Lexipedia

Roberto La Barbera v. International Wheelchair & Amputee Sports Federation (IWAS)

Arbitration CAS 2010/A/2277 Roberto La Barbera v. International Wheelchair & Amputee Sports Federation (IWAS), award of 2 May 2011

Panel: Mr Conny Jörneklint (Sweden), President; Mr José Juan Pinto (Spain); Judge James Robert Reid (United Kingdom)

Paralympic athletics Doping (stanozolol) Departure from the International Standard for Testing (no) Balance of probability Requirement of establishing how the Prohibited Substance entered the athlete’s system Absence of fault or negligence (no)

1. The doping control form is intended to provide contemporaneous record of the doping control procedure. While an athlete’s signature does not amount to a waiver of the athlete’s right to later allege that the requirements of the International Standard for Testing (IST) have been breached, such signature is of potential evidential value in determining whether the procedures set out in the IST have been complied with. The athlete’s plain signature of the doping control records expresses his approval of the procedure and prevents him – short of compelling evidence of manipulation of the records or fraud or any similar facts – from raising any such issue at a later stage.

2. The balance of probability standard means that the indicted athlete bears the burden of persuading the judging body that the occurrence of the circumstances on which he relies is more probable than their non-occurrence or more probable than other possible explanations of the doping offence.

3. The requirement of showing how the Prohibited Substance got into the athlete’s system must be enforced quite strictly since, if the manner in which a substance entered an athlete’s system is unknown or unclear, it is logically difficult to determine whether the athlete has taken precautions in attempting to prevent such occurrence. Consequently, the “threshold” requirement of proof means not only that the athlete must show the route of administration but that he must be able to prove the factual circumstances in which administration occurred. One hypothetical source of a positive test does not prove to the level of satisfaction required that such explanations are factually or scientifically probable. Mere speculation is not proof that it did actually occur.

4. Athletes are responsible for what they ingest. Taking into account the strict liability principle resulting therefrom, in order to establish No Fault or Negligence, the athlete must prove that he did not know or suspect, and could not reasonably have known or suspected, even with the exercise of utmost care, that he had used or been administered with the prohibited substance.

The Appellant, Mr Roberto La Barbera (“Mr La Barbera”), an Italian citizen, was born on 25 February 1967. Mr La Barbera has been competing for over a decade in athletics, namely the 400 meters, the long jump as well as the pentathlon in class T44 and F44 (below-knee amputation).

The Respondent, International Wheelchair & Amputee Sports Federation (IWAS), is the international federation governing sports for disabled people in wheelchairs or who are amputees. The IWAS maintains its seat in Bucks, United Kingdom.

From 4 to 6 June 2010, Mr La Barbera competed at the IWAS Athletics European Open Championships in Stadskanaal in The Netherlands (“the Event”).

On 6 June 2010, Mr La Barbera won the long jump competition and was thereafter notified that he had to provide a sample for doping control.

In agreement with the International Paralympic Committee, the IWAS was responsible for all doping control carried out at the Event and was the results management authority for all samples. The actual sample collection was conducted on behalf of the IWAS by the Doping Autoriteit (the Netherlands Anti-Doping Authority).

The sample collected was sent to the WADA-accredited Institute of Biochemistry, German Sport University Cologne (the “Cologne Lab”), for analysis.

The urine sample provided by Mr La Barbera revealed the presence of Stanozolol and 16β- hydroxystanozol, a metabolite of Stanozolol, a prohibited substance appearing on the WADA 2010 Prohibited List under category S1(1)(a), exogenous anabolic androgenic steroid.

On 22 July 2010, Mr La Barbera was notified by the IWAS of the adverse analytical finding, namely that his A Sample had been tested positive, as well as of his provisional suspension from the date of the notification.

On 27 July 2010, Mr La Barbera accepted the provisional suspension as of 22 July 2010, but did not accept the result of the A Sample and requested the B Sample to be analyzed as well as a hearing.

On 3 August 2010, the Cologne Lab confirmed the adverse analytical finding made in respect of the A Sample.

On 11 August 2010, Mr La Barbera was notified of the adverse analytical finding.

On 7 September and 7 October 2010, a hearing took place before the IWAS Anti-Doping Committee (“The IWAS Tribunal”) and was attended by both parties and their counsel.

