William Brothers v. Fédération Internationale de Natation (FINA)

V. JURISDICTION

64. Article R57 of the Code provides:

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

65. DC 13.2.1 FINA Rules provides that, in cases of International-Level Athletes, the decision may be appealed exclusively to CAS in accordance with the provisions applicable before such court. The Appellant is such an International-Level Athlete who has participated in International Competition.

66. Having said the above, the parties have expressly accepted the jurisdiction of CAS in the Appellant’s Statement of Appeal and in the Respondent’s Answer. Both parties have reconfirmed the jurisdiction of CAS both in their written submissions and in their respective Order of Procedure.

VI. ADMISSIBILITY

67. Article R49 of the Code provides as follows:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. After having consulted the parties, the Division President may refuse to entertain an appeal if it is manifestly late”.

68. DC 13.7.1 FINA Rules provides that the deadline to file an appeal to CAS shall be twenty-one (21) days from the date of receipt of the decision by the appealing party. The decision of the FINA Doping Panel is dated 17 May 2016. Appellant’s Statement of Appeal was received by the CAS Court Office on 3 June 2016 within the twenty-one day deadline.

69. The Respondent initially challenged the timeliness of the Appeal Brief. Upon clarification from CAS regarding the electronic receipt of the Appeal Brief, the Respondent withdrew its challenge. In its Answer dated 7 October 2016, Respondent confirmed that the admissibility of the Appeal was not disputed.

VII. APPLICABLE LAW

70. In accordance with Article R58 of the Code,

“The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to 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 sport-related body which has issued the challenged decision is domiciled or according to the rules of law of the Panel deems appropriate. In the latter case the Panel shall give reasons for its decision”.

71. The Respondent is a registered Swiss association with its legal domicile in Switzerland; the Appellant is a resident national of Canada. With the seat of this arbitration being Switzerland, this arbitration is governed by articles 176 et seq. of the Swiss Private International Law Act (PILA). Pursuant to art. 182, para. 2 PILA, the CAS Code governs the procedural aspects of this arbitration.

72. With regard to the adjudication of the merits, the applicable body of law governing this dispute are the FINA Doping Control Rules. Swiss law shall apply subsidiarily.

VIII. MERITS

73. After a thorough review of the facts of this case, the pleadings of the parties and the testimonies provided by the various witnesses, the Panel had concluded that the Appellant indeed committed, with intent, a violation of DC 2.3 FINA Rules. Upon finishing the telephone call with his father, he informed the DCO and BCO, as evidenced by his entry on the DCF, that “due to health reasons, I cannot take the test”. The test was refused and the DCO and BCO thereupon left his residence.

A. The applicable provisions of the FINA Rules; the absence of compelling justification

74. DC 2.3 FINA Rules prescribes that the following actions constitute an anti-doping violation:

“Evading Sample collection, or without compelling justification, refusing or failing to submit to Sample collection after notification as authorized in these Anti-Doping Rules or other applicable anti-doping rules”.

75. Human actions have both an objective and a subjective element and the commission of an antidoping offense is no different from any other human action. From the perspective of the DCO and the BCO, the Appellant clearly and objectively refused to permit the drawing of a vial of blood from his arm on the evening of 26 August. The issue at hand is what was happening in the Appellant’s mind.

76. Notwithstanding these objective and subjective components of the act, however, the language of DC 2.3 FINA sets out an inherent defense. If the athlete can prove on the balance of probability that his act was compellingly justified, his rejection of the test will be excused. The question posed is whether the Appellant can avail himself of this defense.

77. After due consideration, the Panel chooses to follow the precedent set in the CAS 2005/A/925, CAS 2013/A/3279 and C v. B decisions cited above. If it remains “physically, hygienically and morally possible”, for the sample to be provided, despite objections by the athlete, the refusal to submit to the test cannot be deemed to have been compellingly justified.

78. Obviously, this would not be the case if the athlete were to faint unconscious on the floor upon seeing the DCO’s needle, or if he were stone drunk or would experience an epileptic fit at the time of the test. Even a refusal to submit to the test because the athlete must rush his expectant wife to hospital might qualify as a “compelling justification.”

