Advisary Opinion CAS 2005/C/841 CONI
Police investigations revealed that the team’s doctor of an Italian professional football club controlled, at the club’s premises, a large amount of pharmaceutical products, including products containing substances prohibited under anti-doping regulations, and/or subject to restrictions for the purchase and use.
As a result, the Italian criminal court, the Tribunale di Torino, relying in particular on the evidence given by Court appointed experts, came to the conclusion that in the period 1994-1998 a large quantity of pharmaceutical substances and medical treatments, both included and not included in the list of prohibited substances, had been administered to club’s players not therapeutically but for the specific purpose of enhancing their sport performances.
On 26 November 2004 the Tribunale di Torino, issued a judgment sentencing the team’s doctor to a term of imprisonment (whose execution was however suspended), for the crime of fraud in sports competition.
Hereafter in March 2005 the Italian National Olympic Committee (CONI) requested the Court of Aribitration for Sport (CAS) for an advisory opinion.
More specifically, the request for an advisory opinion was made by CONI to know if, based on the sport law in force in the period between 1994 and 1998 or nowadays,
- (i) “the use of pharmaceutical substances not expressly prohibited by Sport Law, can be disciplinary sanctioned”; and
- (ii) “under which methods of investigation the use of pharmaceutical substances supplied to athletes and not included in the prohibited list can be assessed by sport authorities”.
CONI specified also that the CAS opinion was requested “considering also a specific request of FIGC” and that it was seeking CAS opinion “in order to know if and under which circumstances pharmaceutical and medical treatments which are not prohibited by national or international sport rules, can influence the regularity of sport competition”.
Following assessment the Court of Arbitration for Sport gives on 26 April 2005 the following advisory opinion:
Question 1.- :
The use of pharmaceutical substances which are not expressly prohibited by sports law, and which cannot be considered as substances similar or related to those expressly prohibited, is not to be sanctioned by disciplinary measures. However, regardless of the existence or not of any judgement rendered by a State court, sports authorities are under the obligation to prosecute the use of pharmaceutical substances which are prohibited by sports law or any other anti-doping rule violation in order to adopt disciplinary measures. In such event, any disciplinary action shall take into account: the substantive norms and rules applicable at the time of the alleged violation, the “lex mitior” principle, the jurisdiction of the organisation or body taking such disciplinary action, as well as the statute of limitations as prescribed by the applicable rules.
Question 2.- :
The use by athletes of pharmaceutical substances which are not included in the prohibited list, and which cannot be considered as substances similar or related to those expressly prohibited, is to be investigated by sports authorities only in order to inform WADA of possible new forms of doping. With regard to the use of pharmaceutical substances included in the prohibited list or any other anti-doping rule violation, sports authorities must resort to all available methods of investigation and must open without delay a disciplinary proceeding whenever they happen to know of possible violations from whatever source of information, leaving it up to the adjudicating bodies to determine whether there is sufficient evidence, in accordance with the applicable standards of proof, to inflict disciplinary sanctions.
