CAS 2007/A/1312 Jeffrey Adams v. Canadian Centre for Ethics in Sport (CCES)
Related cases:
- CAS 2007_A_1312 Jeffrey Adams vs CCES
May 16, 2008 - SDRCC 2006 CCES vs Jeffrey Adams
June 11, 2007
- Athletics
- Doping (cocaine)
- Determination of the law applicable to a non-governmental entity
- Absence of evidence of any violation of the applicable
- Human Rights Code
- Anti-doping violation caused by the presence of a prohibited substance
- Performance enhancement
- Absence of evidence of any departure from the anti-doping rules
- No fault or negligence
1. According to Canadian law and jurisprudence, only government entities or private entities statutorily empowered to enact coercive laws binding on the public should be subject to the Canadian Charter of Rights and Freedom and to the National Human Right Act. As a result, the Canadian Center for Ethics in Sport (CCES) which is an independent private organization even though it receives government funding is not subject to the Charter nor to the Canadian Human Right Act and therefore is unable to violate any athlete’s constitutional rights guaranteed under such law.
2. The applicable Human Rights Code (Ontario) prohibits discrimination against individuals in the provision of services on the basis of disability. In order for a disabled individual to assert a prima facie case under the applicable Code, the individual bears the burden to at least show that, prima facie, some form of discrimination occurred. Generally, a disabled individual must show that he or she was denied accommodation that was at least reasonably known as a needed accommodation. If an organization is not reasonably aware of a potentially-equalizing accommodation that could be provided to a disabled person, it cannot be charged with providing that accommodation.
3. Because this is a strict liability violation, the mere uncontroverted presence of a prohibited substance in an athlete’s sample is in and of itself a violation.
4. Performance enhancement is not a factor that may be considered under the applicable anti-doping rules or the WADA Code in determining whether an anti-doping rule violation has occurred or whether sanctions should be mitigated, if the substance is not a “Specified Substance” on the Prohibited List.
5. The applicable anti-doping rules are part of an evolving set of guidelines that slowly adjusts through feedback and experience. Where the rules, at least at the time of the violation, did not create an affirmative duty to warn athletes of the dangers of using an unclean catheter or to provide a clean one, the lack of warning in this respect cannot constitute a departure from the rules. Absent any departure from the rules, the anti-doping authority does not have the burden of showing that such a departure did not cause the anti-doping rule violation.
6. Under the applicable anti-doping rules, the ineligibility period shall be eliminated if the athlete can show how the prohibited substance entered his body and that there was “No Fault or Negligence” in committing the violation. Only in truly exceptional circumstances will the circumstances of an anti-doping rule violation warrant elimination or reduction of a mandatory sanction because of No Fault or Negligence or No Significant Fault or Negligence. Thus, even in cases of inadvertent use of a prohibited substance, the principle of the athlete’s personal responsibility will usually result in a conclusion that there has been some fault or negligence. The degree of such fault or negligence, if not “significant,” may be sufficient to warrant a reduction of the applicable period of ineligibility, but will rarely result in elimination of the period of ineligibility altogether. However, if the entire circumstances and known facts viewed in light of the athlete’s uncontroverted testimony and high character are sufficient for the judging body to come to the conclusion that the adverse analytical finding was the result of the contamination of a catheter and that the athlete was not at fault because he could not reasonably have appreciated the risks of using a used catheter, the athlete’s ineligibility period must be eliminated because he was not at fault even if the athlete has committed the strict liability violation of presence of a prohibited substance.
In June 2006 the Canadian Centre for Ethics in Sport (CCES) has reported an anti-doping rule violation against the Parathlete Jeffrey Adams after he tested positive for the prohibited substance Cocaine.
Consequently the SDRCC Tribunal decided on 11 June 2007 to impose a 2 year period of ineligibility on the Athlete. Hereafter in June 2007 appealed the SDRCC decision with the Court of Arbitration for Sport (CAS).
The Parathlete alleged that in a bar in Toronto, an unknown woman sitting next to him put cocaine in his mouth with her fingers without his consent. Thereupon a catheter he had used that evening to urinate got contaminated with Cocaine and was later used by the Athlete for sample collection. The use of this contaminated catheter in question resulted in a positive drug test. The Athlete also asserted that there had been departures of the CADP Rules and had caused the positive test result.
In view of the evidence the Panel finds that the presence of a prohibited substance has been established in the Athlete's sample and accordingly that he committed an anti-doping rule violation. The Athlete failed to demonstrate that a departure from the CADP Rules had caused the anti-doping rule violation.
The Panel concludes that the Athlete has sufficiently explained in his testimony that there was no Cocaine in his body at the time of testing and that the positive test was the result of contamination by the Catheter in question. The Athlete was the victim of an assault in the bar which led to his ingestion of Cocaine. He cannot be held to have been negligent or otherwise at fault in not preventing that incident from occurring.
Therefore the Court of Arbitration for Sport decides on 16 May 2008:
1.) The Appeal filed by Mr. Jeffrey Adams at the Court of Arbitration for Sport (CAS) against the Canadian Centre for Ethics in Sport on 27 June 2007 is partially upheld.
2.) In accordance with the Doping Tribunal’s findings, an anti-doping rule violation is found to have occurred under CADP Rule 7.16.
3.) Mr. Adams’ Ineligibility period of two years shall be eliminated.
4.) In accordance with the Doping Tribunal’s findings, Mr. Adams’ competition result, medals, points, and prizes received at the ING Ottawa Marathon held at Ottawa, Ontario on May 28, 2006, are forfeited under CADP Rule 7.4.
5.) Mr. Adams is eligible to receive direct financial support from the Government of Canada.
6. (…).
