CAS 2014/A/3798 Danilo Decembrini v. Fédération Internationale de Roller Sports (FIRS)
Roller Sports (Artistic – Senior Freeskating Pairs)
Doping (3’ hydroxystanozolol glucuronide)
Scope of CAS review
Burden of proof of athletes in anti-doping cases
No fault or negligence in cases of nutritional supplements
No significant fault or negligence in cases of nutritional supplements
1. If an athlete who tested positive for a prohibited substance and is sanctioned for an anti-doping rule violation by a first instance decision only requests the cancellation of the suspension in the CAS proceedings but does not challenge the finding of an anti-doping rule violation, the latter issue cannot be reviewed by the CAS.
2. Pursuant to established CAS case law and the wording of Articles 10.5.1 and 10.5.2 of the FIRS Anti-Doping Policy (the “FIRS ADP”), once an anti-doping rule violation has been established, in order for an athlete to escape a sanction under Articles 10.5.1 or 10.5.2 of the FIRS ADP, the burden of proof shifts to the athlete who has to establish a) how the prohibited substance entered the athlete’s system, and b) that the athlete, in the individual case, bears no fault or negligence or no significant fault or negligence for the rule violation.
3. The standard of care required for a no fault or negligence finding, i.e. utmost caution, requires that an athlete establish that he has done all that is possible, within his medical treatment, to avoid a positive testing result. A professional and experienced athlete who, despite being familiar with repeated warnings from his International Federation, WADA and National Anti-Doping Organizations emphasizing the risk of contamination in nutritional supplements, choses to take the risk of using nutritional supplements anyway, fails to exercise the standard of care required for no fault or negligence, i.e. utmost caution.
4. In the case of a positive test resulting from a contaminated vitamin or nutritional supplement, a reduction of the period of ineligibility under Article 10.5.2 of the FIRS ADP may be appropriate, for instance, if the athlete clearly establish that the cause of the positive test was contamination in a common multiple vitamin purchased from a source with no connection to prohibited substances and that the athlete exercised care in not taking other nutritional supplements. These requirements are however not met if the athlete uses a nutritional supplement which is not an approved commercially available supplement, but rather a product which had been prepared specifically for the athlete following prescription from the athlete’s doctor. It is even less applicable in case the product leading to the positive test was purchased from a pharmacy that makes preparations containing the prohibited substance at stake. This is because an athlete is responsible for the conduct of people around him from whom he receives food, drinks, supplements or medications, including his doctor, and cannot therefore simply say that he trusts them and follows their instructions.
On 7 October 2014 the International Roller Sports Federation (FIRS) Doping Review Panel decided to impose a 2 year period of ineligibility on the Italian Athlete Danilo Decembrini after his A and B samples tested positive for the prohibited substance stanozolol.
Hereafter in October 2014 the Athlete appealed the decision of 7 October 2014 with the Court of Arbitration for Sport (CAS).
The Athlete did not dispute the test results and produced arguments and evidence that he had used a prescribed medication which was contaminated in the laboratory of the pharmacy Farmacia Rivazzura. The Athlete argued that FIRS Doping Review Panel had failed to consider these arguments and evidence for imposing a reduced sanction.
The Sole Arbitrator finds that Athlete failed to present specific undisputed evidence showing that the prescribed product dispensed by the Farmacia Rivazzurra contained stanozolol.
Considering the circumstances the Sole Arbitrator finds that it is more likely than not that the source of stanozolol in the Athlete’s body is a contaminated prescribed product and prepared by the Farmacia Rivazzurra in August 2014. However the Sole Arbitrator finds that the Athlete’s negligence was significant in relationship to the anti-doping rule violation and the Athlete thus failed to exercise the standard of care required for nog significant fault or negligence.
Therefore the Court of Arbitration for Sport decides on 4 March 2015 that:
1.) The Appeal filed by Mr. Danilo Decembrini on October 28, 2014, is dismissed.
2.) Mr. Danilo Decembrini is sanctioned with a period of ineligibility of two years commencing on September 21, 2014.
3.) All competitive results obtained by Mr. Danilo Decembrini from September 21, 2014, up to the expiry of the period of ineligibility shall be annulled, with all resulting consequences, including forfeiture of all medals, points and prizes.
(…)
6.) All further and other claims for relief are dismissed.
