CAS 2008/A/1471 FINA vs Tagliaferri and Federazione Italiana Nuoto

CAS 2008/A/1486 WADA v/ CONI and Tagliaferri

CAS 2008/A/1471 Fédération Internationale de Natation (FINA) v. Marco Tagliaferri & Federazione Italiana Nuoto (FIN) and CAS 2008/A/1486 World Anti-Doping Agency (WADA) v. Comitato Olimpico Nazionale Italiano (CONI) & Marco Tagliaferri

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• Aquatics (water polo)
• Doping (stanozolol)
• Legitimate interest to have a decision reviewed by the CAS
• Mitigation of the penalty due to the fact that the athlete was minor
• Principle of lex mitior in a doping case

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1. The applicable regulations provide that every “interested party” has the right to appeal against decisions by the highest national decision-making body in doping disputes irrespective of whether said “interested party” was a party to the proceedings, in which the decision appealed against was pronounced. Nor does the provision stipulate any limitation to the right to appeal in terms of the “kind” of decision. Whether or not the decision issued deals with procedural issues only is, therefore, irrelevant for the right of appeal. However, not only the wording, but also the intent and purpose of the relevant provision, are a reason for interpreting the right of appeal broadly. The broad right of appeal is supposed to allow all doping-related decisions to be reviewed in order to help harmonize the decisions and to contribute to an equal treatment of all athletes. Even if the decision-making body decided not to punish an athlete for procedural reasons, this does not alter the “nature of the dispute”. It is and remains a doping matter with the consequence that the International Federation and the World Anti-Doping Agency have a legitimate interest to also have this decision reviewed by the CAS.

2. In order to apply mitigating grounds, the athlete has to establish how and because of which surrounding circumstances the prohibited substance was present to the athlete’s body. Whether and how often the athlete ingested the prohibited substance is irrelevant for the extent of the penalty. The fact that the athlete was a minor at the time of the positive doping sample is, in itself, no reason to mitigate the penalty.

3. Because of the principle of lex mitior, the rule that is more favourable to the athlete can be resorted to, even if it was not in force at the time the offence was committed.

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On 21 July 2006 the Disciplinary Commission of the Italian Swimming Federation (FIN) decided to revoke to provisional suspension of the minor swimmer Marco Tagliaferri after his sample tested positive for the prohibited substance Stanozolol.

The Athlete had accepted the test result and testified that his father had administered stanozol without his knowledge. Consequently a lifetime ban was imposed on the father.

Following the appeal filed by the International Swimming Federation (FINA) the FIN Appeals Commission decided on 6 November 2007 to impose a 1 year period of ineligibility on the Athlete.

However on 10 January 2008 the CONI Anti-Doping Supreme Court (CONI GUI) deemed that FINA's appeal was inadmissible and annuled the decison of the FIN Appeals Commission.

Hereafter in January and in February 2008 both FINA and WADA appealed the CONI GUI decision with the Court of Arbitration for Sport (CAS). FINA and WADA requested the Panel to annul the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

The Panel concludes that the CONI GUI decision of 10 January 2008 was erroneous and must be set aside because the FINA appeal with the Italian FIN Appeals Commission was filed within the set the time limit and therefore admissible.

The Panel rules that as a result of all the inconsistencies in the presentation of the facts, it has not been established to the Panel’s comfortable satisfaction how, and because of what circumstances, the substance Stanozolol entered the Athlete’s system.

The fact that the Athlete was a minor at the time is no reason for a reduced sanction. The Panel finds that a 2 year period of ineligibility muse be imposed backdated and taking into account the time already served by the Athlete.

Therefore the Court of Arbitration for Sport decides on 5 February 2009:

1.) The appeal of the World Anti-Doping Agency against the decision of the Giudice di Ultima Istanza in Materia di Doping (GUI) dated 10 January 2008 is admissible.

2.) The appeal of the Federation Internationale de Natation against the decision of the Giudice di Ultima Istanza in Materia di Doping (GUI) dated 10 January 2008 is admissible inasmuch as it is directed against Mr Marco Tagliaferri. Insofar as the appeal is directed against the Federazione Italiana Nuoto (FIN) it is dismissed.

3.) The decision issued by the Giudice di Ultima Istanza in Materia di Doping (GUI) is set aside.

4.) The Player, Mr Marco Tagliaferri, is declared ineligible from 1 May 2008 until 30 November 2009.

