CAS 2008/A/1513 Emil Hoch v. Fédération Internationale de Ski (FIS) & International Olympic Committee (IOC)
- Cross-country skiing
- Doping (assistance to an anti-doping rule violation)
- CAS power of review and breach of procedural fundamental principles
- Serious antidoping offence
- Calculation of the ineligibility period in case of multiple anti-doping rules violation
1. The CAS has full power to review the facts and the law of an appeal, and therefore hears the case de novo, without being limited by the submissions and evidence that was available to the initial procedure. Furthermore, the procedural principles of the arbitration tribunal’s independence and impartiality and of “fair proceedings” are guaranteed to a similar extent as before the state courts. Therefore, the breach of procedural fundamental principles in the initial proceedings can no longer be alleged in the appeal arbitration proceedings before CAS because the de novo hearing has cured any lack of due process in the decision appealed against.
2. Is considered to be a serious anti-doping offence an anti-doping offence that consists in providing substantial help for multiple third-party anti-doping rule violations; this is also the case for persons involved in a larger doping conspiracy and thus demonstrating a high degree of criminal energy, and where the doping practices are particularly dangerous for the athletes concerned.
3. A lifetime ban is only justified where the seriousness of the offence is most extraordinary, for instance, where an intentional assistance to anti-doping rules violation is committed on a minor or for the leader of a doping conspiracy. However, a lifetime ban is not proportionate so long as one cannot exclude that other people, including higher-ranking officials, pulled the strings in the doping conspiracy, even if the person accused had a decisive responsibility in the doping scandal, but not the sole or supreme leadership responsibility.
Emil Hoch was the trainer (coach) of the Austrian crosscountry ski team at the Winter Olympic Games in Turin, Italy, in 2006 (the Torino Winter Games 2006. During the Torino 2006 Olympic Games (February 2006) the Appellant shared a room with Mr Markus Gandler, the Austrian team director, in a private house on Via Banchetta in Pragelato.
The house was located a short distance from the chalet in which the athletes of the Austrian cross-country ski team were housed (Martin Tauber, Roland Diethart, Jürgen Pinter, Johannes Eder). These athletes were under the care of and trained by the Appellant.
On the night of 18 February 2006 the Italian police executed a search warrant in the accommodation of the Austrian cross-country ski team and support staffin Pragelato. In the course of the search the police seized various items, both in the chalet, in which the athletes were housed, and in the building in which, among others, also the Appellant lived during the Torino 2006 Olympic Games.
The Italian police documented the search in a written record. In addition, according to the record, the Italian police seized the following further items from a dustbin at the entrance to the apartment, which was adjacent to the bedroom occupied by the Appellant and Mr Markus Gandler. The Appellant admits having collected the medical items found in his bag from the athletes at their home in order to dispose of them. Immediately after the police had conducted the search the Appellant left Turin before daybreak to drive home to Austria.
As a result of the above-mentioned events various proceedings were initiated - amongst others - by the IOC instituted proceedings against the athletes of the Austrian cross-country ski team (Tauber, Diethart, Pinter, Eder). All of them were declared by the IOC to be permanently ineligible for all future Olympic Games.
The athletes filed an appeal against this disciplinary sanction with the CAS. By decision dated 4 January 2008 the CAS dismissed the appeals by Eder, Tauber and Pinter (CAS 2007/A/1286, 1288, 1289).
By decision of 4 January 2008 the CAS partially upheld the appeal filed by Mr Diethart and reduced the period of this ineligibility (CAS 2007/A/1290).
FIS also instituted doping proceedings against the above-mentioned four athletes.
- Regarding the violation of Article 2.6.2 the Respondent, Emil Hoch is declared ineligible from participating directly or indirectly in any capacity in any FIS sanctioned events for a period of two years;
- Regarding the violation of Art. of 2.8 the Respondent, Emil Hoch is declared ineligible from participating directly or indirectly in any capacity in any FIS sanctioned event for life;
Hereafter the Appellant filed a Statement of Appeal with the Court of Arbitration for Sport (CAS) against the decision issued on 28 February 2008 by the FDP. After granting the Parties the right to be heard on the lOC's intervention the Panel issued a decision dated 27 June 2008 by which the IOC was allowed to participate as Co-Respondent (i.e. Second Respondent), together with the FIS in the arbitration procedure CAS 2008/A/1513 initiated by the Appellant.
The Court of Arbitration for Sport decides on 26 January 2009:
1.) The Appeal filed by Mr. Emil Hoch against the decision rendered on 28 February 2008 by the FIS Doping Panel is partially upheld;
2.) The decision rendered on 28 February 2008 by the FIS Doping Panel is set aside as far as the period of ineligibility is concerned;
3.) Mr. Emil Hoch shall be ineligible to participate directly or indirectly in any capacity in any FIS sanctioned events up to 18 September 2022;
4.) This award is rendered without costs, except for the Court Office fee of CHF 500.00 (five hundred Swiss Francs) paid by the Appellant, which is retained by the CAS;
5.) Each Party shall bear its own costs;
6.) All other claims are dismissed.
