CAS 2009/A/1948 Robert Berger v. World Anti-Doping Agency (WADA)
- Paralympics shooting
- Refusal to grant a Therapeutic Use Exemption (TUE) for Metoprolol
- CAS Jurisdiction
- CAS power of review regarding TUEs
- Burden of proof regarding the entitlement of a TUE
- Knowledge and information to be considered by the Committees considering TUE applications
1. According to the first sentence of Article 13.4 of the IPC Anti-Doping Code, decisions by WADA reversing the grant or denial of a TUE may be appealed to CAS but, on the other hand, because of the language of the second sentence, a decision of WADA confirming or “not reversing” the earlier decision relating to the grant or denial of a TUE could not be appealed to CAS. Pursuant to the general principle of contractual interpretation, where a tribunal concludes that there has been a clear mistake in the language used in the contract, it can correct that mistake by supplying, omitting or correcting words. However, the mere suspicion of a drafting error is not enough to accept the rewriting of an article. Furthermore, any possible alternative construction of the regulations involving a significant departure from the ordinary and natural meaning of the words used is not acceptable. In any event, CAS jurisdiction results from the express jurisdiction conferred by the parties in the order of procedure.
2. The extensive nature of the powers conferred on a CAS appeal panel has become well entrenched in CAS jurisprudence and there is nothing the CAS Code, the IPC Anti-Doping Code or the WADC which would restrict the express power of an appeal panel to review the facts and the law. This principle applies to the granting or denying of TUEs. The procedure before an appeal panel is a hearing de novo. Thus, a CAS appeal panel shall consider all oral, documentary and real evidence produced before it and any fresh evidence may be adduced as of right in a re-hearing whether or not that new evidence was available for use at first instance or discovered subsequently. In this respect, there is no reason to suppose that merely because the members of the CAS panel may not be physicians they are not competent to decide matters of a medical nature assisted by expert evidence. Therefore, all of the material which has been placed before the CAS panel, including the medical evidence and publications, even if some of that material was not before either the IPC TUEC or the WADA TUEC, shall be considered.
3. It is for an athlete to establish his or her entitlement to a TUE before each of the relevant TUE Committee’s. Since the hearing is de novo the athlete must also bear that onus of proof before the CAS. It follows that it is for the athlete to satisfy the CAS that each of the imperative and cumulative criteria in Article 4 of the International Standard for TUEs has been satisfied.
4. It is permissible for the Committees considering TUE applications, measured against the applicable published International Standards criteria, to refer generally to medical and scientific literature and studies which are publicly available and which one or other or both of those Committees may consider relevant and persuasive to a considered and reasoned point of view. The expert medical practitioners who undertake their responsibilities as TUE Committee members do not “leave their expert knowledge behind them at the door of the committee room” when undertaking their responsibilities. They are entitled to rely on their knowledge and the information which is available in the public domain as part of the process of considering an individual TUE. Of course, that knowledge and the information which is in the public domain, relevant to the issue before them, cannot substitute for consideration of the specific matters particular to the athlete, his or her medical condition, or the full breadth of circumstances upon which the athlete relies for the TUE application. All relevant information must be considered, be it of general application or specific to the athlete.
On 18 February 2009 the IPC TUEC rejected the Parathlete's application for the use of the prescribed medication Metoprolol. Thereupon the WADA TUEC decided 19 August 2009 to uphold the appealed IPC TUEC decision.
Hereafter the Parathlete appealed the WADA TUEC Decision with the Court of Arbitration for Sport (CAS).
The Panel assessed and addressed the issue of upon whom rests the burden of establishing entitlement to an exemption (and therefore upon whom rests the burden of this appeal). Then the Panel considered the filed evidence on behalf of both parties, the appellant Mr Berger and WADA as respondent.
In view of the medical evidence the Panel deems that the Parathlete has not demonstrated that the therapeutic use of the Prohibited Substance would produce no additional enhancement of performance other than that which might be anticipated by return to a state of normal health following the treatment of a legitimate medical condition.
The Panel concludes that the Parathlete in this case, at this time, on the basis of all the evidence before us, has not discharged the burden resting upon him to establish his entitlement to a TUE for the use of Metoprolol whilst participating in his chosen sport of shooting.
Therefore the Court of Arbitration for Sport decides on 1 March 2010:
1.) The Court of Arbitration for Sport has jurisdiction to hear this Appeal but only by reason of the express conferral of jurisdiction upon it by Order 2.1 of the Order of Procedure.
2.) The Appeal is dismissed.
3.) The decision of the IPC TUEC dated 18 February 2009 not to approve a TUE for the appellant and the decision of the WADA TUEC dated 19 August 2009 not reversing the decision of the IPC TUEC, remain in force.
4.) That this Award be made public.
5.) (…).
