CAS 2009_A_1831 FINA vs Czech Swimming Federation & Zofie Kvackova

CAS 2009/A/1831 Fédération Internationale de Natation (FINA) v. Czech Swimming Federation (CSF) & Zofie Kvackova

Aquatics (swimming)
Doping (failure to provide whereabouts information)
Admissibility of the appeal
Applicable law
Obligation to provide whereabouts information for an athlete included in the national registered testing pool
Notification of the filing failure as a precondition for conviction
Burden of proof

1. The principle of the prohibition against the retroactive application of law is subject to several exceptions, including an exception for law or rules which are of procedural nature. In the absence of an express provision to the contrary, laws and rules related to procedural matters apply immediately upon entering into force and regardless of when the facts to be judged occurred. Such is the case for the 2009 FINA Anti-Doping Rules, which provide for a direct appeal to the CAS. In any event, FINA’s entitlement to appeal a federation’s decision directly to CAS would also have been admissible on the basis of the 2008 FINA Doping Control Rules – the applicable substantive anti-doping rules – which provide that the decision may be appealed exclusively to CAS if an athlete is to be considered an international-level competitor.

2. As a matter of principle, the FINA Anti-Doping Control Rules are not directly applicable to doping violations on a national level and a member of FINA should therefore implement their own anti-doping rules and should, pursuant to the FINA Doping Control Rules, indicate that the FINA Anti-Doping Rules shall be deemed as incorporated and shall be directly applicable and shall be followed inter alia by the competitors. However, the national regulations for doping control and sanctions in sport also apply on athletes as clearly stated in the “Purpose and Scope” chapter of those rules. Therefore both anti-doping rules, those of FINA’s and the national regulations are mutually applicable. In this respect, it is the substantive anti-doping rules in effect at the time the alleged anti-doping rule violation occurred which apply unless the principle of “Lex mitior” applies under the circumstances of the case.

3. Once a swimmer is included in the National Registered Testing Pool list and in the absence of any official statement or notification that this swimmer is stroked out of the list, the swimmer remains on the list for the whole period of the validity of this list, regardless from the question whether or not s/he was a member of the national team. S/he is therefore under the obligation to comply with the whereabouts requirements.

4. The failure to provide whereabouts information, will be considered a violation under the applicable regulations only after the competent body had submitted a written warning to the swimmer. The written warning appears as a precondition to convict a swimmer for a failure to provide whereabouts information. Furthermore, it seems essential to establish the existence of duly notified warnings, as the aim of the warning is to bring athletes to the awareness that they should comply with the obligation to provide the whereabouts information.

5. FINA and its member federations shall have the burden of establishing that an anti-doping rule violation has occurred. In this respect, the occurrence of an anti-doping violation should be established to the comfortable satisfaction of the hearing body. By not being in a position to produce the evidence of the formal written warnings, the minimum requirements for sanctioning an athlete for a failure to provide whereabouts information are not met and the anti-doping violation is not established.
_________________________________________________

In September 2008 the Czech Anti-Doping Committee reported an anti-doping rule violation against the swimmer Zofie Kvackova for her failure to provide whereabouts information on 3 occasions after being notified. As a result the Czech Swimming Federation (CSF) Disciplinary Commission decided on 22 November 2008 to impose a conditional suspension of 3 months with a probation period of 6 months.

After deliberations between the Fédération Internationale De Natation (FINA) and the CSF about the rendered decision FINA filed its appeal in June 2009 with the Court of Arbitration for Sport (CAS).
FINA requested the Panel to set aside the CSF decision and to impose a sanction between 3 months and 2 years on the Athlete. Although duly invited by CAS neither the CSF nor the Athlete responded to submit the requested documents or to attend the hearing. The Panel decided to settled the case based on the filed submissions.

The Panel notes that there are the following main issues to be resolved in this case:
a.) Was the swimmer included in the Registered Testing Pool on the dates of the notifications and therefore liable to comply with whereabouts requirements?
b.) If so, did the swimmer commit a violation under the 2008 FINA Doping Control Rules?
c.) If so, which sanction is to be deemed appropriate in the case at stake?

The Panel finds that regardless of the fact that the swimmer was - or was not - selected in the Czech National Swimming Team at the time the alleged failures occurred, she was still part of the National Registered Testing Pool, since there is no evidence that she was off the list. In the Panel’s view, she was therefore still under the obligation to comply with the whereabouts requirements.

The Panel establish that in this case the only evidence provided to the Panel relies on the CSF’s statement that the swimmer received “two notices”, which are not produced and which are not even referred to as “formal written warnings”. It is therefore the opinion of the Panel that the receipt by the swimmer of a formal written warning was not proven.
Consequently the Panel holds that FINA has not succeeded in showing that formal written warnings have been sent to the swimmer after any one of her alleged failures to provide whereabouts information on April 17, July 22 and August 20, 2008. The only possible outcome in these circumstances is the rejection of FINA’s appeal.

In the case at stake, the Panel has decided to dismiss FINA’s appeal mainly because FINA could not provide evidence that formal written warnings had been received by the swimmer. The Panel is perfectly aware of the fact that FINA cannot prove these elements if the CSF, which is the body that should have sent and kept copies of the written warnings, does not cooperate. Nevertheless, the Panel considers that this is a matter to be dealt with between an international federation and its affiliated member and it cannot condemn, confirm or extend the sanction of an athlete on the sole basis of assumptions.

The Court of Arbitration for Sport decides on 21 January 2010:

1.) The appeal of the Fédération Internationale De Natation (FINA), against the decision issued on 24 November 2008 by the Disciplinary Committee of the Czech Swimming Federation (CSF) and notified on 25 March 2009 to the Appellant, is dismissed.
2.) (…).
3.) All other or further claims are dismissed.

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Parameters:

Legal
CAS Appeal Awards
Date:
21 January 2010
Arbitrator
Barak, Efraim
Oswald, Denis
Wanger, Markus
Source
Tribunal Arbitral du Sport (TAS) - Court of Arbitration for Sport (CAS)
Country
Czech Republic
Language
English
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Antidopingový výbor České republiky (ADV ČR) - Czech Anti-Doping Committee (CADC)
Český Svaz Plaveckých Sportů (ČSPS) - Czech Swimming Federation
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