- CAS 2018/A/5885 Scott Salmond v. International Ice Hockey Federation (IIHF) &
- CAS 2018/A/5936 World Anti-Doping Agency (WADA) v. IIHF & Scott Salmond
- Ice Hockey
- Doping (complicity)
- Comfortable satisfaction
- Departures from the ISTI
- Identification of the DCO
- Notification of potential consequences for failing to provide a sample
- Right of a coach or employee of a national federation to participate in the doping control process
- Departures from the RMHD Guidelines and DCO Tool Kit Manual
- Intent in the context of complicity
- Requirement of an underlying ADRV in the context of complicity
- Minimum sanction
1. The “comfortable satisfaction” standard of proof is higher than a mere balance of probabilities. The test of comfortable satisfaction must take into account all the circumstances of the case. Those circumstances include the paramount importance of fighting corruption of any kind in sport and also considering the nature and restricted powers of the investigation authorities of the governing bodies of sport as compared to national formal interrogation authorities.
2. The existence of certain standards as detailed in the International Standard for Testing and Investigations (ISTI) and anti-doping rules is considered to be fundamental and central to ensuring integrity in the administration of sample collection such that certain departures therefrom could result in the automatic invalidation of an anti-doping rule violation (ADRV). To demonstrate such departure, the consideration of the evidence presented by the parties concerning the circumstances of the doping control would have to show that violations of mandatory requirements, if any, could have reasonably caused the ADRV.
3. A Doping Control Officer (DCO) will have satisfied the requirements regarding identification under the ISTI by carrying an authorization letter from the testing authority as well as an identification which includes his/her name, photograph, and the expiry date of the identification. The Letter of Authorization is a document used to show that the sample collection personnel has the authority to collect the sample. There is no specific rule that requires mandatorily the presentation of a paper identification and a contrario that forbids electronic identification (a modern form of ID increasingly used in other contexts). Consequently, an electronic identification is satisfactory for the purposes of identification under the ISTI.
4. In accordance with Article 5.4.1 (e)(iii) of the ISTI, the athlete should be advised of the possible consequences of failure to comply. On the plain reading of this provision, there is no reference to providing such a warning to a coach or other employee of the national federation. Moreover, the word “should” implies some form of recommendation or guideline and therefore does not impose an obligation. “Should” does not read as a “must”.
5. The ISTI does not give any right to a coach or employee of a national federation to participate in the doping control process.
6. The Results Management, Hearings and Decisions (RMHD) Guidelines and the Doping Control Officer’s Training Tool Kit Manual contain guidelines, not requirements. These guidelines contain guidance as to how best to comply with the mandatory requirements in the ISTI or the anti-doping rules, but they do not themselves constitute mandatory requirements. Besides, the “Introduction and Scope” of the RMHD Guidelines underlines that the Guidelines are not mandatory but are intended to provide clarity and additional guidance to anti-doping organisations as to the most efficient, effective and responsible way of discharging their responsibilities in terms of results management.
7. In order to determine a violation of the Complicity article, intent is to be determined based on the conduct of the individual charged with the alleged violation, not the person who himself/herself is the subject of the doping control. In this context, intent refers simply to the intent to act, not necessarily to the intent to achieve the result or to commit a doping violation. The act of encouragement itself constitutes sufficient intent for the purposes of Article 2.9 WADC.
8. The act of encouraging an anti-doping rule violation necessarily occurs before any commission of the ADRV that has been encouraged. Therefore, no underlying ADRV is required for the purposes of Article 2.9 WADC.
9. As complicity is an intentional ADRV, no reduction is permitted below the two year minimum sanction on grounds of No Significant Fault or Negligence. Consequently, a one-year period of ineligibility cannot be imposed on grounds of proportionality, since such decision departs from the mandated minimum set out in the WADC. The deciding body must impose a sanction that respects the applicable rules, including the mandated two-year minimum. Further reduction on the basis of proportionality is not acceptable. The WADC has been found repeatedly to be proportional in its approach to sanctions, and the question of fault has already been built into its assessment of length of sanction.
Mr. Scott Salmond is a former Senior Vice President and Head of Men’s Elite Performance for Hockey Canada.
On 26 July 2018 the Disciplinary Board of the International Ice Hockey Federation (IIHF) determined that Mr. Salmond had committed an anti-doping rule violation in December 2017 when he allegedly instructed Mr. Brandon Kozun, a member of the National Ice Hockey Team of Canada, to refuse sample collection during a doping control. As a result of his actions, Mr. Salmond was suspended from all ice hockey activities for a period of one year.
Hereafter both Mr. Salmond and the World Anti-Doping Agency (WADA) appealed the IIHF decision with the Court of Arbitration for Sport (CAS).
WADA seeked to increase Mr. Salmond’s period of ineligibility to between two to four years. By contrast Mr. Salmond seeked a finding that he did not commit an anti-doping rule violation, or alternatively, apply the principle of proportionality to reduce the period of ineligibility to less than 12 months.
Mr. Salmond alleged that did not commit an ADRV because various departures from the International Standard for Testing and Investigations and associated rules that occurred on 12 December 2017 caused the alleged doping violation.
Both WADA and the IIHF contended that Mr. Salmond explicitly and intentionally instructed Mr. Kozun not to provide a sample and thus intended the actions he undertook.
They disputed Mr. Salmond's attempts to associate state-sponsored doping control manipulations in Russia with the events that took place on 12 December 2017. Further they argued that the sample collection was never abandoned and there were no departures from the ISTI and associated rules.
Regarding preliminary procedural matters the Panel determines:
- to deny Mr. Salmond's request that the case file in Mr. Kozun's procedure be turned over to Mr. Salmond;
- it had no access to all the original video footage that recorded the events in question;
- the witness statement of the WADA Director of Standards and Harmonization was not admitted.
Following assessment of the evidence and the Parties' written and oral submissions the Panel concludes:
- Mr. Salmond and its sports offial were seeking retrospectively to put the best construction possible on the unfortunate events of that morning in order to justify Mr. Salmond's actions, uncharacteristic as they may have been.
- The sample collection was never abondoned but concluded when Mr. Salmond instructed Mr. Kozun not to provide a sample.
- Mr. Salmond did not successfully establish any departures from the ISTI and, if (quod non) he had established any, these could not reasonably (or sensibly, based on the facts presented) have caused the ADRV in the present case.
- The IIHF was not estopped from asserting that Mr. Salmond committed and ADRV since IIHF (via IDTM) was largely responsible for the events of 12 December 2017.
- Mr. Salmond must have known or should have known as an experienced executive in Hockey Canada, having participated in over 200 doping controls, that the failure or the refusal of Mr. Kozun to submit to doping control could constitute an ADRV.
- Mr. Salmond intentionally encouraged Mr. Kozun to not submit a sample, and that not submitting a sample once doping control has been properly notified is an ADRV, within the meaning of Article 2.9 of the WADC.
Therefore the Court of Arbitration for Sport decides on 6 March 2020 that:
1.) The appeal filed by Mr. Scott Salmond on 4 September 2018 against the International Ice Hockey Federation with respect to the decision of the Disciplinary Board of the IIHF dated 26 July 2018 is dismissed.
2.) The appeal filed by the World Anti-Doping Agency on 4 October 2018 against the International Ice Hockey Federation and Mr. Scott Salmond with respect the decision of the Disciplinary Board of the IIHF dated 26 July 2018 is upheld.
3.) Mr. Scott Salmond is sanctioned with a two-year period of ineligibility as from 1 June 2018.
4.) (…).
5.) (…).
6.) All other motions or prayers for relief are dismissed.
