TAS 2005/A/972 P. c. Swiss Olympic
CAS 2005/A/972 P. vs Swiss Olympic
- Field hockey
- Doping: cannabis
- Examination of aggravating circumstances
- Determination of the disciplinary sanction
1.) In the matter of a substance, cannabis, which is considered to have no positive effect on performance, the quantity can not be an absolutely determining factor. Furthermore, in the absence of a connection between the athlete's training activities and the consumption of cannabis outside the context of any sports or training context, no aggravating circumstances can be considered. That being said, it can be hold against the Appellant that this is not an “isolated” or exceptional matter. With the reservations expressed above, this may be considered as an aggravating criterion.
2.) The CAS is not a disciplinary body, but a body exercising judicial control over decisions taken in disciplinary proceedings conducted by the internal bodies of the federations. Within this context, it follows of the function of “second degree” judicial review by the CAS Panel that they must have certain reserve when by virtue of their examination on appeal, the only possible divergence they establish with the appealed decision is a pure difference of assessment without an objective element which makes it possible to consider that one or the other solution is more adequate. Being “a second degree control body”, a CAS Panel should strive to respect the function of the primaire application by the internal bodies and intervene only when it considers that the obtained result is in one way or another objectively not correct and not simply because it would subjectively prefer a slightly different result.
Swiss Olympic reported an anti-doping rule violation against the Athlete P. after his sample tested positive for the prohibited substance Cannabis in a concentration above the WADA threshold (318,6 ng/ml).
After notification the Athlete admitted that he had used Cannabis regularly with friends during his stay in Canada until 13 days before the competition where he provided a sample.
The Disciplinary Chamber of Swiss Olympic considered that the Athlete’s use was not intentional and finds, also as member of the club committee, that his activities and responsibilities with junior athletes constitute an aggravating circumstance. Therefore the Disciplinary Chamber decides on 9 September 2005 to impose a 9 month period of ineligibility on the Athlete including the costs for the analysis and the proceedings.
Hereafter in October 2005 the Athlete appealed the decision of Swiss Olympic of 9 September 2005 with the Court of Arbitration for Sport (CAS).
The Athlete admitted his mistake and he requested the Panel for a reduction of the sanction and costs. He asserted that his use of Cannabis was out of competition and therefore he contested that his activities with juniors is an aggravating circumstance.
The CAS Panel concludes that there is no link between the Athlete’s consumption of Cannabis and his activities with minors. The Panel finds that the sanction must be reduced and upholds the costs for the analysis and the proceedings.
Therefore the Court of Arbitration for Sport decides on 12 December 2005 to impose a 6 month period of ineligibility on the Athlete starting on 9 september 2005.
