CAS 98/211 B. / Fédération Internationale de Natation (FINA)
FINA 1998 FINA vs Michelle Smith de Bruin
August 6, 1998
Hearing de novo
Compliance with the testing procedure
Burden of proof
1. The virtue of an appeal system which allows for a full rehearing before an appellate body is that issues relating to the fairness of the hearing before the tribunal of first instance fade to the periphery. The CAS appeals procedure allows any defects in the hearing before the first instance tribunal to be cured by the hearing before CAS.
2. The standard of proof required of the federation is high: less than the criminal standard, but more than the ordinary civil standard. To adopt a criminal standard (at any rate, where the disciplinary charge is not a criminal offence) is to confuse the public law of the state with the private law of an association.
In April 1998 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Irish swimmer Michelle Smith de Bruin.
The Athlete's sample was taken for a out-of-competition doping test at the her home in January 1998 and analysis of the urine samples showed the presence of alcohol. The concentration of alcohol (whiskey odor) was too high to be produced naturally and indicated physical manipulation. As a result the FINA Doping Panel decided on 6 August 1998 to impose 4 year period of ineligibility on the Athlete.
Hereafter in September 1998 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).
The Athlete argued that the chain of custody of her sample was not establish and that there is sufficient doubt as to whether the sample tested at the Barcelona Lab was in fact her sample. Also the Athlete claimed that, if the sample tested was her sample, it had been manipulated by a person other than the Athlete herself.
The Panel considered the evidence regarding the process of collecting, transporting and testing of the Athlete’s samples and establish that there was no breach in the chain of custody. Accordingly the Panel concludes that in fact the Athlete’s sample was tested.
The Panel deems that the Athlete had the opportunity to manipulate her sample and had the motive to do so if she was in fact engaged in the use of illicit substances.
Here the Panel’s attention was drawn to the conclusion of the Barcelona Lab about the Athlete’s A and B samples:
“Additional laboratory results obtained with the sample (especially, steroid profile and isotope ratio mass spectrometry measurements) suggest the administration of some metabolic precursor of testosterone. Longitudinal follow up is recommended.”
The Panel holds that there is unchallenged evidence that what was, even at the date of the testing, a banned substance (because it fell within the general category of substances related to those specifically listed) was found in the Athlete's urine; there is, therefore, actual evidence before the Panel that there was something to conceal. Not only was the manipulation not wholly successful, but there was an obvious motive for it.
Therefore the Court of Arbitration for Sport hereby decides on 7 June 1999:
1.) The Appeal filed by Michelle Smith de Bruin on 2 September 1998 is dismissed.
2.) The decision issued by the FINA Doping Panel on 6 August 1998 is confirmed.