5.) All competitive results obtained by Marco Tagliaferri from 16 March 2006 through 19 December 2008 shall be disqualified with all of the resulting consequences including forfeiture of any medals, points and prizes.

6.) All other motions or prayers for relief are dismissed.

7.) This award is pronounced without costs, except for each of the court office fees of CHF 500 (five hundred Swiss francs) paid by WADA and by FINA, which are retained by CAS.

CAS 2003/A/459 Van Herk v/FINA

On 9 September 2002 the Disciplinary Committee of the Royal Dutch Swimming Federation (KNZB) decided to impose a 4 year period perod of ineligibility on the minor Dutch swimmer (14) Linda van Herk for committing an anti-doping rule violation. 6 months of this sanction was unconditional and 42 months with a probation period of 2 years.

Here the Athlete failed to provide a sample despite several attempts. The Athlete's father requested to stop the sample collection due to business appointments and she left the Doping Control Station while she was warned about the consequences of her refusal.

In September 2002 the Appellant appealed and on 26 October 2002 the KNZB Appeal Committee decided to annul the decision of the KNZB Disciplinary Committee, and to acquit the Athlete.

Thereupon the FINA Disciplinary Committee decided on 11 April 2003 to impose a 2 year period of ineligibility on the Athlete for her refusal to provide a sample.

Hereafter in July 2003 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).

The Panel considered the arguments filed by the Athlete and finds that it has jurisdiction in this case and that the admitted departure by the KNZB from the doping control procedures is certainly regrettble. However the Panel holds that the non-compliance by officials with the procedures does not justifies an acquittal of the Athlete.

Considering the circumstances the Panel concludes that the Athlete intentionally refused to submit to doping control by providing a sample although there are grounds for a reduced sanction.

Therefore the Court of Arbitration for Sport decides on 20 October 2003:

1.) The appeal filed by ihe Appellant on 8 July 2002 is upheld in part and the decision of the FINA Doping Panel varied in part.

2.) The Appellant's suspension is reduced to one-year period to expire on 25 October 2003. The FINA Doping Panel's decision otherwise stands.

3.) The award is pronounced without costs. except for the Court Office fee of CHF 500.-- (five hundred Swiss francs) aheady paid by the Appellant and to be retained by the CAS.

CAS 2005/A/830 G. Squizzato v/ FINA
CAS 2005/A/830 S. v. FINA

• Swimming
• Doping (clostebol)
• Strict liability
• Duty of diligence
• Proportionality of the sanction

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1. Under the FINA Doping Policy, an offence has been committed when it has been established that a prohibited substance was present in the athlete’s body. There is thus a legal presumption that the athlete is responsible for the mere presence of a prohibited substance. The burden of proof lies within FINA and its Member Federation to establish that an anti-doping rule violation has occurred.

2. An athlete fails to abide by his/her duty of diligence if, with a simple check, he/she could have realised that the medical product he/she was using contained a prohibited substance, the latter being indicated on the product itself both on the packaging and on the notice of use. Furthermore, it is indeed negligent for an athlete willing to compete in continental or world events to use a medical product without the advice of a doctor or, at the very least, a physiotherapist. However, if it appears that the athlete had no intention whatsoever to gain advantage towards the other competitors, his/her negligence in forgetting to check the content of the medical product can be considered as mild in comparison with an athlete that is using a doping product in order to gain such advantage. Accordingly, although it cannot be considered that the athlete bears no fault or negligence in such a case, it can be held that he/she bears no significant fault or negligence, which opens the door to a reduced sanction.

3. Substantial elements of the doctrine of proportionality have been implemented in the body of rules and regulations of many national and international sport federations by adopting the World Anti-Doping Code, which provides a mechanism for reducing or eliminating sanctions i.a. in cases of “no fault or negligence” or “no significant fault or negligence” on the part of the suspected athlete. However, the mere adoption of the WADA Code by a respective Federation does not force the conclusion that there is no other possibility for greater or lesser reduction of a sanction.

4. A mere “uncomfortable feeling” alone that a one year penalty is not the appropriate sanction cannot itself justify a reduction of the sanction. The individual circumstances of each case must always hold sway in determining any possible reduction. Nevertheless, the implementation of the principle of proportionality as given in the WADA Code closes more than ever before the door to reducing fixed sanctions. Therefore, the principle of proportionality would apply if the award were to constitute an attack on personal rights which was serious and totally disproportionate to the behaviour penalised.

