CAS 2014/A/3548 Indra Gunawan v. Fédération Internationale de Natation (FINA)
Related cases:
- FINA 2014 FINA vs Gunawan Indra
March 1, 2014 - CAS 2014_A_3549 Putera Guntur Pratama vs FINA
September 2, 2014 - FINA 2014 FINA vs Putera Guntur Pratama
March 1, 2014
- Aquatics (swimming)
- Doping (methylhexaneamine)
- Filing of the statement of appeal according to Article R48 CAS Code
- Elimination or reduction of the sanction based on Article 10.4 WADC
- Absence of intent to enhance sport performance as a condition for the application of Article 10.4 WADC
- Fault as the decisive criterion to determine the period of ineligibility according to CAS case law
- Description of the objective element of fault
- Description of the subjective element of fault
1. In accordance with Article R48 of the Code, if necessary, “the CAS Court Office may grant a one-time-only short deadline to the Appellant to complete its statement of appeal, failing receipt of which within the deadline, the CAS Court Office shall not proceed”. This procedure is respected if the Appellant submits the missing elements of the appeal on time but by email only and the formal requirements are completed within the deadline set by CAS.
2. To justify any elimination or reduction of the sanction based on Article 10.4 FINA DC (and of Article 10.4 WADC), the Competitor or other Person must produce corroborating evidence in addition to his or her word which establish to the comfortable satisfaction of the hearing panel the absence of an intent to enhance sport performance or mask the Use of a performance enhancing substance. The Competitor’s or other Person’s degree of fault shall be the criterion considered in assessing any reduction of the period of ineligibility.
3. In order to satisfy the second condition of Article 10.4 WADC, the athlete must establish the absence of an intent to enhance sport performance at the time of its ingestion. The starting point of the controversy surrounding the correct interpretation of the condition “absence of an intent to enhance sport performance” is the fact that in the second paragraph of Article 10.4 WADC (and of Article 10.4 FINA DC) there is no mention of the word “substance” (as there is in the first paragraph) in connection with the evidential burden to “produce corroborating evidence” that the athlete did not intend to enhance sport performance. Therefore, the key question is whether the intent to enhance sport performance relates to the use of the specified substance or to the product itself in which it was contained.
4. According to CAS case law and pursuant to Article 10.4.3 WADC, the decisive criterion to determine the period of ineligibility is fault. One can distinguish between the following degrees of fault: (a) significant degree of or considerable fault; (b) normal degree of fault; and (c) light degree of fault. When applying these three categories to the possible sanction range of 0-24 months, CAS case law arrives at the following sanction ranges: Significant degree of considerable fault: 16-24 months, with a “standard” significant fault leading to a suspension of 20 months. Normal degree of fault: 8-16 months, with a “standard” normal degree of fault leading to a suspension of 12 months. Light degree of fault: 0-8 months, with a “standard” light degree of fault leading to a suspension of 4 months. In order to determine into which category of fault a particular case might fall, one must consider both the objective and the subjective level of fault.
5. The objective element of fault describes what standard of care could have been expected from a reasonable person in the athlete’s situation. The subjective element of fault describes what could have been expected from that particular athlete, in light of his personal capacities. The objective element is foremost in determining into which of the three relevant categories a particular case falls. The subjective element can then be used to move a particular athlete up or down within that category. The consistent approach of the CAS to date has been to qualify the athlete’s fault as objectively significant if the product in question is advertised, sold, or distributed as being performance enhancing.
6. Subjective factors of fault may include that: the athlete researched the product on the internet; consulted a team coach or doctor; confirmed the statements about the product made by the salesman with an independent source; consulted the WADA List of Prohibited Substances or his sporting federation; or relied on assurances or assistance from a trusted source, such as a family member or close confident. While these factors are not determinative of the appropriate sanction, they are considerations that a CAS panel may take into account when assessing the athlete’s degree of fault.
In July 2013 the Olympic Council of Asia (OCA) has reported an anti-doping rule violation against the Indonesian Swimmer Hunawan Indra after his A and B samples tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).
The Athlete stated that he had used the supplement Jack-3D provided by the Swimming Team coach and he was not aware that it contained a prohibited substance.
On 13 August 2013 the Disciplinary Commission of the Indonesia Anti-Doping Institute (LADI) decided to impose a 3 month period of ineligibility on the Athlete for the non intentional violation.
FINA examined the Athlete’s case to consider his Fault or Negligence and on 1 March 2014 the FINA Doping Panel decided to impose a 2 year period of ineligibility on the Athlete.
Hereafter in April 2014 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS). The Athlete requested to set aside the FINA decision of 1 March 2014 and to reinstate him. The Athlete argued that he didn’t know the supplement contained any prohibited substances and he had less understanding of the prohibited substances.
The Panel finds it undisputed that the Indonesian National Swimming Team’s coach, Albert Sutanto, encouraged all members of the team to take Jack-3D, the supplement which contained the banned substance and the Athlete did not know that the supplement contained a banned substance.
The Panel considers that the Athlete did very little to assure himself that Jack-3D was “safe” or did not contain the prohibited substance, the Panel finds that he has shown a significant degree of considerable fault. Consequently the Panel concludes that the Athlete is to be sanctioned with a period of ineligibility of 18 (eighteen) months.
Therefore the Court of Arbitration for Sport decides on 2 September 2014 that:
1.) The appeal filed on March 28, 2014 by Indra Gunawan against the decision handed down on March 1, 2014 by FINA is partially upheld.
2.) The decision of the FINA Doping Panel dated on March 1, 2014 is set aside and replaced by the following:
3.) Mr. Indra Gunawan is sanctioned with a period of ineligibility of eighteen (18) months, commencing on July 1, 2013.
4.) All sporting results obtained by Mr. Indra Gunawan from July 1, 2013, up to the expiry of the period of ineligibility shall be invalidated.
(…)
7.) All other motions or prayers for relief are dismissed.
