A. v. Fédération Internationale des Luttes Associées (FILA)

Arbitration CAS 2001/A/317 A. / Fédération Internationale de Luttes Associées (FILA),

Panel: Mr. Dirk-Reiner Martens (Germany), President; Mr. Odd Seim Haugen (Norway); Mr. Jean- Philippe Rochat (Switzerland)

Wrestling Doping (nandrolone) Use of nutritional supplements Strict Liability Rule Mitigating circumstances

1. The legal relations between an athlete and a federation are of a civil nature and do not leave room for the application of principles of criminal law. This is particularly true for the principles of in dubio pro reo and nulla poena sine culpa and the presumption of innocence as enshrined in Art. 6 ECHR.

2. It is perfectly proper for the rules of a sporting federation to establish that the results achieved by an athlete at a competition during which he was under the influence of a prohibited substance must be cancelled irrespective of any guilt on the part of the athlete. This conclusion is the natural consequence of sporting fairness against the other competitors. The interests of the athlete concerned in not being punished without being guilty must give way to the fundamental principle of sport that all competitors must have equal chances.

3. If the federation is able to establish the objective elements of a doping offence, there is a presumption of guilt against the athlete. The principle of presumed fault on the part of the athlete does not, however, leave him without protection because he/she has the right to rebut the presumption, i.e. to establish that the presence of the prohibited substance in his/her body was not due to any intent or negligence on his/her part.

4. An athlete cannot exculpate himself/herself by simply stating that the container of the particular product taken by him/her did not specify that it contained a prohibited substance. It is obvious that the sale of nutritional supplements, many of which are available over the internet and thus sold without an effective governmental control, would go down dramatically if they properly declared that they contain (or could contain) substances prohibited under the rules governing certain sports. Therefore, to allow athletes the excuse that a nutritional supplement was mislabelled would provide an additional incentive for the producers to continue that practice. In summary, therefore, it is no excuse for an athlete found with a prohibited substance in his/her body that he/she checked the label on the product he took and that the label did not specify that the product contained a prohibited substance.

A. / FILA,

A. participated in the XXVII Olympic Games in Sydney as a wrestler in the 85 kg weight category, Greco Roman Style. He finished fourth in his competition which took place on September 27, 2000.

After the end of his competition he underwent a doping control. The A sample (No. A403123) showed the presence of "metabolites of nandrolone, norandrostenedione or norandrostendediol (19-norandrosterone and 19-noretiocholanolone). The concentration of norandrosterone in the sample was more than twice the IOC threshold" (4 ng/ml). In his subsequent request for arbitration A. specified the concentration as having been 8 ng/ml.

By decision of the IOC Executive Board of October 1, 2000, A. was disqualified and excluded from the Games of the XXVII Olympiad for the use of prohibited substances (Chapter II, Article 2.2 of the Olympic Movement Anti-Doping Code). He did not challenge this disqualification.

Upon the request of the athlete’s national delegation, the test of the B-sample (No. B403123) was carried on October 3, 2000 in the presence of Mr. J. Segura and Mr. S. Nolan. No member of the national delegation was present at the opening of the B-sample since the Chef de Mission and all physicians had already left. The test result of the B-sample confirmed the result of the A-sample.

The FILA Sport Judge suspended A. from all national and international wrestling competitions for a period of two years. On November 3, 2000 this decision was notified to the national Wrestling Federation and subsequently communicated by it to A. The athlete and his national Wrestling Federation unsuccessfully challenged this decision before internal FILA instances.

Over a period of several months prior to the Olympic Games in Sydney A. had taken 8 to 10 different vitamins/nutritional supplements in accordance with a schedule developed by his sponsor, the witness L. who is a wholesaler of health products in Sweden. During this period A. underwent several doping control tests which were always negative. Approximately 5 to 6 weeks before the Sydney Olympic Games A. began taking six tablets a day of Pyrovate 500, a nutritional supplement produced by the US-company Pinnacle and recommended and supplied to A. by L.. A. did not undergo a doping test after he began taking Pyrovate 500 until the positive test at the Olympic Games. When already in Australia in a training camp, the athlete’s trainers heard that a weight-lifter had tested positive for nandrolone and that food supplements were suspected to be responsible for this result. As a consequence, the labels of every product taken by A., in particular the Pyrovate 500 label, were checked as to whether the products contained any prohibited substances. The label did not show any such substance and A. continued to take – inter alia – Pyrovate 500. Following the athlete’s positive doping test in Sydney Pyrovate 500 was tested by the IOC accredited laboratory in Cologne. The test revealed the presence of anabolic androgenic steroids (nandrolone precursors) which were not declared on the label.

