CAS 2014/A/2 Drug Free Sport New Zealand v. Kris Gemmell
Related cases:
- ST 2013_08 DFSNZ vs Kris Gemmell
February 12, 2014 - ST 2015_01 Kris Gemmell vs DFSNZ
January 26, 2015
In December 2013 Drug Free Sport New Zealand (DFSNZ) reported an anti-doping rule violation against the Athlete Kris Gemmell for 3 Whereabouts Filing Failures within an 18 month period. However on 12 February 2014 the Sports Tribunal of New Zealand dismissed the charges against the Athlete.
In first instance the Tribunal decided that DFSNZ had not established the First Whereabouts Failure had occurred because DCO had not done what was reasonable in the circumstances to locate the Athlete. As the First Whereabouts Failure was not established, the Tribunal did not determine whether the Second or Third Whereabouts Failures had occurred.
Hereafter in March 2014 DFSNZ appealed the Decision with the Court of Arbitration for Sport. The Panel assessed the following issues:
1.) Did the Tribunal err in its interpretation of and application of Article 11.4.3(c) of the IST?
2.) Reasonableness of Steps Taken to Locate the Athlete?
3.) Did the Athlete fail to be “present and available”?
4.) Second Whereabouts Failure
5.) Third Whereabouts Failures
6.) Does the lex mitior principle apply?
7.) Were any of the three alleged breaches/failures “inexcusable”?
8.) What is the appropriate sanction?
The Panel concludes that Mr Gemmell has committed an ADRV under Rule 3.4 of the SADR and that the lex mitior rule has no application. The Panel deems that the Athlete was not trying to avoid the testing regime on any of three occasions which constituted the missed tests in this matter.
The Panel finds that there was some excuse for the first and third missed tests whilst the second missed test (or filing failure) was inexcusable. The Athlete was undoubtedly careless in respect of the first and third missed tests even though, as the Panel has found, it was not “inexcusable” for him to miss those tests.
Therefore the Court of Arbitration for Sport decides on 1 December 2014 that:
- The appeal filed by DFSNZ is upheld and the decision of the STNZ is set aside.
- The period of ineligibility will last 15 months and commences on February 12, 2014.
- Each party shall bear it's own costs and other expenses in order with this arbitration.
- All other motions or requests for relief are dismissed.
