CAS 2013/A/3431 P. v. Fédération Internationale de Volleyball (FIVB)
Beach Volleyball
Doping (Ecgonine methyl ester)
Burden of proof
Duty of care
1. The party alleging the existence, termination or modification of an obligation must prove such circumstances. Or in other words, a party claiming the existence of circumstances releasing it from responsibilities resulting from rule violations, based on certain facts or factual propositions, has the burden of proving the effectiveness of such facts, it being insufficient to merely affirm or declare them,
without proving them.
2. One of the main principles in the context of anti-doping control in sport is that an athlete must be extremely careful with the food contents, fluids, and in general, with any products that he or she may ingest, either for nutrition or therapeutic purposes, as they may contain some substance identified on the WADA Prohibited List. In case an athlete is recommended a certain product to counter a certain effect (e.g. consequences of altitude) and then consumes the product in circumstances different from the ones that it was recommended for (e.g. stomach pain), this constitutes a violation by the athlete of his/her “duty of care” as it is not acceptable that an athlete (here: competing at World Championships level) decides, with no previous medical assistance, to ingest substances that have a therapeutic effect, without analyzing the consequences that it may have on his/her health or of a forbidden substance entering his/her body.
On 19 November 2013 the International Volleyball Federation (FIVB) decided to impose a 2 year period of ineligibility on the Paraguayan Athlete after her A and B samples tested positive for cocaine.
Hereafter in December 2013 the Athlete appealed the decision of 19 November 2013 with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel for a reduced sanction and argued that there was no intentional use; explained how the substance came into her body; and that there are grounds for no significant fault or negligence.
The Panel notes that the main issues to be resolved are:
i.) Was the Athlete’s AAF properly reported under the technical requirements of the FIVB Medical Regulations?
ii.) Did the Athlete lack of significant fault or negligence so as to allow a reduction of the period of ineligibility?
The Panel confirms that the Athlete committed an anti-doping rule violation, punishable in accordance with the FIVB Rules.
Considering the evidence and arguments in this case the Panel concludes that the Athlete did not successfully demonstrate her lack of significant fault or negligence to justify a reduction of the 2 years period of ineligibility imposed by the FIVB.
Therefore Court of Arbitration for Sport decides on 25 September 2014 that:
1.) The appeal filed on 9 December 2013 by P. against the Decision issued on 19 November 2013 by the FIVB Disciplinary Panel is dismissed.
2.) The Decision issued on 19 November 2013 by the FIVB Disciplinary Panel is upheld.
(…)
5.) All other motions or prayers for relief are dismissed.
