CAS 2011/A/2601 Chitchanok Pulsabsakul, Sukanya Srisurat, Boonatee Klakasikit v. International Weightlifting Federation (IWF)
Weightlifting
Doping (metandienone)
Trust of young athletes in their coach and duty of care
Exception of no significant fault or negligence
Obligation of signatories of the WADA Code to accept its mandatory parts without substantive changes
Substantive change to Article 10 of the WADA Code
Inconsistency of an anti-doping rule of an international federation with the WADA Code
1. In the scenario that the local coach gave a modified food supplement to the athletes without their knowledge, the element trust of the athletes would be a relevant category. The notion of trust is complex and does not relate only to the methodological approach towards the training and its performance. Especially in the case of young athletes it extends much broader to the areas far beyond pure sport and inevitably includes trust in relation with health and nutrition. It may be assumed that the athletes trusted that the food supplement they consumed was not manipulated. However, notwithstanding the trust that young athletes have in the local coach, they cannot be considered as relieved of their elementary duties to check what substances are offered to them.
2. An athlete may benefit from a reduction of the sanction in accordance with Article 10.5.2 of the IWF Anti-Doping Policy (same as Article 10.5.2 of the WADA Code) where circumstances are truly exceptional. It follows that an athlete cannot exculpate himself/herself by simply stating that the container of the particular product taken by him/her did not specify that it contained a prohibited substance. Also, athletes who, despite their youth and a possibly lower educational or informational level concerning anti-doping, have been active in national and international sports for some years, must know, or must be expected to know, of the existence of anti-doping regulations. As such they are expected to apply at least a minimal degree of diligence and not simply follow the instructions of their coach and ingest any kind of substance.
3. Article 23.2.2 of the WADA Code expressly requires that Signatories accept the mandatory parts of the WADA Code without substantive changes. Sanctions are expressly defined as those mandatory provisions. Article 20.3.1 requires the international federation to adopt and implement anti-doping policies and rules which conform with the Code. The purpose of Article 23.2.2 WADA Code is to ensure that Signatories do not introduce provisions that negate, contradict, or otherwise change the mandatory provisions of the WADA Code, including the sanctions in Article 10.
4. A double period of ineligibility (four years) in comparison with the sanction for the same offence under the WADA Code (two years) constitutes a substantive change to Article 10 of the WADA Code. In addition to the mere duration aspect, a sanction of four years may substantially make more difficult for an athlete to continue his or her career once the period of ineligibility has expired. Therefore, not only the nature but also the effects of a four years sanction are substantially different.
5. The WADA Code is not a set of “self executing rules”: for the WADA Code to be relevant it must be enacted and adopted by the rules of the relevant sport body. A federation that adopts its own anti-doping rules and further declares to consider correct and lawful only an interpretation and implementation of its own rules that are consistent with the WADA Code, also accepts that its own rules have to be consistent with the WADA Code.
In July 2011 the Thai Amateur Weightlifting Association (TAWA) has reported anti-doping rule violations against 3 young weightlifting Athletes after their A and B samples - collected on separate occasions in May and June 2011 - tested positive for the prohibited substance Metandienone. Here the Athletes had used a not tested Musashi supplement, provided by their coach, and afterwards found to contain Metandienone, Stanozolol and Norethindrone. The coach in question admitted he had mixed the Musashi supplement with a Chinese supplement provided by a Chinese coach. As a result the TAWA Investigation Committee imposed a 4 year period of ineligibility on the coach for his conduct.
On 10 September 2011 the IWF Doping Hearing Panel decided to impose a 4 year period of ineligibility on the 3 Athletes.
Hereafter in October 2011 the Athletes appealed the IWF decision with the Court of Arbitration for Sport (CAS).
The Athletes requested the Panel to set aside the IWF decision and to impose a reduced sanction.
The Athletes admitted the presence of the prohibited substance in their samples caused by the modified Musashi supplement provided by their coach. The Athletes argued that the violation was unintentional and they had explained how the substance entered their system. Further they argued that the IWF decision was erroneous, the imposed sanctions disproportional while the IWF Anti-Doping Policy (ADP) is inconsistent with the WADA Code 2009.
The IWF requested the Panel to dismiss the appeal and to uphold their decision of 10 September 2011.
The IWF deemed that the IWF ADP is consistent with the WADA Code 2009 and asserted that there is no room for proportionality to impose a reduced sanction. Also based on the balance of probabilities, due to inconsistencies in the allegations, the Athletes and their evidence failed to establish how the substance entered their system.
Considering the evidence in this case the Panel is satisified that the source of the contamination was indeed the modified Musashi supplement which entered into the bodies of the Athletes after they were given that mixture by their coach during the period between January and mid March 2011. Accordingly, the Panel holds, that the Athletes have proved how the substance entered their system.
The Panel concludes that the factors presented by the Athletes do not reach the threshold for a reduction of the sanction in accordance with Art. 10.5.2. Arguments, which prevent application of Article 10.5.2 in favour of the Athletes include that the Athletes (i) though young are all quite experienced Athletes (or at least cannot be considered as completely inexperienced); (ii) were properly educated concerning the anti-doping; (iii) more or less blindly followed the coach without demonstrating at least reasonable doubt concerning the purity of supplements.
The Panel concludes that a correct and consistent interpretation and application of Article 10.2 IWF ADP foresees a standard sanction of two years. To interpret and implement such rule in a different manner would not only violate the WADA Code, but is in contrast to the IWF ADP rules themselves.
Therefore the Court of Arbitration for Sport decides on 12 November 2012:
1.) The appeal filed by Athletes Chitchanok Pulsabsakul, Bonnatee Srisurat and Sukanya Klakasikit on 17 October 2011 is partially upheld.
2.) The IWF Doping Hearing Panel Decision of 10 September 2011 is amended as follows:
- the Athlete Chitchanok Pulsabsakul is declared ineligible for a period of two years, starting on 6 July 2011;
- the Athlete Sukanya Srisurat is declared ineligible for a period of two years, starting on 12 May 2011;
- the Athlete Boonatee Klakasikit is declared ineligible for a period of two years, starting on 13 May 2011.
3.) The other items of the IWF Doping Hearing Panel Decision are confirmed.
4.) (…).
5.) (…).
6.) All further and other claims for relief are dismissed.
