CAS 2012/A/2822 Erkand Qerimaj v. International Weightlifting Federation (IWF)
- Weightlifting
- Doping (methylhexaneamine)
- Criteria to reduce the period of ineligibility for specified substances (Art. 10.4 IWF ADP)
- Distinction between direct intent, indirect intent and the various form of negligence
- Degree of fault of the athlete
- Relevant factors to be considered in reducing the period of ineligibility
1. Whether or not the behaviour of the athlete as such is intended to enhance his sport performance is not a sufficient criteria to establish the scope of applicability of Art. 10.4 IWF ADP. This is all the more true since nutritional supplements are usually taken for performance-enhancing purposes which is not per se prohibited. The characteristic of “performance-enhancing” as such is neutral. An athlete is entitled to consume any substance that seems useful to enhance his sport performance as long as this substance is not listed on WADA’s Prohibited List. Therefore, the primary focus can obviously not be on the question whether or not the athlete intended to enhance his sport performance by a certain behaviour (i.e. consuming a certain product), but moreover if the intent of the athlete in this respect was of doping-relevance. As a result, Art. 10.4 IWF ADP is applicable if the athlete is able to produce corroborating evidence in addition to his word that establish to the comfortable satisfaction of the hearing panel the absence of an intent to enhance sport performance through consuming the specified substance.
2. Art. 10.4 IWF ADP remains applicable, if the athlete’s behaviour was not reckless, but “only” oblivious. Of course the distinction between indirect intent (which excludes the applicability of Art. 10.4 ADP IWF) and the various forms of negligence (that allow for the application of Art. 10.4 ADP IWF) is difficult to establish in practice. In this respect, it can be admitted that an athlete was not aware that a specified substance not labelled on the product was contained in the latter. Therefore, the athlete had no direct intent to enhance his sports performance through the Specified Substance contained in the product. The athlete’s indirect intent can only be determined by the surrounding circumstances of the case. An athlete who wrongly trusted a personal trainer’s word and listed the supplement on the doping control forms is admitted to have no indirect intent.
3. According to Art. 10.4 IWF ADP the athlete’s degree of fault (e.g. light or gross negligence) is the decisive criterion in assessing the appropriate period of ineligibility. In this respect, it has no influence on the athlete’s degree of fault that it is established to the satisfaction of the hearing panel that he did not intend to enhance his sport performance through the specified substance, as this aspect was considered in the athlete’s favour when assessing whether or not Art. 10.4 IWF ADP was applicable at all. It cannot be taken into account twice.
4. It is appropriate to reduce the sanction imposed on an athlete who never received any education or information in anti-doping matters by his federation or the anti-doping agency of his country. Further, the fact that the athlete did not use prohibited/specified substances deliberately and intentionally is relevant. However, the athlete’s poor judgment in blindly trusting a personal trainers’ advice and not doing further research does not allow for a further reduction.
In May 2012 the International Weightlifting Federation (IWF) has reported an anti-doping rule violation against the Albanian weightlifter Erkand Qerimaj after his sample tested positive for the prohibited substance Methylhexaneamine (1,3-dimethylamylamine).
It is undisputed in this case is that the prohibited substance in question can be traced back to a food supplement called Body Surge that the Athlete took prior to sample collection.
Consequently on 22 May 2012 the IWF Doping Hearing Panel imposed on the Athlete the maximum sanction of two years of ineligibility. The IWF Hearing Panel deemed that the Ahtlete had not produced corroborating evidence that he had not taken the supplement with the intent to enhance his performance.
Hereafter in June 2012 the Athlete appealed the IWF Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.
The Athlete denied the intentional use of the substance and argued that he had no access to anti-doping information or education. He asserted that he had purchased his supplement from a reliable source and that he took the necessary steps to ensure that the product he used was clean.
In the case at hand, it is the Panel’s task to balance the two conflicting positions of the parties, i.e. the IWF’s interest in creating equal conditions for competitions and the Athlete’s limited access to information in anti-doping matters.
The Panel deems it appropriate to reduce the sanction imposed on the Athlete for the reason that he never received any education or information in anti-doping matters by his federation or the anti-doping agency of his country. This explains that the Athlete’s awareness of the dangers of prohibited/specified substances being contained in food supplements was not as high as it should have been.
Therefore the Court of Arbitration for Sport decides on 12 September 2012:
1.) The Appeal filed by Erkand Qerimaj against the decision of the IWF Doping Hearing Panel dated 22 May 2012 is partially upheld.
2.) The decision of the IWF Doping Hearing Panel dated 22 May 2012 is set aside and replaced with the following:
Erkand Qerimaj is sanctioned with a period of ineligibility of fifteen months, commencing on 12 April 2012.
(…)
5.) All other or further claims are dismissed.
