CAS 2007/A/1426 Giuseppe Gibilisco v. Comitato Olimpico Nazionale Italiano (CONI)
- Athletics (pole vault)
- Doping (attempt to use prohibited substances)
- Anti-doping rule violation resulting in the attempt to use prohibited substances
- Evidence of attempt to use prohibited substances
- CAS scope of review
1. The World Anti-Doping Code
(i) treats as an anti-doping rule violation not only the use of prohibited substances but also a conduct constituting an attempt to use them, and
(ii) includes an autonomous definition of the concept of “Attempt” that shall be applied in the assessment of any conduct eventually leading to such violation. Proof of intent on the athlete’s part is expressly required to establish an attempt to use.
2. The evidence is not of such a level to be considered as showing an attempt to use prohibited substances when it merely shows that the athlete, although aware that a doctor has been involved in doping matters, continues to use the assistance of this medical person and exchanges with him information on doubtful substances as well as on the modalities of the doping controls.
3. Although, pursuant to art. R57 of the CAS Code, a CAS panel has full power to review the facts and the law and to issue a decision de novo, when acting following an appeal against a decision of a federation, association or sports-related body, the power of review of such panel is also determined by the relevant statutory legal basis and, therefore, is limited with regard to the appeal against and the review of the appealed decision, both from an objective and a subjective point of view. Therefore, if a motion was neither object of the proceedings before the previous authorities, nor in any way dealt with in the appealed decision, the panel does not have the power to decide on it and the motion must be rejected.
The Oil for Drugs case is an Italian doping criminal investigation from the Italian Anti-Narcotic Group (NAS) against doctor Carlo Santuccione and a number of accomplices, started in 2003.
Evidence of the criminal investigations showed communications between the athletes and the doctor about providing instructions, advice, dosage plans, methods, supply and administration of the most varied doping substances.
In December 2007 Doctor Santuccione was given a lifetime ban by CONI due to his involvement in the Oil for Drugs case and after having already serving a lengthy ban for a previous doping offense.
In May 2004 NAS made a search in Giuseppe Gibilisco’s domicile and after interrogation the Athlete admitted his contact and involvement with doctor Carlo Santuccione.
In July 2007 the CONI Anti-Doping Prosecution Office (UPA) opened proceedings against the Athlete and on 18 July 2007 the Italian Athletics Federation (FIDAL) decided to impose a 2 year period of ineligibility on the Athlete for the attempted use of prohibited substances.
The Athlete appealed the decision and on 12 September 2007 the FIDAL Appeal Commission decided to set aside this decision and to acquit the Athlete.
Thereupon the UPA-CONI appealed the decision of the FIDAL Appeal Commission with the CONI Giudice di Ultima Instanza in Materia di Doping (the Anti-Doping Supreme Court) and on 26 October 2007 the Court decided to impose a 2 year period of ineligibility on the Athlete.
Hereafter the Athlete appealed the CONI decision of 26 October 2007 with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to be acquitted of the imposed sanction and argued that he had never use or attempted to use prohibited substances under the WADC Rules.
The Panel concludes that, although some of Gibilisco’s conduct raises doubts about the truthfulness of his statements, there are not sufficient elements to determine that Gibilisco attempted to use prohibited substances within the meaning of the WADC. The facts deemed as proven (individually or combined) cannot, in the Panel’s opinion, be considered as conduct constituting a substantial step in a course of conduct planned to culminate in the commission of an anti-doping rule violation.
Therefore on 9 May 2008 the Court of Arbitration for Sport decides:
1.) The decision of the Giudice di Ultima Instanza in Materia di Doping of CONI dated 26 October 2007 imposing a sanction of two years of ineligibility on Giuseppe Gibilisco is set aside.
2.) The further motions of the parties are not accepted and all other prayers for relief are dismissed.
(…).
