CAS 2017/A/4962 World Anti-Doping Agency (WADA) v. Comitato Permanente Antidoping San Marino NADO (CPA) & Karim Gharbi
- Judo
- Doping (dehydrochlormethyltestosterone)
- Burden of proof
- Balance of probability
- Duty of the athlete to establish how the prohibited substance entered his/her body
- Intentional violation
1. It is the athlete that bears the burden of proof of establishing that the anti-doping rule violation was unintentional and thus to establish how the relevant forbidden substance entered into his/her body.
2. The standard of proof applicable in this respect is based on the “balance of probability”, which entails that the athlete has the burden of convincing that the occurrence of the circumstances on which the athlete relies is more probable than their non-occurrence.
3. To establish the origin of a prohibited substance, it is not sufficient for an athlete merely to protest his or her innocence and suggest that the substance must have entered his or her body inadvertently from some supplement, medicine or other product, which the athlete was taken at the relevant time. Rather, an athlete must adduce concrete evidence to demonstrate that a particular product that the athlete ingested contained the substance in question, as a preliminary to seeking to prove that it was unintentional or without fault or negligence.
4. If an athlete fails to establish how a prohibited substance entered into his/her body, her/his anti-doping rule violation shall be deemed intentional and sanctioned accordingly based on the applicable regulations.
In August 2016 the Comitato Permanente Antidoping San Marino (the NADO San Marino) has reported an anti-doping rule violation against the San Marinese judoka Karim Gharbi after his A and B samples tested positive for the prohibited substance Dehydrochlormethyltestosterone. On 21 November 2016 the Doping Hearing Panel of the NADO San Marino decided to impose a 2 year period of ineligiblility on the Athlete.
Hereafter in January 2017 the World Anti-Doping Agency (WADA) appealed the San Marinese decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the decision of 21 November 2016 and to impose a 4 year period of ineligibility on the Athlete. WADA contended that the Athlete failed to establish that the violation was not intentional nor that he established how the prohibited substance entered his system.
Considering the evidence in this case the Sole Arbitratro finds that the Athlete wholly failed to meet his burden of proof; his doping violation must be deemed to be intentional and he must therefore be sanctioned with a 4 year period. There is no justification in principle or on the facts of this case for seeking to depart from it.
Therefore the Court of Arbitration for Sport decides on 3 August 2017 that:
1.) The appeal filed by World Anti-Doping Agency against the decision issued on 21 November 2016 by the Doping Hearing Panel of the Comitato Permanente Antidoping San Marino in the matter of Karim Gharbi is upheld.
2.) The Decision of the Doping Hearing Panel of the Comitato Permanente Antidoping San Marino issued on 21 November 2016 in the matter of Karim Gharbi is set aside.
3.) Karim Gharbi is sanctioned with a 4-year period of ineligibility, commencing with the date of this award, less the period served under suspension or ineligibility imposed by the Doping Hearing Panel of the Comitato Permanente Antidoping San Marino and all and any results, medals, points and prizes obtained during the periods of ineligibility are forfeited.
4.) (…).
5.) (…).
6.) All other prayers for relief are dismissed.