On 20 October 2010, the decision issued by the IWAS Tribunal confirmed the doping offence, ruled that Mr La Barbera was automatically disqualified of his individual results obtained in the IWAS Athletic European Championships and any competition subsequent to the Sample collection on 6 June 2010, including the forfeiture of any medals, points and prizes won. Additionally, the IWAS

Tribunal declared Mr La Barbera ineligible for a period of two years commencing as from the date of the provisional suspension, i.e. from 22 July 2010 until 22 July 2012.

In its decision, the IWAS Tribunal had to address two issues raised by Mr La Barbera:

  • First, Mr La Barbera contended that the sample collection procedure had been flawed. To that regard, the IWAS Tribunal held that “the doping control form records clearly the Urine Collection Vessel numbers, and the matching seal numbers, for the partial samples. The athlete and the doping control officer both signed the doping control form, and the athlete recorded no remarks in the “comments” box about unsealed vessels, or the handling of samples by other people”. While Mr La Barbera argued that he did not know that there had been a violation of the procedure at the time he signed the doping control and that, as a clean athlete, he had no idea of such flaw until he was notified of the positive result, the IWAS Tribunal pointed out that Mr La Barbera was an experienced athlete who, should he have had any serious concerns with the sealing of the samples, their handling by others or non- attendance by a chaperone, would not have signed off the doping form. As a consequence, the IWAS Tribunal ruled that: “[i]n these circumstances, and in the absence of any other evidence of procedural irregularities in the sample collection forwarded by the athlete aside from his word, the Hearing Panel must take the documents signed by the DCO and the athlete at face value. The Hearing Panel must consider the procedure to have been completed correctly. The doping control officer was experienced, and no reason is given to doubt the integrity of his process. As such, the Hearing Panel rejects the athlete’s claim that the problems with the doping control collection make the result unsound”.

  • Second, Mr La Barbera contended that he had been inadvertently contaminated by the prohibited substance after having treated his wife’s dogs. The IWAS Tribunal ruled that the possession of the prohibited substance had been documented, but accepted as an “acceptable justification” according to Art. 2.6.1 of the IWAS Anti-Doping Code (the “IWAS Code”). The Tribunal however considered that “the possible contamination by contact with this veterinary product has not been established by the athlete. Aside from his word, the athlete has provided no further evidence at all in the form of witness statements, scientific material, or anything to corroborate his story. […]. Moreover, the Panel is not aware of any reports in scientific literature which describe such kind of contamination through the skin. As such, the Hearing Panel has found that an anti-doping rule violation of Article 2.1 of the IWAS Code, “Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample” was committed by the athlete”. The Tribunal further added that the athlete had produced no evidence aside from his word as to how the prohibited substance entered his system. As a consequence, the Tribunal held that “[i]n this matter, the Hearing Panel cannot be satisfied on the balance of probabilities about how the substance entered the Respondent’s system and, accordingly must deny any elimination or reduction of sanction under Article 10.5 of the IWAS Code”.

Based upon what precedes, the IWAS Tribunal confirmed the doping offence and ruled in the sense described under para. 2.12 and 2.13 above. On 20 October 2010, the IWAS Executive Management Committee on behalf of the IWAS Executive Board ratified the decision of the Tribunal.

On 17 November 2010, Mr La Barbera filed with the CAS its statement of appeal against the decision of the IWAS Tribunal, and expressly invited the CAS to consider the statement of appeal as the appeal brief. The timeliness of the appeal filed by Mr La Barbera is undisputed.

On 1st December 2010, IWAS informed the CAS that the parties had agreed to extend the deadline to file the answer until 20 December 2010.

On 20 December 2010, IWAS filed with the CAS its answer to Mr La Barbera’s appeal brief.

A hearing was held on 25 March 2011 at the CAS premises in Lausanne. All the members of the Panel were present. The parties did not raise any objection as to the constitution and composition of the Panel or any further procedural issue.

The following persons attended the hearing:

  • Mr La Barbera, accompanied by his attorneys, Mr Stefano Comellini, assisted by Mr Ardingo Scarzella, as well as an interpreter, Mrs Claudia Chiaperotti.

  • For the IWAS: Mrs Anna-Marie Blakeley, solicitor.

The Panel heard evidence from the following persons:

  • Mr La Barbera;

  • Mr Cor Van Weert, the doping control officer (“DCO”), through a conference call.

Mr Cor Van Weert’s had issued two witness statements, one on 16 September 2010, and another one on 17 December 2010 that shall be more specifically addressed here.

  • Mr Van Weert was the DCO responsible for the collection of samples from male athletes during the IWAS Athletics European Open Championships, while another DCO was responsible for collecting the female samples. Both were supported by four chaperones who were in charge of escorting the athletes to the control and supervising them throughout the control. Four athletes got tested during the Event: three males and a female.

