CAS 2008/A/1712 Marta Bastianelli v. Comitato Olimpico Nazionale Italiano (CONI)
CAS 2008/A/1742 Union Cycliste Internationale (UCI) v. Marta Bastianelli, Federazione Ciclistica Italiana (FCI) & CONI
- Cycling
- Doping (norfenfluramine)
- Athlete’s responsibility for ingesting a substance not expressly listed in the Prohibited List
- Athlete’s responsibility for the fault or negligence of his/her entourage
- Significant fault of the athlete
- Determination of the commencement of the applicable disciplinary sanction
1. It is the duty of all athletes to be responsible for their own bodies, and the presence of prohibited substances. To meet their duty, athletes must exercise “utmost caution” at all times. Accordingly, the athlete’s duty is rigorous in the WADA Code (and the UCI Rules). In this respect, a substance needs not be explicitly listed in the Prohibited List to be illegal, so long as it can be classified within a group of substances that are included in the Prohibited List. The Prohibited List also clearly states that it is not a definitive and complete list of all banned substances. The broad scope and inclusive wording of the Prohibited List is designed to put athletes on notice that extra vigilance is required because many products could contain one or a number of the listed substances. In this regard, there are numerous available sources of information (both commonly accessible and medical).
2. The implications of the WADA Code and the CAS jurisprudence are clear: athletes are responsible for their choice of medical personnel, a provision that prevents athletes from justifying their conduct based on their medical advisors’ errors in all but the most exceptional circumstances. Therefore an athlete cannot rely on the fact to have receive a wrong advice from a physician s/he consulted to contend s/he committed no fault or negligence.
3. It is the athlete’s duty to know that ingesting substances that could contain a prohibited substance for non-medical reasons is an inherently risky activity. In this respect, an athlete cannot be without any fault or negligence if he did not exercise the “utmost caution” by failing to make any research. More specifically, an athlete is at significant fault for taking medication not medically necessary like diet pills without taking all necessary precautions for the purpose of determining whether the pills contained a prohibited substance and contrary to the advice of a physician.
4. An athlete who has committed an anti-doping violation shall be declared ineligible for a period of two years. Considering the athlete’s cooperation with the investigators and the prompt acceptance of an interim suspension, a panel has some discretion as to the commencement of the period of ineligibility which can run from the date of the collection of the first positive doping test.
On 15 October 2008 the Italian Tribunale Nazionale Antidoping (TNA) decided to impose a 1 year period of ineligibility on the cyclist Marta Bastianelli after she tested positive twice for the prohibited substance Norfenfluramine.
Hereafter in November and in December 2008 both the Athlete and the International Cycling Union (UCI) appealed the TNA decision with the Court of Arbitration for Sport (CAS).
The Athlete admitted the violation, accepted the test results and denied the intentional use of the substance. She stated that the pills she used to assist weight loss were the source of the positive test. Analysis of these pills in the Rome Lab had confirmed that they contained the substance Benfluorex with Norenfluramine is a metabolite of Benfluorex.
The Athlete argued that she should not be sanctioned because she ingested the Norfenfluarmine through No Fault of Negligence of her own. She asserted that Benfluorex is not a substance that is expressly included on the WADA Prohibted List and so she could not have known she was ingesting a prohibited substance.
The UCI contended that the Athlete acted with Significant Fault or Negligence because there was no medical ground for the Athlete to seek to lose weight or to take the substance for those purposes. Further she failed to take all necessary precautions for the purpose of determining whether the pills contained a prohibtied substance.
Considering the totality of the circumstances the Panel finds that the Athlete's positive analytical test is attributable to her own fault and negligence, which in the circumstances is significant.
- She ingested dieting pills absent a medical need and contrary to the advice of her physician;
- she failed to conduct any independent research as to the chemical or biological nature of the substances included in the pills;
- she assumed without investigation that none of those substances would produce a prohibited metabolite;
- she consulted only her personal physician rather than a doctor associated with her professional team or the Italian national team as to the appropriateness of ingesting Benfluorex.
Therefore the Court of Arbitration for Sport decides on 29 May 2009:
1.) The appeal filed by the Union Cycliste Internationale on 22 December 2008 is partially upheld.
2.) The award of the Italian National Anti-Doping Tribunal of 15 October 2008, file number 76/2008, is set aside.
3.) Ms. Marta Bastianelli is declared ineligible for a period of two years, commencing on 5 July 2008; all her results from competition on or after 5 July 2008, are disqualified.
4.) The appeal filed by Ms. Marta Bastianelli on 14 November 2008, is dismissed.
(…)
7.) All other requests for relief are rejected.