CAS (Oceania registry) A 2/99 Australian Olympic Committee (AOC) and Amateur Boxing Union of Australia Inc (ABUA) / E.
Boxing
Doping (terbutaline)
Obligation to declare the use of such substance
Good faith of the athlete
1. Terbutaline is a bronchodilator and, according to the IOC list of prohibited substances, is permitted by inhaler only when its use is previously certified in writing by a respiratory or team physician to the relevant medical authority. It is clear that there cannot be more than one relevant medical authority. Further, the athlete must know, or be able readily to ascertain, to whom the giving of such certification will operate so as to take Terbutaline off the prohibited substance list. It cannot be left to the AOC in an action against an athlete and, a fortiori, after the event, to say who it might in its discretion have treated as satisfying the description.
2. If one requires of athletes that they maintain enquiries, it is surely the correlative duty of all those sporting bodies involved in the important fight against drugs in sport to likewise keep up to date and to ensure the steady dissemination to athletes and their coaches - not just of information - but of information which is unambiguously correct. There is a common cause against drugs in sport and actions directed towards that end are necessarily well intentioned. However, little can be achieved in a fog of uncertainty. If sporting bodies do not provide the right information, then it is quite unfair that athletes alone should bear the significant consequences.
In November 1998 the Australian Athlete E. tested positive for the prohibited substance terbutaline which he used as prescribed medication Bricanyl for his asthma.
The Athlete believed that notification on the drug testing form of asthma medication being taken would suffice. This view was consistent with the view of the ABUA communicated in October 1998 to its State Officials. It was not disputed that the Athlete did not know that Terbutaline was a prohibited substance. The sole question for the CAS Panel is whether the Athlete has established, on the balance of probabilities, that not only did he not suspect that it was a prohibited substance, but that he had, as on 1 November 1998, no reasonable grounds to know or suspect that Terbutaline was a prohibited substance.
The Sole Arbitrator finds that the Athlete has established on the balance of probabilities that “extenuating circumstances” as defined exist. In particular the evidence did not establish that, prior to November 1998, Terbutaline was listed as a component of Bricanyl either on the packaging or in an accompanying leaflet.
If sporting bodies do not provide the right information, then it seems to the arbitrator to be quite unfair that Athletes alone should bear the significant consequences.
Therefore the Court of Arbitration for Sport decides on 2 September 1999 that:
1.) A warning is imposed on the Respondent E.
2.) The Award should be made public.
