CAS 2009/A/1915 World Anti-Doping Agency (WADA) v. Polish Wrestling Federation (PWF), Kamil Blonski & Wojciech Zieziulewicz
- Wrestling
- Doping (methyltestosterone)
- Applicability of the WADA Code
- No significant fault or negligence and principle of proportionality
- High standard of athletes’ responsibility for nutritional supplements
- Investigation required before the consumption of a nutritional supplement
- Duty of care required for no significant fault or negligence
1. In accordance with Article R58 of the Code the “applicable regulations” refer to the statutes and regulations of the International Federations (IFs) which must be incorporated by the National Federations (NFs). As a signatory of the WADA Code (WADC), IFs incorporate the WADC into their Constitution and Anti-Doping Rules (ADR). Through this channel only, the WADC may apply. The rules of NFs are applicable to the extent that they do not conflict with the rules of IFs.
2. The proportionality principle which had been applied by CAS panels as a general legal principle in its earlier jurisprudence has been codified in Article 10.5 of the WADC 2003 allowing a sanctioning authority to consider exceptional circumstances of the case in order to lower the sanction instead of imposing a fixed sanction. Through the WADC 2003 the principle of proportionality was codified and thereby adjusted to the needs of the anti-doping law. The codification is in line with the requirements of the general proportionality principle and human rights. CAS has stated at various occasions that the WADC “enables the Panel to satisfy the general principle of proportionality” and there is no room to apply the proportionality principle beyond the application of Article 10.5.2 WADC 2003.
3. As it is generally known, nutritional supplements are often contaminated with or contain prohibited substances which are not declared on the label or package. The high standard of responsibility has been specified by warnings issued by the sport organizations. In practicing sport the athletes are bound by the provisions of their IF including its ADR and the high duty of care requested therein. This is a severe professional duty of care which is not incumbent on normal citizens and goes far beyond the standards of duty applicable to normal people.
4. Against the background of the content of the manufacturer’s website and the leaflet of the product, further investigation is mandatory before the consumption of a nutritional supplement. A check of the announcements in the internet and the product label, its package or leaflet is not sufficient. Even if the website and leaflet do not indicate prohibited substances openly, it is common knowledge that food supplements often contain undeclared substances or are contaminated with prohibited substances. Therefore, it is part of the athletes’ responsibility not to trust publicity on the website or the content of the label or leaflet.
5. By simply trusting the club personnel in what nutritional supplements they are given and the oral information provided by the support personnel that the products are clean, the athletes do not exercise the duty of care which is required in order to bear no significant fault or negligence only. Even if it is accepted that the athletes are misled by the club personnel and the seller and distributor of the supplements which are in close economic relation with the club, they are not relieved from their personal responsibility to make sure that no prohibited substance enters their bodies. Athletes do not escape liability when they simply trust their club’s staff or other supporting personnel.
On 15 May 2009 the Polish Wrestling Federation (PWF) decided to impose a 1 year period of ineligibility on the Polish wrestlers Kamil Blonski and Wojciech Zieziulewics after their A and B samples tested positive for the prohibited substance Methyltestosterone. Despite the appeal of the World Anti-Doping Agency (WADA) the decision was uphold by the PWF on 29 June 2009.
Hereafter in July 2009 WADA appealed the PWF decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the decision of 29 June 2009 an to impose a 2 year period of ineligibility on the Athletes.
WADA rejected the arguments in favour of the Athletes and argued that the Fault or Negligence of the Athletes was significant for using a product that clearly indicated that it enhance performances.
The PWF contended that the Athletes had established how the prohibited substance had entered their system and that they had acted not intentionally and with a normal degree of fault. The Athletes used the product to gain weight and they did not conceal the use of the product.
Considering the evidence in this case the Panel concludes that the Athletes could not demonstrate No Significant Fault or Negligence because they failed to conduct a thorough investigation of the product in question before using it.
Therefore on 12 August 2010 the Court of Arbitration for Sport decides:
1.) Tho appeal of WADA is declared admissible and upheld.
2.) The decision of the Disciplinary Arbitration Commission of the PWF adopted on 29 June 2009 is set aside.
3.) Mr. Kamil Blonski and Mr. Wojciech Zieziulewics are sanctioned with a two year period of ineligibility starting on the date of this Award. The period of provisional suspension served by Mr. Kamil Blonski and Mr. Wojciech Zieziulewics since 17 December 2008, i.e.,one year, seven montht and 26 days, shall be credited against the total period of two years.
4.) All competitive results obtained by Mr. Kamil Blonski and Mr. Wojciech Zieziulewics from 17 December 2008 through the commencement of the applicable period of ineligibility shall be disqualified with all resulting consequences, including forfeiture of any medals, points and prizes.
5.) This Award is pronounces without costs except for the non-reimbursable Court Office Fee of CHF 500,- allready paid and to be retained by the CAS, The parties bear their own legal and other costs. PWF is ordered to contribute CHF 3.000,- to the costs incurred by WADA.
6.) All other prayers for relief are dismissed.
