CAS 2007/A/1413 World Anti-Doping Agency (WADA) v. Fédération Internationale de Gymnastique (FIG) & Nadzeya Vysotskaya
- Gymnastics
- Doping (furosemide)
- Time limit to appeal a decision according to the WADA Rules
- Doping offense and intended purpose for using the prohibited substance
- Minor athletes and elimination or reduction of the fault or negligence
1. Provisions set out in the rules governing sports associations may derogate to Article 75 of the Swiss Civil Code. In particular, they may provide for a different statute of limitations or they may provide that the time limit starts to run when the decision has been formally notified to the appellant. In this respect, the mere fact that a press release was posted on the FIG’s website is in itself not sufficient to impose a good faith obligation on WADA to enquire about a decision issued by such federation.
2. In accordance with Article 2.1.1 of the FIG Antidoping Rules, the presence of a prohibited substance, such as furosemide, in the bodily specimens of a gymnast is sufficient in itself to constitute a doping offence. In this respect, the intended purpose for using the substance is irrelevant.
3. The fact that a gymnast was a minor at the time s/he was tested does not constitute either a circumstance eliminating or reducing his/her fault or negligence. The FIG Antidoping Rules do not anticipate a different regime for minors. There is no automatic exception based on age. Such an exception is not spelled out in the Rules and would not only potentially cause unequal treatment of gymnasts, but could also put in peril the whole framework and logic of anti-doping rules, not least in the light of the fact that in gymnastics (like in other sport) it is not uncommon to have minors compete at the highest level.
In September 2006 the International Gymnastics Federation (FIG) has reported an anti-doping rule violation against the minor Belarussian gymnast after her sample tested positive for the prohibited substance Furosemide.
Consequently the FIG Disciplinary Commission decided on 12 November 2006 to impose a period of ineligibility on the Athlete, from 13 May 2006 unit 31 December 2006.
Hereafter in September 2007 the World Anti-Doping Agency (WADA) appealed the FIG Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.
Preliminary the Panel concludes that WADA's appeal is admissible due to FIG had not timely notified its decisions to WADA. As a result it had received the Appealed Decision in September 2007, almost one year after it had been rendered.
The Panel holds that it is undisputed that the presence of a prohibited substance has been established in the Athlete's sample and accordingly that she committed an anti-doping rule violation.
In view of the evidence the Panel deems that the mere statement by the Athlete is far from sufficient to establish how Furosemide had entered her body since in essence her defense is limited to a speculative suggestion that her drink could have been spiked, without any evidence of any such action.
Although the Athlete was a minor at the time she was tested the Panel regards that under the Rules there are no grounds for elimination or reduction of the period of ineligibility.
Therefore the Court of Arbitration for Sport decides on 20 June 2008:
1.) The decision of the FIG Disciplinaiy Commission of 12 November 2006 is set aside.
2.) Ms Nadzeya Vysotskaya is sanctioned with a two-year period of ineligibility, starting on 12 September 2006 and ending on 12 September 2008.
3.) All results achieved during the foregoing period of ineligibility are disqualified and any medals, points and prizes obtained are forfeited.
4.) The costs of the arbitration, to be determined and served on the parties by the CAS Court Office, shall be borne jointly by the FIG and Ms Nadzeya Vysotskaya.
5.) The FIG and Ms Nadzeya Vysotskaya shall pay jointly to WADA an amount of CHF 5,000 (five thousand Swiss Francs) as compensation for expenses incurred in connection with this arbitration.
6.) All other prayers for relief are dismissed.
