CAS 200S/A/834 Dubin, Österreichischer Behindertensportverband & Austrian Paralympic Committee v/ IPC
In October 2004 the International Paralympic Committee (IPC) reported an anti-doping rule violation against the Austrian Parathlete Wolfgang Dubin after his A and B samples tested positive for the prohibited substance Propylhexedrine.
The Athlete explained that he used for many years prescribed medication for his epilepsy while he was unaware that it contained a prohibited substance. The IPC concluded that the Athlete's violation was not intentional and that he had failed to apply for a TUE.
On 8 November 2004 the IPC decided on 8 November 2004 to impose a warning and a reprimand on the Athlete including disqualification of his results. Following the Athlete's appeal the IPC decided on 2 February 2005 to uphold its previous decision.
Hereafter in February 2005 the Athlete, the Austrian Paralympic Committe and the Austrian Anti-Doping Committee appealed the IPC Decision with the Court of Arbitration for Sport (CAS).
Following assessment of the case the Panel determines that:
- The presence of a prohibited substance has been established in the Athlete's samples and accordingly he committed an anti-doping rule violation.
- The Athlete did not use the substance intentionally, but only as treatment to control his epilepsy.
- The IPC acted not in accordance with the WADA Code during the analysis of the Athlete's B sample while the IPC already rendered its decision and a press release.
- The substance Propylhexedrine was listed on the 2003 IOC Prohibited List, but was then removed in 2004 without any explanation by WADA.
- The Athlete nor his doctor were fully aware of the situation, due to the ambiguous listing / de-listing of substances on the 2003 and 2004 Prohibited Lists.
- The Athlete acted with No Fault or Negligence.
- No period of ineligibility has been imposed on the Athlete and the warning and reprimand are cancelled.
Therefore the Court of Arbitration for Sport decides on 8 February 2006:
1.) The Appeal filed on 21 February 2005 by Mr Dubin, the Austrian Paralympic Committee and the Austrian Anti-Doping Committee against the decision issued on 2 February 2005 by
which the appeal against the Decision of 8 November 2004 was dismissed is partially admitted.
2.) The Decision of the IPC Management Committee of 2 February 2005 is corrected in the sense that the waming and the reprimand imposed on the appellant Wolfgang Dubin are fully cancelled.
3.) The present arbitration procedure is rendered without costs, except for the CAS Court Office fee of CHF 500 (five hundred Swiss Francs) already paid by the Appellants which is retained by the CAS.
4.) The Respondent shall refund the CAS Court Office fee of CHF 500 (five hundred Swiss Francs) to the Appellants.
5.) Each party shall bear its own costs.
