CAS 96/150 Scott Alexander Volkers vs FINA
TAS 96/150 Volkers/FINA
CAS 95/150 V. / Fédération Internationale de Natation Amateur (FINA)
- Doping of a swimmer (dextropropoxyphene)
- Suspension of the coach for 2 years
- Strict liability principle
- Consideration of mitigating circumstances
1. Pursuant to the FINA Rules, the strict liability principle is applicable in the case of a coach giving a banned substance to an athlete. The coach's act (in giving the competitor a prohibited substance) is the material and operative cause of the offence. The general ban of doping is wide enough to encompass such acts, even if they lack the subjective element of intent.
2. The Court of Arbitration for Sport has the power to review and to vary a sanction involving suspension taken by the FINA authorities.
3. In deciding the length of a suspension, it is necessary to take into account the circumstances and, in particular, the subjective elements of each case.
On February 20, 1996 the FINA Executive suspended Mr. Scott Alexander Volkers, the appellant, from all swimming activities for a period of two years commencing on December 1, 1995 which upon the appellants' appeal to the FINA Bureau was reduced on April 26, 1996 to one year.
Miss Samantha Riley, a swimmer coached by the appellant, tested positive for the prohibited substance propoxyphene metabolite in a doping test conducted after the World Swimming Short Course Championships held in Rio de Janeiro, in November and December 1995. The suspension was imposed on findings made as to how Miss Riley came to have the prohibited substance in her body. Mr. Volkers admitted having given a di-gesic pill to her in circumstances which the FINA Executive held to amount to negligence.
On May 16, 1996 the appellant appealed FINA's decisions to the Court of Arbitration for Sport (CAS). The CAS affirms FINA's findings as to the appellant's guilt and the sanction
imposed taking into account all the circumstances in which he committed the offence. The CAS considers that infractions of the FINA's rules, such as that of the appellant, must be met with adequate sanctions to punish the offender, and to discourage others. The appellants' conduct fell far below the standard of care and vigilance required of him in his professional duty as a swimming coach.
The effect of the appellants' suspension has been to impede him in his career by disqualifying him from taking part in international events for almost seven months.The appellants' negligence has damaged his international reputation and the shadow of the finding will continue to hang over him for the remainder of his career. Not only the appellant damaged his own career by his actions but also endangered the careers of those in his charge. Propoxyphene metabolite is not considered to enhance the performance of athletes and the appellant was found to have administered it to Miss Riley without actual knowledge of what he was doing. The appellant was strictly liable for the offence he committed. Upon being asked to explain the facts of the matter the appellant readily admitted that he had given the banned substance to Miss Riley, albeit mistakenly. Until the FINA's findings the appellant was a man with an impeccable professional reputation.
The CAS considers that the appellant has been properly sanctioned by suspension, however taking into account the special facts of this case, in particular the state of mind FINA found the appellant to have had, and the mitigation which has been put forward on his behalf, it has been decided the suspension shall be commuted to seven months ending on June 30, 1996.
The shortening of the appellants' suspension detracts no liability from him. The appellants' appeal has been successful only in part, as to the sentence, which has been reduced because of very special circumstances.
The Court of Arbitration for Sport decides:
1.) Upholds the decisions of the FINA Executive of February 20, 1996 and the FINA Bureau of April 26, 1996 as to the issue of the Appellant's guilt.
2.) Declares that the Appeal is upheld in part, as to sanction. Accordingly the Appellant's suspension shall be commuted to a period of seven months ending on June 30, 1996.
