CAS 2005/A/830 G. Squizzato v/ FINA
CAS 2005/A/830 S. v. FINA
- Swimming
- Doping (clostebol)
- Strict liability
- Duty of diligence
- Proportionality of the sanction
1. Under the FINA Doping Policy, an offence has been committed when it has been established that a prohibited substance was present in the athlete’s body. There is thus a legal presumption that the athlete is responsible for the mere presence of a prohibited substance. The burden of proof lies within FINA and its Member Federation to establish that an anti-doping rule violation has occurred.
2. An athlete fails to abide by his/her duty of diligence if, with a simple check, he/she could have realised that the medical product he/she was using contained a prohibited substance, the latter being indicated on the product itself both on the packaging and on the notice of use. Furthermore, it is indeed negligent for an athlete willing to compete in continental or world events to use a medical product without the advice of a doctor or, at the very least, a physiotherapist. However, if it appears that the athlete had no intention whatsoever to gain advantage towards the other competitors, his/her negligence in forgetting to check the content of the medical product can be considered as mild in comparison with an athlete that is using a doping product in order to gain such advantage. Accordingly, although it cannot be considered that the athlete bears no fault or negligence in such a case, it can be held that he/she bears no significant fault or negligence, which opens the door to a reduced sanction.
3. Substantial elements of the doctrine of proportionality have been implemented in the body of rules and regulations of many national and international sport federations by adopting the World Anti-Doping Code, which provides a mechanism for reducing or eliminating sanctions i.a. in cases of “no fault or negligence” or “no significant fault or negligence” on the part of the suspected athlete. However, the mere adoption of the WADA Code by a respective Federation does not force the conclusion that there is no other possibility for greater or lesser reduction of a sanction.
4. A mere “uncomfortable feeling” alone that a one year penalty is not the appropriate sanction cannot itself justify a reduction of the sanction. The individual circumstances of each case must always hold sway in determining any possible reduction. Nevertheless, the implementation of the principle of proportionality as given in the WADA Code closes more than ever before the door to reducing fixed sanctions. Therefore, the principle of proportionality would apply if the award were to constitute an attack on personal rights which was serious and totally disproportionate to the behaviour penalised.
In September 2004 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Athlete Gioriga Squizzato after her sample tested positive for the prohibited substance Clostebol. Consequently on 9 December the FINA Doping Panel decided to impose a 1 year period of ineligibility on the Athlete, starting on the date of the decision.
Hereafter in February 2005 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS). She requested the Panel to acquit her from the charge, or in any event, to reduce the sanction.
The Athlete argued that the violation was non intentional and acknowledged that she had used a cream to her foot as treatment for her skin condition which does not enhance her performance. On this basis, she claimed that she did not commit any fault, nor that she had been negligent.
The Panel finds that the Athlete indeed established how the prohibited substance had entered her system. However she failed to abide by her duty of diligence. With a simple check, she could have realised that the cream was containing a doping agent, as Clostebol is indicated on the product itself both on the packaging and on the notice of use. At least she could have asked her doctor, coach or any other competent person to double-check the contents of the cream bought by her mother.
As the Athlete was effectively suspended from 30 September 2004 onwards, the Panel is of the opinion that fairness requires that the sanction should not last more than one year and should therefore end on September 30, 2005. Therefore, as requested by the Athlete, the commencement of the sanction shall be September 30, 2004 and not December 9, 2004.
On 15 July 2005 the Court of Arbitration for Sport decides that:
1.) The appeal filed by the Athlete is partially upheld.
2.) The decision of the FINA is confirmed with the exception of the commencement of the sanction that shall be September 30, 2004.
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