CAS 2012/A/3029 World Anti-Doping Agency (WADA) v. Anthony West & Fédération Internationale de Motocyclisme (FIM)
Motorcycling
Doping (methylhexaneamine)
Difference between Article 10.5.1, 10.5.2 and 10.4 of the WADC
Ignorance that a product contains a specified substance and application of Article 10.4 of the WADC
Discharge of the burden of proving absence of intent under Art. 10.4 WADC.
Standard of care required by the athlete in motor races
1. An athlete who admits having been careless has no prospect of achieving elimination of the suspension under Article 10.5.1. Article 10.5.2, on the other hand, covers cases of “no significant fault or negligence”, but the suspension cannot be shortened to less than 12 months. Only Article 10.4 allows the athlete’s suspension to be reduced to less than 12 months, if not indeed eliminated and replaced with a reprimand.
2. The majority of CAS case law does not accept that an athlete’s ignorance that a product contains a Specified Substance can establish absence of intent for the purposes of Article 10.4. In plain words, if an athlete believes that a product enhances performance he cannot invoke the benefit of Article 10.4 just because it is accepted that he did not know that the product contained a banned substance. This would have the absurd result of rewarding competitors for being – and remaining – ignorant of the properties of the products they ingest, contrary to a fundamental objective of the anti-doping regulations, namely to create powerful incentives for competitors to take active and earnest initiatives to inform themselves.
3. The fact that an athlete was not a “cheat” is quite different from the standard of Article 10.4. To establish that someone is a “cheat” requires that the accuser furnishes proof to that effect. Article 10.4, on the other hand, requires the competitor to prove that he did not intend to enhance his sport performance – whether or not he thought he was disobeying the rules. The intent criterion of Article 10.4 requires “corroborating evidence” apart from the competitor’s own assertion.
4. It is understandable that one might think that winning motor races has more to do with the power, acceleration, braking system, balance, and manoeuvrability of the vehicle than with the athletic capacities of the rider, and that cheating therefore would involve infringement of technical rules regarding their specifications. But a professional rider cannot be excused for holding such a simplistic view. Doping rules are concerned with the safety of the competitors – not only that of the individual ingesting the product in question, but also those who might be affected by his behaviour while driving under its influence. Motor racing competitors benefit from attributes such as concentration, adroitness, and reactiveness, which might give a competitive advantage and might be enhanced by means of ingesting prohibited substances. It might also create a sense of confidence conducive to excessive risk-taking. Moreover, it is inexcusable for a professional not to understand that when his sport is governed by a comprehensive set of rules applicable to all kinds of sport competitions, serious consequences may flow from transgressions which might not be considered particularly serious in his discipline.
In June 2012 the Fédération Internationale de Motorcyclisme (FIM, the International Motorcycling Federation, has reported an anti-doping rule violation against the Athlete Anthony West after his sample tested positive for the prohibited substance methylhexaneamine.
After notification by FIM the Athlete was heard for the FIM International Disciplinary Court. The Athlete stated he had used a low sugar energy drink “Mesomorph” purchased in a nutritional shop and did not know the supplement contained a prohibited substance.
On 29 October 2012 the FIM International Disciplinary Court concluded that the Athlete had no intention to enhance his sport performance and decided to impose a 1 month period of ineligibility on the Athlete, starting on the date of the provisional suspension.
Hereafter in December 2012 the World Anti-Doping Agency (WADA) appealed the decision of the FIM International Disciplinary Court with the Court of Arbitration for Sport (CAS).
WADA requested CAS to set aside the decision of FIM International Disciplinary Court and to impose a 2 year period of ineligibility on the Athlete due to he failed to research the ingredients of the supplement before using.
The CAS Panel deems that the Athlete acted negligently without ensuring that the supplement does not contain a prohibited substance.
Therefore the Court of Arbitration for Sport decides on 22 November 2013:
1.) The Appeal filed by the World Anti-Doping Agency against the decision of the FIM International Disciplinary Court dated 29 October 2012 is partially upheld.
2.) The decision of the FIM International Disciplinary Court dated 29 October 2012 is set aside and replaced with the following:
Mr. Anthony West is sanctioned with a period of ineligibility of eighteen (18) months, commencing on 20 May 2012.
3.) All sporting results obtained by Mr. Anthony West from 20 May 2012 up to the expiry of the period of ineligibility shall be invalidated.
(…)
6.) All other or further claims are dismissed.
