CAS 2012/A/2797 Attila Ungvári v. International Judo Federation (IJF)
Judo
Doping (stanozolol; furosemide; mesterolone)
New evidence justifying revision of the challenged decision
Admissibility of new evidence
Assessment of evidence under No Fault or Negligence or No Significant Fault or Negligence
1. According to the Swiss Federal Tribunal, revision of a decision may be justified only as to facts or evidence which were not known to the petitioner at the time of the proceedings despite all due diligence. The new facts must be significant which means that they must be appropriate to change the factual basis of the award under review in such a way that their accurate legal assessment could lead to a different decision.
2. The only way of finding whether a witness statement may be true or not is to hear the witness testifying under the obligation to say the truth. Therefore, the statements or summary record of a witness who allegedly admitted sabotage but at no stage of the proceedings did appear before the international federation, or before the CAS are not admissible as means of evidence. However, a Police Investigations Department’ decision as an official document of a state authority establishing an act of sabotage by a sport fan to improve the athlete’s performance – which was not known to the athlete when the decision imposing a ban had been rendered by the IJF – should be considered as new evidence and admitted.
3. When the burden of proof is upon the athlete to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a “balance of probability”. In this regard, a decision of a national police investigations department and the respective investigations necessarily have to be done in the context of the applicable provision of the national Criminal Code. Therefore, the police cannot not focus on the establishment how the prohibited substances entered the athlete’s system and that he did not bear No Fault and No Negligence or at least No Significant Fault or Negligence. Therefore, such a document does not meet the requirements of articles 10.5.1 and 10.5.2 to establish whether there was No Fault or Negligence or No Significant Fault or Negligence on the side of the athlete.
In March 2011 the International Judo Federation (IJF) has reported two anti-doping rule violation against the Hungarian judoka after his samples - provided in January 2011 in Azerbaijan and in February 2011 in Hungary - tested posisitive for the prohibited substances Stanozolol, Mesterolone and Furosemide. The IJF treated these two violations as one case and decided on 14 May 2011 to impose a 2 year period of ineligibility on the Athlete.
The Athlete introduced new evidence and requested the IJF to re-opend his case in April 2012. In a notary declaration a Hungarian sport fan had admitted to the Budapest Police that he had acquired the prohibited substances and injected into the Athlete’s drinking bottle. The IJF Executive Committee did not accept this evidence and decided on 19 April 2012 to dismiss the request of the Athlete and to uphold its previous decision of 14 May 2011.
Hereafter in May 2012 the Athlete appealed the IJF decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to annul the IJF decision of 19 April 2012. In his defence the Athlete filed several arguments, witness statements and evidence supporting he credibility.
The CAS Panel finds that this appeal is about the IJF decision of 19 April dealing with re-opening the original case for alleged new evidence: the admission of the Hungarian sport fan in the police document that he injected the prohibited substances at two occasions.
Considering the gaps in the police document the Panel finds that the information was not precise enough to allow the Panel to determine to the their comfortable satisfaction whether there was No Fault or Negligence or No Significant Fault or Negligence on the side of the Athlete.
Therefore the Court of Arbitration for Sport decides on 18 October 2012:
1.) The appeal filed on 10 May 2012 by Mr Attila Ungvári against the decision of the Executive Committee of the International Judo Federation issued on 19 April 2012 is dismissed;
2.) The decision of the Executive Committee of the International Judo Federation of 19 April 2012 is confirmed;
(…)
5.) All other motions or prayers for relief are dismissed.
