TAS 97/180, P. & consorts / Fédération Internationale de Natation (FINA)
- Swimming
- Doping (metandienone)
- Burden of proof
1. According to FINA Rules, only the presence of a prohibited substance, such as steroids, constitutes a violation and results in a suspension for a minimum of four years plus a retroactive sanction resulting in the cancellation of any results obtained during the competitions which took place over a period of six months before the violation occurred. However, the sanction may be mitigated in proportion to the circumstances in the particular case.
2. As consequence of testing positive in a doping control, competitors have the onus to reverse the burden of proof. In the case of exculpatory evidence, strict demands need to be made for the evidence showing absence of guilt or weak guilt of the sanctioned athletes.
In October 1997 the International Swimming Federation (FINA) reported an anti-doping rule violation against the 3 Russian Athletes K., M. and P. after their samples tested positive for the prohibited substance Metandienone.
All 3 Athletes were members of the Russian Swimming team and as a consequence of the positive tests criminal investigations were conducted in Russia. Another Russian Athlete T. admitted that she had spiked the food of the Athletes with the prohibited substance because of her frustration about her exclusion of the national swimming team.
Considering the burden of proof the FINA Anti-Doping Commission found that the Athletes could not explain how the prohibited substance came into their body and could not reverse the burden of proof with their statements and evidence that the violation was committed intentionally.
On 24 December 1997 the FINA Anti-Doping Commission decided to impose a 2 year period of ineligibility on the Athletes K., M. and P.
In December 1997 the Court of Arbitration (CAS) dismissed the request of the three Russian Athlete to lift the suspension ordered by the FINA for their participation in the World Championships in January 1998.
Hereafter in February 1998 the three Russian Athletes appealed the FINA decision of 24 December 1997 with CAS.
The Athlete requested the Panel to set aside the decision of the FINA Anti-Doping Commission and to impose no sanction on the Athletes or a sanction reduced to a 6 month period of ineligibility.
The CAS Panel did not accept the evidence and statements produced by the Athletes about the Russian criminal investigation and the admission of the Athlete T. that she had spiked the food of the Athletes with the substance 13 days before the doping test.
The Panel also upholds the FINA conclusion that the Athletes failed to explain how the substance came unintentionally into their body. Considering the circumstances in this case the Panel holds that the imposed sanction wasn’t disproportional.
Therefore on 14 January 1999 the Court of Arbitration for Sport decides to dismiss the appeal of the Athletes K., M. and P. and confirms the decision of 16 December 1997 of the FINA Anti-Doping Commission.
