CAS 96/149 A.C. / Fédération Internationale de Natation Amateur (FINA)
TAS 96/149 Cullwick v/ FINA
- Doping of a waterpolo player (salbutamol)
- Special status of salbutamol in the FINA rules
- Omission to declare the use of such substance to the testing agent Good faith of the athlete
1. On the basis of the FINA Rules and Guidelines, the omission to declare the use of salbutamol prior to the doping control constitutes an offence equivalent to a technical breach only.
2. The doctrine of lex mitior, i.e. that which permits a criminal court to apply current sanctions to the case before it, if such sanctions are less severe that those which existed at the time of the offence, is applicable to disciplinary matters such as doping cases.
On 1 December 1995 the International Swimming Federation (FINA) Executive decided to impose a sanction of 2 years on the New Zealand waterpolo player Antony Cullwick after he tested positive for the prohibited substance Salbutamol related to his prescribed Asthma medication.
Hereafter the Athlete appealed the FINA Decision with the Court of Arbitration for Sport (CAS).
The Athlete asserted that he had used Salbutamol as prescribed medication for his Asthma. He argued that and under the rules or regulations Salbutamol by inhalation is a permitted and not a banned substance and therefore no doping offence was committed.
FINA contended that under the rules and guidelines in order to constitute Salbutamol a permitted as distinct from a banned substance not only had it to be taken by inhalation, but also there must be prior notification to a relevant authority, either a national federation or FINA itself.
In view of the evidence the Panel determines that the Athlete's violation was a technical breach and not an intentional violation because of the prescribed medication he used for his Asthma. However the Athlete, his doctor, or other appropriate agent, failed to inform his national federation, or FINA or other relevant body about his use of the Ventolin inhaler for medical purposes.
The Panel deems that the fault in this matter appears to lie with the NZL swimming federation in their obligation to take every step to ensure that competitors under their jurisdiction were familiar with all rules, regulations, guidelines and requirements in sucht a sensistive area as doping control.
In addition the Panel made recommendations to FINA to make clear and more precise the relevant rules so that athletes could understand them more easily and disputes over the meaning, if possible, avoided.
Therefore the Court of Arbitration for Sport decides on 13 March 1997:
1.) The appeal lodged by A.C. is partially upheld.
2.) The sanction pronounced against the Appellant is cancelled.
3.) (...)
