CAS 2012/A/2895 Tomáš Enge v. Fédération Internationale de l’Automobile (FIA)
Related cases:
FIA 2013 FIA vs Tomáš Enge - CAS decision
April 15, 2013
FIA 2012 FIA vs Tomáš Enge
July 20, 2012
Automobile
Doping (levmetamfetamine, amphetamine)
Conditions to benefit from a reduction of the period of ineligibility for a specified substance
Assessment of the reduction of the period of ineligibility in light of the athlete’s degree of fault
Distinction between a specified substance and a non-specified substance
Conditions to benefit from an elimination or a reduction of the period of ineligibility for a non-specified substance
Determination of the sanction
1. To benefit from an elimination or reduction of the Period of Ineligibility for a Specified Substance under Specific Circumstances according to article 10.4 of the FIA Anti-Doping Regulations (ADR), the following conditions should be met: (i) the substance detected in the athlete sample must be a specified substance, (ii) the athlete should establish how the specified substance entered his body and (iii) his absence of an intent to enhance sport performance or mask the use of a performance-enhancing substance to the comfortable satisfaction of the panel.
2. The fact that article’s 10.4 ADR prerequisites are met does not automatically lead to an athlete’s exoneration. It still has to be determined to what extent the athlete is eligible for a reduction of the normal period of ineligibility. According to article 10.4 ADR the athlete’s degree of fault is the decisive criterion in assessing the appropriate period of ineligibility. In this respect, an experienced professional athlete therefore familiar with the anti-doping system cannot not ignore that it is each athlete’s personal duty to ensure that no Prohibited Substance enters his/her body. The only circumstance that can speak in favour of a reduction of the standard period of ineligibility for an experienced athlete under the circumstances is the obtaining of a medical recommendation for a product similar to the one containing the prohibited substance and a cooperative attitude.
3. The fact that levmetamfetamine, a specified stimulant, breaks down into amphetamine, a non-specified substance, cannot reasonably lead to an athlete’s exoneration. First of all, amphetamine is distinct from levmetamfetamine. Both substances are governed by different rules. Then, one cannot rule out that the presence of amphetamine in an athlete’s sample might have been caused by sources other than evmetamfetamine. Finally, article 10.4 ADR which provides for milder sanctions is only applicable in the presence of specified substances and should not benefit to any athlete tempted to mask the use of a non-specified substance such as amphetamine with an apparently harmless product.
On 20 July 2012 the Anti-Doping Disciplinary Committee (ADC) of the Fédération Internationale de l'Automobile (FIA) decided to imposed a 18 month period of ineligibility on the Driver after his A and B samples tested positive for the prohibited substances amphetamine and levmetamfetamine.
The ADC accepted that the substances entered the Athlete his system through the inhalation of a the US version of Vicks VapoInhaler and ruled that he was careless with the medication he used.
Hereafter in August 2012 the Athlete appealed the FIA ADC decision with the Court of Arbitration for Sport (CAS). The Athlete stated that the violation was non intentional and argued that there are specific circumstances in this case to consider for imposing a reduced proportional sanction.
The Athlete asserted that he bears No Fault or Negligence due to he used an ordinary over-the-counter Vicks nose stick for his chronic nasal congestion and mistakenly used the US purchased Vicks stick in place of the UK purchased Vicks stick, which indisputably does not contain any banned substances.
The Sole Arbitrators finds that the Athlete was particularly careless, and he does not really see circumstances that speak in favour of a reduction of the standard period of ineligibility other than the facts that he did obtain a medical recommendation for a similar product, used the litigious stick to clear an apparent banal stuffed nose and during the FIA ADC hearing the Athlete was cooperative, honest and frank about the circumstances resulting in the violation.
Having regard to all of the circumstances, the Sole Arbitrator concludes that the 18-month sanction imposed upon the Athlete by the ADC in its Appealed Decision must be confirmed.
Thefore the Court of Arbitration for Sport decides on 15 April 2013 that:
1.) The appeal filed by Mr Tomáš Enge against the decision issued by the FIA Anti-Doping Disciplinary Committee on 27 July 2012 is dismissed.
2.) The decision issued by the FIA Anti-Doping Disciplinary Committee on 27 July 2012 is confirmed.
(…)
5.) All other motions or prayers for relief are dismissed.
