TAS 96/156 Jessica K. Foschi vs FINA
Facts
Jessica Foschi, appellant, appeals against the decision of the executive committee The FINA, respondent, dated June 21, 1996. The Appellant had provided samples for doping control purposes on August 4, 1995, in a post event doping control. The samples (A and B) showed the presence a metabolite of the prohibited substance mesterolone.
History
Appellant, her parents and her coach consistently denied having knowingly taken or given the prohibited substance. They even underwent a polygraph examination. The father of the appellant hired a private investigator to find out if an intentional act by another person (sabotage) could explain the positive test. No conclusive results were produced.
On October 30, 1995, appellant appeared before the USS's (United States Swimming) National Board of Review and they imposed a sanction of two year probation from the date of decision November 2, 1995. Appellant appealed against this decision but the majority of the USS Board found that Appellant didn't rebut the presumption of doping. It imposed a two year suspension on Appellant starting August 4, 1995.
Appellant invoked her right to make a final appeal to the American Arbitration Association (AAA). The hearing was held on February 29 and March 1, 1996. This panel reinstates the appellant because the imposed sanctions violated fundamental fairness and were arbitrary and capricious.
The FINA executive held a hearing on June 20, 1996, in Lausanne (Switzerland). The FINA executive decision, dated June 21, 1996, was a two years suspension in accordance with the FINA rules beginning on August 4, 1995.
Appellant appeals against the decision of the FINA executive but in a meeting, without notice to or the presence of the appellant, they unanimously rejected the appeal.
On September 3, 1996, appellant filed a declaration of appeal against the decision of the FINA Bureau with the CAS in Lausanne, which was granted.
Submissions appellant:
- The samples were never retested.
- There were irregularities in the urine collection process.
- There had been inadequate security at the meet on August 4, 1995, enabling a third party to add something containing mesterolone to her food or drink without her knowledge.
- Appellant made the suggestion that the consumption of chicken meat could have caused the positive test.
- The FINA Executive violated it's obligation to provide appellant a fair hearing.
- The appeal proceedings before the FINA Bureau did not comfort with any concept of any due process, fundamental fairness or natural justice.
- The decision issued by the FINA Executive did not comfort with any concept of any due process, fundamental fairness or natural justice.
- Her performance was not enhanced which should require dismissal of her case.
- The refusal to permit an independent laboratory to test the samples violated the right to a fair hearing. By this the Appellant can't question the findings and suggest a cover up for a laboratory mistake (the test of the B-sample was aborted and re-run).
submissions respondent:
- The doping test performed was correct and proper.
- There is no evidence that the results of her test have been wrong or tampered with by the UCLA laboratory.
- The burden of establishing how the prohibited substance had entered the body rests entirely on the athlete.
- The strict liability principle is not put in question.
- The specific substance mesterolone doesn't allow a reduction of the sentence.
- Polygraph test are not accepted as evidence.
Submissions Panel:
The panel concludes that the performed test procedures were correct however there can be a flexibility in the sanction within the FINA rules. The suggestion that the positive result came from eating chicken is pure speculation.
The consumption of mesterolone knowingly at a time when appellant knew that it was likely to be tested and at a time when the substance would not enhance performance considers a lesser degree of guilt.
Conduct of the parties:
- Appellant has shown herself to be co-operative and has taken nearly and perhaps even every, conceivable step possible in order to try and prove that she is without fault.
- Respondent's conduct has lacked correctness in various ways.
Decision
- The decision of the FINA Executive Office of June 21, 1996, confirmed by the FINA Bureau on August 3, 1996 is reversed.
- The appellant is found to have committed an offence and is suspended for a period of six months from August 4, 1195 to February 3, 1996.
- The respondent has to pay the appellant as contribution towards her expenses 15,000 Swiss Francs.
