CAS 2006/A/1102 Johannes Eder v. Ski Austria &
TAS 2006/A/1146 World Anti-Doping Agency (WADA) v. Johannes Eder & Ski Austria
CAS 2006/A/1102 Johannes Eder v/Ski Austria
TAS 2006/A/1146 Agence Mondiale Antidopage (AMA/WADA) c/Johannes Eder & Ski Austria
CAS 2006/A/1146 WADA vs Johannes Eder & Ski Austria
Related cases:
- CAS 2006_A_1102 Johannes Eder vs Ski Austria
November 13, 2006 - CAS 2007_A_1286 Johannes Eder, Martin Tauber & Jürgen Pinter vs IOC
January 4, 2008 - IOC 2007 IOC vs Johannes Eder
April 24, 2007
- Cross-country skiing
- Doping (intravenous infusion of a saline solution)
- Validity of disciplinary sanctions under Austrian Law
- Proportionality of the sanctions
- Presumption of innocence
- Requirements for legitimate medical treatment
- No significant fault or negligence
1. In Austrian law, it is generally accepted that an association may impose disciplinary sanctions upon its members if they violate the rules and regulations of the association. The jurisdiction to impose such sanctions is based upon the freedom of associations to regulate their own affairs. The association is granted wide discretion in determining the violations which are subject to sanctions. By voluntarily acceding to the association, an athlete accepts the application of the disciplinary rules und its sanctions.
2. A standard suspension of two years is in compliance with the principle of proportionality, as well as a suspension of one year in case of no significant fault or negligence. Austrian law does not require a sanction lower than one year to be fixed in the case of no significant fault or negligence. The sanction is necessary and adequate to secure a worldwide standard in the application of anti-doping rules.
3. The presumption of innocence is a concept of criminal law. Disciplinary sanctions imposed by associations are subject to the civil law and must be clearly distinguished from criminal penalties. The shifting of the burden of proof to the athlete to demonstrate that he or she acted without (significant) fault does not conflict with the presumption of innocence. Athletes have a rigorous duty of care towards their competitors and the sports organization to keep their bodies free of prohibited substances. Anti-doping rule violations do not “just happen” but are, in most cases, the result of a breach of that duty of care. This justifies (i) to presume that the athlete acted with fault or negligence and (ii) to shift the burden of proof from the sanctioning body to the athlete to exonerate him- or herself. On the other hand, to impose on the sanctioning body to demonstrate that the athlete acted with fault or negligence would make the fight against doping extremely difficult or impossible.
4. The legitimacy of a medical treatment is to be judged according to six tests or criteria: 1) the medical treatment must be necessary to cure an illness or injury of the particular athlete; 2) under the given circumstances, there is no valid alternative treatment available, which would not fall under the definition of doping; 3) the medical treatment is not capable of enhancing the athlete’s performance; 4) the medical treatment is preceded by a medical diagnosis of the athlete; 5) the medical treatment is diligently applied by qualified medical personnel in an appropriate medical setting; and 6) adequate records of the medical treatment are kept and are available for inspection.
5. There is no significant fault where an athlete performs on himself an infusion of a product (e.g. saline solution) to cure an established disease, such treatment not being intended to enhance sporting performance but having been recommended by medical doctors in order to cure the disease and the remedy being suitable to it.
In February 2006 the Athlete Johannes Eder competed in the Austrian Men’s Team Sprint and the Men’s 4x10 km Relay during the Torino 2006 Olympic Winter Games.
On 18 February 2006 the Italian police searched the premises in which the Athlete resided of pursuant to a search and confiscation warrant. The Italian police found a number of items within the accommodation of the Austrian cross-country and biathlon teams, and their coaches and trainers, including numerous syringes (some used), blood bags (some used), butterfly valves for intravenous infusion, injection needles, bottles of saline and a device for measuring a person’s haemoglobin levels as well as a device for determining the blood group of a blood sample.
Specifically, in relation to the Athlete, the Italian police found under his bed one intravenous drip with needle containing a small quantity of transparent liquid. The Torino Prosecutor’s Office determined that the liquid within the infusion equipment seized from the Athlete was saline, which indicated that he had attempted to manipulate his “physiological parameters”.
The Austrian Olympic Committee (AOC) subsequently established an Inquiry Commission to investigate the conduct of the Austrian cross-country and biathlon teams at the Torino 2006 Olympic Winter Games. The AOC Inquiry Commission noted the that the Athlete had given himself an infusion.
In addition, the Austrian Ski Federation (ASF) investigated the conduct of the Athlete and they also concluded that he had self-injected saline during the Torino 2006 Olympic Winter Games. Hereafter Ski Austria’s Disciplinary Committee decided on 12 May 2006 to impose a 1 year period of ineligibility on the Athlete.
Hereafter in In June 2006 the Athlete and thereupon the World Anti-Doping Agency appealed the decision of Ski Austria with the Court of Arbitration for Sport (CAS).
The Athlete asserted that the prohibition of intravenous infusions provided for in Rule M2.b of the Prohibited List 2006 is incompatible with:
- (i) the Austrian law of associations;
- (ii) the principle of proportionality of the Austrian law;
- (iii) the athlete’s personal right to choose the kind of therapy and to choose a most effective treatment of an illness;
- (iv) the athlete’s freedom of economic pursuit protected by Article 6 “Staatsgrundgesetz” (StGG);
- (v) the right to sufficient and efficient therapy pursuant to section 133 para. 2 of the “Allgemeines Sozialversicherungsgesetz” (ASVG); and
- (vi) the principle “nulla poena sine lege stricta” pursuant to Article 18 “Bundes-Verfassungsgesetz” (B-VG) and Article 7 ECHR.
The Panel addressed the Athlete's assertions and deems that Rule M2.b of the Prohibited List as well as Articles 10.5.1 and Article 10.5.2 in connection with Article 10.2 of the FIS Anti-Doping Rules are in compliance with Austrian law, and, therefore, applicable in the case at hand.
The Panel has no basis to put into question that the Athlete suffered from severe diarrhoea on the evening of 18 February 2006. Nevertheless the Panel concludes that the infusion of a saline solution administered by the Athlete on himself did not comply with the requirements for legitimate medical treatment and therefore must be considered as a doping offence.
Following assessment of the Athlete's conduct the Panel concludes that the Athlete acted without significant fault.
Therefore the Court of Arbitration for Sport decides on 13 November 2006 that:
1.) The appeal filed by Johannes Eder on 2 June 2006 is dismissed.
2.) The appeal filed by WADA on 16 August 2006 is dismissed.
3.) The decision issued by the Austrian Ski Federation on 12 May 2006 is confirmed.
(…)
6.) All other claims are dismissed.
