CAS 2003/A/507 Marko Strahija v. Fédération Internationale de Natation (FINA)
- Swimming
- Doping (hCG)
- Principle of a fair hearing
- Lex mitior
- Scope of the Panel review
- Integrity and validity of the laboratory testing results
- Burden of proving an abnormal concentration
- Specified substance
- Burden of proving unintentional doping
1. The principle of a fair hearing guarantees not only the parties’ right to be heard by the panel, but also their right to refute the other side’s factual submissions by proffering evidence. However, the principle of a fair hearing does not apply without restriction. Rather it is only guaranteed within the framework of the procedural rules and the orders made to manage the proceedings provided said orders are not arbitrary or impartially detrimental to one of the parties.
2. Under the lex mitior, the sanctions, which are more favourable for the athlete in the most recent DC Rules, must be applied if a doping offence has been committed. As a result, new FINA DC rules entered into force between the alleged doping offence and the hearing of the case are applicable.
3. According to a rule that exists in most legal systems, a complete investigation by an appeal authority, which has the power to hear the case, remedies – in principle – any flaws in the procedure at first instance.
4. An accredited laboratory has complied with the applicable procedural rules when the suitability of the screening method is evidenced by the fact that the laboratory has been awarded the ISO accreditation 17025 for precisely this method of detection. According to Appendix D of the Olympic Movement Anti-Doping Code, a second different immunoassay is required to confirm the findings of the first one. The use of a chemiluminiscent test (“Immulite test”) meets this requirement as it is a different test not only by name but also in terms of its substance; for the two-test procedures look at two different parts of the hCG molecule.
5. The burden of proof lies upon the anti-doping organisation to establish that an offence has been committed. This follows from the language of the doping control provisions as well as general principles of the Swiss Civil Code. Equally, the standard of proof required of the anti-doping organisation is high: it is less than the criminal standard, but more than the ordinary civil standard. Only then has the anti-doping organisation discharged his burden of proof. The discharge of the burden of proof is shattered if there is reasonable doubt (as distinct from the highest fanciful doubt) as to the findings of the laboratory.
6. DC 10.3 (DC Rules 2003) only applies if the substance is marked in the list of prohibited substances as being one that is susceptible to an unintentional anti-doping violation. However, hCG is listed as a “regular” doping substance which is not particularly susceptible to unintentional doping: ingestion of hCG is likely to increase the level of testosterone as well as the ratio of testosterone/epitestosterone. Therefore, in cases in which hCG is proven to be in the body fluids of an athlete, intentional doping is much more likely than unintentional doping. Therefore, DC 10.3 is not applicable to hCG.
7. The burden of submitting and proving unintentional doping lies with the athlete. By merely claiming that he did not take the prohibited substance, the athlete does not make any substantiated submissions on the question of whether hCG is particularly susceptible to unintentional doping. Further, under DC 10.3 the athlete must establish that the use of a specified substance was not intended to enhance sport performance. By merely claiming that he has never used this substance, the athlete has not tried to establish such requirement.
In July 2002 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Croatian Athlete Marko Strahija after his samples tested positive for the prohibited substance human chorionic gonadotrphin (hCG).
The Athlete already tested positive in March 2002 and to establish a doping offence or a physiological or pathological condition the Athlete underwent two further out-of-competition tests in July 2002. The first sample tested negative however the second A and B samples tested positive for hCG.
On 15 July 2003 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Athlete including retroactive disqualification of his results achieved by the Athlete between November 2002 and January 2003.
Under new FINA Rules due to the principle of lex mitior the Athlete’s sanction was reduced in September 2003 to a 2 year period of ineligibility with disqualification of his results achieved between November 2002 and 22 January 2002.
Hereafter in August 2003 the Athlete appealed the FINA decision of 15 July 2003 with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel that:
- He be exonerated and the doping charges against him be dismissed; or
- Alternatively, that if a doping offence must be found, then no suspension be issued, only a warning or a reprimand; or
- In the further alternative, if a doping offence must be found and a suspension should be issued, this suspension be proportionate in relation to the offence and
- taking into account the manner in which this case has been conducted before the FINA Doping Panel as well as the nature of the Prohibited Substance itself consequently be no longer then the time Athlete already served and subsequently to end on December 16, 2003; and that
- The Athlete recovers his costs in this matter, together with fees of counsel.
Considering the Athlete’s arguments the Panel finds that there are no apparent circumstances to indicate that the Barcelona Lab’s measuring procedure was wrong and the Athlete has not made any such substantiated submissions. The Panel concludes that the imposed 2 year period of ineligibility is appropriate and proportional in view of the given facts of the case.
Therefore the Court of Arbitration for Sport decides on 9 February 2004:
1.) The appeal filed by Mr. Strahija on 11 August 2003 is dismissed.
2.) The decision by the FINA Doping Panel dated 15 July 2003 is upheld as amended by the entry into force of the new DC rules on 11 September 2003. Accordingly the period of ineligibility for the Athlete is two (2) years. The suspension shall end upon the expiry of 26 November 2004.
3.) (...).
