 2001/A/318, V. v. Swiss Cycling, 23 April 2001, para 29 for the deduction of provisional suspension periods, respect. Paragraph 43 for the granting of probation.
- 150.
Albeit in relation with the application of the principle that the rules in force at the time of the doping offence apply, not for the exception of lex mitior. See, however, accepted in CAS 2009/A/1879, Valverde v. CONI, para 14.
- 151.
A Prohibited Substance removed from the List or reclassified as a Specified Substance: CAS 2009/A/2014, AMA v. ASBL RLVB & Keisse, para 68; CAS 2002/A/389 et al., A. et al . v. IOC, 20 March 2003, para 18; CAS 2004/A/591, Kleynen v. RLVB, p. 16.
- 152.
CAS 2010/A/2083, UCI v. Ullrich & Swiss Olympic, para 76. The panel found that there is no case of a “second offence” if the conduct sanctioned in the initial offence would no longer be prohibited at the time of the second proceedings.
- 153.
CAS 2004/A/602, X v. FISA; also, albeit obiter dictum only, CAS 2009/A/1752 and 1753, Devyatovskiy & Tsikhan v. IOC, para 4.27; however, left undecided for the burden of proof, CAS 2010/A/2185, Blanco v. USADA, para 9.1.4.
- 154.
See, imprecisely, CAS 2014/A/3488, WADA v. Lallukka, para 115, but referring to CAS 2000/A/274, S. v. FINA, which makes it clear that only procedural aspects of evidence were meant.
- 155.
CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 24. In this matter, the Sample collection and the A Sample analysis had been conducted in 2008, but the B Sample analysed in 2009, under the new WADA ISL, which no longer includes the famous “different analyst rule”. In particular, the panel found, the mere fact that applying the former technical rules would provide the Athlete with an objection of a procedural defect does not make these rules more favourable.
- 156.
CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 24 “this principle relates more specifically to the applicable sanction and not the technical rules underlying the scientific basis of the evidence”.
- 157.
CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 24: “it would be impossible here to determine which is the more favourable ISL”.
- 158.
CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 24: “it cannot be the intent of the rule to allow an accused to afford itself of the more favourable science”.
- 159.
CAS 2010/A/2041, Chepalova v. FIS, para 74; see also CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 24.
- 160.
CAS 2010/A/2041, Chepalova v. FIS, para 74.
- 161.
CAS 2009/A/1820, Stefan Schumacher c. UCI, para 152.
- 162.
See also, Berninger 2012, p. 105 et seq.
- 163.
CAS 2009/A/1912 and 1913, Pechstein & DESG v. ISU, para 109; confirmed for the Athlete Biological Passport in CAS 2010/A/2178, Caucchioli v. CONI & UCI, para 34 and CAS 2010/A/2308 and 2335, Pellizotti v. CONI & UCI, para 38.
- 164.
CAS 2010/A/2178, Caucchioli v. CONI & UCI, para 34 .
- 165.
CAS 2012/A/2857, NADA v. Sinkewitz.
- 166.
CAS 2012/A/2857, NADA v. Sinkewitz, para 223, where the CAS panel accepted as evidence a report with new decision limits published after the relevant analysis, finding that this admission did not conflict with the prohibition of retroactivity since the decision limits were published only in WADA Guidelines.
- 167.
CAS 2011/A/2566, Andrus Veerpalu v. FIS, para 77, referred to the same WADA hGH Guidelines in the “applicable law” section; see also, implicitly, CAS 2010/A/2235, UCI v. Valjavec & Olympic Committee of Slovenia, para 81; CAS 2010/A/2308 and 2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 65, referring to the “effective date” of the WADA ABP Guidelines as conditioning their application to the matter.
- 168.
See Section “Purpose, Scope and Organization of the World Anti-Doping Program and the Code” of the WADC, as well as Section 1.0 “Introduction and Scope” of the ISTI and ISL; confirmed in CAS 2012/A/2857, NADA v. Sinkewitz, para 189 et seq.
- 169.
Thus, the ISL also contains non-mandatory provisions (see CAS 2011/A/2566, Andrus Veerpalu v. FIS, para 134), and is nevertheless clearly considered a set of “legal” rules.
- 170.
In yet another CAS award, the UCI Athlete Biological Passport Program, as a whole, was characterised as a system of legal rules that is not open for a CAS panel to review, even though the UCI has not adopted any mandatory documents distinct from the WADA ABP Guidelines (see CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 81).
- 171.
TD2014DL, Table 1: “Note: For detection of human growth hormone (hGH), the applicable values of uc Max and the corresponding DL will be specified in the corresponding WADA Guideline or Technical Document for the application of the hGH differential immunoassays and/or the hGH Marker Method for anti-doping analyses”.
- 172.
See e.g. Articles 5.2.4.3.1.6 (urine) & 6.2.4.2.1.6 (blood) of the ISL, referring to the value necessary to report Threshold Substances: “That value shall exceed the value of the relevant Decision Limit as specified in the Technical Document on Decision Limits or applicable Guidelines” (emphasis added).
- 173.
For proposals, see Sect. 5.1.2.4 below.
- 174.
See, in particular, Sect. 3.3 above.
- 175.
The reservation of a retirement constituting an abuse of rights to escape sanctions that is advocated in literature cannot apply to the amendment of procedural rules. Either those rules are immediately applicable because they are deemed neutral with regard to the Athlete’s position, so that there can be no bad faith of the Athlete in retiring before they become effective, or the new rules are less favourable to the Athlete, in which case the prohibition of retroactivity should in any event apply.
- 176.
This raises concerns especially with respect to the extended period of Sample storage (10 years, see Annex A of the ISPPPI) and the encouragement to long-term storage and reanalysis of Samples by ADOs in the revised 2015 WADC.
- 177.
On the controversy regarding the extension of disciplinary authority to retired Athletes, especially among German commentators, see Haas 2009, p. 37 et seq.; Berninger 2012, p. 57/58; Hofmann 2012, p. 233, in reply to Krähe 2012, p. 141 et seq.
- 178.
On the concept of excessive commitment, see Sect. 3.2.2.2.3 above.
- 179.
The solution advocated here may cause difficulties if the former technical rule can no longer be implemented, e.g. because the instruments or even a legal entity no longer exists. These practical considerations, however, do not in our view counterbalance the risks that would go ahead if Athletes were to submit in advance to any subsequent amendment of procedural rules.
- 180.
An illustration is the amendment in the ISL that recently abandoned the “different analyst” rule for the A and B Sample analysis. In our view, at the time of this amendment any Athlete had the right to withdraw his or her consent and renounce participating in sport under these modified circumstances, for example if they found that their protection against false Adverse Analytical Findings were undermined. If a result management were subsequently carried out under Article 7.11 of the WADC against an Athlete who retired either prior to or upon announcement of this amendment, the sports organisations should not be entitled to deny such Athlete the right to a different analyst.
- 181.
See Sect. 5.1.2.2 above.
- 182.
Piquerez and Macaluso 2012, p. 50, mention as an example a restriction of personal freedoms that did not exist under previous rules; contra: Schmid 2009, p. 22.
- 183.
See the illustrations in Sect. 5.1.2.1.2 above.
- 184.
See Sect. 5.1.2.2.1 above; CAS 2010/A/2041, Chepalova v. FIS, para 74; CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 29.
- 185.
Note that the revised 2015 ISL appears to further strengthen this jurisprudence, by providing that “Technical Documents are posted on WADA’s website when approved by the WADA Executive Committee and may be applied prior to the effective date for implementation” (Section 1.0). The wording of this provision is, however, unclear and can be interpreted either as reflecting the CAS panels’ approach by allowing laboratories to apply a Technical Document prior to the date specified “as the effective date for implementation”, or merely allowing laboratories to apply the Technical Document prior to the effective date “for implementation purposes”, i.e. to prepare itself for conducting analyses according to the new Technical Document as of the effective date.
- 186.
On the chronology of the implementation of advances in anti-doping science, see Sect. 6.3.1 below.
- 187.
See Sect. 6.1.1 below.
- 188.
Probably in awareness of these difficulties, a CAS panel invited WADA to add a provision to the ISL whereby the most recent state-of-the-art technology and knowledge should be used, “particularly in a transitional period between use of an existing and effective TD and a replacing one” (CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 12). This, however, would suppose that a transitional period be defined, but no such period currently exists under the ISL.
- 189.
Giraud et al. 2014, p. 342.
- 190.
Such a “healing” rule could even been perceived as opening the door to abuses, since it gives WADA the power to rescue a politically important but flawed doping case by correcting the applicable scientific rules a posteriori, i.e. as long as this is done before the hearing (which, in the absence of other indication, could probably even be the CAS hearing).
- 191.
On this topic, see Sect. 6.2.4.2.1.2 below.
- 192.
CAS 2011/A/2435, WADA v. Thys, ASA & SAIDS, para 93.
- 193.
Giraud et al. 2014, p. 342.
- 194.
See Sect. 5.2 below.
- 195.
AAA Panel, USADA v. Jenkins, No. 30 190 00199 07, 25 January 2008, para 144; AAA Panel, USADA v. Landis, No. 30 190 00847 06, 20 September 2007, para 239.
- 196.
CAS 2007/A/1444 and 2008/A/1465, UCI v. Iban Mayo & RFEC, para 115, regarding the requirements for adequate transport of the Samples.
- 197.
Appendix 1 (Definitions) of the WADC “International Standard”: “[…] Compliance with an International Standard (as opposed to another alternative standard, practice or procedure) shall be sufficient to conclude that the procedures addressed by the International Standard were performed properly”.
- 198.
Rigozzi and Quinn, 2012, p. 21, whereby this practice amounts de facto to a “hidden legal fiction” that a process conducted in accordance with the International Standards is constitutive of an anti-doping rule violation.
- 199.
In CAS 2007/A/1312, Adams v. CCES, para 147, the panel considered that this is so even if the rules are shown to be inadequate in a particular case by the very fact that a Sample contamination did occur.
- 200.
CAS 2007/A/1394, Landis v. USADA, para 33, regarding the IRMS analysis; cpre CAS 2006/A/1057, UCI v. Forde & Barbados Cycling Union, para 59 et seq., where the panel found that it was not sufficient for the Athlete to limit his “argument to the general assertion that according to scientific literature, the GC/C/IRMS analysis is a very complex method, which has been proven to be faulty”. The wording is more ambiguous in indicating that the Athlete could have put into question the quality of the IRMS test itself, but the examples of possible arguments quoted by the panel show that what was contemplated was departures from applicable rules rather than questioning these rules; see rather explicitly also, AAA Panel, USADA v. Jenkins, No. 30 190 00199 07, 25 January 2008, paras 110 & 111, whereby “the purpose and scope of the ISL” preclude an adjudicatory panel from imposing a higher or other standard on an accredited laboratory, so that the panel did not feel entitled to “question the wisdom or practicality of the applicable standard”.
- 201.
CAS 2011/A/2353, Tysse v. Norwegian Athletics Federation & IAAF, para 8.19.
- 202.
See also, AAA Panel, USADA v. Jenkins, No. 30 190 00199 07, 25 January 2008, para 144; AAA Panel, USADA v. Landis, No. 30 190 00847 06, 20 September 2007, para 239 et seq.
- 203.
AAA Panel, USADA v. Landis, No. 30 190 00847 06, 20 September 2007, para 239 et seq.
- 204.
On the absence of a quantitative analysis in the B Sample for confirmation of exogenous Threshold Substances, see CAS 2009/A/2014, WADA v. RLVB & Keisse, para 126 et seq.; for the absence of admissible range of variances between the A and B Sample in the IRMS analysis, see CAS 2010/A/2185, Blanco v. USADA, para 9.5.17.
- 205.
CAS 2010/A/2178, Caucchioli v. CONI & UCI, para 44; CAS 2010/A/2308 and 2335, Pellizotti v. CONI & UCI, para 38.
- 206.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 81.
- 207.