  • The doping control station consisted of two rooms: one large reception room and a separate toilet. There was only one door to the doping control station and the DCO had the set of keys to lock that door; all the windows were closed. Either Mr Van Weert or his colleague were always present in the doping control station to ensure that the samples were supervised and secured. Set aside both DCOs, the only people who entered the doping control station were the four tested athletes and the chaperones, to the exclusion of anyone else.

  • Any sample collection starts by asking the athlete to select a collection kit on the table, then by asking him or her to confirm that he or she is satisfied that the sealed collection kit selected has not been tampered with. The athlete is then invited to open the chosen collection kit and to provide the required amount of urine into the urine collection vessel (“UCV”) contained in the kit. Assuming that an insufficient amount of urine is produced (i.e. less than 90 ml), the athlete is requested to close the lid of the UCV to ensure that none of the sample is spilled; he or she is then asked to select a so-called “void seal” from a number laid out on the table, in order for the DCO to seal the UCV with it. The “void seal” ensures that the samples have not been tampered with, or a “void” mark will be perceived on the UCV. The DCO then fills in the relevant section of the doping control form, recording the unique number of both the UCV and the seal, and asks the athlete to confirm that these numbers are correct. The athlete is then

invited to return to the waiting room until he or she is able to produce a further sample. That procedure repeats itself until the athlete has been able to provide a sufficient quantity of urine. Once a sufficient quantity of urine has been provided, the DCO checks the numbers on the UCV and the void seal with the numbers that are noted on the doping control form with the athlete, and check that there is no evidence of tampering. When three partial samples have been filled in to provide the requisite level of urine – as has been the case with Mr La Barbera – the DCO instructs the athlete to open the spouts of the UCV of the first partial sample and second partial sample and then pour the second partial sample into the first partial sample; the same operation will be conducted to pour the third partial sample into the first sample, until the requisite quantity of urine is met. The DCO then fills in the missing part of the doping control form, takes the athlete through the form and check that he or she is satisfied that the code number on the transportation box is the same as the bottle code numbers written on the form. The athlete is finally asked to insert details of any medication taken recently, and to confirm whether he or she was satisfied with the sample collection procedure or has any comment related thereto before signing the form. - In the present case, Mr Van Weert remembers that Mr La Barbera came to the doping control station accompanied by a chaperone, at the exclusion of anyone else, at 12:12pm as stated on the form. The doping control form records that Mr La Barbera provided three samples: (i) the first UCV chosen by the athlete was numbered M395218 and was sealed with the void seal number 3692272; (ii) the second was numbered M397515 and sealed with the void seal number 3692348, and (iii) the third was numbered M397517, but did not need to be sealed as there was sufficient urine at that point and that all samples could be combined according to the procedure described above. While Mr Van Weert confirms that Mr La Barbera left the doping control station with his permission to attend the medal ceremony, Mr Van Weert affirms that Mr La Barbera was at all times chaperoned. The athlete came back after ten to thirty minutes to resume the collection sample that was completed at 13:31pm. Apart from the medal ceremony, Mr Van

Weert does not remember anything out of the ordinary with the collection procedure, as confirmed by the signature of Mr La Barbera on the doping control form.

At the hearing, Mr Van Weert confirmed his written statements.

Neither during nor after the hearing did the parties raise with the Panel any objection as to the respect of their right to be heard and to be treated equally in these arbitration proceedings.

LAW

Jurisdiction

1. The jurisdiction of the CAS to act as an appeal body is based on Art. R47 of the CAS Code of Sports-related Arbitration in the version in force as of January 2010 (“the CAS Code”) which provides that:

“An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body”.

2. According to Art. 13.2.1 of the IWAS Code: “In cases arising from participation in an International Event or in cases involving International-Level Athletes, the decision may be appealed exclusively to CAS in accordance with the provisions applicable before such court”.

3. The concerned event being the IWAS Athletics European Open Championships, the CAS has jurisdiction in compliance with the afore mentioned provision, as explicitly recognized by the parties in the Order of Procedure that they signed on 24 February 2011 (IWAS) and 28 February 2011 (Mr La Barbera).

Admissibility of the appeal

4. According to Art. 13.5 of the IWAS Code: “The time to file an appeal to CAS shall be twenty-one (21) days from the date of receipt of the decision by the appealing party. […]”.

