CAS 1995/141 Anne Chagnaud vs FINA
TAS 95/141 C. / Fédération Internationale de Natation Amateur (FINA)
- Dopage d'une nageuse (étiléfrine)
- Disqualification et suspension de deux ans
- Responsabilité objective de la nageuse même en l'absence de faute
- Prise en considération de circonstances atténuantes
1. Selon le règlement de la FINA, la seule présence d'une substance interdite, telle que l'étiléfrine, dans le corps d'une athlète constitue une infraction, entraînant une suspension automatique de deux ans.
2. Le fait que la nageuse n'ait pas eu l'intention de se doper et qu'elle ait été dopée à son insu ne peut remettre en cause sa disqualification.
3. C'est au niveau de la sanction disciplinaire (suspension de l'athlète ayant subi un contrôle positif) que les éléments subjectifs de chaque cas doivent être pris en considération. Le principe de présomption de culpabilité de l'athlète doit demeurer, mais, par contre, l'athlète doit avoir la possibilité de renverser cette présomption en apportant une preuve libératoire.
FACTS
Anne Chagnaud, the athlete, appeals before the Court of Arbitration for Sport (CAS) against the decision, dated July 27, 1995, of the FINA Executive Office.
History
On January 28, 1995, the athlete provided a sample for an in-competition doping test. The sample tested positive for the prohibited substance etilefrine. Her trainer had given her a capsule of effertil which contained the prohibited substance, together with her nourishment. The French Swimming Federation (FFN) disciplinary body didn't sanction the athlete in her decision of July 7, 1995. In their view it had been impossible for the athlete to have known she ingested a prohibited substance.
The International Swimming Federation (FINA) Executive Office didn't agree with this decision and sanctioned the athlete with a period of ineligibility of two years.
On August 10, 1995, the athlete submitted a declaration of appeal before the CAS. But FINA had made a mistake in her decision of July 27, 1995, about where she could appeal. She could appeal to the FINA's Board. On September 1995 the athlete appealed to the FINA's Board against the decision of July 27, 1995, by the FINA Executive Office. The appeal was rejected because the panel regards the positive test as sufficient to establish the violation.
Submissions athlete
The athlete criticizes the system of responsibility without fault. Even though she does not contest the result of the tests, she however argues that the alleged substance was not substantial enough to improve her performance. Besides that she argues that her penalty is unjust, since she was doped without her knowledge by her trainer and she had no intention of consuming capsules of effortil (containing etilefrine), the athlete insists on the disproportionate nature of the penalty.
However the court concludes that the testimonies of her trainer did not permit to establish if he had acted without her knowing consuming the prohibited substance. However, in view of the facts of the brief, the court considers that the penalty pronounced against the appellant is not proportionate to the circumstance of the case. In view of what comes before and in application of the principle of proportionality, the court considers that the fault of the appellant is not sufficiently grave for a period of ineligibility lasting two years. The penalty will last till the day of this hearing, the period from January 28, 1995 through march 12, 1996, which is in corresponds to the guilt of the athlete and is consequently sufficient.
Decision
- The decision in partially upheld.
- The decision of suspension pronounced by FINA against the appellant on October 21, 1995 is terminated immediately.
- The decision is rendered without cost, except for the fee of 500 Swiss francs claimed by CAS.
- FINA will contribute 1,500 Swiss francs to the legal fees of the appellant.
[The attached file contains the French text and an unauthorized English translation]