79. Examples of this kind in which it is established that an athlete is deprived of his rationality and cognitive senses will, in most cases, be sufficient to ground the excuse of “compelling justification”. These situations present physical and moral hindrances to going ahead with the test. These circumstances are, however, not present in the case at hand.

80. When the Appellant greeted the DCO and BCO at his front door at 22:00 hours on 26 August 2015, he was in complete control of his senses. He identified the callers as coming from IDTM, understood their mission and ushered them to his kitchen table to proceed with the test. He watched them fill out the DCF and ready the Bereg kit.

81. In the view of the Panel and based on the testimony of the witnesses, the Appellant’s feelings of anxiety were triggered after the test procedure was initiated at his kitchen table. The Panel is also willing to believe that Mrs K perceived quickly that an attack of sorts was in the making and called the Appellant’s father, whom she knew understood his son’s physical constitution and medical history, for help.

82. The Panel prefers not to label the Appellant’s mounting fear and anxiety with the term “panic attack”. Panic implies the inherent loss of judgment and ability to discern, a situation characterized by a loss of voluntary control over one’s cognitive faculties and actions.

83. As the anxiety developed, however, the Appellant retained his rationality to the degree that he was still able to identify and converse with his father on the mobile telephone which Mrs K placed in his hand. He maintained his ability to understand and to contemplate what his father was saying to him. As during his many past illnesses and health crises, he listened closely to his father’s advice.

84. In the view of the Panel, the Appellant’s decision to refuse the test (alternatively, his decision to acquiesce in his father’s decision to refuse the test) were made under mounting stress, perhaps under extreme stress. It is even possible that the Appellant experienced the onset of “panic” in the classical sense of that term. But the Panel is unwilling to find a situation in which the Appellant experienced a complete loss of his cognitive senses, being unable to think and to rationalize with a concomitant loss of control.

85. His remaining ability, although possibly impaired, to think and discern was impressively demonstrated by the Appellant’s question to the DCOs as they were packing their kit what the consequences of his refusal might be. He had, even at this point, the perception that his actions might constitute an anti-doping violation and he was concerned about what the sanctions might be.

86. The Panel is unable to find any physical, hygienic or moral circumstances which would have justified Appellant’s refusal to provide the blood sample. The refusal was not unavoidable. There was no thought given, neither by the Appellant nor his father, as to how the “anxiety attack” might have been assuaged in order to let the test proceed, e.g. by a 15-minute pause on the couch.

87. Based on the above considerations, the Panel concludes that the objective facts and circumstances of the Appellant’s refusal do not permit a finding of “compelling justification”. As the Panel held in CAS 2013/A/3279:

“The question is not whether the Athlete was acting in good faith, but, whether objectively he was justified by compelling reasons to forego the test”.

B. The Appellant’s fault and the measure of the sanction

88. Having established that the Appellant objectively committed a violation of DC 2.3 FINA Rules, it turns to the issue of the appropriate sanction.

89. DC 10.3.1 FINA Rules mandates the following:

“For violations of DC 2.3 or DC 2.5, the Ineligibility period shall be four years unless, in the case of failing to submit to Sample collection the Athlete can establish that the commission of the anti-doping rule violation was not intentional (as defined in DC 10.2.3), in which case the period of Ineligibility shall be two years”.

90. DC 10.2.3 FINA Rules, which defines the term “intentional”, reads in its relevant segment, as follows:

“As used in DC 10.2 and 10.3, the term “intentional” is meant to identify those Athletes who cheat. The term therefore requires that the Athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk”.

91. The formulation of DC 10.3.1 poses interpretational issues with regard to the meaning and application of the term “intentional”. A close reading of the language of DC 2.3 FINA Rules would indicate that the drafters of the provision were thinking in terms of three different and distinguishable categories: (1) evasion, (2) refusal and (3) failure to submit to Sample Collection.

92. Indeed, the official commentary to DC 2.3 attempts to further define these categories in terms of the levels of intent or fault which can be attributed to each of them. The commentary reads as follows:

“[Comment to DC 2.3: For example, it would be an anti-doping rule violation of “evading Sample collection” if it were established that an Athlete was deliberately avoiding a Doping Control official to evade notification or Testing. A violation of “failing to submit to Sample collection” may be based on either intentional or negligent conduct of the Athlete, while “evading” or refusing” Sample collection contemplates intentional conduct by the Athlete.]”.

