CAS 2016/A/4845 Fabien Whitfield v. Federation Internationale de Volleyball
Volleyball
Doping (testosterone)
System of reduction in the period of ineligibility
Start date of the period of ineligibility
1. If an athlete’s anti-doping rule violation (ADRV) does not involve a Specified Substance, Art. 10.2.1.1 of the FIVB Medical & Anti-doping Regulations (MADR) provides that his/her period of Ineligibility shall be four years unless s/he can establish it was not “intentional”. To reduce the standard sanction for his/her ADRV from four years to two years pursuant to Article 10.2.2 FIVB MADR, the athlete must prove the source of the prohibited substances in his/her system, which is a threshold requirement necessary to establish that his/her ADRV was not intentional. Based on CAS (and national anti-doping tribunal) jurisprudence and the provisions of the FIVB MADR, to obtain any reduction of his presumptive four-year suspension under Article 10.2.1 for testing positive for a non-Specified Substance pursuant to Articles 10.2.2, 10.4, or 10.5, the athlete is required to prove by a balance of probability the source of the prohibited substances in his/her system.
2. Even if an athlete waived analysis of his/her B sample, the fact that s/he has contested the sanction and raised the issue of lack of intent in two hearings, thereby not saving cost and time in any significant way, does not constitute a timely admission of his/her ADRV that entitles his/her to have the date of his/her four-year period of Ineligibility begin on the date of his/her sample collection in accordance with Article 10.11.2 of the FIVB MADR.
In May 2016 the International Volleyball Federation (FIVB) has reported an anti-doping rule violation against the Trinidadian Athlete Fabien Whitfield after his sample tested positive for the prohibited substances 5aAdiol and/or 5bAdiol (Testosterone). On 14 October 2016 the FIVB Disciplinary Panel decided to impose a 4 year period of ineligibility on the Athlete.
Hereafter in October 2016 the Athlete appealed the FIVB decision with the Court of Arbitration for Sport (CAS). The Athlete requested to set aside the FIVB decision of 14 October 2016 and to impose a reduced sanction considering his degree of fault.
The Athlete asserted that the violaton was not intentional and caused by eating a large quantity of red meat, which he did not know at the time was horse meat, allegedly contaminated with testosterone and other anabolic steroids resulting in his AAF, during a meal at his sister's home in Taco, Trinidad & Tobago in March 2016. The Athlete argued that he is therefore the victim of unforeseeable contamination and he is not a cheater.
The FIVB contended that the Athlete tested positive for multiple prohibited substance and he failed to establish that the violation was not intentional and failed to prove that the alleged contaminated horse meat was the source of the positive test.
The Panel finds it undisputed that the Athlete’s sample tested positive for prohibited substances and that the Athlete committed an anti-doping rule violation. Considering the evidence in this case, the Panel determines that the Athlete has not proven by a balance of probability that the source of the prohibited substances in his system that resulted in AAF was contaminated horse meat that he ate during a meal at his sister's home in March 2016. There is no proof that the horse meat that Athlete ate was contaminated with testosterone. Even if it was, the Panel is comfortably satisfied that eating 500 grams of horse meat at least four days prior to the date of his urine sample collection would not have resulted in a finding of exogenous testosterone in his system based on IRMS analysis. The Panel concludes it is more likely that presence of the prohibited substances in his system was a source other than contaminated horse meat.
Notwithstanding these determinations the Panel considers the Athlete's testimony to be credible and truthful and, although he committed an anti-doping rule violation, it does not find grounds for concluding he is a cheater who deliberately, knowingly, or voluntarily violated the FIVB Rule or that he knowingly took the prohibited substances present in his system. Based on the evidence of record, the Panel agrees with the FIVB Disciplinary Panel's conclusion that Athlete's four year period of Ineligibility is a sanction that is especially harsh in the present case. Nevertheless, the appropriate adjudicatory role of the Panel is to apply the FIVB Rules as written, not to disregard its clear and unambiguous express terms even if their application to the particular facts results in a harsh sanction and other corresponding adverse consequences to an athlete.
Therefore the Court of Arbitration for Sport decides on 5 May 2017 that:
1.) The appeal filed on 31 October 2016 by Mr. Fabien Whitfield against the FIVB Disciplinary Panel's 14 October 2016 Decision is dismissed.
2.) The decision of the FIVB Disciplinary Panel dated 14 October 2016 is upheld.
3.) This award is made without the awarding of costs, except for the Court Office fee of CHF 1000 (one thousand Swiss Francs) paid by the Appellant, which is retained by the CAS.
4.) Each party shall bear his/its own costs, including attorney's fees, incurred in connection -with the present proceedings.
5.) All other motions, requests, or prayers for relief are dismissed.
