CAS Bulletin 2022

Editorial

The move of the offices of the Court of Arbitration for Sport (CAS) to its new headquarters at the Palais de Beaulieu in Lausanne will take place in March 2022, just after the Olympic Winter Games Beijing 2022. The Palais de Beaulieu, inaugurated in 1921, is a historic building in a complex called the “Beaulieu Congress and Exhibition Centre” which hosted many exhibitions, ceremonies and public events. The new seat of the CAS will be integrated in the south wing of the existing (renovated) building which should give a new specific visual identity to the CAS. The restoration undertaken by the CAS, including new facilities such as 3 large hearing rooms, an auditorium and several meeting rooms, contributes to the revitalization of an emblematic place for Lausanne. The other parts of the building will accommodate the renovated theatre, a restaurant and a convention centre. The south wing of the Palais de Beaulieu has been extensively transformed and modernised to benefit from equipment adapted to the CAS needs, including the possibility to organize public hearings. The new CAS headquarters, which are considerably larger than the current CAS premises, will be able to group together on a single site all CAS staff, i.e. 44 employees, who are currently divided between Béthusy and a temporary office on Avenue de Rhodanie in Lausanne. The recruitment of additional staff in 2022, made necessary by the constant increase in the number of cases registered by the CAS - almost 900 cases registered in 2021 - will also be facilitated.

The Court of Arbitration for Sport (CAS) is preparing to open two temporary offices in Beijing for the 2022 Olympic Winter Games (the Games) that will be held from 4 to 20 February 2022 in Beijing. The first, the CAS Ad Hoc Division, will resolve any legal disputes that arise during the Games. This temporary tribunal has operated at every edition of the Summer and Winter Olympic Games since 1996, as well as at other major sporting events. The CAS Ad hoc Division will be able to render decisions within 24 hours in case of urgent matters. The second temporary office is a section of the CAS Anti- Doping Division which will be in charge of anti-doping-related matters arising during the Games as a first-instance authority. This structure, in operation for the fourth time since its inauguration at the Rio 2016 Olympic Games, will handle potential doping cases referred to it by the International Testing Agency (ITA) in accordance with the International Olympic Committee (IOC) Anti-doping Rules. Due to the evolution of the COVID19 pandemic, the sanitary conditions applicable in Beijing will be even stricter than at the last Olympics in Tokyo, with all participants being restricted to a “Closed Loop” throughout the duration of the Games. Likewise, strict sanitary controls and the absence of foreign spectators - outside the Olympic accredited persons - will ensure the safest environment possible.

As usual, because the vast majority of CAS cases are football-related, this new issue of the Bulletin includes a majority of selected “leading cases” related to football, namely nine football cases and two doping cases.

In the field of football, the case 7008 Sport Lisboa e Benfica SAD v. FIFA & 7009 Sport Lisboa e Benfica SAD v. FIFA deals with disciplinary sanctions for violation of Art. 18bis RSTP; it is one of the few awards regarding Art. 18bis RSTP, with special interest as regards the concept of “influence”. The case 7503 N. v. FIFA interprets the exception of Art. 19 para. 2 lit a RSTP regarding the international transfer of minor players. In 7252 BFC Daugavpils v. FC Kairat & FIFA, the issuance of “proposals” by FIFA in the field of training compensation is analysed for the first time by a CAS panel. The cases 7290 ARIS FC v. Oriol Lozano Farrán & FIFA and 6713 Nilmar Honorato da Silva v. FIFA contemplates notably the sporting succession of clubs. In 7276 Suphanburi FC v. Michael Seroshtan, the validity of a contractual clause related to the termination of the contract between a player and a club is examined. The case 4717 Arsenal F.C. v. FIFA addresses the breach of FIFA regulations on third party Influence. In 6040, the term “surroundings” is interpreted in relation to a club’s liability for the conduct of its supporters. Finally, the case 7266 Perak Football Association v. Jeon Hyoseok deals with the admissibility of an appeal, in particular in case of filing of the statement of appeal by email.

Turning to doping, the case Anna Knyazeva- Shirokova v. Russian Anti-Doping Agency RUSADA examines the validity of the suspension of an athlete for having collaborated/trained with a coach already convicted for doping-related offences. This case is related to the proper notification of the rule, the interpretation of the rule and the different steps that need to be taken to sanction someone. Lastly, the case World Athletics v. Salwa Eid Naser relates to a whereabout failure. It determines what a reasonable attempt to locate an athlete for out-of-competition testing is and addresses WADA’s right to recharacterize a charge against the athlete.

Finally, summaries of the most recent judgements rendered by the Swiss Federal Tribunal in connection with CAS decisions have been enclosed in this Bulletin. Of particular interest are the decisions 4A_644/2020 and 4A_612/2020 rendered in French by the Federal Tribunal which confirm the independence and the specific jurisdiction of the CAS and of the CAS Anti-Doping Division respectively. Likewise, the decision 4A_600/2020 translated into English confirms that the ECtHR, like the Federal Tribunal, recognizes that recourse to arbitration is possible in sports matters notwithstanding the absence of an expressed consent by a party, that however, in the case of so-called compulsory arbitration (“arbitrage forcé”, according to the terminology of the ECtHR), the arbitral tribunal must offer the guarantees provided for by Article 6(1) ECHR, in particular those of independence and impartiality, which is the case for the CAS.

We are pleased to publish in this issue an article written in English by Björn Hessert, CAS Counsel, related to sports investigations in anti-doping matters, as well as an article co-written in French by Pauline Pellaux, CAS counsel and Matthieu Reeb, CAS Director General, entitled “La désignation de la partie défenderesse devant le TAS”.

We wish you a pleasant reading of this new edition of the CAS Bulletin.