See Sect. 5.1.2.4.2.1 below.
- 208.
CAS 2011/A/2566, Veerpalu v. FIS, para 95.
- 209.
AAA Panel, USADA v. Landis, No. 30 190 00847 06, 20 September 2007, para 239 et seq.
- 210.
CAS 2006/A/1119, UCI v. Landaluce & RFEC, para 78.
- 211.
CAS 2010/A/2185, Blanco v. USADA, para 9.4.6: “WADA and the ISO are the bodies possessing the expertise necessary to determine whether a particular control is appropriate and therefore mandatory with regard to any given test”.
- 212.
CAS 2010/A/2185, Blanco v. USADA, para 9.6.3 et seq.
- 213.
More precisely, the challenge was about the robustness requirement necessary to validate methods under Articles 5.4.4.1 and 5.4.4.2 of the ISL. Note that there appears to have been some confusion around the qualitative versus quantitative nature of the analysis, but the award ultimately recognizes the IRMS analysis as a qualitative method for identification of Testosterone of exogenous origin (CAS 2009/A/1752, Devyatovskiy & Tsikhan v. IOC, para 5.23 cpre with 5.66 and 5.70; confirmed in CAS 2010/A/2185, Blanco v. USADA, paras 9.5.2 and 9.5.9).
- 214.
CAS 2009/A/1752, Devyatovskiy & Tsikhan v. IOC, para 5.22 et seq. This ultimately led to an invalidation of the analytical results for one of the Athletes involved, since—combined with the fact that the values were borderline—the variances were considered too random for the B Sample to confirm the A Sample.
- 215.
CAS 2011/A/2566, Veerpalu v. FIS, paras 94 et seq., and 206.
- 216.
See Sect. 6.3 below.
- 217.
CAS 2009/A/1752, Devyatovskiy & Tsikhan v. IOC, para 5.59 Another more incisive option would have been to draw an adverse inference that the laboratory had not set up the appropriate reproducibility criteria, which might have led to a finding that the method has not been properly validated and should thus be considered unreliable as such; note that in CAS 2010/A/2185, Blanco v. USADA, para 9.5.15, a CAS panel reached the view that the laboratory’s SOPs contained no relevant indication but did not consider this a lack of validation of the method, finding however that it would be desirable for the uncertainty measurement to be codified.
- 218.
For the solution in 2015 and beyond, see Sect. 6.3.3 below.
- 219.
CAS 2011/A/2566, Veerpalu v. FIS, para 94 et seq.
- 220.
CAS 2009/A/2014, WADA v. RLVB & Keisse, para 126 et seq., assimilated the Athlete’s claim that the ISL should request a quantitative analysis of the B Sample for Threshold Substances to a claim that there was a departure from the ISL, thereby placing the burden of proof on the Athlete. In fact, even the panel in Veerpalu v. FIS ended up confusing the two issues: after stating clearly the difference between the two issues and the consequences on the allocation of the burden of proof at the outset of its reasoning, in reaching its conclusions on the reliability of the analysis method, the panel apparently forgot about the distinction (see CAS 2011/A/2566, Andrus Veerpalu v. FIS, para 183).
- 221.
See Sect. 6.3.2.3 below.
- 222.
See Sect. 5.1.2.2 above.
- 223.
See Sect. 5.1.2.1 above.
- 224.
Appendix 1 (Definitions) of the WADC, “International Standard”: “shall include any Technical Document issued pursuant to the International Standard”.
- 225.
See Sect. 5.2.1 below.
- 226.
See already in CAS 2000/A/274, S. v. FINA, para 75: “the Panel has concluded that the IRMS Rule is a purely evidentiary or procedural rule, enacted in order to establish that IRMS analysis is scientifically recognised as a conclusive evidentiary method for proving the exogenous administration of testosterone”.
- 227.
CAS 2009/A/1912 and 1913, Pechstein & DESG v. ISU, para 109.
- 228.
See, imprecisely in our view, CAS 2009/A/1912&1913, Pechstein, DESG v ISU, para 110, whereby the provisions that explicitly authorise the ADOs to use blood profiles “must be properly understood as evidentiary, and thus procedural, rules”; on this distinction in the context of the Athlete Biological Passport, see Sect. 11.2.1 below.
- 229.
See, for a similar critique with respect to the NADA v. Sinkewitz award, Orth, p. 137 et seq.
- 230.
See Sect. 5.1.2.4.3 below, and, ambiguously, CAS 2000/A/274, S. v. FINA, para 61 (“rebuttable factual presumption”).
- 231.
See Sect. 4.1.2.1 above.
- 232.
CAS 98/222, B. v. ITU, para 28, whereby a “scientific presumption” rooted in sufficiently reliable scientific foundations may justify a legal rule building on these assumptions, but only as long as this assumption is not undermined by different scientific findings.
- 233.
CAS 2000/A/274, S. v. FINA, para 75: “the IRMS Rule is a purely evidentiary or procedural rule, enacted in order to establish that IRMS analysis is scientifically recognised as a conclusive evidentiary method for proving the exogenous administration of testosterone”.
- 234.
See Sect. 3.1.2.1.3 above.
- 235.
CAS 2012/A/2857, NADA v. Sinkewitz, para 223.
- 236.
See as an illustration in CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 7, where the CAS panel noted that the Comment in the WADC referring to longitudinal profiles “gives an authoritative imprimatur to the principle of using such evidence”.
- 237.
On the gradual implementation of anti-doping science in practice, see Sect. 6.3.1.3 below.
- 238.
See e.g. Articles 5.2.4.3.1.6 (urine) & 6.2.4.2.1.6 (blood) of the ISL, referring to the value necessary to report Threshold Substances, and Sect. 5.1.2.2.2 above.
- 239.
Sect. 4.2.1.2 above.
- 240.
CAS 2011/A/2566, Andrus Veerpalu v. FIS. The Veerpalu v. FIS award had a distinct impact on the WADC review process. Beyond the immediate effect of freezing the prosecution of a rhGH case pending the determination of new decision limits, the award further resulted in adding to the revised WADC a new presumption of scientific validity of analytical methods and decision limits (see Sect. 6.3.3 below).
- 241.
CAS 2012/A/2857, NADA v. Sinkewitz, paras 192/193 and 205. The findings of the NADA v. Sinkewitz award may be viewed as a pragmatic response to the rhGH problem. In effect, the award might have been intended to enable ADOs to resume the prosecution of rhGH findings without awaiting the blessing of the new decision limits by a CAS panel, providing the ratios detected are sufficiently clear-cut to build a case based on expert evidence.
- 242.
Significantly, the CAS panels in the two matters seem to have implicitly—and probably unconsciously—relied on diverging perception of the mechanics and nature of the rhGH test. See for a comparative analysis of the two awards, Viret M and Wisnosky E, Sinkewitz v. Veerpalu: Struggling to fit anti-doping science into a legal framework, Anti-Doping Blog 19 March 2014, http://wadc-commentary.com/sinkewitz/ (accessed 06.05.15).
- 243.
The Technical Document on Identification Criteria (TD2010IDCR) is to be replaced by the version TD2015IDCR on 1st September 2015.
- 244.
On the Athlete Biological Passport, see Chap. 11 below.
- 245.
TD2014DL, Table 1: “For detection of human growth hormone (hGH), the applicable values of uc Max and the corresponding DL will be specified in the corresponding WADA Guideline or Technical Document for the application of the hGH differential immunoassays and/or the hGH Marker Method for anti-doping analyses” (emphasis added).
- 246.
WADA hGH Guidelines, section 7.1.
- 247.
CAS 2014/A/3488, WADA v. Lallukka, para 9, whereby the “decision limits determine whether the recGH/pitGH ratios in kit 1 and kit 2 qualify as an adverse analytical finding. Any values above these limits will trigger the report by the laboratory of a positive test”.
- 248.
On procedural defects, see Sect. 5.2 below.
- 249.
Articles 5.2.4.3.1.6 (urine) & 5.2.4.2.1.6 (blood) of the ISL.
- 250.
Werro 2005, n° 613.
- 251.
See Sect. 5.1.2.4.3.2 below.
- 252.
See, on the Wesentlichkeitsgrundsatz in German law of associations that determine which type of rules should be enshrined at which level of regulation (see Haas and Martens 2011, p. 68).
- 253.
For example, one could argue that decisions on the Threshold applicable to Prohibited Substances ought systematically to be included in the Prohibited List and not, as is currently the case for Carboxy-THC and other substances, merely in the Technical Document on Decision Limits (TD2014DL, see Sect. 6.2.2.2.1 below).
- 254.
For example, how to calculate uncertainty measurement at the Threshold.
- 255.
See Sect. 5.1.2.1.2 above.
- 256.
See Sect. 5.1.2.2.3 above.
- 257.
See Sect. 5.1.2.2.4 above.
- 258.
See Sect. 4.2.2.1 above.
- 259.
See also, Rigozzi and Quinn 2012, p. 20, who characterise the CAS practice as a “hidden legal fiction”; thus, Berninger 2012, p. 178, assimilates without further thought an analysis that complies with the requirements of the ISL to an analysis conducted lege artis (“sofern die Analyse lege artis gemäss den Vorgaben des ISL erfolgt ist” [to the extent that the analysis lege artis has been conducted in accordance with the requirements of the ISL (author’s translation)]).
- 260.
ATF 134 III 193, Schafflützel & Zöllig v. FSC, para 4.6.3.2.2.
- 261.
It has been submitted in literature that the absence of an immunity was exposed in the Veerpalu v. FIS decision, see Rigozzi and Quinn 2012, p. 21. In our view, the Veerpalu panel considered that the decision limit was not part of the technical rules codified in the International Standards, so that one cannot consider that the award directly puts an end to the myth of an immunity of WADA technical rules before CAS.
- 262.
See in connection with rebuttable presumptions the obiter dictum in the landmark decision Devyatovskiy & Tsikhan v. IOC, in which the panel referred to Section 1.0 of the ISL that provides “Compliance with an International Standard (as opposed to another alternative standard, practice or procedure) shall be sufficient to conclude that the procedures covered by the International Standard were performed correctly”. Even though the CAS panel’s findings in the relevant section of the award indicate some confusion between the treatment of procedural departures and the reliability of the procedures themselves, the underlying reasoning certainly applies to both issues.
- 263.
On this “causality requirement”, see Sect. 5.2.3 below.
- 264.
See Sect. 5.1.2.4.2.1 above.
- 265.
CAS 2014/A/3488, WADA v. Lallukka, para 101: “the decision limits did not vary in a magnitude that brings them anywhere near the ratio values found on the Athlete”.
- 266.
CAS 2012/A/2857, NADA v. Sinkewitz, para 217.
- 267.
In the context of expert evidence, see Sect. 8.3.3.1 below.
- 268.
CAS 98/222, B. v. ITU, para 52; see, albeit ambiguously, CAS 2000/A/274, S. v. FINA, para 61.
- 269.
See Sect. 6.3.3.3 below.
- 270.
See Sect. 5.1.2.3.4 above.
- 271.
See Sect. 5.1.2.4.3.1 above.
- 272.
See Sect. 6.2 below.
- 273.
On the importance of this defence for Athletes, see Lewis and Taylor 2014, C2.66.
- 274.
Marclay et al. 2013, p. 9; see Sect. 7.3.2 below.
- 275.
See e.g. recently, CAS 2014/3475, Van Snick v. FIJ, para 52; however, in a recent non-doping disciplinary matter, CAS 2014/A/3630, De Ridder v. ISAF, para 109, the CAS panel did insist that “this does not mean that the CAS is uninterested in the disciplinary procedures of sports governing bodies”, and suggested a set of procedural fairness standards that sports authorities should consider implementing in their disciplinary proceedings.
- 276.
For a short description, see David 2013, p. 38.
- 277.
