CAS 2015/A/3899 Flomena Chepchirchir Chumba v. Athletics Kenya
- Athletics
- Doping (terbutaline)
- De novo hearing
- Requirements related to the application of a reduced period of ineligibility for the use of a Specified Substance
- No intent to enhance sport performance
- Duties of the athlete
- Determination of the applicable sanction
1. Even if an athlete was deprived of an essential right i.e. of the opportunity for a hearing before the national sport federation, this fatal defect in the procedure is however overcome by the fact that CAS appeal is by way of a hearing de novo of the issues on appeal.
2. Under IAAF Rule 40.4, where an athlete can establish how a Specified Substance entered his/her body and that such Specified Substance was not intended to enhance the athlete’s sport performance, the penalty for the anti-doping offence on a first violation will be at a minimum, a reprimand and no period of ineligibility from future competitions and, at a maximum, two (2) years’ ineligibility.
3. According to the comfortable satisfaction standard, the proof that an athlete had no intention of enhancing his/her sporting performance can be demonstrated by the athlete’s open declaration of a product (containing the prohibited substance) on the doping control form.
4. Under IAAF Rule 32.2 an athlete is responsible for knowing what constitutes an anti-doping rule violation and the substances and methods which have been included on the Prohibited List. Furthermore, under Rule 32.2(a)(i), it is the athlete’s personal duty to ensure that no prohibited substance enter his/her body.
5. An experienced international athlete must take real steps to ensure that he/she did not commit an anti-doping violation by taking a prohibited substance. An increase in doping cases in the athlete’s country is not a factor which weighs against the athlete for each case has to be judged on its own particular merits. Although a period of ineligibility is the proper penalty where an athlete took no real precautions to avoid committing an anti-doping offence and had scant regard for her obligations under the IAAF Rules, proper credit must be given for all that can be said on behalf of the athlete i.e. the fact that the offence was committed by negligence and not by any deliberate decision to
In November 2014 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Kenyan Athlete after her sample tested positive for the prohibited substance terbutaline.
After notification the Athlete promptly admitted the violation and stated that she had used a product for her throat a few days before the completion where she was tested and without knowledge that is contained a prohibited substance.
Because Athletics Kenya used an incorrect email address to contact the Athlete she was not informed about the proceedings and her right to request a hearing. As a result without the Athlete’s knowledge Athletics Kenya rendered on 19 December 2014 a decision imposing a 6 month period of ineligibility on the Athlete. Also this decision of Athletics Kenya was sent to the incorrect email address.
The Athlete was unaware of the decision until the fact that she was listed as subject to a 6 month ban appeared on the IAAF website and in the IAAF Newsletter. Also without a provisional suspension the Athlete had competed in two races in the period between the competition were she tested positive and sending of the decision letter.
After the Athlete’s agent contacted the IAAF and the decision of Athletics Kenya was communicated to her in January 2015 the Athlete appealed this decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel for acquittal or to impose a lesser sanction.
The Athlete argued that she had never been made aware of the disciplinary proceedings because the Athletics Kenya had sent all relevant correspondence to the wrong email address. As a result she never had any opportunity to request a hearing and she was wrongly sanctioned without having any chance to present her case. The Athlete further asserted that Athletics Kenya had breached multiple procedural rules.
Athletics Kenya acknowledged that the Athlete had not received several notifications. Further it contended that the Athlete had admitted the violation and that the sanction was proportional as recommended by the IAAF.
The Sole Arbitrator finds that due to the error with the email address the Athlete was deprived of the opportunity for a hearing which had been overcome in the CAS procedure as a hearing de novo of the issues on appeal.
The Athlete had promptly admitted the violation, established how the prohibited substance entered her system, acted without intention to enhance and mentioned the use of the product on the Doping Control Form.
Considering these circumstances the Sole Arbitrator concludes that it is appropriate to impose a 4 month period of ineligibility on the Athlete with disqualification of her results obtained at the competition where she tested positive.
Therefore the Court of Arbitration for Sport decides on 3 July 2015 that:
1.) The appeal of Ms Filomena Chipchercher Chumba is partially upheld.
2.) The decision of Athletics Kenya dated 19 December 2014 is set aside. Ms Filomena Chipchercher Chumba is sanctioned with a period of four (4) months Ineligibility commencing as of 19 December 2014.
3.) All competitive results obtained on 6 September 2014 during the Birell Prague GP are disqualified, including the forfeiture of any titles, awards, medals, points and prize and appearance money.
4.) The costs of the arbitration, to be calculated and communicated to the parties by the CAS Court Office, shall be borne 80% by Athletics Kenya and 20% by Ms Filomena Chipchercher Chumba.
5.) Athletics Kenya shall pay a contribution of CHF3000 towards Ms Filomena Chipchercher Chumba's legal costs and expenses.
