CAS A2/2011 Kurt Foggo v. National Rugby League (NRL)
- Rugby
- Doping (1,3-dimethylpentylamine)
- Lex mitior
- Interpretation of “intent to enhance sport performance”
- Corroborating evidence
- Standard of proof
- Duty of utmost caution of the athlete
1. The doctrine of lex mitior permits a disciplinary tribunal to apply current sanctions to the case before it if those sanctions are less severe than those which existed at the time of the offence.
2. Having regard to the context of the rules as a whole, the natural and ordinary meaning of the words in Rule 154 (WADC 10.4): “that such specified substance was not intended to enhance the Athlete’s sport performance” is to require the athlete to show that the ingestion of the product which contained the specified substance was not intended to enhance his sport performance. The time at which the absence of intent is to be shown is the time of ingestion of the substance. The athlete must negate an intention at that time to enhance his or her performance in the relevant sport by the taking of the substance. The rule focuses on the nexus or link between the taking of the substance and the performance as a player of the sport. Whether or not the link will be established will depend on the particular circumstances of the case. Rule 154 (WADC 10.4) would not be satisfied if an athlete believes that the ingestion of the substance will enhance his or her sport performance although the athlete does not know that the substance contains a banned ingredient. The athlete must demonstrate that the substance “was not intended to enhance” the athlete’s performance. The mere fact that the athlete did not know that the substance contained a prohibited ingredient does not establish absence of intent.
3. Rule 154 (WADC 10.4) also requires the production of corroboration evidence in addition to the athlete’s word which establish “…the absence of an intent to enhance sport performance”. Accordingly, the corroborating evidence must be sufficient to demonstrate the absence of intent, e.g. conduct inconsistent with intent at the relevant time. This is to be determined by the hearing panel undertaking an objective evaluation of the evidence as to the facts and circumstances relevant to the issue of intention.
4. Where the Policy or the WADC places the burden of proof upon the athlete to rebut a presumption or to establish specified facts or circumstances, the standard of proof borne by the athlete is a balance of probability. But the athlete must satisfy “a higher burden of proof” when the athlete seeks an elimination or reduction in the period of ineligibility under Rule 154 or WADC 10.4.
5. It cannot be too strongly emphasised that the athlete is under a continuing personal duty to ensure that ingestion of a product will not be in violation of the Code. Ignorance is no excuse. To guard against unwitting or unintended consumption of a prohibited or specified substance, it would always be prudent for the athlete to make reasonable inquiries on an ongoing basis while ever the athlete uses the product.
In October 2010 the National Rugby Leage (NRL) reported an anti-doping rule violaton against the rugby player Kurt Foggo after his A and B samples tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).
Becaus of his use of the supplement Jack-3d the NRL Tribunal decided on 15 November 2010 to impose a 2 year period of ineligibility on the Athlete.
Hereafter in February 2011 the Athlete appealed the NRL decision with the Oceania Registry Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.
The Athlete accepted the test results and denied the intentional use of the substance. Undisputed is that the supplement Jack-3d he had used was the source of the prohibited substance.
The Athlete asserted that on the ASADA website 1,3-dimethylamylamine, also known as Methylhexaneamine, could not be identified as constituent ingredient in Jack-3D. The NRI contended that the Athlete failed, deliberately or otherwise, to make enquiries as to the content of the supplement and so claiming ignorance of the violation.
The Sole Arbitrator assessed and addressed the following issues:
- The Athlete's intention to enhance sports performance;
- The existence of corroborating evidence;
- The Relevant Tests under Rules 154 and 156 of the Policy/Article 10.4 and Article 10.5.2 of the World Anti-Doping Code
The Arbitrator determines that:
- The presence of a prohibited substance has been established in the Athlete's samples and accordingly he committed an anti-doping rule violation.
- The doctrine of lex mitior is applicable in this case.
- The prohibited substance was an ingredient of the supplement Jack-3d.
- The Athlete's use of the supplement Jack-3d was not intentional.
- Although it was not on the ASADA website, when the Athlete had conducted more exhaustive inquiries he may have been able to locate information about the product which could have alerted him to the risk of violation if he used it.
Therefore the Court of Arbitration for Sport decides on 3 May 2015:
1.) The appeal filed on 15 February 2011 by Kurt Foggo against the decision of the National Rugby League (NRL) Tribunal of 15 November 2010 is declared admissible and is partially upheld.
2.) The decision of the NRL Tribunal is amended as follows: The period of ineligibility of Kurt Foggo shall be 6 months from 11 October 2010.
(…)
5.) All other motions or prayers for relief are dismissed.
