CAS 2002/A/385 T. / International Gymnastics Federation (FIG)
- Gymnastics
- Doping (furosemide)
- Nutritional supplement
- Strict liability
- Failure to invite the athlete for the B-test
- Mitigating circumstances
1. The failure to provide the athlete with an opportunity to be present or be represented at the opening and analysis of the B-sample constitutes a procedural error compromising the limited rights of an athlete to such an extent that the results of the analysis of the B-sample and thus the entire urine test should be disregarded.
2. It is not a positive urine test but the presence of a prohibited substance in an athlete’s body which constitutes a doping offence. While the appellant in this case denies ever having taken Furosemide, the CAS Panel is of the view that there is overwhelming proof that she in fact did. The Appellant admitted having taken a version of “Hyper” (a nutritional supplement) which had not been previously tested and later turned out to contain a forbidden substance. The fact that the Appellant may not have been aware of the existence of Furosemide is of no relevance in respect of the objective elements of this case.
3. It has been a known and widely publicised fact for several years that food supplements can be – and sometimes intentionally are – contaminated with products which are prohibited in sports. An athlete who ignores this fact, does so at his/her own risk. It would be all too simple and would frustrate all the efforts being made in the fight against doping to allow athletes the defence that they took whatever the team doctor gave them, thus attempting to shift the responsibility to someone else. The athlete's negligence lies in the fact that he/she uses food supplements which include a generally known risk of contamination. The extent of the precaution taken to reduce the risk of contamination may have a bearing on the extent of the sanction.
Between September 2001 and February 2002 the International Gymnastics Federation (FIG) reported two anti-doping rule violation against the Russian Athlete after her A and B samples, collected in Australia and in Spain, tested positive for the prohibited substance furosemide.
On 20 February 2002 the FIG Special Commission decided to impose a 1 year period of ineligibility on the Athlete followed by 1 year’s suspension with probation.
On 9 May 2002 the FIG Executive Committee dismissed the Athlete’s appeal against the FIG decision of 20 February 2002. Hereafter in May 2002 the Athlete appealed both FIG decisions of 20 February and 9 May 2002 with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel to annul the FIG decisions and argued that her rights were infringed during the doping test procedure because the laboratory reports showed signs of irregularities and because she was not informed of the date and the time when the B-sample was to be opened and analysed by the Australian laboratory. Furthermore, the Athlete denied that she ever admitted having taken a forbidden substance.
Consideration all the elements of this case, in particular the fact that the Athlete acted negligently but without intent and that she was only 19 years old at the time of the offence, the Panel is of the view that, based on the evidence produced, there are mitigating circumstances which warrant a considerable reduction from the maximum penalty allowed under the rules and regulations of the Respondent.
As a result, the Panel is of the opinion that the suspension for a 12 month period and a "probation" for an additional 12 month period, as imposed by the FIG, is adequate and appropriate.
Therefore on 23 January 2003 the Court of Arbitration for Sport decides:
1.) The appeal filed by T. is rejected.
2.) The decision of the FIG Executive Committee of 8/9 May 2002 is confirmed.
3. (...).
