CAS 2009/A/1898 World Anti-Doping Agency (WADA) v. International DanceSport Federation (IDSF) & Boris Maltsev & Zarina Shamsutdinova
- Dance sport
- Doping (refusal to submit to doping control)
- Applicability of the principle of equality of treatment between athletes
- Absence of justification for the refusal to submit to control
- Absence of mitigating factors for the otherwise applicable sanction
1. Neither the equality of treatment between elite athletes competing in different sports at a worldwide level, nor the rationale of anti-doping rules, allow to follow the reasoning according to which the level of awareness of competing athletes regarding applicable rules might be inferior in small federations with less means, which should lead to more indulgence when examining their required degree of diligence. Both the World Anti-Doping Programme and the rules of the federation make this clear and forbid doping. Indeed, the purpose of the World Anti-Doping Code is to protect the athletes’ fundamental right to participate in doping-free sport and thus promote health, fairness and equality for athletes worldwide and to ensure harmonized, coordinated and effective anti-doping programs at the international level with regard to detection, deterrence and prevention of doping.
2. According to the applicable rule, an athlete shall only be entitled to refuse to provide a blood or urine sample in circumstances where the “mandatory procedures and safeguards” set out in the regulations are not observed. The reference to mandatory procedures and safeguards must be understood as a reference to the rules and procedures that exist to enable doping controls to be organized in an efficient, orderly, safe and fair manner. In this respect, the absence of a representative of the national federation cannot be deemed a violation of a mandatory safeguard, as no rule exists that provides for such a presence. Likewise, the absence of a warning that doping control might occur cannot be considered a violation of any mandatory procedure or safeguard either. Finally, the federation’s rules neither have the purpose nor the effect of making the duty of submitting to a doping control subject to the signing of a consent form; the athletes acquire that duty by participating in the competition.
3. There is no necessary causal link between the actions of the various sport authorities which might not have properly implemented the anti-doping rules and the fault of the athletes which relieves the latter from their own responsibility. Presenting excuses after the facts cannot be considered as a mitigating factor of the violation consisting in the refusal to undergo the doping test. If no elements can be deemed mitigating factors, the athletes are deemed significantly negligent in refusing to undergo a test. As a result the sanction cannot be reduced and the ineligibility period to be applied is two years.
In December 2008 the Asian DanceSport Federation (ADSF) reported an anti-doping rule violation aginst the Kazakh dancers Boris Maltsev and Zarina Shamsutdinova for their refusal to submit to sample collection at the 2008 IDSF Asian Championships Latin on 7 December 2008. Consequently on 3 June 2009 the IDSF Disciplinary Council decided to sanction the Athletes for 1 year.
Hereafter in July 2009 the World Anti-Doping Agency (WADA) appealed the IDSF Decision with the Court of Arbitration for Sport (CAS). WADA requested to set aside the Appealed Decision and to impose a sanction of 2 years on the Athletes.
Following assessment of the case the Panel determines that:
- The Athletes' refusal to submit to a doping control is undisputed.
- They refused the test, although they were warned twice about the gravity and the consequences of such refusal.
- No “mandatory procedures and safeguards” protecting athletes have been violated in this case.
- There exists no justification for the refusal to submit to the control, with the consequence that the Athletes must be deemed to have committed an anti-doping rule violation.
- There are no elements, which can be deemed mitigating factors.
- The Athletes were significantly negligent in refusing to undergo the test.
Therefore the Court of Arbitration for Sport decides on 3 March 2010:
1.) The appeal of WADA against the decision of the IDSF Disciplinary Council, dated 3 June 2009, is declared admissible and upheld.
2.) The decision of the IDSF Disciplinary Council, dated 3 June 2009, in the matter of Boris Maltsev and Zarina Shamsutdinova is set aside.
3.) Boris Maltsev and Zarina Shamsutdinova are sanctioned with a two-year period of ineligibility starting on 7 December 2009, with the period of one year of ineligibility already served by the Athletes being credited against the total period of ineligibility to be served.
4.) All competitive results obtained by Boris Maltsev and Zarina Shamsutdinova from 7 December 2008 through the date of this award shall be disqualified with all of the resulting consequences including forfeiture of any medals, points and prizes.
(…)
7.) All other claims and prayers for relief are dismissed.
