CAS 2013/A/3115 World Anti-Doping Agency (WADA) v. Rebecca Mekonnen & The Norwegian Olympic and Paralympic Committee (NOPC)
CAS 2013/A/3116 World Anti-Doping Agency (WADA) v. Lasse Sundell & The Norwegian Olympic and Paralympic Committee (NOPC), award of 9 December 2013
Powerlifting/Floorball
Doping (cannabinoids; methylhexaneamine)
Standing to be sued of the National Olympic Committee
Intent and lack of knowledge
Corroboration of lack of intent to enhance sport performance through the substance or through the product
1. According to CAS jurisprudence, an appeal can be made against the National Federation that made the contested decision and/or the body that acted on its behalf. The “stand-alone test” is the decisive test to reveal whether a given sports justice body pertains in some way to the structure of a given sports organisation or not. The provision of a National Olympic Committee (NOC) which provides that the Appeals Committee of the NOC shall not be subject to the instructional authority of the governing bodies of such NOC ensures that at a national level, the executive branch of the NOC is not permitted to encroach on the domain of the judicial branch, but does not mean that the Appeals Committee is a body which could legally stand alone if the NOC did not exist. Therefore, if it appears that if the NOC did not exist, the NOC Appeals Committee would not exist and would not perform any function, (at least) for international purposes the decisions of the NOC Appeals Committee, although independently reached, must be considered to be the decisions of the NOC. Therefore the CAS has jurisdiction in relation to an appeal as against the NOC.
2. For the purposes of Article 10.4 of the (2009) World Anti-Doping Code (WADC), intent requires a positive determination grounded in knowledge. If an athlete shows that he or she did not know that they were taking a specified substance, and that is corroborated as required, it naturally follows that he or she could not have intended to improve their sporting performance through the use of such specified substance. The level of recklessness or culpability involved in the lack of knowledge will inform the level of reduction, if any, merited under Article 10.4. That provision clearly envisages a situation where the period of ineligibility is replaced by an exclusion for exactly the same length of two years, even though there is no intention to enhance sport performance or mask the use of a performance-enhancing drug. However, the Article does provide a nuanced approach to the sanction being imposed.
3. Article 10.4 WADC requires corroboration, but this clearly qualifies the first paragraph of that Article and thus the corroborating evidence must go to indicate that the use of the Specified Substance was not intended to enhance sport performance, not necessarily that the athlete did not intend to enhance sport performance through the use of a supplement. As such, if the athlete can show that he did not know that s/he was ingesting a specified substance, it follows that he cannot have intended to enhance his/her sport performance with that substance.
In February 2012 Antidoping Norge (Anti-Doping Norway) reported an anti-doping rule violation against the Athlete Lasse Sundell after his sample tested positive for the prohibited substance methylhexaneamine.
The Athlete stated he used the supplements Jack 3D and Hema-Rage on the day of the doping test. The supplements were purchased in a retailshop and recommended by the salesperson and he did not know these supplements contained the prohibited substance.
On 29 May 2012 Norges idrettsforbund og olympiske og paralympiske komité (NIF), the Norwegian Olympic and Paralympic Committee and Confederation of Sports, decided to impose a 6 month period of ineligibility on the Athlete.
On 2 July 2012 the World Anti-Doping Agency (WADA) appealed the decision of the NIF. However on 22 February 2012 the NIF Appeal Committee dismissed WADA’s appeal and confirmed the previous NIF decision.
Hereafter in March 2013 WADA appealed the decision of the of the NIF Appeal Committee with the Court of Arbitration for Sport (CAS). WADA argued that het Athlete acted negligently because he failed to research the ingredients of the supplement before using. Also the Athlete has to establish he had no intention to enhance his sport performance.
Considering the written submissions in this case the CAS Sole Arbitrator finds that the Athlete had no intention to enhance his sport performance when he used the supplements. The Sole Arbitrator also concludes that the Athlete did very little research about the ingredients in the supplements.
The Court of Arbitration for Sport decides on 9 December 2013 that:
1.) The Appeal filed by the World Anti-Doping Agency on 15 March 2013 against the decision of the Appeals Committee of the Norwegian Olympic and Paralympic Committee and Confederation of Sports in the case of Ms Rebecca Mekonnen dated 22 February 2013 is partially upheld;
2.) The decision of the Appeals Committee of the Norwegian Olympic and Paralympic Committee and Confederation of Sports imposing a ten month period of ineligibility on Ms. Rebecca Mekonnen is set aside and a period of ineligibility of fifteen (15) months commencing on 2 March 2012 is substituted therefore;
3.) The Appeal filed by the World Anti-Doping Agency on 15 March 2013 against the decision of the Appeals Committee of the Norwegian Olympic and Paralympic Committee and Confederation of Sports in the case of Mr. Lasse Sundell dated 22 February 2013 is partially upheld;
4.) The decision of the Appeals Committee of the Norwegian Olympic and Paralympic Committee and Confederation of Sports imposing a six month period of ineligibility on Mr. Lasse Sundell is set aside and substituted therefor with a period of ineligibility of fifteen (15) months from 23 March 2012 for six months, from 4 April 2013 for 5 months and two weeks for a total to the date of this decision of 11 months and two weeks, and continuing to run from the date of this decision up to and including the conclusion of his sentence;
5.) (…);
6.) (…); and
7.) All further and other claims for relief are dismissed.
