CAS 2010/A/2277 Roberto La Barbera v. International Wheelchair & Amputee Sports Federation (IWAS)
Departure from the International Standard for Testing (no)
Balance of probability
Requirement of establishing how the Prohibited Substance entered the athlete’s system
Absence of fault or negligence (no)
1. The doping control form is intended to provide contemporaneous record of the doping control procedure. While an athlete’s signature does not amount to a waiver of the athlete’s right to later allege that the requirements of the International Standard for Testing (IST) have been breached, such signature is of potential evidential value in determining whether the procedures set out in the IST have been complied with. The athlete’s plain signature of the doping control records expresses his approval of the procedure and prevents him – short of compelling evidence of manipulation of the records or fraud or any similar facts – from raising any such issue at a later stage.
2. The balance of probability standard means that the indicted athlete bears the burden of persuading the judging body that the occurrence of the circumstances on which he relies is more probable than their non-occurrence or more probable than other possible explanations of the doping offence.
3. The requirement of showing how the Prohibited Substance got into the athlete’s system must be enforced quite strictly since, if the manner in which a substance entered an athlete’s system is unknown or unclear, it is logically difficult to determine whether the athlete has taken precautions in attempting to prevent such occurrence. Consequently, the “threshold” requirement of proof means not only that the athlete must show the route of administration but that he must be able to prove the factual circumstances in which administration occurred. One hypothetical source of a positive test does not prove to the level of satisfaction required that such explanations are factually or scientifically probable. Mere speculation is not proof that it did actually occur.
4. Athletes are responsible for what they ingest. Taking into account the strict liability principle resulting therefrom, in order to establish No Fault or Negligence, the athlete must prove that he did not know or suspect, and could not reasonably have known or suspected, even with the exercise of utmost care, that he had used or been administered with the prohibited substance.
The IWAS has established that Mr La Barbera had committed an anti-doping violation rule according to Art. 2.1 of the IWAS Code, since both A and B Samples have confirmed the presence of Stanozolol and 16β-hydroxystanozol, a metabolite of Stanozolol, a prohibited substance appearing on the WADA 2010 Prohibited List under category S1(1)(a), exogenous anabolic androgenic steroid (art. 2.1.2 of the IWAS Code).
Mr La Barbera has been unable to discharge his burden of proving under Art. 3.1 and 3.2.2 of the IWAS Code that, on a balance of probability, (i) there had been any departure from the IST in the way the doping control procedure was carried out and that (ii) such departure could reasonably have caused the adverse analytical finding.
Mr La Barbera has been unable to discharge his burden of proving under Art. 10.5 of the IWAS Code how, on a balance of probability (i) the Prohibited Substance had entered his system and that (ii) such ingestion had occurred without any (Significant) Fault or Negligence.
As a result, the appeal filed by Mr La Barbera has to be dismissed and, taking into account Art. 9, 10.1 and 10.2 of the IWAS Code (see paras 22-24), the decision issued by the IWAS Tribunal on 20 October 2010 is affirmed.
The Court of Arbitration for Sport decides on 2 May 2011:
1.) The appeal filed on 17 November 2010 by Mr Roberto La Barbera against the decision of the IWAS Anti-Doping Committee Hearing Panel dated 20 October 2010 is dismissed.
2.) The decision rendered on 20 October 2010 by the IWAS Anti-Doping Committee Hearing Panel is confirmed.
5.) All other motions or prayers for relief are dismissed.