Rivista di Diritto ed Economia dello Sport - Rdes.it

CAS 2005/C/976 & 986, FIFA & WADA 21972 The WADC is based on the principle of fixed sanctions which willapply in the vast majority of cases, subject to elimination or reduction onlyunder “exceptional circumstances” as indicated by the title of art. 10.5(“Elimination or Reduction of Period of Ineligibility Based on ExceptionalCircumstances”) and the Comment to art. 10.5.2. The Panel notes, however,that the wording of the WADC does not refer to “exceptional circumstances”but uses only the terms “no fault or negligence” 44 and “no significant fault ornegligence”, 45 which are defined in Appendix 1 of the WADC as follows:“No fault or Negligence: The Athlete’s establishing that he or she did not knowor suspect, and could reasonably have known or suspected even with the exerciseof utmost caution, that he or she had Used or been administered the ProhibitedSubstance or Prohibited Method” (emphasis added).“No significant fault or Negligence: The Athlete’s establishing that his or herfault or negligence, when viewed in the totality of the circumstances and takinginto account the criteria for No Fault or Negligence, was not significant inrelationship to the anti-doping rule violation.”73 The WADC imposes on the athlete a duty of utmost caution to avoidthat a prohibited substance enters his or her body. Case law of CAS and ofother sanctioning bodies has confirmed these duties, and identified a numberof obligations which an athlete has to observe, e.g., to be aware of the actuallist of prohibited substances, to closely follow the guidelines and instructionswith respect to health care and nutrition of the national and internationalsports federations, the NOC’s and the national anti-doping organisation, notto take any drugs, not to take any medication or nutritional supplementswithout consulting with a competent medical professional, not to acceptany medication or even food from unreliable sources (including on-line ordersby internet), to go to places where there is an increased risk of contamination(even unintentional) with prohibited substances (e.g. passive smoking ofmarihuana). Further case law is likely to continue to identify other situationswhere there is an increased risk of contamination, and, thus, constantly specifyand intensify the athlete’s duty of care. 46 The Panel underlines that thisstandard is rigorous, and must be rigorous, especially in the interest of all____________________44Art. 10.5.1 WADC.45Art. 10.5.2 WADC.46In the first contaminated supplement-cases, there may have been a valid excuse of the athletethat he had no chance to know about the contamination. Today, however, the risk of contaminationis widely known and the anti-doping organizations have issued explicit warnings to use anynutritional supplements without medical advice. An athlete who is still continuing to takenutritional supplements on his or her own account is violating his or her duty of care. Thus, anathlete’s attitude which complied with his or her duty of care in the past, may not suffice in thefuture.