CAS 2009/A/1870 World Anti-Doping Agency (WADA) v. Jessica Hardy & United States Anti-Doping Agency (USADA)
AAA No. 77 190 00288 08 JENF USADA vs Jessica Hardy - Interim Award
August 1, 2008
AAA No. 77 190 00288 08 USADA vs Jessica Hardy
May 30, 2009
CAS 2011_O_2422 USOC vs IOC
October 10, 2011
Applicable law to the merits according to the principles of tempus regit actum and lex mitior
Conditions for third parties to participate to a CAS procedure
Provision granting a right to a third party to participate in the CAS proceedings
Contaminated nutritional supplements and significant fault or negligence
CAS review of a sanction imposed by a disciplinary body
Negligence of an athlete with respect of the nutritional supplements
Conditions for a Claimant to obtain a declaratory judgment
1. According to the principle “tempus regit actum”, new regulations do not apply retroactively to facts that occurred prior to their entry into force, but only for the future. However, according to the “lex mitior” principle, CAS Panels have the possibility to apply those rules subsequently entered into force which are more favourable to the athlete
2. In the CAS system a third entity can participate as a party to the arbitration proceedings already pending among other subjects in two situations, joinder or intervention, but subject to a common condition: that it agrees in writing to such participation or that it is bound by the same arbitration agreement binding the original parties to the dispute. The common condition is not satisfied if the third party has not agreed to participate in the arbitration, notwithstanding the opportunity to intervene granted by the Panel and if the same party is not bound by the same arbitration agreement binding the original parties to the dispute.
3. Under the FINA Rules, the IOC is given the right to appeal to CAS any decision rendered under the FINA Rules “where the decision may have an effect in relation to the Olympic Games, including decisions affecting eligibility for the Olympic Games”. Such provision grants a right of appeal to a subject that was not a party to the proceedings leading to the decision appealed against. Such provision, however, even if granting a right, does not create an obligation for the IOC to participate in the CAS proceedings: this obligation can rest only upon the IOC’s consent or a rule binding it – and the FINA Rules do not bind the IOC.
4. The fact that an adverse analytical finding is the result of the use of a contaminated nutritional supplement does not imply per se that the athlete’s negligence was “significant”. An athlete can avoid the risks associated with nutritional supplements by simply not taking them; but the use of a nutritional supplement “purchased from a source with no connection to prohibited substances, where the athlete exercised care in not taking other nutritional supplements” and the circumstances are “truly exceptional”, can give rise to “ordinary” fault or negligence and do not raise to the level of “significant” fault or negligence.
5. According to the CAS case law, the measure of the sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rules can be reviewed only when the sanction is evidently and grossly disproportionate to the offence.
6. An athlete’s behaviour is negligent if the Adverse Analytical Finding occurs years after that the risks connected to the use of nutritional supplements had first become known to athletes, since much information has been given and stringent warnings have been issued in this respect.
7. Swiss law subjects to stringent conditions the possibility for a Claimant to obtain from a Swiss court a declaratory judgment. Such conditions are also relevant in these arbitration proceedings, since Swiss law applies subsidiarily and Swiss law also defines the powers of adjudication of arbitration bodies having their seat in Switzerland. The prerequisites for a declaratory judgment are – in principle – threefold. The party seeking declaratory relief must show a legal interest to do so. The latter presupposes that the declaratory judgment is necessary to resolve a legal uncertainty that threatens the Claimant. A legal interest is missing if a declaratory judgment is insufficient or falls short of protecting the Claimant’s interests. Furthermore, the legal uncertainty must relate to the existence or non existence of a claim or a defined legal relationship between the parties to the dispute. Finally, there must be a certain urgency to resolve the uncertainty in order to protect the respective party’s right, i.e. there must be an immediate interest for solving the uncertainty now.
In July 2008 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the Athlete Jessica Hardy after her A and B samples tested positive for the prohibitied substance clenbuterol.
After an Interim Award of 1 August 2008 the North American Court of Arbitration for Sport Panel (AAA) considered the Athlete's negligence with the use of contaminated supplements and decided in a Final Award on 30 May 2009 to impose a 1 year period of ineligibility on the Athlete.
Hereafter in June 2009 WADA appealed this AAA Panel Final Award of 30 May 2009 with the Court of Arbitration for Sport (CAS).
With this appeal against the Final Award both WADA and FINA withdrew in June 2009 their appeals ( CAS 2009/A/1852 & CAS 2009/A/1853) against the previous issued AAA Interim Award of 1 August 2008.
The CAS Panel notes that the AAA Final Award is challenged in this arbitration under several perspectives: both parties, in fact, dispute the measure of the sanction imposed on Hardy. On one side, the WADA submits that the AAA Panel wrongly held Hardy to be entitled to a reduction in the sanction under FINA DC 10.5.2 and therefore requests that a second year of suspension be imposed on Hardy. On the other side, the Athlete argues that the sanction imposed on her, taking into account the IOC Rule, is excessive, and therefore requests that the Panel either declares that the IOC Rule is inapplicable or reduces the sanction to six months.
The Panel finds that the measure of the sanction cannot be determined taking into account the IOC Rule. In particular, the Panel finds that its approach does not prevent the Athlete Hardy from getting judicial relief and does, therefore, not amount to a denial of access to justice. The sanction of the ineligibility for one year is proportionate to the kind of misconduct and level of negligence found with the Athlete. The prior body, i.e. the AAA Panel, therefore, was correct in imposing it on Hardy.
Therefore on 21 May 2010 the Court of Arbitration for Sport decides:
1.) The appeal filed by the World Anti-Doping Agency against the AAA Final Award issued on 30 May 2009 is dismissed.
4.) All other prayers for relief are dismissed.