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In September 2004 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Athlete Gioriga Squizzato after her sample tested positive for the prohibited substance Clostebol. Consequently on 9 December the FINA Doping Panel decided to impose a 1 year period of ineligibility on the Athlete, starting on the date of the decision.

Hereafter in February 2005 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS). She requested the Panel to acquit her from the charge, or in any event, to reduce the sanction.

The Athlete argued that the violation was non intentional and acknowledged that she had used a cream to her foot as treatment for her skin condition which does not enhance her performance. On this basis, she claimed that she did not commit any fault, nor that she had been negligent.

The Panel finds that the Athlete indeed established how the prohibited substance had entered her system. However she failed to abide by her duty of diligence. With a simple check, she could have realised that the cream was containing a doping agent, as Clostebol is indicated on the product itself both on the packaging and on the notice of use. At least she could have asked her doctor, coach or any other competent person to double-check the contents of the cream bought by her mother.

As the Athlete was effectively suspended from 30 September 2004 onwards, the Panel is of the opinion that fairness requires that the sanction should not last more than one year and should therefore end on September 30, 2005. Therefore, as requested by the Athlete, the commencement of the sanction shall be September 30, 2004 and not December 9, 2004.

On 15 July 2005 the Court of Arbitration for Sport decides that:

1.) The appeal filed by the Athlete is partially upheld.

2.) The decision of the FINA is confirmed with the exception of the commencement of the sanction that shall be September 30, 2004.

(…)

CAS 2009/A/1759 FINA v. Max Jaben & ISA

CAS 2009/A/1778 WADA v. Max Jaben & ISA

CAS 2009/A/1759 FINA vs Max Jaben & Israel Swimming Association

CAS 2009/A/1778 WADA vs Max Jaben & Israel Swimming Association

CAS 2009/A/1759 & 1778 Fédération Internationale de Natation (FINA) & World Anti-Doping Agency (WADA) v. Max Jaben & Israel Swimming Association (ISA)

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• Aquatics (swimming)
• Doping (boldenone and boldenone metabolites)
• Imperative character of the rules establishing deadlines to file an appeal
• Notification of disciplinary decisions to WADA and WADA’s right to appeal
• Presence of a prohibited substance in both samples
• Chain of custody and adverse analytical finding
• Beginning of the suspension period

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1.) It would violate fundamental principles of fairness if procedural deadlines such as the filing deadline in the anti-doping rules of an international federation were to stand at the free disposition of the prosecuting parties especially if the accused athlete remained uninformed of such communications which ultimately affect his procedural rights. Possible erroneous assumptions on jurisdiction cannot be placed at the burden of the athlete and thus an appeal filed beyond the 21-days limit has to be declared inadmissible.

2.) WADA is not obliged to actively and unilaterally enquire about a decision to be issued by a federation in order to preserve its own right to appeal, since this would place an undue burden upon the WADA and possibly hinder the fight against doping. It would require that WADA actively monitor each and every of the hundreds of 1st instance disciplinary decisions on the national level.

3.) So long as a prohibited substance was found to be present in both the A and B sample analyses and was also found to be of exogenous origin, the fact that a second prohibited substance was not present in the B sample does not invalidate the finding of an anti-doping violation on the grounds of the rule “If the sample “B” proves negative, the entire test shall be considered negative and the Competitor, his Member Federation, and FINA shall be so informed”.

4.) Claims of departures from the International Standard for Laboratories and the International Standard for Testing, such as breach of the “chain of custody” in the handling of the samples, remain unsubstantiated if it cannot be established that these alleged violations of the International Standards have caused the adverse analytical finding.

5.) The sanctioned athlete has a right to an expeditious hearing and timely completion of the adjudicative process. So long as the sanctioned athlete has no control over procedural delays and bears no responsibility for them, it is fair and appropriate to deduce the period of delay from the overall period of his provisional suspension.

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In June 2008 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Israeli swimmer Max Jaben after his A and B samples tested positive for the prohibited substance Boldenone.

On 19 November 2008 the Israel Swimming Association (ISA) decided to impose a 1 year period of ineligibility on the Athlete. This decision was appealed with the ISA High Court of Arbitration. However the High Court dismissed this appeal on 15 December 2008 due to lack of jurisdiction because it involved an international-level athlete.

