CAS 2017/A/5015 International Ski Federation (FIS) v. Therese Johaug & The Norwegian Olympic and Paralympic Committee and Confederation of Sports (NIF)
CAS 2017/A/5110 Therese Johaug v. The Norwegian Olympic and Paralympic Committee and Confederation of Sports (NIF)
Related case:
ADNO 2016-29 Anti-Doping Norway vs Therese Johaug
February 10, 2017
Cross-country skiing
Doping (clostebol)
Standing to be sued of the national federation
Criteria for a finding of no fault or negligence
Duty and standard of care of the athlete
Assessment of the level of fault within the “no significant fault” category
Reduction of the sanction based on proportionality
1. An appeal can be made against the national federation that made the contested decision and/or the body that acted on its behalf.
2. An athlete fails to abide by his/her duty of diligence if, with a “simple check” she could have realized the medical product he/she was using contained a prohibited substance that was indicated on both the packaging of the product and its notice of use. A finding of No Fault applies only in truly exceptional cases. In order to have acted with No Fault, an athlete must have exercised the “utmost caution” in avoiding doping. Even where the circumstances are “extraordinary” and there is minimal negligence, athletes are not exempt from the duty to maintain “utmost caution”.
3. An athlete bears a personal duty of care in ensuring compliance with anti-doping obligations; he or she cannot delegate away his or her responsibilities to avoid doping. The standard of care for top athletes is very high in light of their experience, expected knowledge of anti-doping rules, and public impact they have on their particular sport. It follows that a top athlete must always personally take very rigorous measures to discharge these obligations. The prescription of medicine by a doctor does not relieve the athlete from checking if the medicine contains forbidden substances or not. Athletes always bear personal responsibility and the failure of a doctor does not exempt the athlete from personal responsibility. Furthermore, athletes have a duty to cross-check assurances given by a doctor even where such a doctor is a sports specialist.
4. Within the “no significant fault” category, a greater degree of fault may lead to a sanction of 20 – 24 months, a normal degree of fault may lead to a sanction of 16 – 20 months, and a light degree of fault may lead to 12 – 16 months. Having determined the relevant level of “no significant fault”, a CAS panel must then turn to any subjective elements that can be used to move a particular athlete up or down within that category.
5. Considerations like stress and stigma attached to the name of the athlete, damage to the career because of provisional suspension, missing of part or entirety of a season, denial of the right to train with teammates, loss of sponsor causing a significant loss of income, or even negative impact on the chances in being selected for the national Olympic team are not relevant to warrant an additional reduction of sanction based on proportionality.
In October 2016 Anti-Doping Norway has reported an anti-doping rule violation against the Norwegian Athlete Therese Johaug after her A and B samples tested positive for the prohibited substance clostebol. Considering No Significant Fault or Negligence in this case the Adjudication Committee of the Norwegian Olympic and Paralympic Committee and Confederation of Sports decided on 10 February 2017 to impose a 13 month period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 18 October 2016.
Hereafter in March 2017 the International Ski Federation (FIS) and in April 2017 the Athlete appealed the Norwegian decision of 10 February 2017 with the Court of Arbitration for Sport (CAS).
FIS partially accepted the circumstances in this case and requested the Panel to set aside the Norwegian decision of 10 February 2017 and to impose a sanction between 16-20 months.
The Athlete did not dispute the test results and asserted that the violation was non intentional with No Fault or Negligence.
She stated that she had a sunstroke while at a training camp in Italy in August 2016 and hereafter she developed a fever, diarrhoea and sunburst on her lip. The Athlete’s team doctor treated the Athlete’s sunburst with the pharmaceutical substance Trofodermin which he purchased at a pharmacy in Livigno, Italy, in September 2016.
The Athlete argued that she was contractually bound to follow the advice of the experienced sports doctor and he assured the Athlete that she could use the product. Also she mentioned Trofodermin on the Doping Control Form when she provided a sample for drug testing in September 2016. The Athlete requested the Panel to dismiss the FIS appeal and to eliminate or to reduce the imposed period of ineligibility.
The Panel must decide three questions in this case:
1. What is the appropriate level of fault attributable to Ms Johaug?
2. What is the sanction proportionate to Ms Johaug’s circumstances?
3. Is Ms Johaug’s cross-appeal admissible?
The Panel finds that the Athlete’s conduct does not warrant a finding of No Fault. Considering the totality of the circumstances, the majority of the Panel determines that a 18 month period of ineligibility is appropriate. The Panel has already examined the Athlete’s response to the FIS’s appeal, which comprised the same set of facts and arguments (consolidated together with her cross-appeal) and rendered its decision accordingly. In consideration of the foregoing and of the fact that FIS’s appeal is partially upheld, a decision on the admissibility of the cross-appeal is dismissed as moot.
Therefore the Court of Arbitration for Sport decides on 21 August 2017 that:
1.) The appeal filed by the International Ski Federation against Ms Therese Johaug and The Norwegian Olympic and Paralympic Committee and Confederation of Sport on March 6, 2017 is partially upheld.
2.) The cross-appeal filed by Ms Therese Johaug against The Norwegian Olympic and Paralympic Committee and Confederation of Sport on 27 April 2017 is dismissed.
3.) The decision rendered by the Adjudication Committee of the Norwegian Olympic and Paralympic Committee and Confederation of Sports on 10 February 2017 is amended as follows:
Ms Therese Johaug is suspended for a period of eighteen (18) months commencing 18 October 2016.
4.) (…).
5.) (…).
6.) All other motions or prayers for relief are dismissed.
