- CAS 2011/A/2615 Thibaut Fauconnet v. International Skating Union (ISU) & CAS 2011/A/2618 International Skating Union (ISU) v. Thibaut Fauconnet
- CAS 2011/A/2615 Thibaut Fauconnet v. International Skating Union
- CAS 2011/A/2618 International Skating Union v. Thibaut Fauconnet
Related case:
ISU 2011 ISU vs Thibaut Fauconnet
October 10, 2011
- Short track speed skating
- Doping (Tuaminoheptane)
- CAS power of review and right to be heard
- Conditions to benefit from a reduced sanction
- CAS scope of review of the applicable sanction
- Degree of fault
- Starting date of the ineligibility period
- Disqualification of the results
1. According to Article R57 of the Code of Sports-related Arbitration, the panel has full power to review the facts and the law applicable to a case. As a result, even if a violation of the principle of due process or of the right to be heard occurred in prior proceedings, it may be alleviated by an appeal to the CAS. The virtue of an appeal system which allows for a rehearing before an appealed body is that issues relating to the fairness of the hearing before the tribunal of first instance “fade to the periphery”.
2. To benefit from the elimination or reduction of the period of ineligibility with regard to Specified Substances, an athlete must establish a) how a Specified Substance entered his or her body or came into his or her possession; and b) that such Specified Substance was not intended to enhance the athlete’s sporting performance or mask the use of a performance-enhancing substance. Regarding the first condition, a panel should simply find the explanation of the athlete concerning the presence of a Specified Substance more probable than not. With respect to the second condition, an athlete only needs to prove that he/she did not knowingly take the specified substance, rather than the product, with an intent to enhance his sporting performance.
3. The discretion of a disciplinary body in setting the appropriate sanction cannot be invoked as a matter of law and principle, even if CAS panels may consider that the circumstances warrant it following a disciplinary body’s judgment and if in certain cases CAS has considered that the sanction should only be reviewed if it is evidently and grossly disproportionate to the offence. Indeed, in determining, as an international appellate body, the correct and proportionate sanction, CAS panels must also seek to preserve some coherence between the decisions of the different federations in comparable cases in order to preserve the principle of equal treatment of athletes in different sports. Moreover, a panel has full power to review the matter in dispute pursuant to Article R57 of the Code of Sports-related Arbitration.
4. Even if accepted, the good character evidence submitted by an athlete cannot mitigate his/her culpability so as to reduce his/her sanction. The absence of past anti-doping offences and the athlete’s cooperation is solely relevant for determining the applicable range of sanctions, not to reduce the sanction given for a first offence.
5. If, despite the athlete’s cooperative attitude, it took almost ten months from the date of the sample collection for a first instance decision to be rendered, it is fair to apply the principle set forth in the applicable anti-doping rules and start the period of ineligibility at an earlier date than the day of notification of the CAS award.
6. Ineligibility cannot be severed from disqualification in the absence of a clear provision in the applicable rules supporting such severance, which might plausibly have been justified in cases in which the period of ineligibility begins before the date of the award and where the nature of the violation of the applicable rules is such that it can be presumed that the violation has not affected the results in other competitions in which the athlete has participated during the period of ineligibility prior to the award.
On 10 October 2011 the International Skaking Union (ISU) Disciplinary Commission decided to impose a 18 month period of ineligibility on the Athlete after his sample tested positive for the prohibited substance Tuaminoheptane. Hereafter both the Athlete and the ISU appealed against the ISU decision with the Court of Arbitration for Sport (CAS).
The Athlete argued that the ISU decision should be annulled because it did not respect his right of defence and it did not apply the ISU Rules properly. He asserted that the imposed sanction by the ISU is disproportionate and should be reduced to a reprimand. In addition the Athlete objected against the disqualification of his results by the ISU.
The CAS Panel determines that the Athlete's violation was not intentional and that the imposed sanction was not disproportional. The Panel considers that the Athlete failed to exercise at least with some degree of reasonable care and that he acted with gross negligence.
Therefore the Court of Arbitration for Sport decides on 19 April 2012 that:
1.) The appeal filed by the Athlete Thibaut Fauconnet on 21 October 2011 is dismissed.
2.) The appeal filed by the International Skating Union on 31 October 2011 is upheld.
3.) The Athlete Thibaut Fauconnet is declared ineligible for a period of 18 months, starting on 12 December 2010.
4.) The Athlete’s competitive results obtained from 12 December 2010, to date, including but not limited to:
- (i) his results obtained at the 2011 ISU European Championships in Heerenveen (14-16.01.2011);
- (ii) his results obtained at the ISU World Cup 2010/2011 in Moscow (11-13.2.2011);
- (iii) his results obtained at the ISU World Cup 2010/2011 in Dresden (18-20.02.2011); and
- (iv) his results obtained at the 2011 ISU World Short Track Championships in Sheffield (11-13.3.2011),
are disqualified with all the resulting consequences including forfeiture of any medals, points and prizes.
5.) Competitive results obtained by any Short Track Team in which the Athlete competed as a member of the team from 12 December 2010 to date, including but not limited to:
- (a) the 6th place reached by the French team at the ISU European Championships in Heerenveen (14-16.01.2011);
- (b) in 5'000 meter relay, the second place reached by the French team at the ISU World Cup 2010/2011 in Moscow (11-13.2.2011);
- (c) in 5'000 meter relay ant the 8th places reached by the French team at the ISU World Championships in Sheffield (11-13.3.2011)
are disqualified with all the resulting consequences including forfeiture of any medals, points and prices.
6.) This award is pronounced without costs, except for the Court Office fee already paid by the parties, to be retained by the Court of Arbitration for Sport.
7.) Each party will bear its own costs.
8.) All other requests for relief are rejected.