This provision was already present in the Olympic Movement Anti-Doping Code, which stated in its chapter III, Article 2: “Accredited laboratories are presumed to have conducted testing and custodial procedures in accordance with prevailing and acceptable standards of scientific practice. This presumption can be rebutted by convincing evidence to the contrary, but the accredited laboratory shall have no onus in the first instance to show that it conducted the procedures other than in accordance with its customary practices”.
- 278.
CAS 2009/A/2018, Rebellin v. IOC, para 34: the Athlete must prove that there was a violation of the rules, he or she cannot just allege a potential error in the analysis process.
- 279.
CAS 2010/A/2185, Blanco v. USADA, para 6.2.1.1: “The reason for this presumption relates to WADA’s core responsibilities, which includes providing accreditation to laboratories whose methods are used to determine the presence of Prohibited Substances; ensuring those laboratories maintain their accreditation; and ensuring they are also certified ISO”; see also Sect. 5.1.1.2.2.2 above.
- 280.
See e.g. Consultation WADC review process: Council of Europe/Sport Convention Division (France), 3rd phase 2015, ad Article 3, p. 3; Canadian Centre for Ethics in Sport/Elisabeth Hindle, 3rd phase 2015, ad Article 3, p. 5.
- 281.
Consultation WADC review process: RUSADA/Anna Antseliovitch, 3rd phase 2015, ad Article 3, p. 3; Swedish Sport Confederation/Hakan Nyberg, 3rd phase 2015, ad Article 3, p. 4.
- 282.
Consultation WADC review process: Australian Athletes Alliance/Laura Signal, 3rd phase 2015, ad Article 3, p. 1; International Cricket Council/Lorinda Rugless, 3rd phase 2015, ad Article 3, p. 2.
- 283.
In reality, the debate looms larger than it should, given the position in this book that there are only slight differences between the treatment of a procedural defect under Article 3.2.2 and under Article 3.2.3 (see Sect. 5.2.2 below).
- 284.
See Sect. 5.2.3 below.
- 285.
See e.g. Section 1.0 of the 2015 ISL; Articles 5.2.4.2.5 (urine) & 6.2.4.1.5 (blood) of the 2015 ISL; Articles 5.4.4.2.3 (for urine) of the ISL (not explicitly referred to for blood); Technical Document on ABP Results Management Requirements (TD2015RMR), section 1.
- 286.
CAS 94/129, USA Shooting & Q. v. UIT, para 50; CAS 2008/A/1608, IAAF v. AFS & Javornik, para 99.
- 287.
Christopher Campbell, Dissenting Opinion in AAA Panel, USADA v. Landis, No. 30 190 00847 06, 20 September 2007, para 61: “These doping adjudications can cause substantial harm to a human being financially, physically and emotionally. It can destroy families. If, from time to time, WADA’s mission obligates it to inflict such harm, it should be obligated to get it right—all of it”.
- 288.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 144 et seq., with further references to CAS awards.
- 289.
CAS 2013/A/3112, WADA v. Chernova & RUSADA, para 84; CAS 2009/A/1752 and 1753, Devyatovskiy & Tsikhan v. IOC, para 6.10: “Doping is an offence which requires the application of strict rules. If an Athlete is to be sanctioned solely on the basis of the provable presence of a prohibited substance in his body, it is his or her fundamental right to know that the Respondent, as the Testing Authority, including the WADA-accredited laboratory working with it, has strictly observed the mandatory safeguards”; see also CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 17: “It is not only expected but it is the duty of the accredited WADA laboratories to be strict in meeting the requirements of the ISL and applying the standards” and AAA Panel, USADA v. Jenkins, No. 30 190 00199 07, 25 January 2008, para 136.
- 290.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 147.
- 291.
See for example CAS 2010/A/2296, Vroemen v. KNAU & ADAN; CAS 2008/A/1608, IAAF v. AFS & Javornik.
- 292.
CAS 2007/A/1332, Jónsson v. IPF, para 57 (member of hearing panel acting as DCO/chaperone); CAS 2009/A/1912 and 1913, Pechstein & DESG v. ISU, para 131 (unqualified phlebotomist); CAS 98/188, Coan v. IPF, para 44 (competitor functioning as steward).
- 293.
CAS 2008/A/1555 and 1779, Kashechkin & CFRK v. UCI, para 88; CAS 2007/A/1332, Jónsson v. IPF, para 57 (failure to show identification card); CAS 2006/A/1038, N’Sima v. FIBA & AMA, para 58 (absence of regular draw); CAS 2006/A/1162, Iglesias v. FILA (absence of signature by the minor’s representative); CAS 2008/A/1558 and 1578, WADA & FEI v. SANEF & G. (incomplete notification).
- 294.
CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 112 et seq. (lack of privacy); CAS 2008/A/1608, IAAF v. AFS & Javornik, para 102 et seq. (lack of privacy, hygienic environment).
- 295.
CAS 2009/A/1768, Hansen v. FEI, para 16 (failure to wear gloves); CAS 2007/A/1312, Adams v. CCES, para 145 (failure to provide sterile catheter); CAS 98/222, B. v. ITU, para 2 (absence of urine specific gravity indication); CAS 2002/A/399, P. v. FINA, para 58 (repeating Sample collection, no choice of kits left); CAS 99/A/223, ITF v. K., para 13 et seq. (procedure for partial Sample); CAS 2001/A/337, B. v. FINA, para 36 (delayed transport of Samples).
- 296.
CAS 2011/A/2566, Veerpalu v. FIS, para 131 et seq.; CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 121 et seq. (undue delays in transport); CAS 2005/A/908, WADA v. Wium, para 6.5 (Samples left unattended at the Doping Control station);
- 297.
CAS 2001/A/337, B. v. FINA, para 25.
- 298.
CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 131.
- 299.
CAS 2001/A/337, B. v. FINA, paras 32, 68 & 69.
- 300.
CAS 2003/A/517, IAAF v. QAAF & Al Dosari, para 4.17: “the Procedural Guidelines are just what they say they are, namely, guidelines, which should be followed, if possible, but which a failure to follow does not, of itself, vitiate the whole procedure”.
- 301.
CAS 98/188, Coan v. IPF, para 59.
- 302.
CAS 98/188, Coan v. IPF, para 66: “The presence of a lockable refrigerator may be ideal, but it is not a requirement of the IPF Doping Control Procedures, nor is it essential for a reliable testing program”.
- 303.
As a CAS panel put it in an early tennis case, holding otherwise would put “the ITF at risk that departure from the procedures of a third party, which may have an unwarranted degree of sophistication, may undermine a finding which is unimpeachable by reference to the procedures which the ITF has considered adequate for proper doping control” (see CAS 99/A/223, ITF v. K, para 23).
- 304.
CAS 2008/A/1555 and 1779, Kashechkin & CFRK v. UCI, para 88.
- 305.
CAS 2007/A/1312, Adams v. CCES, para 147.
- 306.
Schamasch and Rabin 2012, p. 1693.
- 307.
CAS 2010/A/2041, Chepalova v. FIS, para 148 and 171 et seq.; CAS 2006/A/1119, UCI v. Landaluce & RFEC, para 88.
- 308.
CAS 2009/A/1820, Schumacher v. UCI, para 125; CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 36; CAS 2007/A/1394, Landis v. USADA, para 142 et seq.; CAS 2009/A/1752 and 1753, Devyatovskiy & Tsikhan v. IOC, para 5.93 et seq.; CAS 2008/A/1608, IAAF v. AFS & Javornik, para 102 ix.
- 309.
CAS 2013/A/3112, WADA v. Chernova & RUSADA, para 92; CAS 2009/A/1820, Schumacher v. UCI, para 142 et seq. Perceiving defective accreditation as a procedural defect, would, in our view, be imprecise, since the quality of WADA-accredited laboratory is part of the basis of the presumption and thus for the ADO to prove (see CAS 2007/A/1394, Landis v. USADA, para 30, and Sect. 5.2.2.2.1.1 below).
- 310.
CAS 2011/A/2566, Veerpalu v. FIS, para 110 et seq.; CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 146 et seq.; CAS 2009/A/1752 and 1753, Devyatovskiy & Tsikhan v. IOC, para 5.22 et seq.; CAS 2009/A/1820, Schumacher v. UCI, para 155; CAS 2008/A/1555/CAS 2009/A/1779, Kashechkin & CFRK v. UCI, para 92; CAS 2005/A/831, IAAF v. Hellebuyck, 5 May 2006, para 7.2.2; CAS 2005/A/884, Hamilton v. USADA & UCI, para 85 et seq.
- 311.
CAS 2011/A/2566, Veerpalu v. FIS, para 134; CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 155 et seq.; CAS 2010/A/2041, Chepalova v. FIS, para 124; CAS 2009/A/1820, Schumacher v. UCI, para; CAS 2007/A/1394, Landis v. USADA, para 88 et seq.; CAS 2007/A/1444 and 2008/A/1465, UCI v. Iban Mayo & RFEC, para 117.
- 312.
CAS 2010/A/2041, Chepalova v. FIS, para 127 et seq.; CAS 2009/A/1752 and 1753, Devyatovskiy & Tsikhan v. IOC, para 5.125 et seq.; CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 44; CAS 2007/A/1394, Landis v. USADA, para 44 et seq.; CAS 2005/A/884, Hamilton v. USADA & UCI, para 82 et seq.
- 313.
CAS 2011/A/2566, Veerpalu v. FIS, para 136; CAS 2010/A/2041, Chepalova v. FIS, para 109 et seq.; CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 33 et seq.; CAS 2007/A/1394, Landis v. USADA, para 61 et seq.; CAS 2006/A/1119, UCI v. Landaluce & RFEC, paras 72 and 84; CAS 2005/A/884, Hamilton v. USADA & UCI, para 87 et seq.
- 314.
CAS 2010/A/2041, Chepalova v. FIS, para 102 et seq.; CAS 2007/A/1394, Landis v. USADA, para 205 et seq.; CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 46; CAS 2009/A/1805 and 1847, IAAF v. RFEA & Onyia, para 98; CAS 2005/A/884, Hamilton v. USADA & UCI, para 71 et seq.
- 315.
CAS 2011/A/2566, Veerpalu v. FIS, para 135.
- 316.
CAS 2009/A/1752 and 1753, Devyatovskiy & Tsikhan v. IOC, para 5.140 et seq.; CAS 2005/A/895, Lissarague et al. v. FEI & Sheikh Hazza, para 118.
- 317.
CAS 2010/A/2296, Vroemen v. KNAU & ADAN (different analyst rule), para 135 et seq.
- 318.
CAS 2010/A/2161, Wen Tong v. IJF, para 9.3 et seq.; CAS 2010/A/2041, Chepalova v. FIS, para 156 et seq. and 163 et seq.; CAS 2009/A/1820, Schumacher v. UCI, para 155; CAS 2009/A/1768, Hansen v. FEI, para 18.4 et seq.; CAS 2008/A/1607, Varis v. IBU, para 92; CAS 2007/A/1444 and 2008/A/1465, UCI v. Mayo & RFEC, para 128; CAS 2009/A/1752 and 1753, Devyatovskiy & Tsikhan v. IOC, para 5.162 et seq.; CAS 2006/A/1119, UCI v. Landaluce & RFEC, para 95 et seq.; CAS 2005/A/895, Lissarague et al. v. FEI & Sheikh Hazza; CAS 2006/A/1149 and 2007/A/1211, WADA v. FMF & Carmona, para 39.
- 319.
CAS 2013/A/3112, WADA v. Chernova & RUSADA, para 85; CAS 2009/A/2018, Rebellin v. CIO, para 35; CAS 2009/A/1820, Schumacher v. UCI, para 122; CAS 2007/A/1444 and 2008/A/1465, UCI v. Iban Mayo & RFEC, para 111; CAS 2005/A/831, IAAF v. Hellebuyck, para 7.2.4.
- 320.
CAS 2006/A/1119, UCI v. Landaluce & RFEC, para 61.
- 321.
CAS 2007/A/1444 and 2008/A/1465, UCI v. Iban Mayo & RFEC, para 108.
- 322.
