CAS 2016_A_4772 Diego Dominguez vs Fédération Internationale de l'Automobile (FIA) (nS)
Doping (amphetamine; denial of retroactive TUE)
Applicability of the FIA ADR to the athlete participating in a FIA International Sporting Code event
Scope of CAS authority to review TUEC decisions under FIA ADR regarding fairness assessment
Invalidity of the federation decision for lack of reasons regarding “fairness criteria”
1. All those participating in organised sport are deemed to know that, in order to ensure a level playing-field for all, there are strict anti-doping rules that must be complied with, and they are deemed to be bound by those rules whether or not they have ever explicitly signed up to them, or even read them. The FIA Anti-Doping Regulations (ADR) define international athletes as “Athletes taking part in any Competition registered on the FIA International Sporting Calendar”. Thus tacit or implied acceptance of the rules suffices and participation in a FIA International Sporting Code event clearly means that the athlete submitted to the FIA regulations including its FIA ADR. Pursuant to Article 4.4 FIA ADR, the International Standards, including the International Standard for Therapeutic Use Exemptions (ISTUE), “constitute an integral part of the Regulations and it is obligatory to respect them”.
2. The comment under Article 4.3(d) ISTUE limits the right on appeal to replace the Therapeutic Use Exemption Committee’s (TUEC) fairness assessment with that of CAS. It is allowed to provide a discretion to the association and courts should not lightly exercise their power of review over the association’s decisions made in the exercise of such discretion, especially in cases in which sports governing bodies have special expertise and experience in relation to their respective sport. While the CAS cannot replace its assessment of fairness with that of the TUEC, appeals may still be permitted on the ground that the decision was arbitrary, grossly disproportionate, irrational or perverse or otherwise outside of the margin of discretion, or taken in bad faith or without the due process rights provided to the athlete.
3. A decision merely stating that “fairness criteria” was not met, does not provide “an explanation of the reason(s) for the denial” of the TUE application as required under the applicable Article 6.8.b ISTUE. The literal meaning of the word “explanation” is a reason or justification, a statement or account that makes something clear. An athlete has a legitimate expectation to understand the rationale of a decision which is a legal ruling affecting his status and which may impact claims of anti-doping rule violation (ADRV) and possible defences as well as the athlete’s handling of such ADRV case. Both the athlete and WADA are entitled to have a reasoned decision which will allow them to properly review and assess their respective positions immediately following the issuance of such a decision. Details of the TUE decision may be crucial for the FIA’s doping bodies’ consideration and any possible sanction regarding the ADRV. The FIA cannot assume that the TUEC will take the same substantive decision if the matter is brought before it again considering that the TUEC’s decision will have to be a reasoned one. The TUEC is an independent body of the FIA and is not the FIA itself and its discretion cannot and should not be assumed by the FIA.
This appeal is brought by Mr Diego Hugo Dominguez Stroessner (the Appellant) against the decision of the Therapeutic Use Exemption Committee (TUEC) of the Fédération Internationale de l’Automobile (FIA), dated 5 April 2016 (the Challenged Decision), which refused to grant the Appellant a retroactive Therapeutic Use Exemption (TUE) for the use of lisdexamphetamine (50 mg once daily) and dextroamphetamine sulphate (10 mg three times daily) starting from 17 March 2015. These products contain amphetamine, a prohibited substance, which was discovered along with its metabolite, p-OH amphetamine, in a sample taken at an in-competition doping control during the Ralli Santa Cruz de la Sierra, Bolivia, subjecting the Appellant to proceedings for an anti-doping rule violation (ADRV), which are not the subject of this appeal.
In October 2015 the FIA has reported an anti-doping rule violation against the Appellant after his sample tested positive for the prohibited substance amphetamine.
Previously the Appellant had mentioned in March 2015 that he suffered from ADHD and used medication when he applied for a renewal of a license to compete in driving rally competitions. Also he mentioned to the Doping Control Officer of his condition when he provided a sample in August 2015.
