CAS 1998_208 N., J., Y., W. vs FINA

CAS 98/208 N., J., Y., W. / Fédération Internationale de Natation (FINA)

  • Swimming
  • Doping (Triamterene)
  • (Non-) discrimination
  • Burden of proof
  • Strict liability

1. The burden of proof lay upon FINA to establish that an offence had been committed. This flows from the language of the doping control provisions as well as general principles of Swiss Law. The presumption of innocence operates in the athlete’s favour until FINA discharged that burden. The standard of proof required of FINA is high: less than criminal standard, but more than the ordinary civil standard.

2. It is the presence of a prohibited substance in a competitor's bodily fluid which constitutes the offence under the FINA rules, irrespective of whether or not the competitor intended to ingest the prohibited substance.

3. If the presence of a prohibited substance is established to the high degree of satisfaction required by the seriousness of the allegation, then the burden of proof shifts to the competitor to show why the maximum sanction should not be imposed. It is only at the level of sanction, not of finding of innocence or guilt, that the concept of shifting burden becomes relevant at all. And it is only at this juncture that questions of intent become relevant.


In January 1998 the International Swimming Federation (FINA) has reported anti-doping rule violations against the four Chinese Athlete’s N., J. Y. and W after their A and B samples tested positive for the prohibited substance triamterene.

Consequently and on 24 July 1998 the FINA Doping Panel decided to impose a 2 year period of ineligibility on the four Athletes. Hereafter in August 1998 the Athletes appealed the FINA decision of 24 July 1998 with the Court of Aribitration for Sport (CAS).

The CAS Panel finds that there was no evidence that ingestion of six tablets a day (paying all due regard to the contention that Actovegin tablets are not chemically formulated and can vary from tablet to tablet) since 22 December 1997 (the Athletes unchallenged evidence as to their own consumption) would produce the results shown in the “A” and “B” samples. The Athletes accordingly failed to discharge the burden that lies upon them.

In reaching the conclusion that the offence was committed, and that the Athletes had not discharged the burden which lay upon them to mitigate the maximum sanction of two years, the Panel have borne in mind that all the swimmers have denied on affidavit that they took Triamterene. The Panel has treated that evidence as if it had been given on oath. However, it is regrettable that the currency of such denial is devalued by the fact that it is the common coin of the guilty as well as of the innocent.

The Court of Arbitration for Sport decides on 22 December 1998:

1.) The appeal filed by the Athletes N., J., Y., W. on 18 August 1998 is dismissed.

2.) The decision issued by the FINA Doping Panel on 24 July 1998 is confirmed.

(...)

Original document

Parameters

Legal Source
CAS Appeal Awards
Date
22 December 1998
Arbitrator
Beloff, Michael J.
Oswald, Denis
Original Source
Court of Arbitration for Sport (CAS)
Country
China
Language
English
ADRV
Adverse Analytical Finding / presence
Legal Terms
Burdens and standards of proof
Rules & regulations International Sports Federations
Strict liability
Sport/IFs
Swimming (FINA) - World Aquatics
Laboratories
Lausanne, Switzerland: Laboratoire Suisse d’Analyse du Dopage
Sydney, Australia: Australian Sports Drug Testing Laboratory (ASDTL) - Sydney (AUS)
Analytical aspects
B sample analysis
Reliability of the testing method / testing result
Doping classes
S5. Diuretics and Other Masking Agents
Substances
Triamterene
Various
Contamination
Supplements
Document type
Pdf file
Date generated
16 September 2016
Date of last modification
7 August 2023
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