AAA Panel, USADA v. Jenkins, No. 30 190 00199 07, 25 January 2008, para 140 et seq.; see also, Sect. 5.1.2.1 above.
- 323.
- 324.
See Sect. 5.2.3.2.2.2 below.
- 325.
See Sect. 5.2.3.2.3 below.
- 326.
See Sect. 5.2.4.3.1 below.
- 327.
Technical Document for Laboratory International Chain of Custody (TD2009LCOC), p. 1.
- 328.
For an illustration, see CAS 2004/A/607, Boevski v. IWF.
- 329.
Introduction to the Technical Document for Laboratory Internal Chain of Custody (TD 2009LCOC); see also, CAS 2011/A/2612, Liao Hui v. IWF, para 65; CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 36.
- 330.
CAS 2011/A/2612, Liao Hui v. IWF, para 65/66.
- 331.
CAS 2011/A/2612, Liao Hui v. IWF, para 64.
- 332.
See Technical Document for Laboratory International Chain of Custody (TD2009LCOC), p. 1.
- 333.
See Definition in the ISL and TD2009LCOC.
- 334.
“Chain of Custody” in the Definition section of the ISTI: “The sequence of individuals or organizations who have the responsibility for the custody of a Sample from the provision of the Sample until the Sample has been delivered to the laboratory for analysis”.
- 335.
Laboratory Internal Chain of Custody in the Definition section of the ISL: “Documentation of the sequence of Persons in custody of the Sample and any Aliquot of the Sample taken for Analytical Testing. [Comment: Laboratory Internal Chain of Custody is generally documented by a written record of the date, location, action taken, and the individual performing an action with a Sample or Aliquot]”.
- 336.
See Sect. 8.2.1.3 below.
- 337.
For more details on the legal characterisation of procedural defects, see also Sect. 5.3.2.1 below.
- 338.
- 339.
David 2013, p. 76.
- 340.
CAS 2009/A/2018, Rebellin v. IOC, para 37; CAS 2008/A/1608, IAAF v. AFS & Javornik, para 102 viii; CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 36.
- 341.
CAS 2009/A/2018, Rebellin v. IOC, para 51 et seq.; see also CAS 2009/A/1820, Schumacher v. UCI, para 125.
- 342.
See also CAS 2010/A/2041, Chepalova v. FIS, para 158 ii.) and 159; CAS 2009/A/1873, WADA v. Cabreira, para 107 and 112, where an interruption of the chain of custody would, if anything, have inhibited the substance detected; CAS 2008/A/1555 and 2009/A/1779, UCI v. Kashechkin & CFRK, para 90 f; CAS 2009/A/1931, Iourieva & Akhatova v. IBU, para 37, where the typographical errors in the documentation were found immaterial.
- 343.
See, however, CAS 2008/A/1608, IAAF v. AFS & Javornik, para 102 viii/ix, where the panel was satisfied with the conclusion that “no departures from the applicable procedures can be identified”. Even there, though, the panel also noted as a kind of fall-back that the IAAF had “in fact provided evidence of the chain of custody”.
- 344.
CAS 2008/A/1718, IAAF v. All Russia Athletic Federation & Yegorova, para 195 (buccal “DNA” swabs conducted as part of investigations related to suspicion of Sample manipulation); CAS 2007/A/1396 and 1402, WADA & UCI v. Valverde & RFEC, para 65 et seq. (blood bags seized during Operation Puerto).
- 345.
CAS 2009/A/1912 and 13, Pechstein & DESG v. ISU, para 113: “there was a reliable chain of custody of the blood samples from the place of collection to the laboratory”; see also CAS 2008/A/1718, IAAF v. All Russia Athletic Federation & Yegorova, paras 174 and 194; see also Taminelli 2014, p. 221.
- 346.
CAS 2009/A/1912 and 13, Pechstein & DESG v. ISU, para 139 et seq.
- 347.
CAS 2007/A/1396 and 1402, WADA & UCI v. Valverde & RFEC, para 70 et seq.
- 348.
See with respect to the External Chain of Custody, WADA ABP Guidelines, Sect. 2.4. For the Laboratory Internal Chain of Custody, laboratories are expected to produce a chain of custody as part of the ABP Documentation Package, WADA ABP Guidelines, section 5.
- 349.
For the application of procedural defects to the Athlete Biological Passport more generally, see Sect. 5.2.2.4.2.3 below.
- 350.
David 2013, p. 148, whereby these defects “may provide a reasonable basis to say that the sample has been contaminated or may have degraded”.
- 351.
CAS 2004/A/607, Boevski v. IWF, para 36; see also Mc Laren 2007, p. 5.
- 352.
CAS 2011/A/2612, Liao Hui v. IWF, para 65/66; CAS 2005/A/908, WADA v. Wium, para 6.7.
- 353.
CAS 2009/A/1820, Schumacher v. UCI, para 127; see also, Lewis/Taylor, 2014, C2.66, footnote 4, with further references.
- 354.
CAS 2013/A/3112, WADA v. Chernova & RUSADA, para 118 et seq.
- 355.
CAS 2007/A/1394, Landis v. USADA, para 179; see also AAA Panel, USADA v. Landis, No. 30 190 00847 06, 20 September 2007, para 268.
- 356.
CAS 2013/A/3112, WADA v. Chernova & RUSADA, para 120.
- 357.
See e.g. CAS 2013/A/3170, Pinzon v. FCN, para 68 et seq., where the External Chain of Custody was completely lacking.
- 358.
CAS 2010/A/2178, Caucchioli c. CONI & UCI, para 37: “ne s’agissant pas d’un cas de test positif”; referring to CAS 2005/C/841, CONI, 26 April 2005, para 83.
- 359.
CAS 2009/A/1912 and 13, Pechstein & DESG v. ISU, paras 114 and 116.
- 360.
CAS 2005/A/884, Hamilton v. USADA & UCI, para 54. In this matter adjudicated under the 2003 WADC, the panel had no choice but to conduct this reasoning under Article 3.2.2 of the WADC (at the time: 3.2.1), as the initial version of Article 3.2.3 (at the time: 3.2.2) was limited in scope to compliance with the IST and thus not relevant for the analysis segment. Since the wording of Article 3.2.3 has been modified to encompass departures from any applicable procedures, an alternative (better) option is to handle these types of situations under this broader paragraph.
- 361.
In both cases, the issue was whether an anti-doping rule violation had validly been recognised based on the longitudinal profile of the Athlete hematological values. The panel started by emphasising, as in the Pechstein matter, that the ADO cannot avail itself of any “presumption”, as this is not a case of a positive test result (recte: not a case of Adverse Analytical Finding, because as a matter of fact the Athlete’s Biological Passport is also based on laboratory test results from Athletes’ blood Samples) (CAS 2010/A/2178, Caucchioli v. CONI & UCI, para 37; CAS 2010/A/2308 and 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 42.
- 362.
CAS 2010/A/2178, Caucchioli v. CONI & UCI, para 37; CAS 2010/A/2308 and 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 42.
- 363.
CAS 2010/A/2178, Caucchioli v. CONI & UCI, para 44; CAS 2010/A/2308 and 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 43.
- 364.
CAS 2010/A/2178, Caucchioli v. CONI & UCI, para 50.
- 365.
CAS 2010/A/2178, Caucchioli v. CONI & UCI, para 50: “A cet égard, les règles en matière de preuve (Article 3 NSA, reproduisant l’Article 3 Code AMA) prévoient que si l’athlète apporte la preuve qu’un écart par rapport aux standards applicables a raisonnablement causé un résultat d’analyse anormal, alors l’organisation antidopage aura la charge de prouver que cet écart n’est pas à l’origine du résultat défavorable en cause”; CAS 2010/A/2308 and 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 56: “A cet égard, les règles en matière de preuve (Article 24 RAD; correspondant à l’Article 3.2 Code AMA) prévoient que les laboratoires accrédités par l’AMA sont présumés avoir effectué l’analyse des échantillons et respecté les procédures de la chaîne de sécurité conformément au standard international pour les laboratoires. L’athlète peut renverser cette présomption en démontrant qu’un écart par rapport aux standards applicables a pu raisonnablement avoir causé un résultat d’analyse anormal; l’organisation antidopage a alors la charge de prouver que cet écart n’est pas à l’origine du résultat défavorable en cause”; David 2013, p. 165, without further discussion, considers that the CAS rules that “the Athlete had not been able to displace the presumption in favour of analysis by WADA-accredited laboratories under Article 3.2 of the Code”; see now for the explicit provision under Technical Document on ABP Results Management Requirements (TD2015RMR), section 1, as well as Sect. 5.2.2.4.2.3 below.
- 366.
For a similar opinion, but concluding that if no Adverse Analytical Finding is involved the ADO benefits from no presumption altogether but bears the whole burden of proof with respect to the regularity of the procedures, Taminelli 2014, p. 226.
- 367.
Lewis and Taylor 2014, C2.67, footnote 2.
- 368.
See Sect. 5.2.2.3.1 below.
- 369.
On the somewhat imprecise term “presumption”, see Sect. 3.3.1.1 above.
- 370.
General rule of Article 3.1 of the WADC, repeated in Comment ad Article 3.2.2.
- 371.
See Sect. 5.2.3.2 below.
- 372.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 143, whereby the paragraph applicable to Testing “appears plain in its intent to establish for the Athlete the initial burden of proof”; CAS 2006/A/1162, Iglesias vs FILA, para 3.8: “the Athlete bears the burden to establish by a preponderance of the evidence that a departure from the IST has occurred. If the Athlete succeeds, the burden then shifts to the Respondent to prove to the “comfortable satisfaction” of the hearing body that the departure did not change the test result”.
- 373.
CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 109; CAS 2009/A/1768, Hansen v. FEI, para 16; see also the presentation by Verbiest 2010, p. 135, on the two paragraphs show that sports organisations like the UCI treat these two issues alike from the perspective of the allocation of the onus of proof.
- 374.
See, even if implicitly, David 2013, p. 206; contra, Rössner 2009, p. 56, under the German NADA Code, distinguishes para 3.2.2 as creating a case of “nullity” of the A Sample results, while 3.2.3 merely opens a possibility for “invalidation” of these results. The authors rely on an analogy with administrative law, but this distinction is perceivable neither in the provisions of the WADC nor in CAS practice.
- 375.
For example, David 2013, p. 202, merely states in a generic manner that the process may “range from the presentation of the evidential material required to support an adverse analytical finding after sampling and analysis, to the proof of the factual matters required to establish a violation such as trafficking”.
- 376.
CAS 2011/A/2566, Veerpalu v. FIS, para 110; CAS 2007/A/1394, Landis v. USADA, paras 31 and 51; CAS 2005/A/884, Hamilton v. USADA & UCI, para 52; see also Lewis and Taylor 2014, C2.81.
- 377.
An Adverse Analytical Finding is defined in Appendix 1 (Definitions) of the WADC as “a report from a WADA-accredited laboratory or other WADA-approved entity that, consistent with the International Standard for Laboratorie and related Technical Documents, identifies in a Sample the presence of a Prohibited Substance or its Metabolites or Markers (including elevated quantities of endogenous substances) or evidence of the Use of a Prohibited Method”.
- 378.
Section 4.0 of the Laboratory Code of Ethics, Annex B of the ISL.
- 379.
See Sect. 5.2.2.4.2.3 below.
- 380.
Lewis and Taylor 2014, C2.74.
- 381.
CAS 2008/A/1608, IAAF v. AFS & Javornik, para 56.
- 382.
According to Berninger 2012, p. 180, the ADO has the burden of establishing that the Sample was collected and transported in accordance with applicable standards, but at the same time considers that the Doping Control form and chain of custody documentation will be “decisive” (“massgeblich”) here.
- 383.
David, p. 150.
- 384.
