CAS 2009/A/2012 Doping Authority Netherlands v/ Mr Nick Zuijkerbuijk
CAS 2009/A/2012 Doping Authority Netherlands v. N.
- Billiards
- Doping (benzoylecgonine/cocaine)
- Interpretation of anti-doping rules
- Standard of proof – balance of probability
- Degree of fault or negligence of the athlete
- Principle of proportionality
1. One of the main intentions of the World Anti-Doping Code (WADC) is the harmonisation of the worldwide fight against doping. In order to achieve this goal, it is necessary to interpret anti-doping rules that have been established on the basis of the WADC in harmony with the WADC, the respective set of rules of other international sport federations and the respective CAS case law.
2. The balance of probability standard means that the indicted athlete bears the burden of persuading the judging body that the occurrence of the circumstances on which he relies is more probable than their non-occurrence or more probable than other possible explanations of the doping offence. This means also that the evidence considered must be specific and decisive to explain the athlete’s departure from the expected standard of behaviour.
3. The circumstances, that the athlete was only 23 years old, has admitted the anti-doping rule violation and was not aware of the possible consequences, are not relevant as with regard to the degree of his fault. Because cocaine (and its metabolites) is a prohibited substance, it is also irrelevant whether there was a lack of intention to enhance his sport performance.
4. The WADC considerably restrict the application of the principle of proportionality. The athlete’s age, that he took the prohibited substance unthinkingly and not with the intention to enhance performance, the question of whether taking the cocaine metabolite had a performance-enhancing effect, the (not timely) admission, the admission in public, his unawareness of the traceability of cocaine, the fact that the presence of cocaine in the sample of an athlete in an out-of-competition control does not constitute a violation of the Doping Regulations or the peculiarities of the particular type of sport, are not – according to the WADC – matters to be weighed when determining the period of ineligibility. The purpose and intention of the WADC is, inter alia, to make the fight against doping more effective by harmonising the legal framework and to provide uniform sanctions to be applied in all sports. These rules, for instance, do not distinguish between amateur or professional athletes, old or young athletes or individual sport or team sport.
In April 2009 the Anti-Doping Authority Netherlands (ADAN) reported an anti-doping rule violation against the billiards player Nick Zuijkerbuijk after his A and B samples tested positive for the prohibited substance Cocaine.
Consequently the Royal Dutch Billiards Federation (KNBB) decided on 25 August 2009 to impose a 2 year sanction on the Athlete. Following the Athlete's appeal the Dutch Appeals Committee (DAC) decided on 26 November 2009 to impose a reduced sanction of 1 year on the Athlete.
Hereafter in December 2009 ADAN appealed the Decision with the Court of Arbitration for Sport (CAS). ADAN requested the Panel to set aside the Appealed Decision and to impose a 2 year period of inelgibility on the Athlete.
The Athlete admitted the violation and denied the intentional use of the substance. He acknowledged that he had used Cocaine recreationally 3 days before the competition and that the substance could not enhance his sport performance anymore at the material time.
ADAN contended that the Athlete had committed an anti-doping rule violation and that under the Rules a sanction of 2 years is appropriate. Further ADAN asserted that there are no grounds for a reduced sanction.
The Sole Arbitrator finds that the presence of a prohibited substance had been established in the Athlete's samples and accordinghly that he committed an anti-doping rule violation.
The Arbitrator considers that the Athlete had admitted the violation and deems that he failed to demonstrate that he acted with No Significant Fault or Negligence. He determines that a sanction of 2 years is not unacceptable according to standards of reasonableness and fairness in the given circumstances.
Therfore the Court of Arbitration for Sport decides on 11 June 2010:
1.) The appeal of the Doping Authority Netherlands (NADO) against the decision dated 26 November 2009 of the Committee of Appeal of the ISR (DAC) is upheld.
2.) The decision dated 26 November 2009 of the Committee of Appeal of the ISR (DAC) is set aside.
3.) The Athlete is suspended for a period of two years, starting from 25 August 2009.
(…)
6.) All other prayers for relief are rejected.
