CAS 2009/A/1954 World Anti-Doping Agency (WADA) v. Confederacâo Brasileira de Judô (CBJ) & Victor Penalber
- Judo
- Doping (furosemide)
- Application of the lex mitior principle to determine the applicable regulations
- Presence of a prohibited substance
- Determination of the applicable sanction
- Absence of mitigating circumstances
1. According to the International Judo Federation (IJF) Anti-Doping Rules, a case shall be governed by the substantive anti-doping rules in effect at the time the anti-doping rule violation occurred, unless the panel hearing the case determines that the principle of “lex mitior” should apply under the circumstances. Accordingly, the WADA Prohibited List in effect at the time of the procedure and considering Furosemide a Specified Substance should be applicable as it constitutes a “lex mitior” in comparison to the previous list.
2. Under the IJF Anti-Doping Rules the presence of a prohibited substance or its metabolites or markers in an athlete’s bodily specimen constitutes an anti-doping rule violation. It is each athlete’s personal duty to ensure that no prohibited substance enters his or her body. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the athlete’s part be demonstrated in order to establish an anti-doping violation (strict liability principle).
3. Under the 2009 IJF Anti-Doping Rules, the period of ineligibility imposed for the presence of a prohibited substance or its metabolites or markers like Furosemide, a diuretic and masking agent, shall be two (2) years ineligibility for a first violation unless the conditions for eliminating or reducing the period of ineligibility are met. In order to invoke the elimination or the reduction of the period of ineligibility for a specified substance such as Furosemide, it is a prerequisite that the athlete is able to establish exactly how the substance entered into his/her body. Absent any proof in this respect, there is no need to enter into an examination of whether the two year period of ineligibility should be eliminated or reduced for no fault or negligence on the part of the athlete.
4. Age or inexperience in itself cannot be considered mitigating circumstances in a doping violation offence.
On 31 May 2009 the Brazilian Supreme Court of Sports Justice of Judo decided to impose a 1 year period of ineligibility on the Athlete after he tested positive for the prohibited substance Furosemide.
Hereafter the World Anti-Doping Agency (WADA) appealed the Brazilian decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a sanction of 2 years.
The Panel finds the presence of a prohibited substance has been established in the Athlete's sample and accordingly that he committed an anti-doping rule violation.
The Panel finds that the Athlete has not satisfied the necessarily strict evidentiary threshold. Further there seems to be no need to enter into an examination of whether the two year period of ineligibility should be eliminated or reduced for no fault or negligence on the part of the Athlete.
Such an elimination or reduction requires proof of how the substance entered into his body. Finally the Panel establishes that he was neither a minor nor an inexperienced Athlete.
Therefore the Court of Arbitration for Sport decides on 20 May 2010:
1.) The appeal filed by the World Anti-Doping Agency on 21 September 2009 is upheld.
2.) The decision of the Brazilian Supreme Court of Sports Justice of Judo dated 31 May 2009 is set aside.
3.) Mr. Victor Penalber is sanctioned with a two year period of ineligibility starting on the day on which this award enters into force. Any period of ineligibility already served from 11 November 2008 to the date of this award shall be credited against the total period of ineligibility to be served.
4.) All competitive results obtained by Mr. Victor Penalber from 5 October 2008 through the commencement of the period of ineligibility shall be disqualified with all of the resulting consequences, including forfeiture of any medals, points and prizes.
(…)
7.) All other motions or prayers for relief are dismissed.
