CAS 2008/A/1489 Despres v/CCES
CAS 2008/A/1510 WADA v/Despres, CES & Bobsleigh Canada Skeleton
CAS 2008/A/1489 Serge Despres v. Canadian Center for Ethics in Sport (CCES) & CAS 2008/A/1510 World Anti-Doping Agency (WADA) v. Serge Despres, CCES & Bobsleigh Canada Skeleton (BCS)
Related case:
SDRCC 2007 CCES vs Serge Despres
January 31, 2008
- Bobsleigh
- Doping (nandrolone)
- Significant fault or negligence
- Enhancement of sport performance
- Proportionality of the sanction
- Starting date of the sanction
1. The athlete who did not contact the manufacturer of a nutritional supplement directly to seek a guarantee before ingesting it, has not taken a clear and obvious precaution. Simply believing such guarantees to be generic fails to explain why he/she did not take this additional, prescribed step. As a consequence, the athlete has not exercised a standard of care meriting a “no significant fault or negligence” reduction to the mandated two year period of ineligibility. The advice of a team nutritionist also constitutes an inadequate claim for establishing “no significant fault or negligence”.
2. The ingestion of a nutritional supplement for faster recovery after a surgery is a performance-related reason.
3. The proportionality doctrine gives the CAS panels flexibility in cases involving extreme or exceptional circumstances. As the risk of contamination in nutritional supplements is widely known, the circumstances surrounding an athlete’s adverse analytical finding are neither extreme nor unique in such case. As a result, there is no reason to reduce the two-year suspension period required under the applicable regulations.
4. Whatever effects a two-year ineligibility period would have on an athlete’s ability to qualify for the Olympics or any other competition should in the ordinary course not have any bearing on when the ineligibility period begins or how long it lasts. An athlete’s personal history or how severely the penalty would impact him or her given the particularities of his or her sport cannot be taken into account when fixing the penalty. This notwithstanding, and in accordance with the applicable regulations, fairness may require that the start date of an athlete’s ineligibility be the date of his or her first sample collection.
In November 2007 the Canadian Centre for Ethics in Sport (CCES) reported an anti-doping rule violation against the Athlete Serge Despres after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).
Thereupon the SDRCC Tribunal decided on 31 January 2008 to impose a 20 month period of ineligibility on the Athlete. In first instance the Tribunal accepted that a contaminated prescribed supplement was the source of the positive test.
Hereafter in February 2008 the Athlete and in March 2008 the World Anti-Doping Agency (WADA) appealed the SDRCC decision with the Court of Arbitration for Sport (CAS).
The Panel determined that the Athlete acknowledged having made a mistake, has expressed regrets and hopes to act as a spokesperson on this issue. However, he essentially argued that whenever an athlete can prove that the supplement is contaminated, he or she should be found to have acted with “no significant fault or negligence”.
Given the numerous warning about the risks of contaminated supplements, the Panel deems that contamination alone cannot be a sufficient basis for finding “no significant fault or negligence”.
Furthermore the Panel finds that the facts of this case do not warrant a reduction in the Athlete's period of ineligibility based on a proportionality analysis. As a result, the Panel does not reduce the two-year suspension period required under the WADC and the CADP.
Therefore the Court of Arbitration for Sport decides on 30 September 2008 that:
1.) The award of the SDRCC of January 31, 2008 is set aside.
2.) Mr. Serge Despres is declared ineligible for a period of two years, commencing on the date of his sample collection, August 9, 2007, and concluding on August 8, 2009. All results from competition on or after August 9, 2007 shall be considered void.
3.) To the limited extent specified in the prior paragraph, each of the appeals filed by Mr. Despres on February 19, 2008 and by WADA on March 31, 2008 is upheld.
4.) (…).
5.) All other prayers for relief are rejected.
