TAS 98/214 B. / Fédération Internationale de Judo (FIJ)
Related case:
CAS 1999_A_230 B. vs Fédération Internationale de Judo
December 20, 1999
- Judo
- Doping (nandrolone)
- Extension of a national decision to international level
- CAS Power to investigate
strickt liability of the athlete - Endogenous substance
- Mitigating circumstances
1.) It is imperative that international sports federations have the possibility to revise the decisions of national federations in anti-doping cases. The purpose of the power assigned to the International Federation is in particular to prevent the risk that international competitions are disrupted, in the situation that a national federation doesn’t sanction or sanctions too lenient one of its members, to enable it to participate in an important event or on the basis of an international convention.
2.) In accordance with Article R57 of the Code of Sports Arbitration, CAS reviews the facts and law with full power to investigate. The Court can scrutinize again the facts of the case to pass a new judgement about the case in its entirety. Consequently, given the devolving effect of the appeal, it is not necessary to refer the case back to the respondent authority for a new decision, the CAS award substitutes the contested decision.
Observed in this matter is that, according to a rule known in most legal system, a complete investigation, before a body of appeal which has full power of complete cognition, it can repair the procedural faults of the lower bodies, such as the violation of the right to be heard. Such a procedure is also in accordance with the principle of procedural economy.
3.) Every athletes has the advantage of the presumption of innocence until the presence is established of a prohibited substance in his or her body. According to the constant CAS jurisprudence, the system of strict liability must prevail when sports fairness is at stake. The presence of a prohibited substance in the body of an athlete has two consequences. The first consequence is that the athlete is disqualified from the competition where the anti-doping control took place. This sanction is imposed due to sports fairness towards the other athletes who participated in the competition. The second consequence is that the presence of the prohibited substance involves a presumption of guilt which can be reversed by the athlete.
4.) According to CAS jurisprudence, a fixed tariff system for anti-doping sanctions is not preferable and a more flexible system, which extends over de duration of the suspension, is preferable. Thus, an anti-doping rule of an international federation, providing for a system of fixed sanctions, maybe modulated considering the specific circumstances in each case, provided that this modulation is specifically motivated.
In October 1997 the French Judo Federation, Fédération Française de Judo (FFJ), has reported an anti-doping rule violation against the French Athlete B. after his A and B sample tested positive for the prohibitied substances 19-norandrosterone, 19-noretiocholanolone (Nandrolone).
The Athlete denied the intentional use of the prohibited substance; disputed the validity of the testing method; and argued that the positive test could be the result from the possible ingestion of food contaminated with nandrolone.
A scientific commission of experts concluded that the test results of the accredited laboratory were valid, showing the presence of nandrolone, and rejected the Athlete’s arguments.
On 18 April 1997 the FFJ Anti-Doping Commission decided to impose a 2 year period of ineligibility on the Athlete with the second year as suspended sanction.
The Athlete filed for an appeal, however on 25 May 1998 the FFJ Appeal Commission concluded that it had no jurisdiction.
The Athlete’s case was referred to the French National Anti-Doping Commission (CNLD), who had doubts about the origin of the presence of nandrolone metabolites in the Athlete’s samples and decided on 9 July 1998 to impose a 1 year period of ineligibility on the Athlete.
In the meantime in May 1998 the test results were reported of a second more elaborate counter analysis performed on the Athlete’s samples and confirming the presence of the prohibited substances.
The International Judo Federation (IJF) was already informed in October 2007 about the Athlete’s anti-doping violation and on 10 October 1998 the ordered suspension was extended by the IJF pending a final decision was redenered against the Athlete. Hereafter in October 1998 the Athlete filed an appeal with the Court of Arbitration for Sport (CAS).
With full power to investigate and all the facts reviewed in this case the CAS Panel finds that the Athlete failed to prove that he was not at fault and therefore that he is guilty.
Considering the circumstances and the proportionality in this case the Court of Arbitration for Sport decides on 17 March 1999 to cancel the IJF decision of 10 October 1998 and to impose a 15 month period of ineligibility on the Athlete, ending on 19 March 1999.