On January 4, 2001 Appellant filed a request for arbitration with the Court of Arbitration for Sport against the decision of FILA’s Sport Judge of October 24, 2000.

A. / FILA,

By letter dated February 19, 2001 the Respondent filed its response to the request for arbitration.

The Appellant claims that his rights were infringed during the internal FILA-proceedings since he was not given the benefit of a fair hearing before the decision of the FILA Sport Judge. With respect to the merits of the case, the Appellant contends that the Respondent cannot rely on "strict liability". Athletes who have broken the rules without intent or negligence should not be punished. Moreover, since the FILA doping regulations required "use" of a forbidden substance, they themselves showed that an intentional element was required for a doping offence. Since Appellant took the forbidden substance neither intentionally nor negligently, the FILA decision should be annulled. Even if the FILA doping rules were considered to contain a strict liability regime the Panel should take into account that there was a case of exceptional circumstances which did not warrant a suspension in addition to disqualification from the Olympic Games. Regarding the product Pyrovate 500 the Appellant observes that neither he nor his trainer were aware of the fact that this supplement could contain a forbidden substance. Finally, A. adds that all his previous doping tests had been negative and that his clean record should also be considered. In conclusion, the Appellant requests that the FILA decision be declared invalid.

The Respondent requests the CAS to reject the appeal and to confirm the decision to suspend the Appellant for a duration of two years. Since in the case in hand it was not contested that a forbidden substance was found in the Appellant’s body, in the Respondent's view the suspension was correct since the Appellant was unable to show that he had fulfilled all his duties of care. The Respondent submits that high level athletes have known for several years that nutritional supplements available from US-American producers may sometimes contain forbidden substances. In this respect Respondent cites press releases by the IOC issued in 1999 and at the beginning of 2000 as evidence of the level of awareness in the sports world. The fact that the Appellant tested positive after ingestion of a product which contained a prohibited substance not marked on the label could not in itself provide a valid excuse because this would open a wide door to any kind of abuse. However, the Respondent conceded that the special circumstances of the case might allow the sanction to be reduced.

A first hearing was held on April 3, 2001 and a second one on May 15, 2001, both in Lausanne.

LAW

1. The Appellant alleges a violation of his right to be heard since he was not given the opportunity to present his case before the FILA Sport Judge rendered his decision on the suspension.

2. The CAS jurisdiction is based on the arbitration agreement reached by the parties at the hearing of 3 April 2001 but also results from FILA's rules and regulations (Article 37(c) of the FILA Constitution and Article 6 of the FILA Disciplinary Regulations).

A. / FILA,

3. Pursuant to Article R58 of the Code, the Panel is required to decide the dispute according to the applicable regulations of FILA and Swiss law since Respondent has its seat in Switzerland and the parties did not choose a different governing law.

4. Since the doping control and the analysis of the samples took place after the FILA Congress held on September 22, 2000 in Sydney the Panel will apply the FILA Constitution as amended at that Congress (FILA Official Bulletin No. 166-167/2001) and the FILA Doping Regulations as well as the Disciplinary Regulation in force at that time. For the interpretation of the FILA rules the Panel will have special regard to Swiss law in accordance with Article R58 of the Code.

5. Indeed, there is no evidence that the FILA Sport Judge heard the Appellant either personally or by written submissions. It seems that he rendered his decision without further inquiries, only on the basis of the documentation on the disqualification by the IOC, provided to him by FILA.

6. However, the Panel will not deal with this argument in detail. It observes that the CAS has always considered the right to be heard as a general legal principle which has to be respected also during internal proceedings of the federations (CAS 91/53 G. v/ FEI, award of January 15, 1992, Digest, p. 79, 86 f). Federations have the obligation to respect the right to be heard as one of the fundamental principles of due process.