CAS 2007/A/1394, Landis v. USADA, para 51; note that in some cases, the CAS panels have treated the argument of a lack of accreditation as a procedural defect, which is in our view an inaccurate approach: CAS 2011/A/2566, Veerpalu v. FIS, para 112, found that the Athlete had not demonstrated, on a balance of probability, that the laboratory was not properly accredited; see also CAS 2013/A/3112, WADA v. Chernova & RUSADA, para 89; see also Rigozzi and Quinn 2012, p. 23, consider that the burden of proof is on the Athlete to establish that “the report is not from a WADA accredited laboratory”; see also, albeit less clearly, David 2013, p. 202.
- 385.
CAS 2011/A/2566, Veerpalu v. FIS, para 97.
- 386.
Consultation WADC review process: EU Athletes/UNI Global Union, Palmer/Baer-Hoffman, 3rd 2015 phase, ad Article 3, p. 1; International Cricket Council/Lorinda Rugless, 3rd 2015 phase, ad Article 3, p. 2; International Team Sport Federation/Jiri Dvorak, 3rd 2015 phase, ad Article 3, p. 3; Antidoping Switzerland/Matthias Kamber, 3rd 2015 phase, ad Article 3, p. 4.
- 387.
As matters stand, the approvals granted appears to be limited to blood analyses for purposes of the Athlete Biological Passport (see WADA website “Approved Laboratories”); a document adopted by WADA in 2010 describes the criteria for obtaining such approval, including the sections of the ISL and annexes with which the laboratory must be able to comply. The scope of the presumption should not go beyond what the criteria and verifications provided for in this document warrant (see WADA document of July 2010, “Criteria for the Approval of Non-WADA Accredited Laboratories for the Athlete Biological Passport”); see also Sect. 5.1.1.2.3 above.
- 388.
See Sect. 5.2.2.2.1.1 above.
- 389.
Lewis and Taylor 2014, C2.69.
- 390.
The term “Doping Control form” is used in Comment ad Article 2.5 of the WADC, as well as in the ISL .
- 391.
In any event, the Doping Control form should already be in possession of the Athlete, since he or she is to receive a copy at the end of Sample collection under the ISTI.
- 392.
See Sect. 8.2.1.3 below.
- 393.
Note that while this book focuses on cases involving analytical data, Article 3.2.3 of the WADC is in no way limited to these type of cases. For example, since the ISTI govern the whereabouts regime and the requirements surrounding Sample collection, Athletes may invoke a departure from the ISTI to invalidate a Whereabouts Failure (Article 2.4 of the WADC), violation for Evading, Refusing or Failing to submit to Sample collection (Article 2.3 of the WADC) or Tampering with Doping Control (Article 2.5 of the WADC). The range of the 2015 ISTI becomes even broader with the new section on “intelligence-gathering” and “investigations”.
- 394.
David 2013, p. 150: “An analysis by another non-approved or unauthorized laboratory can support an allegation that another violation has been committed provided the testing has been carried out in a reliable manner. The burden of showing that the testing was carried out in a reliable fashion will fall on the anti-doping organization from the outset and there will be no presumption in favour of the laboratory result”.
- 395.
CAS 2009/A/1817 and 2009/A/1844, WADA & FIFA v. CFA, Marques, Eranosian et al., para 155: “the party asserting that an anti-doping rule violation occurred is not called to give evidence of the application of the relevant rules concerning the conduct of the analysis and the custodial procedures”.
- 396.
An illustration can be found in CAS 2009/A/1912 and 13, Pechstein, DESG v. ISU, para 139, where the relevant Testing rules set up by the ADO for blood screening on the skaters did not contain any requirements for the chain of custody, so that it was the role of the panel to decide, on the basis of the evidence presented by the ADO, whether the chain of custody on the relevant Sample was sufficiently reliable.
- 397.
See Sect. 5.2.2.1.2 above.
- 398.
See also the special provision in Technical Document on ABP Results Management Requirements (TD2015RMR), analysed in Sect. 5.2.2.4.2.3 below.
- 399.
Appendix 1 (Definitions) of the WADC, “International Standard”. Note that Technical Documents do not necessarily make it explicit to which International Standard they are supposed to be attached, so that the relevant International Standard needs to be deduced from the materiae covered in the Technical Document. New Technical Documents such as the Technical Document on ABP Results Management Requirements (TD2015RMR) may not be truly connected to a specific International Standard.
- 400.
CAS 2011/A/2566, Andrus Veerpalu v. FIS, para 96: “Administration of the Test to the Appellant. As for the administration of the Test, the FIS ADR and ISL state that WADA-accredited laboratories are presumed to have conducted procedures in accordance with the ISL”.
- 401.
CAS 2011/A/2612, Liao Hui v. IWF, para 68: “According to this provision it is presumed that any sample testing conducted by a WADA-accredited laboratory is performed “correctly” and in compliance with the ISL. However, a rebuttal of this presumption is possible if the Athlete establishes that
-
a departure from the ISL (including all documents referred thereto) occurred; and that
-
this departure could reasonably have caused the AAF”.
-
- 402.
CAS 2013/A/3112, WADA v. Chernova & RUSADA, para 86: “[…] whether there was a departure from the general principles of the ISL, or other international standard, in the activities of the respective WADA-accredited laboratory”. Note that the Technical Document on ABP Results Management Requirements (TD2015RMR), section 1, purports to make this extension explicit for cases prosecuted based on the Athlete Biological Passport.
- 403.
These awards pre-empt claims made during the 2015 review process whereby the presumption ought to be explicitly extended to cover all “laboratory procedures” under the ISL, as opposed to only Sample analysis and custodial procedures (see e.g. Consultation WADC review process: Council of Europe/Sport Convention Division (France), 3rd 2015 phase, ad Article 3, p. 3; Canadian Centre for Ethics in Sport/Elisabeth Hindle, 3rd 2015 phase, ad Article 3, p. 5), and show that these claims can be easily addressed through means of interpretation.
- 404.
CAS 2011/A/2435, WADA v. Thys, ASA & SAIDS, para 87: “As a result, the burden shifts to Mr Thys to demonstrate that there was a departure from the ISL in order to rebut the presumption that the analyses were conducted in accordance with prevailing and acceptable standards of scientific practice”; CAS 2010/A/2185, Blanco v. USADA, para 9.1.2: “The presumption under the rules is that WADA-accredited laboratory results are reliable”.
- 405.
See Sect. 5.1.2.3 above.
- 406.
CAS 2009/A/1752 and 1753, Devyatovskiy & Tsikhan v. IOC, para 5.22: “Based on the WADA-accreditation described in marg. note 5.21 above, there is a presumption that the Beijing Laboratory has developed, has validated and is able to document its methods for detection of Prohibited Substances. This presumption is conditional upon the Laboratory’s adherence to the ISL”.
- 407.
Mavromati 2014, p. 20; see for a recent confirmation of this consistent CAS practice in match-fixing disciplinary proceedings, CAS 2010/A/2267 et al., Football Club “Metalist” et al. v. FFU, para 692, with reference to case law.
- 408.
See Sect. 2.1.1.2.2 above.
- 409.
See Sect. 5.2.2.2.2 above.
- 410.
See Sect. 5.3.2.2 below.
- 411.
See Sect. 5.2.3.2.2 below.
- 412.
David 2013, pp. 150 and 172, confirms that Article 2.2 represents a fall-back provision for cases in which there is no valid B Sample analysis. For an example of an A Sample used alone, CAS A3/2007, ASADA v. Van Tienen.
- 413.
See Sect. 5.2.2.1.1 above. Indeed, if the laboratory is not accredited or otherwise approved for the analysis at stake, the laboratory may not stricto sensu claim adherence to the ISL for performing such analysis. Similarly, custodial procedures will not necessarily be carried out pursuant to the custodial procedures provided for in the ISL for such situations, given the fact that the analysis does not necessarily involve a Sample collected, stored and transported in accordance with the ISTI.
- 414.
Such a case could be made if the laboratory was WADA-accredited but acted outside its scope of accreditation at the relevant time, in which case the presumption that the laboratory was able to follow custodial procedures of the ISL would likely still be upheld.
- 415.
See Sect. 5.1.2.3 above on the “immunity” of the International Standards; for a similar position, David 2013, p. 113: “If a laboratory produces a test result, and it is not accredited at the time of the test, the result may still be used to prove other violation under the Code apart from a violation under Article 2.1 provided the test results can be shown to be reliable. The anti-doping organisation responsible will have to prove that the testing procedure was properly carried out, and was in accordance with established scientific practice to the required standard of proof, if the test result is to be considered”.
- 416.
The panel’s reasoning in CAS 2008/A/1718, IAAF v. All Russia Athletic Federation & Yegorova et al., para 195, that a laboratory acts in criminal cases for State authorities, is accredited by ISO and that its officers are supposed to “know very well the measures to be taken in order to avoid any DNA contamination eliminates any doubt about the reliability of DNA testing procedures” is rather a minimalist approach to this test. In this case, the testimony of the laboratory’s director was treated as “expert evidence” and considered sufficient to demonstrate the reliability of the DNA analysis.
- 417.
Lewis and Taylor 2014, C2.126, for Adverse Passport Findings, point out that the ADO does not mandatorily have to establish that they followed the ISL or ISTI.
- 418.
See for an example involving the non-compliance with the time limits for giving notice to the Athlete of Whereabouts Failures under the ISTI, CAS 2011/A/2067, UCI v. Rasmussen & DIF, para 74.
- 419.
See Sect. 5.2.2.3.2 above.
- 420.
See CAS 2014/A/3639, Muralidharan v. National Anti-Doping Agency, National Dope Testing Laboratory, Ministry of Youth Affairs & Sports, para 89 et seq. for a reasoning in which a sole CAS arbitrator accepted that an exception to the “healing” effect of CAS proceedings should be made if undue delays in the proceedings prevented the Athlete from efficiently preparing a defence (e.g. because the lapse of time would make it excessively difficult to retrieve evidence as to the origin of the substance), but denied that this was the case in the particular matter.
- 421.
Technical Document on ABP Results Management Requirements (TD2015RMR), section 1.
- 422.
See Sect. 5.1.2.1 above on the binding character of technical rules.
- 423.
The revised 2015 WADC does not include a reference to Adverse Passport Findings in Article 3.2.2, which is only common sense given the fact that Adverse Passport Finding are the result of an expert report based on multiple different analytical results.
- 424.
See e.g. WADA ABP Guidelines, section 1.1.
- 425.
Technical Document on Blood Analytical Requirements for the ABP (TD2014BAR): “The International Standard for Laboratories (ISL) is applicable to the analysis of blood Samples carried out in connection with the measurement of individual Athlete blood variables within the framework of the ABP. This TD describes certain specificities of blood analysis related to the ABP”.
- 426.
Technical Document on Blood Analytical Requirements for the ABP (TD2014BAR): “The requirements for an Initial Testing Procedure, an A Sample Confirmation Procedure and a B Sample Confirmation Procedure, as defined in the ISL, shall not be applicable to blood Samples analyzed for the purposes of the ABP”.
- 427.
See also Lewis and Taylor 2014, C2.123 and C2.126.
- 428.
Note that CAS 2010/A/2174, De Bonis v. CONI & UCI, paras 9.17 and 9.18, has shown that CAS panels accept that a Sample collected as part of the ABP Program can be used for any anti-doping purposes, thus including the analysis for a Prohibited Substance and report of an Adverse Analytical Finding according to the ISL. The Adverse Analytical Finding could not be used as a basis for a violation under Article 2.1 of the WADC (in the absence of a B Sample), but may be used by the CAS panel as an additional piece of evidence to support the finding of a violation under Article 2.2.
- 429.
As implied in CAS 2010/A/2308 and 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 56; CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 83; Verbiest 2010, p. 135, considers that the presumption of 3.2.2 can apply in spite of the wording of the provision that addresses only Adverse Analytical Findings, “as the analysis of a blood sample in view of measuring blood values is less complex, it may also be applied to the analysis of such samples”.
- 430.
The Technical Document on Blood Analytical Requirements for the ABP (TD2014BAR) and the Technical Document on Endogenous Anabolic Androgenic Steroids (TD2014EAAS).
