TAS 2013/A/3347 World Anti-Doping Agency (WADA) v. Polish Olympic Committee & Przeniyslaw Koterba
CAS 2013/A/3347 World Anti-Doping Agency (WADA) v. Polish Olympic Committee (POC) & Przemyslaw Koterba
- Weightlifting
- Doping (amphetamine)
- Non-participation of the respondent to an appeal proceeding
- Factors to be considered in reducing the period of ineligibility under Article 10.5.2 ADR
- Balance of probability as the applicable standard of proof
- Period of ineligibility and reasons of “fairness” for backdating the starting date of the suspension.
1. The participation of the respondent is mandatory to an appeal proceeding. Otherwise the appeal would be inadmissible due to the absence of a valid legal procedural-relationship between the parties to the proceedings. Especially in doping proceedings that involve – as does the case at hand – the magnification of the sanction imposed on the athlete, it would be procedurally unacceptable to make a decision on the merits if the athlete concerned has not been properly included in the proceedings; at the very least, he/she should receive knowledge of the proceedings in such a way that enables the person to legally defend him/herself. Only if the respondent had knowledge of the appeal proceedings and the knowledge he had was of such a nature as to enable him to defend himself and his legal interests is it possible to conduct the proceedings in his absence.
2. For purposes of assessing the athlete’s or other person’s fault under Article 10.5.2 (no significant fault or negligence) of the relevant Anti-Doping Regulations (ADR), the evidence considered must be specific and relevant to explain the athlete’s or other person’s departure from the expected standard of behaviour. Thus, for example the fact that an athlete would lose the opportunity to earn large sums of money during a period of ineligibility or the fact that the athlete only has a short time left in his or her career or the timing of the sporting calendar would not be relevant factors to be considered in reducing the period of ineligibility under this article.
3. The standard of proof for anti-doping rule violations is expressed in Article 3.1 ADR. Where the rules place the burden of proof upon the athlete or other person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be one of a balance of probability, except as provided in Articles 10.4 and 10.6 where the athlete must satisfy a higher burden of proof. It follows that the athlete has to establish how the prohibited substance entered his body by a balance of probability. According to CAS case law, the balance of probability means that the athlete has to convince the adjudicating authority that the occurrence of the circumstances on which his/her defence is based is more probable than the non-occurrence or than other possible explanations of the charges pertaining to doping. Mere speculations, unsupported by any evidence of any kind cannot pass the balance of probability test.
4. The strict application of Article 10.9 ADR dealing with the starting date of the period of ineligibility could lead to apparently unfair situations: an athlete, for instance, could serve his/her sanction years after the adverse analytical finding; or, having already served a portion of a sanction following a provisional suspension stayed or on the basis of a first instance decision, find him/herself in the situation of serving, some time thereafter, a second part of the sanction – which actually appears to be a second sanction. The former situation was underlined by various CAS panels to be a reason of “fairness” for backdating the starting date of the suspension.
On May 15 2012 the Anti-Doping Disciplinary Commission of the Polish Weightlifting Federation decided to impose a 6 month period of ineligibility on the Athlete after he tested positive for the prohibited substance Amphetamine.
Following the appeled filed by the World Anti-Doping Agency (WADA) the Polish Olympic Committee (CAS POC) decided on 3 September 2013 to uphold the sanction of 2 months.
Hereafter in October 2013 WADA appealed the decision of CAS POC with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a sanction of 2 years.
WADA contended that the Athlete failed to establish that he had he had acted with No Fault or Negligence. WADA did not accept the Athlete's explanation that it was most likely that his drink had been spiked during a party.
In view of the Athlete's absentia the Sole Arbitrator is comfortably satisfied that the Athlete had knowledge of the appeal proceedings and the knowledge he had was of such a nature as to enable him to defend himself and his legal interests.
The Sole Arbitrator determines that the Athlete had committed an anti-doping rule violation and that he failed to demonstrate on the balance of probability that the Amphetamine entered his body during the party without his intent.
Therefore the Court of Arbitration for Sport decides on 22 December 2014:
1.) The appeal filed by WADA on 11 October 2013 against the decision of the Court of Arbitration for Sport of the Polish Olympic Committee issued on 3 September 2013 is upheld.
2.) The decision of the Court of Arbitration for Sport of the Polish Olympic Committee issued on 3 September is set aside.
3.) Przemysław Koterba is sanctioned with a two-year period of ineligibility, the commencement date of which is backdated to 1 January 2013. The period of ineligibility already served by Przemysław Koterba in connection with his anti-doping violation of 26 May 2012 shall be credited against the two-year period of ineligibility.
4.) All competitive results obtained by Przemysław Koterba from 26 May 2012, including the results in the Polish National Senior Championships, through the date of expiry of the two-year period of ineligibility shall be disqualified with all the resulting consequences including forfeiture of any medals, points and prices.
(…)
7.) All other motions or prayers for relief are dismissed.
