CAS 2008/A/1471 FINA vs Tagliaferri and Federazione Italiana Nuoto
CAS 2008/A/1486 WADA v/ CONI and Tagliaferri
CAS 2008/A/1471 Fédération Internationale de Natation (FINA) v. Marco Tagliaferri & Federazione Italiana Nuoto (FIN) and CAS 2008/A/1486 World Anti-Doping Agency (WADA) v. Comitato Olimpico Nazionale Italiano (CONI) & Marco Tagliaferri
- Aquatics (water polo)
- Doping (stanozolol)
- Legitimate interest to have a decision reviewed by the CAS
- Mitigation of the penalty due to the fact that the athlete was minor
- Principle of lex mitior in a doping case
1. The applicable regulations provide that every “interested party” has the right to appeal against decisions by the highest national decision-making body in doping disputes irrespective of whether said “interested party” was a party to the proceedings, in which the decision appealed against was pronounced. Nor does the provision stipulate any limitation to the right to appeal in terms of the “kind” of decision. Whether or not the decision issued deals with procedural issues only is, therefore, irrelevant for the right of appeal. However, not only the wording, but also the intent and purpose of the relevant provision, are a reason for interpreting the right of appeal broadly. The broad right of appeal is supposed to allow all doping-related decisions to be reviewed in order to help harmonize the decisions and to contribute to an equal treatment of all athletes. Even if the decision-making body decided not to punish an athlete for procedural reasons, this does not alter the “nature of the dispute”. It is and remains a doping matter with the consequence that the International Federation and the World Anti-Doping Agency have a legitimate interest to also have this decision reviewed by the CAS.
2. In order to apply mitigating grounds, the athlete has to establish how and because of which surrounding circumstances the prohibited substance was present to the athlete’s body. Whether and how often the athlete ingested the prohibited substance is irrelevant for the extent of the penalty. The fact that the athlete was a minor at the time of the positive doping sample is, in itself, no reason to mitigate the penalty.
3. Because of the principle of lex mitior, the rule that is more favourable to the athlete can be resorted to, even if it was not in force at the time the offence was committed.
On 21 July 2006 the Disciplinary Commission of the Italian Swimming Federation (FIN) decided to revoke to provisional suspension of the minor swimmer Marco Tagliaferri after his sample tested positive for the prohibited substance Stanozolol.
The Athlete had accepted the test result and testified that his father had administered stanozol without his knowledge. Consequently a lifetime ban was imposed on the father.
Following the appeal filed by the International Swimming Federation (FINA) the FIN Appeals Commission decided on 6 November 2007 to impose a 1 year period of ineligibility on the Athlete.
However on 10 January 2008 the CONI Anti-Doping Supreme Court (CONI GUI) deemed that FINA's appeal was inadmissible and annuled the decison of the FIN Appeals Commission.
Hereafter in January and in February 2008 both FINA and WADA appealed the CONI GUI decision with the Court of Arbitration for Sport (CAS). FINA and WADA requested the Panel to annul the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.
The Panel concludes that the CONI GUI decision of 10 January 2008 was erroneous and must be set aside because the FINA appeal with the Italian FIN Appeals Commission was filed within the set the time limit and therefore admissible.
The Panel rules that as a result of all the inconsistencies in the presentation of the facts, it has not been established to the Panel’s comfortable satisfaction how, and because of what circumstances, the substance Stanozolol entered the Athlete’s system.
The fact that the Athlete was a minor at the time is no reason for a reduced sanction. The Panel finds that a 2 year period of ineligibility muse be imposed backdated and taking into account the time already served by the Athlete.
Therefore the Court of Arbitration for Sport decides on 5 February 2009:
1.) The appeal of the World Anti-Doping Agency against the decision of the Giudice di Ultima Istanza in Materia di Doping (GUI) dated 10 January 2008 is admissible.
2.) The appeal of the Federation Internationale de Natation against the decision of the Giudice di Ultima Istanza in Materia di Doping (GUI) dated 10 January 2008 is admissible inasmuch as it is directed against Mr Marco Tagliaferri. Insofar as the appeal is directed against the Federazione Italiana Nuoto (FIN) it is dismissed.
3.) The decision issued by the Giudice di Ultima Istanza in Materia di Doping (GUI) is set aside.
4.) The Player, Mr Marco Tagliaferri, is declared ineligible from 1 May 2008 until 30 November 2009.
5.) All competitive results obtained by Marco Tagliaferri from 16 March 2006 through 19 December 2008 shall be disqualified with all of the resulting consequences including forfeiture of any medals, points and prizes.
6.) All other motions or prayers for relief are dismissed.
7.) This award is pronounced without costs, except for each of the court office fees of CHF 500 (five hundred Swiss francs) paid by WADA and by FINA, which are retained by CAS.
