CAS 2010/A/2229 WADA v. FIVB & Gregory Berrios
CAS 2010/A/2229 World Anti-Doping Agency (WADA) v. Fédération Internationale de Volleyball (FIVB) & Gregory Berrios
- Volleyball
- Doping (sibutramine)
- Elimination or reduction of the period of ineligibility for specified substances
- Criteria for the determination of the correct and proportionate sanction by CAS panels
- Athletes’ responsibility with regard to the intaking of dietary weight loss products or food supplements
1. Article 4.2.2 of the WADA Code seeks to introduce some flexibility when determining a sanction for an athlete that has ingested a Specified Substance; nevertheless, for the elimination or reduction of the period of ineligibility an athlete must establish:
a) how a Specified Substance entered his or her body or came into his or her possession; and
b) that such Specified Substance was not intended to enhance the athlete’s sport performance or mask the use of a performance-enhancing substance.
With respect to the second condition, a panel must be comfortably satisfied by the objective circumstances of the case that the athlete in taking or possessing a Prohibited Substance did not intend to enhance his or her sport performance. An athlete only needs to prove that he/she did not take the specified substance with an intent to enhance sport performance. The athlete does not need to prove that he/she did not take the product with the intent to enhance sport performance. The second condition is thus met when an athlete can produce corroborating evidence in addition to his or her word which establishes to the comfortable satisfaction of a panel that he or she ingested a specified substance unknowingly, e.g. by means of ingesting a contaminated product.
2. In determining, as an international appellate body, the correct and proportionate sanction, CAS panels must also seek to preserve some coherence between the decisions of the different federations in comparable cases in order to preserve the principle of equal treatment of athletes in different sports. In that connection the introduction to the WADA Code expressly states that two of its purposes are to promote equality for athletes worldwide and to ensure harmonization of anti-doping programs. A sanction must further comply with WADA’s objective of proportionate and consistent sanctions for doping offences based on an athlete’s level of fault under the totality of circumstances.
3. In the context of contaminated supplements, CAS panels have highlighted the large number of public warnings and internationally published cases on the risks of mislabeling and/or contamination of nutritional supplements. Since these risks 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. Although dietary weight loss products may not in the strict sense of the term be deemed a “food supplement”, in essence their use requires the same degree of circumspection and care on the part of an athlete as the use of food supplements. In many sports losing weight can in various manners enhance performance and doing so very fast using natural products is not necessarily easy to achieve, while at the same time it is known that certain substances characterized as stimulants also act as appetite suppressants, meaning that there is a risk that such substances be found in medicaments or health products aimed at accelerated slimming/fast diets. Accordingly, within their responsibilities to take great care to avoid the use of any doping products, athletes in general must be on their guard when considering the ingestion of any weight-losing product, whether in the form of a medicament or a so-called natural dietary product.
In July 2010 the International Volleyball Federation (FIVB) has reported an anti-dopng rule violation against the Athlete Gregory Berrios after his sample tested positive for the prohibited substance Sibutramine. Thereupon the FIVB decided on 4 August 2010 to sanction the Athlete for 3 months because his violation was not intentional.
Hereafter in September 2010 the World Anti-Doping Agency (WADA) appealed the FIVB 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 1 year.
The Athlete gave a prompt admission and denied the intentional use of the substance. He asserted that analysis of the product Fatlose Slimming Beauty in the NMS Labs had confirmed that it was tainted with Sibutramine.
The Panel assessed and addressed the evidence in this case and determines that:
- The presence of a prohibited substance has been established in the Athlete's sample and accordingly he committed an anti-doping rule violation.
- There is corroborating evidence that the contaminants Sibutramine and Phenophthalein were identified in the Fatlose Slimming Beauty product the Athlete had ingested.
- The Athlete had demonstrated that the violation was not intentional and how the substance had entered his system.
- Considering the Athlete's degree of negligence the sanction can only be reduced by more than one half of the maximum sanction of 2 years.
Therefore the Court of Arbitration for Sport decides on 28 April 2011:
1.) The appeal filed by the World Anti-Doping Agency on September 15, 2010 is partially upheld.
2.) The decision of the Fédération Internationale de Volleyball of August 4, 2010 is set aside.
3.) Mr. G. Berrios is declared ineligible for a period of one year, commencing on May 27, 2010.
4.) (…).
5.) (…).
6.) All other requests for relief are rejected.
