CAS 2003/A/459 Van Herk v/FINA
On 9 September 2002 the Disciplinary Committee of the Royal Dutch Swimming Federation (KNZB) decided to impose a 4 year period perod of ineligibility on the minor Dutch swimmer (14) Linda van Herk for committing an anti-doping rule violation. 6 months of this sanction was unconditional and 42 months with a probation period of 2 years.
Here the Athlete failed to provide a sample despite several attempts. The Athlete's father requested to stop the sample collection due to business appointments and she left the Doping Control Station while she was warned about the consequences of her refusal.
In September 2002 the Appellant appealed and on 26 October 2002 the KNZB Appeal Committee decided to annul the decision of the KNZB Disciplinary Committee, and to acquit the Athlete.
Thereupon the FINA Disciplinary Committee decided on 11 April 2003 to impose a 2 year period of ineligibility on the Athlete for her refusal to provide a sample.
Hereafter in July 2003 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).
The Panel considered the arguments filed by the Athlete and finds that it has jurisdiction in this case and that the admitted departure by the KNZB from the doping control procedures is certainly regrettble. However the Panel holds that the non-compliance by officials with the procedures does not justifies an acquittal of the Athlete.
Considering the circumstances the Panel concludes that the Athlete intentionally refused to submit to doping control by providing a sample although there are grounds for a reduced sanction.
Therefore the Court of Arbitration for Sport decides on 20 October 2003:
1.) The appeal filed by ihe Appellant on 8 July 2002 is upheld in part and the decision of the FINA Doping Panel varied in part.
2.) The Appellant's suspension is reduced to one-year period to expire on 25 October 2003. The FINA Doping Panel's decision otherwise stands.
3.) The award is pronounced without costs. except for the Court Office fee of CHF 500.-- (five hundred Swiss francs) aheady paid by the Appellant and to be retained by the CAS.
