CAS (Oceania Registry) A1/2009 Australian Sports Anti-Doping Authority (ASADA) c. Peter Atkins
Surfing
Doping (stanozolol)
Athlete’s knowledge of the prohibition against the taking of performance enhancing drugs in sport
Failure of an athlete to give evidence before the CAS
Clarity of the rules and predictability of sanctions
1. The fight against doping in sport has a long and public history in Australia and throughout the world. An athlete who is an elite national competitor in his sport, a man of 33 years of age and a competitor in the sport for many years, would know of the prohibition against the taking of performance enhancing drugs in sport. An inference can clearly be drawn as to such knowledge from the fact that on the doping control test form signed by him he made no mention of his possession and use of the prohibited substance. It is inexplicable as to why he would omit mention of the use of that substance to those completing that form or to those conducting the test if it was the case that he had no knowledge that use of the substance was contrary to the Rules of the sport.
2. The failure of an athlete to give evidence before the CAS is not of itself evidence. The athlete cannot be compelled to give evidence and his silence cannot amount to an implied admission. He is entitled to take that course and it is not evidence of either guilt or innocence. In the criminal law of Australia and in a number of other jurisdictions where the standard of proof of guilt is beyond reasonable doubt, silence on the part of an accused person cannot fill in gaps in the prosecution case. However when the failure of an accused person to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given, the tribunal may take that failure into account only for the purposes of evaluating the evidence before it. A tribunal cannot, and cannot be required to, shut its eyes to the consequences of exercising the right not to give evidence in a case where assertions are made as to a state of knowledge or lack of knowledge on the part of an athlete.
3. Clarity and predictability are required so that the entire sport community are informed of the normative system in which they live, work and compete, which requires at the very least that they be able to understand the meaning of rules and the circumstances in which those rules apply. Therefore, if, when analysing different sets of rules, the interpretation of “individual sport” and “team sport” does not allow to clarify these definitions with a view of deciding whether or not the other members of a boat crew in which one member tested positive should also be sanctioned, the boat crew results should not be annulled.
In June 2009 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the Athlete after his sample tested positive for the prohibited substance stanozolol.
The Athlete elected to have the matter referred to a hearing by CAS who is given jurisdiction under the Anti-Doping Policy (ADP) of Surf Life Saving Australia (SLSA) to determine if a violation of the ADP has occurred.
The Sole Arbitrator CAS Panel has to rule about three issues:
a.) The jurisdictional issue – whether Mr. Atkins is bound by the Anti-Doping Policy (ADP) of SLSA;
b.) Whether, if Mr. Atkins was bound by the ADP, he committed Anti-Doping Rule Violations (the substantive dispute); and
c.) Whether, if Mr. Atkins committed Anti-Doping Rule Violations this had the effect of annulling the result of the Currumbin Barbarians Surf Lifesaving Club Men’s Open Surf Boat Team in the 2009 Australian Championships race (the sanction issue).
On 4 November 2009 the Court of Arbitration for Sports decides:
1.) The Court of Arbitration for Sport has jurisdiction to determine the substantive dispute by Arbitration.
2.) Peter Atkins is found to have committed two Anti-Doping Rule Violations in breach of Clause 7 of the Anti-Doping Policy of Surf Lifesaving Australia and Article 2 of the World Anti-Doping Code.
3.) The result obtained by Peter Atkins in the Men’s Open Surf Boat event conducted at the 2009 Australian Surf Lifesaving Championships is disqualified and any medals, points and prizes awarded to him are forfeited.
4.) Peter Atkins is ineligible to compete during the period commencing on 5 May 2009 and expiring at midnight on 4 May 2011.
5.) The result of the Currumbin Barbarians Surf Lifesaving Club Men’s Open Surf Boat Team in the 2009 Australian Championships race remains unchanged and the crew members Lyle Clark, Glen Williams, Randall Martin and Nick Parr are deemed to comprise the winning team.
(…).
