CAS 2018/A/5581 Filip Radojevic v. Fédération Internationale de Natation (FINA)
Aquatics (water polo)
Doping (pseudoephedrine)
Athlete’s personal duty to ensure that no prohibited substance enters his/her body
Assessment of no significant fault or negligence
Adverse consequence of the failure to report the use of medication
Irrelevance of a potential performance enhancing effect with regard to the duty of diligence
Young age and lack of experience as mitigating factors
Significantly negligent behaviour
Backdating of start of ineligibility period
1. The prescription of a medicinal product by an athlete’s doctor does not excuse said athlete from investigating to their fullest extent that the medication at stake does not contain prohibited substances. Athletes cannot rely on the advice of their support personnel. Athletes themselves are responsible for knowing what constitutes an anti-doping rule violation (ADRV) and the substances included in the Prohibited List.
2. The mere lack of intention to cheat does not signify that an athlete acted without significant fault or negligence. The concept of no significant fault or negligence requires more of an athlete than a conscious bona fide use of a prescribed medication. Athletes are required to seek information actively and to take precautions in order to avoid any ingestion of a prohibited substance.
3. In the context of establishing whether an athlete acted with no significant fault or negligence, a failure to report the use of a medication on a doping control form is not an action that can illustrate no significant fault or negligence on the athlete’s side.
4. The fact that a prohibited substance may, in an athlete’s ex post facto view, lack a performance enhancing effect does not explain a departure from the expected standard of behaviour. An athlete must demonstrate the same level of diligence with regard to all substances included in the World Anti-Doping Agency Prohibited List irrespective of their capability of enhancing performances.
5. Even if an athlete is not a minor, age and lack of experience as an athlete and in anti-doping matters may be taken into account as mitigating factors in the assessment of the degree of fault or negligence.
6. An athlete whose level of care and investigations was inexistent in relation to what should have been the perceived level of risk acts in a significantly negligent way.
7. According to Rule DC 10.11.2 of the FINA Doping Control Rules, backdating the commencement date of the ineligibility period is at the discretion of the FINA Doping Panel (FINA DP), even where the athlete promptly admitted the ADRV. In the absence of proof that in casu, FINA DP’s decision is inconsistent with its practice, no backdating of the commencement date of said athlete’s ineligibility period appears justified.
On 12 January 2018 the Doping Panel of the International Swimming Federation (FINA) decided to impose a 2 year period of ineligibility on the Serb swimmer Filip Radojevic after he tested positive for the prohibited substance pseudoephedrine in a concentration above the WADA threshold.
Hereafter in February 2018 the Athlete appealed the FINA Decision with the Court of Arbitration for Sport (CAS). The Athetle requested the Panel to set aside the FINA Decision and for a reduced sanction.
The Athlete gave a prompt admission, accepted the test result, denied the intentional use of the substance and asserted that there are grounds for No Significant Fault or Negligence. He explained that he suffered from allergies and Asthma at the time of the sample collection and he had used prescribed medication as treatment for his bronchial and nasal obstructions. He stated that he was unaware that one of the medication contained Pseudoephedrine nor that it was a prohibited substance. Further he argued that his youth, competitive level and lack of experience in anti-doping matters should be taken into account.
FINA accepted that the violation was not intentional and that his prescribed medication was the source of the positive test. FINA contended that the Athlete acted negligently and that there are no grounds for a further reduction of the imposed sanction. The Athleted failed to check his medication for prohibited substances before using and blindly relied on his family doctor without asking whether the prescribed medication could contain prohibited substances.
The Panel concludes that the Athlete’s lack of any precautions and lack of transparency do not justify a finding of No Significant Fault or Negligence. Although the Panel does not consider the Athlete to have acted recklessly, he clearly has been completely passive and even careless with regard to his anti-doping duties. In addition to neglecting to check that the medicines prescribed by his doctor did not contain prohibited substances, the Athlete failed to report the use of his medication in the Doping Control.
The Panel cannot accept the Athlete’s position that he should be considered an amateur. The Athlete obviously is a top-level water polo player and at this elite level, an athlete can reasonably be expected not to ingest pharmaceuticals without somehow performing at least a very basic check on their active ingredients and comparing them with the Prohibited List.
The Panel holds that the 2 year sanction was not disproportional and backdating the commencement of the ineligibility period is not mandatory even if an athlete gave a prompt admission.
Therefore the Court of Arbitration for Sport decides on 10 July 2018 that:
1.) The appeal filed on 21 February 2018 by Mr Filip Radojevic against the decision rendered by the FINA Doping Panel on 12 January 2018 is dismissed.
2.) The decision rendered by the FINA Doping Panel on 12 January 2018 is confirmed.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.
