CAS 2014/A/3559 Alexandra Georgiana Radu v. Romanian National Anti-Doping Agency (RNADA)
- Aquatics (swimming)
- Doping (dehydrochlormethyltestosterone)
- Admissibility of new documents
- Condition of elimination or reduction of the standard period of ineligibility for a non-specified substance
- Elimination of the standard period of ineligibility under No Fault in case of fulfilment of the athlete’s duty of diligence
- Reduction of the standard period of ineligibility under No Significant Fault or Negligence in case of truly exceptional circumstances
- Commencement of the ineligibility period
1. Based on Article R56 of the Code and in the absence of exceptional circumstances, the documents presented by an athlete after the submission of the appeal brief and of the answer shall be excluded from the proceedings.
2. Where the substance detected in an athlete’s bodily specimen is a non-specified substance, the sole issue to be resolved is whether the athlete committed the offence with “no fault” or with “no significant fault or negligence”. In any event, in order to benefit from the elimination or from a reduction of the period of ineligibility, an athlete must first establish how the prohibited substance entered into his or her body. This information is crucial in order to assess the athlete’s degree of precaution in attempting to prevent the occurrence of an adverse analytical finding.
3. An athlete committed the offence with “no fault” if he/she has established that he/she bears no fault or negligence; i.e. he/she did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he/she had used or been administered the prohibited substance. In this respect, an athlete failed to satisfy his/her duty of diligence if he/she suspected that the pills handed to him/her over a period of about one year by his/her mother who had no medical knowledge might contain prohibited substances but refrained from asking her out of fear of the answer he/she might receive. An athlete also could have either checked the label of the pills containers or entered into contact with a doctor or a professional who could have checked the status of the litigious pills. It is therefore impossible to conclude that the athlete bears “no Fault” and the elimination of the period of ineligibility is precluded.
4. A reduction of the otherwise applicable period of ineligibility can occur only in cases where the circumstances are truly exceptional i.e. when an athlete can show that the degree of fault or negligence in view of all circumstances was such that it was not significant in relation to the doping offence. In this regard, according to CAS jurisprudence, there is no special anti-doping regime for minors especially where no link between the athlete’s age and his/her degree of fault has been demonstrated. It is also irrelevant that an athlete allegedly did not receive any formal drug education from his/her club or federation prior to his/her first in-competition drug test as long as the athlete is found capable of understanding anti-doping requirements. Therefore, by having voluntarily and knowingly ingested pills, despite suspicions of their possibly performance enhancing effects, an athlete acted negligently and cannot establish a truly exceptional circumstance sufficient to reduce his/her negligence or the applicable standard sanction of 2 years.
5. In the context of sport and the administration of sporting justice, the undue length of time of a two-stage process resulting in an athlete’s state of uncertainty as to the outcome of his/her case for over 8 months is excessive. For that reason fairness requires that the standard period of ineligibility of 2 years should start on the date of the sample collection, as authorized by applicable national law.
In June 2013 the National Anti-Doping Agency of Romania (ANAD), has reported an anti-doping rule violation against the minor Athlete after her sample tested positive for the prohibited substance Dehydrochlormethyltestosterone.
The Athlete stated she only used pills for her menstrual pains and supplements provided by her mother. The Athlete’s mother admitted the administration of Turanobol, purchased on the internet. Consequently on 22 July 2013 the Romanian Hearing Commission decided to impose a 2 year period of ineligibility on the Athlete.
Following an appeal with the Appeal Commission of the Romanian National Anti-Doping Agency (decision on 28 October 2013), a retrial for the Hearing Commission (decision on 9 January 2014), an a second appeal with the Appeal Commission (decision on 18 February 2014) the Athlete’s arguments were dismissed and the 2 year period of ineligibility confirmed.
Hereafter in March 2014 the Athlete appealed the decision of the Romanian Appeal Commission with the Court of Arbitration for Sport (CAS).
In her defence the Athlete made the following assertions:
- the sanction is too harsh, given her young age;
- she has never been notified to attend any educational program on anti-doping from ANAD;
- she has never received from the Romanian Swimming Federation nor from her club any specific advice or warning on doping issues;
- she was not followed by any team doctor in spite of her taking part in international competitions; and
- her modest background.
In the present case, it has been established to the satisfaction of the Panel that the Athlete had been administered the prohibited substance by her mother over a period of about one year. The litigious pills had been bought over the Internet on a website, the name of which speaks for itself: “www.steroizi.ro”. It is also now undisputed that the mother had the intention to enhance her daughter’s sporting performance.
The Panel deems that the Athlete failed to satisfy her duty of diligence. The Panel finds it impossible to conclude that she bears “no Fault” and therefore the elimination of the period of ineligibility is precluded.
The Panel finds that the Athlete had acted negligently and her behaviour fell short of the diligent approach to be expected of someone who has the ambition to make a career out of her sport. The Panel concludes that there are no mitigating circumstances justifying the imposition of a lesser sanction.
Therefore the Court of Arbitration for Sport decides on 3 December 2014 that:
1.) The appeal filed by Ms. Alexandra Georgiana Radu against the decision issued on 18 February 2014 by the Appeal Commission beside the National Anti-Doping Agency is partially upheld.
2.) The decision issued on 18 February 2014 by the Appeal Commission beside the National Anti-Doping Agency is amended as follows: Mrs Alexandra Georgiana Radu is found guilty of an anti-doping rule violation and is declared ineligible for a period of two years running from 21 June 2013 (the day of the sample collection).
3.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne by Ms. Alexandra Georgiana Radu.
4.) Each party shall bear its own costs.
5.) All other motions or prayers for relief are dismissed
