CAS 2009/A/1985 Franchon Crews v. International Boxing Association (AIBA)
Boxing
Doping (phentermine)
Invalidity of the constitution of an IF Anti-Doping Hearing Panel
De novo hearing
Negligence of the athlete excluding a finding of No Significant Fault or Negligence
Consequences of the delay in the process on the applicable sanction
1. A federation doping hearing panel is to be considered an organ of the association and – as such – does not need to meet the same level of independence as an arbitral tribunal. A federation’s doping hearing panel which deals with an athlete case has to be properly appointed under the federation’s rules by which the athlete has agreed to be bound. It is only in cases where there is some allegation of misfeasance by the federation or some representative of it that questions might be raised as to the possibility of some apparent bias. The protection against this possibility lays in the provision that the appointed members shall have had no prior involvement with the case and shall not have the same nationality as the person alleged to have violated the anti-doping rules. This is a requirement which must be strictly observed. If the requirement is not observed, the proceedings of, and decision by, the panel are fatally flawed.
2. An appeal before CAS is treated as being an appeal by way of complete re-hearing rather than review. Therefore a CAS panel can reconsider the case de novo and thus cure the defect in the composition of the original federation’s anti-doping hearing panel. This CAS jurisprudence is in line with European Court of Human Rights decisions.
3. All athletes competing at international level are, or at the very least should be, well aware of the need to take extreme care as to what they allow to enter their bodies. For an athlete to accept a “sports drink” with a label in a language he/she cannot understand from a person he/she did not know to “help replenish her electrolytes” for competition and then to consume it without making any inquiry about its contents constitutes as clear and obvious a case of negligence as it is possible to envisage. Therefore it cannot be said that he/she “bore No Significant Fault or Negligence” justifying a reduction of the otherwise applicable sanction.
4. Whilst it is important that an international governing body of a major sport should deal properly and promptly with anti-doping matters, it does not follow that the appropriate way to do this is by allowing an athlete to escape the consequences of his/her actions.
This would merely advantage the athlete and act to the disadvantage of those other athletes who had not committed doping offences. It is important that an athlete should not have been disadvantaged by the delay, but once it is established that there is no disadvantage, there is no reason why a sanction should not be imposed. Since the appropriate penalty is one of two years ineligibility and the period of ineligibility is to run from the date of the sample collection, there is no prejudice to the athlete in the delay.
In November 2008 the International Boxing Association (AIBA) has reported an anti-doping rule violation against the American boxer Franchon Crews after her sample tested positive for the prohibited substance Phentermine. After deliberations and delays the AIBA Anti-Doping Hearing Panel decided on 8 October 2009 to impose a 2 year period of ineligibility on the Athlete starting on the date of the sample collection.
Hereafter in October 2009 the Athlete appealed the AIBA decision with the Court of Arbitration for Sport (CAS).
The CAS Panel regards that there is no dispute that the anti-doping test on the Athlete was properly carried out and that the prohibited substance was found in the A and B samples provided. The Athlete accepts that had a timely hearing been carried out by a duly constituted panel some sanction would have been imposed on her. She asserts that even in these circumstances the facts of the case are such that the usual penalty of two years ineligibility from the date of the taking of the sample ought to have been mitigated so that any period of ineligibility imposed should not exceed eighteen months.
The Panel holds that the problems which have to be considered are:
(1) the challenge to the constitution of the Anti-Doping Hearing Panel;
(2) the delay in the hearing by the Anti-Doping Hearing Panel; and
(3) the consequences of its findings in relation to those two matters.
The panel must also consider the Athlete’s assertion that in any event the two-year ineligibility period should be reduced.
The Panel deems that the delay in the hearing cannot be excused on the grounds given by AIBA. While it seems that there was some initial delay on the part of USA Boxing. From then until October there were unjustifiable delays on the part of AIBA.
The Panel finds that there was no obligation of AIBA to appoint a panel which had no connection at all with AIBA. An AIBA Doping Hearing Panel is not an arbitral panel recognised as such under Swiss law.
In the instant case the Athlete had agreed to be bound by the rules of the AIBA and the question to be answered is whether the AIBA Doping Hearing Panel which dealt with her case was properly appointed under those rules by which she had agreed to be bound, not whether the panel would pass muster as an independent arbitral tribunal under Swiss law. Also the Panel regards the allegation that there might have been actual bias on the part of the AIBA Panel was made unsupported by any evidence whatsoever.
The Panel considers that the appointment of the third member of the AIBA Panel and regards that not could be said that this member had no prior involvement with the case. Therefore he was not eligible to be a member of the AIBA panel. It must follow from this that the proceedings of, and decision by, the AIBA panel are fatally flawed, whether or not the delay involved also affects the validity of the decision.
The Panel finds that based on the Athlete’s statement about how the Phentermine entered her system that she clearly failed to make any inquiry for the sports drink she consumed and constitutes an obvious case of negligence.
The Panel deems that the Athlete should not have been disadvantaged by the delay in this case, but once it is established that there is no disadvantage, there is no reason why a sanction should not be imposed. Since in the present case the appropriate penalty is one of two years ineligibility and the period of ineligibility is to run from the date of the sample collection, there is no prejudice to the Athlete in the delay.
The Court of Arbitration for Sport decides on 10 June 2010:
1.) The appeal filed by Ms Franchon Crews on 28 October 2009 against the decision rendered on 8 October 2009 by the AIBA Anti-Doping Hearing Panel is admissible and upheld.
2.) The decision rendered on 8 October 2009 by the AIBA Anti-Doping Hearing Panel is confirmed.
(…)
5.) All other and further claims are dismissed.