Hereafter in January 2009 both FINA and WADA appealed both Israeli decisions of 19 November 2008 and 15 December 2008 with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Israeli decisions and to impose a 2 year period of ineligibility on the Athlete. FINA's appeal was rejected because it was not filed within the set time limit of 21 days. 

The Athlete denied the intentional use of the substance and argued that the test results of the Athens and Cologne Laboratories were contradictory. He asserted that he should be acquitted because of errors and delays in the laboratory procedures, the unsafe chain of custody and the discrepancies in the laboratory findings.

WADA contended that the Athlete had failed to demonstrate how the prohibited substance had entered his system. Also his allegations about the many inconsistencies are without merit.

WADA holds that both the Athens and Cologne Laboratories were WADA-accredited; the Athlete failed to establish any departure from the International Standard for Testing; and his allegations regarding the validity of the IRMS analyses were erroneous.

The Panel finds that the presence of the prohibited substance has been established by the Athens and Cologne Laboratories on the basis of their respective analyses whereas the task of the IRMS analysis was to prove the exogenous origin of the Boldenone metabolite. In the view of the Panel, the Cologne Laboratory confirmed such exogenous origin.

The Panel holds that, apart from the delayed processing of the samples by the Athens and the Cologne Laboratories, the Athlete’s claims of other departures from the International Standard for Laboratories and the International Standard for Testing remain unsubstantiated.

This is particularly the case with regard to his accusation that the chain of custody in the handling of the samples has been breached. The Athlete does not claim that these alleged violations of the International Standards have caused the adverse analytical finding.

As a result the Panel determines that the presence of Boldenone metabolite in both specimens, which was proved in IRMS testing to be of exogenous origin, is sufficient to support the doping violation.

Therefore the Court of Arbitration for Sport decides on 13 July 2009:

1.) The appeal of the World Anti-Doping Agency against the decisions of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 and of the High Court of the Israel Swimming Association dated 15 December 2008 is declared admissible and is partially upheld.

2.) The appeal of the Federation Internationale de Natation against the decisions of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 and of the High Court of the Israel Swimming Association dated 15 December 2008 is declared inadmissible.

3.) The decision of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 is modified; Mr Jaben is declared ineligible for a period of two (2) years, commencing as of 30 April 2008 without any interruption.

4.) All competitive results achieved by Mr Jaben from 30 April 2008 through 5 June 2008, the date of his provisional suspension, and between the date he resumed competition pursuant to the decision of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 until the date of this award shall be invalidated with the consequence that all medals, points and prizes shall be forfeited.

5.) This award is pronounced without costs, except for the non-reimbursable Court Office fee of CHF 500 (five hundred Swis Francs) already paid by each of the Appellants and to be retained by the CAS.

6.) Mr Jaben is ordered to pay to the World Anti-Doping Agency an amount of CHF 1,000 (one thousand Swiss Francs) as a contribution towards the latter’s legal and other costs incurred in connection with the present arbitration.

7.) The Israel Swimming Association is ordered to pay to the World Anti-Doping Agency an amount of CHF 2,000 (two thousand Swiss Francs) all a contribution towatds the latter's legal and other costs incurred in connection with the present arbitration.

8.) Mr Jaben, the Israel Swimming Association and the Federation Internationale de Natation shall bear their own legal and other costs.

9.) All other motions or petitions for relief are dismissed.

TAS 2007/A/1252 FINA c/Oussama Mellouli & Fédération Tunisienne de Natation

TAS 2007/A/1252 Fédération Internationale de Natation (FINA) c. M. & Fédération Tunisienne de Natation (FTN)

CAS 2007/A/1252 FINA vs Oussama Mellouli & Fédération Tunisienne de Natation

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• Natation
• Dopage (Amphétamines – ’Adderall’)
• Négligence significative de l’athlète
• Inadéquation de la réglementation avec les circonstances particulières de l’espèce
• Début de la période de suspension

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1. Pour bénéficier de l’application de l’article DC 10.5.2 du Règlement antidopage FINA (absence de négligence ou de faute significative justifiant une réduction de la suspension), un athlète doit non seulement démontrer comment la substance interdire pénètre son organisme mais aussi qu’il ou elle n’a commis aucune faute ou négligence significative. Selon la jurisprudence du TAS, l’examen de la faute ou négligence significative doit être fait en fonction des circonstances particulières de chaque cas d’espèce. Même en état de stress et de fatigue, un sportif d’élite ne peut totalement occulter de son esprit l’obligation qui est la sienne d’éviter qu’une quelconque substance interdite ne pénètre dans son organisme. Le fait que l’usage de l’Adderall soit de plus en plus fréquent dans les universités d’Amérique du nord ne saurait excuser une telle prise de risque surtout de la part d’un étudiant de division “sport-études” qui évolue de surcroît au plus haut niveau mondial de sa discipline.