Estelle de La Rochefoucauld Counsel to the CAS, Editor-in chief

Sports investigations in anti-doping matters

by Björn Hessert*

I. Introduction

II. What constitute “anti-doping investigations”?

III. Testing

A. Notification of athletes

a. Actors involved in the sample collection process

b. Authorisation of sample collection
c. Identification

B. Final remarks to Testing

IV. Whereabouts

V. Reliable means and intelligence gathering

VI. The outcome and consequences of anti-doping investigations

VII. Summary

________________________________________________

I. Introduction

Unannounced testing and other forms of investigations are fundamental in the fight against doping in sport. Article 5 of the World Anti-Doping Code (“WADA Code”) deals with the testing and gathering of other evidence to prevent and detect anti-doping rules violations in national and international sports competitions.1 In addition, the International Standard for Testing and Investigations (“ISTI”) and the International Standard for Results Management (“ISRM”) are an integral part of the provisions governing the investigation of doping offences. These two International Standards are not only a source of inspiration for the administration of testing and investigations in anti-doping matters, but they also form an integral part of the anti-doping program of Signatories to the WADA Code.2 Given the importance of anti-doping investigation proceedings for both sportspersons and

Anti-Doping Organisations (“ADOs”), it is all the more surprising that insufficient research has been conducted in this area of anti-doping procedures. This issues arising from anti-doping investigation proceedings is most aptly demonstrated by the decision of the Court of Arbitration for Sport (“CAS”) taken in the Sun Yang case. In this procedure, the CAS panel had to examine whether or not the sample collection process was compliant with the ISTI. In addition, the question arose as to whether the notification or behaviour of the sample collection personnel constituted a compelling justification for athletes to terminate the sample collection procedure or whether “the proper path for an Athlete is to proceed with a Doping Control under objection, making available immediately the complete grounds for such objection” (completion “under protest”). Similar questions may also arise in anti-doping investigation proceedings related to the (attempted) Use of Prohibited

Substances, Whereabouts Failures, Tampering or other Anti-Doping Rule Violations (“ADRV”) under the WADA Code.

The Sun Yang case demonstrates the importance of a comprehensive and rigorous understanding of the provisions particularly contained in the ISTI and ISRM. This is all the more true when considering the severe consequences that sportspersons may face when they are in violation thereof. This article therefore aims at to shed some light on anti-doping investigation proceedings. Firstly, it will discuss the term of “anti- doping investigations”. This work will examines sample collection proceedings and the gathering of evidence in non-analytical cases, i.e. when an ADRV cannot be established by a positive doping test and therefore require other reliable means. Lastly, the article will briefly discuss the consequences of a positive or negative outcome of the anti-doping investigations conducted.

II. What constitute “anti-doping investigations”?

The starting point to define the term of “anti- doping investigations” is the WADA Code and its International Standards. A first reference to investigations in anti-doping matters can be found in Article 5.1 of the WADA Code which states that “Testing and Investigations may be undertaken for any anti-doping purpose”. However, a definition of “investigations” is not contained in Appendix 1 or any other part of the WADA Code. Surprisingly, the International Standard for Testing and Investigations does also not define what shall constitute an anti-doping investigation. Instead, the pertinent parts of Article 1 of the ISTI (“Introduction and Scope”) only provide as follows:

“The first purpose of the International Standard for Testing and Investigations is to plan for intelligent and effective Testing, both In-Competition and Out- of-Competition, and to maintain the integrity and identity of the Samples collected from the point the Athlete is notified of his/her selection for Testing, to the point the Samples are delivered to the Laboratory for analysis. [...] The second purpose of the International Standard for Testing and Investigations is to establish mandatory standards for the efficient and effective gathering, assessment and use of anti- doping intelligence and for the efficient and effective conduct of investigations into possible anti-doping rule violations”.

Considering the provisions contained in the WADA Code and the ISTI, it is noticeable that both documents generally distinguish between “Testing”, on the one hand, and “Investigations”, on the other hand. Accordingly, drafters of the WADA Code deemed it essential to form a strict distinction between “Testing” and “Investigations” the fight for doping-free sport. However, it appears to be questionable whether such strict distinction is accurate when one considers the purpose of both testing and investigations in anti-doping matters.

The purpose of anti-doping investigations is well-described in Article 12.1.1 of the ISTI which states as follows:

“In each case, the purpose of the investigation is to achieve one of the following either:

to rule out the possible violation/involvement in a violation;
to develop evidence that supports the initiation of an anti-doping violation proceeding in accordance with [Article 8 of the WADA Code]; or
to provide evidence of a breach of the Code or applicable International Standard”.

In the light of the foregoing, the purpose of investigations in anti-doping matters is to detect possible ADRVs and, ultimately, to prevent the participation of doped athletes in sports competitions. Investigations should enable the respective ADOs – which have the onus to establish ADRVs – to gather intelligence and probative evidence to prosecute athletes and other persons who are allegedly in violation of the applicable anti- doping rules. The deterrence and prevention of ADRVs as well as the gathering of intelligence to prosecute rule- violating athletes and support personnel are at the core of testing regimes and non- analytical investigations, meaning cases in which ADOs may not benefit from an Adverse Analytical Finding (“AAF”). Therefore, in both scenarios, the overall objective is to establish an ADRV through the support of reliable means and probative evidence. Accordingly, the distinction between testing and investigations in anti- doping matters is inaccurate, because testing is already part of anti-doping investigations. This is because the direct detection of prohibited substances in the athletes’ system provides ADOs with the required evidence to prosecute the alleged athletes for an ADRV under Article 2.1 and 2.2 of the WADA Code.

The question then, however, becomes whether there are differences between testing and other investigations in anti-doping matters, particularly in non-analytical intelligence cases. In this regard, it is important to examine the purpose of the specific anti-doping investigation conducted. More specifically, when looking at the use of different investigatory measures in anti-doping investigations, it is crucial to first clarify whether the investigation has a preventive or repressive nature at the material time of the investigation. This is so important because different prerequisites may apply to intelligence gathering in preventive or repressive anti-doping investigations. For example, sample collection sessions are carried out for preventive purposes. In the material moment of the sample collection, the athlete is not alleged of any specific ADRV. Instead, all athletes must submit to sample collection on the mere fact that they are bound by the anti-doping rules as part of their contractual obligations with sports organisations. In other words, the main purpose of the testing regime under the WADA Code and the ISTI is to prevent anti-doping rule violations in the future. Otherwise, the collection of blood or urine samples may appear to be unreasonable and disproportionate in consideration of, e.g., the athlete’s privilege against self-incrimination. Anti-doping investigations have a repressive nature, in turn, if the investigatory measure is applied at a time when the sportsperson is already accused of a specific ADRV. The distinction between preventive and repressive anti-doping investigations can also be illustrated when looking at the investigatory nature of the so- called Athlete Biological Passport (“ABP”), the objective of which is described in Annex I.1 of the ISTI as

“[t]o collect an Athlete’s blood Sample, intended for use in connection with the measurement of individual Athlete’s blood variables within the framework of the Athlete Biological Passport program, in a manner appropriate for such use”.

