CAS 2013/A/3170 Omar Andres Pinzon Garcia v. Federación Colombiana de Natación (FECNA)
- Aquatics (swimming)
- Doping (cocaine)
- Absence of and deficiencies in the external and internal chains of custody
- Failure to submit the laboratory’s Standard Operating Procedure
- Shift of the burden of proof
1. Complete absence of an external chain of custody and multiple deficiencies in the internal chain of custody affect in a very material way the evaluation of a laboratory’s Adverse Analytical Finding (AAF). The absence of this information is a breach of the WADA International Standard for Laboratories (ISL).
2. The failure for the anti-doping organisation to duly submit the laboratory’s Standard Operating Procedure (SOP) makes it impossible for the athlete to verify if the laboratory followed its own SOP, as is required under the WADA ISL. Therefore, the presumption that the laboratory has conducted its sample analysis in accordance with the ISL cannot be enforced against the athlete.
3. Due to the breaches of the WADA ISL the laboratory does not have the benefit of the presumption set out in the WADA Code for WADA accredited laboratories and the burden of proof therefore shifts to the anti-doping organisation to prove that the violations in the laboratory did not cause the AAF.
In November 2012 the Colombian Swimming Federation (FECNA) reported an anti-doping rule violation against the Athlete Omar Pinzon after his A and B samples tested positive for the prohibited substance cocaine.
On 5 April 2013 the FECNA Disciplinary Commission decided to impose a 2 year period of ineligibility on the Athlete. Also his appeal was denied by FECNA in April 2012. Hereafter in May 2013 the Athlete appealed his case with the Court of Arbitration for Sport (CAS).
The Athlete contended that there is no documentation or information provided as to where the Athlete' sample was kept.
He asserted that the Laboratory Documentation Package revealed several irregularities and gaps in the Chain of Custody of the Sample and Aliquots within the Lab.
The test method utilized by the Lab to detect the presence of cocaine is not the standard test for cocaine. The results of the Lab are inconsistent with biology. In addition, the Athlete produced the results of a polygraph examination he voluntarily attended.
During the examination, the Athlete denied using any form of cocaine in the last two years and was found to have been answering truthfully.
FECNA declined to attend the hearing based upon self-declared financial exigencies and did not take up the Panel's offer to participate in the hearing by video conference call.
The Panel establishes that the sample collection process was not proven by FECNA and the sample was unaccounted for during a three day time period. There were also two difficulties with the Lab documentation.
First, there is no documentation of what was done with the screening samples after they were aliquoted on 25 November 2012 and the screening analysis of 20 November 2012. There is also no documentation showing the identity of the individuals who prepared the aliquots or the individuals who obtained the aliquot for analysis. The chain of custody of the bottles lacking in proper recording of transfers and storage.
In view of the filed evidence the Panel concludes that there may well have been open Aliquots the possession of which by various Lab personnel is unknown. Therefore, the suggestion that something happened to the urine sample in the Lab is a real possibility. The internal chain of custody, like its external counterpart, breaches the standards.
Therefore the Court of Arbitration for Sport decides on 7 April 2014 that:
1.) The appeal filed by Omar Pinzon on 13 May 2013 is upheld.
2.) The final decision of the FECNA Discipline Commission dated 22 April 2013 confirming its preliminary judgement of first instance dated 5 April 2013 is set aside.
3.) Any results, medals or prize money and diplomas that may have been set aside by the FECNA Disciplinary Commission are to be reinstated.
4.) (…).
5.) (…).
6.) All other motions or prayers for relief are dismissed.