7. However, according to Article R57 of the Code, the Panel will hear the case de novo. This means that, even if a violation of the principle of due process occurred in the first instance, any such violation may be cured by a full hearing following appeal to the CAS (CAS 94/129 USA Shooting & Q. v/ UIT, Digest, p. 187, 203).

8. The Panel is satisfied that the Appellant committed a doping offence under the relevant FILA Rules as interpreted pursuant to Swiss law.

9. Provisions on doping can be found in several places in FILA's regulations (the following quotes are based on the version of the regulations as applicable after the 22 September 2000 FILA Congress).

10. FILA Constitution "Article 9. – Doping The absorption of any substance intended to artificially improve the performance of the athlete is strictly prohibited. The IOC's official list is authoritative." [The French text reads: "L'absorption de toutes substances destinées à accroître artificiellement la performance..."].

11. The FILA Doping Regulations state the following: "Art. 1 – Definition of doping in sport

A. / FILA,

Doping is defined as the use, intake or administration of any substance that may affect the mental state or the physical performance of the competitor in a positive or negative way. ... Doping consists of a) the administration, intake and use of substances belonging to the classes of forbidden pharmacological agents and the use of forbidden methods by athletes..., b) resorting to substances or methods which are potentially dangerous for the athlete's health, or are capable of increasing his performance artificially, c) the presence in the athlete's organisation of forbidden substances or the certification of the use of methods which are not allowed, by referring to the list provided by the IOC and to its successive updates".

12. Art. 27 of the FILA Doping Regulations then makes reference to the IOC Anti-Doping Code by stating: "Art. 27 Particular and Final Provisions ... 2. Concerning anything which is not indicated in these Regulations, the standards and provisions laid down by the IOC's anti-doping code are applicable. ... 6. Bearing in mind that the anti-doping code of the Olympic Movement has been drawn up in close cooperation with the International Federations, it must apply to ... the various Championships ..., to all other competitions organised by the FILA... Therefore, any problems of interpretation of any article in these Regulations or for any question not dealt with here, must be referred to the IOC's Anti-Doping Code Lausanne 2000."

13. Finally, the IOC Anti-Doping Code to which the FILA Doping Regulations refer states that (Chapter II Art. 2 and Art. 3): "Article 2 Doping is: ... 2. the presence in the athlete’s body of a Prohibited Substance or evidence of the use thereof or evidence of the use of a Prohibited Method. Article 3

1. In a case of doping, the penalties for a first offence are as follows: ... b) If the prohibited substance is one other than those referred to in a) above: ... III) Suspension from any competition for a minimum period of two years. However, based on specific, exceptional circumstances to be evaluated in the first instance by the competent IF bodies, there may be a provision for a possible modification of the two-year sanction.

2. In case of a) intentional doping: ... The sanctions are as follows: [sanctions of up to a life ban]"

A. / FILA,

The notion of "intentional doping" is further defined in the IOC's Explanatory Memorandum (p. 9): "With regard to intentional doping, this is a new notion which is added to that of doping as a breach of these rules. The latter exists as soon as the presence of a banned substance has been detected in an athlete's body, independent of any element of intention. Therefore, the athlete has to be punished. Nothing has changed as far as this is concerned. However, in the rare cases where it can be proved that doping was intentional, the Code allows for the imposition of much stricter sanctions..."

14. As to sanctions, Annex D of the FILA Anti-Doping Regulations provides: "Sanctions

1. In the event of proving responsibility, the sanctions laid down by the IOC and quoted in annexe 1 which is an integral part of the FILA anti doping regulations. Any updates by the Olympic Movements will be introduced following deliberation by the Executive Committee and defined as follows: Constitutes a violation of the anti doping standards: A. Administering or use of substances which are part of the following classes of forbidden medication: ... anabolising agents ... B. The use of doping practices ... C. The absorption of substances belonging to the following classes of pharmaceutical classes whose use is subject to restriction: alcohol ... D. The administration or absorption of the following substances: ephedrine ...

