CAS 2012/A/2747 World Anti-Doping Agency (WADA) v. Judo Bond Nederland (JBN), Dennis de Goede & Dopingautoriteit (NADO)
- Judo
- Doping (methylhexaneamine)
- Evidence of the lack of intent to enhance performance under Article 10.4 WADC
- Difference between the sanction under Articles 10.5.2 and 10.4 WADC
- Rationale of Article 10.4 WADC
- Difference between direct and indirect intent
- Establishment of intent and prohibited substances in- and out-of-competition
1. Clause two of Article 10.4 of the World Anti-Doping Code (WADC) does not require the athlete to prove that he did not take the product with the intent to enhance sport performance. Otherwise, an athlete’s usage of nutritional supplements, which are generally taken for performance-enhancing purposes, but which is not per se prohibited by the WADC, would render Article 10.4 inapplicable even if the particular supplement that is the source of a positive test result contained only a specified substance. Although an athlete assumes the risk that a nutritional supplement may be mislabelled or contaminated and is strictly liable for ingesting any banned substance, Article 10.4 WADC distinguishes between specified and prohibited substances for purposes of determining an athlete’s period of ineligibility. Art. 10.4 provides a broader range of flexibility in determining the appropriate sanction for an athlete’s use of a specified substance because there is a greater likelihood that specified substances, as opposed to other prohibited substances, could be susceptible to a credible, non-doping explanation.
2. According to art. 10.5.2 WADC the standard two-year sanction can only be reduced – at a maximum – down to one year (half of the standard sanction). Art. 10.4 WADC, on the contrary, allows a further reduction. However, in both provisions the decisive criteria to justify any reduction is the concept of fault. It therefore does not come as a surprise that – irrespective of the applicable provision – the length of sanction imposed in CAS jurisprudence in relation to nutritional supplements containing the specified substance methylhexaneamine does not differ dramatically.
3. The express language of art. 10.4 WADC is ambiguous and susceptible to more than one interpretation. It seems rather obvious that art. 10.4 WADC was intended by the drafters of the WADC as a lex specialis. In cases involving specified substances a reduction of the standard sanction should be contemplated on the basis of art. 10.4 WADC only. This is clearly evidenced when comparing the conditions and the consequences contained in art. 10.4 WADC and art. 10.5.2 WADC. The reason for this differentiation is clearly indicated in the comment to art. 10.4 WADC. According thereto, specified substances – unlike other prohibited substances – are particularly susceptible to unintentional anti-doping rule violations. Thus, the drafters of the WADC wanted to exclude reductions of the standard sanction involving a specified substance only where the anti-doping rule violation was committed intentionally. Therefore, in cases where the prerequisites for a reduction under art. 10.4 WADC are not fulfilled, logically there is no room for a reduction based on the more restrictive provision in art. 10.5.2 WADC.
4. Intent is, in principle, established if an athlete knowingly ingests a prohibited substance. However, an athlete’s behaviour may also be qualified as intentional, if the athlete acted with indirect intent only, i.e. if the athlete’s behaviour is primarily focused on one result, but in case a collateral result materializes, the latter would equally be accepted by the athlete. Article 10.4 remains applicable, if the athlete’s behaviour was not reckless, but “only” oblivious. In any event, the distinction between indirect intent and the various forms of negligence is difficult to establish in practice.
5. The assessment whether or not an athlete acts with (direct or indirect) intent within the meaning of art. 10.4 WADC is further complicated if the substance at stake is prohibited in-competition only, but was ingested by the athlete out-of-competition. In principle, the drafters of the WADC wanted to exclude the applicability of art. 10.4 WADC only if the anti-doping rule violation was committed intentionally. The taking of a substance out-of-competition that is only prohibited in-competition does not constitute, as such, an anti-doping rule violation. The taking of such substance only becomes an anti-doping rule violation, if the substance is still present in the athlete’s fluids in-competition. Therefore, an athlete only acts intentionally within the above meaning, if his intention covers both, the ingestion of the substance and it being present in-competition.
On 25 August 2011 the Netherlands Judo Association (JBN) decided to impose a 2 year period of ineligibility on the Athlete Dennis de Goede after his sample tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine) related to his use of a supplement. Following his appeal on 29 December 2011 the JBN decided to replace the sanction and to impose a warning and reprimand on the Athlete.
Hereafter March 2012 the World Anti-Doping Agency (WADA) appealed the JBN decision of 29 December 2011 with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the JBN decision of 29 December and to impose a 2 year period of ineligibility.
The Athlete denied the intentional use of the substance and that he used the supplement recommended by his brother. He asserted that at the competition in question he was not scheduled to participate and was asked to replace an injured teammate in the final matches.
The Anti-Doping Authority Netherlands (Dopingautoriteit) points to the interpretation and application of the JBN Doping Regulations. It does not comment on the Athlete's degree of fault or the period of ineligibility.
The Panel notes that it is undisputed that Athlete has committed an anti-doping rule violation. What is at stake here are the consequences of this action. The standard sanction for an anti-doping rule violation according to art. 38.1. of the Previous JBN Rules is a two-year period of ineligibility.
The Parties are in dispute, whether or not the Athlete is entitled to a reduction of the standard period of ineligibility under art. 39.3 of the Previous JBN Rules.
Based on the evidence in this case the Sole Arbitrator holds that the Athlete could not have planned or intended to take part in the event on 28 May 2011. It follows from this that the athlete did not act intentionally.
Considering relevant case law the Sole Arbitrator determine that it is appropriate to impose an 18 month period of ineligibility on the Athlete. The Sole Arbitrator finds it fair to start the sanction on the date JBN appeal decision was rendered, i.e. on 29 December 2011.
Therefore the Court of Arbitration for Sport decides on 15 April 2013:
1.) The Appeal filed by the World Anti-Doping Agency against the decision of the Appeal Board of the Judo Bond Nederland dated 29 December 2011 is partially upheld.
2.)The decision of the Appeal Board of the Judo Bond Nederland dated 29 December 2011 is set aside and replaced with the following:
Dennis de Goede is sanctioned with a period of ineligibility of eighteen months, commencing on 29 December 2011.
3.) All sporting results obtained by Dennis de Goede between 29 December 2011 and the date of this award shall be disqualified.
4.) (…).
5.) (…).
6.) All other or further claims are dismissed.