The objective of the ABP is therefore to convict athletes of the Use of Prohibited Substances or Methods (cf. Article 2.2. of the WADA Code) in cases where a direct detection of Prohibited Substances in their systems is not available.

Accordingly, Atypical Passport Findings provide useful evidence in order to prosecute athletes for an asserted violation of the Use of Prohibited Substances or Methods under Article 2.2 of the WADA Code. However, the blood samples for the ABPs are always collected from the individual athlete at a time when they are not accused of any misconduct. In other words, the collection of blood samples for ABP purposes falls within the ambit of Testing, i.e. “Testing involving longitudinal profiling”, and therefore constitutes a preventive measure in anti-doping investigations.

Consequently, the decisive criterion to determine whether the anti-doping investigation has a preventive or repressive nature is whether the ADO is investigating a specific allegation of an ADRV at the material time of the application of investigatory measures.23 Against this background, the following sections takes a closer look at the requirements of the different investigatory measures under the WADA Code and International Standards.

III. Testing

The testing regime under the WADA Code and the ISTI can generally be divided into different stages. The first stage is the notification of the athlete and the second stage is the collection of urine or blood samples. The third stage is the analysis of the collected samples that falls within the scope of the International Standard for Laboratories (“ISL”), which is not the focus of this paper.

When discussing the first two stages of testing under the WADA Code and ISTI – to which athletes need to submit in order to pursue a professional career in sport – it is important to keep in mind that testing procedures may have a severe impact on the personality rights of athletes, for example guaranteed under Article 28(1) of the Swiss Civil Code (“SCC”). It is therefore critical for the present analysis to bear in mind that a balance between the interests of sports organisations and rule-abiding athletes in doping-free sports competitions, on the one hand, and the personality rights of athletes, on the other hand, shall be stricken, see e.g. Article 28(2) of the SCC. Accordingly, this balancing process is critical when discussing the legitimacy of intelligence gathering in anti-doping matters, including the collection of blood and urine samples of athletes pursuant to the provisions of the ISTI.

A. Notification of athletes

Once the ADO with testing authority has finalised its so-called Test Distribution Plan and an athlete has been selected for In- Competition and/or Out-of-Competition testing, the selected athlete must be properly notified in order to protect their rights and bodily integrity from any abusive behaviour by third parties.26 In sample collection sessions involving sportspersons under the age of 18, the Testing Authority and/or Sample Collection Authority must ensure that (a) the parental consent for Testing is given and (b) the athlete and their guardians/parents are notified in the protection of the less experienced and more vulnerable minor athletes.

Selected athletes must not only be informed about their rights and responsibilities, but the Sample Collection Personnel must also identify themselves and provide documents of the sports organisation that ordered the sample collection.28 In this respect Article 5 of the ISTI provides – in its pertinent parts – as follows:

“5.4.1 When initial conduct is made, the Sample Collection Personnel, DCO or Chaperone, as applicable, shall ensure that the Athlete and/or a third party if required in accordance with Article 5.3.7 [e.g. guardians]) is informed:

a) That the Athlete is required to undergo Sample collection

b) OftheauthorityunderwhichtheSamplecollection is to be continued

[...]

5.4.2 When contact is made:

[...]

b) Identify themselves to the Athlete using the documentation referred to in Article 5.3.3 [...]”.

In addition, Article 5.3.3 of the ISTI provides that the

Sample Collection Personnel shall have official documentation, provided by the Sample Collection Authority, evidencing their authority to collect a Sample from the Athlete, such as an authorization letter from the Testing Authority. DCOs shall also carry complementary identification which includes their name and photograph (i.e., identification card from the Sample Collection Authority, driver’s license, health card, passport or similar valid identification) and the expiry date of the identification”.

According to the aforementioned provisions, the Sample Collection Personnel must provide the selected athletes with official documents of the sample collection authorising ADO and their own identity during the notification process. However, these provisions only roughly describe which information is to be provided and therefore lack any clarification as to what specific information is to be presented to the athlete by the Doping Control Officer (“DCO”) or other Sample Collection Personnel29 (the “SCP”) for the purpose of authorisation and identification.

a. Actors involved in the sample collection process

Before looking at this issue in more detail, it seems necessary to explain the different actors that are mentioned in Article 5.3.3 of the ISTI and that are involved in the sample collection process, i.e. the Testing Authority (“TA”), the Sample Collection Authority (“SCA”), the DCO and the SCP.

Every athlete is subject to the testing regime of a specific ADO that requires them to submit to sample collection “at any time and at any place”30. The person whom the ADO has authority over is specified in more detail in Articles 5.2 and 5.3 of the WADA Code. A closer look at these provisions reveals that more than one ADO can have testing authority over one athlete, depending on a confluence of factors set forth in Article 5.2 of the WADA Code. Interestingly, the testing authority of national and international ADOs in major events may exist only with respect to Out-of-Competition testing upon approval of the TA for such events, for example the International Olympic Committee (“IOC”) for the Olympic Games, the International Paralympic Committee (“IPC”) for the Paralympic Games or the Fédération Internationale de Football Association (“FIFA”) for the FIFA World Cup. The fact that those tests collected by the ADO – which would otherwise have testing authority over athletes – may only be considered as Out-of-Competition testing can have consequences for the outcome of the investigation process. In other words, in case an athlete is tested positive for a substance that is only prohibited In-Competition, the otherwise responsible TA is generally not able to prosecute and sanction the athlete for a breach of its anti-doping regulations, unless they have been authorised by the Major Event Organization to conduct In-Competition Testing, cf. Article 5.3.2 of the CAS Code.

