CAS 2017/A/5209 Clara Victoria Patrugan v. Romanian National Anti-Doping Agency
- Doping (prohibited method; meldonium)
- Arbitration agreement
- Arbitration agreement conferring jurisdiction to CAS based on a private act incorporating normative statutory act
- Athlete Support Personnel
1. An arbitration agreement conferring jurisdiction to the CAS must be based on a private act between the relevant parties. Such act can either derive from a specific contract or express agreement, or otherwise from membership or other affiliation with a (private) sports organization or sports governing body and reference to an arbitration clause provided in the statutes or regulations of that sports federation. By contrast, a judicial body whose competence is based on a statutory provision enacted by the legislator (only) does not qualify as a court of arbitration under Swiss law, but rather as a special court established by statutory law.
2. In case a sports federation, in its statutes or regulations, expresses its commitment to respect and follow the national anti-doping provisions, the respective national provisions are to be understood as incorporated into, or to be applied under the statutes and regulations of the sports federation. If furthermore the respective national anti-doping provisions recognize the CAS as the highest adjudicatory body, an individual affiliated to the sports federation and therefore bound by the latter’s rules and regulations may be considered to have concluded, with the respective federation, an arbitration agreement conferring jurisdiction to the CAS. Specifically, the arbitration agreement conferring jurisdiction to the CAS is based on a private act attributable to the parties (i.e. the statutes or regulations of the sports federation) which incorporates the normative statutory act (i.e. the national anti-doping rules recognizing the CAS as the highest adjudicatory body).
3. A medical doctor who, in official correspondence denotes himself “Medical doctor Kayak – Canoe Olympic Pool” and who furthermore renders himself to training camps of athletes affiliated with a national federation in order to perform treatments to the athletes falls into the category of “Athlete Support Personnel” under Appendix 1 to the World Anti-Doping Code (and the respective identic national anti-doping rules), given that he treated and assisted athletes participating in, or preparing for, sports competitions pursuant to said rule. In order to qualify as Athlete Support Personnel it is irrelevant whether the individual in question holds a specific degree (e.g. sports medicine) or similar. Furthermore, by participating in the activities of the national federation and those of its athletes, the medical doctor consented to the statutes and regulations of the national federation; provided those statutes and regulations foresee the possibility of arbitration of anti-doping rule violations, the consent expressed by means of participation also includes that possibility of arbitration.
On 27 July 2016 the Hearing Commission of the Romanian National Anti-Doping Commission (ANAD) decided to impose a lifetime period of ineligibility on the medical doctor Clara Victoria Patrugan for the treatment of athletes with ozone-therapy. Also ANAD prosecuted the doctor for her failure to report the use of Meldonium when she became aware that some athletes were using this prohibited substance.
Hereafter the doctor appealed, yet the ANAD Appeal Commission confirmed on 3 April 2017 the sanction whereas on 27 November 2017 the Bucharest Court of Appeal concluded that it had no competence to hear the appeal.
Meanwhile in June 2017 the doctor had also appealed the ANAD Appeal Decision of 3 April 2017 with the Court of Arbitration for Sport (CAS). The Athlete questioned the jurisdiction of CAS, but alternatively, she requested the Panel to annul the Appealed Decision.
The doctor denied she committed anti-doping rule violations because she does not qualify as Athlete Support Personnel under the Rules. She admitted that she applied ozone-therapy to athletes and withheld certain information regarding the use of Meldonium by athletes.
She argued that she applied the ozone-therapy only as physician specialized in family medicine and that she was unaware that this was forbidden for athletes. Further she argued that in December 2015 the use of the substance Meldonium by the athletes was still allowed.
The Sole Arbitrator establishes that Ms Petrugan worked as medical doctor for the Olympic kayak-canoe team and the Romanian Kayak and Canoe Federation (RKCF). This undoubtedly qualifies her as Athlete Support Personnel and that she has standing to be sued by ANAD.
The Arbitrator holds that it is undisputed that the doctor applied ozone-therapy to athletes and as a medical doctor supporting athletes she should have known that this treatment offered by her was a prohibited method under the Rules.
The Arbitrator establishes that at the relevant time the doctor had conducted research and that she was aware that athletes could still be tested positive for Meldonium once its ban had come into force. Conversely the doctor failed in her duty to inform the RKCF and ANAD in order to act properly thereafter.
With this information RKCF and ANAD could submitt the athletes for target testing and warn athletes that the use of Meldonium was prohibited as from 1 January 2016. This could have possibly have prevented the athletes from any furher use of the subtance whereas later in spring 2016 a number of kayak athletes tested positive for the use of Meldonium.
The Sole Arbitrator deems that the doctor committed a considerable offence and regards that only 9 athletes had received 10 ozone-therapy treatments. There was also no evidence that the doctor was involved into a large anti-doping conspiracy or scheme that justifies the imposition of a lifetime ban.
Therefore the Court of Arbitration for Sport decides on 28 June 2018 that:
1.) The appeal filed by Ms Clara Victoria Patrugan against the decision rendered on 3 April 2017 by the Appeal Commission of the Romanian National Anti-Doping Agency is partially upheld.
2.) The decision rendered on 3 April 2017 by the Appeal Commission of the Romanian National Anti-Doping Agency is amended as follows as far as the period of ineligibility is concerned:
Ms Clara Victoria Patrugan shall be ineligible for a period of 6 (six) years to participate in any competition or activity authorized or organized by a signatory of the WADC, to act in any capacity within a sport body of a signatory of the WADC, to enter any contract relationship with or to act as volunteer for a signatory of the WADC. The period of ineligibility shall be deemed to have started on 3 April 2017.
5. All other motions or prayers for relief are dismissed.