5. The decision of the IWAS Tribunal was issued on 20 October 2010 and notified to Mr La Barbera on 28 October 2010. Mr La Barbera filed a statement of appeal against this decision to the CAS on 17 November 2010.

6. The appeal of Mr La Barbera, whose timeliness is not disputed, is therefore admissible.

Applicable law

7. Art. R58 of the CAS Code provides that: “The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

8. The above mentioned provision was expressly mentioned in the Order of Procedure and was accepted by all the parties.

9. It is common ground between the parties that the applicable regulations in this case are the IWAS Code. The IWAS has its seat in Bucks, United Kingdom, thus leading to the application of English law. Therefore, the IWAS Code shall apply primarily and English Law shall apply complementarily.

Merits

10. The main issues to be resolved by the Panel are: A. Has there been a valid adverse analytical finding with respect to Mr La Barbera’s urine sample? B. If a doping offence has been committed, can Mr La Barbera prove, considering the required standard of evidence, how the prohibited substance entered his system? C. If Mr La Barbera can meet the relevant requirements of evidence of the prior question, was he acting with no fault or negligence or with no significant fault or negligence?

A. Adverse analytical finding

a) Applicable provisions

11. According to Art. 2.1 of the IWAS Code: “Presence of a Prohibited Substance of its Metabolites or Markers in an Athlete’s Sample 2.1.1: It is each Athlete’s personal duty to ensure that no Prohibited Substances enter his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping violation under Article 2.1. 2.1.2: Sufficient proof of an anti-doping rule violation under Article 2.1 is established by either of the following: presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample where the Athlete waives analysis of the B Sample and the B Sample is not analyzed; or, where the Athlete’s B Sample is analyzed and the analysis of the Athlete’s B Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the Athlete’s A Sample.

12. As to the burden of proof, Art. 3.1 of the IWAS Code provides that: “The IWAS shall have the burden of establishing that an anti-doping violation has occurred. The standard of proof shall be whether the IWAS has established an anti-doping rule violation to the comfortable satisfaction of the hearing body bearing in mind the seriousness of the allegation, which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where these rules place the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability except as provided in Articles 10.4 and 10.6 where the Athlete must satisfy a higher burden of proof”.

13. Art. 3.2 of the IWAS Code further adds that: “Facts related to anti-doping rule violations may be established by any reliable means, including admissions. The following rules shall be applicable in doping cases.

3.2.1: WADA-accredited laboratories are presumed to have conducted Sample Analysis and custodial procedures in accordance with the WADC International Standard for Laboratories. The Athlete or other Person may rebut this presumption by establishing that a departure from the International Standard, for Laboratories undermining the validity of Adverse Analytical Finding, occurred which could reasonably have caused the Adverse Analytical Finding. […] 3.2.2: Departures from any other International Standard or other anti-doping rule or policy which did not cause an Adverse Analytical Finding or other anti-doping rule violation shall not invalidate such Results. If the Athlete or other Person establishes that a departure from the International Standard or other anti-doping rule violation occurred, then the IWAS shall have the burden to establish that such departure did not cause the Adverse Analytical Finding or the factual basis for the anti-doping rule violation”.

b) Present case

14. In the present case, the IWAS has met its burden of proof as foreseen under Art. 3.1 of the IWAS Code. The Cologne Lab has reported an adverse analytical finding for Stanozolol and 16β-hydroxystanozolol, a metabolite of Stanozolol, classified in the World Anti-Doping Agency 2010 Prohibited List as a S1(1)(a) exogenous anabolic androgenic steroid, for both the A and B Samples. According to Art. 4.1 of the IWAS Code, “the Prohibited List adopted by the IWAS is the WADC Prohibited List published and revised by WADA”. Sufficient proof of an anti-doping rule violation under Art. 2.1 of the IWAS Code has thus been established by the IWAS, in compliance with Art. 2.1.2 of the IWAS Code. It remains to be seen whether Mr La Barbera has successfully rebutted that finding on a balance of probability, as foreseen under Art. 3.2.1 or 3.2.2 of the IWAS Code.

15. It is not disputed that the Cologne Lab is a WADA-accredited laboratory. Mr La Barbera does not allege that the Cologne Lab would have departed from the WADC International Standard for Laboratories as foreseen under Art. 3.2.1 of the IWAS Code. The application of Art. 3.2.1 of the IWAS Code can therefore be ruled out by the Panel.

