CAS anti-doping Division (OG PyeongChang) AD 18/004 International Ice Hockey Federation (IIHF) v. Ziga Jeglic
Determination of the sanction in case of absence of intent
Assessment of the degree of fault and reduction of the period of ineligibility
1. In case the Anti-Doping Organization cannot establish that the violation was intentional or confirms that the violation was not intentional, pursuant to Article 7.2.2 of the IIHF Disciplinary Code and Article 10.2.2 of the WADC, the period of ineligibility shall be two years instead of four years. This two-year period of ineligibility may be subject to a potential reduction under Article 7.4 or Article 7.5 of the IIHF Disciplinary Code and Article 10.4 or Article 10.5 of the WADC i.e. in case of No Fault or Negligence or No Significant Fault or Negligence from the athlete.
2. For No Fault, an athlete must exercise “utmost caution”, i.e. he or she must take every conceivable effort that no prohibited substance enters his/her body. An athlete who knew or could have reasonably known that the asthma medication used by him/her immediately before a match contained or may have contained a prohibited substance and relied on his/her doctor’s advice and confirmation did not exercise utmost caution and does not qualify for the application of No Fault or Negligence. In any event, even if the athlete acted reasonably in relying on his/her doctor, the doctor’s negligence is imputed to the athlete.
3. In order to benefit from a reduction of the period of ineligibility based on No Significant Fault or Negligence, the athlete needs to establish to the satisfaction of the panel how the Prohibited Substance entered his/her system.
4. In order to determine the degree of fault in an individual case, CAS jurisprudence distinguishes between “significant”, “normal”, and “light” degrees of fault and allocates a time span to each of those categories. Moreover, with respect to the determination of the sanction, an “objective” and a “subjective” level of fault must be taken into consideration. The objective level of fault or negligence points to “what standard of care could have been expected from a reasonable person in the athlete’s situation” and the subjective level consists of “what could have been expected from that particular athlete, in the light of his particular capacities”. The objective elements should be “foremost in determining” the category of fault.
On 20 February 2018 the International Olympic Committee (IOC) reported during the PyeongChang 2018 Olympic Winter Games an anti-doping rule violation against the the Slovenian ice hockey player Ziga Jeglic after his sample tested positive for the prohibited substance Fenoterol. The International Ice Hockey Federation (IIHF) filed an application to join the procedure as a Co-Applicant.
On 22 February 2018 the Sole Arbitrator of the Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD) ruled in his Partial Award that the Athlete had committed an anti-doping rule violation. He confirmed the IIHF as Co-Applicant and the IOC was dismissed from the procedure.
The Athlete admitted the violation and explained he had had asthma attacks for years and used asthma inhalator prescribed by a doctor. A Berodual asthma inhalator was administered to the Athlete by the doctor of the Slovenian national team while he was unaware whether he was using a Ventolin or a Berodual inhalator. He was explicitly advised his team doctor that the use of the inhalator for two puffs twice a day would not cause an anti-doping violation. He used the inhalator occasionally when absolutely necessary, he was unaware that he had to apply for a TUE, nor did he mention the use of the Berodual on the Doping Control Form.
The IIHF accepts that the violation was not intentional, that the Athlete demonstrated how the substance entered his system and established No Significant Fault or Negligence for imposing a reduced sanction. The IIHF contended that the Athlete had acted with a light degree of fault and requested the Panel to impose an 8 month period of ineligibility on the Athlete starting on the date of the provisional suspension.
The IIHF has no reason to contest the Athlete’s explanation that the prohibited substance entered his system as a consequence of using a Berodual asthma inhalator prior to the game against the Olympic Athletes from Russia. Considering the evidence it is clear that the Athlete was unaware whether he was using a Ventolin or Berodual inhalator for his asthma, nor that Berodual contained the prohibited substance Fenoterol.
The Sole Arbitrator accepts that the violation was not intentional, that the Athlete demonstrated how the prohibited substance entered his system and established No Significant Fault or Negligence considering his light degree of fault.
Therefore the CAS Anti-Doping Division decides on 9 August 2018:
1.) The application of the IIHF is granted and therefore:
- a.) Mr Ziga Jeglic is sanctioned with a period of ineligibility of eight (8) months commencing on the date of this Award on Sanctions.
- b.) Mr Ziga Jeglic is credited the period of provisional/voluntary suspension already served as from 20 February 2018 and through the date of this Award on Sanctions.
4.) All other or further motions or prayers for relief are dismissed.