CAS 2015/A/4063 World Anti-Doping Agency (WADA) v. Czech Anti-Doping Committee (CADC) & Remigius Machura Jr.
Athletics (shot-put); American Football
Doping (human growth hormone – somatotrophin)
Notion of appealable decision
Conditions to be fulfilled by a retired athlete subject to a period of ineligibility when returning to competition
Lis pendens
Intent in cases of refusal to submit to doping control
Sanction in case of a second anti-doping violation
1. In principle, for a communication to be a decision, this communication must contain a ruling, whereby the body issuing the decision intends to affect the legal situation of the addressee of the decision or other parties. The form of the communication has no relevance to determine whether there exists a decision or not. A letter by which an anti-doping organisation intends to affect the legal situation of an athlete by informing him that a previous letter by which the athlete was informed that he was being charged with an anti-doping violation was withdrawn and explains that the reason for withdrawal is that the test should not have taken place is to be qualified as a decision.
2. An athlete who retires from sport while subject to a period of ineligibility shall not resume competing in international events or national events until he has given prior written notice to his/her national anti-doping authority and to his/her International Federation of his/her intent to resume competing and has made him/herself available for testing for that notice period. The athlete therefore remains subjected to the out-of-competition testing authority of the national anti-doping authority throughout the whole notice period.
3. The principle of lis pendens has been defined as a situation in which parallel proceedings, involving the same parties and the same cause of action, are continuing in two different states at the same time. The principle of lis pendens is however not applicable in a matter where, although the parties are the same, the cause of action of the two proceedings clearly differ from each other.
4. A refusal to submit to sample collection is presumed to have been committed intentionally and the burden of proving that the violation was not committed intentionally lies with the athlete. A refusal to submit to sample collection cannot be considered to have happened unintentionally when, after a first notification of the obligation to comply with out-of-competition control by the DCO in front of his house, the athlete returns into his/her house and fails to respond to repeated active attempts by the DCO to re-establish the contact.
5. In case of a second anti-doping rule violation, the period of ineligibility shall be the greater of a) six months, b) one-half of the period of ineligibility imposed for the first anti-doping rule violation without taking into account any reduction under Article 10.6, or c) two times the period of ineligibility otherwise applicable to the second anti-doping rule violation treated as if it were a first violation, without taking into account any reduction under Article 10.6. In case the period of ineligibility to be imposed is in principle four years, the greater of the abovementioned options is two times the period of ineligibility otherwise applicable, i.e. an eight year period of ineligibility.
On 18 February 2015 the Czech Anti-Doping Committee (ADV ČR), decided to allow the Athlete Remigius Machura to return to competitive activity without restriction as from 1 March 2015.
Previously the Athlete was involved in anti-doping proceedings:
- In 2010 the Athlete tested positive for the use of human growth hormone (somatotrophin) and a 2 year period of ineligibility was imposed on 23 September 2010, starting from 12 August 2010 until August 2012.
- In February 2011 the Athlete terminated his competitive sports activity and returned to his competitive sports activity in April 2013.
Because the Athlete failed to notify his return to competition het failed to subject himself for the requisitie period of time prior to such return. The Athlete was fined and he was banned from participating in the Czech league of American Football for the remainder of 2013.
- The ADV ČR appealed this decision and on 21 November 2013 the Arbitration Board of the Czech Olympic Committee decided that the Athlete must subject himself to af further 545 days of out-of-competition testing before returning to competition.
- On 5 February 2015 the ADV ČR informed the Athlete that he was included in the National Registered Testing Pool.
- On 11 February 2015 the Athlete refused to submit to doping control at his house.
- On 18 February the ADV ČR ruled that because of a breach of intern procedural rules the out-of-competition test on 11 February 2011 at the Athlete’s house should not take place.
In May 2015 WADA appealed the ADV ČR decision with the Court of Arbitration for Sport (CAS). WADA requested the CAS Sole Arbitrator to set aside the ADV ČR decision of 18 February 2015 and to impose a 8 year period of ineligibility on the Athlete. WADA argued that the Athlete was subject to out-of-competition testing and intentionally had evaded and refused to submit to sample collection.
Considering the evidence the Sole Arbitrator concludes that:
1.) The ADV ČR had out-of-competition testing authority over the Athlete on 11 February 2015.
2.) The ADV ČR was in no way prevented from continuing the prosecution of the Athlete in respect of the alleged refusal or failure to submit to sample collection and should have continued the prosecution.
3.) The Athlete committed an anti-doping rule violation by refusing to submit to sample collection.
4.) An eight year period of ineligibility is to be imposed on the Athlete, commencing upon the issuance of the present arbitral award.
Therefore the Court of Arbitration for Sport decides on 5 November 2015 that:
1.) The appeal filed on 11 May 2015 by the World Anti-Doping Agency against the Decision issued on 18 February 2015 by the Director of the Czech Anti-Doping Committee is upheld.
2.) The Decision issued on 18 February 2015 by the Director of the Czech Anti-Doping Committee is set aside.
3.) The Athlete Mr Remigius Machura is sanctioned with an 8 year period of ineligibility starting from the date of notification of the present award.
4.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne in their entirety by the Czech Anti-Doping Committee (ADV ČR).
5.) The ADV ČR shall bear its own costs and is ordered to pay to the World Anti-Doping Agency the amount of CHF 2,500 (two thousand five hundred Swiss Francs) as a contribution towards the legal fees and other expenses incurred in connection with these arbitration proceedings.
6.) Mr Remigius Machura shall bear his own costs.
7.) All other prayers or requests for relief are dismissed.