- 431.
Technical Document on ABP Results Management Requirements (TD2015RMR), section 5. In our view, while TD2015RMR only makes it mandatory to have a full Laboratory Documentation Package for those Samples “deemed essential” by the APMU and Expert Panel to support the case, as opposed to those that only confirm the “baseline levels of a Marker”, Athletes are entitled to request the Laboratory Documentation Package for each Sample included in the profile, since the invalidation of any point in the profile would lead to a recalculation of the profile values, potentially impacting the value(s) that led to the “flag” by the Adaptive Model (see TD2015RMR, section 2, and on the right to request additional scientific documentation, Sect. 8.2.2 below).
- 432.
Verbiest 2010, p. 139, considers that blood Samples taken for the sake of the ABP are Doping Control Samples, and should thus be taken in conformity with the ISTI for blood Samples, completed with the WADA Guidelines for Blood Sample Collection.
- 433.
CAS 2010/A/2308 and 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 61, CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 82; Decision of the Arbitration Committee of the Czech Olympic Committee, Kreuziger v. Czech Cycling Federation, 22 September 2014, para 6.9.
- 434.
CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou, para 110. On the issue of the qualification of Expert Panels to assess Laboratory Documentation Packages with the ABP Program, see Sect. 11.4.1 below.
- 435.
Technical Document on Results Management Requirements (TD2015RMR), section 5.
- 436.
This basic rule of both Article 3.2.3 of the WADC and TD2015RMR does not seem to receive much attention from CAS or other hearing panels, see e.g. CAS 2010/A/2308 and 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 61, CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 82; Decision of the Arbitration Committee of the Czech Olympic Committee, Kreuziger v. Czech Cycling Federation, 22 September 2014, para 6.9, which seem to support the idea that it is for the Athlete to show the impact of the procedural defect on the profile values.
- 437.
Without consideration of the specificities of Athlete Biological Passport cases.
- 438.
CAS 2001/A/337, B. v. FINA, para 68: “The Panel is aware that doping control is a complex process susceptible to errors”.
- 439.
Already during the consultation process for the revised 2009 WADC, there was agreement “that a drugs cheat should not escape liability through trivial technicalities”; see e.g. Consultation WADC review process: Federation of International Cricketers’ Associations, 2nd 2009 phase, ad Article 3.2; Australian Athlete’s Association, 2nd 2009 phase, ad Article 3.02.
- 440.
See the comment of the panel in CAS 2006/A/1162, Iglesias vs FILA, para 3.8: “it does not follow that violation of the IST inexorably results in non-compliance with the WADA Code or the invalidation of consequences provided in the WADA Code”.
- 441.
Under the Olympic Movement Anti-Doping Code, technicalities were avoided through a mechanism providing that minor defects should not be considered material enough to undermine the reliability of the test results and including a catalogue of defects that should not be regarded as minor (Article 5 of the Olympic Movement Anti-Doping Code: “Minor irregularities, which cannot reasonably be considered to have affected the results of otherwise valid tests, shall have no effect on such results. Minor irregularities do not include the chain of custody of the sample, improper sealing of the container(s) in which the sample is stored, failure to request the signature of the Athlete or failure to provide the Athlete with an opportunity to be present or be represented at the opening and analysis of the “B” sample if analysis of the “B” sample is requested”).
- 442.
Even before the adoption of the WADC, most ADOs had included in their rules a provision that procedural defects do not invalidate an analysis unless they are material, i.e. cause serious doubts as to the reliability of the findings. This was synthesised by CAS into a general principle referred to as the “anti-technicality clause”, designed to “limit reliance on deviations” (see e.g. CAS 2000/A/281, H. v. FIM, para 32; CAS 99/A/223, ITF v. K., paras 12 and 25; CAS 2000/A/313, B. v. FEI, para 55; CAS 2001/A/337, B. v. FINA, para 25).
- 443.
Consultation WADC review process: United States Olympic Committee, 2nd 2009 phase, ad Article 3.2; AFL, 2nd 2009 phase, ad Article 3.2; note that the requirement of “significant” influence on the results is now enshrined in the Technical Document on ABP Results Management Requirements (TD2015RMR), section 1, for Adverse Passport Findings.
- 444.
Consultation WADC review process: IAAF, 3rd 2009 phase, ad Article 3.2.
- 445.
The only change is that the wording with respect to the burden of the Athlete in Article 3.2.3 was changed from a departure “which could reasonably have caused the Adverse Analytical Finding or other anti-doping rule violation” to “which could reasonably have caused an anti-doping rule violation based on an Adverse Analytical Finding or other anti-doping rule violation”.
- 446.
Consultation WADC review process: German Federal Ministry of the Interior, 2nd 2009 phase, ad Article 3.2.
- 447.
Consultation WADC review process: Federation of International Cricketers’ Associations, 2nd 2009 phase, ad Article 3.2; Australian Athlete’s Association, 2nd 2009 phase, ad Article 3.2.
- 448.
Consultation WADC review process: IAAF, 2nd 2009 phase, ad Article 3.2.
- 449.
See, on departures that are deemed immaterial in the ISL, Sect. 5.2.3.2.4 below.
- 450.
See Sect. 5.2.3.2.3 below.
- 451.
Consultation WADC review process: IAAF, 3rd 2009 phase, ad Article 3.2; The Comment ad Article 3.2 of the 2003 WADC stated that this means proof that the departure “did not change the test result”. In the consultation process, there were suggestions that reverting to the traditional wording, known from CAS case law, that the departure “did not undermine the reliability of the finding” would be more appropriate. It was also argued that it would be more in line with the requirement for initiating proceedings after the initial review that there are no apparent departures from the IST “that undermines the validity of the Adverse Analytical Finding” (IAAF, 3rd 2009 phase, ad Article 3.2). In fact, the opposite happened: in the final version of the 2009 WADC, the wording in the section regarding the initial review has been amended to match the new Article 3.2.
- 452.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 142.
- 453.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 143.
- 454.
Thus, a procedural defect may be said to have “caused” an Athlete to refuse to submit to Sample collection because the Doping Control Officer, in breach of the ISTI, failed to inform him or her of the consequences of such refusal. For an interpretation of the requirement in the context of a Whereabouts Failure, see CAS 2011/A/2067, UCI v. Rasmussen & DIF, para 74.
- 455.
CAS 2013/A/3112, WADA v. Chernova & RUSADA, para 119: “none of the alleged departures from the ISL or IST have been subsequently linked to a credible explanation of how the substance could have appeared in the sample of Ms. Chernova”, where the CAS panel also referred to the causality link as “a misreading of the analysis” (para 85); CAS 2011/A/2566, Veerpalu v. FIS, para 98: “show that there was an ISL violation and that it is more likely than not that this non-compliance led to a false positive”; on the concept of false positive, see Sect. 5.2.4 below.
- 456.
In particular TD2014MRPL, section 4, provides: “Non-Threshold Substances at any concentration shall be reported as an Adverse Analytical Finding, with the following exceptions:—Non-Threshold Substances in classes S6, S7, S8, S9 and P2, which are prohibited In-Competition only, should not be reported below 50 % of the MRPL […]”.
- 457.
At best, the finding could be used as one piece of evidence for initiating proceedings for the Use of a Prohibited Substance under Article 2.2 of the WADC.
- 458.
We are aware that one could try to counter this illustration by arguing that the term “should” does not express a mandatory requirement and thus that no departure from the ISL occurred in the first place. We do not agree with this argument, since for obvious reasons of equal treatment it would be inadmissible to prosecute a violation depending on the laboratory’s “mood of the day”. Reporting levels for Non-Threshold Substances and their uncertain legal status will be discussed in Sect. 6.2.2.3.1 below.
- 459.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 142: “it will be relatively rare for an IST departure itself to directly cause an adverse analytical finding. Instead, it appears that the rule is primarily intended to address situations where an IST departure creates an opportunity for an intervening act (for example, of accidental contamination or deliberate sabotage) to compromise the integrity of the Athlete’s sample”.
- 460.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 142.
- 461.
CAS 2011/A/2566, Veerpalu v. FIS, para 137: “the Appellant has not provided evidence to indicate that the particular departures at stake in these proceedings could reasonably have led to an AAF”; see also CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 131.
- 462.
CAS 2011/A/2566, Veerpalu v. FIS, para 98.
- 463.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 155.
- 464.
CAS 2013/A/3112, WADA v. Chernova & RUSADA, para 85: “the Athlete must establish, on the balance of probabilities, (i) that there is a specific (not hypothetical) departure from the ISL; and (ii) that such departure could have reasonably, and thus credibly, caused a misreading of the analysis”.
- 465.
CAS 2014/A/3639, Muralidharan v. NADA, National Dope Testing Laboratory, Ministry of Youth Affairs & Sports, para 105.
- 466.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 156.
- 467.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, paras 156 and 157.
- 468.
In connection with the initial draft that the departure should be “significant”, Consultation WADC review process: German Federal Ministry of the Interior, IAAF, 2nd 2009 phase, ad Article 3.2: “the Athlete is to be provided with evidence that this departure had no effect on the test result”; similarly, Australian Athlete’s Association, 2nd 2009 phase, ad Article 3.2: “Athletes take the enormous responsibility of strict liability—this should mean that the Testing labs should take full responsibility for the way that the Analysis of the Athlete’s specimen is carried out”.
- 469.
This aspect is made more important by the fact that Athletes often face enormous difficulties to obtain the necessary documentation and their experts’ voice is traditionally given less weight before CAS panels, see Chap. 8 below.
- 470.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 170.
- 471.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 176.
- 472.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 159, with further references.
- 473.
See, for an example of this temptation, CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 120; David 2013, p. 147, notes that the “Athlete faces a considerable initial burden”.
- 474.
See the Technical Document on ABP Results Management Requirements (TD2015RMR), section 1, and Sect. 5.2.2.4.2.3 above.
- 475.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 180.
- 476.
David 2013, p. 206: “the proof of a negative to this high standard may well be difficult”.
- 477.
See e.g. CAS 2011/A/2566, Veerpalu v. FIS, paras 134 and 137; CAS 2008/A/1608, IAAF v. AFS & Javornik, para 103; in CAS 2014/A/3639, Muralidharan v. NADA, National Dope Testing Laboratory, Ministry of Youth Affairs & Sports, para 106, the sole arbitrator held that the fact that the substance could not appear through biotransformation due to transport delays already amounted to rule out the “reasonable” causality link.
- 478.
On the limits of the causality requirement, see Sect. 5.3.3.2 below.
- 479.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 181.
- 480.
For example, a procedural defect that might have occurred before the Sample was split into two bottles would typically affect the two Samples, as well as most defects related to the transport conditions. During Sample analysis, procedural defects that could reveal a systematic mishandling at the laboratory might equally affect both Samples.
- 481.
For example, no initial screening is performed and for exogenous Threshold Substances, the B Sample analysis is not quantitative, see Sect. 6.2.4.2 below.
- 482.
See explicitly, Comment ad Article 2.2 of the WADC; David 2013, p. 172.
- 483.
For a real-life example, see CAS 2013/A/2374, Glasner v. FINA, para 19, where the laboratory admitted that they misidentified the substance reported (luckily the substance really contained in the Sample was also a prohibited one).
- 484.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 142.
- 485.
For the Testing segment, on failure to comply with the rules on attendance and representation during Sample collection: CAS 2006/A/1162, Iglesias v. FILA, para 3.14; see the argument of the UCI in CAS 20067A/1119, UCI v. Landaluce & RFEC, para 105, where it was rejected by the majority of the panel; CAS 2007/A/1332, Jónsson v. IPF, para 46. For the analysis segment, defective final review of the analysis results which occurs retrospectively to the analysis, CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 174.
- 486.
