CAS 2002/A/417 IAAF v/CADA & S. Witteveen
Ms. Solange Witteveen, is a world class high jumper and member of the Confederación Argentina de Atletismo (CADA).
The IAAF reported to CADA an anti-doping rule violation after
Witteveen’s A and B samples tested positive for the prohibited substance pemoline. The sample’s were provided at the South-American Championships in Manaus, Brazil, May 19, 2001.
After deliberations with the IAAF, CADA notified Witteveen of the doping violation and ordered a provisional suspension. Witteveen filled a statement in her defence and was heard for the CADA arbitral court.
Witteveen stated she did not take, at least voluntarily, any prohibited substance; all medication were provided by her personal physician; no medicine were taken without her physician’s consent and approval; and her previous doping controls in de last nine years tested negative.
On 20 June 2002, the CADA arbitral court in question decided that Ms Solange Witteveen was not guilty of a doping offence. One of the arbitrators, Dr. Juan Carlos Rivera, rendered a dessenting opinion.
On 21 August 2002, the decision of the arbitral court was sent to the IAAF by the President of CADA and received the same day by the IAAF. The lAAF determined to appeal the finding of the arbitral court in question, and filed its Statement of Appeal with the CAS on 1 October 2002.
The Court of Arbitration for Sport Panel considers for the following reasons that Ms Solange Witteveen has not established that her doping offense was unintentional:
- Pemoline is not found in any foodstuff and in principle can only be obtained on prescription.
- Consequently, Ms Solange Witteveen cannot have been contaminated through any food forming part of her ordinary diet.
- Ms Solange Witteveen herself ruled out the idea of an act of sabotage and has offered no evidence that an act of sabotage took place or might have been attempted.
- Ms Solange Witteveen has offered no evidence that her supplement was contaminated or that there was any risk that it be contaminated. For example, no evidence was offered that the chemist who prepared her supplement might have handled Pemoline and accidentally contaminated the supplement, whereas the testimony of both expert witnesses left the impression this was an unlikely occurrence in the circumstances.
- The only indication that Ms Solange Witteveen would not have resorted to taking Pemoline is constituted by her active participation in events against doping and her past choice of spontaneously subjecting herself to doping tests on certain occasions.
However, the Panel considers such factors insufficient to prove her innocence given the lack of evidence of any form of contamination or act of sabotage and the unlikelihood of either having occurred.
The fact that Ms Solange Witteveen could have stopped jumping after winning the event instead of continuing to jump to beat her own record with the certitude of being tested is not in itself a convincing argument, since experience teaches that when medals and/or new records are at stake athletes often underestimate or accept the risk of a test.
Consequently, the Panel considers that the Appellant's decision to apply the fixed sanction of lAAF Rule 60.1l(i)(a) is well founded. The referred decision was in error due to the failure to correctly apply the relevant lAAF rules.
Therefore the Court of Arbitration for Sport decides on 12 May 2003 that:
1.) The appeal filed by the International Association of Athletics Federations (lAAF) on 1 October 2002 is upheld.
2.) The decision issued by the Confederación Argentina de Atletismo (CADA) on 28 June 2002 is annulled.
3.) The following sanction is imposed on Solange Witteveen:
suspension of two years starting from 11 March 2003; after deduction of the served period of ineligibility of one year, seven months and twenty-four days, such suspension shall last until 17 July 2003, inclusive.
