CAS 2000/A/281 H. / Fédération Internationale de Motocyclisme (FIM)
- Motorcycling
- Doping (ephedrine)
- Strict liability
1. As a general rule, in cases of strict liability offences it is sufficient that the federation is able to show that a forbidden substance was found in the urine of the athlete and that the positive test result of the sample was not affected by procedural defects in the laboratory. Under the FIM Rules it is not a requirement that the forbidden substance is contained in medication. The FIM Medical Code also expressly prohibits the use of chemical identical substances. This includes herbal or homeopathic substances. More generally, it can also be found in the jurisprudence of the CAS that it is sufficient that the active substance appears on the doping list. The name of the product is not relevant.
2. The established IOC testing procedures need to be applied strictly and do not leave room for the transfer of certain methods from one testing procedure to another on a case by case basis. If there was a need for the application of a correction factor in ephedrine cases this decision had to be taken by the competent authorities of the IOC. It cannot be the task of the CAS to amend on a case by case basis the rules established by the International Olympic Committee and applied by the IOC accredited doping laboratories.
3. In a case of strict liability it is irrelevant whether the athlete was aware that he was using a substance appearing on the doping list. The CAS considers that products and homeopathic substances that do not give the chemical name of the substances but the names of herbal substances need to be examined with great care by the athlete.
On 2 June 2000 the Fédération Internationale de Motocyclisme (FIM) decided to impose a 1 month period of ineligibility on the Athlete H. after his A and B samples tested positive for the prohibited substance ephedrine. Thereupon on 15 June 2000 the FIM International Tribunal of Appeal (TIA) decided to uphold the Athlete’s disqualification and to reduce the imposed sanction to 3 weeks.
Hereafter the Athlete appealed the FIM TIA decision with the Court of Aribitration for Sport (CAS).
In addition the Athlete H. requested CAS for interim relief to stay the execution of the FIM TIA decision which CAS dismissed on 6 July 2000.
In favour of the Athlete the Panel considers that there is no evidence that the he acted intentionally. Furthermore it is not easy to recognise the substance MaHuang as a herbal sister of ephedrine.
The Panel also notes that the concentration of ephedrine in his urine sample tested was only slightly over the limit. Finally the Athlete presented himself as an honest man during the hearing and showed great regret for what he had done.
On the other hand, the Athlete also admitted that he made a terrible mistake and acted carelessly. His behaviour shows a certain degree of negligence which makes it necessary to raise the sanction above the minimum.
Therefore the Court of Arbitration for Sport decides on 22 December 2000:
1.) The appeal filed by H. on 4 July 2000 is partially upheld.
2.) The decision rendered by the FIM International Tribunal of Appeal on 30 June 2000 is annulled.
3.) The CAS renders the following decision:
- a.) H. is disqualified from the second race of the FIM World Championship event held in Kyalami on 2 April 2000 and has to return all trophies, prizes and any other entitlements won;
- b.) The disqualification of H. in connection with the first race of the FIM World Championship event held in Kyalami on 2 April 2000 is invalid; H. is entitled to the trophies, prizes, points and any other entitlements on the basis of the result achieved;
- c.) H. is suspended from any competition under the governance of FIM for a period of three weeks beginning 12 October 2000, exclusive of the suspension already served (7 days).
