CAS 2009/A/1802 World Anti-Doping Agency (WADA) v. Comitato Olimpico Nazionale Italiano (CONI) & Elena Perotto
- Cycling
- Doping (19-norandrosterone; 19-noretiocholanolone)
- Presence of two forbidden substances
- Distinction between “ineligibility” and “disqualification” as regards sanction
- Duration of the sanction
1. The established presence of two forbidden substances in the bodily sample of an athlete, namely 19-norandrosterone and 19-noretiocholanolone which are endogenous anabolic androgenic steroids, constitutes an anti-doping rule violation under the World Anti-Doping Code which applies directly under CONI Sports Anti-Doping Rules for any athlete not under the benefit of any Therapeutic Use Exemption.
2. Under constant CAS jurisprudence relating to CONI matters, in a case where an athlete is not or not anymore a “soggetto tesserato”, that is a “licensed member”, no other sanction is possible than a sanction of “inibizione” or “ineligibility”. CONI and any sport federation have the power to keep out of their activities athletes, doctors, coaches, and any other individual that has proven to have committed a serious misconduct and, lacking any affiliation with CONI or with a relevant sport federation, cannot be disqualified.
3. Under the applicable regulations, the period of “inibizione” or ineligibility for a first offence of presence of a prohibited substance in an athlete’s sample is a minimum of two years since the athlete has no given any legitimate reason for a reduction of the otherwise applicable period of ineligibility. In this respect, an athlete cannot benefit from any reduction of the otherwise applicable sanction if he or she did not prove by a balance of probability, how the prohibited substance entered his/her body.
In December 2008 an anti-doping rule violation was reported against the Italian amateur cyclist Elena Perotto (45) after her sample tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone (Nandrolone).
Consequently on 26 January 2009 the National Anti-Doping Tribunal, Tribunale Nazionale Antidoping (TNA), decided to impose a 1 year period of inelgihibility on the Athlete based on No Significant Fault or Negligence.
Hereafter in March 2009 the World Anti-Doping Agency (WADA) appealed the TNA Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a sanction of 2 years on the Athlete.
WADA contended that the Athlete failed to establish how the prohibited substances had entered her system. She also failed to demonstrate that she acted with No Significant Fault or Negligence.
The Panel finds that the presence of prohibited substances has been established in the Athlete's sample and accordingly that she had committed an anti-doping rule violation.
In view of the evidence the Panel determines that under the applicable Rules the amateur cyclist is not a licensed athlete. Further the Panel deems that she failed to establish how the substances had entered her system.
The Panel finds that the Athlete only presented hypotheses, but witheld information which could amount to adducting the necessary evidence. Finally the Panel deems that there are no grounds that the Athlete acted with No Significant Fault or Negligence.
Therefore the Court of Arbitration for Sport decides on 28 August 2009:
1.) The appeal of WADA against the decision of the TNA of CONI dated 26 January 2009 is declared admissible and partly upheld.
2.) The Panel imposes a period of two year ineligibility (“inibizione”), which shall start on 26 January 2009.
(…)
5.) All other motions or prayers for relief are dismissed.