TAs can conduct their own sample collection session as a SCA. For whatever reason, the TA may also decide to delegate their power to collect doping samples – as an aspect of Doping Control – from the athletes they have authority over to a so-called Delegated Third Party, i.e. the SCA. An example for the delegation of the power to conduct sample collection proceedings is explicitly provided in Article 5.2.6 which provides that International Federations or Major Event Organisations can “[delegate or contract] any part of Testing to a National Anti- Doping Organization directly or through a National federation”.31 ADOs may also engage specialized service provider to collect blood and urine samples on behalf of the TA, such as the International Testing Agency (“ITA”), a foundation with seat in Lausanne, Switzerland. A mandatory requirement of agreements between the TA and the SCA is that the latter consents to comply with the WADA Code and the International Standards.32 This seems to be necessary and reasonable, because in delegated sample collection procedures, athletes should be in the same position that they would have if the TA had collected the doping samples. The TA and the SCA may even agree that the SCA manages not only the sample collection procedures (i.e. the preventive investigation process), but may also take care of the first part of the results management process mentioned under Article 7 of the WADA Code. However, it is pertinent to mention that the TA remains responsible for any flaws in the testing process. In regard, Article 20 of the WADA Code stipulates that

“[e]ach Anti-Doping Organization may delegate aspects of Doping Control ... for which it is responsible but remains fully responsible for ensuring that any aspect it delegates is performed in compliance with the Code”.

The person in charge of the sample collection process is the DCO who is accompanied by the SCP, such as the Blood Collection Officer (“BCO”) or Chaperone. The DCO is generally a person who “has been trained and authorized by the Sample Collection Authority to carry out the responsibilities given to DCOs in the International Standard for Testing and Investigations”. The SCP in charge of the respective sample collection sessions must further fulfil the requirements mentioned under Article 5.3.2 of the ISTI. For example, they must not be conflicted or minors.

b. Authorisation of sample collection

As an initial matter, it should be noted that the authorisation of the SCA (cf. Art. 5.4.1 lit. b) of the ISTI) should be strictly separated from the question of the identification of the DCO and/or the SCP under Article 5.4.2 lit. b) of the ISTI, as they serve different purposes. The authorisation of the TA delegates authority to the SCA and consequently to its SCP to collect samples on behalf of the TA, whereas the identification serves the purpose to establish a link between the SCA and SCP.

The legal document to delegate authority to the SCA regarding the sample collection process, on behalf of the TA, is the so-called “Letter of Authorisation” (also referred to as “LoA”, “Letter or Authority” or “authorisation letter”) provided by the TA.

In other words, the purpose of the LoA is to (a) provide proof that the SCA has been granted general permission by the TA to carry out urine and blood sample collection sessions and (b) to ensure athletes that the “Sample Collection Personnel is acting [on behalf and] under the authority of the Testing Authority.35 In the Sun Yang case, however, the question arose whether there are any other requirements to be placed on such letter. More specifically, the Respondents were of the view that a generic LoA, meaning the confirmation that the TA delegates its testing authority to the SCA, is not sufficient. Instead, the athlete argued that authorisation pursuant to Article 5.4.1. lit. b) of the ISTI in conjunction with Article 5.3.3 of the ISTI requires individualised LoAs and therefore provide the authorisation of each member of the SCP individually, i.e. a combination of Doping Control Authority and Testing Order. The position of the Respondents in CAS 2019/A/6148 was summarised by the CAS Panel as follows:

“Sample Collection Personnel not only provide a Letter of Authority authorizing the team as a whole, but also show documentation that: (i) names each individual Sample Collection Personnel member, (ii) identifies a specific testing mission, and (iii) lists the specific athlete(s) to be sampled. In other words, they say that the ISTI require that each and every member of the Sample Collection Personnel be individually identified and authorized to partake in the mission”.

An answer to the mandatory prerequisites of the LoA would – at first sight – be expected to be found in the ISTI itself, in the Guidelines for Sample Collection, or the Guidelines for Sample Collection Personnel. However, all documents are either ambiguous or silent on this matter. The Guidelines for Sample Collection states that “[t]he TA/SCA must also provide official documentation to SCP validating their authority to collect a sample from the athlete, e.g., an authorization letter from the TA”, but does not specify what requirements are placed on the content of the letter of authorisation in order to establish the delegated authority from the TA. The above-mentioned Article 5.3.3 of the ISTI could be the starting point to establish the appropriate criteria for the content of the LoA. However, in contrast to the identification under Article 5.4.2 lit. b) of the ISTI, Article 5.4.1 lit. b) of the ISTI makes no explicit reference to Article 5.3.3 of the ISTI. Accordingly, it appears at least questionable to find a clear and direct answer to the prerequisites of the LoA in Article 5.3.3 of the ISTI. These concerns are further reinforced by the wording of said provision. The second sentence of Article 5.3.3 of the ISTI expressly refers to the identification of the DCO, whereas the first sentence merely states that a LoA as such is required to delegate authority (“official documentation, provided by the Sample Collection Authority, evidencing their authority to collect Sample from the Athlete, such as an authorization from the Testing Authority”). Therefore, in order to analyse whether or not individualised and mission-specific LoAs are mandatory under Article 5.4.1 lit. b) of the ISTI in conjunction with Article 5.3.3 of the ISTI, it deems necessary to take into account the leading jurisprudence of the CAS in this regard, which is without any doubt the Sun Yang decision.

In the Sun Yang case, CAS panel discussed the issue raised by the Respondents that each member of the Sample Collection Personnel should explicitly be mentioned in the LoA. In this context, a lot of the discussion revolved around the interpretation of “official documentation” in Article 5.3.3 of the ISTI to which Article 5.4.2 lit. b) of the ISTI – as mentioned before – makes express reference. In this regard, it should be remembered that a demarcation between authorisation and identification is necessary due to their different functions under the ISTI. Bearing this distinction in mind, the wording of Article 5.3.3 of the ISTI does not offer any help with respect to the issue in question, i.e. the requirement of individualised authorisation letters. Instead, Article 5.3.3 of the ISTI also makes a distinction between authorisation and identification in the sense that the first sentence of the provision refers to the former and the second sentence to the latter. Accordingly, the documents mentioned in Article 5.4.2 lit. b) of the ISTI refer to the documents stated in the second sentence of Article 5.3.3 of the ISTI in order for the DCO to establish a link between themselves and the SCA, i.e. “identification card from the Sample Collection Authority, driver’s license, health card, passport or similar valid identification”. In addition, the second sentence also states that these documents “shall also” be carried by the DCO which further indicates a clear distinction between the documents mentioned in the first and second sentence of Article 5.3.3 of the ISTI. This does not mean that the DCO does not need to show the “official documentation” mentioned in the first sentence of Article 5.3.3 of the ISTI to the athlete. This is, however, only required as part of the authorisation process pursuant to Article 5.4.1 lit. b) of the ISTI. Accordingly, Article 5.3.3 of the ISTI does not provide for any individualised and mission-specific authorisation letter. Such requirement would also be counterproductive for a swift and “unnecessary burdensome administrative” doping sample collection procedure and the fight against doping as such:

