CAS 2012/A/2767 Nadir Bin Hendi v. Union Internationale Motonautique (UIM)
Powerboat racing
Doping (methylhexaneamine)
CAS power of review
Conditions for the elimination or reduction of the period of ineligibility for specified substances
Evidential burden of proof
1. According to Article R57 of the Code the CAS panel has full power to review the facts and the law. This means that the CAS appellate arbitration procedure entails a de novo review of the merits of the case, which it is not confined to merely deciding whether the body that issued the appealed ruling was correct or not. Accordingly, it is the function of the CAS panel to make an independent determination as to whether the parties’ contentions are inherently correct rather than only to assess the correctness of the decision appealed against.
2. Rule 10.4 of the UIM Anti-Doping Rules contains three conditions which the athlete must satisfy to eliminate or reduce the prescribed period of ineligibility for specified substances for a first doping offence, i.e. 2 years. The first condition requires the athlete to establish how the specified substance entered his/her body. The second condition requires the athlete to establish that he did not take the specified substance to enhance performance. If, but only if, those two conditions are satisfied, the athlete can adduce evidence as to his/her degree of culpability with a view to eliminating or reducing his period of suspension. All three conditions have to be satisfied to achieve such result.
3. There are circumstances in which notwithstanding that the legal burden is placed upon a party, an evidential burden may be placed upon the other party.
In November 2011 the International Union of Powerboating (UIM) has reported an anti-doping rule violation against the powerboat racer Nadir Bin Hendi after his A and B samples tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine). On 23 March 2012 the UIM Tribunal decided to impose a 2 year period of ineligibility on the Athlete.
Hereafter in May 2012 the Athlete appealed the UIM decision with the Court of Arbitration for Sport (CAS). The Athlete requested to set aside the UIM decision of 23 March 2012 on the basis of No Fault or Negligence. The Athlete asserted that he suffered from a nasal blockage and used as treatment a prescribed XC spray. The Athlete argued - supported by two expert witnesses - that this XC spray caused a false positive for the prohibited substance or metabolized in such a way as to cause a postitive test for this substance.
The UIM contended that the Athlete failed to explain how the prohibited substance entered his system nor that he had no intention to enhance his performance. Also the Athlete’s XC spray did not contain the prohibited substance.
Considering the evidence the Panel does not accept, on the balance of probabilities, that the XC spray used by the Athlete was responsible for the presence of the prohibited substance in his body. The Panel also concludes that the imposed 2 years sanction on the Athlete is proportional.
Therefore the Court of Arbitration for Sport decides on 20 December 2012:
1.) The appeal filed by Nadir Bin Hendi on 11 April 2012 against the decision of the UIM Anti Doping Hearing Panel dated 23 March 2012 is dismissed.
2.) The decision of the UIM Anti Doping Hearing Panel is confirmed.
3.) (…).
4.) (…).
5.) All other or further claims are dismissed.
