CAS 2000/A/274 S. / Fédération Internationale de Natation (FINA)
Related case:
CAS 2000_A_274 S. vs FINA - Preliminary Award
May 26, 2000
- Swimming
- Doping (testosterone)
- Burden of proof
- Right to be heard
- Prohibition of the retroactive application of substantive rules
1. The fundamental evidentiary nature of the IRMS Rule is not altered by the fact that this provision precludes athletes from raising a defence based upon evidence of a physiological or pathological condition. The T/E Rule only permits such a defence because an elevated T/E ratio does not constitute direct and conclusive evidence of the exogenous administration of testosterone. There may be other physiological or pathological reasons for an elevated T/E ratio. By contrast, IRMS analysis provides direct evidence of the exogenous administration of testosterone and, accordingly, there is no place for such a defence under the IRMS Rule.
2. Where a party adopts a position contrary to one it has previously taken, its conduct may constitute an abuse of right when the other party has relied on the initial position to its detriment. The prohibition against venire contra factum proprium does not however preclude a party from tendering new evidence or raising new arguments in an appeals arbitration procedure.
3. Under the Swiss Private Law Act, the right to be heard in adversarial proceedings specifically guarantees each party’s right to participate in the evidentiary proceedings, to rebut allegations made by the opposite party, to examine and criticize evidence adduced by the opposite party and to bring its own evidence in rebuttal before an award is rendered to its detriment. However, a party must immediately protest if it considers that its right to be heard has been violated, failing which, the party shall be deemed to have waived the right to protest at a later stage.
4. In general, it is necessary to apply the laws, regulations or rules that were in force at the time that the facts at issue occurred. This general principle is, however, subject to several exceptions, including an exception for laws or rules that are procedural in nature. In the absence of an express provision to the contrary, laws and rules relating to procedural matters apply immediately upon entering into force and regardless of when the facts at issue occurred.
On 25 March 2000 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Italian Athlete S. after her A and B samples tested positive for the prohibited substance testosterone with a T/E ratio above the threshold.
Hereafter in May 2000 the Athlete S. appealed the FINA decision of 25 March 2000 with the Court of Arbitration for Sport (CAS). The Athlete requested the CAS Panel to set aside the FINA decision and disputed the validity of the testing results related to the IRMS analysis of the samples.
The Panel finds that in this case it is common ground that the elevated T/E ratio detected on 24 January 1999 did not recur over the period of the Athlete’s longitudinal hormonal study. The Panel does not accept the Athlete’s submission that the sole finding of an elevated T/E ratio on 24 January 1999 can be explained by her physical condition.
Accordingly, the Panel finds that the longitudinal hormonal study constitutes additional evidence that the Athlete’s elevated T/E ratio was due to an exogenous administration of testosterone.
The Court of Arbitration for Sport Panel concludes that the Athlete has committed a doping offence under FINA Rules and decides on 19 October 2000:
1.) The Appeal filed by S. on 4 May 2000 is dismissed.
2.) The decision issued by the FINA Doping Panel on 25 March 2000 is confirmed.