2. Exceptionnellement, la sanction prévue par l’application stricte des règles antidopage d’une fédération sportive peut apparaître disproportionnée par rapport au comportement reproché à l’athlète, et non conforme au but – à la fois répressif et éducatif – recherché par lesdites règles. Il serait particulièrement inéquitable de ne pas tenir compte des circonstances particulières de chaque espèce même si la négligence est significative et de sanctionner de la même manière celui qui refuse d’admettre avoir pris intentionnellement des produits à fort pouvoir dopant durant une longue période et qui conteste les résultats pourtant clairs des analyses et l’athlète ayant commis une négligence isolée qui s’inscrit dans le cadre d’un parcours jusqu’ici irréprochable. Il s’agit de faire preuve d’une adéquation entre la faute ou la négligence significative et la sanction dans l’application du système répressif, même si le système lui-même se veut très strict.

3. En cas de délais dans la procédure d’audition ou d’autres aspects du contrôle du dopage non imputables à l’athlète, la période de suspension peut commencer à une date antérieure, pouvant remonter à la date de la collecte de l’échantillon.

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On 8 March 2007 the Disciplinary Committee of the Tunisian Swimming Federation (FTN) decided to impose a reprimand on the Athlete Oussama Mellouli after he tested positive for the prohibited substance Amphetamine.

In this matter the Athlete had admitted the violation, accepted the test result and the provisional suspension. He explained that he had used a tablet (Adderall) at the university to stay awake for his studies.

Hereafter in March 2007 FINA appealed the FTN decision with the Court of Arbitration for Sport. FINA requested to Panel to set aside the FTN decision and to impose a 2 year period of ineligibility on the Athlete.

FINA argued that the Athlete tested positive for a prohibited substance and accordingly he had committed an anti-doping rule violation.

In view of the Athlete's conduct the Panel concludes that his Fault or Negligence was significant in this case. Considering the circumstances the Panel decides on 11 September 2007 to impose a proportional 18 month period of ineligibility on the Athlete starting on the date of the sample collection, i.e on 30 November 2006.

• CAS 2011/A/2495 FINA v. César Augusto Cielo Filho & CBDA
• CAS 2011/A/2496 FINA v. Nicholas Araujo Dias dos Santos & CBDA
• CAS 2011/A/2497 FINA v. Henrique Ribeiro Marques Barbosa & CBDA
• CAS 2011/A/2498 FINA v. Vinicius Rocha Barbosa Waked & CBDA

CAS 2011/A/2495 Fédération Internationale de Natation (FINA) v. César Augusto Cielo Filho & Confederação Brasileria de Desportos Aquáticos (CBDA) and CAS 2011/A/2496 FINA v. Nicholas Araujo Dias dos Santos & CBDA and CAS 2011/A/2497 FINA v. Henrique Ribeiro Marques Barbosa & CBDA and CAS 2011/A/2498 FINA v. Vinicius Rocha Barbosa Waked & CBDA

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• Aquatics (swimming)
• Doping (furosemide)
• Contamination of a caffeine capsule with a diuretic
• Nature of caffeine for the purposes of the FINA Rules / WADC
• Appropriate sanction with regard to the individual athlete’s degree of fault
• Appropriate sanction to a recidivist
• Commencement of the period of ineligibility

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1. Neither the FINA Rules nor the WADC defines, or distinguishes, what is a “medication” on the one hand and what is a “supplement” on the other. Caffeine is readily available, without medical intervention, in many forms such as in energy drinks and in coffee. Moreover, an ordinary person would not regard caffeine as a medication. Therefore caffeine can be considered a “supplement” as that term is used in the comment to Rule DC10.4 (FINA Doping Control Rules). It is irrelevant, for so classifying it, that it was “prescribed” as opposed to being bought over the counter. The way the caffeine was acquired cannot change its fundamental character. It follows that Rule DC 10.4 is applicable and that Rule DC 10.5.1 is not available to the athletes. As a result, the athletes cannot establish that they bear “No Fault or Negligence” for the purpose of Rule DC 10.5.1 and that no sanction is appropriate.