2. For violations mentioned in point 1, letters A, B, C, the following sanctions are applicable: - two years for the first offence; - life ban for the second offence."

15. Finally, with regard to sanctions, Art. 26 of the FILA Doping Regulations provides the following: "Art. 26 Violations of the anti-doping standards and the relative sanctions ... 4. The FILA, depending on the case, for positive doping results, can apply heavier sanctions than those laid down in the Regulations. 5. The FILA, through its own justice bodies, can find specific and exceptional attenuating circumstances which will enable the sanctions to be reduced."

16. The Panel finds the provisions on doping in the various FILA regulations rather confusing.

According to the Constitution, doping is the "absorption" of a "substance intended to artificially improve the performance". In turn Art. 1 of the FILA Anti Doping Regulations states that it is sufficient for the substance to "affect" the performance and the same Article declares that "the presence in the athlete's organism of forbidden substances" constitutes a doping offence.

The FILA Doping Regulations then confirm that the IOC Anti Doping Code "must apply" to all FILA competitions and this very IOC Anti-Doping Code states that "Doping is ... the

A. / FILA,

presence in the athlete's body of a Prohibited Substance" and the IOC's Explanatory Memorandum further explains that doping "exists as soon as the presence of a banned substance has been detected in an athlete's body, independent of any element of intention".

17. Finally, according to Annex D of the FILA Anti Doping Regulations there seems to be a requirement of "proving responsibility" in order for sanctions to be imposed. The same can be concluded from Art. 17.21 of the same regulations which provides for sanctions of a "wrestler at fault".

18. The Panel observes that this "cocktail" of definitions and legal principles in connection with the fight against doping certainly falls short of the clarity and certainty desirable in an area as sensitive as doping and as demanded by CAS (CAS 94/129, USA Shooting & Q. v/ UIT, Digest, p. 187, 203). However, in the opinion of the Panel, the lack of clarity in the FILA Regulations does not go quite far enough to justify rejecting them as a whole as being so unclear that they cannot be applied at all. The Panel will therefore apply these rules as they are but will, if necessary, interpret any uncertainties contra stipulatorem, i.e. against FILA.

19. The facts of the case in hand are more straight forward than in most other doping cases:

It is uncontested that a substance prohibited under Art. 6 of the FILA Doping Regulations (metabolites of nandrolone, norandrostenedione or norandrostenediol (19-norandrosterone and 19-noretiocholanolone)) in quantities in excess of that allowed under the FILA rules (2ng/ml according to Article 27.2 of the FILA Doping Regulations; indeed, the Appellant himself states "a level of 8ng/ml of nandrolone") were found in the Appellant's urine sample taken on 27 September 2000. The Appellant admits that he took Pyrovate 500 during the time preceding his doping test and that – according to the findings of the IOC accredited laboratory in Cologne – this product contained anabolic-androgenic-steroids although this was not declared on the label. No challenge has been brought forward with respect to the conduct of the doping test, the chain of custody of the sample or the laboratory analysis.

20. The parties differ in their interpretation of the FILA rules and the consequences to be drawn from them. According to the Appellant "(I)t is clear that athletes, who have not broke the rules of doping with intent or negligently, cannot be punished" (Statement of Appeal dated 5 December 2000), while the Respondent is of the opinion that: "(T)he doping definition resulting from the applicable FILA Regulations is a strict liability definition. If the presence of a doping agent is established, then the sanction applies. No intention has to be shown" (Answer dated 19 February 2000).

21. If, indeed, under the FILA rules no subjective element, i.e. no intent or negligence on the part of the athlete were required for a doping offence to have been committed the Panel would in principle have to apply the two-year sanction provided for in Annex D, Section 2 of the FILA Doping Regulations and would be limited to evaluating whether there are "specific and

A. / FILA,

exceptional attenuating circumstances which will enable the sanctions to be reduced" (Art. 26, Section 5 of the FILA Doping Regulations).

22. However, the Panel is of the opinion that as a matter of principle and irrespective of "specific and exceptional circumstances" an athlete cannot be banned from competition for having committed a doping offence unless he is guilty, i.e. he has acted with intent or negligence. Even if the rules and regulations of a sports federation do not expressly provide that the guilt of the athlete has to be taken into account the foregoing principle will have to be read into these rules to make them legally acceptable.