93. Based on the above commentary, the reader is led to deduce that action constituting a “refusal” to submit to sample collection must be automatically and exclusively categorized as “intentional conduct” with the further consequence that a four-year sanction is no longer eligible for elimination or reduction on the grounds of No Fault or Negligence (DC 10.4) or No Significant Fault or Negligence (DC 10.5.2).

94. In the view of the Panel, both the drafting of DC 10.3.1 FINA Rules and, more pointedly, the commentary to DC 2.3 FINA Rules, do not permit, on the individual facts of this case or any other case, the conclusion to be drawn that in a “refusal situation” application of DC 10.5.2 is to be ruled out with the accused athlete being denied the possibility of elimination or reduction of the sanction. Stated differently, the objective fact of a “refusal” does not automatically make the athlete a “cheat”. The terms and concepts applied in the commentary to DC 2.3 are, therefore, in the view of the Panel, imprecise and indiscriminately applied.

95. It would appear to the Panel that the term “failing to submit”, which the drafters state “may be based on either intentional or negligent conduct”, more properly serves as an “umbrella”” concept to describe all types of actions or situations which result, for whatever reason, from the objective fact of not having submitted to the test. Viewing the objective refusal to submit to a test as being a sub-category of the broader category of “failing to submit” would also facilitate a better understanding of the commentary’s use of the term “contemplates intentional conduct”. If “refusal” to submit to a test merely “contemplates” the presence of intent or the intention to cheat, it does not inexorably follow that intent will always be present; it may or may not be present at all or may or may not be present in significant degree in the given set of facts.

96. It is the view of the Panel that the Appellant’s refusal to submit to the blood test (“Due to health reasons, I cannot take the test”) does not and cannot deprive the athlete, based on the facts of the individual case, from pleading that the degree of his fault or intent justifies a possible elimination or reduction of the sanctions on the grounds of No Fault or Negligence or No Significant Fault or Negligence under DC 10.5.2 FINA Rules.

97. The conclusion drawn by the Panel is also compelled by a comparison of the sanctioning regimes applicable to the athlete who ingests a prohibited substance, on the one hand, and the athlete who evades, refuses or fails to submit to an anti-doping test, on the other. If the doped athlete who commits a strict liability doping offense is eligible for a possible elimination or reduction of the sanction dependent upon the degree of his or her fault or negligence under DC 10.4 and DC 10.5.2 FINA Rules, it is not wholly understandable why these same provisions should not be available to the athlete charged with evasion or refusal.

98. Moreover, and as illustrated in CAS 2013/A/3279, the previous edition (2009) of the WADC provided for exactly this scenario – one in which an analysis of the degree of fault was applicable to a “refusal” and/or “failure to submit” situation. The comment to DC 2.3 (which reflects verbatim the corresponding comment to the 2015 WADC) still clearly envisions that a negligence rationale is applicable in certain scenarios. A reading of DC 10.3.1 that improperly distinguishes “refusal” from “failure to submit” along somewhat arbitrary lines would therefore risk incongruence with the comment to DC 2.3.

99. In the case at hand, the Panel views the refusal of the Appellant to submit to the blood test as constituting intentional action for which he bears fault, but nevertheless fault which, in light of the unique facts of this individual case, must be assessed in terms of its degree and significance and the proportionality of the resulting sanction.

C. The exceptional circumstances of the Appellant’s refusal

100. In the view of the Panel, there can be little doubt that the Appellant’s past and more recent medical history has had an effect on his recent psychological make-up. With regard to his medical history, the testimonies of the Appellant, his father, Dr. McKeown and Dr. Stein, were informative and persuasive. Even before reaching his 2nd birthday, the Appellant had undergone seven operations. The illnesses which he suffered during childhood and his teenage years were severe, and not without lasting psychological effect.

