CAS 2015/A/4200 Nikola Radjen v. Fédération Internationale de Natation (FINA)
Related case:
FINA 2015 FINA vs Nikola Radjen
August 24, 2015
- Aquatics (water polo)
- Doping (benzoylecgonine; ecgonine methylester)
- Intent in cases of out of competition ingestion of Prohibited
- Substance prohibited only in competition
- No Significant Fault or Negligence beyond the application of Article 10.5.1 WADA Code
1. “Cheating” is a key element of the notion of “intent” as contained in the World Anti-Doping Code (WADA Code). By using a Prohibited Substance, an athlete wishes to obtain an advantage in comparison to other athletes. The athlete’s will is directed to achieve this advantage not only based on the own physical and/or psychical abilities as an athlete, but on additionally taking the Prohibited Substance; the will of an athlete using a Prohibited Substance, which is prohibited only in competition, out of competition in a context unrelated to sport performance is not directed to achieve such unfair competitive advantage and, thus does not mean “cheating”. In such case, there is no “intent” to be found.
2. An athlete who committed an anti-doping rule violation and who pleads for the application of No Significant Fault or Negligence beyond the application of Article 10.5.1 WADA Code based on the fact that at the time he consumed the Prohibited Substance he was suffering from depressions, caused by his father’s death, has to provide e.g. evidence of medical diagnosis for such disease, or testimony of an expert, that he suffered from an illness that would have excluded or reduced his ability of cognizance.
On 24 August 2015 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Athlete Nikola Radjen after his samples – provided in February and April 2015 – tested positive for the prohibited substance cocaine.
Hereafter the Athlete appealed the FINA Doping Panel decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to impose a reduced sanction and he filed additional evidence in his defence.
The Athlete already had admitted the violation to FINA and argued that the use of cocaine was out-of-competition in a context unrelated to sport performance. The Athlete asserted that he provided sufficient evidence that he used the cocaine due to his depression caused by the death of his father and bad sporting results with his club.
Considering the arguments and evidence in this case the Panel finds that the sanction of two years of ineligibility is not disproportionate to the offence and reflects the extent of the Athlete's fault.
The Court of Arbitration for Sport decides on 17 June 2016:
1.) The appeal filed on 11 September 2015 by Mr Nikola Radjen against the decision of
the FINA Doping Panel of 24 August 2015 is partially upheld.
2.) The decision of the FINA Doping Panel of 24 August 2015 is set aside.
3.) Mr Nikola Radjen is sanctioned with 2 (two) years of ineligibility commencing on 17 February 2015.
4.) All competitive results obtained by Mr Nikola Radjen on or after 17 February 2015 until the end of the period of Ineligibility are disqualified. All awards and prizes achieved by Mr Nikola Radjen on 17 February 2015 and 14 April 2015 shall be forfeited.
5.) The present arbitration proceeding shall be free, except for the CAS Court Office fee of CHF 1,000 (one thousand Swiss Francs), which has already been paid by the Appellant and which is retained by the CAS.
6.) Each party shall bear his/its own costs incurred in connection with this arbitral proceeding.
7.) All other or further motions or prayers for relief are dismissed.