16. Rather, Mr La Barbera argues that the doping control procedure would have departed from the IST. To prevail on that argument, Mr La Barbera has to satisfy the burden of proof foreseen under Art. 3.2.2 of the IWAS Code, i.e. to establish “[…] a departure from the International Standard or other anti-doping rule or policy which could reasonably have caused the Adverse Analytical Finding or other anti-doping rule occurred […]”. In spite of Mr La Barbera’s assertions, the Panel sees no reason to depart from the IWAS Tribunal’s decision for the reasons described below.

17. On appeal, Mr La Barbera limited himself to repeat the grievances he has already alleged in front of the IWAS Tribunal. In spite of Mr La Barbera’s allegations, there are no contradictions or inconsistencies in Mr Van Weert’s witness statements. The time the sample collection procedure took place is clearly referred to in the doping control form, with an arrival date at 12:12pm, and a finishing time at 13:31pm. Mr Van Weert has made it clear that, while Mr La Barbera had indeed left the doping control station to attend the medal ceremony, he had at all times been chaperoned. Mr Van Weert has further added that there had always been at least one DCO at any time in the doping control station to supervise and secure the samples. All in

all, the Panel is of the opinion that Mr Van Weert was extremely clear as to the way the procedure got conducted, and explained in detail the way the doping control test had been carried out with the three samples, the respective numbers of each UCV and void seal, as well as the procedure to combine these samples. Mr Van Weert’s explanations are consistent with the International Standard for Testing (IST), in particular its Article F.4.

18. While Mr La Barbera argues that his signature at the bottom of the doping control form cannot be construed as an acceptance of the way the doping control procedure took place as he does neither speak Dutch, nor English nor French, such an argument cannot be accepted. In ITF v. Hingis, 3 January 2008, the Anti-Doping Tribunal has correctly made it clear that the doping control form is intended to provide contemporaneous record of the process precisely because accurate and detailed recollection is unlikely; while an athlete signature does not amount to a waiver of the athlete’s right to later allege that the requirements of the IST have been breached, such signature is of potential evidential value in determining whether [the procedures set out in the IST] have been complied with. Going even further, the CAS held in CAS 2003/A/493 that the appellant’s plain signature of the doping control records expresses his approval of the procedure and prevents him – short of compelling evidence of manipulation of the records or fraud or any similar facts – from raising any such issue at a later stage. As correctly held by the IWAS Tribunal, it was up to Mr La Barbera to ask for further explanation if he did not understand the form; by having omitted to do so, Mr La Barbera has to support the consequences of his own negligence. As a result, the Panel is of the opinion that Mr La Barbera has been unable to put forward any convincing ground to reject the statements made by Mr Van Weert, an experienced DCO.

19. Even if the Panel was to accept that there had been any departure from the IST, which it does not, Mr La Barbera has been unable to prove that any alleged departure could reasonably have caused the adverse analytical finding. Mr La Barbera merely assumes that, due to his attendance to the medal ceremony, “the chain of custody of the samples was broken and there is no prove [sic] that the urine examined in the lab is really coming from the athlete”. Mr La Barbera’s line of argument amounts to mere speculation without any supporting facts. Mr Van Weert made it clear that there had always been at all times a DCO to supervise and to secure the samples, so that there has never been any break in the chain of custody. Mr La Barbera does not allege that the samples referred to in the doping control form were not his own; he even admits that he has no basis to argue that “someone did something to stitch him up”. No evidence was presented by Mr La Barbera neither that someone could have tampered with his sample nor how such tampering could have happened. Arguably, nobody knew precisely when Mr La Barbera has been required to provide a sample and, if they did, nobody would have known that he had only been able to provide a partial sample and that, assuming that such sample was left unattended – which the Panel excludes – that Mr La Barbera would leave to attend the medal ceremony thus providing someone with the opportunity to tamper such sample (see CAS 2003/A/510).

20. All in all, the Panel is satisfied that Mr La Barbera has been unable to discharge the burden of proving that (i) there has been any departure from the IST, and that (ii) such departure could reasonably have caused the adverse analytical finding.

c) Conclusion

21. As a result, the Panel holds that Mr La Barbera has committed an anti-doping rule violation, in compliance with Art. 2.1 of the IWAS Code. Consequently, the following sanctions are applicable:

22. According to Art. 9 of the IWAS Code: “Automatic Disqualification of Individual Results An anti-doping violation in Individual Sports in connection with an In-Competition test automatically leads to Disqualification of the result obtained in that Competition with all resulting Consequences, including forfeiture of any medals, points and prizes”.