“For example, because out-of-competition testing is intended to catch a tested athlete unawares, providing him with detailed documentation that identifies the names of athletes and their prospective test dates would be self-defeating. Likewise, since the ‘typical’ mode for authorizing Sample Collections is through a blanket authorization to the Sample Collection Authority, the identities of individual Sample Collection Personnel may not be known in advance of the mission, and so cannot be provided on the Letter of Authority. Authorizations for in-competition tests, in turn, may be issued before even knowing the identities of the athletes, much less the individuals (and possible chaperones) who will sample them...given a variety of factual circumstances, and in the light of the range of interests which the doping control process must accommodate, the ISTI adopts a flexible approach, not a bespoke one. It seeks to accommodate many different scenarios while ensuring a basic level of protection for athletes through mandatory documentation and identification requirements”.

The findings of the CAS panel in CAS 2019/A/6148 that the authorisation under Article5.4.1lit.b) of the ISTI does not require an individualised and mission-specific LoA is in line with its purpose, i.e. the authorisation of the SCA and SCP to collect urine and blood samples on behalf of the TA. A personalised LoA is not necessary if one considers that the DCO in charge needs to identify themselves in order to establish a link between themselves and the SCA under Article 5.4.2 lit. b) of the ISTI. The requirement of double identification, as raised by the Respondents in the Sun Yang procedure, appears therefore neither necessary nor appropriate for the overarching purposes of the protection of athlete’s rights and the avoidance of the provision of manipulated doping samples. Nevertheless, this does not prevent the SCA and SCP to use individualised LoAs during the authorisation process. The frequent use of individualised authorisation letters by the SCA and SCP concerned may however lead to a customary practice which would then require TAs to provide individualised LoA in any future urine and blood sample collection session. The onus in this regard rests on the athlete. The threshold to establish a customary practice that would trigger the provision of individualised LoA is, however, far from clear and has not been decided to date.

In the light of the above, “the ISTI does not require documentation above and beyond that of a generic Letter of Authority on behalf of the Sample Collection Personnel as a whole”.

c. Identification

As mentioned in the preceding part, the DCO (or Chaperone48) need to identify themselves “using the documentation referred to in Article 5.3.3” either in the paper or electronic version of the identification document.49 This issue has been clarified in CAS 2018/A/5885 & CAS 5936 in which the CAS panel held that “there is no specific rule that requires mandatorily the presentation of a paper identification and a contrario that forbids electronic identification (a modern form of ID increasingly used in other contexts). Consequently, the Panel declares that an electronic identification is satisfactory for the purpose of Article 5.3.3 of the ISTI”.

In summary, DCOs are required to show athletes the following documents in order to proof their authorisation and identity:

- LetterofAuthorisation(=linkbetween TA and SCA/SCP)
- Testing Order (= “personalised authorisation” provided in ADAMS51)
- Accreditation and documents provided in Article 5.3.3, 2nd sentence of the ISTI

Furthermore, the reference to “themselves” in Article 5.4.2 lit. b) of the ISTI does not mean that the entire SCP need to identify themselves. The wording explicitly and unambiguously provides that it is the DCO or Chaperone who have to identify themselves during the notification process.52 Accordingly, for example, the Blood Collection Officer (“BCO”), Blood Collection Assistant (“BCA ”), or Doping Control Assistant (“DCA”) do not need to identify themselves under said provision. If one of them acts as a chaperone during the doping control session, the legal situation is of course different and can therefore require identification pursuant to Article 5.4.2 lit. b) of the ISTI (“the DCO/Chaperone shall identify themselves...”). SCP other than DCOs and Chaperones must, however, be adequately accredited by the SCA in order to be legally involved in the sample collection process in protection of the athletes’ rights and health. The SCA shall only grant accreditation for the respective SCP once the respective person has completed their training to ensure that they are sufficiently qualified for their assigned task during the urine and blood sample collection process.53 Therefore, the DCO generally signs a Letter of Authorisation, which is different from the LoA discussed above, in order to confirm the SCP’s qualification for their role in the sample collection process. The SCP’s letter of authorisation shall be carried and shown to the respective athlete, if required. Therefore, athletes ought to be entitled, at the very least, to ask for the SCP’s accreditation to ensure that the respective person has the expected expertise and training for the role assigned during the sample collection process. The existence or veracity of the SCP’s medical or other credentials may be a reason to object to the sample collection process as a whole on the Doping Control Form, but it is not a justified reason to terminate testing, because “the SCO vouches for [the training of their subordinated colleagues]–in writing, as on the Statement of Confidentiality and orally, as part of a notification. Under the ISTI, the DCO speaks for the Sample Collection Personnel as a whole”.

The DCO/Chaperone are not the only persons who need to identify themselves during the notification process. The athletes also have the obligation to confirm their identity to prevent any manipulation of the sample collection process, cf. Article 5.4.2 lit. c) of the ISTI. The identification of athletes seems to be a “no-brainer” – at first sight – but appears to be an important requirement in the light of a recent discovered doping sample collection manipulation scheme in the sport of weightlifting. The WADA Intelligence and Investigations Department (“WADA’s I&I”) recently carried out two investigations on alleged urine substitution through the use of doppelgängers, namely Operation Heir and Operation Arrow. The investigations uncovered that doppelgängers provided urine samples in lieu of weightlifters that were selected for testing and therefore most certainly tempered with the Doping Control Process (cf. Article 2.5 of the WADA Code). These examples show that it is fundamentally important that the TA/SCA have a watertight system in place which does not allow sample substitution cases to occur again in the future.

B. Final remarks to Testing

Unannounced testing procedures – as part of preventive anti-doping investigations – is vital for combating doping in sport and protecting its integrity.59 The prevention and detection of the use of doping therefore “demands and expects that, whenever physically, hygienically and morally possible, the sample provided despite objections by the athlete. If that does not occur, athletes would systematically refuse to provide samples for whatever reasons, leaving no opportunity for testing”.

