CAS 2012/A/2959 World Anti-Doping Agency (WADA) v. Ali Nilforushan & Fédéderation Equestre Internationale (FEI)
Equestrian
Doping (phentermine; hydrochlorothiazide; carboxy-THC)
Admissibility of submissions by a body that did not exercise its right to appeal
CAS power of review
Lack of anti-doping education as a mitigating factor?
Reliance on a doctor as a mitigating factor?
Legitimate therapeutic use as a mitigating factor?
Effect on the sporting career as a mitigating factor?
Lack of intention as a mitigating factor?
Commencement of the period of ineligibility
1. Even if an international federation that has the right to appeal the decision from the first instance tribunal did not exercise that right, it is allowed in an answer to make submissions that the first instance tribunal ruled in error. If such answer does not seek any further relief than that claimed in WADA’s appeal, it does not constitute a counterclaim no longer allowed by the CAS Code.
2. As is the case with Article R57 of the Code, where rules or legislation confer on an appellate body full power to review the facts and the law, no deference to the tribunal below is required beyond the customary caution appropriate where the tribunal had a particular advantage, such as technical expertise or the opportunity to assess the credibility of witnesses. This is not, of course to say that the independence, expertise and quality of the first instance tribunal or the quality of its decision will be irrelevant to the CAS panel. The more cogent and well-reasoned the decision itself, the less likely a CAS panel would be to overrule it; nor will a CAS panel concern itself in its appellate capacity with the periphery rather than the core of such a decision. However, the fact that a CAS panel might not lightly interfere with such a tribunal’s decision, would not mean that there is in principle any inhibition on its power to do so.
3. In the absence of other mitigating factors such as exceptional youth or inexperience which in given circumstances may have a bearing, the lack of anti-doping education alone is not sufficiently exceptional to justify a reduction of the ineligibility period.
4. There must be more than simply reliance on a doctor for a reduction based on no significant fault or negligence. An athlete must cross check assurances given by a doctor, even where such a doctor is a sports specialist.
5. It is irrelevant to the determination of fault that the consumption of the prohibited substance was allegedly for a legitimate therapeutic use. This among others ensures a level playing field and is why the possibility, and the process, of applying for a TUE exists.
6. The effect that any ban could have on the athlete’s sporting career is not a relevant factor on the evaluation of an athlete’s degree of negligence.
7. Combined with a number of truly exceptional circumstances (the assessment requires viewing the “totality of the circumstances”), the absence of intention may form part of a matrix of facts which are sufficient to justify a reduction of the ineligibility period. However, lack of intention is a necessary but by no means sufficient condition alone for justifying a reduction of the ineligibility period.
8. A tribunal has discretion to back-date the commencement of the ineligibility period to the date of sample collection in case of early admission by the athlete of the charge of a doping offence. The request of documentation relating to the testing of the sample does not negate early admission, as it is a necessary aspect of an athlete’s rights of defence. Also, it is not required that no positive case in mitigation is advanced. Moreover, the athlete’s candour (or lack thereof) is not necessarily a relevant consideration.
In April 2012 the Equestrian Federation of Islamic Republic of Iran and the United States Equestrian Federation have reported an anti-doping rule violation against Mr. Nilfomshan (the Rider) after his sample tested positive for the prohibited substances Phenermine, Hydrocholorothiazide and Carboxy-THC (Cannabis). After the notification a provisional suspension was ordered. The Rider filed a statement in his defence and he was heard for the FEI Tribunal in June 2012.
The Rider explained he suffered from depression and insomnia and had gained a lot of weight for which he used prescribed medication.
On 3 September the FEI Tribunal decided to impose a 1000 CHF fine and a 1 year period of ineligibility on the Rider starting on the date of the sample collection, i.e. on 3 March 2012.
In October 2012 WADA appealed the FEI Tribunal decision with CAS. Considering the case the CAS Panel finds that the Rider was highly negligent, he did not exercise utmost caution and had no intention to enhance performance.
Therefore the Court of Arbitration for Sport Panel decides on 30 April 2013 that:
1.) The appeal filed by the World Anti-Doping Association on 19 October 2012 is partially upheld.
2.) The sanction imposed at paragraph 8.1.1 of the decision of the Federation Equestre Internationale dated 3 September 2012 (namely that Mr. Nilfomshan be suspended for a period of 12 months commencing on 3 March 2012) is amended as follows:
Mr. Nilfomshan is suspended for a period of 2 years, commencing 3 March 2012.
3.) All competitive individual results obtained by Mr. Nilfomshan from 3 March 2012 through the period of ineligibility shall he annulled.
4.) The award is pronounced without costs, except for the Court Office fee of 1.000 CHF paid by the World Anti-Doping Association, which shall be retained by CAS.
5.) Each party shall bear its costs incurred in connection with these arbitration proceedings.
6.) All further and other claims for relief are dismissed.
