CAS 2007/A/1373 FINA v/ CBDA & G.
- Swimming
- Doping
- Applicable anti-doping rules
- Notion of decision
- Lack of CAS jurisdiction due to the non-exhaustion of the internal remedies available to the appellant prior to the appeal
1. In the absence of evidence and submissions to the contrary, one can assume that the swimming national federation Rules and its doping control procedures meet the requirements of the International Federation which provide that its Anti-Doping Rules must be complied to by all member federation and shall apply to each activity of FINA. Therefore, there is no doubt that the FINA Regulations, in particular, the FINA Doping Control Rules, can be deemed directly applicable to the swimmer, either on the basis of an agreement/license/“swimming passport” or by reason of his/her accreditation for the competition.
2. If a letter does not, in the formal sense, and not on the face of its language have the appearance of a true and genuine “decision” within the meaning of DC Rule 13 and Art. R47 of the Code, the deciding factor to qualify a “decision” is whether the communication contains a ruling or, legally stated, an adjudication of a set of facts or circumstances – or, in the case of a denial of justice, the absence of a ruling where there should have been a ruling – in the communication.
3. The CAS, acting as an appeal instance, has no jurisdiction to adjudicate a dispute, as neither a hearing nor a “decision” has been issued from which an appeal can be lodged with CAS as required under Art. R47 of the Code.
4. The CAS cannot hear an appeal if all internal legal remedies have not been exhausted without effectively depriving the Athlete of his/her right to a first-instance hearing from which she would have the right to appeal.
In May 2006 het International Swimming Federation (FINA) reported an anti-doping rule violation against the Athlete G. after her three A and B samples tested positive for Testosterone with a T/E ratio above the WADA threshold.
However the Brazilian Water Sports Confederation (CBDA) considered that the laboratory findings were not sufficient to impose a sanction. After months of deliberations with FINA the CBDA submitted on 21 August 2007 that an anti-doping violation had not been established because the analysis results could not be relied upon due to bacterial degradation.
Hereafter in September 2007 FINA appealed the CBDA decision with the Court of Arbitration for Sport (CAS).
The CAS Panel determines that in filing its appeal directly with the CAS, FINA has effectively denied the Athlete her right to have the alleged violation adjudicated on the CBDA level pursuant to DC Rule 8.2.1 in a timely first-instance hearing.
Especially in doping proceedings which impose a substantial sanction on the athlete such as a suspension for two years, it is procedurally unacceptable to make a decision on the merits, if the athlete is not give the opportunity for legal review and
reconsideration in an appeals instance.
Therefore on 9 May 2008 the Court of Arbitration for Sport decides:
1.) The Court of Arbitration for Sports has no jurisdiction to decide the appeal filed by FINA on 10 September 2007 with regards to the letter issued on 21 August 2007.
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