CAS ad hoc Division (OG London) 12/007 International Canoe Federation (ICF) v. Jan Sterba
Related case:
CAS OG_2012_05 Jan Sterba vs WADA
July 30, 2012
Canoe
Doping (ß-methylphenylethylamine)
BM as a specified stimulant
Application of Art. 10.5.2 in a case where Art. 10.4 applies
Measure of the sanction
1. By virtue of the written and oral evidence given by the different experts, the nature of the substance ß-methylphenylethylamine (BM) has been established to the satisfaction of the hearing panel as being a stimulant. The clear way the supplement is presented by its manufacturer also supports this conclusion. It follows that, under the clear wording of the 2012 Prohibited List, BM is a prohibited substance. However, BM is not expressly listed in Art. S6a of the prohibited list under Non-Specified Substances. As the final sentence of S6a provides that a stimulant not expressly listed in this section is a Specified Substance, BM is therefore a Specified Substance.
2. Arts. 10.5.1 and 10.5.2 of the ICF Anti-Doping Rules are meant to have an impact only in cases where the circumstances are truly exceptional and not in the vast majority of cases. Art. 10.5.2 should not be applied in cases where Arts. 10.3.3 or 10.4 apply, as those articles already take into consideration the athlete’s degree of fault for purposes of establishing the applicable period of ineligibility.
3. The facts that an athlete has established how the Specified Substance entered his or her body, that he acted from the very beginning in the utmost of good faith, that it is undisputed that he did not seek to gain a competitive advantage, that he compared the ingredients of the nutritional supplement with the 2012 Prohibited List, that he then sought the advice of an independent, qualified practitioner, that he declared the supplement on his Doping Control Form and that he is a senior athlete with a long-term clean anti-doping record, show to the requested comfortable degree of satisfaction of the hearing panel, a degree of fault to be so small that it justifies the full reduction of the period of ineligibility to no period, and the sanction of a reprimand.
In June 2012 the International Canoe Federation (ICF) has reported an anti-doping rule violation against the Czech Athlete Jan Sterba after his his A and B samples tested positive for the prohibited substance β-methylethylamine (BM).
The ICF considered this a substance included under the clause, “any other substances with similar chemical structure and similar biological effect(s), as expressed in the final sentence of category S6b of the 2012 Prohibited List.
On 9 July 2012 the ICF Doping Control Panel (ICF DCP) decided to impose a 6 month period of ineligibility on the Athlete. The Athlete appealed this decision with the ICF Court of Arbitration (ICFCA) which decided on 24 July 2012 to set aside the decision of the ICF DCP and ruled that “No anti-doping rule violation has been committed by Mr. Jan sterba” based on the conclusion the ICF has not established that the substance BM was to be considered a prohibited substance under the 2012 Prohibited List.
Hereafter on 29 July 2012 the ICF appealed the ICFCA decision of 24 July 2012 with the CAS ad hoc Division at the London Olympic Games because of the Athlete’s filed previously an application with the CAS ad hoc Division (CAS OG 12/007) about his participation at the Olympic Games.
The ICF requested the Panel to set aside the ICFCA decision of 24 July 2012 and to uphold the previous ICF DCP decision imposing a 6 month period of ineligibility on the Athlete.
In this case the Presence of the Substance BM in the Athlete’s samples was not disputed. Nor was disputed the structural similarity of BM to substances included in the 2012 Prohibited List at S6b (Levmetamfetamine and Phenpromethamine). It follows that, the issues to be decided by the Panel are:
a) Is BM a Prohibited Substance?
b) Had the Respondent violated the Anti-Doping Rules?
c) If so, what, in the circumstances of this specific case, should the appropriate sanction be?
The Panel finds that BM is a Specified Stimulant as a prohibited substance and the Athlete has committed an Anti-Doping violation under the ICF Rules.
Previously the Athlete has established how the Specified Substance entered his body through his use of the Supplement. It was accepted by the ICF that the Athlete did not intend to cheat and it is the Athlete’s first violation.
The Panel concludes, considering the Athlete’s degree of fault, that it is comfortably satisfied that the Athlete has acted from the very beginning in the utmost of good faith; that it is undisputed that he did not seek to gain a competitive advantage; that he compared the ingredients of the Supplement with the 2012 Prohibited List; that he then sought the advice of an independent, qualified practitioner; that he declared the Supplement on his Doping Control Form and that he is a senior athlete with a long-term clean anti-doping record, and so considers the Athlete’s degree of fault to be so small that it justifies the full reduction of the period of ineligibility to no period, and the sanction of a reprimand.
Therefore the ad hoc Division of the Court of Arbitration for Sport decides on 6 August 2012:
1.) The Application filed by the International Canoe Federation is partially upheld.
2.) The decision of the International Canoe Federation Court of Arbitration of 24 July 2012 is set aside.
3.) The Respondent, Mr Jan Sterba, is found guilty of the offence of using a Prohibited Substance under the International Canoe Federation Anti-Doping Rules.
4.) The sanction of a reprimand is imposed on the Respondent, Mr Jan Sterba.
5.) All other requests or motions for relief are rejected.
