CAS 2012/A/2804 Dimitar Kutrovsky v. International Tennis Federation (ITF)
Related cases:
- ITF 2012 ITF vs Dimitar Kutrovsky
May 15, 2012 - ITF 2015 ITF vs Dimitar Kutrovsky
October 1, 2017
- Tennis
- Doping (methylhexaneamine)
- Scope of review of a CAS panel
- Reduction of the period of ineligibility based on Art. 10.4 WADC
- Absence of intent to enhance the sport performance
- Differentiation between the specified substance and a product in which it may be contained
- Enhancement of sport performance
- Reduction of the period of ineligibility based on Art. 10.5.2 WADC
- Appropriate sanction
1. Although, according to CAS’ jurisprudence, the more cogent and well-reasoned a decision is, the less likely a CAS panel would be to overrule it, this is no more than a statement of the obvious and provides no support for a submission that a CAS panel can only depart from a first instance decision if it identifies a “compelling reason” to do so. Such a restriction would contradict the clear language of Article R57 of the Code of Sports-related Arbitration.
2. According to Art. 10.4 of the World Anti-Doping Code regarding specified substances, two conditions must be satisfied to allow for the possibility of a reduction of the period of ineligibility. The first condition is that the athlete must satisfy whether he/she can establish how the specified substance entered his/her body. The second is that the athlete must establish that the specified substance, at the time of its ingestion, was not intended to enhance his/her sport performance.
3. In addition to the athlete’s statement, corroborating evidence must be produced to establish the absence of intent to enhance the sport performance. An athlete’s knowledge or lack of knowledge that he/she has ingested a specified substance is relevant to the issue of intent but cannot of itself decide it. The evidence submitted as to why the athlete did not know the product contained a substance which is a specified substance will prove relevant in the evaluation of his/her degree of fault should no intent to enhance performance be found.
4. It is the absence of intention to enhance performance by taking whatever was taken that is the true focus of the second condition of Article 10.4 WADC. Specified substance in the second condition refers to the specified substance in the form in which it has been established under the first condition to enter the athlete’s body. It may be an ingredient in another product, for example a supplement, but it need not be simply an ingredient in another substance but rather the entirety of what the athlete has ingested, for example cannabis. It follows that the second condition requires the athlete to show that in taking the specified substance in the form in which he/she took it, he/she did not intend to enhance his/her performance. There is no distinction to be drawn between a product and the specified substance: an interpretation given to specified substance in the second condition ought to embrace both possibilities.
5. Enhancement is a synonym of improvement. It does not carry with it any connotation of cheating. Intent to enhance sport performance is present when a substance is taken to help an athlete recover from physical effort or better prepare for a sporting performance.
6. Under Art. 10.5.2 WADC, the athlete must establish that his/her fault or negligence, viewed in the totality of the circumstances and having regard to the criterion for “No Fault or Negligence”, is not significant having regard to the doping offence. The criterion of “No Fault or Negligence” is defined under the WADC as requiring that an athlete did not know or suspect, or could not reasonably have known or suspected even with the exercise of utmost caution, that he/she used the prohibited substance. Even if the athlete has failed to prove, to the comfortable satisfaction of the panel, that he/she did not intend to enhance his/her sport performance by taking a nutritional supplement, his/her ignorance that the nutritional supplement contained a specified substance allows the application of Art. 10.5.2 WADC.
7. In the light of the perceptible purpose of Art. 10.5.2, in the context of the WADC, a panel is bound to start from the premise that only a case involving the least significant amount of fault will result in a 12 months period of ineligibility with the consequence that the panel is required to assess fault relative to that baseline and increase it from there.
In this case the CAS Panel concludes that the 24-month sanction imposed was too severe. Having regard to Kutrovsky’s degree of fault and, to both the mitigating and aggravating factors, the Panel concludes that an appropriate sanction would be a period of Ineligibility of 15 months.
The Panel emphasises that this is not simply a decision to, effectively, split the difference between the periods of Ineligibility urged by the parties but, rather, represents the Panel’s own evaluation and weighing of the evidence and the submissions received, as well as the Panel’s careful, if cautious, consideration of the authorities that it has found of relevance.
Therefore the Court of Arbitration for Sport decides on 3 October 2012 that:
1.) The appeal filed by Mr Dimitar Kutrovsky on 22 May 2012 against the International Tennis Federation concerning the decision of the Independent Anti-Doping Tribunal convened by the ITF of 15 May 2012 is partially upheld.
2.) The decision of the Independent Anti-Doping Tribunal convened by the ITF dated 15 May 2012 is set aside.
3.) Mr Dimitar Kutrovsky is suspended for a period of 15 months from 14 February 2012.
4.) Mr Dimitar Kutrovsky’s individual results obtained at the SAP Open tournament in San José, California, U.S.A. in February 2012 are disqualified. The prize money and ranking points obtained by Mr Dimitar Kutrovsky through his participation in that even are forfeited.
5.) Mr Dimitar Kutrovsky’s individual results in the ITF Futures event in Brownsville, Texas, U.S.A. later in February 2012 are disqualified. The prize money and ranking points obtained by Mr Dimitar Kutrovsky through his participation in that event are forfeited.
6.) This award is pronounced without costs, except for the Court Office fee of CHF 1’000 paid by Mr Dimitar Kutrovsky, which shall be retained by the CAS.
(…)
8.) All other or further claims are dismissed.
