- CAS 2008/A/1591 Australian Sports Anti-Doping Authority (ASADA) v. Nathan O’Neill
- CAS 2008/A/1592 World Anti-Doping Agency (WADA) v. Nathan O’Neill, Cycling Australia (CA) & ASADA
- CAS 2008/A/1616 Union Cycliste Internationale (UCI) v. Nathan O’Neill
- Cycling
- Doping (phentermine)
- Applicable law on a subsidiary basis
- Clearance time, detection time and standard of care expected from an elite athlete
- Out-of-competition ingestion of a prohibited substance and no significant fault or negligence
1. So long as the sample testing of the athlete was conducted in an international event and, as the national federation is a member of the international federation (IF), the national federation is bound by the provisions of the IF’s anti-doping regulations, stating that in-competition, international events shall be governed by its anti-doping regulations “exclusively”. In such cases, the law of the country in which the body which has issued the challenged decision has its seat may be applied on a subsidiary basis, and Swiss law may also be additionally applied, particularly in reference to the interpretation and application of the rules of the IF, so long as the IF has its seat in Switzerland.
2. Even in a circumstance where the clearance time of a prohibited substance is longer than the detection time, it remains the responsibility of the athlete, at the time of competition, to ensure the prohibited substance has cleared from his/her body. When an athlete takes a substance which is prohibited in-competition, s/he has a responsibility to ensure, under the standard of care expected from an elite athlete, that at the time of competition, the substance has cleared from his/her system.
3. An athlete that deliberately ingested a prohibited substance has taken a very high risk and the fact that the athlete used this substance out-of-competition cannot constitute the “exceptional” circumstances which could justify a “no significant fault or negligence” finding and thereby give the athlete the benefit of a reduced sanction. Athletes who have used a prohibited substance out-of-competition have a personal duty to ensure a substance prohibited for in-competition is not found in his/her system on the occasion of an in-competition sample collection testing.
On 13 June 2008 the CAS Oceania registry decided in first instance to impose a 15 month period of ineligibility on the Australian cyclist Nathan O'Neill after he tested positive for the prohibited substance Phentermine.
Hereafter ASADA, UCI and WADA appealed this Decision with the Court of Arbitration for Sport (CAS). The Parties requested to set aside the Appealed Decision and to impose a more severe period of ineligibility on the Athlete.
The three parties deemed that the Athlete had committed an anti-doping rule violation. They contended that the Arbitrator was in error in then finding that the Athlete had established No Significant Fault or Negligence for a reduced 15 month period of ineligibility. The Athlete's evidence was self serving, not corroborated and revealed he did not meet teh required standard of care for an elite athlete.
In view of the evidence the Panel finds that the presence of the prohibited substance Phentermine has been established in the Athlete's sample and accordingly that he committed an anti-doping rule violation.
The Panel determines that the Athlete deliberately had ingested a prohibited substance and concludes that the Arbitrator in the Award at first instance was in error in the application of a reduced sanction. The Panel finds there was a significant fault and negligence on the part of the Athlete in ingesting the Phentermine before competition and competing while the substance remained in his system.
Therefore the Court of Arbitration for Sport decides on 16 January 2019:
1.) In matter No. CAS 2008/A/1591 & 1592 & 1616, the appeals are upheld.
2.) The decision of the CAS at first instance dated 13 June 2008 is set aside.
3.) The period of ineligibility of Nathan O’Neill shall be two years from 13 June 2008.
(…).
