CAS 2005/A/990 Pobyedonostsev v/IIHF
CAS 2005/A/990 P. v. IIHF
- Ice Hockey
- Doping (nandrolone)
- Strict liability
- No fault or negligence
- Liability for failing to disclose a medical treatment and to apply for a (retroactive) TUE
1. It is generally accepted and has been recognised by the CAS in numerous awards that the so-called strict liability principle is not objectionable under Swiss law as long as the athlete has a right to adduce counter evidence as to his/her fault or negligence in connection with his/her doping violation.
2. Art. 10.5 WADC burdens the athlete with proving the absence of (significant) fault or negligence on his/her part thus shifting the burden of proof to the athlete. This principle has been recognised by CAS as not being in violation of Swiss law. The standard of proof is a balance of probability (Art. 3.1 WADC).
3. The clear evidence that a prohibited substance was administered by the treating doctor in an emergency situation and that the athlete had no means of preventing its administration because of his/her very bad physical and psychological condition is a sufficient reason to discharge the athlete’s burden of proof of no fault or negligence in the circumstances of the case.
4. The WADC is not entirely clear as to whether the athlete has to prove that he/she is without fault or negligence not only in connection with the entering of the substance into his/her body but also in respect of that substance staying there. In other words, the question is whether an athlete is still liable for an anti-doping violation if he/she negligently fails to disclose his/her medical treatment and to apply for a (retroactive) TUE. This question can remain unanswered in the present case due to its unique circumstances.
On 14 November 2005 the International Ice Hockey Federation Disciplinary Committee (IIHFDC) decided to impose a 2 year period of ineligibility on the Ukranian ice hockey player Oleksandr Pobyedonstev after he tested positive for the prohibited substance 19-norandrosterone (Nandrolone).
Hereafter the Athlete appealed the IIHFDC decision with the Court of Arbitration for Sport (CAS).
On the basis of the evidence the Panel finds that sufficient evidence has been provided by the Athlete that under the unique circumstances of this case he was unable to influence or control the medical treatment applied to him in an emergency situation. In these circumstances he was unable to prevent the treating doctor from administering a prohibited substance.
The Panel is thus of the opinion that the Athlete demonstrated that he was without fault or negligence for the anti-doping rule violation and that the otherwise applicable period of ineligibility must be eliminated.
The Panel holds that the Athlete would in fact have been obligated to apply for a retroactive TUE and that his failure to do so makes him liable for sanctions under the Code unless he establishes that he bears no fault or negligence in connection with this failure.
The Panel does not have to decide whether this is the proper construction of the Code because in the unique circumstances of this case the Athlete bears no fault or negligence for his failure to disclose his treatment and to apply for a (retroactive) TUE. The evidence has shown that the Athlete found out long after his positive test that he had been treated for a heart condition.
From the Athlete’s perspective, he was taken to the hospital after he was body checked and had hit the boards very hard. He left the hospital less than 24 hours after the incident and was able to resume training soon thereafter.
Under these circumstances, the Panel considers that the Athlete had no reason to suspect that he was treated with a substance which – contrary to practice in Western Europe – was being applied for a heart condition. Therefore, the Athlete was without fault or negligence in connection with his failure to disclose his treatment and to apply for a (retroactive) TUE.
The Court of Arbitration for Sport decides on 24 August 2006 that:
1.) The Appeal filed by Oleksandr Pobyedonstev on 1 December 2005 is upheld.
2.) The decision and the suspension imposed on P. by the Disciplinary Committee of the International Ice Hockey Federation on 14 November 2005 are annulled.
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