CAS 98/218 H. / Fédération Internationale de Natation (FINA)
- Swimming
- Doping (cannabinoids)
- Adoption of IOC Medical Code by International Federations
- Out-of-competition testing for cannabinoids
1. The requirement of an agreement between the IOC and the relevant federation in order to proscribe cannabinoids applies only in the context of Olympic competition. Outside that context, the IOC Medical Code is applicable only to the extent it is voluntarily adopted by the relevant federation.
2. According to FINA Regulations, cannabinoids fall within the list of prohibited substances which are the target of out-of-competition testing.
On 6 November 1998 the International Swimming Federation (FINA) Doping Panel decided to impose a 3 month period of ineligibility on the Athlete H. after he tested positive for the prohibited substance cannabis.
Hereafter on 24 November 1998 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).
On 30 November 1999 the CAS Appeals Arbitration Division of CAS dismissed the Athlete’s appeal for preliminary relief.
Also on 30 November 1999, the Athlete H. obtained a Temporary Restraining Order from the United States District Court for the District of Arizona which purported to order FINA not to enforce the suspension of H. decided by the Doping Panel, and furthermore purported – without any explanation of the basis for its jurisdiction with respect to events taking place outside Arizona and indeed the United States – to declare that H. was permitted “to participate in any activities of FINA or any of its member federations, including international competition, as a competitor until further notice of this Court.”
The Athlete H. accordingly competed in a World Cup competition in December 1998 in disregard of both the FINA Doping Panel’s decision and the Order of the CAS Appeals Arbitration Division.
The CAS Panel is not impressed with H.’s reliance on alleged oral representations made to him and to his father to the effect that cannabinoids were not the target of out-of-competition testing. The proper reflection of such concern on their part would have been for them to read the relevant rules, rather than to rely on any oral statements that there was a “policy” of, in effect, selective application.
Given H.’s unwillingness to accept rules of competition designed to be applied in the interest of all athletes, his persistence in pursuing an unmeritorious challenge, and his de facto evasion of sanctions legitimately imposed upon him by going outside the dispute resolution mechanism to which both he and FINA are subjected, the Panel awards costs to FINA.
Therefore on 27 May 1999 the Court of Arbitration for Sport:
1.) Rejects the appeal against the FINA decision dated 6 November 1998.
2.) Declares that any results achieved by H. in competitions during the period of his suspension shall be considered null and void.
3.) Orders H. to pay FINA the amount of CHF 10’000.-- with interest running at 5% per annum starting with the 30th day after notification of this Award.