Accordingly, the termination of the doping control process due to irregularities on the grounds of a compelling justification can only be the last resort for athletes. Athletes must be aware that they may face the risk of a long sanction for the commitment of an ADRV if they prematurely terminate their doping control process on the basis of a subjectively presumed compelling justification if the competent hearing panel, including the CAS Anti-Doping Division (“CAS ADD”) or the CAS as an appellate arbitration tribunal, comes to the conclusion – in its ex post review of the circumstances in question – that no such compelling justification existed objectively at the material time of sample collection. To strike a fair balance between the competing interests of athletes and sports organisations, the recommended procedure for athletes is to undergo testing, object to the allegedly flawed doping process on the Doping Control Form and, ultimately, inform the TA about the irregularities immediately.61 Because of the severe consequences associated with an unjustified termination of the doping sample collection process, the SCP are required to thoroughly inform athletes thereof. As a consequence of the importance of testing and the resulting above-mentioned principle of mandatory submission to testing at any time, justifying circumstances that would allow athletes to terminate the doping sample collection process can only be assumed in exceptional cases. For example,

DCA of same gender not available during urine sample collection process63;
Privacy of the athlete and SCP are not guaranteed64;
Suitable qualified person to collect blood samples is not part of SCP; and

The circumstances of the blood sample collection process do not comply with “recognised standard precautions in healthcare settings”.

In summary, testing is undoubtedly the most important investigatory measure to prevent and detect the use of prohibited substances and methods in sport. It is therefore central to have a temper-proof system in place in order to be prepared against any person who wishes to outwit sports organisations to the detriment of fair and equal sports competitions. However, the doping sample collection process interferes with the athletes’ right to privacy. As a consequence, is it necessary to strike a fair balance between these competing interests as an overarching principle of the testing regime under the WADA Code and ISTI.

In case the samples collected are positive, the Results Management Authority67 has to review this AAF as a final step of the analytical anti-doping investigation procedure pursuant to Article 7.2 of the WADA Code in conjunction with Article 5.1 of the ISRM, including the verification of whether a Therapeutic Use Exemption

Whereabouts Filing that enables the Athlete to be located for Testing at the times and locations set out in the Whereabouts Filing or to update that Whereabouts Filing where necessary to ensure that it remains accurate and complete, all in accordance with Article 4.8 of the International Standard for Testing and Investigations and Annex B of the International Standard for Results Management.”

(“TUE”) had been granted in favour of the athlete.68 In the affirmative, investigations against athletes shall be discontinued, unless other circumstances point to an ADRV.

IV. Whereabouts

An increasing number of cases before the CAS revolve around so-called Whereabout Failures.69 Whereabout Failures can be twofold – Filing Failure70 and Missed Tests71. Three Whereabouts Failures, e.g. two Filing Failures and one Missed Test, within a period of twelve months constitute an ADRV under Article 2.4 of the WADA Code72 (“three strikes and you’re out”) which may be sanctioned with an ineligibility sanction of up to two years pursuant to Article 10.3.2 of the WADA Code. The basic rule referring to the Whereabouts obligations of “high priority and high risk”73 athletes, who are included in so-called Registered Testing Pools (“RTP”), is Article 5.5 of the WADA Code which provides – in its pertinent parts – that

“Athletes who have been included in a Registered Testing Pool by their International Federation and/or National Anti-Doping Organization shall provide whereabouts information in the manner specified in the International Standard for Testing and Investigations...”

For the purpose of this paper, it is important to mention that Whereabouts information of athletes are not an investigatory measure for the detection of the use of prohibited substances. It is rather a measure that shall enable the sports organisation with testing authority to conduct unannounced testing, which is evidenced by the fact that Whereabouts information falls within the testing planning phase under Article 4 of the ISTI. Whereabouts information provide the respective sports organisations with the required information about the date, time and location in which athletes can be approached and notified for testing. This is particular important considering that, for example, national-level and international-level athletes are constantly travelling for training and competitions. The associated difficulties to locate athletes is counteracted with the whereabouts information imposed upon them. Given its importance under the WADA Code and the ISTI, the Whereabouts shall be briefly addressed in the following.

Athletes who have been informed about their inclusion in RTP76 and who are therefore subject to Article 5.5 of the WADA Code generally have two Whereabouts obligations under the WADA Code and the ISTI. First, athletes are required to provide the respective ADO with Whereabouts responsibility with different information as part of their whereabouts obligations. This includes for each day of the following quarter

“the full address ofthe place where the Athlete will be staying overnight (e.g. home, temporary, lodgings, hotel, etc.) ... each location where the Athlete will train, work, conduct any other regular activity (e.g. school), as well as the usual time frames for such regular activities...the Athlete’s Competition/Event schedule...[and]one specific 60-minute time slot between 5 a.m. and 11 p.m. each day where the Athlete will be available and accessible for Testing at a specific location”.

Particularly, the 60-minute time slot shall enable the ADOs to conduct unannounced testing, because they will know where athletes can be approached for testing. Given the fact that (i) such information may contain sensible information and (ii) athletes may be located for testing while enjoying private and intimate parts of their lives, it is without doubt that the provision of whereabouts information interferes with the right to respect for a private life of athletes, for example protected under Article 8(1) of the European Convention on Human Rights (“ECHR”). However, such stringent requirements appear to be necessary for the objective of doping-free sport. In this regard, the European Court of Human Rights held that

“[t]he Court does not underestimate the impact of the whereabouts requirements on the applicants’ private lives. Nevertheless, the general-interest considerations that make them necessary are particularly important and, in the Court’s view, justify the restrictions on the applicants’ rights under Article 8 of the Convention. Reducing or removing the requirements of which the applicants complain would be liable to increase the dangers of doping to their health and that of the entire sporting community, and would run counter to the European and international consensus on the need for unannounced testing”.

On the basis of the overriding reasons in favour of the whereabouts obligations under the WADA Code, athletes commit a Filing Failure if they do not provide the required information in a timely manner. In addition, athletes are also responsible to provide accurate information and to keep their whereabouts information up to date, as inaccurate or incomplete information may also constitute a Filing Failure pursuant to Article 4.8.8.6 of the ISTI. For example, the provision of a wrong address may already be sufficient for the establishment of a Filing Failure due to its inaccuracy. Athletes may delegate their whereabouts information to a third person. However, Article 8.4.14.4 of the ISTI clearly and unequivocally states that it is, ultimately, each athlete’s own responsibility to ensure that whereabouts information are duly provided correctly and in time.

