CAS 2016/A/4631 William Brothers v. Fédération Internationale de Natation (FINA)
Related case:
FINA 2016 FINA vs William Brothers
May 17, 2016
- Aquatics (swimming)
- Doping (refusing to submit to sample collection)
- Compelling justification to refuse to provide a blood sample
- Possibility of elimination or reduction of a sanction in case
- of refusal to submit to a sample collection
Quantum of the reduction of a suspension under the FINA - Doping Control Rules
1. If an athlete can prove on the balance of probability that his/her act of refusing to submit to a collection of blood sample was compellingly justified, his/her rejection of the test will be excused. If it remained physically, hygienically and morally possible for the sample to be provided, despite objections by an athlete, the refusal to the test cannot be deemed to have been compellingly justified. Situations in which it is established that an athlete is deprived of his/her rationality and cognitive senses will, in most cases, be sufficient to ground the excuse of “compelling justification”.
2. If a refusal to submit to a test merely contemplates the presence of intent or the intention to cheat, it does not inexorably follow that intent will always be present. An athlete’s refusal to submit to a blood test does not and cannot deprive an athlete, based on the facts of the individual case, from pleading that the degree of his/her fault or intent justifies a possible elimination or reduction of the sanctions on the grounds of No Fault or Negligence or No Significant Fault or Negligence under the relevant FINA Doping Control Rules (DC Rules).
3. Pursuant to art. 10.5.2 of the FINA DC Rules, and should the preliminary conditions it set forth be met, an otherwise applicable period of ineligibility may be reduced based on an athlete or other persons’ degree of fault, but the reduced period of ineligibility may not be less than one half of the period of ineligibility otherwise applicable.
In August 2015 the Canadian swimmer William Brothers initially cooperated with the two Doping Control Officers (DCO) at his residence. However after a phone call from his father under observation of the DCOs the Athlete notified the DCOs that he will not take the blood test due to health reasons and that he will retire from sport. Also the Athlete mentioned his reason on the Doping Control Form (DCF).
As a consequence in September 2015 the International Swimming Federation (FINA) reported an anti-doping rule violation against the Athlete for his refusal to provide a sample out-of-competition for drug testing.
The Athlete acknowledged his refusal of sample collection but explained that he was dealing with a serious medical problem in August 2015 and found his situation as a result of that stressful. He explained he already had decided to retire but had not filled out the relevant documentation at the time the DCOs arrived at his home.
On 17 May 2016 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Athlete starting on the date of the sample collection. Hereafter in June 2016 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).
The Athlete filed the following arguments in his defence:
1.) Subsequent to the DCOs entry into his small apartment residence and during the course of completing the DCF, he experienced a panic attack. This constituted "compelling justification" within the meaning of DC 2.3 FINA Rules for refusing the sample collection at that time;
2.) The DCO violated the mandatory International Standards for testing when they failed to warn him of the consequences of his refusal;
3.) He had no intent to cheat or refuse the sample collection as he was compelled by his medical emergency, i.e., the panic attack, to refuse the sample collection;
4.) A four-year suspension, or even a one-year suspension, violates principles of proportionality.
After a thorough review of the facts of this case, the pleadings of the parties and the testimonies provided by the various witnesses, the Panel concludes that the Athlete indeed committed, with intent, a violation of DC 2.3 FINA Rules. Upon finishing the telephone call with his father, he informed the DCO and BCO, as evidenced by his entry on the DCF, that "due to health reasons, I cannot take the test." The test was refused and the DCO and BCO thereupon left his residence.
The Panel is unable to find any physical, hygienic or moral circumstances which would have justified the Athlete’s refusal to provide the blood sample. The refusal was not unavoidable. There was no thought given, neither by the Athlete nor his father, as to how the "anxiety attack" might have been assuaged in order to let the test proceed, e.g. by a 15-minute pause on the couch.
Considering the Athlete’s difficult medical history the Panel finds that the period of ineligibility imposed by the FINA Anti-doping Panel should be reduced. The Panel holds that a reduction from four years to two years is both appropriate and proportional on the merits of this case.
Therefore the Court of Arbitration for Sport decides on 21 March 2017:
1.) The appeal filed by Mr. William Brothers against the Federation Intemationale de Natation (FINA) with respect to the decision of the FINA Doping Panel dated 17 May 2016 is partially upheld.
2.) Mr. William Brothers has committed a violation of Article 2.3 of the FINA Doping Control Rules and is declared ineligible to compete for a period of two (2) years commencing as of 26 August 2015.
3.) This award is pronounced without costs, except for the Court Office fee of CHF 1,000 paid by Mr. William Brothers which shall be retained by CAS.
4.) Each party shall bear his/its legal and other costs incuned in connection with these arbitration proceedings.
5.) All other or further claims are dismissed.