Between February and April 2016 the Appellant applied for a retroactive TUE and a prospective TUE. The proceedings against the Appellant were suspended following a resolution of the matter of the retroactive TUE and the imposed provisional suspension following the alleged ADRV was lifted.
The Appellant’s application for a prospective TUE was granted for a period of 1 year in March 2016. However in April 2016 the Appellant’s application for a retractive TUE was denied by the TUEC on the basis of fairness.
On 13 April 2016, the Appellant requested WADA to review the FIA’s refusal to grant the retroactive TUE. After deliberations with FIA WADA advised the Appellant that it declined to conduct a formal review of the TUE application, in view of the absence of any agreement between the FIA and WADA regarding the application of the fairness criterion to the Appellant.
Hereafter in August 2016 the Appellant appealed the FIA TUEC decision of 5 April 2016 with the Court of Arbitration for Sport (CAS).
In this case the FIA does not challenge the legitimacy of the ADHD diagnosis or the medication prescribed to the Appellant to treat the ADHD. Furthermore, the FIA does not dispute that had the Appellant applied in the right form and to the FIA for a TUE to cover such medication, sufficiently in advance of the Santa Cruz Rally, he would have been granted a TUE to cover such use, similar to the approval granted by the FIA for the prospective use of similar medication by the Appellant. The FIA further acknowledges that it “accepts that the Appellant is not a cheat, that he was using amphetamine only for therapeutic reasons, and that he was not trying to conceal his use of amphetamine”.
The Panel notes that the main issues which arise in this appeal are:
(a) Was the Appellant subject to the FIA ADR at the time of the Santa Cruz Rally?
(b) Does CAS have the authority to review TUEC’s decisions under Article 4.5.4.1(d) FIA ADR?
(c) Is the Challenged Decision a valid decision?
(d) The application of Articles 4.5.4.1(b), (c) and (d) FIA ADR to this matter.
The Panel establish that the Appellant was subject to the applicable FIA regulations including its FIA ADR in the rally in question. The Appellant was also aware of those rules even if he did not give much attention to the details of the correct formalities regarding the application for and receipt of a TUE.
While the Panel accepts that CAS cannot replace its assessment of fairness with that of the TUEC, it is nevertheless of the opinion that appeals may still be permitted on the ground that the decision was arbitrary, grossly disproportionate, irrational or perverse or otherwise outside of the margin of discretion, or taken in bad faith or without the due process rights provided to the athlete.
The Panel deems that both the athlete and WADA are entitled to have a reasoned decision which will allow them to properly review and assess their respective positions immediately following the issuance of such a decision. Details of the TUE decision may be crucial for the FIA’s doping bodies’ consideration and any possible sanction regarding the ADRV.
The Panel decides to set aside the Challenged Decision and requires the TUEC to issue a new decision in relation to the Appellant’s application for a retroactive TUE dated 4 February 2016 which should be a reasoned decision.
Since the Panel has already decided that the Challenged Decision is null and is set aside and is returned to the TUEC for consideration and issuance of a new reasoned decision the Panel does not need to decide whether Articles 4.5.4.1(b), (c) or (d) FIA ADR (ISTUE 4.3(b), (c) or (d)) apply to the Appellant.
Therefore The Court of Arbitration for Sport decides on 12 January 2018 that:
1.) The appeal filed on 31 August 2016 by Mr Diego Hugo Dominguez Stroessner against the decision of the Therapeutic Use Exemption Committee of the Fédération Internationale de l’Automobile issued on 5 April 2016 is upheld.
2.) The decision issued by the Therapeutic Use Exemption Committee of the Fédération Internationale de l’Automobile on 5 April 2016 in the matter of Mr Diego Hugo Dominguez Stroessner is set aside and the case is referred back to the Therapeutic Use Exemption Committee of the Fédération Internationale de l’Automobile which shall issue a new reasoned decision in due course.
3.) (…).
4.) (…).
5.) All other or further motions or prayers for relief are dismissed.
