CAS 2012/A/2756 James Armstrong v. World Curling Federation (WCF)
Related case:
World Curling Federation 2012 WCF vs James (Jim) Armstrong
March 6, 2012
- Wheelchair curling
- Doping (Tamoxifen)
- Relation between Article 10.5.1 and Article 10.4 WADA Code
- Use of utmost caution by an athlete when storing his medicine
- Strict approach in the CAS power reviewing the discretion enjoyed by the disciplinary body of an association to set a sanction
- Requirements to be met in case of “no significant fault or negligence”
1. Article 10.5.1 WADA Code is the applicable rule in the event that an athlete is able to establish that he bears no fault or negligence in connection with the presence of a Specified Substance in his sample. This follows from the fact that Article 10.4 does not provide for a complete elimination of any sanction, but rather stipulates a “reprimand” as the most lenient consequence of the presence of a Specified Substance in a sample. In a case where an athlete is found to bear no fault at all, he cannot be sanctioned, not even with a reprimand, and this is what is provided for in Article 10.5.1 which applies to Specified and non-Specified Substances. By contrast, when negligence in connection with a Specified Substance comes into play, Article 10.4 is lex specialis vis-à-vis Article 10.5.
2. The fact that the athlete stored his own medicine together with the medicine of his wife in a box and also reused containers of Tamoxifen, certainly does not constitute an exercise of utmost caution. It should have been more than obvious to the athlete that the medicine could have been easily mistaken. This consideration would and could have been made by any person and does not even require utmost caution, but rather any form of ordinary caution, no matter whether the respective person is a health professional or not.
3. CAS “enforces a strict approach in the definition of its power reviewing the exercise of the discretion enjoyed by the disciplinary body of an association to set a sanction”. This Panel confirms the CAS jurisprudence according to which the measure of the sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rules, can be reviewed only when the sanction “is evidently and grossly disproportionate to the offence”. According to CAS jurisprudence, the sanction imposed on an athlete must not be disproportionate to the offence and must always reflect the extent of the athlete’s guilt.
4. According to CAS case law “the requirements to be met by the qualifying element «no significant fault or negligence» must not be set excessively high … [nor] too low”.
In January 2012 the Wold Curling Federation (WCF) has reported an anti-doping rule violation against the Athlete James Armstron after his sample tested positive for the prohibited substance Tamoxifen.
The Athlete was notified but not provisional suspended thereafter. He filed a statement and supporting evidence in his defence and was heard for the WCF Case Hearing Panel.
The Athlete explained he had moved from the West Coast to Ontario after his wife died of breast cancer in 2009. All his prescription medications were moved in the same box, including those belonging to his wife. Occasionally when he became short of medications he would use the medication in this box and therefore unwittingly contamination occurred of his medication with old prescribed Tamoxifen medication of his deceased wife.
The Panel found that Athlete acted negligently in storing, repackaging and reusing medicine containers with or without their contents (in this case Tamoxifen), particularly containers of drugs prescribed for another person. The Panel was not convinced that in this case the level of Tamoxifen detected is compatible with a simple contamination but as a residue of and ingestion of the substance.
Considering that the Athlete was seriously negligently, yet without evidence of intent or actual enhancement of performance exists, the WCF Case Hearing Panel decided to impose an 18 month period of ineligibility on the Athlete.
Hereafter in March 2012 the Athlete appealed the WCF decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.
Following assessment of the case the Panel concludes that the Athlete indeed committed an anti-doping rule violation. However the Panel deems that the sanction of 18 months is disproportionate and that a reduced sanction must be imposed.
Therefore the Court of Arbitration for Sport decides on 21 September 2012:
1.) The appeal filed on 25 March 2012 by Mr. James P. (Jim) Armstrong against the decision issued on 6 March 2012 by the WCF under the provisions of the WCF Anti-Doping-Rules, is partially upheld.
2.) The decision issued on 6 March 2012 by the WCF Hearing Panel is set aside. A period of ineligibility of six (6) months commencing on 6 March 2012 is imposed on the Appellant.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief submitted by the parties are dismissed.
