CAS 2011/A/2582 World Anti-Doping Agency (WADA) v. Turkish Swimming Federation (TSF) and Karhan Akay
On 19 February 2011 the Turkish Swimming Federation (TSF) Disciplinary Committee decided to issue only a warning on the minor swimmer (15) after he tested positive for the prohibited substances Methandienone and Stanozolol.
In first instance the Committee deemed that the violation was not intentional and that the minor athlete had used prescribed Oxandrolone as medical treatment in order to stimulate body growth.
Thereupon further investigations revealed that the prescribed Oxandrolone medication used by the Athlete were fakes and not produced by the Italian company in question. Analysis revealed the presence of Methandienone and Stanozolol in this medication and not Oxandrolone.
Hereafter the World Anti-Doping Agency (WADA) appealed the TSF decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a 1 year period of ineligibility on the Athlete.
WADA deemed that:
- the violation was not intentional;
- the Athlete was yound and inexperienced;
- he was not properly advised by his parents and his doctor;
- the fake Oxandrolone pills were the source of his positive test;
- there were mitigating circumstances; and
- there were grounds for No Significant Fault or Negligence.
The TSF and the Athlete asserted that there were grounds for No Fault or Negligence in this case whereas his father and an eminent doctor had initiated the medical treatment. Nevertheless the father had failed to make a TUE application for the use of Oxandrolone.
In view of the evidence the Sole Arbitrator determines that:
- there are no ground for No Fault or Negligence;
- there are mitigating circumstances;
- there are grounds for No Significant Fault or Negligence;
- there have been delays in the proceedings not attributed to the Athlete.
Therefore the Court of Arbitration for Sport decides on 29 May 2012 that:
- The appeal filed by the World Anti-Doping Agency on 30 September 2011 against the decision of the Disciplinary Committee of the Turkish Swimming Federation of 19 February 2011 is admissible.
- The appeal filed by the World Anti-Doping Agency is upheld.
- The decision of the Disciplinary Committee of the Turkish Swimming Federation of 19 February 2011, is set aside.
- Mr Karhan Akay is declared ineligible for a period of twelve months, commencing on 19 February 2011.
- All competitive results obtained by Mr Karhan Akay (the Athlete) from 21 October 2010 until the commencement of the period of ineligibilily shall be disqualified with all the resulting consequences including forfeiture of any medals, points and prizes.
- The costs of arbitration, to be determined by the CAS Court office, shall be borne in the proportion of ¼ (one quarter) by the World Anti-doping Agency and ¾ (three quarter) by the Turkish Swimming Federation.
- The Turkish Swimming Federation shall pay a contribution of CHF 2,000 (two thousand Swiss Francs) towards World Anti-Doping Agency' s legal fees in the case.
- All other requesfs for relief are rejected.