CAS 2006/A/1130 World Anti-Doping Agency (WADA) v. Darko Stanic & Swiss Olympic
- Handball
- Doping (benzoylecgonine; methylecgonine)
- Athlete’s burden of establishing how the prohibited substance entered her/his body
- Applicable standard of proof
1. In attempting to establish “no fault or negligence” or “no significant fault or negligence”, an athlete must in all events meet the precondition of establishing how the prohibited substance entered her/his system. This precondition is important and necessary; otherwise an athlete’s degree of diligence or absence of fault would be examined in relation to circumstances that are speculative and that could be partly or entirely made up. To allow any such speculation as to the circumstances in which an athlete ingested a prohibited substance would undermine the strict liability principle.
2. The balance of probabilities is the most adequate standard of proof to apply where an athlete is seeking to establish how a substance entered her/his system because the principle of strict liability under which a positive test creates a presumption of fault is already demanding on athletes.
On 6 July 2006 the disciplinary Chamber of Swiss Olympic decided to impose a reduced 6 month period of ineligibility on the handball player Darko Stanic after he tested positive for the prohibited substance Cocaine. The disciplinary Chamber accepted that the Athlete out-of-competition had smoked a cigarette while he was unaware the it contained Cocaine.
Hereafter in July 2006 the World Anti-Doping Agency (WADA) appealed the Swiss Olympic 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.
Since the existence of a doping offence as defined by Swiss Olympic’s doping Statute is not contested, the only question to examine is whether the Athlete was correctly sanctioned for such offence by the disciplinary Chamber of Swiss Olympic, under the applicable rules.
The Panel considers that on the balance of probabilities the Athlete has clearly not provided evidence making it more probable than not that Cocaine or crack entered his system as a result of him smoking a cigarette that he asked a stranger for in a discotheque.
As a result the Panel finds that the Athlete has not met the conditions required to prove lack of fault or no significant negligence. Consequently the Panel deems that the Athlete must be suspended for a period of two years.
The Panel would like to stress that this finding does not imply or mean that the Athlete has been untruthful or that he intentionally doped himself. It simply means that he did not meet the burden of proving how the Cocaine entered his system, as required by the applicable rules based on the principle of strict liability.
Therefore the Court of Arbitration for Sport decides on 4 January 2007 that:
1.) The decision of the Disciplinary Chamber of Swiss Olympic dated 6 July 2006 is set aside.
2.) Darko Stanic shall be declared ineligible for competition for two years commencing on 22 May 2006.
(…).
