11 Jul 2016
CAS 2015/A/4233 World Anti-Doping Agency (WADA) v. Martin Johnsrud Sundby & Fédération Internationale de Ski (FIS)
Skiing (cross-country skiing)
Doping (salbutamol)
Principles of “tempus regit actum” and “lex mitior”
Inhalation of a prohibited substance in excess of the “use threshold” and without a TUE
Definition of “inhaled”
Principle of the individualisation of the sanction
Determination of the category of fault in which a particular case might fall
Automatic disqualification
1. The applicable substantive rules must be identified by reference to the principle “tempus regit actum”: in order to determine whether an act constitutes a disciplinary infringement, a CAS panel applies the law in force at the time the act was committed. In other words, new regulations, unless they are more favourable for the athlete in accordance with the lex mitior principle, do not apply retroactively to facts that occurred prior to their entry into force, but only for the future.
2. Under the Prohibited Lists, the general rule is that all Beta-2 Agonists are prohibited, unless covered by an exception. As a matter of principle, an exception to a general rule is to be narrowly construed. With regard to salbutamol, only use by inhalation is permitted. The use of inhalation to administer salbutamol (as distinct from administration by ingestion or injection) is a necessary but not a sufficient element to engage the exception. It is also necessary not to exceed the “use threshold” which refers to the maximum dose that can be taken by inhalation, i.e. the “labelled” or “nominal” dose. Considering that the athlete in question used a nebulizer to inhale salbutamol and that the smallest dose available by nebulizer exceeds the “use threshold” for said substance, the athlete’s fault lies in failing to request a Therapeutic Use Exemption (TUE), the grant of which would have enabled him to compete without breach of the rules.
3. The epithet “inhaled” is deployed in the context of the exception to the prohibition of all Beta-2 Agonists to identify the mechanics of administration. In other words, it is meant to distinguish “inhalation” from “ingestion” or “injection” (by both of which means salbutamol can be administered), such that only use by inhalation is permitted. The epithet “inhaled” does not serve any further or alternative purpose; it cannot bear two meanings simultaneously or describe at one and the same time the stage of administration as well as the mechanics of administration. Such an interpretation would, in the absence of express indication to that effect, be inconsistent with ordinary rules of construction, including the principle of narrow interpretation of exceptions. It follows that the expression “therapeutic inhaled dose” only describes the mechanics of administration.
4. Although consistency of sanctions is a virtue, correctness remains a higher one: otherwise unduly lenient (or, indeed, unduly severe) sanctions may set a wrong benchmark inimical to the interests of sport. Therefore, even if precedents in terms of the approach in principle may provide helpful guidance, each case must be decided on its own facts.
5. According to CAS jurisprudence, in order to determine into which category of fault a particular case might fall, it is helpful to consider both the objective and subjective level of fault. The objective element describes what standard of care could have been expected from a reasonable person in the athlete’s situation. The subjective element describes what could have been expected from that particular athlete, in light of his personal capacities. The objective element should be foremost in determining into which of the three relevant categories of degree of fault (significant, normal, light) a particular case falls. The subjective element can then be used to move a particular athlete up or down within that category.
6. Article 9 of the FIS ADR (corresponding to Article 9 of the WADC) leaves no discretion to the relevant disciplinary body (or to a CAS panel): the results achieved in the given competition shall always be disqualified. This conclusion follows, as an unavoidable consequence, the finding of an anti-doping rule violation, without any possibility for the hearing body to adopt a decision not imposing it, even in those exceptional cases where no sanction is inflicted, because the athlete bears “No Fault or Negligence”. In other word, the automatic disqualification operates as a matter of fairness to all other athletes.
This case is about an athlete who took, upon medical advice, a medicine in a dosage leading to the adverse analytical findings in the samples he provided. The question to be decided concerns in essence whether such dosage is or is not allowed by the applicable anti-doping rules, adopted by FIS on the basis of the World Anti-Doping Code (WADC) and the consequences of such finding. It was not suggested by WADA (or by FIS) that the Athlete intentionally cheated or intentionally broke the rules and then tried to defend deliberate doping with spurious medical or other justifications. As is well known, however, the anti-doping rules require strict observance: hence the claim brought against the Athlete and the appeal heard by the CAS Panel.
In January 2015 the Fédération Internationale de Ski (FIS) has reported two anti-doping rule violations against the Norwegian Athlete Matin Johnsrud Sundby after his samples, provided in December 2014 and in January 2015, tested positive for salbutamol in a concentration above the WADA threshold (1000 ng/mL).
After notification the Athlete submitted in his defence that since December 2014 he had been in a state of airway obstruction with the use of more intensive anti-asthmatic medication than usual. The Athlete’s team doctor confirmed that during that period the Athlete suffered more airway obstructions with worsening respiratory symptoms and use of medication during the competitions when he provided a sample.
FIS accepted in February 2015 the filed statements and advised to the Norwegian Ski Federation (NSF) that no provisional suspension would be imposed.
The Athlete underwent two pharmacokinetic studies in April and May 2015 and deliberations followed between experts, FIS and WADA about the reported results and the maximum allowed dose of inhaled salbutamol administered by nebulizer or any onther inhalation method.
On 4 September 2015 the FIS Doping Panel decided that the abnormal results of the analyses of the provided samples do not constitute an anti-doping rule violation and no further consequences shall apply to the Athlete. The FIS Doping Panel notes that it is not in the position to determine what constitutes an accepted dose of “inhaled salbutamol” and invites WADA to further specify how Section S.3 of the Prohibited List must be interpreted and to clarify how to determine the maximum doses for inhalation.
Hereafter in October 2015 WADA appealed the FIS Doping Panel decision of 4 September 2015 with the Court of Arbitration for Sport (CAS). WADA requested the CAS Panel to set aside the FIS Doping Panel decision and to impose a reprimand (and no period of ineligibility) or a period of ineligibility up to a maximum of two years.
Without a valid TUE to cover the use of salbutamol the CAS Panel finds that the Athlete committed an anti-doping rule violation under the FID ADR.
Having regard to all of the circumstances of the case, that is in light of its objective and subjective elements, and especially the fact that there was medical justification for the Athlete’s use of salbutamol, the Panel comes to the conclusion that the Athlete’s degree of fault was light and accordingly warrants the imposition of a sanction shorter than the standard measure for such cases, in this instance of two months ineligibility.
Therefore the Court of Arbitration for Sport decides on 11 July 2016 that:
1.) The appeal filed on 12 October 2015 by the World Anti-Doping Agency (WADA) against the decision taken on 4 September 2015 by the Doping Panel of the Fédération International de Ski (FIS) is upheld.
2.) The decision taken on 4 September 2015 by the Doping Panel of the Fédération International de Ski (FIS) is set aside.
3.) Martin Johnsrud Sundby has violated Article 2.1 of the applicable FIS anti-doping rules and is sanctioned with a period of ineligibility of two months starting from the date of this award. The results obtained by Mr Martin Johnsrud Sundby on 13 December 2014 in Davos (Switzerland) and on 8 January 2015 in Toblach (Italy) are disqualified.
4.) The present arbitration procedure shall be free, except for the CAS Court Office fee of CHF 1,000 (one thousand Swiss francs), which has already been paid by the Appellants and is retained by the CAS.
5.) Each party shall bear the costs it has sustained in connection with these arbitration proceedings.
6.) All other motions or prayers for relief are dismissed.
