CAS 2012/A/2789 International Paralympic Committee(IPC) v. I., Venezuelan National Paralympic Committee (COPAVEN), Venezuelan National Anti-Doping Organization (VNADO) & Sport Federation for Visually Impaired Athletes in Venezuela (FEPOCIVE), award of 17 December 2012 (operative part of 28 August 2012)
Paralympic athletics
Doping (methenolone)
Responsibility of athletes for their choice of medical personnel and for advising medical personnel
Burden of proof by a “balance of probability” in order to rebut a presumption or establish specified facts
Violation of the athlete’s right to be timely informed of the anti-doping rule violation and CAS power of review
Equal treatment of totally blind athletes by the anti-doping organization representing the paralympic movement
1. WADA adduces the example of sabotage by a competitor despite due care of the athlete concerned as fulfilling the requirements of Article 10.5.1 WADC. On the other hand Article 10.5.2 might be applicable under particular circumstances in cases of administration of a prohibited substance by the athlete’s personal physician or trainer without disclosure to the athlete, because “Athletes are responsible for their choice of medical personnel and for advising medical personnel that they cannot be given any Prohibited Substance”. The same logic applies for sabotage of the athlete’s food or drink by a spouse, coach or another Person within the Athlete’s circle of associates, because “Athletes are responsible for what they ingest and for the conduct of those Persons to whom they entrust access to their food and drink”.
2. The Athlete has to observe established rules of evidence in proving No Fault or Negligence (Article 10.5.1) or No Significant Fault or Negligence (Article 10.5.2). When the burden of proof is upon the athlete to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a “balance of probability”. The balance of probability standard is set forth by the WADC and by the CAS jurisprudence and means that the athlete alleged to have committed a doping violation bears the burden of persuading the judging body that the occurrence of a specified circumstance is more probable than its non-occurrence.
3. The violation of the athlete’s right to be informed in a fair and timely manner of the asserted anti-doping rule violation according to Article 8.1 WADC constitutes a procedural flaw. According to general CAS jurisprudence, the virtue of an appeal system which allows for a full rehearing before an appellate body is that any defects in the procedure before the body appealed from to CAS are cured by the procedure before CAS. The Panel must however first determine whether the athlete lost any chance to demonstrate how the prohibited substance entered the athlete’s body and that there was No Fault or Negligence or No Significant Fault or Negligence through the time that passed. Furthermore, such procedural flaw will be taken into account if it led to “delays not attributable to the athlete” in the understanding of Articles 10.9.1 WADC and IPC Anti-Doping Code respectively in order to determine the commencement of the period of ineligibility.
4. Even, if it has to be admitted that a totally blind athlete has not the same possibilities as an athlete without such impairment to protect against sabotage, such athlete is in totally the same position as all other totally blind athletes. Once an organization representing the paralympic movement, including the interests of all impaired athletes, has found reasonable and adequate to commit to the WADC and adopt an Anti-Doping Code which includes the same obligations for impaired athletes as for athletes without impairment, the measure for guaranteeing equality has shifted to a guarantee of equality between impaired athletes. All totally blind athletes have the same obligation, to be aware of possible sabotage and protect against by carefully selecting their entourage, in order to make sure that no prohibited substance can enter their body.
In August 2011 the Comisión Antidopaje de la República Bolivariana de Venezuela (CARBV), the Venezuelan National Anti-Doping Commission has reported an anti-doping violation against the blind parathlete after her sample tested positive for the prohibited substance metenolone.
After notification by the Federación Polideportiva de Ciegos de Venezuela (FEPOCIVE), the Venezuelan Blind Sports Federation, a provisional suspension was ordered and the Athlete filed a statement in her defence.
The Athlete argued in her statement, dated 24 October 2011, that her sport performance did not show any irregularities, that since she was already qualified for the 2012 London Paralympic Games it did not make any sense for her to take a prohibited substance and she could not have any intention to do so. Further to that she could not apply doping in-competition because she was all the time competing. A subsequent doping test in November 2011 did not show any Adverse Analytical Finding. All this together with the fact, that it would have been nonsense for her to risk her university studies and later career by losing the necessary financial support in case of doping, made her assume that she was a victim of sabotage.
The FEPOCIVE Honorary Council considered the circumstances in the case. The Athlete is total visual impaired and therefore depends of her support staff. Due to her visual impairment it is impossible for her to control for herself the things that anyone might give her.
On 3 November 2011 The Honorary Council decided to impose no other sanction on the Athlete than automatic disqualification of her results, medals, points and prizes.
In November 2011 the International Paralympic Committee (IPC) did not confirm the decision of the FEPOCIVE Honorary Council and did not permit the Athlete to compete, without a notification and a hearing, at the 2011 Parapan American Games. IPC urges Comité Paralímpico de Venezuela (COPAVEN), the Venezuelan Paralypic Committee, to investigate and discipline the responsible person(s).
Hereafter the FEPOCIVE Honorary Court decided to conduct further investigations as to the Athlete and her staff. FEPOCIVE notified the Athlete and ordered a provisional suspension for the second time.
In January 2012 the Athlete appealed the decision for a provisional suspension before the FEPOCIVE Honorary Court and requested to lift the provisional ban to resume her sport career.
On 14 March 2012 The FEPOCIVE Honorary Court decided to impose a 1 year period of ineligibility (reduced to 7 months), on the Athlete, starting on 15 August 2011.
On 2 May 2012 IPC appealed the decision of the FEPOCIVE Honorary Court of 14 March 2012 with the Court of Arbitration for Sport (CAS). However on 18 May the Athlete informed CAS that the FEPOCIVE Honorary Court had revoked its decision of 14 March and preplaced it by a 2 year period of ineligibility imposed on the Athlete.
In July 2012 CARBV, COPAVEN and FEPOCIVE informed CAS they wanted to discontinue the CAS proceedings, but IPC wanted to continue. A sole arbitrator ruled without a hearing on the basis of the written submissions.
In the opinion of the Sole Arbitrator the IPC failed to notify the Athlete of her suspension from the Paralympic Games and ordered the suspension without an investigation as a result of hearing.
CARBV, COPAVEN and FEPOCIVE violated the Athlete's right to be informed in a fair and timely manner of the anti-doping rule violation. However the Sole Arbitrator concludes that the violation of the Athlete’s right did not affect her possibility of establishing the necessary evidence, because all the time she was not aware of which evidence was needed to demonstrate the provisions to be applied. Also all totally blind athletes have the same obligation, to be aware of possible sabotage and protect against by carefully selecting their entourage, in order to make sure that not prohibited substance can enter their body.
The Court of Arbitration for Sport rules:
1.) The Appeal filed by the International Paralympic Committee is admissible.
2.) The decision rendered by the FEPOCIVE on 14 March 2012, in the matter of the athlete I., is set aside.
3.) I. is suspended from 21 August 2011 for a period of two years. The period of any provisional suspension served by I. shall be credited against the total period of ineligibility to be served.
4.) (…)
5.) (…)
6.) All other motions or prayers for relief are dismissed.