The respective ADO uses the whereabouts information to locate athletes for testing. The second obligation of athletes under their whereabouts obligation under Article 5.5 of the WADA Code is therefore to be available for testing according to their provided whereabouts information. If the athlete cannot be found within the specific 60- minute time window at the indicated location, then this will be considered a Missed Test pursuant to Article 4.8.6.2 of the ISTI, provided that the DCO took – objectively – the necessary and reasonable steps to find the targeted athlete at the specific location. An additional criterion for a Missed Test is set forth in Article B.2.4 lit. e) of the ISRM which provides that the athlete’s behaviour must be “at least negligent”. In case of the athlete’s unavailability, it is, however, presumed that the athlete acted negligently and it is therefore upon the athlete to rebut this presumption and to prove, on the basis of the standard of a balance of probability, that s/he was not in violation of their duty of care of the whereabouts obligation. In other words, the athlete will be liable for a Missed Test if s/he is not present at the location at the given time, unless they can establish that s/he did not act negligent at the time of the attempt to test the athlete during the 60- minute time slot. In this regard, it is also important to mention that athletes may nevertheless be tested outside this period in accordance with their testing obligation under Article 5.2 of the WADA Code. However, if the athlete cannot be located outside the 60-minute time slot, this unavailability will not be counted against the athlete as a Missed Test.

Additionally, the failure to file whereabout information in time, to update them or to be available at the specified location during the 60-minute time slot may only constitute a Filing Failure and Missed Test, respectively, if the athlete has been duly notified about their inclusion in the RTP and the related whereabouts obligation and consequences.

Another critical criterion when establishing an ADRV under Article 2.4 of the WADA Code, on the basis of the standard of comfortable satisfaction93, is the commencement of the twelve-month period within which the three whereabouts failures must have occurred. In this context, it is important to distinguish between Filing Failures and Missed Tests, because the latter

“take place on the exact date of the failed control while Filing Failures automatically take place on the first day of the relevant quarter”94. The notification of the athlete of either the Filing Failure or Missed Test is therefore irrelevant for the commencement of the twelve-month period prescribed in Article 2.4 of the WADA Code.

Although the whereabouts regime under the WADA Code is not an investigatory measure, as mentioned before, the failure to provide proper whereabouts information or to be available for the doping sample collection process within the 60-time window may trigger anti-doping investigations regarding a violation of Article 2.4 of the WADA Code. Accordingly, similar to anti- doping investigations in testing scenarios, the Results Management Authority needs to review the circumstances of the individual case and decide whether the requirements for three Whereabouts Failures are fulfilled, cf. Article B.3.2 of the ISRM.

V. Reliable means and intelligence gathering

The provision of Whereabouts information for the purpose of testing of targeted athletes also provide ADOs with corroborating evidence to prove the Presence and Use of Prohibited Substances under Articles 2.1 and 2.2 of the WADA Code. In this case, the direct detection of a Prohibited Substance in the test sample and therefore in the system of an athlete is sufficient to establish an ADRV and to impose severe consequences on athletes95, provided that no exceptions apply, such as a granted TUE.

However, the Use of a Prohibited Substance or Method under Article 2.2 of the WADA Code – in the absence of a positive doping sample – and all of the other ADRVs under Article 2 of the WADA Code may only be proven by other evidence and intelligence. Such ADRVs are, for example, Tampering, the Possession of a Prohibited Substance or Complicity. Consequently, intelligence gathering plays a major role to put together a strong evidential case against athletes alleged, particularly in cases related to asserted ADRVs that cannot be established through the investigatory measure of testing and analysis of the A and B sample of athletes.

The basic norm for the gathering of non- analytical intelligence in anti-doping investigation proceedings is Article 5.7 of the WADA Code which states that ADOs “shall have the capacity to conduct and shall conduct, investigations and gathering intelligence as required by the International Standard for Testing and Investigations”. This provision legitimises the conduct of anti-doping investigations by ADOs. It is, nevertheless, silent on the question of how compelling evidence can be obtained. As previously mentioned, to find an appropriate answer to this difficult task of ADOs, it is important to distinguish between preventive and repressive investigatory measures when discussing intelligence gathering in anti-doping investigation proceedings. This should be borne in mind because different rules and regulations and therefore requirements apply to preventive and repressive investigatory procedures.

The legitimacy of the use of investigatory measures in anti-doping investigation proceedings is primarily governed by Article 11 of the ISTI. All measures taken in anti-doping investigation proceedings must of course also comply with mandatory statutory provisions. It is therefore essential for ADOs to be clear about the applicable legal regime. Furthermore, it is recommended that ADOs examine whether the investigation serves a general investigatory purpose or if it is addressed against any specific athletes who is alleged of an ADRV at the material time of the application of the investigatory measure.

Additionally, it is important to distinguish between the phrases “other reliable means” – provided under Article 3.2 of the WADA Code – and “investigatory measures” used for the purposes of this paper. The expression of “other reliable means” refers to all possible information that ADOs may use to prove an alleged ADRV, including information gathering through the application of investigatory measures, such as testing for APB purposes. The range of reliable means is generally wide and may only be limited by the applicable procedural law. The procedural law deems to be the appropriate standard in this regard, because whether a piece of evidence can be qualified as “reliable” is related to the question whether it can be admitted as evidence in the proceedings before the hearing panel or CAS, i.e. the admissibility of the evidence concerned. The information gathered through the use of investigatory measures by ADOs may generally fall within the scope of “other reliable means” under Article 3.2 of the WADA Code, assuming the evidence is admissible. However, this may not necessarily be the other way around. The scope of the term “investigatory measures” is much narrower. It refers only to measures that ADOs may undertake to gather intelligence for the detection of the ADRV in question. In case a specific investigatory measure is challenged by the person under investigation, the question becomes of whether the collection of evidence at the material time of the use of the respective investigatory measures is to be considered lawful. Whether an illegitimate application of investigatory measures may result in the inadmissibility of the information gathered is, however, a different question:

“If a means of evidence is illegally obtained, it is only admissible, if the interest to find the truth prevails (Articles 152, 168 Swiss Code of Civil Procedure (“CCP”); HAFNER P., Commentary to the Swiss Code ofCivil Procedure, 2nd ed., para. 8). According to the Swiss Federal Tribunal and the ECHR, the courts shall balance the interest in protecting the right that was infringed by obtaining the evidence against the interest in establishing the truth. If the latter outweighs the first, the courts may declare a piece of evidence admissible for assessment even though it was unlawfully acquired (BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 3rd ed., p. 461)”.