23. CAS panels have to interpret the rules in question in a way “which seeks to discern the intention of the rule maker, and not to frustrate it” (CAS 96/149 A.C. v/ FINA, award of March 13, 1997, Digest, p. 251, 259). In interpreting the FILA rules the Panel does not find any indication that they intended to ignore the subjective elements as such. Since the Panel is of the opinion that under Swiss law an athlete cannot validly be banned in the absence of any fault (see infra), an interpretation to the contrary would lead to the rules being void which would frustrate the objective of the fight against doping pursued by the entire sporting world.

24. Before explaining the reasons for the principle of guilt the Panel wishes to clarify that this principle does not apply to the disqualification of a "doped athlete" from the event at which the doping test was conducted. It is therefore perfectly proper for the rules of a sporting federation to establish that the results achieved by a "doped athlete" at a competition during which he was under the influence of a prohibited substance must be cancelled irrespective of any guilt on the part of the athlete. This conclusion is the natural consequence of sporting fairness against the other competitors. The interests of the athlete concerned in not being punished without being guilty must give way to the fundamental principle of sport that all competitors must have equal chances (CAS 94/129 USA Shooting & Q. v/ UIT, Digest, p. 187, 193 et seq.; CAS 95/141 C. v/ FINA, Digest, p. 215, 220; CAS 98/214 B. v/ FIJ, p. 17; CAS 94/126 N. v/ FEI, p. 8).

25. The Panel comes to a different conclusion with regard to the suspension of an athlete from future competition. The so-called "strict liability" rule, i.e. a rule as advocated by the Respondent according to which the mere presence of a prohibited substance in an athlete's body justifies his suspension, does not, in the Panel's opinion, sufficiently respect the athlete's right of personality ("Persönlichkeitsrecht") as established in Articles 20 and 27 et seq. of the Swiss Civil Code which CAS panels are required to apply (Art. 58 of the Code of Sports- related Arbitration). In fact, under Swiss law also sporting federations are under a duty to respect the framework established by Articles 20 and 27 et seq. Swiss Civil Code (BADDELEY M., L'association sportive face au droit, Basel et al. 1994, p. 227).

26. As a preliminary remark the Panel wishes to clarify that the legal relations between an athlete and a federation are of a civil nature and do not leave room for the application of principles of criminal law. This is particularly true for the principles of in dubio pro reo and nulla poena sine culpa and the presumption of innocence as enshrined in Art. 6 ECHR (Swiss Federal Tribunal, ASA Bull. 1993, p. 398, 409 et seq. [G. v/ FEI] and Swiss Federal Tribunal judgment of March

A. / FILA,

31, 1999 [5P. 83/1999], unreported, p. 12; see also BADDELEY M., op. cit., p. 220; SCHERRER U., in: FRITZWEILER J. (ed), Doping-Sanktionen, Beweise, Ansprüche, Bern et al. 2000, p. 119, 127).

27. When deciding whether a "strict liability" rule is proper under Swiss law, the Panel has to weigh the interests of the federation against those of the athlete, in particular his right of personality (see BADDELEY M., op. cit., p. 239).

28. In recent times the fight against doping has become sport's most burning problem. At times, public attention and, in particular, that of the media is focused more on whether the athletes are under the influence of doping substances than on the sporting event itself and its results. This development is a very serious threat to the entire sporting movement and, indirectly, to an industry which accounts for an important percentage of the world economy.

29. It is obvious that it would be an important weapon in the fight against doping if the federations were able to impose sanctions on athletes who have tested positive, without having to establish any element of guilt on the part of the athlete. However, this argument, which is one of prevention and deterrence, loses sight of the general objective of doping sanctions, namely the punishment of the athlete for having violated the rules (BADDELEY M., op. cit., p. 219).

30. On the other hand, it has to be recognised that in professional sport doping sanctions have the effect of restraining the athlete from carrying out his chosen trade and thus from earning a living for a certain period of time. In addition, doping sanctions clearly affect the honour and social standing of the athlete concerned and are a stigma on his future.

