CAS 2011/A/2353 Erik Tysse V. Norwegian Athletics Federation & International Association of Athletics Federations

CAS 2011/A/2353 Erik Tysse v. Norwegian Athletics Federation & International Association of Athletics Federations AWARD delivered by THE COURT OF ARBITRATION FOR SPORT sitting in the following composition: President: Dr. Martin Schimke, Attorney-at-law in Dusseldorf, Germany Arbitrators: Mr Lars Halgreen, Attorney-at-law in Copenhagen, Denmark Prof. Richard H. McLaren, Barrister in London, Ontario, Canada Ad hoc Clerk: Ms. Erin C. McDermid, Barrister and Solicitor, London, Ontario, Canada in the arbitration between ERIK TYSSE, Oslo, Norway Represented by Mr. Erik Flaagan, Attorney-at-law, Oslo, Norway - Appellant- and NORWEGIAN ATHLETICS FEDERATION, Oslo, Norway Represented by Mr. Tomas Kristensen, Attorney-at-law, Oslo, Norway and INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS , Monaco represented by Mr. Huw Roberts, IAAF Legal Counsel, Monaco - Respondents- CAS 2011/A/2353 Erik Tysse v/ Norwegian Athletics Federation & International Association of Athletics Federations - Page 2 1. THE PARTIES 1.1 The Appellant, Mr. Erik Tysse (hereafter referred to as “Tysse” or the “Appellant”) is a Norwegian athlete who participates in the sport of race walking. 1.2 The Respondent, Norwegian Athletics Federation (hereinafter “NAF”) is the organization responsible for the sport of athletics in Norway. 1.3 The Respondent, the International Association of Athletics Federations (hereinafter “IAAF”) is the world governing body for the sport of athletics. The IAAF is established as an association under the laws of Monaco. 2. FACTUAL BACKGROUND 2.1 Below is a summary of the main relevant facts and allegations based on the parties’ written submissions, pleadings and evidence adduced at the hearing. Additional facts and allegations may be set out, where relevant, in connection with the legal discussion that follows. Although the Panel has considered all the factual allegations, legal arguments and evidence submitted by the parties in the present proceedings, it refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning. 2.2 On 1 May 2010, Tysse was called to perform a routine anti-doping control during an international competition in Italy. 2.3 Tysse’s sample was analysed at the Laboratorio Anti-doping FMSI in Rome (the “Rome Lab”). On 26 May 2010, the Rome Lab reported that the “A” sampled contained Continuous Erythropoetin Receptor Activator (“CERA”). On 6 June 2010, following the “B” sample analysis, the Rome Lab reported the presence of CERA in Tysse’s urine sample again. 2.4 Pursuant to the World Anti-Doping Agency’s (“WADA”) technical guidelines for reporting of an Adverse Analytical finding for Erythropoetin, the Rome Lab sought a second opinion. Dr. Françoise Lasne of the doping laboratory in Paris (the “Paris Lab”) confirmed the analysis of the urine sample which took place in the Rome Lab. 2.5 On 8 July 2010, Tysse was temporarily suspended by the IAAF. CAS 2011/A/2353 Erik Tysse v/ Norwegian Athletics Federation & International Association of Athletics Federations - Page 3 2.6 On 28 September 2010, the Prosecution Committee of Anti-Doping Norway charged Tysse with an Anti-Doping Rule Violation pursuant to Section 12(1) of the Statutes of the Norwegian Athletics Federation. 2.7 A hearing in relation to this matter was heard by the NAF Tribunal from 10-13 January 2011. On 31 January 2011, Tysse was found guilty of committing an Anti-Doping Rules Violation and sanctioned with two (2) years ineligibility, effective from 8 July 2010. It is this decision that is the subject of this Appeal. 3. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT 3.1 On 16 February 2011, the Appellant filed his Statement of Appeal. In his Statement of Appeal, the Appellant nominated Mr. Lars Halgreen, attorney-at-law in Copenhagen, Denmark as arbitrator. 3.2 On 22 February 2011, the Court of Arbitration for Sport (“CAS”) wrote to the IAAF to advise of the nature of the proceedings, and requesting that if the IAAF intended to participate in the proceedings that it advised the CAS by no later than 4 March 2011. 3.3 At the outset, there was some uncertainty as to which rules ought to apply to these proceedings, whether it was the rules of the Norwegian Confederation of Sports, or whether the IAAF Rules ought to apply. On 2 March 2011, by way of a Joint Pleading, the Appellant and the NAF agreed to abide by the rules and timelines provided for in the IAAF Rules of Competition. 3.4 On 7 March 2011, the NAF appointed Professor Richard H. McLaren as its arbitrator. 3.5 On 7 March 2011, the IAAF wrote to the CAS confirming its intention to participate in the proceedings in accordance with its Rules. Neither the Appellant, nor the NAF objected to IAAF’s intervention in these proceedings. Accordingly, on 1 April 2011, the parties were advised that the Panel had accepted the IAAF’s request. 