23. Art. 10.1 further adds that: “Disqualification of results in IWAS Sanctioned Events An anti-doping rule violation occurring during or in connection with an IWAS Sanctioned Event may, upon the decision of the ruling body of the Event, lead to Disqualification of all of the Athlete’s individual results obtained in that Event with all Consequences, including forfeiture of all medals, points and prizes, except as provided in Article 10.1.1. 10.1.1. If the Athlete establishes that he or she bears No Fault or Negligence for the violation, the Athlete’s individual results in the other Events shall not be disqualified unless the Athlete’s results in Events other than the Event in which the anti-doping rule violation occurred were likely to have been affected by the Athlete’s anti- doping rule violation”.

24. Finally, Art. 10.2 reads that: “Ineligibility for Presence, Use or Attempted Use, or Possession of Prohibited Substances and Prohibited Methods The period of Ineligibility imposed for a first violation of Article 2.1 […] shall be two (2) years Ineligibility, unless the conditions for eliminating or reducing the period of Ineligibility, as provided in Articles 10.4 and 10.5 […] are met”.

25. As a result, the Panel now has to put under scrutiny whether Art. 10.4 or 10.5 may apply to the present case, which leads the Panel to the second and third questions previously raised (see para. 10).

B. Accidental Ingestion

a) Relevant provisions

26. At the hearing, Mr La Barbera relied upon both Art. 10.4 and 10.5 of the IWAS Code:

27. According to Art. 10.4: “Elimination or Reduction of Period of Ineligibility for Specified Substances under Specific Circumstances Where an Athlete or other Person can establish how a Specified Substance entered his or her body or came into his or her Possession and that such Specified Substance was not intended to enhance the Ahtlete’s sport performance or mask the Use of a performance-enhancing substance, the period of Ineligibility for a first violation found in Article 10.2 shall be replaced with at a minimum, a reprimand and no period of Ineligibility from future Events, and at a maximum, two years of Ineligibility. To justify any elimination or reduction, the Athlete or other Person must produce corroborating evidence in addition to his or her word which establishes to the comfortable satisfaction of the hearing body the absence of intent to enhance sport performance or mask the Use of a performance-enhancing substance”.

28. Art. 10.5 further adds that: “Elimination or Reduction of Period of Ineligibility for Based on Exceptional Circumstances 10.5.1 No Fault or Negligence. If an Athlete establishes in an individual case that he or she bears No Fault or Negligence, the otherwise applicable period of Ineligibility must be eliminated. When a Prohibited Substance or its Markers or Metabolites is detected in an Athlete’s Sample in violation of Article 2.1 (Presence of Prohibited Substance), the Athlete must also establish how the Prohibited Substance entered his or her system in order to have the period of Ineligibility eliminated. In the event this Article is applied and the period of Ineligibility otherwise applicable is eliminated, the anti-doping rule violation shall not be considered a violation for the limited purpose of determining the period of Ineligibility for multiple violations under Article 10.7. 10.5.2 No Significant Fault or Negligence. If an Athlete or other Person establishes in an individual case that he or she bears No Significant Fault or Negligence, then the otherwise applicable period of Ineligibility may be reduced, but the reduced period of Ineligibility may not be less than one-half of the period of Ineligibility otherwise applicable. If the otherwise applicable period of Ineligibility is a lifetime, the reduced period under this Article may be no less than eight (8) years. When a Prohibited Substance or its Markers or Metabolites is detected in an Athlete’s Sample in violation of Article 2.1 (Presence of Prohibited Substance), the Athlete must also establish how the Prohibited Substance entered his or her system in order to have the period of Ineligibility reduced”.

b) Article 10.4 of the IWAS Code

29. The Panel will first address the potential application of Art. 10.4 of the IWAS Code, which was invoked by Mr La Barbera during the hearing. The Panel however has no hesitation to rule out the application of Art. 10.4 to the present case for the following reason. Art. 10.4 of the IWAS Code does not relate to “Prohibited Substances”, but to “Specified Substances”.

30. According to Art. 4.2 of the IWAS Code: “For purposes of the application of Article 10 (Sanctions on Individuals), all Prohibited Substances shall be “Specified Substances” except substances in the classes of anabolic agents and hormones and those stimulants

and hormone antagonists and modulators so identified on the Prohibited List. Prohibited Methods shall not be Specified Substances”.

