CAS OG 12/06 Ángel Mullera Rodriguez (Spain) vs the Royal Spanish Athletics Federation (Real Federación Española de Atletismo – RFEA), the Spanish Olympic Committee (Comité Olímpico Español – COE) & Superior Sports Council (Consejo Superior de Deportes – CSD)
Mr Ángel Mullera Rodriguez is a Spanish Athlete competing at international level as runner in the 3000m Steeplechase and he was selected for the Spanish Olympic athletics to compete at the London 2012 Olympic Games.
On 20 July 2012 the Technical Committee of the Royal Spanish Athletics Federation (RFEA) decided to exclude the Athlete to be part of the Spanish Athletics Team and his participaton at the London 2012 Olympic Games.
Reason for this decision was that the RFEA and CSD had received emails exchanged between the Athlete and an unnamed trainer concerning doping practices. In those emails, Mr Mullera and the trainer were explicit in asking and giving advice on some very specific doping protocols and on how to come out clean in any anti-doping controls. Also a Spanish newspaper published in July 2012 about these emails.
The RFEA and CSD had anonymously received those emails about six months earlier and because of the emails’ content they had subjected the Athlete to several out-of-competition anti-doping tests, with no adverse analytical findings.
The Athlete stated to the RFEA that the emails had been partially manipulated. He admitted that some parts of the emails were authentic and that he had in fact inquired about some doping protocols. However, he denied he followed the trainer’s advice or ever doped.
On 23 July 2012 the RFEA Disciplinary Committee rejected an application to open disciplinary proceedings against the Athlete for an anti-doping rule violation. The RFEA Disciplinary Committee stated that the evidence was not sufficient to ascertain an anti-doping rule violation.
Requested by the CSD the RFEA Disciplinary Committee opened on 26 July 2012 a new disciplinary procedure against the Athlete for his possible violation of “notorious and public acts going against the dignity and decorum of sports”.
Hereafter on 29 July 2012 the Athlete filed an appeal with the Court of Arbitration for Sport (CAS) Ad hoc Division at the same time the latest RFEA disciplinair procedure was still pending.
The Athlete requested the Panel to set aside the decision to exclude him and to order the RFEA to re-admit him to the Spanish Athletics Teams for his participation at the London 2012 Olympic Games. The Athlete argued that the RFEA decision to exclude him was wrong and breaching the applicable laws and regulations.
The CAS Panel has seen no evidence of a true technical reason behind the Athlete’s exclusion, the Panel finds that the RFEA arbitrarily excluded Mr Mullera from the Spanish team and thus violated its own selection criteria. Indeed, the discretion that a national federation can exert in selecting or de-selecting an athlete may not go as far as to become arbitrary. The Panel points out that this is not to be taken to mean that a national federation or a National Olympic Committee shall always be prevented from excluding an athlete from the national team if he or she is suspected of having doped, as is the case here. However, this precautionary exclusion of an athlete for ethical reasons, prior to any disciplinary sanction, must be provided by the pertinent selection rules. It is, of course, a matter for the RFEA to consider whether it wishes to amend its own rules in order to have the right to exclude an athlete from the Spanish national team if he or she is suspected of having behaved improperly with regard to doping matters.
The Panel wishes to express in clear terms that it does not intend to condone Mr Mullera’s inappropriate behaviour and that it fully understands the position of sports bodies which genuinely wish to fight against doping and, therefore, take appropriate measures in cases where one of their athletes behaves inappropriately. The Athlete’s exchange of emails asking how to dope and how to escape anti-doping controls strikes at the very heart of the fight against doping. Whether such behaviour is simply reproachable, or an "attempted use" in the meaning of the World Anti-Doping Code or a "notorious and public act against the dignity and decorum of sports" in the meaning of the Spanish Sports Disciplinary regulation, is not for this Panel to decide.
In any case, as accepted by the Athlete himself, his enquiries regarding doping methods were entirely inappropriate, and the Panel relies on the disciplinary proceedings that the RFEA’s Disciplinary Committee has commenced against the Applicant in order that the matter be investigated and, as appropriate, pursued through the proper channels.
The Panel holds that many will consider Mr. Mullera to be extremely fortunate to be the beneficiary of the RFEA’s improper procedural course and of the lacuna in the RFEA’s selection criteria. However, under the current rules and considering the explanation given by the RFEA, the RFEA may not exclude Mr. Mullera from the Spanish team for the London Olympic Games.
Therefore the Ad hoc Division of the Court of Arbitration for Sport decides on 1 August 2012 that:
1.) The application filed by Mr Ángel Mullera Rodriguez is partially upheld.
2.) The CAS does not have jurisdiction ratione personae over the Superior Sports Council (Consejo Superior de Deportes).
3.) The decision of the Royal Spanish Athletics Federation of 20 July 2012 to exclude Mr Ángel Mullera Rodriguez is set aside.
4.) The selection of Mr Ángel Mullera Rodriguez in the Spanish Olympic team is confirmed.
5.) The Royal Spanish Athletics Federation and the Spanish Olympic Committee are ordered to take all arrangements necessary to enable Mr Ángel Mullera Rodriguez to participate in the 3000m Steeplechase discipline at the XXX Olympic Games in London.
6.) All other requests or motions for relief are rejected.
