CAS 2019/A/6482 Gabriel da Silva Santos v. Fédération Internationale de Natation (FINA)
Related case:
FINA 2019 FINA vs Gabriel da Silva Santos
October 7, 2019
- Aquatics (swimming)
- Doping (clostebol)
- CAS panels’ adjudicatory role
- Basis for the analysis of an athlete’s claim of No Fault or Negligence
- Limits to athletes’ required endeavours to defeat doping
- Athletes’ anti-doping-related responsibility for their entourage
1. It is not up to CAS panels to engage in a review, or revision, of the rules applicable to a dispute, supplementing its views for that of the drafters of said regulations.
2. Panels confronted with a claim by an athlete of No Fault or Negligence must evaluate what this athlete knew or suspected and what s/he could reasonably have known or suspected, even with the exercise of utmost caution. In addition, panels must consider the degree of risk that should have been perceived by an athlete and the level of care and investigation exercised by an athlete in relation to what should have been the perceived level of risk as required by the definition of Fault.
3. There are, and must be limits to which the anti-doping rules can extend in terms of imposing obligations on athletes. There are circumstances where it is not reasonable, nor can there have been any way for an athlete to have appreciated any degree of risk of testing positive. It is an unreasonable and impractical expectation to obligate an athlete to endeavor to survey the ailments of family members and the use by family members of various substances when visiting them in their home for a short stay.
4. A brother an athlete does not live with, and to whom the athlete does not assign any responsibility or participation in fulfilling his/her anti-doping obligations, is not a member of the athlete’s entourage for whose actions the athlete bears anti-doping-related responsibility.
On 7 October 2019 the FINA Doping Panel decided to impose a 12 month period of ineligibility on the Athlete after he tested positive for the prohibited substance Clostebol.
In first instance the Panel accepted on the balance of probabilities the Athlete’s explanation that cross contamination had caused the positive test result. The Panel deemed that the violation was not intentional and that the Athlete had established No Significant Fault or Negligence with a low degree of fault.
Hereafter in September 2019 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose no sanction or ineligibility period on him or alternatively a more reduced sanction.
FINA requested the Panel to uphold the Appealed Decision and contended that the FINA Anti-Doping Panel already had imposed the lowest possible sanction based on No Significant Fault or Negligence.
The Panel assessed and addressed whether the Athlete bore any fault or negligence, and, if so, he should receive the benefit of the contaminated products rule. If not applicable then what was his level of fault so that a determination of a reduction, if any, in his period of ineligibility could be computed.
The Panel rejects the Athlete's argument that Specified Substances and non-Specified Substances positive tests to be treated identically on fairness grounds. However in view of the circumstances the Panel deems that this case is truly unique and determines unanimously that the Athlete has established No Fault of Negligence.
Therefore the Court of Arbitration for Sport decides on 14 February 2020 that:
1.) The appeal filed by Mr Gabriel da Silva Santos against the Fédération Internationale de Natation with respect to the decision rendered by the FINA Doping Panel on 19 July 2019 (rectified on 22 July 2019) is upheld.
2.) The decision rendered by the FINA Doping Panel on 19 July 2019 (rectified on 22 July 2019) is set aside.
3.) Mr Gabriel da Silva Santos is found to have committed an Anti-Doping Rule Violation but bears no fault or negligence and no period of ineligibility shall be imposed on him.
4.) (…).
5.) (…).
6.) All other motions or prayers for relief are dismissed.
