CAS 2004/A/717 Intemational Paralympic Committee v/ Broekman & WADA
In July 2004 the TUE Committee of the International Paralympic Committee (IPC) decided to dismiss the TUE application of the British Parathlete Andrew Brockman.
By contrast on 23 August 2004 the WADA TUE Committee decided to reverse the IPC decision and to grant the Athlete's TUE application for the use of his medication.
Hereafter in September 2004 the IPC appealed the WADA Decision with the Court of Arbitration for Sport (CAS). IPC requested the Panel to set aside the WADA Decision and to deny the TUE granted to the Parathlete.
IPC argued that a TUE can be denied even in the case the Technical Criteria are satisfied, when the health of the athlete would be seriously impaired by the use of the otherwise prohibited substance and/or by the practice of sport under the effect of the otherwise prohibited substance.
WADA, on the other hand, while agreeing on the importance of the "health factor" for the practice of sport, claimed that the list of the Technical Criteria Is exhaustive, so that an athlete has the right to obtain a TUE if he fulfils them all.
In view of the evidence the Panel determines that the Athlete was suffering from a chronic medical condition, that the otherwise prohibited substance was not specificaliy used for sport, but also in the course of the normal life of the Athlete.
The Panel deems that the administration of the otherwise prohibited substance was medically justified. The Panel finds that no evidence, assessed on the basis of a direct examination of the Athlete, was given that the cessation of the practice of the sport by the Athlete was a reasonable alternative to the administration of the prohibited substance.
As a result, the IPC, by denying the TUE, did not properly apply the Technical Criteria (as set forth by the WADC TUE International Standards and by the IPC Anti-Doping Code). WADA, therefore, was entitled to reverse the IPC Decision
pursuant to Article 6.3 of the IPC Anti-Doping Code.
Therefore the Court of Arbitration for Sport decides on 8 June 2005:
1.) The Appeal filed by the International Paralympic Committee on 15 September 2004 is dismissed.
2.) The decision adopted by the Therapeutic Exemption Committe of the World Anti-Doping Agency on 23 August 2004 is confirmed.
3.) (...)
4.) (...)
