CAS 2011/A/2515 Fédération Internationale de Natation (FINA) v. Fabiola Molina & Confederação Brasileira de Desportos Aquaticos (CBDA)
Aquatic sports (swimming)
Doping (methylhexaneamine)
Sanctions applicable under the FINA DC Rules for “specified substances”
Power of the CAS panel to review a decision imposing a sanction on an athlete
Circumstances to be considered in the assessment of the athlete’s fault
Correctness and consistency of sanctions
Athlete’s negligence when purchasing online nutritional supplements
CAS power of review and commencement of the ineligibility period
Credit for periods of provisional suspension under FINA DC Rule 10.9
1. According to FINA DC Rule 10.4, in the event the substance found the competitor’s sample is identified in the Prohibited List as a “Specified Substance”, and additional conditions are met (the athlete can establish how the Specified Substance entered his or her body and that such Specified Substance was not intended to enhance his or her sport performance), the sanction applicable under FINA DC Rule 10.2 is replaced by a sanction ranging from a simple warning with no ineligibility (minimum) to a two years’ ineligibility (maximum).
2. The measure of a sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rules can be reviewed only when the sanction is evidently and grossly disproportionate to the offence. Far from excluding, or limiting, the power of a CAS panel to review the facts and the law involved in the dispute heard (pursuant to Article R57 of the Code), such indication only means that a CAS panel “would not easily ‘tinker’ with a well-reasoned sanction, ie to substitute a sanction of 17 or 19 months’ suspension for one of 18”.
3. According to the World Anti-Doping Code (WADC), the circumstances to be considered in the assessment of the athlete’s fault must be specific and relevant to explain the athlete’s departure from the expected standard of behavior. The athlete’s fault has therefore to be measured on the basis of specific circumstances and against the fundamental duty the athlete had to do everything possible to avoid ingesting any prohibited substance. Such duty is particularly significant if the infringement has occurred years after which the risks connected to the use of nutritional supplements became widely known to athletes and the sports community.
4. Although consistency of sanctions is a virtue, correctness remains a higher one: otherwise unduly lenient (or, indeed, unduly severe) sanctions may set a wrong benchmark inimical to the interests of sport. Each case, in addition, must be decided on its own facts. As a result, the decisions taken with respect to other athletes do not set any binding point of reference.
5. An athlete’s negligence is not inconsequential if, far from doing everything possible, the athlete blindly relied on past experience with the online retailer that provided a nutritional supplement without seeking any kind of advice, while the product label disclosed the presence of MHA.
6. Under Article R57 of the CAS Code, the CAS Panel has the power to issue a new decision that replaces the decision challenged. As a result, in the event the CAS award imposes a sanction to an athlete that had not been found responsible of an anti-doping rule violation, the ineligibility would be imposed only by CAS: therefore, for the purposes of Article 10.9 of the 2009 WADC, the date of the CAS award would be the starting moment of the ineligibility. Conversely, the date of the decision of the disciplinary body is the starting date of the ineligibility in the event the CAS decision does not replace, but entirely confirms, the sanction imposed by the disciplinary body: in such event, ineligibility finds its foundation only in, and is therefore imposed only by, the lower level decision.
7. FINA DC Rule 10.9, while providing for the obligation to give credit for periods of provisional suspension, does not exclude (but logically requires) credit for periods of suspension imposed and served on the basis of “final” disciplinary decisions subsequently set aside.
In June 2011 the Brazilian Water Sports Confederation (CBDA) reported an anti-doping rule violation against the swimmer Fabiola Molina after her sample tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine). As a result the CBDA decided on 21 June 2011 to impose a 2 month period of ineligibility on the Athlete. Here the Doping Control Panel accepted that the violation was not intentional and the result of her use of a supplement purchased on the internet.
Hereafter in July 2011 the International Swimming Federation (FINA) appealed the CBDA decision with the Court of Arbitration for Sport (CAS). FINA requested the Panel to set aside the CBDA decision of 21 June 2011 and to impose a sanction of at least 6 months on the Athlete.
FINA was prepared to accept that the violation was not intentional but disagrees with the current imposed sanction considering the degree of negligence of the Athlete. The Athlete argued that the sanction imposed by the CBDA Doping Panel was within the range of reasonable sanctions in this case unde the WADC and FINA Rules.
In this case the Panel determine that there are two main questions to examine:
1.) the first concerns the appropriate measure of the sanction for the Athlete, and chiefly whether the Decision was correct in imposing a two-month ineligibility period;
2.) the second, to be addressed in the event the Panel decides that a sanction has to be imposed on the Athlete exceeding the two-month ineligibility period set by the Decision, concerns the starting date of the sanction found to be proper by this Panel.
Considering the circumstances and the prior cases involving Specified Substances, as identified by the parties, the Panel concludes that the sanction of 2 months imposed by the CBDA was too lenient. On the basis of the Athlete’s degree of fault and all the relevant specific factors the Panel deems that an appropriate sanctione would be a 6 month period of ineligibility.
The Panel holds that ineligibility period imposed on the Athlete starts on the date this CAS Award was rendered, with credit given to the Athlete for period of suspension already served.
Therefore the Court of Arbitration for Sport decides on 20 December 2011:
1.) The appeal filed by the Fédération Internationale de Natation (FINA) on 28 July 2011 against the decision taken by the President of the Confederação Brasileira de Desportos Aquaticos (CBDA) on 21 June 2011 is upheld.
2.) The decision taken by the President of the Confederação Brasileira de Desportos Aquaticos (CBDA) on 21 June 2011, in the portion where it was decided “to suspend the athlete Fabiola Pulga Molina, as specified by FINA Rule10.4, for the period of two (2) months …”, is set aside and replaced by the following:
3.) Fabiola Molina is suspended for a period of six months starting on 20 December 2011. Credit is given to Fabiola Molina for the period of suspension already served.
4.) The decision taken by the President of the Confederação Brasileira de Desportos Aquaticos (CBDA) on 21 June 2011 is confirmed for the remaining portions.
(…)
7.) All other prayers for relief are dismissed.
