CAS 2008/A/1515 WADA v/Swiss Olympic Association & Simon Daubney
In July 2007 the sailer Simon Daubney tested positive for the prohibited substance Cocaine. Consequently on 29 September 2007 the Amerca's Cup Jury concluded that he had committed an anti-doping rule violation and the case was referred to Swiss Olympic.
However on 24 January 2008 the Swiss Olympic Disciplinary Committee concluded that the Athlete had not committed an anti-doping rule violation and it decided not to impose any sanction upon him.
Hereafter in March 2008 the World Anti-Doping Agency (WADA) appealed the decision of Swiss Olympic with the Court of Arbitration for Sport (CAS). WADA requested to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.
WADA deems that the Athlete failed to provide a valid explanation for the positive test, nor that he acted with No Significant Fault or Negligence. It contended that the found concentration of Cocaine in the Athlete sample was not consistent with his allegation that his drink was spiked with Cocaine by a person at the material time before the sample collection.
The Athlete testified that before the sample collection procedure, he visited public establishments, where he accepted drinks from strangers, who must have put cocaine into one of his drinks. In order to corroborate his allegations, he produced a number of statements and documents establishing his good character as well as the very strong hostility of the fans of Team New Zealand.
In view of the circumstances, the Athlete asserted that the possibility of an intentionally organised contamination with the intent to harm him and Team Alinghi is credible. Further he argued that the scope of review of the CAS Panel is limited as it should confirm the decision of the Swiss Olympic Disciplinary Committee.
Preliminary the Panel resolved several procedural issues raised by the Athlete and determines that it has the full power to review the facts and the law of the case.
The Panel finds that the presence of a prohibited substance has been established in the Athlete's sample and accordingly that he committed an anti-doping rule violation.
Even though the Panel is willing to accept that the Athlete did not know or suspect that the drinks at the bar in question had been spiked with a prohibited substance, the Panel cannot accept that the Athlete could not reasonably have known or suspected such occurrence, given the dangerous situation in which he put himself.
As a result, the Panel cannot accept the submission that those circumstances are exceptional and excuse the Athlete from his significant fault or negligence.
Therefore the Court of Arbitration for Sport decides on 2 October 2008:
1.) The Appeal of the WADA against the decision rendered on 24 January 2008 by the Swiss Olympic Disciplinary Committee is admissible.
2.) The decision rendered on 24 January 2008 by the Swiss Olympic Disciplinary Committee is set aside.
3). Mr Simon Daubney is found guilty of an anti-doping rule violation and is declared inehgible for a period of two years running from 14 July 2007 until 13 Juiy 2009.
4.) This award is pronounced without costs, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) already paid and to be retained by the CAS.
5.) Each party shall bear its own legal and other costs.
6.) All other motions or prayers for relief are dismissed.
