CAS 2016/A/4439 Tomasz Hamerlak v. International Paralympic Committee (IPC)
Athletics (long distance - marathon)
Doping (stanozolol)
Personal responsibility of the athlete and involvement of the coach and the federation in the distribution of supplements
Proof of the source of the prohibited substance
Athlete’s intent and burden of proof
Athlete belonging to a Registered Testing Pool as an argument for the question of intent/lack of intent
Sporting relevance of the specific promotional race as an argument for the question of intent/lack of intent
1. The personal responsibility of the Athlete laid down by Articles 10.2 and 2.1.1 of the IPC Code (equivalent to the WAD Code) makes mute any effort of an athlete to justify his/her behaviour by arguing that he/she acquired the supplements, he/she considered to be the source of the prohibited substance, through his/her coach and upon the coach’s recommendation from the federation. Even if a CAS panel finds also the involvement of the coach and the federation in buying and distributing supplements to athletes as risky and rather doubtable, their involvement cannot exculpate an athlete.
2. Even if an athlete undertakes a series of actions in order to find out the source of the prohibited substance assuming that it originated from one of the supplements or a cream he/she used or meat he/she ate, the failure of providing any proof as to the origin of the prohibited substance cannot be repaired through his/her efforts in this respect.
3. As to the athlete’s intent, according to Article 10.2.1.1 of the IPC Code (WAD Code), the burden of proof lies with the athlete, who has to establish, at a balance of probability, that the anti-doping rule violation was not intentional.
4. The argument that an athlete belongs to the relevant Registered Testing Pool subject to the respective whereabouts commitments and, due to excellent sportive results, has to undergo frequent doping controls is an argument which is true for all athletes on a Registered Testing Pool. However, general experience shows, that irrespective of such obligation and experience of all top-level athletes, belonging to a Registered Testing Pool does not protect against taking prohibited substances. Such an argument has no evidentiary relevance for the question of intent or lack of intent as to the commitment of an anti-doping rule violation.
5. The argument that a specific promotional race was of no sportive relevance for a marathon sportsman is not relevant for the question of intent or lack of intent but merely belongs to the list of speculations.
In August 2015 the International Paralympic Committee (IPC) reported an anti-doping rule violation against the Polish Paralympic Athlete Tomasz Hamerlak after his sample tested positive for the prohibited substance stanozolol. On 27 December 2015 the Anti-Doping Committee of the IPC decided to impose a 4 year period of ineligibility on the Athlete.
Hereafter in February the Athlete appealed the IPC decision with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel for a reduced sanction and did not dispute the violation. The Athlete asserted that the violation was non intentional and probably the result of the use of a contaminated food product or contaminated meat in June or July 2015.
The Panel finds that the Athlete could not demonstrate that the use of stanozolol happened without intent. All that he could present were mere speculations and assumptions. The Panel even wishes to emphasize that the Athlete acted risky by taking a long list of supplements, knowing from scientific articles he himself quoted, that they may be contaminated. Besides, the number and kind of supplements, indicated by the Athlete, was changed by him in the course of the proceedings, a fact, which shakes reliability and credibility of the Athlete.
Therefore the Court of Arbitration for Sport decides on 4 July 2016 that:
1.) The appeal filed by Mr. Tomasz Hamerlak on 3 February 2016 is dismissed.
2.) The decision of the International Paralympic Committee dated 27 December 2015 imposing a four-year period of ineligibility is upheld.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.