31. When weighing up the interests of both sides the Panel is of the view that the interests of the athlete take precedence over those of the federation to enforce a rule of "strict liability". The contrary view would only be acceptable if a strict liability rule were the only meaningful weapon in the fight against doping. (see BADDELEY M., in: FRITZWEILER J. (ed), op. cit., p. 9, 22; SCHERRER U., op. cit., p. 119, 127; see also CAS 95/142 L. v/ FINA, Digest, p. 225, 231). As will be shown below, there are other means, in particular when allocating the burden of proof, to ensure an effective fight against doping without accepting the risk of sanctioning an athlete who is not guilty of an offence or whose level of guilt does not justify the full extent of the sanction.

32. The Panel further notes that in a recent decision the Court of Appeals of Frankfurt/Main, Germany also held that liability without fault was incompatible with the rights of the athlete and German law (OLG Frankfurt/Main, judgment of May 18, 2000, 13W29/00 [B. v/ DLV] p. 15).

33. Having established the principle that the suspension of an athlete for a doping offence requires fault on his/her part, this does not, in the Panel's view, mean that it is for the federation to provide full proof of every element of the offence, as is necessary in respect of a criminal act for which a presumption of innocence operates in favour of the accused. There is

A. / FILA,

no doubt that the federation has to establish and – if contested – to prove the objective elements of the offence, in particular, for example, that the sample was taken properly, that there was a complete chain of custody of the sample on its way to the laboratory and that the analysis of the sample was state-of-the-art. This follows from the general rule that a person who alleges a fact has the burden of proof (CAS 98/208 N., J., Y., W. v/ FINA, Digest II, p. 247; CAS 99/A/234 & CAS 99/A/235 M.M. & M. v/ FINA, award of February 29, 2000, p. 14).

34. However, it would put a definite end to any meaningful fight against doping if the federations were required to prove the necessary subjective elements of the offence, i.e. intent or negligence on the part of the athlete (CAS 95/141 C. v/ FINA, Digest, p. 215, 220; CAS 98/214 B. v/ FIJ, Digest II, p. 318 et seq.). In fact, since neither the federation nor the CAS has the means of conducting its own investigation or of compelling witnesses to give evidence, means which are available to the public prosecutor in criminal proceedings, it would be all too simple for an athlete to deny any intent or negligence and to simply state that he/she has no idea how the prohibited substance arrived in his/her system (see CAS 96/156 F. v/ FINA).

35. For this reason the Panel believes that, with regard to the subjective elements of a doping offence, when weighing the interests of the federation to combat doping and those of the athlete not to be punished without fault, the scales tip in favour of the fight against doping. In fact, doping only happens in the sphere of the athlete: he/she is in control of his/her body, of what he/she eats and drinks, of who has access to his/her nutrition, of what medication he/she takes, etc. In these circumstances it is appropriate to presume that the athlete has knowingly or at least negligently consumed the substance which has lead to the positive doping test (see also: BADDELEY M., op. cit., p. 243; BELOFF M., Drugs, Laws and Versapaks, in O'LEARY J. (ed.), Drugs and Doping in Sport, London 2000, p. 39, 49; STEINER U., Doping aus verfassungsrechtlicher Sicht, in RÖHRICHT/VIEWEG (eds.), Doping Forum, Stuttgart et al. 2000, p. 125, 134; BADDELEY M., in: FRITZWEILER (ed.), op. cit., p. 9, 22).

36. Therefore, if the federation is able to establish the objective elements of a doping offence, there is a presumption of guilt against the athlete.

37. The principle of presumed fault on the part of the athlete does not, however, leave him without protection because he/she has the right to rebut the presumption, i.e. to establish that the presence of the prohibited substance in his/her body was not due to any intent or negligence on his/her part (CAS 95/141 C. v/ FINA, Digest, p. 215, 220 et seq.; CAS 98/214 B. v/ FIJ, Digest II, p. 319). The athlete may for example provide evidence that the presence of the forbidden substance is the result of an act of malicious intent by a third party (CAS 91/56 S. v/ FEI, Digest, p. 93, 97; CAS 92/63 G. v/ FEI, Digest, p. 115, 121; CAS 92/73 N. v/FEI, Digest, p. 153, 157).

