CAS 2010/A/2107 Flavia Oliveira v. United States Anti-Doping Agency (USADA)
Related case:
AAA 2009 No. 77 190 00429 09 USADA vs Flavia Oliveira
April 6, 2010
- Cycling
- Doping (oxilofrine)
- Specified substance
- CAS power of review
- Requirement to prove no intent to enhance sport performance
- Degree of fault of the athlete
- Duty of care of the athletes
- Proportionality of the sanction
- Requirements for obtaining a reduced period of ineligibility
- Relevant factors to be considered in reducing the period of ineligibility
1. Pursuant to Article R57 of the Code, which provides the panel with full power to review the facts and law and authorizes it to issue a new decision which replaces the decision challenged, a panel must make its independent determination of whether the appellant’s contentions are correct, not limit itself to assessing the correctness of the appealed decision or award.
2. Clause two of Article 10.4 of the WADA Code does not require the athlete to prove that he/she did not take a product (for example a nutritional supplement) with the intent to enhance sport performance. If such construction was adopted, an athlete’s usage of nutritional supplements, which are generally taken for performance-enhancing purposes, but which is not per se prohibited by the WADA Code, 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. Therefore Article 10.4 of the WADA Code requires the athlete only to prove his/her ingestion of the specified substance was not intended to enhance his/her sport performance. This construction of Article 10.4 harmonises the clear language in clause one with the differing and ambiguous language of clause two, and is consistent with its explanatory Comment.
3. The athlete’s “degree of fault” is only relevant in determining whether his/her period of ineligibility should be reduced. It is not to be considered in determining whether he/she can prove his/her lack of intent to enhance sport performance.
4. Because the risks of mislabelling and/or contamination now are generally known or at least foreseeable, all athletes must exercise reasonable care to ensure a nutrition supplement does not contain a banned substance whether the WADA Code classifies it as a prohibited or specified substance.
5. In determining the athlete’s period of ineligibility, the panel must impose an appropriate sanction that furthers the WADA Code’s objective of proportionate and consistent sanctions for doping offences based on an athlete’s level of fault under the totality of circumstances.
6. Unlike Article 10.5 of the WADA Code (and its implementation in the UCI Anti-Doping Regulations), Article 10.4 of the WADA Code (and its implementation in the UCI Anti-Doping Regulations) does not require the athlete to prove “no significant fault or negligence” to obtain a reduced period of ineligibility for testing positive for a specified substance. The appropriate inquiry is the athlete’s “degree of fault” under the circumstances. To resolve this issue, the panel must determine whether the nature and degree of his/her unreasonable conduct under the circumstances was so high that a two-year period of ineligibility is proportionate and consistent with other similar cases.
7. The fact that an athlete would lose the opportunity to earn large sums of money during a period of ineligibility or the fact that the athlete only has a short time left in his or her career or the timing of the sporting calendar are not relevant factors to be considered in reducing the period of ineligibility under Article 10.4 of the WADA Code.
In September 2009 the United States Anti-Doping Agency (USADA) reported an anti-doping rule violation against the cyclist Flavia Oliveira after her sample tested positive for the prohibited substance Oxilofrine (Methylsynephrine).
Consequently the American Arbitration Association (AAA) decided on 6 April 2010 to impose a 2 year period of ineligibility on the Athlete.
Hereafter in April 2010 the Athlete appealed the AAA Decision with the Court of Arbitration for Sport (CAS). The Panel was asked to determine the appropriate length of the Athlete’s period of ineligibility and the date on which the period of ineligibility should take effect.
The Athlete hoped to demonstrate to the Panel that her lack of intent to use a prohibited substance, her reasonable explanation as to how the prohibited substance entered her body, and her efforts to ensure that the Hyperdrive product that she ingested did not contain any prohibited substances, should support a reduction from the presumptive two-year period of ineligibility.
USADA contended that the Athlete should receive a 2 year period of ineligibility that should begin on the date that she accepted a provisional suspension.
The Panel finds that the Athlete has satisfied her burden of establishing that Oxilofrine entered her system as a result of her consumption of the supplement Hyperdrive 3.0+. Further the Panel concludes that the Athlete's testimony and other corroborating evidence establishes to its comfortable satisfaction that she did not intend to enhance her sport performance.
In view of the Athlete's conduct the Panel deems that she acted with a lowere degree of fault. Further the Panel considers that she gave a timely admission following the notification.
Therefore the Court of Arbitration for Sport decides on 6 December 2010:
1.) The appeal filed by Flavia Oliveira on April 27, 2010 against the decision of the American Arbitration Association dated April 6, 2010 is upheld.
2.) The decision of the American Arbitration Association dated April 6, 2010 imposing a period of ineligibility of two years is set aside and a period of ineligibility of eighteen (18) months commencing on August 30, 2009 is substituted therefor.
3.) This award is pronounced without costs, except for the Court Office fee of CHF 500 paid by Flavia Oliveira which shall be retained by the CAS.
(…)
5.) All other or further claims are dismissed.
