CAS 2015/A/4163 Niksa Dobud v. Fédération Internationale de Natation (FINA)
Related case:
FINA 2015 FINA vs Niksa Dobud
July 15, 2015
- Aquatics (water polo)
- Doping (evading sample collection)
- Standard of proof
- Motives to evade a test
- Possibility of reducing the applicable sanction
1. The standard of proof is that of comfortable satisfaction. Comfortable satisfaction is less than beyond reasonable doubt and more than on a balance of probabilities. The less probable the matter sought to be proved to that standard, the more cogent must be the evidence to prove it.
2. The regulations governing test evasion do not require the governing body to establish why an athlete may have evaded a test; only that he had in fact done so.
3. There is no applicable provision of the World Anti-Doping Code as embodied in the FINA regulations for reducing a penalty for evasion of doping controls; a CAS panel is bound by to apply the code requirements if it finds that the standards for the violation have been met.
On 15 July 2015 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Athlete Niksa Dobud after his failure to submit to a doping test.
Hereafter in August 2015 the Athlete appealed the FINA decision of 15 July 2015 with the Court of Arbitration for Sport (CAS).
The Athlete asserted that this was a simple case of mistaken identity. The man who came to the door was not him, but his wife’s brother. The Athlete argued that the DCO and his assistant DCO had only previously tested him on a single occasion many months before and then in the company of other members of the team. The DCO had not been properly equipped with material to assist in the identification.
FINA asserts that the DCO, an experienced professional, and his assistant DCO correctly identified the man who came to the door as the Athlete. They saw him twice, not once as the Athlete alleges and had indeed tested him previously. His wife’s brother looked nothing like the Athlete or indeed like an athlete.
The CAS Panel notes that the key issue in this appeal is: Was the male person the DCO and his assistant DCO saw on the morning of 21 March 2015 in the Athlete’s flat at the address indicated in the Athlete's whereabouts, the Athlete (the DCO's version) or the brother of his wife (the Athlete's version)?
If it was the Athlete, then it follows from what transpired thereafter that he evaded a test. If it was his wife’s brother then - at the highest - the Athlete missed a test.
Considering the evidence in this case the Panel is constrained to prefer to accept the evidence of the DCO and his assistant DCO about evasion of doping controls. The Panel is bound by the provisions of the World Anti-Doping Code as embodied in the FINA regulations and there is no applicable provision for reducing a penalty for evasion of doping controls; the Panel is bound by to apply the code requirements if it finds that the standards for the violation have been met.
Therefore the Court of Arbitration for Sport decides on 15 January 2016 that:
1.) The appeal filed by Mr Niksa Dobud against the decision rendered by the FINA Doping Panel on 15 July 2015 is dismissed.
2.) The decision rendered by the FINA Doping Panel on 15 July 2015 is confirmed.
3.) The present arbitration procedure shall be free, except for the CAS Court Office fee of CHF 1,000 (one thousand Swiss francs), which has already been paid by Mr Niksa Dobud and is retained by the CAS.
4.) Each party shall bear his/its own costs incurred m connection with the present proceedings.
5.) All other motions or prayers for relief are dismissed.
