CAS 2007/A/1311 Sevdalin Marinov v. Australian Sports Anti-Doping Authority (ASADA)
Related case:
CAS A1_2007 ASADA vs Sevdalin Marinov
March 3, 2007
- Weightlifting
- Doping (trafficking)
- Definition of “trafficking”
- Notion of the requisite “control” over a prohibited substance encompassed in the definition of trafficking
- Standard of proof and distinction between inference and speculation
1. For the purpose of the AWF Anti-Doping Policy, “trafficking” is “possessing”, “holding” and/or “storing” prohibited substances. Pursuant to CAS jurisprudence, “knowledge” is a necessary element of the offence of “trafficking”, be it by “possessing”, “holding” and/or “storing” the banned substances. In addition, the ability to exercise control over the prohibited substances is required for the purposes of satisfying the concept of “holding, storing or possessing”. Exclusivity control is not necessary.
2. The power of control over a forbidden substance does not necessarily result from the occupation of a room in which the banned substances are located. When the occupation of a room results from a gratuitous permission from a third party given to a trainer to enter the third party’s home and to stay in a room, it creates a bare licence in respect of the room. According to Autralian law, a bare licence is the simplest form of licence. A bare licence, being gratuitous, does not give a licensee enforceable rights of occupation against a licensor. Nor does it give a licensee exclusive occupation of the land (the room). The legal effect of a bare licence is merely to preclude an action of trespass against the licensee during the currency of his or her licence to enter the premises. A bare license gives no right of “control” over any items of furniture, etc in the room or any other goods which may have been in the room other than those which form part of the licensee’s own property or which he was otherwise in legal possession of. Accordingly, unless the drugs were the trainer’s property or put on the shelf by him, the mere fact the packets were on the shelf and the trainer knew they were there, would not be sufficient to establish the charge of trafficking because, the trainer did not have the requisite control over those goods. This is the case even in a circumstance where the trainer knew the packets contained prohibited substances.
3. The applicable standard of proof required by the relevant national anti-doping authority to establish findings of facts of trafficking is the standard of “comfortable satisfaction”. According to the applicable Australian jurisprudence, where the totality of the evidence is circumstantial in nature and where there is no direct evidence, it requires the drawing of inferences. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the facts which it is sought to establish. Moreover in a civil case, where the balance of probability needs to be established to the comfortable satisfaction of the adjudicating body, inferences should not be drawn unless the adjudicating body is “comfortably satisfied” that the inference is something which follows from given premises as being at least probably true.
In November 2003, three packets, each containing prohibited substances (Nandrolone, Stanozolol and Testosterone) were found by two members of the Victorian Police Force on the top shelf in a wardrobe in a bedroom occupied by the head coach Sevdalin Marinov from August 2003 until sometime in November 2003. At the time the packets were discovered, the coach was in Canada coaching an Australian Weightlifting Team for the World Weightlifting Championships.
The head coach had used the bedroom from August 2003 in a house owned and occupied by Mr Keith Murphy. Mr Murphy had given permission for the head coach to use the bedroom on the first floor of the house.
In November 2003, Mr Murphy’s car was intercepted by police for a traffic violation and a number of illegal drugs were found in the car. Police then proceeded to search Mr Murphy’s house and great quantities of other illegal substances were found, including the three packets on the top shelf of the wardrobe of the bedroom used by the head coach.
Afterwards Mr. Murphy was charged in November 2003 and he pleaded guilty to possessing and trafficking of prohibited substances including those substances in the three packets.
3 years later in December 2006 the Australian Sports Anti-Doping Authority (ASADA) reported an anti-doping rule violations against Sevdalin Marinov for trafficking (i.e. possessing, storing and / or holding) of the prohibited substances found in the 3 packets.
Consequently on 9 June 2007 the Australian Weightlifting Federation (AWF) in the Oceania Registry Court of Arbitration for Sport (CAS) decided to impose a lifetime ineligibility on Sevdalin Marinov.
Hereafter the head coach appealed the decision with the CAS Appeals Arbitration Division. The head coach requested the Panel to set aside the CAS first instance decision of 9 June 2007 and to dismiss the ASADA allegations against him.
Further ASADA is requested / directed to rectify the ASADA Register of finding and forthwith delete the entry made on the register which refers to the head coach Sevdalin Marinov.
ASADA asserted that it is not necessary to prove the head coach put the drugs there (or that the drugs were his). It is sufficient, according to ASADA, for the drugs to have been there and for the head coach to have known that in the circumstances where he was in sole “occupation” of the room and hence, allegedly, had the power to exercise some form of control over those drugs, even if they were not his.
Considering the evidence in this case the Panel is not comfortably satisfied that the head coach could have seen the 3 packets of drugs on the wardrobe shelf or could have seen them in such way as to also be able to read the lables and hence know that those packages contained prohibited substances.
Accordingly, even if the Panel is wrong in concluding that the head coach did not have the ability to “control” the drugs and hence could not, either as a matter of law or practicality, be said to be “holding, possessing or storing” them, nevertheless the Panel would allow the Appeal.
Therefore the Court of Arbitration for Sport decides on 26 September 2007 that:
1.) The Appeal is upheld.
2.) Orders as to the Appeal on Costs in the primary hearing and orders as to Costs of the Appeal are reserved.
(…).
