CAS 2007/A/1416 World Anti-Doping Agency (WADA) & International Association of Athletics Federations (IAAF) v. United States Anti-Doping Agency (USADA) & Lindsey Scherf
- Athletics
- Doping (failure to obtain an ATUE)
- No Significant Fault or Negligence in case of refusal to submit a doping control
There is no Significant Fault or Negligence in case errors made by the IAAF, and by USADA place the athlete in somewhat of a quandary, and where athlete’s subsequent error in judgment is a direct result of the errors made by agencies that should have provided better service to the athlete. Albeit the refusal to provide a sample, this case is a rare case in which exceptional circumstances exist and the athlete bears No Significant Fault or Negligence.
On 1 July 2007 the American Athlete Lindsey Scherf participated in the Australian Gold Coast Marathon and afterwards she refused to provide a sample. The Athlete knew the drug test would be positive for the medication Flovent, containing the substance Fluticasone she had used for her asthma without a valid TUE.
Previously in April 2007 the Athlete had applied for a TUE with the IAAF for the use of her medication on the advice of USADA. However in June 2007 the Athlete had still not received word from the IAAF about het TUE application.
The Athlete also could not stop timely using her Flovent medication because in the 3 weeks before the Marathon she had contracted a serious throat and lung infection.
Without a valid TUE and on advice of the USADA TUE Coordinator she checked with with officials of the Gold Coast Marathon to determine if there would be drug testing. She was advised that there had been no drug testing in the 3 previous years and it was considered unlikely that there would be a last minute drug test at this completion.
In August 2007 USADA had results management and it conducted an investigation into the facts in this case. It turned out that USADA was unaware that the Gold Coast Marathon was not an international event under the IAAF Rules and therefore the Athlete’s USADA TUE would have been valid for the Gold Coast Marathon on 1 July 2007.
At the conclusion of their investigation USADA offered the Athlete a 2 year period of ineligibility and a 1 year reduction in the period of ineligibility for exceptional circumstances. The Athlete accepted this sanction on 31 October 2007.
Hereafter in November 2007 WADA and IAAF appealed the USADA decision with the Court of Arbitration for Sport (CAS). WADA and IAAF requested the Panel to impose a more severe sanction on the Athlete because the Athlete had admitted that she hoped through her refusal for a less severe sanction than a sanction for testing positive.
WADA and IAAF contended that there are no grounds for No Significant Fault or Negligence since the circumstances in this case were truly not exceptional. Further they argued that alleged irregularities in the TUE procedure or uncertainty about the existence of a TUE can never justify a refusal to submit to sample collection.
USADA asserted that the Athlete had acted with some fault and that the errors of the IAAF and USADA did not excuse the Athlete’s fault in refusing to submit to doping control. However they did help to create a chain of events which on a balance of probabilities appear to have significantly mitigated the Athlete’s fault in refusing doping control.
The Athlete admitted the violation and argued that USADA had conducted an extremely thorough and detailed investigation prior to its finding that she was not significantly at fault and was not significantly negligent.
The Panel concludes that errors made by the IAAF, and by USADA placed the Athlete in somewhat of a quandary. Her subsequent error in judgment was as a direct result of the errors made by agencies that should have provided better service to the athlete.
The Panel finds that exceptional circumstances did exist in this case, and agrees that the Athlete bears No Significant Fault or Negligence, because her fault or negligence, when viewed in light of all the circumstances, was not significant in relation to her anti-doping rule violation.
The Panel would, however, wish to make it clear that this is a rare case in which an athlete who has failed or refused to provide a sample will be able to satisfy a CAS Panel that the sanction is to be reduced on the ground of No Significant Fault or Negligence. Such cases will not often occur.
Therefore the Court of Arbitration for Sport decides on 11 August 2007:
1.) The Appeal filed by WADA and the IAAF against a decision of the United States Anti-Doping Agency dated October 31, 2007, is dismissed.
(…)
4.) All other prayers for relief are dismissed.
