CAS 2005/A/847 Hans Knauss v. FIS
- Alpine skiing
- Doping (norandrosterone)
- Contaminated nutritional supplements
- Reduction of the sanction when the athlete both bears no significant fault or negligence and provides substantial assistance in establishing an anti-doping rule violation by another person
- Principle of proportionality
1. The risk of contamination and/or mislabelling in nutritional supplements cannot and shall not have remained ignored by an experienced athlete who has competed at the highest levels for many years taking into consideration the express warnings of numerous federations and anti-doping organisations that clearly and repeatedly over the past years have emphasized the risk of contamination and/or mislabelling in nutritional supplements. In such case, the standard of care required for “no fault or negligence”, namely utmost caution cannot be considered.
2. The requirements to be met by the qualifying element “no significant fault or negligence” must not be set excessively high. The higher the threshold is set, the less opportunity remains for differentiating meaningfully and fairly within the (rather wide) range of the period of ineligibility sanctioning the fault or negligence. But the low end of the threshold must also not be set too low; for otherwise the period of ineligibility of two years laid down for an anti-doping rule violation would form the exception rather than the general rule.
3. Linking the applicability of the rule providing for a reduced period of ineligibility in case of the athlete’s substantial assistance in establishing an anti-doping rule violation by another person to a formal criterion such as whether and to what extent a federation may or may not have jurisdiction over this other person or the facts disclosed by the athlete under the anti-doping rules of the federation is an arbitrary and unsuitable criterion for distinguishing conduct which is worthy of preferential treatment from other conduct which does not qualify for such treatment.
4. In the opinion of the Swiss Federal Tribunal, sports bodies can limit in their rules the circumstances to be taken into account when fixing sanctions and thereby also restrict the application of the doctrine of proportionality. However, the sport associations exceed their autonomy if these rules constitute an attack on personal rights, the nature and scope of which is extremely serious and totally disproportionate to the behaviour penalised.
In December 2004 the International Ski Federation (FIS) has reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone). Consequently the FIS Panel decided on 1 March 2005 to impose an 18 month period of ineligbility on the Athlete.
In first instance the FIS Panel accepted that the Athlete did not act intentionally although he clearly acted negligently with the use of his supplements.
Analysis of the Athletes supplements showed that they were contaminated. Thereupon the Athlete had filed a criminal complaint against the importer of the nutritional supplement. This action resulted in a large amount of (contaminated) nutritional supplements being seized and confiscated.
Hereafter the Athlete appealed the FIS decision with the Court of Arbitration for Sport (CAS).
Following assessment of the evidence in this case the Panel concludes that the Athlete did less rather than more than could be expected of him to minimise the risk associated with nutritional supplements about which he was warned, in particular, those originating from this company in question.
If one therefore weighs the efforts and precautions undertaken by the Athlete in their totality, they fall just under the threshold of “no significant fault or negligence”.
In the light of the particularities of the present case and the principle of proportionality, the Panel considers that the sanction of 18 months imposed by the FIS is fair and reasonable.
Therefore on 20 July 2005 The Court of Arbitration for Sport decides that:
1.) The appeal filed by Hans Knauss on 21 March 2003 is dismissed.
2.) The award is pronounced without costs, except for the Court Office fee of CHF 500.- already paid by the Athlete and which is retained by the CAS.
3.) Each party shall bear its own costs.
