CAS 2007/A/1318 Anthony Lobello v. International Skating Union (ISU)
Related case:
ISU 2007 ISU vs Anthony Lobello
June 8, 2007
- Skating
- Doping (whereabouts information)
- Standard of proof
- Burden of proof
1. According to Art. 3.1 ISU Rules, the standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. When the ISU Anti-Doping Rules place the burden of proof upon a skater or other persons alleged to have committed an ISU Anti-Doping Rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability.
2. In the context of an alleged failure by a skater to provide whereabouts form to the ISU, the ISU has not proved its case in terms of Article 3.1 of the Rules, if the athlete has produced (although late) a document (a facsimile and its confirmation sheet) establishing that he/she fulfilled his/her obligation to provide whereabouts information to the IF and if the IF has not proven any fabrication of evidence by the athlete.
On 8 June 2007 the International Skating Union (ISU) decided to impose a 6 month period of ineligibility on the Athlete Anthony Lobello after he failed to provide his whereabouts reports three times within six months, despite several reminders and two formal warnings.
Hereafter in June 2007 the Athlete appealed the ISU decision with the Court of Arbitration for Sport (CAS).
The Athlete claimed that he never received any facsimile, email or other information, either orally or in writing, from either the ISU or US Skating, that the ISU had failed to receive his Whereabouts Form for the first and second quarter 2007.
US Skating confirmed that the ISU had sent to US Speedskating reminders notices for those Athletes who had not submitted their whereabouts forms for the second quarter of 2007. However those reminders notices were not notified by US Skating to some Athletes, including the Athlete Anthony Lobello.
The Athlete’s mother, Sharon Lobello, testified that she sent his Whereabouts Form by fax to the ISU in December 2006 with a facsimilie slip confirmation as evidence.
The Athlete argued that communications from the ISU to individual Athletes were not always received by the Athlete, and that those that were received were not always received in a timely manner.
The ISU denied that it had previously lost or misplaced whereabouts forms sent by skaters, or that it had done so on this occasion.
In addition US Speedskating wrote a letter of support to the ISU dated 3 July 2007:
"As a result of this new information, we believe the second warning issued by the ISU to Mr Lobello on January 19, 2007, should be rescinded and, as a result, he should have no period of ineligibility. He should be placed back in a position where he has two warnings on his record, and not three which would result in a penalty pursuant to Article 2.4 of the ISU Anti-Doping Rules".
The Panel considers that the doubts surrounding the transmission of the whereabouts form lead to the conclusion in this case that it was more likely than not that the Athlete’s whereabouts form was transmitted and received on 13 December 2006.
Thefore on 6 December 2007 the Court of Arbitration for Sport decides :
1.) The appeal filed by Mr Anthony Lobello on 29 June 2007 against a decision of the International Skating Union Disciplinary Commission dated 8 June 2007 is upheld.
2.) The decision of the ISU Disciplinary Commission of 8 June 2007 to impose a period of ineligibility on Mr Lobello is reversed and annulled.
3.) This award is rendered without costs except for the Court Office fee of CHF 500 (five hundred Swiss francs) already paid by Mr Lobello, which shall be retained by the Court of Arbitration for Sport.
4.) Each party shall bear its own legal and other costs.
5.) All other or further claims are dismissed.