38. It is noteworthy that the Swiss Federal Tribunal has accepted an interpretation of doping rules to the effect that it is admissible to presume an athlete's guilt if he/she has been tested positive for a prohibited substance. The athlete is then accorded the opportunity to rebut the

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presumption (Swiss Federal Tribunal, Digest, p. 561, 575 [G. v/ FEI]; Swiss Federal Tribunal, 5P.83/1999 [W., C., Z., W. v/ FINA], p. 12).

39. The principle of presumption of guilt and rebuttal thereof by the athlete has also been applied by several CAS decisions, not only with respect of the rules of the FEI which expressly provide for a presumption of guilt, but also in connection with regulations which appear to follow a system of liability without fault (see CAS 91/56 S. v/ FEI, Digest, p. 93, 95; CAS 92/63 G. v/ FEI, p. 115, 120; CAS 92/73 N. v/ FEI, Digest, p. 153, 157; CAS 92/86 W. v/ FEI, Digest, p. 161, 163; CAS 98/204 R. v/ FEI, p. 8; CAS 91/53 G. v/ FEI, Digest, p. 79, 87; see especially: CAS 95/141 C. v/ FINA, Digest, p. 215, 220; CAS 96/156 F. v/ FINA, p. 40 et seq.; CAS 98/214 B. v/ FIJ, Digest II, p. 319; CAS 99/A/252 FCLP v/ IWF, p. 22 et seq.; CAS 2000/A/309 R. v/ RLVB, p. 5). On the other hand, the Panel is conscious of the fact that there have been CAS decisions where the Panel was prepared to apply a strict liability standard with respect to suspensions and was not willing to take into account the subjective elements of the case in questions (see: CAS 98/208 N., J., Y., W.. v/ FINA, Digest II, p. 25; CAS 98/222 B. v/ ITU, Digest II, p. 336-337; see also: CAS 95/150 V. v/ FINA, Digest, p. 265, 272). However, it should be noted that all these decisions took account of the level of "guilt" on the part of the athlete when establishing the duration of the suspension. It can also be taken from these awards that their reasoning was often based on arguments invoked to justify a simple disqualification. They did not consider the very purpose of suspensions as opposed to a mere disqualification and the differences between them. For these reasons the Panel is not prepared to follow these decisions.

40. The Panel recognises that the opinions of the courts and legal authorities differ as to whether the reversal of the burden of proof puts too much burden on the athlete. As an example the OLG Frankfurt in its decision of 18 May 2000 (see above) is in favour of a rule pursuant to which the presence of a prohibited substance in an athlete's body provides prima facie evidence of guilt on the part of the athlete; this leaves the athlete with the burden of proving that, in his/her particular case, the facts were different from the normal sequence of events. In many cases the practical results of both scenarios – a reversal of the burden of proof or the rebuttal of prima facie evidence – will be the same, but the Panel does recognise that the burden on the athlete is slightly less in the latter case. The Panel does, however, believe that, as a matter of principle, the reversal of the burden of proof and thus the burden being on the athlete to provide full proof of the absence of intent or negligence, is adequate and appropriate when weighing the interests of both sides.

In the case in hand, in which none of the objective elements of the offence is in dispute, the Appellant is thus presumed do have intentionally or negligently committed the offence.

41. As has been shown above, the burden is on the Appellant to prove that he is not guilty of a doping offence. To this end, the Panel took the testimony of several witnesses proffered by the Appellant.

42. It is the opinion of the Panel that the Appellant has not succeeded in proving that he was without fault.

A. / FILA,

43. The Appellant contends that he was not aware that Pyrovate 500 contained a substance which was the source of his positive doping test in Sydney.

44. In fact, the Panel accepts, in the Appellant's favour, that he did not intentionally take a prohibited substance, in other words, that he did not know that Pyrovate 500 contained precursors of nandrolone. The Panel further assumes, in the Appellant's favour, that his use of Pyrovate 500 was in fact the cause for his positive doping test in Sydney.

45. However, the Panel is of the opinion that under the circumstances the Appellant acted negligently when he took Pyrovate 500 without making certain that it did not contain a prohibited substance.