2. Rule DC 10.4 prerequisites’ are satisfied where none of the alleged facts as to how the prohibited substance entered the athletes’ bodies have been contested and where it was agreed that the athlete did not wish to enhance their sportive performance. Rule DC 10.4 expressly provides that the athlete’s degree of fault is the sole criterion for determining the appropriate sanction. In this respect, the fact that the athletes have taken the necessary precautions before taking caffeine pills (prescription from their doctor, controlled pharmacy, certificate of purity of the caffeine) and that more precautions could not have been expected from them, should be taken into consideration.

3. An athlete who has committed a second doping offence is subject to Rule DC 10.7. Under this rule, a 1 year suspension which is the mandated minimum period of ineligibility does not infringe the principle of proportionality.

4. By waiving the testing of his B Sample, an athlete admits his anti doping rule violation and, in these circumstances is entitled to the benefit of Rule DC 10.9.2 which confers a discretion on a panel to determine that the period of ineligibility may start as early as the date of the sample collection.

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In May 2011 the Brazilian Water Sports Confederation, Confederação Brasileira de Desportos Aquáticos (CBDA), has reported anti-doping rule violations against the 4 Athletes after their samples tested positive for the prohibited substance Furosemide.

Here the Athletes used caffeine capsules, prescribed by their sports medicine specialist, since 2010. However the batch of caffeine capsules compounded and used in May 2011 became contaminated with the substance Furosemide in the pharmacy.

On 1 July 2011 the CBDA Anti-Doping Panel concluded that there is ‘no fault or negligence’ on the part of the Athletes and therefore decided that the appropriate sanction is a warning and the disqualification of the Athlete’s competition results.

Hereafter in July 2011 FINA appealed the CBDA decision with the Court of Arbitration for Sport (CAS).

In these cases the CAS Panel concludes that the only appropriate sanction to impose on the 3 Athletes is a warning and therefore confirms the CBDA decision of 1 July 2011.

Previously the Athlete Vinicius Rocha Barbosa Waked had committed an anti-doping rule violation in February 2010 due to inadvertently using a medicine which contained a stimulant.
As a result the Panel concludes that the Athlete has committed another anti-doping rule violation at the lowest end of the fault spectrum.

The CBDA decision of 1 July 2011 is set aside and the CAS Panel decides to impose a 1 year period of ineligibility on the Athlete, starting on the date of the sample collection, i.e. on 7 July 2011.

Therefore the Court of Arbitration for Sport decides on 29 July 2011:

In CAS 2011/A/2495 FINA v. César Augusto Cielo Filho and CBDA

1.) The Appeal filed by the Federation Internationale de Natation (“FINA”) on 8 July 2011 against Mr César Augusto Cielo Filho and the Confederação Brasileria de Desportos Aquaticos (“CBDA”) concerning the decision taken by the President of the CBDA on 1 July 2011 is dismissed.

2.) The Decision of the CBDA of 1 July 2011 is confirmed.

3.) (…)

4.) All other claims are dismissed.

In CAS 2011/A/2496 FINA v. Nicholas Araújo Dias dos Santos and CBDA

1. The Appeal filed by the Federation Internationale de Natation (“FINA”) on 8 July 2011 against Nicholas Araújo Dias dos Santos and the Confederação Brasileria de Desportos Aquaticos (“CBDA”) concerning the decision taken by the President of the CBDA on 1 July 2011 is dismissed.

2. The Decision of the CBDA of 1 July 2011 is confirmed.

3. (…)

4. All other claims are dismissed.

In CAS 2011/A/2497 FINA v. Henrique Ribeiro Marques Barbosa and CBDA

1.) The Appeal filed by the Federation Internationale de Natation (“FINA”) on 8 July 2011 against Mr Henrique Ribeiro Marques Barbosa and the Confederação Brasileria de Desportos Aquaticos (“CBDA”) concerning the decision taken by the President of the CBDA on 1 July 2011 is dismissed.

2.) The Decision of the CBDA of 1 July 2011 is confirmed.

3.) (…)

4.) All other claims are dismissed.

In CAS 2011/A/2498 FINA v. Vinicus Rocha Barbosa Waked and CBDA

1.) The Appeal filed by the Federation Internationale de Natation (“FINA”) on 8 July 2011 against Mr Vinicus Rocha Barbosa Waked and the Confederação Brasileria de Desportos Aquaticos (“CBDA”) concerning the decision taken by the President of the CBDA on 1 July 2011 is upheld.

