CAS 2018/A/5580 Blagovest Krasimirov Bozhinovski v. Anti-Doping Centre of the Republic of Bulgaria (ADC) & Bulgarian Olympic Committee (BOC)
- Aquatics (swimming)
- Doping (ostarine)
- World Anti-Doping Code as interpretative tool
- Status of sports justice body in CAS appeals
- Sanction for ADRV not involving a specified substance
- Interpretation of statutes and principle of confidence
- Determining intent of minor in the absence of establishment of source of the prohibited substance
- Determining level of fault/negligence of minor in the absence of establishment of source of the prohibited substance
1. The World Anti-Doping Code (WADC) has no direct effect. Rather, the WADC may be used only as an aid in interpreting the applicable Anti-Doping regulations.
2. An appeal can be made against the sports organization that rendered the contested decision and/or the body that acted on its behalf. In order to determine whether or not a given sports justice body pertains in some way to the structure of a given sports organization, the “stand-alone test” is decisive: if it appears that, would the sports organization not exist, the sports justice body would not exist and would not perform any function, then the sports justice body has no autonomous legal personality and may not be considered as a respondent on its own in a CAS appeal arbitration concerning one of its rulings. Consequently, the procedural position of the sports justice body before the CAS must be encompassed within that of the sports organization.
3. A finding of an Anti-Doping Rule Violation (ADRV) that does not involve a specified substance results, prima facie, in a period of ineligibility of four (4) years under the 2015 WADC. In order for the period of ineligibility to be reduced to two (2) years, the athlete has to establish, on the balance of probability, that the ADRV was not intentional.
4. Statutes or similar instruments shall be interpreted in the same way as the interpretation of declarations of intent. The interpretation of declarations of intent follows the ‘principle of confidence’, that is, the declaration is neither understood in the sense of what the declaring party may have had in mind nor in accordance with the literal meaning of the wording, but in the meaning the addressee could in good faith attribute to it. While this is a somehow ‘objective’ approach, the addressee himself is deemed to be obliged to give all possible attention to the ‘subjective element’, i.e. to consider all aspects allowing the understanding of the declared intent. Under these two aspects interpretation is less strict than under the English and American tradition, i.e. focused on the “objective” meaning of the existing texts. Such “objective” interpretation is justified as usually, at the moment of the drafting of the statutes/regulations, the future addressees of them are not privy to them.
5. In light of the fact that under the 2015 WADC, when establishing “No fault or negligence”/“No significant fault or negligence”, a minor does not have to prove how the prohibited substance entered his or her system, it is questionable whether a minor athlete, in order to establish lack of intent, is obliged to establish the source of the prohibited substance detected in his or her sample. Considering the objective meanings of the definitions of “intent” and “No fault or negligence” and “No significant fault or negligence”, an addressee could conclude in good faith that – as a minor does not have to prove how the prohibited substance entered his or her system at the stage of “No fault or negligence”/“No significant fault or negligence” – a minor should also not be mandatorily obliged to establish how the prohibited substance entered his or her system when proving that the ADRV was not committed intentionally. Consequently, if a minor is not able to prove the source of the prohibited substance, one has to evaluate – based on the overall circumstances of the specific case – if the respective athlete acted with or without intent. In this context various criteria may be taken into account, e.g. an athlete’s credible testimony or evidence e.g. by an athlete’s staff that s/he had no intent to use a prohibited substance.
6. Under the 2015 WADC, in case a minor is not able to prove how the prohibited substance entered his or her system, in order to determine whether “No fault or negligence” or “No significant fault or negligence” applies, CAS panels have to evaluate the surrounding circumstances of the ADRV.
In June 2017 the Bulgarian Anti-Doping Centre (ADC) reported an anti-doping rule violation against the minor swimmer Blagovest Krasimirov Bozhinovski after his sample tested positive for the prohibited substance Ostarine.
Consequently on 3 november 2017 a 1 year period of ineligiblity was imposed on the Athlete. The ADC appealed and on 19 January 2018 the Bulgarian Olympic Committee (BOC) decided to impose a 4 year period of ineligibility on the Athlete.
Hereafter in February 2018 the Athlete appealed the BOC decision with the Court of Arbitration for Sport (CAS) and requested for the imposition of a reduced sanction.
The Athlete accepted the test result, denied the intentional use of the substance and could not explain how the substance entered his system. He had mentioned all the supplements he used on the Doping Control Form, yet only one of his supplements was tested and showed no prohibited substances.
The Athlete asserted that a high concentration of Ostarine was found in his sample and that he knew about the doping test 48 hours before it was actually conducted. He argued while aware of the test he should have used Ostarine about 12 hours before the actual doping test in order to reach this high concentration at the moment he was tested.
The ADC and BOC disputed that the Athlete knew in advance that was scheduled to be tested in May 2017 and contended that he and his father had acted negligently.
Based on the evidence and testimonies in this case the Sole Arbitrator finds that the Athlete nor his father or his coach had any intent to cheat. The were also aware of the risk that supplements could be contaminated with prohibited substances.
Further the Sole Arbitrator agrees that it is highly unlikely that the Athlete deliberately end/or consciously ingested a dose of Ostarine before the critical doping control whereas he already knew he would be submitted to doping control about 12 hour later. Rather, it is most likely that the Athlete did not know that he had ingested Osterine before the critical doping control.
Considering all circumstances in this case the Sole Arbitrator concludes that the Athlete had established, by a balance of probability, that he did not act with intent and as a minor had acted with some degree of negligence.
Therefore the Court of Arbitration for Sport decides on 8 March 2019 that:
1.) The appeal filed on 21 February 2018 by Mr. Blagovest Krasimirov Bozhinovski against the decision of the Bulgarian Sports Arbitration at the Bulgarian Olympic Committee of 19 January 2018 is partially upheld.
2.) The decision of the Bulgarian Sports Arbitration at the Bulgarian Olympic Committee of 19 January 2018 is amended as follows:
Mr. Blagovest Krasimirov Bozhinovski is suspended from participation in any swimming-related activity for a period of twenty-one (21) months, commencing on 15 June 2017.
(…)
5.) All other or further motions or prayers for relief are dismissed.
