CAS 2006/A/1041 Stefan Ivanov Vassiliev v. Fédération Internationale de Bobsleigh et de Tobogganing (FIBT) & Bulgarian Bobsleigh and Toboggan Federation (BBTF)
- Bobsleigh
- Doping (methenolone enanthate)
- Lack of jurisdiction of the FIBT
- Burden of proof
- No fault or negligence or no significant fault or negligence in the application for a retroactive TUE
1. According to the FIBT’s Rules, in cases in which a doping test is instigated by FIBT (or WADA), the athlete’s national federation concerned is responsible for the results management, the conduct of the hearing process and for any “consequences” to the athlete’s detriment resulting from a decision. The FIBT Rules do not provide for any competence on the part of the FIBT in this regard. In particular the FIBT Rules do not contain any basis to “re-examine” a case or to decide on an “appeal” against a doping ban. The fact that a proper case management by the national federation cannot be expected because of a conflict of interest is not sufficient to justify the FIBT’s ability to override its own rules.
2. Under the FIBT rules, the burden of proving the absence of (significant) fault or negligence to the court lies with the athlete. As regards the standard of proof, the “balance of probability” must be considered. The clear evidence that the prohibited substance was administered to the athlete after a surgical intervention which was beyond the athlete’s control and sphere of influence is a sufficient reason to admit that the athlete proved that he/she is without fault in connection with the prohibited substance entering his/her body.
3. Under the FIBT Rules, an athlete’s obligations are not limited to the only period prior to the taking or using of a prohibited substance but also apply in the period thereafter. The examination of fault is therefore in relation to a condition, not only to the point in time when a substance was taken. The FIBT Rules provide that an athlete can apply for a Therapeutic Use Exemption (TUE) ex post facto under certain circumstances, such as the treatment of an acute medical condition. The athlete acts at least negligently if he/she does not apply for such a TUE although he/she could have discovered without great difficulty the details of his/her treatment before the sample was taken. In such a case, there is no scope for the application of the “no fault or negligence” rule, but only for the “no significant fault or negligence” rule; therefore, the period of ineligibility cannot be totally eliminated but only be reduced.
Mr Stefan Ivanov Vassilev is an Bulgarian international level athlete and also President of the Bulgarian Bobsleigh and Toboggan Federation (BBSF).
In December 2004 the Fédération Internationale de Bobsleigh et de Tobogganing (FIBT) – today the International Bobsleigh & Skeleton Federation (IBSF) - reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance Metenolone. Consequently on 7 March 2005 the FIBT decides to impose a sanction of 2 years on the Athlete.
Thereupon the FIBT accepted evidence that the Athlete underwent emergency surgical treatment in a hospital where the prohibited substance was administered. Accordingly the Bulgarian Bobsleigh and Toboggan Federation (BBSF) decided on 30 December 2005 to impose a reduced sanction of 1 year on the Athlete.
Following deliberations between the FIBT and the BBTF the FIBT deemed on 3 January 2006 that there were no grounds for a reduced sanction and decided to set aside the BBTF decision of 30 December 2005. The FIBT decided to uphold the imposed 2 year sanction imposed by the FIBT on 7 March 2005.
Hereafter in February 2006 the Athlete appealed the decisions in question rendered by the BBTF and FIBT with the Court of Arbitration for Sport (CAS).
In this case the Panel finds that this case centers on two questions, namely the validity of the sanction of 2-years’ ineligibility imposed by the FIBT and the validity of the one-year ban imposed by the BBTF. It is undisputed that the presence of the prohibited substance Methenolone had been established in the Athlete's samples and that the samples had been analysed properly.
The Panel finds that in the specific case there is absolutely no basis in the rules and regulations for the way in which the FIBT proceeded and that therefore the FIBT’s decision of 3 January 2006 to ban the Athlete for two years is unlawful and therefore void.
Because the rules and regulations also do not contain any basis for legitimation the Panel cannot in the present case make any decision of its own in this regard in lieu of the FIBT pursuant to Art. R57 of the Code.
The Panel accepts the medical evidence and deems that the Athlete established No Significant Fault or Negligence in this case. Here the Panel considers that the Athlete was admitted to a hospital with extremely severe pain and a life threatening condition and immediately operated on under anaesthetic while the substance was administered through injection directly after surgery.
However the Panel holds that afterwards as an international-lever Athlete he failed to make any enquiries for details of his medical treatment. Considering the Athlete’s degree of fault in this case the Panel finds that the BBTF decision of 30 December 2005 is insofar lawful to sanction the Athlete for a period of one year.
Therefore the Court of Arbitration for Sport decides on 28 July 2006:
1.) The appeal filed by Mr Stefan Ivanov Vassilev on 22 February 2006 against the decision of the FIBT and BBTF is partially upheld.
2.) The decision of the FIBT dated 3 January 2006 is annulled.
3.) The decision of the BBTF dated 30 December 2005 is partially reinstated.
4.) Mr Stefan Ivanov Vassilev is guilty of anti-doping rule violation committed on 22 November 2004, further to an out-of-competition testing in Winterberg, Germany. Mr Stefan Ivanov Vassilev shall be declared ineligible for one year. The period of ineligibility shall start retroactively on the day of testing, namely on 22 November 2004.
5.) (…).
6.) (…).
7.) All other claims are rejected.
