CAS 2013/A/3435 Tomasz Stepien v. Polish Rugby Union
Rugby
Doping (methylhexaneamine)
Procedural deficiencies occurred at the previous instance and de novo review by the CAS
Specified substances under Article 10.4 WADC and intent to enhance performance
Purpose and rationale of Article 10.4 WADC
“Performance-enhancing” intent of doping- relevance
Principle of “contra proferentem” and restrictive interpretation of Article 10.4 WADC
Intent
No distinction between direct and indirect intent in case of a restrictive interpretation of intent
Risks linked to the use of nutritional supplements
1. The CAS provides an opportunity for a full new hearing with full power to review the facts and the law. According to consistent CAS jurisprudence, errors during the prior proceedings and the prior hearing can, if at all, only be the basis for a successful appeal when the errors in the process below somehow affect a party’s right to fully present a case before CAS. Therefore, any alleged inadequacies in the prior hearing could be cured by the right to a new hearing before CAS. In light of the given possibility of a full appeal to the CAS, “due process” arguments concerning the proceedings before the previous instance can be deemed as cured.
2. Regarding specified substances, Article 10.4 WADC is the most specific provision and takes precedence over others. Where an athlete or other person can establish how a specified substance entered his or her body or came into his or her possession and that such specified substance was not intended to enhance the athlete’s sport performance or mask the use of a performance-enhancing substance, the period of ineligibility found in Article 10.2 shall be replaced, for a first violation, with at a minimum, a reprimand and no period of ineligibility from future events, and at a maximum, two years of ineligibility. In order to satisfy the condition that the specified substance was not intended to enhance the athlete’s sport performance, the athlete must establish the absence of intent to enhance sport performance at the time of its ingestion. The key question is whether the intent to enhance sport performance relates to the use of the specified substance or to the product in which it was contained.
3. Whether or not to follow a broad or restrictive interpretation of Art. 10.4 WADC must be decided depending on the purpose of the rule. The underlying rationale of this provision is that there is a greater likelihood that specified substances, as opposed to other prohibited substances, could be susceptible to a credible non-doping explanation and that the latter warrants - in principle - a lesser sanction. What Art. 10.4 wants to account for is, in principle, that in relation to specified substances there is a certain general risk in day to day life that these substances are taken inadvertently by an athlete. The question is what happens if the risk at stake is not a “general” but a (very) specific one that the athlete has deliberately chosen to take.
4. The characteristic of “performance-enhancing” as such is neutral. An athlete is entitled to consume any substance that seems useful to enhance his sport performance as long as this substance is not listed on WADA’s Prohibited List, Therefore, the primary focus can obviously not be on the question whether or not the athlete intended to enhance his sport performance by a certain behaviour (i.e. consuming a certain product), but moreover if the intent of the athlete in this respect was of doping-relevance. In this respect, the WADC itself recognizes the difference between legitimate performance enhancement and the use of a prohibited substance.
5. In accordance with CAS jurisprudence, the principle of “contra proferentem” alone justifies a restrictive interpretation of the element of “intent to enhance sport performance” in Article 10.4 WADC. It is clear that the restrictive interpretation (i.e. intent must relate to the prohibited substance in question) favours the athletes.
6. Intent is established if an athlete knowingly ingests a prohibited substance.
7. Drawing a distinction between direct and indirect intent would lead to a broad interpretation of the term “intent” in Article 10.4 WADC, and thus to an interpretation to the detriment of athletes. This approach would contradict the applicable principle of “contra proferentem” and is, therefore, an approach that should not be taken.
8. The numerous warnings of the well-known risks linked to the use of nutritional supplements exist and are widely published for many years. WADA’s website contains inter alia the following warning: “Extreme caution is recommended regarding supplement use. The use of dietary supplements by athletes is a concern because in many countries the manufacturing and labelling of supplements may not follow strict rules, which may lead to a supplement containing an undeclared substance that is prohibited under anti-doping regulations. A significant number of positive tests have been attributed to the misuse of supplements and taking a poorly labelled dietary supplement is not an adequate defence in a doping hearing”.
In October 2013 the Polish Rugby Union (PZR) has reported an anti-doping rule violation against the rugby player Tomasz Stepien after his sample tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine) related to his use of the supplement Jack3d. On 21 November 2013 the PZR Games and Disciplinary Commission decided to impose a 2 year period of ineligibility on the Athlete.
Hereafter in December 2013 the Athlete appealed the PZR decision with the Court of Arbitration for Sport (CAS). The Athlete requested to set aside the PZR decision of 21 November 2013 and to impose a reduced sanction.
The Athlete gave a prompt admission to the PZR and denied the intentional use of the prohibited substance. He explained that he had used the supplement Jack3d provided by a salesman who assured him that the this modified formula was free of prohibited substances (geranium). He stated that he checked the ingredients of the product - on the Polish label - before using.
Further the Athlete asserted that procedural deficiencies occurred during the procceedings effecting his right to fully present his case before the PZR Games and Disciplinary Commission.
The Panel holds that any alleged inadequacies in the prior proceedings before the Polish Rugby Union are cured in this new hearing before CAS. Considering the Athlete’s behaviour in this case the CAS Panel finds that the Athlete had no intention to enhance his sport performance through using the prohibited substance. However this does not automatically lead to the impunity of the Athlete’s wrongdoing. Based on the circumstances and relevant CAS case law the Panel concludes that the Athlete is to be sanctioned for 10 months.
Therefore the Court of Arbitration for Sport decides on 4 July 2014:
1.) The Appeal filed by Mr. Tomasz Stepien against the decision of the Games and Disciplinary Commission of the Polish Rugby Union dated 21 November 2013 is partially upheld.
2.) The decision of the Games and Disciplinary Commission of the Polish Rugby Union dated 21 November 2013 is set aside and replaced with the following:
3.) Mr. Tomasz Stepien is sanctioned with a period of ineligibility of ten (10) months, commencing on 14 September 2013.
4.) (…).
5.) (…).
6.) All other or further claims are dismissed.