2.) The Decision of the CBDA of 1 July 2011 is set aside.

3.) Mr Vinicus Rocha Barbosa Waked is suspended for a period of one year from 7 May 2011.

4.) Mr Vinicus Rocha Barbosa Waked’s results obtained at the Maria Lenk Swim Meet in Rio de Janeiro, Brazil in May 2011 are disqualified. The results, medals, points and prizes obtained by Mr Vinicus Rocha Barbosa Waked at the Maria Lenk Swim Meet in Rio de Janeiro, Brazil, in May 2011, are forfeited. The results, medals, points and prizes obtained by Mr Vinicus Rocha Barbosa Waked since the Maria Lenk Swim Meet in Rio de Janeiro, Brazil, in May 2011, are cancelled.

5.) (…)

6.) All other claims are dismissed.

CAS 2011/A/2499 Albert Subirats v. Fédération Internationale de Natation (FINA), award of 24 August 2011

Related case:
FINA 2011 FINA vs Albert Subirats
May 7, 2011

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• Aquatics
• Swimming
• Doping (Whereabouts filing failure)
• Responsibility of the athlete for making accurate and complete whereabouts filings
• Responsibility of the anti-doping organization in the notification of the filing failures

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1. It is the responsibility of each swimmer registered in the FINA Registered Testing Pool to report the required whereabouts information to the FINA office. Even when the athlete chooses to delegate whereabouts filings to a third party such as a national federation, he or she remains ultimately responsible at all times for making accurate and complete whereabouts filings. In particular, the athlete must make sure that such third party effectively forwards the whereabouts information to the anti-doping organization on time.

2. The anti-doping organization is responsible for making an accurate notification to the athlete. If it decides to notify the filing failure communication to the athlete’s national federation instead of directly to the athlete, it has to make sure that the athlete receives such communication from the national federation. If the athlete does not receive the filing failure communication from the national federation, he or she may not be declared to have committed any filing failure.

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On 21 June 2011 the International Swimming Federation (FINA) Doping Panel decided to impose a 1 year period of ineligibility on the Venezuelan swimmer Albert Subirats for 3 Whereabouts Filing Failures in 2010 and 2011.

Hereafter in July 2011 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).

Uncontested in this case is the fact that the Athlete always sent the whereabouts information timely to the Venezuelan Swimming Federation (VSF). However the VSF failed to forward such information to FINA, neither for the first quarter of 2010, nor for the fourth quarter of 2010, nor for the first quarter of 2011.

In addition, uncontested and supported by the documents in the file, is the fact that the FINA notified all three filing failures by letters of 25 February 2010, 11 November 2010 and 2 February 2011 addressed only to the VSF.
No failure notices were ever sent by FINA to the Athlete directly. Also uncontested is the fact that VSF forwarded these communications to the Athlete for the first time on 2 February 2011, i.e. after the third violation had already occurred.

Since it is undisputed that the Athlete did not receive any filing failure notice before the third whereabouts filing failure, the Panel concludes that the existence of a second and a third violation cannot be reproached to the Athlete.

Therefore the Court of Arbitration for Sport decides on 24 August 2011:

1.) The Appeal filed by Mr Albert Subirats is upheld.

2.) The decision rendered on 21 June 2011 by the FINA Doping Panel is overturned.

3.) The second and the third filing failure for the fourth quarter of 2010 and the first quarter of 2011 are cancelled.

4.) Mr Albert Subirats’ results are fully reinstated.

5.) (…).

6.) (…).

7.) All other motions or prayers for relief are dismissed.

CAS 2009/A/1870 World Anti-Doping Agency (WADA) v. Jessica Hardy & United States Anti-Doping Agency (USADA)

Related cases:

• 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
  
  

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• Swimming
• Doping (Clenbuterol)
• 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

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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.

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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.

Following 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). In this matter both WADA and FINA withdrew in June 2009 their other filed 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 submited that the AAA Panel wrongly held Hardy to be entitled to a reduction in the sanction under FINA DC 10.5.2 and therefore requested that a second year of suspension be imposed on Hardy.

On the other side, the Athlete argued that the sanction imposed on her, taking into account the IOC Rules, is excessive, and therefore requested 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 Rules. 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.

2.) (…)

3.) (…)

4.) All other prayers for relief are dismissed.