ISLJ 2008-1-2_Def - TMC Asser Instituut

FIFA Disciplinary Committee and thus did not commit a denial ofjustice. Considering that FC Aris has not exhausted all legal remediesinternal to FIFA before the appeal to CAS, the Panel concludedthat it had no jurisdiction to hear this case in the absence of afinal decision of FIFA.Arbitration CAS 2005/A/908 WADA v/ Wium, award of 15November 2005Panel: Mr Michael Geistlinger (Austria), President; Mr Hans Nater(Switzerland); Mr Conny Jörneklint (Sweden)The Court of Arbitration for Sport (CAS) has decided to uphold theappeal filed by the World Anti-Doping Agency (WADA; the“Appellant”) against the decision issued by the InternationalParalympic Committee’s (IPC) Management Committee on 2 May2005 whereby the latter infirmed a previous decision imposing a twoyears ineligibility period on a South African paralympic powerlifter,Coetzee Wium (the “Respondent”), and a disqualification of all competitiveresults obtained by the Respondent from 13 December 2004,including forfeiture of any medals, points and prizes. Therefore, theCAS ruled that the previous sanctions (ineligibility period and disqualification)were to be confirmed.On 13 December 2004, the Respondent underwent a WADA outof-competitiondoping control at his place of work. He was notifiedof the test at 9.39; the test was concluded at 9.54. On his way back,the Doping Control Officer (the “DCO”) realized that he had forgottenthe samples. He called the Respondent immediately, drove backto the Respondent’s place of work and received the samples from thelatter. In his view, the time that could have elapsed between the conclusionof the test and getting back to the Respondent was 45 minutes.Throughout this period, the samples were sealed in a tamperproof “Berlinger Test Kit”.The date of the sample collection by DHL as indicated in the documentationpackage for the samples of the Respondent was 14December 2004, whereas the waybill showed 15 December 2004. TheDCO explained this difference by stating that he had scheduled apick-up via the Internet on 14 December 2004 but since no collectionof the samples had taken place on this day, he had to take himself thebag into the DHL depot on the next day. There, the clerk who acceptedthe bag altered the date on the waybill to 15 December 2004, butthe chain of custody still showed 14 December 2004.The IPC Management Committee was presented with an AdverseAnalytical Finding of the urine provided by the Respondent fortestosterone or testosterone prohormones by the South AfricanDoping Control Laboratory on 5 January 2005 and confirmed byIRMS analysis of the Doping Control Laboratory of the DeutscheSporthochschule Köln on 27 January 2005 and reported to WADAand IPC on 3 February 2005. The T/E ratio was 43.2 for screen, wellabove the WADA threshold of 4.On 14 March 2005, the IPC Management Committee decided toimpose a two (2) years ineligibility period on the Respondent, basedon art. 12.2 IPC Anti-Doping Code. In addition and based on art.12.7 IPC Anti-Doping Code, all competitive results obtained by theRespondent from 13 December 2004 were disqualified including forfeitureof any medals, points and prizes. The IPC ManagementCommittee considered the facts and held that there was a minordeparture from the WADA International Standard for Testing. Butthere was no evidence that the sample had been tampered with in anyway and the seal on the sample was wholly intact. Therefore, theCommittee found that this departure did not invalidate the result.On 16 and 23 March 2005, the General Manager of the DisabilitySport South Africa (DISSA) filed two Notices of Appeal on behalf ofthe Respondent under art. 9.9 IPC Anti-Doping Code. She drew theconclusion that the forgetting of the samples as well as the change ofthe date on the waybill effectively caused a break in the chain of custody,which should render the decision of 14 March 2005 invalid.With regard to the issue of whether the sanction applied was the correctone, she argued that art 12.5.2 of the IPC Anti-Doping Code -“no significant fault or negligence” - should be taken into considerationfor defining the sanction if it was found that no significant deviationfrom the International Standard occurred. As a consequence, sherequested a reduction of the 2 years’ suspension.On 2 May 2005, the IPC Management Committee decided touphold the appeal and to immediately reinstate the Respondent tosport. The Committee found that a significant departure from theInternational Standard had occurred, as the samples were left unattendedfor 45 minutes and there was no clear record of exactly whathad happened to them during this period, clearly breaking the chainof custody. In addition, it stated that the IPC Anti-DopingSubcommittee had not established, on the balance of probabilities,that this departure had not caused the adverse analytical finding. Inlight of this finding, it did not consider the second question ofwhether the sanction applied by the IPC Anti-Doping Subcommitteewas the correct one.In its Statement of Appeal, dated 21 June 2005, WADA asked theCAS to amend the IPC decision of 2 May 2005 in order to impose a2 years ineligibility period on Coetzee Wium.In its written decision, the Panel considered that:- In a case where it is established that departures from the WADCInternational Standard for Testing and/or the WADA TechnicalDocuments for Laboratory Analysis occurred during transportation,collection and/or testing, the question the Panel has to answeris : “Do these deviations cast sufficient doubt on the reliability ofthe test results to an extent that the finding of a ProhibitedSubstance in the athlete’s urine was not sufficient to establish adoping offence to the comfortable satisfaction of the Panel” ? If anathlete demonstrates such departures, then the IPC (or applicableADO) shall have the burden to establish that they did not cause theAdverse Analytical Finding. The standard of proof required by CASin all such cases is greater than mere balance of probability but lessthan proof beyond a reasonable doubt.- WADA had established to its comfortable satisfaction that thedeviation from the testing standard by having the samples left unattendedfor 45 minutes had not cast any doubt on the reliability ofthe test results. The practical impossibility to destroy a Berlingerbottle and the fact that the seal was intact at the samples’ arrival atthe laboratory excluded any act of sabotage with a possible impacton the result of the laboratory analysis as well as any probabilitythat a negligent mishandling of the samples by the cleaning ladymight have occurred involving any impact on the AdverseAnalytical Finding. Also, irrespective of whether there was or wasnot a departure from the International Standard with regard to thenon-correspondence of the date in the documentation package andon the waybill, the Panel found the explanation given by the DCOto be fully satisfactory. Given the finding of another CAS Panel inthe CAS case 2001/A/337, Bray v/FINA, p. 24, that even a delay oftwo weeks could not influence an Adverse Analytical Finding, itcould exclude any probability that the delay of one day could havecast any doubt on the reliability of the test results under the givencircumstances.- Although prepared to assume in favour of the Respondent thatthere was a departure from WADA Technical Documents forLaboratory Analysis, it nevertheless felt comfortably satisfied thatthe Appellant had established that such assumed departure had notrisen any doubt regarding the reliability of the test results. Giventhe exogenous origin of the Prohibited Substance, it found that thestatement regarding anabolic androgenic steroids, including testosterone,on page 3 of the WADA 2004 Prohibited List had to beapplied. Since the Respondent had not risen any doubts regardingIMRS being such a reliable method, it did not find that the athletecould rebut the presumption that a WADA-accredited laboratoryhad conducted Sample Analysis and custodial procedures in accordancewith the WADC International Standard for Laboratories.No departure from the International Standard, which would haveundermined the validity of the Adverse Analytical Finding, hadbeen established, once the exogenous origin of the ProhibitedSubstance had become clear.DOCUMENTS2008/1-2 141