31. In the present case, Mr La Barbera has been convicted with an adverse analytical finding for Stanozolol and 16β-hydroxystanozolol, a metabolite of Stanozolol. These substances are classified in the World Anti-Doping Agency 2010 Prohibited List as a S1(1)(a) exogenous anabolic androgenic steroid. Considering that anabolic agents are not considered “Specified Substances” within the meaning of Art. 4.2 of the IWAS Code, Art. 10.4 cannot apply to the present case. The Panel shall therefore focus its analysis upon Art. 10.5 of the IWAS Code.

c) Article 10.5 of the IWAS Code

32. To prevail under Art. 10.5 of the IWAS Code, Mr La Barbera must first (i) establish how the Prohibited Substance entered his system, and then (ii) demonstrate that he bears No Fault or Negligence, respectively No Significant Fault or Negligence. The Panel shall put both these requirements under scrutiny.

33. Prior to this analysis, the Panel considers it worth pointing out that, contrary to Mr La Barbera’s assertions, it is to be kept in mind that, as commented in the Code, “the Code adopts the rule of strict liability […]. Under the strict liability principle, an Athlete is responsible, and an anti-doping violation occurs, whenever a Prohibited Substance is found in an Athlete’s Sample” (Comment ad art. 2.1.1). From the strict liability principle follows that, once the IWAS has established that an anti-doping rule violation has occurred, as in the presence case, it is up to the Athlete to demonstrate that the requirements foreseen under Art. 10.5 of the IWAS Code are met. Such a burden of proof is expressly stated under Art. 3.1 of the IWAS Code, which provides that: “where these rules place the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability […]”. In CAS 2007/A/1370 & 1376, the Tribunal held on that regard that “according to the CAS jurisprudence, the balance of probability standard means that the indicted athlete bears the burden of persuading the judging body that the occurrence of the circumstances on which he relies is more probable than their non-occurrence or more probable than other possible explanations of the doping offence”. As a result, it is up to Mr La Barbera to prove how, on a balance of probability, (i) the Prohibited Substance entered his system, (ii) and No (or No Significant) Fault or Negligence.

34. As to the first requirement, i.e. the ingestion of the Prohibited Substance, Mr La Barbera argues that such an ingestion must have occurred while he was assisting his wife with the dogs’ treatment that took place between March and the end of May 2010. During that period of time, Mr La Barbera would have regularly crushed the tablets to be provided to the dogs between spoons. Admitting that he sometimes must have forgotten to wash his hands after having crushed those tablets, and considering his bad habit to bite his fingernails, Mr La Barbera assumes that the substance must have been ingested in his system while biting his nails after having crushed the tablets.

35. The Panel is not satisfied with Mr La Barbera’s explanations. The prescription of the Stargate product by the veterinarian, Dr Marco Colombo, has been attested in a signed letter dated 9 September 2010, which provides that: “I hereby declare that on 4th March 2010, I prescribed a package of Stargate tablets, 2mg, for two dogs, Maltese terriers, owned by Mrs Margherita Valenti, living in via Cascinagrossa 15, Mondragone, which were showing signs of failure to thrive, to be administered at the dose of 1mg per day per kilo in one-week cycles followed by three days of remission and for a total period of 90 days”.

While this letter may explain the possession of the Prohibited Substance by Mr La Barbera, the mere assumptions raised by Mr La Barbera as to how such substance would have entered his body prove unconvincing. In spite of Mr La Barbera’s assertion that evidence as to how the Prohibited Substance entered his system “[…] is practically impossible to prove: is clearly visible that there is no way to demonstrate how a substance entered in a body and due to that “nemo tenetur ad impossibilia” the panel can not request this evidence from Mr La Barbera”, such a line of arguments is unpersuasive. The CAS has constantly repeated that the requirement of showing how the Prohibited Substance got into the Athlete’s system must be enforced quite strictly since, if the manner in which a substance entered an athlete’s system is unknown or unclear, it is logically difficult to determine whether the athlete has taken precautions in attempting to prevent such occurrence (CAS 2007/A/1399). Consequently, the Tribunal made it clear that the “threshold” requirement of showing how the substance entered the player’s system was to enable the Tribunal to determine the issue of fault on the basis of fact and not mere speculation. In other words, the threshold requirement of proof of how the substance got into the system “meant not only that the player must show the route of administration – in this case probably oral ingestion – but that he must be able to prove the factual circumstances in which administration occurred” (CAS 2006/A/1140).

