CAS 2002/A/432 D. / Fédération Internationale de Natation (FINA)
- Swimming
- Doping (nandrolone)
- FINA’s competence to initiate disciplinary proceedings
- Strict liability
- Negligence of the athlete
- Prohibition of the reformatio in pejus
- Future implementation of the World Anti-doping Code: consequences on the sanctions
1. In accordance with the FINA Rules, a review by the FINA Doping Panel of a decision rendered by a member federation can be ordered by the Executive if it “believes” that the member federation has not followed the applicable FINA Rules. The requirement for such review is the belief that an erroneous application of the FINA Rules has, firstly, been committed and, secondly, that the erroneous application was committed by the member federation. Concerning the belief of an erroneous application of the FINA Rules, the CAS holds that such an evaluation lies within the sole judgment of the FINA Executive and that the Panel has no authority to review the Executive’s exercise of such judgment.
2. If an athlete who competes under the influence of a prohibited substance in his body is permitted to exculpate and reinstate himself in competition by merely pleading that he has been made the unwitting victim of his or her physician’s (or coaches) mistake, malfeasance or malicious intent, the war against doping in sports will suffer a severe defeat. It is the trust and reliance of clean athletes in clean sports, not the trust and reliance of athletes in their physicians and coaches which merits the highest priority in the weighing of the issues in the case at hand. If such a defence were permitted in the rules of sport competition, it is clear that the majority of doped athletes will seek refuge in the spurious argument that he or she had no control over the condition of his or her body.
3. The CAS applies the principle of the prohibition of the reformatio in pejus according to which the appeal body can modify the decision that is contested only in the interest of the appellant, without prejudice for him. There are exceptions to this principle: 1) if the appeal body must rule on the application of statutory laws, applicable ex officio, that body will be bound to deliver a decision which complies with the applicable law; 2) if the respondent lodges a counter-appeal, then the appeal body is bound to consider the claims of the respondent which, if they are granted, may result in even more prejudice to the appellant.
In September 2003 Κολυμβητική Ομοσπονδία Ελλάδος (KOE), the Hellenic Swimming Federation, has reported an anti-doping rule violation against the Athlete D. after his A and B samples tested positive for the prohibited substances 19-norandrosterone (nandrolone) and lidocaine.
Thereupon the Board of Directors of the Hellenic Swimming Federation sanctioned the Athlete with a lifetime ineligibility which was reformed by the Supreme Sports Arbitration Council to a 20 month period of ineligibility after the Athlete had filed an appeal.
Reffered to the FINA the Doping Panel decided on 26 September 2002 to impose a 4 year period of ineligibility on the Athlete including disqualification of all results achieved between March and September 2002. Hereafter the Athlete appealed the FINA decision of 26 September 2002 with the Court of Arbitration for Sport (CAS).
The Athlete disputed the jurisdiction of the FINA Doping Panel and stated that he trusted his coach that the administered injections were food supplements.
Considering the Athlete’s own statements and those of the experts, the Panel is unable to draw a final conclusion regarding the origin of the prohibited substances found in the Athlete’s body fluids, but does not exclude the possibility that the injection administered by his coach was the cause.
Having said that, however, the Panel takes the position that the Athlete clearly acted with negligence in not specifically queried both his physician and his coach regarding the identity of the substances which were administered to him.
The Panel finds that the imposed 4 year period of ineligibility on the Athlete must be shortened within the framework of such transitional rules to harmonize with the shorter sanctions under the WADC rules.
If, on the date upon which the WADC rules become effective, the remaining term of ineligibility of an athlete sentenced under the former FINA rules exceeds two years, FINA must carefully review whether any time served by the Athlete under the former FINA penalty should be credited to the term he would serve, if he had been sentenced under the new WADC rules.
The Court of Arbitration for Sport decides on 27 May 2003:
1.) The appeal filed by D. on November 25, 2002 is dismissed.
2.) The decision of the FINA Doping Panel dated September 26, 2002 is confirmed.
3.) (...)
