CAS 2013/A/3241 World Anti Doping Agency (WADA) v. Comitato Olimpico Nazionale Italiano (CONI) & Alice Fiorio
Softball
Doping (whereabouts failures)
Minimum sanction for whereabouts failures
Substantive change of the WADA Code
1. According to art. 10.3.3 WADA Code, the sanction for a violation of art. 2.4 WADA Code (whereabouts filing failures and/or missed tests) is a period of ineligibility of at minimum one year and at a maximum two years. Art. 10.5.2 WADA Code regarding reduction of the period of ineligibility based on no significant fault or negligence cannot apply to further reduce a sanction for a violation of art. 2.4 WADA Code.
2. As a signatory of the WADA Code, CONI must implement the articles (and corresponding comments) of the WADA Code listed in its art. 23.2.2 without substantive changes. The sanction regime on individuals (art. 10 WADA Code) has been implemented correctly in the (Italian) Norme Sportive Antidoping (NSA). As a consequence of art. 23.2.2 WADA Code, the corresponding articles of the NSA shall be interpreted in the same manner as the WADA Code. Therefore, by applying art. 4.5.2 NSA (equivalent to art. 10.5 WADA Code) to reduce a sanction for whereabouts filing failures and/or missed tests below the minimum sanction of one year, CONI introduced a substantive change and the sanction is neither in compliance with the WADA Code nor the NSA.
The Italian Anti-Doping Department of the Italian National Olympic Committee (CONI) registrated two filing failures in 2012 with the Athlete Alice Fiorio after she failed to file her whereabouts information for the period from 1 July 2012 until 31 December 2012. On 14 February a third filing failure was registrated with a missed test as the Athlete was not present to provide a sample for an out-of-competition doping test because she failed to update her whereabouts information.
Therefore the Italian Anti-Doping Department of the Italian National Olympic Committee (CONI) reported an anti-doping rule violation against the Athlete due to three filing failures/missed test within 18 months.
Considering the Athlete’s statement and with no significant fault or negligence, CONI decided on 30 May 2013 to impose a 6 month period of ineligibility on the Athlete, starting on 30 May 2013 until 29 November 2013.
Hereafter in July 2013 WADA appealed the CONI decision with the Court of Arbitration for Sport (CAS).
WADA requested CAS to set aside the CONI decision of 30 May 2013 and to impose a 1 year period of ineligibility on the Athlete because of three filing failures and the missed tests.
Because the Athlete’s anti-doping violation is undisputed, this case mainly concerns the interpretation and implementation of the WADA-code and its sanction regime by CONI.
Considering the circumstances, the CAS Sole Arbitrator notes that CONI correctly applied the minimum duration of ineligibility of 1 year for this violation. Due to CONI interpreting the WAD Code for a further sanction reduction the Sole Arbitrator finds that the sanction imposed by CONI is neither in compliance with the WADA Code nor the Italian anti-doping rules.
The Sole Arbitrator finds that a correct and consistent interpretation and application of the sanction system leads to the conclusion that the Italian art. 5.5.2. NSA (WADA CODE 10.5) is not applicable in cases concerning a violation of art. 4.3.3. NSA (WADA Code 10.4). Therefore the minimum period of ineligibility of 1 year (art. 4.5.2 NSA) shall apply.
Therefore the Court of Arbitration for Sport decides on 22 Janurary 2014 that:
1.) The appeal filed by WADA on 8 July 2013 is upheld.
2.) The Athlete Ms Alice Fiorio is sanctioned with a 1 year period of ineligibility starting on the date on which this award enters into force. Any period of ineligibility which was already spent by Alice Fiorio shall be credited against the total period of ineligibility.
3.) CONI shall bear the costs of the proceedings, to be determined and served on the parties by the CAS Court Office.
4.) CONI is ordered to pay WADA a total amount of CHF 2000.- as contribution towards the expenses incurred in connection with these arbitration proceedings,
5.) All other motions or prayers for relief are dismissed.