This reasoning was applied in particular to the “different analyst rule” (which has now been abandoned in the ISL), whereby the same analyst was not allowed to take part in the A and B Sample analysis. According to CAS panels, whether a breach of this rule may have influenced the outcome of the analysis remains a matter of speculation (see CAS 2006/A/1119, UCI v. Landaluce & RFEC, para 105). The requirement was subsequently removed in the 2009 ISL.
- 487.
CAS 2006/A/1119, UCI v. Landaluce & RFEC, para 111; according to Lewis and Taylor 2014, C2.83, the addition to the 2009 WADC was brought about precisely because of CAS awards invalidating anti-doping rule violations for defects related to the B Sample analysis.
- 488.
Note that this aspect appears to have been completely forgotten in CAS 2011/A/2435, WADA v. Thys, ASA & SAIDS, para 94.
- 489.
CAS 2010/A/2083, UCI v. Ullrich & Swiss Olympic, para 32b. In this matter, the CAS panel had to decide on the consequence of a failure to give notice of the violation to the Athlete within the time limit set by the UCI rules. The CAS panel found that the failure should have no consequence, as its purpose had been fulfilled in another manner and Ullrich has given no indication that his “ability to put forward any facts or arguments or otherwise mount his defence had been compromised”. In any event, the CAS panel found that it could cure the breach.
- 490.
CAS 2011/A/2671, UCI v. Rasmussen & DIF, para 72.
- 491.
This evolution can in fact be perceived as a resurrection of principles developed by CAS panels before the WADC, e.g. CAS 2002/A/385, T. v. FIG, para 26 et seq.; see also David 2013, p. 38, and the references cited.
- 492.
CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, para 152; confirmed in CAS 2014/A/3639, Muralidharan v. NADA, National Dope Testing Laboratory, Ministry of Youth Affairs & Sports, para 68.
- 493.
CAS 2008/A/1607, Varis v. IBU, para 115; subsequently confirmed in CAS 2010/A/2161, Wen Tong v. IJF, para 9.8, where the panel found that “it is now established CAS jurisprudence that the Athlete’s right to attend the opening and analysis of her B sample is fundamental and, if not respected, the B-sample results must be disregarded”.
- 494.
CAS 2009/A/1752 and 1753, Devyatovskiy & Tsikhan v. IOC, para 5.182: “Where the allegation of instrument malfunction, loss of control over the samples and the failure of quality control procedures represent the core of the dispute, the Panel fails to see how the precautionary safeguards which justify [the different analyst rule], namely the integrity of the laboratory analysis and the prevention of manipulation, can be relegated to the status of a mere ‘technical’ significance”; confirmed in CAS 2011/A/2435, WADA v. Thys, ASA & SAIDS, para 93: “the Panel is convinced that ISL 5.2.4.3.2.2 was not a mere formal rule to regulate the process of testing in the laboratories or a mere technicality, but was a part of the ISL for good reason to protect the Athlete from possible errors, mistakes and dishonesty”.
- 495.
The Technical Document for Laboratory Documentation Packages (TD2009LDOC) provides that “deviations from this technical document shall not invalidate the Adverse Analytical Finding(s)”; another one relates to the time limit within which the B Sample should be analysed, which is 7 working days from the notification of the A Sample results: “If the Laboratory is unable to perform the “B” analysis within this time frame for technical or logistical reason(s), this shall not be considered as a deviation from the ISL susceptible to invalidate the analytical procedure and analytical results” (Article 5.2.4.3.2.1 of the ISL); “the Sample meets the Suitable Specific Gravity for Analysis and the Suitable Volume of Urine for Analysis. Failure of a Sample to meet these requirements in no way invalidates the suitability of the Sample for analysis. The determination of a Sample’s suitability for analysis is the decision of the relevant laboratory, in consultation with the Testing Authority for the Sample Collection Session in question” (Annex D to the ISTI).
- 496.
Articles 5.2.4.2.5 (urine) & 6.2.4.1.5 (blood) of the 2015 ISL: “Irregularities in the Initial Testing Procedure(s) shall not invalidate an Adverse Analytical Finding when the Confirmation Procedure adequately compensates for such irregularities”.
- 497.
Section 1.0 of the ISL; see also Sect. 5.1.2.2.4.2 above.
- 498.
CAS 2013/A/3112, WADA v. Chernova & RUSADA, para 102 et seq.
- 499.
For a typical example in which the term “false positive” is used in a broad sense encompassing all defences raised by the Athlete against the Adverse Analytical Finding, see CAS 2010/A/2041, Chepalova v. FIS, para 75.
- 500.
CAS 2011/A/2566, Andrus Veerpalu v. FIS, para 183; CAS 2011/A/2612, Liao Hui v. IWF, para 98; CAS 2008/A/1608, IAAF v/AFS & Javornik, para 54.
- 501.
See Sect. 5.2 above.
- 502.
CAS 2005/A/831, IAAF v. Eddy Hellebuyck, para 7.2.2; CAS 2005/A/884, Hamilton v. USADA & UCI, para 56 et seq.
- 503.
See Sect. 6.3 below.
- 504.
CAS 2014/A/3488, WADA v. Lallukka, para 109; CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 111; CAS 2011/A/2566, Andrus Veerpalu v. FIS, para 145.
- 505.
CAS 2013/A/3170, Pinzon v. FCN, para 80 et seq.
- 506.
See Sect. 5.2.4.3 below.
- 507.
CAS 2011/A/2566, Andrus Veerpalu v. FIS, para 203, with respect to the rhGH test: “the Panel cannot exclude to its comfortable satisfaction that the decision limits are overinclusive and could lead to an excessive amount of false positive results (beyond the claimed specificity of 99.99 %)”.
- 508.
Vuille et al. 2013, p. 1095: “la notion d’erreur, qui est inhérente à toute entreprise scientifique” [the concept of error, which is inherent to any scientific enterprise (author’s translation)] .
- 509.
In qualitative analysis, the false positive rate can be described as the probability of obtaining a positive result given that no analyte is present; the false negative rate is the probability of obtaining a negative result given that the analyte is present (see Ellison and Fearn 2005, p. 469/470).
- 510.
In forensics and medical diagnosis, the term “false positive” has different acceptations and may also refer to any case in which which a laboratory reports a match or indication of a disease when, in reality, there is none, for any cause whatsoever, e.g. laboratory error, contamination or error in the interpretation of the results (for forensics, see Vuille et al. 2013, p. 1100; for medical diagnosis also, see Aitken and Taroni 2008, p. 191).
- 511.
For a more extensive analysis, see also Sect. 10.3.2.2 below for example, an analytical finding can be a “true positive” in the sense that the substance detected was present in the Sample, but a “false positive” in the sense that this presence did not originate from doping as a layman would understand it (e.g. the Athlete got contaminated through meat consumption).
- 512.
Pitsch 2011, p. 101.
- 513.
More generally, for a qualitative test, the “probability of obtaining a positive result given that the analyte is present” (see Ellison and Fearn 2005, p. 470).
- 514.
More generally, for a qualitative test, the “probability of obtaining a negative result given that no analyte is present” (see Ellison and Fearn 2005, p. 469).
- 515.
For an example of sensitivity/specificity assessment in anti-doping, see the development of the method for the detection of homologous blood transfusion, Giraud et al. 2007.
- 516.
See for the proposals for blood doping Markers used as a sequence, Sottas et al. 2008a, p. 207: “given the extremely high sensitivity versus specificity ratio, this method can be used to effectively sanction an Athlete when the evidence derived from the likelihood function is strong enough”.
- 517.
In qualitative analysis, the sensitivity is equal to “1—false negative rate” (see Ellison and Fearn 2005, p. 470).
- 518.
In qualitative analysis, the specificity is equal to “1—false positive rate” (see Ellison and Fearn 2005, p. 469).
- 519.
See e.g. Berry and Chastain 2012, p. 7; Berry 2008, p. 693; Faber and Sjerps, p. 215; Burke and Faber 2012, p. 200.
- 520.
Exceptionally, 100 % specificity may be obtained in validation experiments for a method, Giraud et al. 2007, pp. 30 and 32. This occurs if the rate of false positives is so low that none occurs during the validation process.
- 521.
- 522.
See Sect. 4.4.1 above.
- 523.
In the context of forensic sciences, Vuille et al. 2013, p. 1104, whereby it is “possible” and even “fundamental” to take into account the risk of a false positive when assessing the probative value of evidence.
- 524.
- 525.
More precisely, usually two competing hypotheses, see Sect. 10.3.2.3 below. In practice, it appears that reports must include the likelihood of a random match as part of the likelihood ratio, but there is no similar requirement for the rate of false positive (Vuille et al. 2013, p. 1107/10108), so that these reports would rely on an implicit assumption of a false positive rate of 0.
- 526.
For a critical analysis of the manner in which the figures are currently reported in the context of forensics and paternity claims, Taroni and Mangin 1999, in particular p. 14; Taroni and Aitken 1998, in particular p. 293.
- 527.
Vuille et al. 2013, p. 1108/1109.
- 528.
However, similar problems of denial of the existence of false positives, or lack of transparency or research on the actual rate of false positives, is also being denounced in forensic sciences, Vuille et al. 2013, p. 1101/1102: “Certaines personnes ont en effet réussi, jusqu’à récemment, à convaincre les tribunaux que les erreurs de laboratoires étaient tellement rares qu’elles pouvaient être négligées, et qu’il n’est pas utile de les recherches systématiquement” [Indeed, some persons have succeeded, up to now, in convincing courts that laboratory errors are so rare that they can be disregarded, and that it is not useful to systematically search for them (author’s translation)].
- 529.
Vuille et al. 2013, p. 1106; see also Vuille 2014, p. 489/490, whereby studies ought to be conducted to determine the statistical rate of false positives and an individual case assessment should always be conducted that takes into account the implications of this rate of false positives for the matter at stake.
- 530.
For quantitative analysis, the report will include, in addition, the uncertainty measurement estimated at the Threshold; see Sect. 6.2.2.2 below and Saugy et al. 2015, tbp.
- 531.
Pitsch 2011, p. 101; the only reference to the sensitivity/specificity of the tests in the ISL implies that the validation of analytical methods needs to determine and document the specificity of the test. “Specificity. The ability of the assay to detect only the substance of interest shall be determined and documented. The assay shall be able to discriminate between compounds of closely related structures” (Article 5.4.4.2.1 (urine)); the target specificity for the decision limits has been published in the rhGH test, see WADA hGH Guidelines, Section 7.1, footnote 4.
- 532.
Champod and Vuille 2011, for similar misunderstandings in criminal proceedings, p. 232, when forensic information is given to the judge as a “certainty”.
- 533.
See Sect. 6.2.3.1.4 below.
- 534.
Vuille et al. 2013, p. 1098, footnote 7: in forensics, though a false negative is just as undesirable as a false positive from a scientific viewpoint, it is also accepted that a false positive causes stronger concern since “il vaut mieux acquitter dix coupables que condamner un innocent” [it is better to acquit ten culpables rather than to condemn one innocent (author’s translation)].
- 535.
See Sect. 10.3.2.3.4 below.
- 536.
Sottas 2010, p. 103 et seq.
- 537.
See Sect. 6.2.2.2 below.
- 538.
See Sect. 6.2.2.3.1 below.
- 539.
See Sect. 6.2.2.3.2 below.
- 540.
Sottas 2010, p. 103 et seq.
- 541.
Sottas 2010, p. 103; see the stringent identification criteria set by WADA in the ISL and the Technical Document on Identification Criteria (TD2010IDCR, to be replaced by TD2015IDCR 1st September 2015) and the more extensive description of the requirements by Badoud et al. 2011, especially p. 52 et seq.
- 542.
Kuuranne et al. 2014, Confounding Factors, on the importance of including confounding factors into the detection of endogenous steroids, distinguish endogenous and exogenous factors, depending on whether origin of these factors, see p. 3; see also the Technical Document on Endogenous Anabolic Androgenic Steroids (TD2014EAAS), Section 1.1, which lists a number of non-doping factors that can influence the ratios.
- 543.
Giraud et al. 2014, p. 333/334.