Reliable means that do not fall within the scope of “investigatory measures”, but are no less important for the detection and prosecution of ADRVs. For example, the information provided by whistleblowers100 is important which can be evidenced by the fairly new provision of Article 2.11 of the WADA Code.101 The information provided by whistleblowers has often been the reason and therefore the starting point for conducting anti-doping investigations.102A well-functioning system for persons to provide information anonymously is key for the commencement of – mostly – repressive anti-doping investigation proceedings, such as the WADA’s “Speak-Up!” program. The importance of whistleblowers for the commencement of sports investigations has also been recognised by the CAS:

“What is the role of a ‘whistle blower’? To be able to bring matters to the authority’s attention that it might not be aware of, so it can look into those matters and potentially sanction a wrong doer? Whilst there should be some basis or foundation to allegations made by a whistle blower, once that basic hurdle is overcome, then it is surely for the authority to take over and to investigate properly and then for it (or its judicial body) to consider guilt or innocence and, if the former, any sanction”.

Information provided by journalists and law enforcement agency may be similarly vital as reliable means in order to detect ADRV.106

Apart from such information provided by third parties, ADOs and WADA107 may also apply coercive measures to discover the truth about the matter under investigation. Accordingly, ADOs and WADA may have the investigatory power to interview the person under investigation. They can also request the investigated person to produce certain information in their possession, such as information contained on electronic devices or bank statements.108 ADOs and WADA may legitimately resort to other coercive measures in their anti-doping investigations.109 Athletes and athletes support personnel generally have a cooperation obligation, and the failure to cooperate may lead to the imposition of disciplinary sanctions under the disciplinary regulations of the respective sports organisation. In this regard, it is important to mention that certain cooperation with the ADOs conducting the investigations may also be beneficial for athletes and athlete support personnel in the sense that this cooperation may be considered as a mitigating circumstance when determining the appropriate sanction under Article 10 of the WADA Code, such as substantial assistance and admission. The 2021 WADA Code now also provides for so-called “Results Management Agreements” and “Case Resolution Agreements” under Article 10.8.2.

VI. The outcome and consequences of anti-doping investigations

At the end of the investigation process, the respective ADO will have to decide whether the AAF or the information gathered provides sufficient evidence to prosecute an athlete or other person for an ADRV.

In the affirmative, Article 12.3.2 of the ISTI provides that the person alleged shall be notified. The notification of athletes or other persons of an alleged ADRV is provided in Article 7.2 of the WADA and further specified in Article 5.3.2 of the ISRM. According to the latter provision, the person alleged of an ADRV shall be informed about the asserted ADRV and its possible consequences, the facts of the case and the relevant evidence supporting the alleged ADRV, their right to be heard, the opportunity to mitigate the sanction as mention above, and information related to a voluntary acceptance of a provisional suspension. Furthermore, the athlete or other person concerned shall be informed that the ADO “shall bring forward the proceedings against the Athlete or other Person in question in accordance with Code Article 8”115. The same applies in cases of the allegation of a violation of Article 2.4 of the WADA Code.

If the ADO, however, comes to the conclusion that an athlete or other person shall not be prosecuted for the initially asserted ADRV based on the results of the investigation procedure, two different scenarios must be distinguished.

If the athlete or other person under investigation had already been notified of the asserted ADRV pursuant to Article 12.3.2 of the ISTI, the ADO must render a so-called “Decision Not to Move Forward” under Article 5.4 of the ISRM which provides as follows:

“If at any point during Results Management up until the charge under Article 7, the Results Management Authority decides not to move forward with a matter, it must notify the Athlete or other Person (provided that the Athlete or other Person had been already informed of the ongoing Results Management) and given notice (with reasons) to the Anti-Doping Organizations with a right of appeal under Code Article 13.2.3”

In turn, if the athlete or other person had not yet been informed of the asserted ADRV and the intention to prosecute them, the anti- doping investigation procedure shall be closed pursuant to Article 12.3.3 of the ISTI in the way that information thereof shall be provided to WADA and the respective national or international federation with reasons. That way, WADA and the relevant sports organisation should be enabled to decide whether or not they wish to appeal this decision.

VII. Summary

The term “anti-doping investigations” refers to preventive and repressive investigation proceedings aiming at detecting and preventing doping in sport. The preventive or repressive nature of an investigation depends on whether a specific anti-doping rule violation is being investigated against a sportsperson who is alleged to have committed that violation.

Anti-doping organisations can resort to different investigatory measures in anti- doping investigation proceedings. The undoubtedly most frequent measure used in such proceedings is the collection of blood and urine samples, i.e. testing. During the doping sample collection process, the athlete has to be notified in accordance with the requirements set out in Article 5 of the ISTI. Part of this process is to provide the athlete with documents to prove the authorisation to collect doping samples. The letter of authorisation issued by the Testing Authority only requires a generic delegation of its authority to the Sample Collection Authority. In addition, the DCO/Chaperone need to identify themselves when approaching the targeted athlete for testing.

An important means to enable anti-doping organisations to carry out unannounced testing is the obligation of athletes – who are included in registered testing pools – to provide whereabouts information. These athletes have the obligation to provide accurate and updated information about their whereabouts for each single day on quarterly basis. Athletes are also required to be available for testing during a 60-minute time slot at a specific location, as indicated in the athletes whereabout information. The triple breach of the whereabouts obligation within a twelve-month period may constitute an anti-doping rule violation pursuant to Article 2.4 of the WADA Code and can therefore have serious consequences for the professional career of athletes.

In non-analytical anti-doping investigations, anti-doping organisations may benefit from information provided by third parties, such as whistleblowers, journalists or law enforcement agencies. Additionally, anti- doping organisations may also use investigatory measures of their own for the purpose of intelligence gathering. For example, anti-doping organisations may interview the sportsperson alleged or request the provision of documents and information.

Anti-doping investigation proceedings are necessary to ensure fair and equal sports competitions. The detection and prevention of anti-doping rule violations is at the heart of the fight against doping in sport. In all of these proceedings, it is important to strike a fair balance between the competing interests of sports organisations (and the public) and sportspersons, taking into account “the constraints inherent in the measures needed to combat that scourge”.

The original publication can be found here.