CAS 2001/A/337 B. / Fédération Internationale de Natation (FINA)
- Swimming
- Doping
- Decision of a civil court applied by a national federation
- Jurisdiction of the international federation
- Validity of the testing procedure
- Conditions for the storage of urine samples
- Proportionality of the sanction
1. An international federation cannot be bound by decisions of state courts issued in proceedings to which this federation has not been a party. Thus, FINA enjoys full discretion to issue its own decisions based on a certain set of given facts despite any proceedings on a national level which may also concern these facts but to which this federation was not a party.
2. A pathway from testosterone or androsterone to 19-norandrsoterone outside the human body may be theoretically conceivable, for example in case of degradation of urine samples, but, absent any scientific evidence to this effect, it remains pure speculation.
3. The wording of the FINA Rules clearly shows that FINA itself does allow deviations from the catalogue of fixed sanctions in the light of special circumstances. Thus, CAS has the authority to adjust the sanction against the athlete in the light of the circumstances of the case at stake. A sanction may not be disproportionate and must always reflect the extent of the athlete's guilt. Therefore, CAS in its capacity as an appeals body enjoys the same discretion in fixing the extent of the sanction as do the IF's internal instances. In fact, the Panel would enjoy this discretion even if there were no "exceptional attenuating circumstances".
In December 1999 the New Zealand Sports Drug Agency (NZSDA) has reported an anti-doping rule violation against the Athlete B. after his A and B samples tested positive for the prohibited substance 19- norandrosterone (nandrolone).
On 14 June 2001 the International Swimming Federation (FINA) Doping Panel decided to impose a 4 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 22 May 2000, including disqualification of his results.
Before the FINA Doping Panel could render its decision on 14 June 2001 this case was appealed with three New Zealand courts between January and December 2000 ruling about the sample transport irregularities to the laboratory.
Following these court decisions, the national swimming federation of New Zealand declined to institute or continue further proceedings against the Athlete which could have led to sanctions being imposed.
Hereafter in July 2001 the Athlete appealed the FINA Doping Panel decision of 14 June 2001 with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel to set aside the FINA decision of 14 June 2001 and claimed that FINA does not have any power to impose a sanction against him because there has not been any valid or lawful positive doping test.
The Athlete is of the opinion that FINA could not rely on the doping test results of the Sydney laboratory and the NZ-SDA. The test result was flawed due to the circumstances of this case.
The Panel finds that the proceedings in this case have unveiled a number of irregularities in the transportation, testing and analysis of the Athlete's samples which the Panel has examined one by one and with respect to each of which the Panel was not convinced that they were sufficient to discard the Athlete's test results.
The Panel is aware that doping control is a complex process susceptible to errors. However, the Panel is concerned about the number of irregularities in this case and wishes to point out that there may well be instances where the number of irregularities (even if insignificant on a stand-alone basis) reaches a level which may call into question the entire doping control process. The Panel is convinced that the number of errors stays below this threshold.
When taking into consideration all the elements of this case, in particular the fact that the Athlete is presumed to have acted at least negligently but without intent to indulge in doping, the Panel is of the view that, based on the evidence produced, there are mitigating circumstances which warrant a reduction of the maximum penalty allowed under the rules and regulations of the FINA.
In the absence of any explanation for the presence of the prohibited substance in the Athlete's body, other than the transformation theory which the Panel does not adopt, it must remain a period of suspension which is meaningful in all the circumstances. As a result, the Panel is of the opinion that it is adequate and appropriate to suspend the Athlete for two years.
Therefore the Court of Arbitration for Sport decides on 22 March 2002:
1.) The appeal is partially upheld.
2.) The decision of the FINA Doping Panel of June 14, 2001 is modified as follows:
The Athlete B. is suspended for a period of two years beginning on 19 May 2000. All results obtained by the Appellant six months prior to May 19, 2000 are cancelled.
3. (…)