101. Dr. Brothers’ testimony described the role which he, as a father, had played during the Appellant’s various health crises. It became clear to the Panel on the basis of the testimonies of the father and the son that a close bond was shared between them. Having the additional insight of a physician, Dr. Brothers was perhaps better able than other parents to understand these illnesses and to assist his son in overcoming them.

102. Having herself observed this bond between father and son, it is also understandable why Mrs K, although unfortunately not appearing as witness, texted Dr. Brothers within minutes after the arrival of the DCO in order to inform him that “a doping control is taking place and Will is not looking well”. She could observe the Appellant’s facial appearance in the small quarters around the kitchen table.

103. Dr. Brothers testified that the Appellant had experienced anxiety situations several times over the past years, usually triggered by competition. Most recently, just a few weeks before, he had experienced an anxiety attack in national competition. He advised his son then to “come home”. In the meantime, the Appellant had been diagnosed in March 2015 for depression and anxiety and was taking medication. In August 2015, he was diagnosed with a hormonal disorder. The Appellant’s physical and mental constitution on the evening of 26 August 2015 can only be described as unstable and labile.

104. Considering the above, the Panel holds Dr. Brothers’ testimony to be credible when he stated that, although under the pressure of his emergency room duties and finding himself in a “public place” where he could not openly speak, he detected the Appellant was experiencing stress and anxiety. A father, who had accompanied his son through so many health crises, should be able to detect on the tone of his son’s voice and in his articulation whether he is suffering distress.

105. The testimony given by the DCO, Mrs Breanna Short, disputed Dr. Brother’s statement that the Appellant complained two or three times during the short call that he “just wanted these people [the DCO/BCO] to leave”. To the contrary, Mrs Short testified that she, sitting at the kitchen table, approximately 10 feet from the pacing Appellant speaking over the phone, could hear Dr. Brother’s advising his son “to just refuse to take the test. We will deal with the suspension later”.

106. Although both the DCO and the BCO stated that they could hear mostly all of the words spoken by the Appellant to his father, these being very few as the father is alleged to have done most of the talking, Mrs Short confirmed that she explicitly heard the word “suspension” spoken by Dr. Brothers, although she conceded to have heard only about 30% of his conversation.

107. Both Mrs Short and the BCO, Mrs Emilyn Castro, stated in their testimonies that the Appellant evidenced no visible signs of stress, no anxiety, and no shortness of breath, during the five- to ten-minute period prior to the call while the paperwork was being completed. It was only after the call with his father that the Appellant’s demeanor changed to nervousness, a red face and inability to look the DCO in the eye when he refused to take the test.

108. Although the testimonies of Dr. Brothers and the Appellant, on the one hand, and the DCO and BCO, on the other, differ in their rendition of what was actually said on the call and the visible anxiety levels of the Appellant before and after the call, the Panel takes the view that these differences are not determinative of the Appellant’s intent or fault on the grounds of the following considerations:

(i) Dr. Brothers, being the Appellant’s father who had withstood many medical crises with him since childhood and possessed a physician’s insight with regard to the Appellant’s more recent physical and psychological disorders, realistically and believably detected upon hearing the voice of his son that he stood under stress and was in trouble. His medical training and his fatherly instinct told him to try to calm the Appellant down;

(ii) whether Dr. Brothers advised the Appellant “to refuse to take the test”, thus making the decision for his son, or whether he told him “to do what you think you need to do, we will deal with whatever happens later” generated the same subjective and objective effect in the Appellant. If the Appellant decided himself to refuse, that decision was impulsive and unconsidered; if he took instructions from his father, the acceptance of those instructions was likewise impulsive and unconsidered;

(iii) whether Dr. Brothers actually spoke the word “suspension” is of little relevance. Dr. Brothers is no stranger to sports. He holds a degree in sports medicine and has treated numerous swimmers in the past. He is aware, even without a formal anti-doping education, that sanctions will apply in the event anti-doping rules are violated. “We will deal with whatever happens later” was a clear reference to the possibility of sanctions. Dr. Brothers wished to reassure his son that the two of them, as in the face of past crises, would also surmount this crisis together.

