CAS 2009_A_1759 FINA vs Max Jaben & Israel Swimming Association

CAS 2009/A/1759 FINA v. Max Jaben & ISA

CAS 2009/A/1778 WADA v. Max Jaben & ISA

CAS 2009/A/1759 FINA vs Max Jaben & Israel Swimming Association

CAS 2009/A/1778 WADA vs Max Jaben & Israel Swimming Association

CAS 2009/A/1759 & 1778 Fédération Internationale de Natation (FINA) & World Anti-Doping Agency (WADA) v. Max Jaben & Israel Swimming Association (ISA)

• Aquatics (swimming)
• Doping (boldenone and boldenone metabolites)
• Imperative character of the rules establishing deadlines to file an appeal
• Notification of disciplinary decisions to WADA and WADA’s right to appeal
• Presence of a prohibited substance in both samples
• Chain of custody and adverse analytical finding
• Beginning of the suspension period

1.) It would violate fundamental principles of fairness if procedural deadlines such as the filing deadline in the anti-doping rules of an international federation were to stand at the free disposition of the prosecuting parties especially if the accused athlete remained uninformed of such communications which ultimately affect his procedural rights. Possible erroneous assumptions on jurisdiction cannot be placed at the burden of the athlete and thus an appeal filed beyond the 21-days limit has to be declared inadmissible.

2.) WADA is not obliged to actively and unilaterally enquire about a decision to be issued by a federation in order to preserve its own right to appeal, since this would place an undue burden upon the WADA and possibly hinder the fight against doping. It would require that WADA actively monitor each and every of the hundreds of 1st instance disciplinary decisions on the national level.

3.) So long as a prohibited substance was found to be present in both the A and B sample analyses and was also found to be of exogenous origin, the fact that a second prohibited substance was not present in the B sample does not invalidate the finding of an anti-doping violation on the grounds of the rule “If the sample “B” proves negative, the entire test shall be considered negative and the Competitor, his Member Federation, and FINA shall be so informed”.

4.) Claims of departures from the International Standard for Laboratories and the International Standard for Testing, such as breach of the “chain of custody” in the handling of the samples, remain unsubstantiated if it cannot be established that these alleged violations of the International Standards have caused the adverse analytical finding.

5.) The sanctioned athlete has a right to an expeditious hearing and timely completion of the adjudicative process. So long as the sanctioned athlete has no control over procedural delays and bears no responsibility for them, it is fair and appropriate to deduce the period of delay from the overall period of his provisional suspension.

In June 2008 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Israeli swimmer Max Jaben after his A and B samples tested positive for the prohibited substance Boldenone.

On 19 November 2008 the Israel Swimming Association (ISA) decided to impose a 1 year period of ineligibility on the Athlete. This decision was appealed with the ISA High Court of Arbitration. However the High Court dismissed this appeal on 15 December 2008 due to lack of jurisdiction because it involved an international-level athlete.

Hereafter in January 2009 both FINA and WADA appealed both Israeli decisions of 19 November 2008 and 15 December 2008 with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Israeli decisions and to impose a 2 year period of ineligibility on the Athlete. FINA's appeal was rejected because it was not filed within the set time limit of 21 days. 

The Athlete denied the intentional use of the substance and argued that the test results of the Athens and Cologne Laboratories were contradictory. He asserted that he should be acquitted because of errors and delays in the laboratory procedures, the unsafe chain of custody and the discrepancies in the laboratory findings.

WADA contended that the Athlete had failed to demonstrate how the prohibited substance had entered his system. Also his allegations about the many inconsistencies are without merit.

WADA holds that both the Athens and Cologne Laboratories were WADA-accredited; the Athlete failed to establish any departure from the International Standard for Testing; and his allegations regarding the validity of the IRMS analyses were erroneous.

The Panel finds that the presence of the prohibited substance has been established by the Athens and Cologne Laboratories on the basis of their respective analyses whereas the task of the IRMS analysis was to prove the exogenous origin of the Boldenone metabolite. In the view of the Panel, the Cologne Laboratory confirmed such exogenous origin.

The Panel holds that, apart from the delayed processing of the samples by the Athens and the Cologne Laboratories, the Athlete’s claims of other departures from the International Standard for Laboratories and the International Standard for Testing remain unsubstantiated.

This is particularly the case with regard to his accusation that the chain of custody in the handling of the samples has been breached. The Athlete does not claim that these alleged violations of the International Standards have caused the adverse analytical finding.

As a result the Panel determines that the presence of Boldenone metabolite in both specimens, which was proved in IRMS testing to be of exogenous origin, is sufficient to support the doping violation.

Therefore the Court of Arbitration for Sport decides on 13 July 2009:

1.) The appeal of the World Anti-Doping Agency against the decisions of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 and of the High Court of the Israel Swimming Association dated 15 December 2008 is declared admissible and is partially upheld.

2.) The appeal of the Federation Internationale de Natation against the decisions of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 and of the High Court of the Israel Swimming Association dated 15 December 2008 is declared inadmissible.

3.) The decision of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 is modified; Mr Jaben is declared ineligible for a period of two (2) years, commencing as of 30 April 2008 without any interruption.

4.) All competitive results achieved by Mr Jaben from 30 April 2008 through 5 June 2008, the date of his provisional suspension, and between the date he resumed competition pursuant to the decision of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 until the date of this award shall be invalidated with the consequence that all medals, points and prizes shall be forfeited.

5.) This award is pronounced without costs, except for the non-reimbursable Court Office fee of CHF 500 (five hundred Swis Francs) already paid by each of the Appellants and to be retained by the CAS.

6.) Mr Jaben is ordered to pay to the World Anti-Doping Agency an amount of CHF 1,000 (one thousand Swiss Francs) as a contribution towards the latter’s legal and other costs incurred in connection with the present arbitration.

7.) The Israel Swimming Association is ordered to pay to the World Anti-Doping Agency an amount of CHF 2,000 (two thousand Swiss Francs) all a contribution towatds the latter's legal and other costs incurred in connection with the present arbitration.

8.) Mr Jaben, the Israel Swimming Association and the Federation Internationale de Natation shall bear their own legal and other costs.

9.) All other motions or petitions for relief are dismissed.