CAS 2013/A/3274 Mads Glasner v. Fédération Internationale de Natation (FINA)
Related case:
FINA 2013 FINA vs Mads Glæsner
June 14, 2013
Aquatics (swimming)
Doping (levmetamfetamine)
CAS power of review
Access to justice
Art. 10.1 FINA Doping Control Rules as lex specialis
Interpretation contra proferentem
Disqualification of further results according to Art. 10.1 FINA Doping Control Rules
Interpretation of “fairness” according to Art. 10.8 FINA Doping Control Rules
1. Where the first instance deciding body is – in view of the very special circumstances of the case and/or its technical expertise – in a better position to decide the matter, restrictions to the CAS full power of review may exceptionally be accepted. However, no such specific situation is given in a case where the rules at stake are based on the World Anti-Doping Code, the purpose of which is to ensure the uniform application of anti-doping standards throughout the world and across all sports. There is no reason why a federation would have more expertise in applying these rules of a truly transnational character than CAS Panels or why the danger that someone would adjudicate the matter “according to its subjective sensitivity” is any different at the CAS level than at the level of the federation’s organs.
2. According to Art. 6(1) of the European Convention of Human Rights, a person affected by a decision must have, in principle, access to (at least) one instance of justice. Doping sanctions strongly affect the rights of an athlete and federation instances do not provide for access to justice within the meaning of Art. 6(1) ECHR, since they do not guarantee adjudication of the facts and the law by a truly independent judicial instance. Restrictions to the fundamental right of access to justice should not be accepted easily, but only where such restrictions are justified both in the interest of good administration of justice and proportionality. A restriction of the CAS power of review – contrary to the clear wording of the Art. R57 of the CAS Code – is not in the interest of good administration of justice.
3. If different (conflicting) rules are applicable to the same matter, the conflict of rules is to be solved by applying the principle lex specialis derogat generali. According thereto the (more) specific rule prevails over the more general rule, since the lex specialis is presumed to have been drafted having in mind particular purposes and taking into account particular circumstances. Art. 10.1 of the FINA DC is tailored to the special circumstances of a Competition consisting of several Events and appearing as a unit. However, Art. 10.8 of the FINA DC does not address such a specific situation. It follows from this that Art. 10.1 constitutes a lex specialis to Art. 10.8.
4. As a general rule, any provision with an unclear wording is to be interpreted against the author of the wording (interpretation contra proferentem). It follows from this that any ambiguity or doubt as to the contents or scope of application of the provisions in the DC must turn against FINA, i.e. the drafter of these rules. While the DC implement the World Anti-Doping Code (WADC) and thereby have to be in compliance with the mandatory articles and other principles of the WADC, FINA nevertheless must be perceived as the drafter of the DC. Thus, FINA must bear the legal consequences of any ambiguity of the relevant provisions.
5. The decisive criterion within Art. 10.1 of the FINA DC in considering whether other results should be disqualified or not is the relationship between the anti-doping rule violation and the effects the latter may have on the Competition, in particular whether the context of the anti-doping rule violation is such as to “contaminate” all results obtained in the Competition. The question therefore is, if the results obtained in the other Events are (morally) tainted because of the anti-doping rule violation committed. This presupposes that the anti-doping rule violation exceeds a certain (minimum) threshold of seriousness. The main factor whether or not an anti-doping rule violation is serious is the athlete’s degree of fault.
6. It follows from both the wording of Art. 10.8 of the FINA DC and its systematic interpretation that the term “fairness” must be interpreted in a broad sense. The better arguments, therefore, speak in favour of interpreting the term “fairness” as encompassing the criteria enshrined in Art. 10.1 of the FINA DC (but not being limited to them). Thus, the factors which can (also) be taken into account in the ambit of the “fairness” test are the severity of the athlete’s anti-doping rule violation and the impact of the anti-doping rule violation on the subsequent results.
The Fédération Internationale de Natation (FINA) has reported an anti-doping rule violation against the Athlete Mads Glæsner after his A and B samples, provided on 14 December 2012, tested positive for the prohibited substance levmetamfetamine. The Athlete also provided a sample on 16 December 2012, which tested negative for prohibited substances.
The Athlete stated he had used his mother’s Vicks inhaler, purchased in the United States, and did not know it contained a prohibited substance other than the Danish type to which he was used to.
The Vicks inhalers, one purchased in the United States and the other in Denmark, have the same white body but different caps.
The Panel accepts Athlete’s statement and concludes he had no intention to enhance performance. Therefore the FINA Doping Panel decides to impose a 3 month period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 19 March 2013. The FINA Doping Panel annulled all results achieved by the Athlete from 14 December 2012 onwards including forfeiture of medals and prizes.
Hereafter the Athlete appealed the decision of the FINA Doping Panel with the Court of Arbitration for Sport (CAS).
In his appeal the Athlete did not contest the presence of the substance nor the disqualification of his results in the 14 December 2012 competition and the forfeiture of his bronze medal, nor the 3 month period of ineligibility.
Instead, the Athlete requested CAS to annul the FINA decision which concerned the disqualification of his results, and therefore his gold medal, in the 16 December 2012 competition and to request that FINA issue a corrective press release.
The CAS Sole Arbitrator found that according to the applicable rules there was no reason to disqualify the results of the Athlete of 16 December 2012.
The Court of Arbitration for Sport decides on 31 January 2014:
1.) The Appeal filed by Mr Mads Glaesner against the Decision of the Doping Panel of the Fédération Internationale de Natation dated 11 July 2013 is admitted.
2.) Paragraph 6.2 of the Decision of the FINA Doping Panel of 11 July 2013 is set aside insofar as it refers to other competitive results than the results obtained by Mr Mads Glaesner on 14 December 2012.
3.) The Fédération Internationale de Natation is ordered to issue a corrective press release on the disqualification of Mr Mads Glaesner’s results.
(…)
6.) All other or further claims are dismissed.
