CAS 2004/A/549 D. & Real Federacion Española de Gimnasia vs FIG
TAS 2004/A/549 D. & Real Federacion Española de Gimnasia (RFEG) c. Fédération Internationale de Gymnastique (FIG)
- Gymnastics
- Doping (cannabis)
- CAS Power to investigate on appeal
- Outcome of procedural faults committed in the first instance
- Principle of non bis in idem
- Principle of lex mitior
- Determination of sanction
1. In accordance with Article R57 of the Code of Sports Arbitration, CAS reviews the facts and law with full power to investigate. This power permits it to hear the parties again as to the total circumstances of facts as well as on the legal arguments they wish to raise and to rule definitively on the case in question. Such a system, where the Panel investigates all the arguments about the facts and law raised by the parties, allows it to consider to purge the possibly procedural faults that have effected the prevous instances.
2. The Athlete has been suspended, on international level from 19 October 2002 until 19 January 2003, and on national level from 28 December 2002 until 28 March 2003, by two sanctions rendered separately.
These two sanctions concern distinct objects, the national or international competitions. Article 1.4 at the end of the FIG Regulations provides a double degree of measures by stipulating that the sanctions decided by the FIG do not prejudge anything that could be inflicted by the IOC, the NOCs or the National Federations.
Accordingly, even if the non bis in idem principle has to be considered applicable, the Athlete can not refer on it, considering that the sanctions imposed on him have a different purpose.
3. In this case, FIG can not be considered late in adopting the WADA Code, as the deadline has not expired. For these reasons, and in particular in view of the specific conditions of the commencement into force of this Code, the Panel finds that it is not applicable in this particular case. For this reason, the principle of lex mitior is not admissible in this scope.
On 21 December 2002 the Disciplinary Committee of the Royal Spanish Gymnastics Federation (RFEG) decided to impose a 3 month period of ineligibility on the Spanish Athlete D. after all his samples tested positive for the prohibited substance Cannabis. D. provided the samples at 3 competitions between October and November 2002 in Spain, France and Hungary while the RFEG annulled his results obtained in Spain.
As a consequence of these violations the Disciplinary Commission of the International Gymnastics Federation (FIG) decided to impose a retroactive 3 month period of ineligibility on the Athlete D., starting on 19 October 2002, including annulation of the results obtained in 3 competitions in France, Hungary and also in Germany.
The RFEG appealed this decisions and on 30 November 2003 the FIG Appeal Tribunal annulled the FIG decision due to procedural faults and referred the case back to the FIG Disciplinary Commission.
Hereafter in December 2003 the RFEG appealed this case with the Court of Arbitration for Sport (CAS).
On 27 May 2004 the Court of Arbitration for Sport decides to annul the FIG Appeal Tribunal decision of 30 November 2003 and to impose a 3 month period of ineligibility on the Athlete D., starting on 19 October 2002, including annulment of his results obtained in the competitions in France, Hungary and Germany.
