CAS 2018/A/5739 Levi Cadogan v. National Anti-Doping Commission of Barbados (NADCB)
- Athletics (sprint)
- Doping (furosemide)
- Objective fault
- Subjective fault
- Proportionality of the sanction
1. There are three possible ranges of fault, 1) significant degree of or considerable fault, 2) normal (medium) degree of fault, and 3) light degree of fault. The ranges that are generally applied under this framework are that significant fault receives a sanction of 16-24 months, medium fault receives a sanction of 8-16 months, and light fault receives a sanction of 0-8 months.
2. Once an adjudicating panel determines the objective range of fault, then it is helpful to review the subjective fault so that a determination of where the athlete falls in the applicable objective range can be made to apply a specific sanction.
3. The CAS jurisprudence since the entry into effect of the 2015 World Anti-Doping Code (WADC) is not favourable to the introduction of proportionality as a means of reducing yet further the period of ineligibility provided for by the WADC. The WADC has been found repeatedly to be proportional in its approach to sanctions, and the question of fault has already been built into its assessment of length of sanction.
On 20 March 2018 the Disciplinary Panel of the National Anti-Doping Commission of Barbados (NADCB) decided to impose a 2 year period of ineligibility on the Athlete Levi Cadogan after his sample tested positive for the prohibited substance Furosemide.
Hereafter in May 2018 the Athlete appealed the NADCB decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the NADCB decision and to impose a reduced sanction.
The Athlete admitted the violation and stated that it was not intentional. He explained that he unknowingly and inadvertently ingested a Lasix tablet (Furosemide) having mistaken some to be an over-the-counter pain killer. He believed that such a tablet may have unknowingly become mixed with his medications when visitors spent time in his rental home. A housekeeper would have been engaged to clean the Athlete’s rental home at specific times, and would have been aware that all medications found by her in the Athlete’s home were to be placed in a designated area i.e. a basket in the kitchen.
The NADCB, despite being invited to do so, did not make any jurisdictional or substantive submissions despite being invited to do so.
The Sole Arbitrator notes that the NADCB Disciplinary Panel did not establish in the Decision that the Athlete’s anti-doping violation was intentional. Under the NADCB ADR, the burden was on the NADCB to prove that the consumption was intentional. In fact, this issue was not even discussed in the Decision. Since the NADCB failed to appear before the Panel, there was no evidence presented that the Athlete
acted in an intentional manner with respect to the anti-doping rule violation. Accordingly, the Sole Arbitrator finds that it was not established that the anti-doping rule violation was intentional.
The Sole Arbitrator holds that the Athlete acknowledged that his consumption of the prohibited substance, mistaking it for paracetamol/pnadol, does not constitute an exercise of utmost caution. The Athlete does not claim any emotional distress, He simply ingested the wrong pill without taking steps to esure that it was the correct pill.
The Sole Arbitrator established that there are few mitigating factors in the Athlete’s favour with respect to the subjective fault analysis, which means that the period of ineligibility should not be as high as 2 years but still in the upper end of the 16-24-month range. Accordingly the Sole Arbitrator determines that the Athlete’s degree of fault is significant and that he should be subject to a sanction of 20 months.
Therefore the Court of Arbitration for Sport decides on 20 February 2019 that:
1.) The appeal filed by Mr Levi Cadogan on 9 May 2018 against the decision rendered on 20 March 2018 by the National Anti-Doping Commission of Barbados is partially upheld.
2.) Mr Levi Cadogan is sanctioned with a twenty (20) months period of ineligibility starting from 28 November 2017.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.
