CAS 2007/A/1284 & CAS 2007/A/1308 World Anti-Doping Agency (WADA) v. Federación Colombiana de Natación (FECNA) & Lina Maria Prieto
- Aquatics (swimming)
- Doping (norandrosterone; testosterone)
- Direct application of the rules of an International Federation to athletes
- Appealable decision before the CAS
- Applicable law by tacit agreement of the parties
- Condition for the admissibility of the appeal
- Consequences of an IF’s delay to communicate a decision to WADA
- Duty of the athlete to ensure that no prohibited substance enters his/her body
1. Provided that a National Federation is subject to the rules/regulations of an International Federation, such regulations and in particular the doping control rules can be deemed directly applicable to athletes. This may be either through an agreement/license or through the accreditation for a specific competition, or through a chain of references to the International Federation rules in by-laws or other regulations. This kind of factual assumption - based on experience and the fact that competitors generally submit themselves to all applicable regulations of the relevant competition (including doping rules) by their participation in the competition - has already been confirmed by CAS precedents.
2. The concept of an appealable decision (including an appeal against the failure to make a decision) has been defined in the well-established case law of the CAS. In this respect, the form of the communication has no relevance to determine whether there exists a decision or not; furthermore for a communication to be a decision, the communication must contain a ruling, whereby the body issuing the decision intends to affect the legal situation of the addressee of the decision or other parties. Neither the lack of knowledge of the form in which the official decision has been rendered nor the fact that a formal (written) decision with reasons has not yet been handed in, changes this in any way.
3. The election of governing law by tacit agreement is possible. For instance, by their behaviour, the parties could have clearly given their assent to the application of a specific law. Nevertheless, to admit this, it must undoubtedly emerge through the parties’ conclusive acts, that they agreed on the applicable law when they entered into the disputed contractual relationship.
4. In cases where a provision refers to the “receipt of the decision” for defining the time limit of the appeal (in contrast to the term “notification/notice of the decision”), this must be interpreted in a sense of a mere and common “time limit provision”. In no way does it indicate a requirement of admissibility to the effect that a party entitled to appeal cannot lodge an appeal before the actual receipt of the relevant formal decision. Rather, if there are no doubts as regards the existence of a decision, the term “receipt” has to be interpreted in a way that the “dies a quo” of the time limit is at least – as “a minus” of a receipt – the notice of the decision.
5. A delay of an International Federation to pass to WADA the information of the existence of the decision cannot be held against WADA. Should it be otherwise, it would imply for WADA to intervene in national cases and take measures or make inquiries, which obviously fall into the competence of the National or the International Federations.
6. It is each athlete’s personal duty to ensure that no prohibited substance enters his/her body. For an athlete, to allege that he/she made a few researches on the internet before he/she ingested nutritional supplements allegedly containing the prohibited substance is not enough to meet the standard of care expected of a top-level athlete, i.e. obtain assurances from his/her physician, pharmacist or team doctor that the supplements do not contain a prohibited substance.
In May 2006 the Colombian Swimming Federation (FECNA) reported an anti-doping rule violation against the swimmer Lina Maria Prieto after she tested positive for the prohibited substances 19-norandrosterone (Nandrolone) and with a T/E ratio above the WADA threshold. Consequently the FECNA Disciplinary Committee decides to impose a 1 year period of ineligibility on the Athlete.
Following deliberations between FINA and FECNA the World Anti-Doping Agency (WADA) appealed in April 2007 the FECNA decision with the Court of Arbitration for Sport (CAS).
WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of inelibility on the Athlete. WADA contended that the Athlete had committed an anti-doping rule violation and failed to explain how she tested positive.
In view of the evidence the Sole Arbitrator has no reason to put into question the quality and the results of the sample analysis conducted by the WADA-accredited laboratory. Ms Lina Maria Prieto must be considered as having committed a doping offence involving a prohibited substance governed by the sanctions in article DC 10 of the FINA Doping Control Rules and must take responsibility for it.
The Sole Arbitrator deems that Ms Lina Maria Prieto was unable to establish how the prohibited substance entered her system. Hence, elimination or reduction of the period of ineligibility based on exceptional circumstances cannot be applied and a minimum sanction of 2 years (for a first violation) must be imposed according to the rules in force.
Therefore the Court of Arbitration for Sport decides on 8 July 2008:
1.) The appeals filed by the World Anti-Doping Agency in the present matter are partially upheld.
2.) The appealed decision of the FECNA in the present matter is set aside.
3.) Ms Lina Maria Prieto is guilty of an Anti-Doping Rule violation committed during the Campeonato Internacional Ciudad De Cali, which took place between 7 and 9 April 2006 in Cali, Colombia.
4.) Ms Lina Maria Prieto shall be declared ineligible for two years. The period of ineligibility to be imposed upon her shall commence on 18 May 2006.
5.) Ms Lina Maria Prieto’s results obtained during the 2006 Campeonato Internacional Ciudad De Cali and or/during the above-mentioned period of ineligibility, her eventual medals, her points and prizes are forfeited.
(…)
9. All other motions or prayers for relief are dismissed.
