CAS 98/222 B. / International Triathlon Union (ITU)
- Triathlon
- Doping (nandrolone)
- Threshold for endogenous substances
- Strict liability
- In dubio pro reo
1. Low concentrations of nandrolone metabolites no longer permit a reliable conclusion as to the ingestion of nandrolone. In other words, it appears to be beyond scientific doubt that such low concentrations falling within what is often referred to as the “grey zone” (i.e., concentrations between 2,0 and 5,0 ng/ml), can as well be the result of endogenous production of the human body. When the concentration of nandrolone falls within the “grey zone”, the likelihood that nandrolone is produced endogenously, is decreasing exponentially within the limits of the “grey zone”.
2. The rule on strict liability is essential and indispensable for an efficient fight against doping in sport and for the protection of fairness towards all competitors and of their health and well-being. The principle of strict liability rule does not exempt the sports federations to prove the existence of a doping offence. The effect of any rule of law imposing strict liability is merely to render obsolete the proof of guilt on the part of the person subjected to the regime of strict liability, while on the other hand such rule does not eliminate the need to establish the wrongful act itself and the causal link between the wrongful act and its consequences.
3. The legal impact of a “grey zone” should be reflected in a rule that, in such cases, the sanctioning body can no longer rely on legal presumption that the presence of a prohibited substance is a consequence of external application, but should provide additional evidence supporting this presumption, or, at least, excluding all other causes.
In June 1998 the Swiss Triathlon Federation (STF) has reported an anti-doping rule violation against the Athlete B. after his A and B samples tested positive for the prohibited substance 19-norandrosterone and 19-noretiocholanolone (Nandrolone).
Consequently on 10 December 1998 the STF Doping Commission decided to impose a 1 year period of ineligibility on the Athlete.
Hereafter in December 1998 the Athlete appealed the STF Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel te set aside the Appealed Decision and to annul the imposed sanction.
In this case the Panel determines that this is a typical example of multiple and possibly parallel causes leading to the presence of the forbidden substance. The Panel considers that it would be unrealistic to require from the Athlete to establish that the presence of metabolites was not and could not have been the external application of Nandrolone: even if alleged by the athlete, it could hardly be supported by convincing evidence.
The Panel concludes that the Athlete has established at least a probability that the concentrations of Nandrolone metabolites found in his urine were a result of endogenous production of his body. Although it is clear that the Athlete was unable to prove with certainty such endogenous production, the evidence provided can be deemed sufficient to create reasonable doubt concerning external application.
Therefore the Court of Arbitration for Sport decides on 9 August 1999:
1.) The appeal lodged by B. is upheld.
2.) The decision of the ITU Hearings and Appeals Board of 10 December 1998 is hereby cancelled.
3.) The suspension of the Appellant for a one-year period (from 1 September 1998 until 31 August 1999), pronounced by the Swiss Triathlon Federation on 29 August 1998 is lifted.
4.) The disqualification of the Appellant from all competitions between 7 June 1998 and 31 August 1998, pronounced by the Swiss Triathlon Federation on 29 August 1998 is cancelled; the results and titles achieved by the Appellant during this period are confirmed.
5.) The award is pronounced without costs, except for the Court Office fee of CHF 500.-- paid by the Appellant and which is kept by the CAS.
6.) The Respondent shall reimburse to the Appellant the half of the Court Office fee in the amount of CHF 250.--; moreover, each party shall bear its own costs.
