CAS 2014/A/3603 Nationale Anti Doping Agentur Deutschland (NADA) ./. Michael W.
In October 2013 the National Anti Doping Agency Germany (NADA) has reported an anti-doping rule violation against the baseballplayer Michel W. after his sample tested positive for the prohibited substance Human chorionic gonadotrophin (hCG).
Here the Athlete admitted the use of the prohibited substance to improve his fertility since he and his wife were unsuccessfull in having children. The German Institution of Arbitration (DIS) accepted the Athlete’s explanation and decided on 14 April 2014 to impose only a warning on the Athlete.
Hereafter in May 2014 NADA appealed the DIS decision with the Court of Arbitration for Sport (CAS). NADA requested the Panel to set aside the DIS decision and to impose a 2 year period of ineligibility on the Athlete.
NADA contended that the Athlete had used the substance intentionally to enhance his sport performance and not to improve his fertility. In first instance he had already admitted the violation, explained where he had purchased the substance and through injection administered into his system.
NADA asserted that the Athlete failed to provide medical information and he didn’t consult a doctor about his condition. Instead he followed the recommendation of an anonymous training partner and he acquired the substance through dubious channels. House searches conducted as part of criminal proceedings against the Athlete revealed the presence of prohibited substances in his house including hCG while he also had a shop for Sports nutrition and food supplements.
The Athlete requested the Panel to uphold the DIS decision and disputed the jurisdiction of CAS, the competence of NADA to appeal and the criminal proceedings against him. He denied that he had used the substance intentionally but solely to improve his fertility for having children as sustained by his wife’s witness statement.
The CAS Panel establish that it has jurisdiction under the applicable Rules, rejects the Athlete’s objections and finds that the NADA appeal is admissible.
The Panel holds that the Athlete in First Instance had admitted the violation and concludes that he had used the substance knowingly and intentionally. The Panel finds it possible that the Athlete assumed that the hCG would increase his fertility. Considering the Athlete’s fault in this case the Panel deems that there are no grounds for a reduced sanction. The Panel regards that Athlete could have known that the hCG is a prohibited substance through research on the internet. Also he failed to seek medical assistance nor did he apply for a TUE.
Therefore the Court of Arbitration for Sport decides on 10 February 2015:
1.) The NADA appeal is admissible.
2.) The Decision of the German Institution of Arbitration (DIS) of 14 April 2014 is set aside.
3.) On the Athlete is imposed a 2 year period of ineligibility.
4.) The sanctions starts on the date of the provisional suspension.
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