CAS 2017/A/5282 World Anti-Doping Agency (WADA) v. International Ice Hockey Federation (IIHF) & F.
Ice hockey
Doping (dehydrochlormethyltestosterone metabolites)
Intent and burden of proof for absence of intent
Reduction of sanction in case of prompt admission of anti-doping rule violation under Article 10.6.3 WADC
Purpose of Article 10.6.3 WADC
No obligation to admit intent
Prompt admission under Article 10.6.3 WADC in Article 2.1 WADC cases
Backdating of starting date of period of ineligibility
1. Under the IIHF Disciplinary Code (“DC”) as well as under the equivalent Anti-Doping Code (“WADC”), the term “intentional” requires “that the Athlete … engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk”. Furthermore, under Article 10.2.1.1 WADC, in cases of a positive finding for a specified substance prohibited in- and out-of-competition, the athlete’s intent is presumed and it is the athlete’s burden to prove, by a balance of probability, that he or she did not act intentionally, i.e. that he or she did not engage in a conduct which he or she knew constituted an anti-doping rule violation, or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk.
2. Article 10.6.3 WADC provides for a possible reduction of the sanction of four years potentially applicable to an athlete for a violation sanctionable under Article 10.2.1 WADC. In order to benefit from the potential reduction the athlete is required to have admitted the asserted anti-doping rule violation promptly after being confronted with it by the Anti-Doping Organization; the reduction further requires the approval of both WADA and the Anti-Doping Organization with results management responsibility. Even in such circumstances, any reduction is dependent on the discretion of those two bodies – the key word in Article 10.6.3 WADC is “may”, not “must” – and depends upon the severity of the violation and the athlete’s degree of fault.
3. The perceptible purpose of Article 10.6.3 WADC is to avoid (or decrease) the time and costs involved in a contested dispute and its procedural consequences. By means of the reduction foreseen by Article 10.6.3 WADC, the WADC intends to give a benefit to the athlete who, promptly admitting the anti-doping rule violation, in some way “simplifies” the disciplinary proceedings.
4. Article 10.6.3 WADC does not require anywhere that an athlete admits intent in order to become potentially eligible for a reduction of the four year sanction therein contemplated. This is because on its face, Article 10.6.3 WADC requires the admission of the anti-doping rule violation, and not the acceptance of its consequences. Furthermore, Article 10.6.3 WADC does neither oblige the athlete him- or herself to pray in aid its application. The relevant disciplinary tribunal or CAS panel can of its own motion consider its applicability to the case before it.
5. The group of violations to which Article 10.6.3 WADC applies is not “homogenous”. Put differently, the commission of a violation under Article 2.1 WADC is simply and sufficiently established by an adverse analytical finding, the accuracy of which is to be presumed unless rebutted in the limited way envisaged by Article 3.2.2 WADC. For other violations, e.g. evading, refusing or failing to submit to sample collection (Article 2.3), tampering or attempted tampering with any part of doping control (Article 2.5), more complex evidence can be required in order to satisfy the burden of proof borne by the Anti-Doping Organization, and an admission of the athlete can be an important element to establish an anti-doping rule violation. Having said that, in all Article 10.6.3 WADC cases, an admission constitutes a necessary precondition to bring into play Article 10.6.3 WADC. However, given that to prove an anti-doping rule violation under Article 2.1 WADC, an admission by the athlete of the presence in his/her body of a prohibited substance is not necessary, an admission – whether by way of the simple acknowledgment of the adverse analytical finding or voluntary waiver of the B sample analysis – does not appear to be sufficient for an athlete to obtain any benefits thereunder. Rather, to allow for the meaningful application of all elements of Article 10.6.3 WADC to an Article 2.1 WADC violation, an athlete must describe the factual background of the anti-doping rule violation both fully and truthfully and not merely accept the accuracy of the adverse analytical finding. This enhanced admission would enable the adjudicative body to determine whether the athlete would potentially be subject to a sanction of four years for an intentional violation.
6. Pursuant to Article 10.11 WADC and the equivalent rule of the DC, the “period of ineligibility shall start on the date of the hearing decision providing for ineligibility”. However, where there have been substantial delays in the hearing process or other aspects of doping control not attributable to the athlete, the body imposing the sanction may start the period of ineligibility at an earlier date, commencing as early as the date of sample collection or the date on which another anti-doping rule violation last occurred (Article 10.11.1 WADC referred to by Article 7.12 DC). In cases where an Anti-Doping Organization with results management responsibility fails to impose a provisional suspension, this may imply a delay in the application of a sanction; as this delay is not attributable to the athlete it justifies a backdating of the starting date of his or her period of ineligibility.
In February 2017 the International Ice Hockey Federation (IIHF) has reported an anti-doping rule violation against the ice hockey player F. after his sample tested positive for the prohibited substance ehydrochlormethyltestosterone (Turinabol). The Athlete gave a prompt admission and on 22 June 2017 the Disciplinary Board of the IIHF decided to impose an 18 month period of ineligibility on the Athlete.
Hereafter in August 2017 the World Anti-Doping Agency (WADA) appealed the IIHF decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the IIHF decision of 22 June 2017 and to impose a 4 year period of ineligibility on the Athlete.
The object of this arbitration is the Decision, which found the Player responsible for the ADRV contemplated by Article 2.1 of the DCR and imposed on him an ineligibility period of 1 year and 6 months under Article 7.5.2 of the DC: the Player’s violation was found to be not “intentional”, within the meaning of Article 7.2.3 of the DC, and, in addition, the Player was considered to be entitled to a fault-related reduction of the period of ineligibility. WADA disputed this conclusion and requested this Panel to find that the anti-doping rule violation was “intentional”, and therefore to impose on the Player a sanction of four years of ineligibility pursuant to Article 7.2.1 of the DC. The IIHF, for its part requested the Panel to dismiss the appeal brought by WADA and to confirm the Decision.
The Panel concludes that to allow for the meaningful application of all elements of Article 10.6.3 to an Article 2.1 of the WADC violation, an athlete must describe the factual background of the anti-doping rule violation both fully and truthfully and not merely, accept the accuracy(s), of the adverse analytical finding. This enhanced admission would enable the adjudicative body seized of his/her case to determine whether he/she would potentially be subject to a sanction of four years for an intentional violation.
The Panel considers that the Athlete accepted the test result and gave a prompt admission of the asserted anti-doping rule violation after being confronted with it by the IIHF while there were also substantial delays not attributable to the Athlete.
Therefore the Court of Arbitration for Sport decides on 9 April 2018 that:
1.) The appeal filed by the World Anti-Doping Agency (WADA) on 20 March 2017 against the decision rendered on 9 February 2017 by the Disciplinary Board of the International Ice Hockey Federation (IIHF) is partially upheld.
2.) The decision rendered on 9 February 2017 by the Disciplinary Board of the International Ice Hockey Federation (IIHF) is overturned.
3.) F. is declared ineligible for a period of three years and six months from 15 March 2017.
(…)
6.) All other motions or prayers for relief are dismissed.
