CAS 2016_A_4534 Mauricio Fiol Villanueva vs FINA

CAS 2016/A/4534 Maurico Fiol Villanueva v. Fédération Internationale de Natation (FINA)

Related case:
FINA 2016 FINA vs Mauricio Fiol Villanueva
March 14, 2016

Aquatics (swimming)
Doping (stanozolol)
Mechanism of proof by an athlete of his/her absence of intent to commit an anti-doping rule violation (ADRV)
Inconclusive evidentiary value of results of polygraph tests

1. Pursuant to art. of the FINA Doping Control Rules, an athlete found to have committed an ADRV that does not involve a Specified Substance is subject to an ineligibility period of four years, unless the athlete can establish that the ADRV was not intentional. Neither the World Anti-Doping Code nor the applicable FINA Doping Control Rules, however, explicitly require an athlete to show the origin of the substance to establish that the ADRV was not intentional. Accordingly, while the determination of the origin of the prohibited substance undoubtingly represents a crucial element in the analysis of an athlete’s degree of Fault, a narrow corridor remains open for the athlete to establish his/her absence of intent to cheat despite being unable to identify the source of the prohibited substance causing the ADRV.

2. While other CAS panels may have previously found polygraph evidence to be admissible, such evidence is of limited value. Moreover, the cost involved is disproportionate to any probative value of such test.

On 14 March 2016 the International Swimming Federation (FINA) Doping Panel decided to impose a 4 year period of ineligibility on the Peruvian swimmer Maurico Fiol Vilaueva after his A and B samples tested positive for the prohibited substance Stanozolol.

Hereafer in April 2016 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the FINA Decision of 14 March 2016 and to impose a proportional reduced sanction.

The Athlete denied the intentional use of the substance nor that he was reckless or negligent to his obligations to avoid and anti-doping violation. Neither did he know that there was a significant risk that his conduct might constitute or result in an anti-doping violation and manifestly disregarded that risk.

The Athlete raised the theory that the source of the prohibited substance was contaminated horse meat consumed in Peru. Further the Athlete argued that he gave a prompt admission, accepted the test results, limited his arguments to the issue of the sanction and he cooperated with the doping control process throughout the proceedings before FINA and CAS.

FINA contended that the Athlete failed to establish that the violation was not intentional nor did he establish how the substance entered his system and therefore must be sanctioned with a 4 year period of ineligibility. FINA rejected the Athlete’s polygraph evidence, his hair sample as evidence, his theory regarding his consumption of contaminated horse meat and his arguments for a further reduction of the sanction.

The Panel holds that the following are the main issues which arise in this appeal:

(i) In order to establish absence of intent for the purposes of DC, is it necessary for the Athlete to establish the source of the prohibited substance present in his sample? (“Proof of Source”)
(ii) If it is necessary, has the Athlete established the source of the Stanozolol present in his sample? (“Source of Stanozolol”)
(iii) If it is not necessary, has the Athlete established his lack of intent? (“Proof of Lack of Intent”)
(iv) What is the meaning of FINA DC 10.6.3? (“FINA 10.6.3”)
(v) Is the Athlete entitled to a reduction thereunder? (“Reduction for Admission”)
(vi) Is the sanction of 4 years ineligibility on the Athlete disproportionate? (“Proportionality”).

The Panel establish that there was no evidence upon which the Athlete could rely to discharge his burden of proving lack of intent. Also the absence of evidence as to the source of the Stanozolol closed off one avenue. All that was left were his protestations of innocence, the character evidence given by his coach, the lie detector test, the hair sample analysis and his bare assertion that his recent improvements in terms of times for his events achieved prior to the Pan-Am Games were the product of superior conditioning.

The Panel notes that CAS Panels have in the past considered the suitability of polygraph evidence and in doing so, have never found it dispositive. Considering the Athlete’s other arguments in this case the Panel is unable to allow the Athlete a reduction of the sanction in accordance with the FINA DC or the WADC 2015.

Therefore the Court of Arbitration for Sport decides on 16 March 2017 that:

1.) The appeal filed by Mr. Mauricio Fiol Villanueva on 4 April 2016 is dismissed.
2.) (…).
3.) (…).
4.) All other motions or prayers for relief are dismissed.

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CAS Appeal Awards
16 March 2017
Beloff, Michael J.
Lalo, Ken E.
Radoux, Jacques
Tribunal Arbitral du Sport (TAS) - Court of Arbitration for Sport (CAS)
Adverse Analytical Finding / presence
Legal Terms
Burdens and standards of proof
Case law / jurisprudence
Circumstantial evidence
No intention to cheat
No intention to enhance performance
Principle of proportionality
Rules & regulations International Sports Federations
Swimming (FINA) - International Swimming Federation
Montreal, Canada: Laboratoire de controle du dopage INRS-Institut Armand-Frappier
Analytical aspects
B sample analysis
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S1. Anabolic Agents
Polygraph examination
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