CAS 2016/A/4609 World Anti-Doping Agency (WADA) v. Indian National Anti-Doping Agency (Indian NADA) & Dane Pereira
- Football
- Doping (nandrolone metabolite)
(Indirect) intent under Article 10.2.3 of the NADA Rules - Indirect intent in case of use of medication labelled as containing prohibited substances
- Doctor’s advice and duty of care of athletes
- Intentional anti-doping rule violation and no (significant) fault or negligence
1. The application of Article 10.2.3 of the NADA Anti-Doping Rules (NADA Rules) and the World Anti-Doping Code (WADA Code) do not require that the athlete knowingly ingested a prohibited substance and therefore had “direct intent” in committing the anti-doping rule violation; it already suffices if the athlete had “indirect intent” or “dolus eventualis” only, i.e. if his or her behaviour is primarily focused on one result, but in case a collateral result materializes, the latter would equally be accepted by the athlete. Accordingly indirect intent is established where the athlete i) knew that there was a significant risk that his conduct might constitute or result in an anti-doping rule violation; and ii) manifestly disregarded that risk.
2. An athlete who takes a medication on the package of which a prohibited substance is listed knows or should at least know that the medication contains the prohibited substance. Furthermore, if e.g. the same medication is prescribed to the athlete on four different occasions, the athlete has ample time at his or her disposal to verify whether the medication contains any prohibited substances. If under those circumstances the athlete does not even e.g. perform a simple internet research regarding the medication, but only relies on – wrong – advice by his (team) doctor(s), he or she manifestly disregards the risk and commits the anti-doping rule violation with “indirect intent”. In this context there is an inherent significant risk that medications may contain prohibited substances; this is all the more so with respect to medications that are taken by intramuscular injection and are certainly not administered inadvertently through, e.g. a tablet.
3. Given that athletes are under a constant duty to personally manage and make certain that any medication administered is permitted under the anti-doping rules, an athlete cannot simply rely on a doctor’s advice; it follows that e.g. the prescription of a particular medicinal product by an athlete’s doctor does not excuse the athlete from investigating to his or her fullest extent that the medication does not contain prohibited substances.
4. The finding that a violation was committed intentionally excludes the possibility to eliminate the period of ineligibility based on no fault or negligence or no significant fault or negligence.
In April 2015 the India National Anti-Doping Agency (INADA) has reported an anti-doping rule violation against the football player Dane Pereira after his sample tested positive for the prohibited substance 19-norandrosterone (Nandrolone). On 30 March 2016 the Anti-Doping Disciplinary Panel of India (ADDPI) decided to impose a 1 year period of ineligibility on the Athlete.
Hereafter in May 2016 the World Anti-Doping Agency (WADA) appealed the ADDPI decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the ADDPI decision of 30 March 2016 and to impose a 4 year period of ineligibility on the Athlete. WADA did not accept the Athlete’s explanation that the positive test was the result of administration of Decadurabolin (Nandrolone) prescribed by his doctore as treatment for his knee injury. WADA asserted that Nandrolone is not the indicated treatment for this medical condition. WADA argued that the Athlete failed to establish on a balance of probability that he did not knew that his conduct might result in an anti-doping rule violation and did not manifestly disregard that risk.
The Athlete admitted the violation, denied that it was intentional and that he bears No Significant Fault or Negligence for a reduced sanction.
The Sole Arbitrator concludes that the Athlete manifestly disregarded the significant risk that the medication prescribed to him would result in an anti-doping rule violation and, as a result, committed the anti-doping rule violation with “indirect intent”, or at least failed to establish to the comfortable satisfaction of the Sole Arbitrator that the anti-doping rule violation was not committed intentionally.
The Sole Arbitrator finds that the Athlete failed to establish no significant fault or negligence in this case nor shall the period of ineligibility of four years otherwise be reduced or suspended.
Therefore the Court of Arbitration for Sport decides on 19 January 2017 that:
1.) The appeal filed by the World Anti-Doping Agency on 13 May 2016 against the Decision issued on 30 March 2016 by the Anti-Doping Disciplinary Panel of the Indian National Anti-Doping Agency is upheld.
2.) The Decision issued on 30 March 2016 by the Anti-Doping Disciplinary Panel of the Indian National Anti-Doping Agency is modified as follows: a period of ineligibility of four years is imposed on Mr Dane Pereira starting as from 16 April 2015.
(…)
5.) All other and further motions or prayers for relief are dismissed.
