CAS 2015/A/4210 Karam Gaber v. United World Wrestling (FILA)
- Wrestling
- Doping (whereabouts filing failure)
- Personal responsibility of the athlete for making accurate whereabouts filings and for ensuring availability for testing
- Missed test
- Out-of-competition testing
- Necessity of accurate whereabouts filings
1. According to the International Standard of Testing and Investigations (ISTI), in all cases each athlete in a registered testing pool remains ultimately responsible at all times for making accurate and complete whereabouts filings, whether he makes each filing personally or delegates the task to a third party. It is not a defence to an allegation of a filing failure or a missed test that the athlete delegated such responsibility to a third party and that third party failed to comply with the applicable requirements. The athlete remains personally responsible at all times for ensuring he is available for testing at the whereabouts declared on his whereabouts filings.
2. A case where a Doping Control Officer (DCO) has to first call an athlete who is part of the Registered Testing Pool because the athlete is located in another city, several hours of travel away from where his whereabouts file said he should be in order to conduct an anti-doping test, constitutes a missed test if it is not possible to conduct the test within the 60-minute time slot of availability for testing indicated by the athlete for every day. This is irrespective of the fact that an anti-doping test has ultimately taken place.
3. According to the ISTI, save in exceptional and justifiable circumstances, all out-of-competition testing shall be no advance notice testing. The fact that a DCO has to first call an athlete in order to conduct the anti-doping test, and then the athlete has to travel several hours in order to be where his whereabouts file said he should be constitutes a missed test as advance notice of the test was given to the athlete. Even if an athlete is assisting a close family member in its unforeseen and urgent hospitalization this does not fall under “justifiable and exceptional circumstance” if the athlete has been able to notify a third party – in charge of his whereabouts filing – that he has changed location.
4. Any whereabouts filing must be sufficiently accurate and detailed to enable any anti-doping organization to locate the athlete for testing on any given day in the quarter at the times and locations specified by the athlete in his whereabouts filing for that day, which includes, but is not limited to, the 60-minute time slot. In particular, the athlete must provide sufficient information to enable the DCO to find the location, to gain access to the location, and to find the athlete at the location. Indicating a location which the DCO cannot access, such as a restricted-access club, is likely to result in a filing failure.
On 27 August 2015 the Sporting Judge of the United World Wrestling (FILA) decided to impose a 2 year period of ineligibility on the Egyptian Athlete Karam Gaber for his 3 whereabouts filing failures and a missed test between December 2014 and August 2015.
Hereafter in September 2015 the Athlete appealed the FILA decision of 27 August 2015 with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to impose a reduced sanction and he filed several arguments in his defence that he bears No Fault or Negligence related to the anti-doping violation.
The Panel finds that the Athlete has committed at least three whereabouts failures within a period of twelve months. This is considered an anti-doping violation under Article 2.4 of the WADA Code and the UWW Anti-Doping Rules, and warrants a period of ineligibility of two years, subject to a reduction down to a minimum of one year, depending on the athlete’s degree of fault.
Having taken into account the nature of the multiple whereabouts filing failures committed by the Athlete, the Panel finds that the Decision was correct in applying a two year period of ineligibility from the date of the Decision. The Panel does not see any reason to grant to the Athlete a reduction of the period of ineligibility.
Therefore the Court of Arbitration for Sport decides on 28 December 2015 that:
1.) The appeal filed by Mr. Gaber on 10 September 2015 against the decision of United World Wrestling’s Sporting Judge of 27 August 2015 is dismissed;
2.) The decision of United World Wrestling’s Sporting Judge of 27 August 2015 is upheld;
(…).
