CAS 2008/A/1572 Gusmao v. FINA
CAS 2008/A/1632 Gusmao v. FINA
CAS 2008/A/1659 Gusmao v. FINA
CAS 2008/A/1572, 1632 & 1659 Rebecca Gusmao v. Fédération Internationale de Natation (FINA)
Related case:
FINA 2008 FINA vs Rebecca Gusmao
September 3, 2008
- Aquatics (swimming)
- Doping (testosterone)
- Bacterial degradation of the sample and method of detection
- Tampering with any part of doping control and proof by any reliable means
- Effect of the relocation of a laboratory on its accreditation
- Production of new evidence
- Notice of the first anti-doping rule violation
- Lex mitior in disciplinary sanctions related to doping violations
- Seriousness of the offence of tampering with a doping control
1. Based on scientific evidence generally available and on established case law of CAS, IRMS analysis is the established and reliable method of distinguishing the exogenous origin of testosterone. IMRS allows the direct detection of the exogenous origin of testosterone and is not affected by dilution, bacterial degradation or a pathological state such as POS. In this respect, dilution and bacterial degradation do not exclude the application of the IRMS analysis.
2. Tampering with doping control can be proven by any reliable means; the term “any reliable means” includes any way to establish a proof as in any other area of law. In a situation where the analysis designed to detect prohibited substances which was conducted in a WADA accredited laboratory, based on the steroid profiles and other parameters, reveals that the samples collected from the same athlete on different occasions actually do not stem from the same person, anti-doping rules do not exclude that further investigations concerning the non-identity of the donors can be made by a non-WADA-accredited laboratory.
3. The relocation of an accredited laboratory to a new building does not affect the existing accreditation which refers to the whole of the analysis devices and methods rather than to the physical building. A new accreditation is necessary for temporary “satellite facilities” of laboratories established for the purpose of major events but not for the permanent relocation of a laboratory.
4. Under “exceptional circumstances” Article R56 of the CAS Code allows the president of the panel to authorize the parties “to supplement their arguments … or to specify further evidence … after the submission of the grounds for the appeal and of the answer”. The unambiguous wording of that clause, supported by its systematic position before Article R57 of the CAS Code which deals with the hearing, clarifies that Article R57 of the CAS Code does not cover the production of new evidence after the closure of the hearing.
5. In the normal course of the handling of an alleged anti-doping rule violation, the notification in the results management process is a sufficient condition for a second violation. This is more than the knowledge of the mere laboratory report of an adverse analytical finding. The notification is issued only if the initial review conducted by the responsible anti-doping organization leads to the result that no therapeutic use exemption has been granted and no apparent procedural departure undermines the validity of the analytical finding. At that stage in the normal course of a doping case it is likely that an anti-doping rule violation was actually committed and, generally, the athlete is provisionally suspended. All further steps which are available to the athletes – request for the analysis of the B sample, request for a hearing, appeal of decisions etc. – are legal remedies which, as such, do not affect the validity of the suspension or other decisions. For the purpose of imposing sanctions for multiple violations, an anti-doping rule violation does not only exist when the last decision is taken which is final and binding. An interpretation to the contrary would open a period of time where, after the notification, an athlete could commit further doping offences without the risk of lifetime ineligibility for a second violation.
6. Even in cases where neither party makes submissions related to the lex mitior principle a CAS panel has to apply the applicable rules which include the transitory provisions. Therefore the panel has to consider whether the substantive rules of FINA’s Doping Control Rules (2009) constitute a lex mitior. The rules governing the length of a doping sanction are substantive anti-doping rules. This determination has to be made under the circumstances of the particular case.
7. Tampering is a particularly serious offence because tampering reveals that the athlete knew about the presence of the prohibited substance which she tried to hide by the manipulation. It is not only the intake of the prohibited substance but also the additional effort to manipulate the doping control either individually or in collaboration with a doctor.
Ms. Rebeca Braga Gusmao filed three appeals against the decisions of the Doping Panel of the Fédération Internationale de Natation (FINA) dated 12 May 2008, 17 July 2008, and 3 September 2008 respectively, which stated various anti-doping rule violations allegedly committed by her and, in the most recent of which, Ms. Gusmao was declared ineligible to compete for life. The appeals have been consolidated and are heard by this Panel.
The Athlete, was born in 1984 and is of Brazilian nationality. She is an international level athlete included in FINA´s Testing Pool who competed in national and international swimming competitions since 1998. She is affiliated to the Confederacao Brasiliera de Desportivos Aquaticos (CBDA).
The Athlete appealed three decisions of the FINA Doping Panel (DP) which each determined a single anti-doping rule violation. Two of them refer to the presence of a prohibited substance found in the samples collected from the Athlete in doping tests conducted on 25 and 26 May 2006 (CAS/A/1632) and on 13 July 2007 (CAS/A/1572), respectively.
The third alleged anti-doping rule violation concerns tampering with the doping control conducted on 12 July 2007 and a control conducted on 18 July 2007 (CAS/A/1659). All three appeals, albeit consolidated, are independent in their substance and the anti-doping rule violations must be determined each for itself. They are, however, interrelated with regard to the possible sanction the Panel has to determine.
Following assessment of the case the Panel determines:
- Ms. Gusmao committed three anti-doping rule violations, two of them, committed on 25 and 26 May 2006 and on 13 July 2007, respectively, in the form of the presence of the prohibited substance Testosterone, according to FINA´s Doping Control Rules (DC) DC 2.1, and one, committed on 12 July 2007 in the form of tampering with a doping control, according to DC 2.5.
- As Ms. Gusmao had received notice of the anti-doping rule violation based on the samples collected on 25 and 26 May 2006 on 11 May 2007, at the latest, the doping offences occurred on 12 July 2007 and 13 July 2007 both constitute a second anti-doping rule violation, according to DC 10.6.
- Therefore, Ms. Gusmao is to be declared ineligible to compete for lifetime, according to DC 10.2 in conjunction with DC 10.4.1, as from the date of this award, i.e. 13 November 2009.
- The results Ms. Gusmao obtained during the Brazilian Swimming Championship in May 2006 are automatically disqualified with all consequences. Ms. Gusmao has to return any medals, diploma, rewards, prize money, according to DC 9. All results Ms. Gusmao obtained as of 12 July 2007 are disqualified with all consequences, by this award. Ms. Gusmao has to return any medals, diploma, rewards, and prize money obtained since that date.
Therefore the Court of Arbitration for Sport decides on 13 November 2009 that:
1.) The appeals filed by Ms. Gusmao on 12 May 2008, 17 July 2008 and 3 September 2008 are dismissed.
2.) The decisions adopted by the Doping Panel of FINA dated 12 May 2008, 17 July 2003, and 3 September 2008 are upheld as far as they do not contradict this Award.
3.) Ms. Gusmao is declared ineligible to compete for life as from 13 November 2009.
4.) All results obtained by Ms. Gusmao during the Brazilian Swimming Championship in May 2006 and all results obtained as from 12 July 2007 are disqualified. Ms. Gusmao is ordered to return all medals, diploma, rewards and prize money, accordingly.
5.) This award is pronounced without costs, except for the Court Office fee of CHF 500, which is retained by the CAS. Each party will bear its own legal costs and other expenses, except for a contribution of CHF 3000 to the legal costs of the Respondent which Appellant shall pay.
6.) All other motions or prayers for relief are dismissed.