109. None of the above detract from the Panel’s finding that the Appellant’s conversation with his father triggered his objective refusal to submit to the test. Whether the decision was made by his father with the Appellant merely following instructions to tell the DCO “due to health reasons, I cannot take the test”, or whether the decision was made by the Appellant himself impulsively and without consideration upon ending the call, the Panel is unwilling to attribute the decision to a condition of irrationality, a loss of cognitive faculties or an involuntary lapse of comprehension. The Appellant cannot exonerate himself of fault completely.

110. Just as the Panel was unable to find a situation of compelling justification, it is unable to hold that the Appellant’s anxiety, which may indeed have reached “attack” dimensions in the course of his call, totally deprived him of his ability to discern that the denial of the test would have its consequences. The Appellant acted with fault; his fault was, however, diminished by the

extraordinary circumstances of this case. His decision to refuse (or to follow his father’s instructions to refuse) was still made with an awareness that his decision would bear consequences in terms of possible sanctions.

111. In reaching this finding, the Panel does not overlook the doubt raised by Appellant’s counsel during the questioning of the DCO as to whether the Appellant proactively raised the question whether sanctions would be imposed from his refusal to submit to the test. At no time, however, did the Appellant deny that he raised the question.

112. In both the Unsuccessful Attempt Form (UAF) and the Out-of-Competition Mission Summary, it was clearly reported by the DCO and confirmed by the testimony of the BCO that “if he refused, the FINA would be in touch with him regarding repercussions”. Mrs Short stated clearly that the Appellant asked her regarding the consequences of the refusal. The Out-of-Competition Summary, which was filed after 26 August 2015, makes explicit mention of the Appellant’s question recorded to the protocol.

113. In light of the above, the Panel is not persuaded on the balance of probability that the DCO might have subsequently “embellished” the Summary by inserting a question which was never actually raised. The fact that the DCO, while packing up her kit, stated that the Appellant would be contacted by FINA regarding the “repercussions” indicates strongly that the corresponding question was raised. This was not disputed. This issue could have been resolved, perhaps to the satisfaction of the Appellant, if his girlfriend, K, had not been withdrawn as witness several days prior to the hearing.

114. The fault which the Panel finds to rest upon the Appellant derives from the finding that, regardless of its psychological or pathological origin, stemming from his unfortunate medical history and, more recently, from his depression and hormonal disturbances, he did indeed find himself in a situation on the evening of 26 August 2015, in which his rational faculties were most likely impaired by feelings of fear, extreme anxiety and perhaps even doom. But he still remained able to discern that his refusal could have consequences.

D. The appropriate sanction

115. To sanction the Appellant with a four-year period of ineligibility would, in the view of the Panel, ignore the extraordinary circumstances of this case. It would ignore the impact of his difficult medical history and the fact of his past anxiety attacks. These considerations, supported by the expert testimonies provided by Dr. McKeown and Dr. Stein, justify the application of DC 10.5.2 FINA Rules.

116. Having said the above, the Panel is indeed troubled by the adequacy of the DCO’s answer to the Appellant regarding the nature of the sanctions which would result from his denial. It is clear that a mere statement, “the Federation will be in touch regarding repercussions”, is not sufficient and may indeed constitute a breach of the DCO’s duties and responsibilities. If, at the end of the visit, the Appellant’s demeanor had reached a level of visible stress and anxiety, as indicated

by the DCO and BCO in their testimonies, it is understandable that they preferred to hold their responses short.

117. The Appellant is, however, an international-level athlete who had been urine-tested “between 6 and 12 times” since 2013, and blood-tested twice. Even if he had not undergone “formal education” with regard to the provisions of the FINA Doping Control Rules, he could not realistically have assumed that his refusal would be without consequence. The Appellant also made no attempt in the days following the failed test to contact FINA regarding a repeat of the test.

118. In determining the measure of the sanction, the Panel finds, based on the above considerations, that the period of ineligibility imposed by the FINA Anti-doping Panel should be reduced. Pursuant to DC 10.5.2. FINA Rules, the reduction cannot be less than one half of the period of Ineligibility otherwise applicable, which in the case at hand would be four years (DC 10.3.1 FINA Rules). The Panel holds that a reduction from four years to two years is both appropriate and proportional on the merits of this case.