CAS 2009/A/1914 World Anti-Doping Agency (WADA) v. International Federation of Bodybuilding & Fitness (IFBB) & Kelli Johnson
- Bodybuilding
- Doping (possession of prohibited substances)
- Applicable law
- Scope of the appeal
- Significant fault or negligence excluding a reduction of the sanction
- Admission of a doping offense as mitigating circumstances justifying a reduction of the sanction
- Credit for delays in the proceedings not attributable to the athlete
1. If the rules contained in the three different versions of a federation’s Anti-Doping Rules (ADR) for 2007, 2008, 2009 are in all material respects the same in respect of the anti-doping violations committed by an athlete, the findings of violations are not affected by the fact that a federation hearing body may have been having regard to the wrong edition of the ADR. The fact that the last edition of the ADR contain different provisions in respect of penalties is not material in considering the violations alleged. Unlike the substantive anti-doping rules, the new procedural rules adopted by the federation apply as of the day of their entry into force.
2. The matter before the CAS panel is an appeal against the decision of the federation’s hearing body which was dealing with a specific allegation and found specific facts. It is not possible for WADA to seek to bring into the appeal matters with which the athlete was never charged and to seek to base the introduction of these matters on a copy of a document which was not in existence at the time of the federation’s hearing, the provenance of which was not the subject of any evidence.
3. So far as the “no significant fault” provision is concerned, it is well established that to benefit from a reduction of the otherwise applicable sanction an athlete must establish that s/he did not know or suspect and could not reasonably have known or suspected, even with the exercise of the utmost caution, that s/he had used or been administered the prohibited substance. The burden on an athlete seeking to establish “no significant fault or negligence” is high. Athletes are notably responsible for the choice of their medical personnel. The failure for a doctor to check the prescribed substance does not exclude the personal responsibility of the athlete especially if no evidence establish that the latter had taken any steps by way of precaution.
4. An athlete’s “admissions” of a doping offence cannot be taken into account as basis for mitigating the applicable penalty when such admissions are made because of the findings of the offending products in the athlete’s possession by the national customs.
5. Under the IFBB ADR, for a first violation, possession of prohibited substances should be sanctioned by a period of two years. If there have been delays in the proceedings which cannot in any way be attributed to the athlete, fairness requires that not only should the athlete be given credit for the period of ineligibility already served but that the remaining period should be treated as commencing before the date on which the decision is published.
This arbitration concerns the penalty of 6 months ineligibility imposed on Ms Johnson by a decision of the IFBB Hearing Panel dated 7 December 2008 for her violation of the IFBB Anti-Doping Rules (IFBB ADR), i.e. possession of the prohibited substances Prasterone (Dehydroepiandrosterone, DHEA) and Testosterone.
Hereafter in July 2009 the World Anti-Doping Agency (WADA) appealed the IFBB decision of 7 December 2008 with the Court of Arbitration for Sport (CAS). The IFBB and the Athlete failed to respond in this appeal.
The CAS Panel observes that in first instance the IFBB hearing panel determined that the period should be reduced to six months, to run as to three months before the date of the IFBB decision and three months thereafter. The basis of that decision appears to have been
- (1) that Ms Johnson was guilty of no significant fault or negligence in committing the offence and
- (2) that she had admitted a doping offence without there being any other reliable evidence of a violation.
This would have entitled the IFBB hearing panel to reduce the period of ineligibility under rule 10.5.4 of the 2009 edition of the Rules if
- (a) the relevant rules were the 2009 edition of the Rules,
- (b) the admission was made before she had received first notice of the admitted violation and
- (c) at the time of the admission the admission was the only reliable evidence of the violation.
The Panel concludes that the IFBB hearing panel was not entitled to reduce the period of ineligibility and deems that the Appealed Decision of the IFBB hearing panel was flawed. Further the Panel determines that there had been delays in the proceedings not attributed to the Athlete.
Therefore the Court of Arbitration for Sport decides on 1 February 2010:
1.) The appeal of the World Anti-Doping Agency against the decision of the IFBB Hearing Panel rendered on 7 December 2008 is allowed.
2.) Ms Kelli Johnson is sanctioned with a two year period of ineligibility, the period of six months ineligibility which she has already served being credited against that period and the remaining period of 18 months should be treated as commencing six months before the date of this award.
3.) All competitive results obtained by Ms Kelli Johnson from 7 September 2008 to the date of this award shall be disqualified with the consequent forfeiture of any medals, points or prizes.
4.) (…).
5.) Any further claims for relief are dismissed.
