CAS 2004/A/714 F. v. International Olympic Committee (IOC)
Related case:
IOC 2004 IOC vs Robert Fazekas
August 24, 2004
- Athletics
- Olympic Games
- Failure to submit to sample collection
- Validity of the sample collection procedure
- Doping offence
1. The presence of two witnesses (instead of one) cannot be invoked as a circumstance invalidating the entire doping sample collection procedure. According to the Rules in force, the sample collection cannot take place without the testimony of at least a witness, but the presence of two witnesses is not prohibited and is not a reason for the invalidity of the procedure. In the same way, no rule provides for the presence of a representative of the athlete at the moment the athlete passes the sample. As a result, the fact that no representative assisted the Athlete while passing the urine cannot be invoked as an irregularity affecting the validity of the sample collection procedure.
2. The athlete’s failure to provide a full urine sample cannot be excused by an alleged ignorance or inapplicability of the anti-doping rules in force at the Athens Games. It is undisputed that a full sample of 75ml was not provided. The IOC can therefore be held as having proved that a failure to submit to sample collection has occurred. The burden to prove that a compelling justification for such failure existed lies on the athlete: the “aggressive” conduct of the doping control staff resulting in a “psychological trauma” during the doping control procedure justifying the production of an insufficient sample, has not been established, and cannot be invoked as an excuse not to continue the sample collection procedure.
3. When no compelling justification for failing to submit to doping control exists, the Athlete has therefore committed an anti-doping rule infringement.
Mr. Robert Fazekas is a Hungarian Athlete competing in the men’s discus throw event at the Athens 2004 Olympic Games.
On 24 August 2004 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after he refused or failed to provide a sample for doping control. After notification the Athlete filed a statement in his defence and was heard for the IOC Disciplinary Commission.
Despite several attempts the Athlete could provide on 24 August 2004 only a (partial) sample of 25 ml of urine. The athlete stated that he decided to finish the procedure because he did not feel well. The athlete was given the opportunity to continue the sample collection at the polyclinic where medical treatment could be given to him but the athlete did not accept.
The IOC Disciplinary Commission unanimously concluded that the Athlete Mr Robert Fazenas had committed a doping offence pursuant to Article 2.3 of the Rules in that he had refused or failed to submit to sample collection.
On 24 August the IOC Executive Board, as recommended by the IOC Disciplinary Commission, decides that the Athlete:
1.) is disqualified from the men’s discus throw event, where he had placed first;
2.) is not awarded a gold medal or diploma;
3.) is excluded from the Games of the XXVIII Olympiad in Athens in 2004; and
4.) shall have his Olympic identity and accreditation card withdrawn.
5.) The International Association of Athletics Federations (IAAF) is requested to modify the results of the above-noted event accordingly and to consider any further action within its own competence.
6.) This decision shall enter into force immediately.
Hereafter in September 2004 the Athlete Appealed the IOC decision of 24 August 2004 with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision in all counts and to award the gold medal to the Athlete for placing first.
The Athlete submited that he “rescinded” his consent to go to the Polyclinic when it became clear that the same two witnesses (that attended to the unsuccessful attempts at the Stadium) would accompany him; and also because he had been reassured (by an unnamed woman) that the partial sample was sufficient for testing.
The CAS Panel rules that the submissions of the Athlee cannot be accepted. The Panel, in fact, confirms that, pursuant to the applicable guidelines, the doping control officers present at the doping control station had the right to accompany the Athlete to the Village Polyclinic.
In addition, the Panel remarks that the Athlete at the hearing admitted that at the end of the procedure he was rather calm, and that he was perfectly aware of the consequences of his decision not to go to the Village Polyclinic. Finally, the Panel stresses that the Athlete could not rely on any declaration, by whomsoever made, as to the sufficiency of 25ml for testing, while it was all the way clear that he had to provide a quantity of 75ml of urine.
In the light of the foregoing, the Panel decides on 31 March 2005 that the appeal has to be dismissed and the IOC Decision of 24 August 2004 has to be confirmed.