3.6 On 30 March 2011, the Appellant filed his Appeal Brief with the CAS. In his Appeal Brief, the Appellant made the following request for relief: “Principally: 1. Erik Tysse to be acquitted. CAS 2011/A/2353 Erik Tysse v/ Norwegian Athletics Federation & International Association of Athletics Federations - Page 4 Alternatively: 2. Erik Tysse to be subject to being deprived of the right to participate in competitions and organised training and of the right to hold elected and appointed offices, for a short period of less than two years, effective from 8 July 2010, as found appropriate by the CAS Panel according to the circumstances in favor for such relief. In both cases: 3. The Norwegian Athletics Federation and the International Association of Athletics Federations is ordered to pay the costs of the case to Mr. Erik Tysse . 3.7 The Appellant also requested several procedural measures including: (a) that the CAS Panel itself appoint expert witnesses, within the fields of biochemistry and with knowledge of the analysis methods isoelectric focusing (IEF) and SDS electrophoresis (SDS Page); (b) that the CAS Panel assist in obtaining relevant information, including the original material used by the laboratory in Rome in reaching its conclusions; (c) an oral hearing (d) a reservation that further evidence may be produced and further submissions made.” 3.8 On 19 April 2011, the Panel ordered the Appellant to file witness statements and translations of certain documents by no later than 10 May 2011. The Panel also confirmed that despite the concurrent appeal in Norway, as the Appellant was an international level athlete, the matter was properly brought before the CAS. 3.9 On 5 May 2011, the Appellant confirmed who he would be calling as witnesses at the hearing, and provided short summaries of the testimony of Dr. Franke and Dr. Heid. 3.10 The Appellant also requested CAS assistance in accordance with Article R57, and further advised that the Norwegian Confederation of Sports had given notice that they would abide by the CAS decision, and as such, the concurrent appeal in Norway would await such decision. CAS 2011/A/2353 Erik Tysse v/ Norwegian Athletics Federation & International Association of Athletics Federations - Page 5 3.11 On 12 May 2011, the IAAF wrote to the CAS asking the Panel to confirm that the Appeal Brief was complete and that the Appellant would not be permitted to file any further evidence or documentation. The IAAF further requested that the Panel advised as to when the time limit would begin to run for the filing of the Answer Brief. 3.12 On 13 May 2011, the Panel wrote to the parties requesting, among other things, that the Appellant specify his requests for assistance. The Panel further directed the Appellant to decide within one week from receipt of the correspondence, whether or not he wished to call certain witnesses listed in his letter of 5 May 2011, and if so, to provide witness statements for those witnesses. 3.13 On 20 May 2011, the Appellant wrote to the CAS advising that it would not be calling certain witnesses listed in his letter of 5 May 2011. The Appellant also outlined his specific requests for assistance, which are reproduced below: “According to Article R57, cf. R44.3 and the IAAF Competition Rules Article 42.9 any party filing an appeal shall be entitled to assistance from CAS to obtain relevant information. The Appellant requests the CAS Panel’s assistance obtaining such relevant information for his defence according to the specific list for this request provided in the Appellate Brief. We further believe that no tests have ever been performed involving the medical and other factual circumstances that are present in this case. On this background we hereby request that the CAS panel make the following request to IAAF and/or directly to the WADA laboratory in Cologne, Germany: Re-examination of the IEF and SDS-PAGE on urine sample 3511158 from Erik Tysse. We are asking for re-analysis of the sample 3511158 at the WADA laboratory in Cologne, Germany. Procedure. A. Use the same concentration of standard CERA as well as the test sample 3511158 applied in the WADA laboratory in Rome for both IEF and SDS- PAGE analyses. Control EPO and uEPO in the same concentrations used in Rome for IEF and SDS-PAGE. B. Perform the same analyses but with a 1/5 dilution of both standard CERA and the test sample 3511158. CAS 2011/A/2353 Erik Tysse v/ Norwegian Athletics Federation & International Association of Athletics Federations - Page 6 C. Standards CERA in a 1/10 and 1/20 dilution in both IEF and SDS-PAGE analyses. It is requested that the performance of the re-analysis is observed by Professor Bjarne Osterud. The sample 3511158 has to be made available by the WADA laboratory in Rome.” 3.14 On 31 May 2011, the IAAF made an application to the Panel in accordance with CAS Rule 44.3 to order the Appellant to produce documents that were in his custody or under his control.

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