36. In the present case, Mr La Barbera’s explanations only amount to a speculative guess or explanations uncorroborated in any manner. One hypothetical source of a positive test does not prove to the level of satisfaction required that such explanations are factually or scientifically probable. Mere speculation is not proof that it did actually occur. Mr La Barbera has a stringent requirement to offer persuasive evidence of how such contamination occurred. In line with the CAS jurisprudence (see for instance CAS 2006/A/1067), the Panel is of the opinion that, unfortunately, apart from his own words, and unlike others cases where the Athlete has managed such burden of proof (see, for instance: CAS 2006/A/1025; CAS 2009/A/1296), Mr La Barbera did not supply any actual evidence of the specific circumstances in which the unintentional ingestion of the Prohibited Substance would have occurred. Mr La Barbera does in particular neither bring any scientific evidence that would explain how the Prohibited Substance could still be found in his system one week after the end of the dogs’ treatment, nor whether such a potential ingestion through his biting his nails could result in the level of substance found in his body. As a result, the Panel finds that Mr La Barbera’s explanations lack in corroborating evidence and prove unsatisfactory, thereby failing the balance of probability test. In other terms, the Panel is not persuaded that the occurrence of the alleged ingestion of the Prohibited Substance through his biting his nails is more probable than its non-occurrence. Mr La Barbera has therefore failed on the first hurdle, so that the exceptional circumstances foreseen under Art. 10.5 of the IWAS Code have not been established at the Panel’s satisfaction.

C. Absence of Fault or Negligence

37. Should the Panel have ruled differently and considered that Mr La Barbera had proved, on a balance of probability, how the Prohibited Substance entered his body that the result would not be different. Mr La Barbera has in any case failed on the second hurdle, i.e. to establish that such ingestion occurred without any (Significant) Fault or Negligence. It is to be remembered that, according to Art. 2.1.1 of the IWAS Code, “it is each Athlete’s personal duty to ensure that no Prohibited Substance enter his or her body”. In other words, Athletes are responsible for what they ingest. Once again taking into account the strict liability principle resulting therefrom, the CAS has ruled that, “in order to establish No Fault or Negligence, [the Athlete] must prove that he did not know or suspect, and could not reasonably have known or suspected, even with the exercise of utmost care, that he had used or been administered with the prohibited substance” (CAS 2006/A/1025). Such “utmost care” has obviously not been exercised in the present case. Mr La Barbera himself admits neither to have wondered what the drug for the dogs actually was, nor to have taken the precaution to read its label nor to wash his hands each time he crushed the tablets. Such carelessness for an experienced athlete as Mr La Barbera obviously widely departs from the exercise of the utmost care required. One can therefore not see how Mr La Barbera, while admitting his lack of precautions, could in the same time try and argue that he did not commit any (Significant) Fault or Negligence. In recognizing that he neglected to handle the product with due care, that he did not even read the label, Mr La Barbera himself recognizes that he has acted negligently. As a result, the Panel has no difficulty in ruling that Mr La Barbera has to bear the consequences of his negligence and, consequently, to rule out the application of Art. 10.5 to the present case.

Conclusion

38. The IWAS has established that Mr La Barbera had committed an anti-doping violation rule according to Art. 2.1 of the IWAS Code, since both A and B Samples have confirmed the presence of Stanozolol and 16β-hydroxystanozol, a metabolite of Stanozolol, a prohibited substance appearing on the WADA 2010 Prohibited List under category S1(1)(a), exogenous anabolic androgenic steroid (art. 2.1.2 of the IWAS Code).

39. Mr La Barbera has been unable to discharge his burden of proving under Art. 3.1 and 3.2.2 of the IWAS Code that, on a balance of probability, (i) there had been any departure from the IST in the way the doping control procedure was carried out and that (ii) such departure could reasonably have caused the adverse analytical finding.

40. Mr La Barbera has been unable to discharge his burden of proving under Art. 10.5 of the IWAS Code how, on a balance of probability (i) the Prohibited Substance had entered his system and that (ii) such ingestion had occurred without any (Significant) Fault or Negligence.

41. As a result, the appeal filed by Mr La Barbera has to be dismissed and, taking into account Art. 9, 10.1 and 10.2 of the IWAS Code (see paras 22-24), the decision issued by the IWAS Tribunal on 20 October 2010 is affirmed.

The Court of Arbitration for Sport rules:

1. The appeal filed on 17 November 2010 by Mr Roberto La Barbera against the decision of the IWAS Anti-Doping Committee Hearing Panel dated 20 October 2010 is dismissed.

2. The decision rendered on 20 October 2010 by the IWAS Anti-Doping Committee Hearing Panel is confirmed.

(…)

5. All other motions or prayers for relief are dismissed.

Roberto La Barbera v. International Wheelchair & Amputee Sports Federation (IWAS) | Lexipedia | Lexipedia