46. As a general remark, the Panel observes that the sporting world has, for quite some time even before the 2000 Sydney Games, been well aware of the risks in connection with using so called nutritional supplements, i.e. the risk that they may be contaminated or, in fact, "spiked" with anabolic steroids without this being declared on the labels of the containers. There have been several cases of positive tests for nandrolone which have been attributed to nutritional supplements and which have been widely publicised in the sports press. This fact was the likely motive for the IOC press releases in October 1999 and February 2000 which give an unequivocal warning about the use of imported and unlicensed nutritional supplements and their possible mislabelling.

47. Under these circumstances it is certainly not a valid excuse for an athlete to contend that he/she – personally – was not aware of these warnings. In fact, athletes are presumed to have knowledge of information which is in the public domain. In this context, the Panel notes that there is CAS case law to the effect that athletes are themselves soley responsible for, inter alia, the medication they take and that even a medical prescription from a doctor is no excuse for the athlete (CAS 92/73, N. v/ FEI, Digest, p. 153, 158). Furthermore an athlete cannot exculpate himself/herself by simply stating that the container of the particular product taken by him/her did not specify that it contained a prohibited substance. It is obvious that the sale of nutritional supplements, many of which are available over the internet and thus sold without an effective governmental control, would go down dramatically if they properly declared that they contain (or could contain) substances prohibited under the rules governing certain sports. Therefore, to allow athletes the excuse that a nutritional supplement was mislabelled would provide an additional incentive for the producers to continue that practice. In summary, therefore, it is no excuse for an athlete found with a prohibited substance in his/her body that he/she checked the label on the product he took and that the label did not specify that the product contained a prohibited substance.

48. The Panel can leave open the question whether a "doped athlete" can be sanctioned on the basis alone that he/she knew (or is presumed to have known) the risk involved in taking nutritional supplements which may contain a prohibited substance not declared on the label. In the case in hand there are additional elements which establish negligence on the Appellant's part:

A. / FILA,

49. In his statement before this Panel the Appellant admitted that during his training camp before the Olympic Games he had been informed that a weightlifter had tested positive for nandrolone and that nutritional supplements were suspected to be the cause of his positive test. At that point in time at the very latest the Appellant should have ceased taking a nutritional supplement which, it should be noted, was not prescribed to him by a medical doctor but was supplied by his "sponsor", a wholesaler of health products with a direct economic interest in marketing (and testing) these products in the sports world.

50. The rules and regulations of the Respondent (and of the IOC) provide for a two-year sanction in the case of a positive doping test for nandrolone. Even though it is well established that a two-year suspension for a first time doping offence is legally acceptable, there are several CAS decisions according to which a sanction may not be disproportionate and must always reflect the extent of the athlete's guilt (CAS 95/141 C. v/ FINA, Digest, p 215, 222; CAS 92/73 N. v/ FEI, Digest, p. 153, 159; CAS 96/156 F. v/ FINA, p. 48). Therefore, this Panel in its capacity as an appeals body enjoys the same discretion in fixing the extent of the sanction as the Respondent's internal instances (Art. 26.5 of the FILA Doping Regulations, see above). In fact, the Panel would enjoy this discretion even if there were no "exceptional attenuating circumstances".

51. When taking into consideration all the elements of this case, in particular the fact that the Appellant acted negligently but without intent to indulge in doping, the Panel is of the view that, based on the evidence produced, there are mitigating circumstances which warrant a reduction of the maximum penalty allowed under the rules and regulations of the Respondent. As a result, the Panel is of the opinion that it is adequate and appropriate to suspend the Appellant for 15 months. As regards the date upon which the suspension should begin, the Panel takes note of the fact that the sanction imposed by the Respondent started to run on the date the test was carried out (27 September 2000). The Panel sees no reason why it should change this date. Therefore, the Appellant's suspension will last until 26 December 2001.

The Court of Arbitration for Sport rules:

1. The appeal filed by A. on 3 January 2001 is partially upheld.

2. The decision of the FILA Sport Judge of 24 October 2000 shall be modified as follows: A. is suspended for a period of 15 months from 27 September 2000 to 26 December 2001.

3. (…).