CAS 2011/A/2357 Raphael Menezes Dos Santos v. International Triathlon Union (ITU)
Triathlon
Doping (clenbuterol)
Right to a fair hearing
Effects of a de novo trial on procedural defects
Proof of how the prohibited substance entered the athlete’s body
1. An athlete cannot be expected to know that he or she has the right to an oral hearing. If the regulations of the federation give to the athlete the right to such oral hearing but that the federation has developed a practice of having “documentary” hearings and wants to continue with such practice, it must first inform the athlete of his or her right to an oral hearing and secondly, advise the athlete of the option of having the case decided on the papers instead of holding an oral hearing. Likewise, the practice of having the president of the first-instance panel acting as legal counsel in the matter on appeal, as well as calling a member of the first-instance panel as an “expert witness” in the appeal proceedings does not give the impression that the first-instance decision makers were impartial, when they turn around and act for the entity alleging the anti-doping rule violation on appeal and ultimately “defend” their own decision.
2. The CAS appellate arbitration procedure under Article R57 of the CAS Code of Sports-related Arbitration entails a trial de novo which can cure procedural defects at first instance.
3. An athlete does not establish on a balance of probability that the source of the Clenbuterol was meat contamination when submitting that his primary diet prior to the testing was chicken and pasta with meat sauce. Evidence of all experts is that to date, there have been no reports of cases of Clenbuterol contamination from ingesting chicken and that the athlete would have had to have eaten a quantity of beef, which the athlete does not even contend he did on that day, or any day leading up to the competition, abnormally large in order to have the level of Clenbuterol in his system that he did.
On 1 February 2010 the International Triathlon Union (ITU) decided to impose a 2 year period of ineligibility on the Brazilian triathlon Athlete Raphael Menezes Dos Santos after his A and B Samples tested positive for the prohibited substance Clenbuterol.
Hereafter the Athlete appealed the ITU Decision with the Court of Aribitration for Sport (CAS). The Athlete requested to annul the ITU Decision and that no period of ineligibility be imposed on him.
The Athlete asserted that his right for a fair trial was breached since the ITU in their communications failed to advice the Athlete about his option for an oral hearing. Further he alleged that the doping control procedure departed from the IST and that the positive test was the result of his ingestion of contaminated meat (i.e. chicken) in Mexico prior to the testing.
The Panel agrees that the ITU first must inform the Athlete of his or her right to an oral hearing and secondly advise the athlete of the option of having the case decided on the papers. In this matter the Panel determines that a CAS trial de novo can cure such procedural defects at first instance.
The Panel finds that the Athlete’s allegations about departures of the IST are not supported by any documentary evidence while the Athlete’s signature on the Doping Control Form indicate that the IST was followed. Even if there was a departure, this did not cause or contribute to the positive test.
The Panel acknowledges there is a possibility of meat contamination in Mexico. Indeed even the witnesses of the ITU agree that a person may eat meat, particularly in Mexico, that has been contaminated with Clenbuterol and subsequently suffer side effects of Clenbuterol intoxication. However the evidence of all experts is that to date, there have been no reports of cases of Clenbuterol contamination from ingesting chicken.
The Panel deems that the Athlete’s argument that the chicken was contaminated with Clenbuterol is simply not supported by the evidence. Accordingly the Panel concludes that the Athlete has not established on a balance of probability that the source of the Clenbuterol was meat contamination.
Therefore The Court of Arbitration for Sport decides on 30 September 2011:
1.) The appeal of Raphael Menezes dos Santos against the decision of the ITU Doping Hearing Panel convened under the ITU regulations dated 1 February 2011 is dismissed.
2.) Pursuant to Art. 10.2 of the ITU Rules, the two year period of ineligibility of Raphael Menezes dos Santos, running from 8 October 2010 is confirmed.
(…)
5.) All further and other requests for relief are dismissed.