- 544.
See Sect. 5.2.1 above.
- 545.
This question must be clearly distinguished from the argument of the “environmental” contamination of the Athlete him- or herself (contaminated food, nutritional supplements, medications) or through sabotage by third parties (spiked drinks).
- 546.
See Sect. 3.1.2.1.1 above.
- 547.
See also Kern 2007, pp. 345 & 351: “Nach Art. 2.1 liegt ein Dopingverstoss vor, wenn die Existenz einer verbotenen Substanz oder die Verwendung einer verbotenen Methode im Körper des Athleten festgestellt wird” [A doping violation is realised under Article 2.1, when the existence of a prohibited substance or the use of a prohibited method is found in the athlete’s body (author’s translation)]; Lambertz and Longrée 2012, p. 144.
- 548.
This is certainly true at least for the means of detection used nowadays in anti-doping science.
- 549.
For more details, see Sect. 8.1.2.2.1 below.
- 550.
Other provisions of the WADC offer only little guidance. In particular, the Strict Liability rule is of no assistance since it comes into play only once a violation is established. The exculpation ground of No Fault or Negligence, which requires the Athlete to prove “how the substance entered his or her system” (emphasis added), rather supports the interpretation of Article 2.1 as a rule of evidence, but this provision was designed with other purposes in mind and cannot be seen as a reliable interpretational aid.
- 551.
For an early CAS award on the reverse situation in which a substance has never been “ingested”, i.e. in the case of substances that can be endogenously produced, see CAS 98/222, B. v. ITU, in particular para 29. It can be reasonably assumed that a certain number of these cases may be settled before reaching CAS level.
- 552.
CAS 2007/A/1312, Adams v. CCES, para 141.
- 553.
CAS 2007/A/1312, Adams v. CCES, para 158. Jeffrey Adams was a disabled track-and-field Athlete who tested positive In-Competition to benzoylecgonine (“BE”), a cocaine Metabolite. Cocaine is a substance prohibited In-Competition only. For his defence, the Athlete explained that several days before the event, he had been assaulted in a bar by an unknown woman who had put her finger dipped in cocaine into his mouth while he was dozing in his wheelchair. Upon returning home later that night, he had felt the need to urinate, which he did using a catheter, a result of his disability. When selected for Testing at the event, he reused this same catheter to provide the Sample.
- 554.
For an isolated example, CAS 2009/A/1820, Schumacher v. UCI, para 133, where the panel, probably without being aware of it seemed to open the door to this alternative type of argumentation: “De son côté, l’appelant—bien que procédant à un exposé credible des risques inhérents à ce type d’analyses—n’a apporté aucun élément de preuve formelle selon lequel le SIL n’aurait pas été respecté ou selon lequel il y aurait effectivement eu une contamination ayant un impact sur le résultat d’analyse (dans le sens d’une positivité du résultat)” [The appelant, for his part—even though he has given a credible presentation of the risk inherent to this type of analysis—did not adduce any formal evidence whereby the ISL was not complied with or whereby a contamination with an impact in the analysis results effectively occurred (author’s translation, emphasis added)].
- 555.
On the “immunity” of WADA technical rules, see Sect. 5.1.2.3 above.
- 556.
For an outline and analysis of the case, see Viret M and Wisnosky E, The Pinzon award: When legal presumptions fail under the force of scientific evidence, Anti-Doping Blog 18 June 2014, http://wadc-commentary.com/pinzon/ (accessed 06.05.15).
- 557.
CAS 2013/A/3170, Pinzon v. FCN, para 80 et seq.
- 558.
Symptomatically, the national federation in the Pinzon v. FCN matter stayed mostly away from the proceedings and thus did not bring in much scientific evidence to counter the Athlete’s interpretation of the data and literature.
- 559.
CAS 2013/A/3170, Pinzon v. FCN, para 83.
- 560.
CAS 98/222, B. v. ITU, para 22.
- 561.
See Sect. 7.3.3 below.
- 562.
See Sect. 7.2.2 below.
- 563.
This option cannot be addressed satisfactorily by the application of Article 10.4 of the WADC, which would only allow for an elimination of the sanction, but does not reinstate the Athlete into his/her results nor eliminate the finding of an anti-doping rule violation.
- 564.
For an example in which the argument of a transformation of substance within the Sample was examined but dismissed as an interesting but speculative venture, see CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 111 et seq., specifically 145.
- 565.
This was the solution applied in CAS 2010/A/2296, Vroemen v. KNAU & ADAN, para 146.
- 566.
CAS 2011/A/2566, Andrus Veerpalu v. FIS, para 145 et seq.; CAS 2005/A/831, IAAF v. Hellebuyck, para 7.2.3; CAS 2010/A/2041, Chepalova v. FIS, para 102 et seq.
- 567.
See Sect. 2.1.1 above.
- 568.
For a typical example of ambiguous wording: CAS 2014/A/3488, WADA v. Lallukka, para 109, coupled with a confusion on the burden and standard of proof: “the Athlete is not in a position to prove to the comfortable satisfaction [sic] of the Panel that external factors may have had an impact on his ratio values, which could have led to a false positive”.
- 569.
See Sect. 5.2.4.2.1 above.
- 570.
See the somewhat inaccurate statement in CAS 2005/A/831, IAAF v. Hellebuyck, para 7.2.4, corrected in 7.2.4.2.
- 571.
See, in particular, Sect. 3.3.2 above.
- 572.
See Sect. 5.2.3.2 above.
- 573.
See Sect. 3.3.2.3 above.
- 574.
CAS 2011/A/2425, Fusimalohi v. FIFA, para 84/85.
- 575.
See Sect. 3.3.2.3 above.
- 576.
See Sect. 5.2.3.2.3.3 above.
- 577.
See Sect. 5.2.4.3.1.2 above.
- 578.
CAS 2008/A/1607, Varis v. IBU, para 120: “that the outcome of the “B” Sample testing cannot be accepted as part of the evidence of the Appellant’s alleged anti-doping rule violation”.
- 579.
CAS 2011/A/2435, WADA v. Thys, ASA & SAIDS, para 94: the rules aim at protecting “the Athlete from possible errors, mistakes and dishonesty”, and if the sports organisation could simply go away with arguing that there are no indications of any other departure, “the integrity of the testing [recte: analysis] process would lose all importance”, as the laboratories “would be free to ignore any standards as long as they manage to achieve similar results”.
- 580.
See Sect. 5.2.3.2.2.2 above.
- 581.
See Sect. 3.3.2.2 above.
- 582.
- 583.
In his study about Strict Liability in doping, Soek J suggests an additional, intermediate step called “illegality” to restrict the hypotheses in which the Athlete is held liable, which includes in particular procedural defects (Soek 2006, p. 105 et seq.). For Soek, the technical aspects are not part of the objective requirements of the doping offence; instead, procedural defects are a defence which can be raised by the Athlete as an objection against the “illegality” of the offence, which explains why the burden of proof is on the Athlete. In spite of its indubitable merits, this illegality approach has drawbacks which in our view outweigh its advantages. First, the concept of “illegality” creates an additional structural element that is at odds with the system of the WADC. Second, this approach relies on considerations of criminal law and is rooted in a specific legal system and legal reasoning, which might be difficult to export into other legal cultures.
- 584.
With respect to the legal effects of a procedural defect, although para 3.2.2 does not explicitly state that a departure from the ISL which did not cause the Adverse Analytical Finding will not invalidate such Adverse Analytical Finding, this is self-speaking and inherent to the provision. Otherwise there would be no purpose at all in allowing the ADO to prove that the departure did not cause the Adverse Analytical Finding (see David 2013, p. 80).
- 585.
See Sect. 3.1.2.1.2 above.
- 586.
The presence of procedural defects could even be regarded as a negative requirement which represents a hurdle to the validity of an anti-doping rule violation where all other explicit requirements for such violation are fulfilled, hence a “rechtshindernde Tatsache”, which must be established by the Athlete as the party alleging the existence of the negative prerequisites (see Sect. 3.1.2.2.2 above). However, in our view, Article 3.1, in providing that the ADO shall establish the anti-doping rule violation, attributes the proof of all prerequisites—including the negative ones—to the ADO.
- 587.
See Sect. 3.1.2.2.3 above.
- 588.
See Sect. 7.3.3 below.
- 589.
See Sect. 5.2.3.2.2.2 above.
- 590.
See Sect. 5.2.2.3.2 above.
- 591.
See Sect. 5.1.1 above.
- 592.
Lewis and Taylor 2014, C2.67, expresses similar views, but appear to consider that this already corresponds to the current situation under the WADC, i.e. that the ADO has to establish compliance with the ISTI in the particular matter.
- 593.
See Sect. 5.2.3.2.2.2 above.
- 594.
See Sect. 5.2.2.4.2.2 above.
- 595.
See Sect. 5.2.3.2.2.1 above.
- 596.
With respect to the parallel questioning on the presumption of Fault, see Sect. 7.3.3 below.
- 597.
See Sect. 6.2.3.4.1 below.
- 598.
On the Doping Control form as a means of evidence in CAS arbitration, see Sect. 8.2.1.2 below.
- 599.
As the panel in CAS 98/188, Coan v. IPF, para 41, put it “the panel doubts whether any error insufficient as to cause an immediate halt to the procedure (such as refusal to sign the collection form) would be sufficient to excuse a material breach of good collection and test procedure”.
- 600.
On these difficulties, see Lewis and Taylor 2014, C.2.70.
- 601.
On these concepts, see Sect. 3.1.2.2.4 above.
- 602.
On document production before CAS, see Sect. 8.2.2 below.
- 603.
See Sect. 3.3.2 above.
- 604.
See Sect. 5.2.3.2.2.1 above.
- 605.
See Sect. 5.2.3.2.3.1 above.
- 606.
See Sect. 5.2.3.2.3.3 above.
- 607.
Or at least a set of criteria, see Sect. 5.2.3.1.1 above.
- 608.
For example, for the requirement that a representative be allowed to be present during the Sample collection on a Minor, one should determine whether this rule aims at avoiding abuses against minors (in which case the absence of the representative should not invalidate the positive findings) or whether the aim is to guarantee that an adult is there to verify the integrity of the Sample collection.
- 609.
See Sect. 5.2.3.2.4 above.
- 610.
Note that, initially, one could doubt whether the rationale for the exception to the causality requirement lay in the fact that the B Sample right has a legal source different from the breaches of the IST and ISL related to the Testing and analysis process (see for this interpretation David 2013, p. 115).
- 611.
CAS 2008/A/1607, Varis v. IBU, para 114.
- 612.
CAS 2009/A/1752, Devyatovskiy & Tsikhan v. IOC, para 5.182.
- 613.
CAS 2010/A/2161, Wen Tong v. IJF, 23 February 2011, para 9.9; CAS 2008/A/1607, Varis v. IBU, para 114; thus, David 2013, p. 149, submits that a distinction should be drawn “between a denial of the proper B sample process to the Athlete and a failure to carry out the analysis of the B sample properly”.
- 614.
CAS 2010/A/2161, Wen Tong v. IJF, para 9.9; see already CAS 2002/A/385, T. v. FIG, para 33.
- 615.
See Sect. 5.2.1.3 above.
- 616.
See Sect. 5.2.4.2.2 above.
- 617.
I.e. by aiming for the most favourable sensitivity versus specificity ratio achievable.
- 618.
See Sect. 10.3.2.2.2 below.
- 619.
Note that for innovative methods, laboratories will typically have concluded the validation of the method by publication in a peer-reviewed journal, a publication which would indicate the sensitivity/specificity characteristics of the method based on the number of Samples used during the validation studies.
- 620.
See Sect. 5.2.4.3.1.2 above.
- 621.
See Sect. 5.2.4.3.1 above.
- 622.
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Viret, M. (2016). Doping Control—Gathering Scientific Evidence for Legal Purposes. In: Evidence in Anti-Doping at the Intersection of Science & Law. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-084-8_5
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