CAS 2008/A/1668 World Anti-Doping Agency (WADA) v. National Olympic Committee & Sports Confederation of Denmark & Dansk Boldspil-Union (DBU) & Jesper Münsberg
- Football
- Doping (salbutamol)
- Presumption of an Adverse Analytical Finding
- Athlete’s standard of proof
- Definition of “therapeutic use”
- Absence of proof of “therapeutic use”
- Conditions of reduction of a sanction
- Determination of the athlete’s degree of fault
1. Although with slightly different wording, the definitions of class S3 Prohibited Substances in the successive versions of the WADA Prohibited List all institute a presumption that the presence of salbutamol in urine in excess of 1000 ng/mL is not the result of a therapeutic use of inhaled salbutamol and will be deemed an Adverse Analytical Finding unless the athlete manages to prove the contrary.
2. Under the applicable FIFA Anti-Doping Regulations (DCR), the standard of proof for an athlete to rebut a presumption that an anti-doping violation has occurred is a balance of probability.
3. Only intake of salbutamol by inhalation, as opposed to for example the use of tablets (systemic intake), may qualify as therapeutic under an Abbreviated Therapeutic Use Exemption (ATUE) and the class S3 Rules. With respect to what represents a therapeutic use/dose of inhaled salbutamol, the rationale of the Class S3 Rules and of the procedure for granting an ATUE imply that it is the therapeutic use as defined in the text of the ATUE itself – together with the corresponding use then defined in the athlete’s medical prescriptions – that must be deemed the starting point and yardstick for the definition of a given athlete’s therapeutic use of inhaled salbutamol.
4. When it is more likely than not that a player inhaled the total dose of salbutamol in excess of 1000 ng/mL, not because taking such dose was “necessary” for therapeutic reasons to respond to an asthma attack or as a reasonable precaution before exercising, but rather because he was very anxious to be able to play a game, the concentration of salbutamol cannot be deemed as resulting from the use of a therapeutic dose of inhaled salbutamol. Thus the concentration of salbutamol in excess of 1000 ng/mL found in the player’s sample must be deemed an adverse analytical finding that constitutes an anti-doping violation under the applicable FIFA DCR.
5. To benefit from the elimination or reduction of the standard sanction, a player must fulfil two cumulative conditions, i.e. establish how the specified substance entered his body on a balance of probabilities and establish the absence of intent to enhance his sporting performance to the comfortable satisfaction of the hearing panel. In this respect, the sincerity of a player, the absence of obvious inconsistencies between his statements, the fact that he is not a professional, the relative lack of incentive he has to dope himself given his age/competition level and the uncertainties which remain regarding the degree of effect of certain factors (his condition of health, the adverse weather conditions, his apparently unusual resistance to the side effects of large doses of inhaled salbutamol, etc.) on the test results, are factors to be taken into consideration.
6. In determining a player’s degree of fault in inhaling an exaggerated dose of Ventolin the day of an in-competition test, one shall examines both the factors that tend to demonstrate negligence and those that alleviate the player’s fault. While a player has demonstrated a serious lack of diligence (negligence) by not fulfilling his duty to inform himself regarding anti-doping regulations, duty which weighs on an athlete even if the latter benefits from an ATUE, the lack of precision of the words “as needed” in a player’s ATUE and in particular the corresponding lack of precision of the words “as required” in his doctor’s prescription is a mitigating factor, especially if the doctor does not appear to have been much clearer in his explanations to the player.
In February 2008 Anti Doping Denmark has reported an anti-doping rule violation against the Player Jesper Münsberg after his A and B samples tested positive for the prohibited substances Salbutamol and Salmeterol in a concentration above the WADA threshold.
The Danish football player suffered from asthma since his childhood and stated that he developed a cold during the days before the football match and therefore used the Ventolin inhaler more often than usual due to feeling unwell. The Player argued, supported by his team doctor including scientific articles, that the concentration of salbutamol found in his sample could vary significantly.
The Doping Commission of the Danish NOC accepted the Player's explanation and decided on 16 May 2008 to give him the benefit of the doubt and not pursue the case before the Danish Doping Tribunal.
After deliberations with the Danish NOC WADA filled an appeal with the Court of Arbitration for Sport (CAS) against the decision of the Danish NOC of 18 September 2008 not to take any further action in this case.
WADA requested the Panel to annul the decision of the Danish NOC of 18 September 2008 and to impose a 2 year period of ineligibility on the Player.
The Panel finds it is more likely than not that the Player inhaled the total dose of salbutamol leading to a concentration of 2400 ng/mL in his urine sample (whether it be as a result of 12 puffs or more), not because taking such dose was "necessary" for therapeutic reasons to respond to an asthma attack or as a reasonable precaution before exercising, but rather because he was very anxious to be able to play the game in question and got carried away with the use of his Ventolin inhaler and perhaps even lost track of (or subsequently forgot) how many puffs he had taken.
The Panel holds that on a balance of probability the concentration of salbutamol in the Player's in-competition urine sample did not result from the use of a therapeutic dose of inhaled salbutamol, he has not managed to rebut the presumption set out in the class S3 definition of the 2008 WADA Prohibited List. Therefore the high concentration of salbutamol found in his in-competition urine sample must be deemed an Adverse Analytical Finding that constitutes an anti-doping violation under the FIFA Rules.
Given the importance of informing an athlete in an unambiguous manner regarding any maximum tolerated dose and given the ambiguity of wording such as "as needed" or "as required" that has led WADA to a change of regulation for 2010 - and hearing in mind that an athlete will naturally tend to pay more attention to his/her ATUE and to corresponding medical prescriptions than to generic use instructions supplied with Ventolin - the Panel finds that the Player's negligence was real but that mitigating circumstances exist
The Panel considers it fair to apply a sanction that is more than a reprimand but less than a one-year penalty; and has decided therefore to apply a six (6) month period of ineligibility that shall begin to run on 16 November 2009.
Therefore on 16 November 2009 the Court of Arbitration for Sport decides:
1.) The appealed decision of 16 September 2008 of the National Olympic Committee & Sports Confederation of Denmark Is set aside.
2.) Mr Jens Münsberg is declared Ineligible for competition for 6 months commencing on 16 November 2009.
3. Declares that the award is pronounced without costs, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) already paid by the Appellant and to be retained by the CAS.
4.) Orders the Respondents to pay WADA an amount of CHF 2000 (two thousand Swiss Francs) as a contribution toward its costs.
5.) Dismiss all other and contrary prayers for relief
