CAS 2008/A/1577 USADA v/ Reed
CAS 2008/A/1577 USADA v. R.
Related cases:
- AAA 2001 No. 30 190 00701 01 USADA vs Barney Reed
April 22, 2002 - AAA 2007 No. 30 190 000548 07 USADA vs Barney Reed
May 21, 2008
- Table Tennis
- Doping (Carboxy THC)
- Status of marijuana under the law and under the WADC
- Legitimacy of the medical diagnosis for the prescription of a prohibited substance
- Applicable rules in case of a second offence occurring after the entry into force of the WADC
- Multiple violations involving a prohibited substance and a specified substance
- Sanctioning discretion for “mixed multiple violations”
1. Cannabinoids, among them hashish and marijuana, are listed under as a Prohibited Substance. Marijuana is, however, not a prohibited substance if taken out-of-competition. The issue of legality of the use of marijuana under another legal system is of no relevance to a dispute before CAS; even if such use had been illegal, there would have been no conflict with the WADA Code as long as the substance was not present in the athlete’s body “in competition”.
2. The issue of legitimacy of the medical diagnosis which formed the basis for a prescription of a prohibited substance is not an issue in a CAS-dispute, since even if the prescribing physician was not properly licensed, erroneously diagnosed the athlete’s pathological condition or incorrectly prescribed the use of a prohibited substance as treatment of that condition, such a finding would have no relevance to the issue of whether the athlete committed an anti-doping violation.
3. According to the CAS jurisprudence, the fact that the applicable pre-WADC anti-doping rules at the time of the first offense may have provided for a more lenient sanction in the event of a second offense is of no relevance in adjudicating a doping offense committed in 2007 (where the new rules apply).
4. In case of multiple, but separate violations involving a Prohibited Substance and a specified substance the sanctioning body has a range of discretion in setting a separate and independent penalty for a repeated offense. The opportunity for eliminating or reducing the ineligibility sanction pursuant to “exceptional circumstances” is granted only “in the case of a second or third violation” which involve exclusively specified substances, and not within the context of a first violation where the ineligibility penalty may be eliminated entirely or within the context of a multiple violation offense involving both a Prohibited Substance offense and a specified substance offense.
5. The WADC does not specify the criteria for the exercise of the sanctioning discretion granted to the Panel with regard to “mixed multiple violations”, i.e., where both a Prohibited Substance violation and a specified substance violation have been committed. However, the deciding issue is that the athlete is granted no “opportunity” to resort to an elimination or reduction of the ineligibility period for “Exceptional Circumstances”. The Panel has thus no discretion to reduce the penalty for such cases below the two year minimum term.
In May 2007 the United States Anti-Doping Agency (USADA) reported an anti-doping rule violation against the Table Tennis player Barney Reed after his A and B samples tested positive for the prohibited substance Cannabis.
Consequently the American Court of Arbitration for Sport Panel (AAA) decided on 21 May 2008 to impose a 15 month period of ineligibility on the Athlete for his second anti-doping rule violation.
Prior on 22 April 2002 the Athlete was sanctioned for 2 years after he tested positive for the prohibited substance 19-norandrosterone (Nandrolone).
Hereafter USADA appealed the AAA Decision of 21 May 2008 with the Court of Arbitration for Sport (CAS). USADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.
USADA contended that there were no grounds for a reduced sanction on the basis of exceptional circumstances. Furthermore USADA challenged the Athlete's medical diagnosis and prescription for the use of Cannabis whereas he failed to apply for a TUE.
Following assessment of the case the Panel determines that:
- After in-competition testing the Athlete had committed an anti-doping rule violation.
- the AAA Panel was erroneous in permitting exceptional circumstances.
- The violation was not intentional.
- This is the Athlete's second violation.
- It is irrelevant to address the validity of the Athlete's medical diagnosis and his prescription for the use of Cannabis.
- The Athlete acted negligently and he failed to apply for a TUE.
- A period of ineligibility of 2 years is both a fair and appropriate sanction.
Therefore the Court of Arbitration for Sport decides on 15 December 2008:
1.) The appeal filed by the United States Anti-Doping Agency in the matter United States Anti-Doping Agency v. R. (AAA No. 30 190 000548 07) is upheld.
2.) The decision of the American Arbitration Association / North American Court of Arbitration for Sport dated 21 May 2008 is partially annulled.
3.) R. is declared ineligible for competition for two years commencing as of 10 May 2007, including his ineligibility from participating in U.S. Olympic, Pan American or Paralympic Games, trials or qualifying events, being a member of an U.S. Olympic, Pan American or Paralympic Games team and having access to the training facilities of the United States Olympic Committee (USOC) Training Centers or other programs and activities of the USOC, including, but not limited to grants, awards, or employment pursuant to the USOC Anti-Doping Policies.
4.) All competitive results achieved by R. in the sport of Table Tennis commencing on or after 3 March 2007, in particular, all medals, points and prizes obtained in competitive events between 10 August 2008 and the date of this Award, if any, are hereby declared retroactively cancelled and rendered null and void.
5.) All remaining points of the Decision and Award of the American Arbitration Association / North American Court of Arbitration dated 21 May 2008 are confirmed.
(…)
