CAS 95/142 L. / Fédération Internationale de Natation Amateur (FINA)
- Doping of a swimmer (salbutamol)
- Special status of salbutamol in the FINA rules
- Omission to declare the use of such substance to the testing agent
- Damage claim for breach of contract and infringement of personality
1. The FINA Medical Rules provide for the application of the “strict liability” standard as an effective instrument in the fight against doping. The concept of “strict liability”, as it is used in doping cases, does not imply an intentional element. There is no link between sanction and intent.
2. The substance salbutamol has an exceptional status in the FINA doping list: it is not completely banned; its inhalation is explicitly permitted, subject to prior notification to the relevant authorities. Therefore, the mere presence of salbutamol is not conclusive proof of a doping offence.
3. The failure to mention salbutamol in the doping test form may create the assumption that there is a doping offence. In the present case, the swimmer had clearly established that he had suffered from asthma for many years; that from the beginning of his sports career, the relevant medical authorities had been repeatedly informed of his use of medication containing salbutamol; that in prior doping tests, the swimmer had declared his use of salbutamol and been found negative; and that there were no indications that he had taken salbutamol other than by inhalation. These specific and exceptional circumstances justify acceptance of the swimmer's numerous records, reports and notifications about his asthma treatment as a sufficient equivalent to the declaration in the test form. Accordingly, there is no doping offence in this case.
4. Dismissal of the damage claim: FINA did not commit a fault or act in bad faith when it began a doping procedure after salbutamol was identified because no medication containing salbutamol had been declared in the test control form.
In April 1995 the Féderation Internationale de Natation (FINA) has reported an anti-doping rule violation against the Finnish swimmer Petteri Lehtinen after his sample tested positive for the prohibited substance salbutamol.
The Athlete and the Finnish Swimming Association submitted a statement about his asthma, prepared by the doctor who had been treating him, and a copy of the prescription on the basis of which he had purchased his medicine. The national Swimming Association informed FINA that it was not necessary to examine the Athlete's B-sample, because he was regularly taking Ventoline.
Also FINA's Medical Committee stated that the Committee maintained that the use of salbutamol for medicinal purposes was acceptable and it recommended sending the Athlete and the Finnish Swimming Association a “Warning Letter”.
However on 23 June 1995 the FINA Executive decided to impose a 2 year period of ineligibility on the Swimmer.
Hereafter in August 1995 the Swimmer appealed the decision with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel to set aside the decision taken by the FINA Executive and confirmed by the FINA Bureau and, in addition, that the CAS enjoin FINA to pay him damages for a breach of contract, infringement on his personality and for loss of earnings due to the damage caused to his professional activity.
The CAS Panel concludes that the Athlete has not established that he suffered a financial loss nor that a possible loss was caused by the doping procedure. In addition, FINA has not committed any unlawful act by initiating a doping procedure when the Athlete failed to declare his taking of Ventoline on the doping test form.
Furthermore, the FINA Executive and the FINA Bureau did not act in bad faith or abusively when it decided against the Athlete and imposed the sanction provided in the FINA rules. Therefore, the necessary prerequisites to award damages are not present.
Therefore the Court of Arbitration for Sport decides on 14 February 1996:
1.) The appeal by Petteri Lehtinen of 11 August 1995 against the FINA Bureau's decision of 27 July 1995 is upheld.
2.) The decision taken by the FINA Executive on 23 June 1995 and confirmed by the FINA Bureau on 27 July 1995 imposing a two-year suspension on Petteri Lehtinen is quashed.
3.) The damage claims requested by Petteri Lehtinen are rejected.
(...)
6.) The award is immediately enforceable.