CAS 2005/A/918 K. v. FIS
CAS 2005/A/918 Kowalczyk v/ FIS
- Cross-country skiing
- Doping (glucocorticosteroid)
- Erroneous classification of Dexamethason
- Unilateral and procedurally incorrect attempt by the FIS
- Doping Panel to reconsider the doping offence
- Difference of the sanctioning regimes contained in Art. 10.2 and 10.3 FIS-Rules
- Burden of proof
- Measure of the athlete's negligence
1. If an ineligibility sanction is to be considered in an Article 10.3 FIS-Rules, “first violation” case, the penalty reduction possibility set forth in Article 10.5 FIS-Rules cannot supersede, exclude or otherwise diminish the right also granted to the athlete under Article 10.3 FIS-Rules to plead against its imposition.
2. The Article 10.5.1 FIS-Rules defence of “no Fault or Negligence” must always be available to the accused athlete, regardless of whether an Article 10.2 FIS-Rules or an Article 10.3 FIS-Rules sanction is applicable. With regard to the Article 10.5.2 FIS-Rules defence of “no significant Fault or Negligence”, however, it would contradict the ratio legis of the “no enhancement” defence under Article 10.3 FIS-Rules if the reduction limit under Article 10.5.2 FIS-Rules (“not less than one half of the minimum period”) were to apply in parallel to the minimum “warning and reprimand” penalty for the first violation involving a Specified Substance.
3. Upon the athlete’s prima facie showing that her use of the substance was for medical reasons and was not intended to enhance performance, the burden of proof shifted to the FIS to prove the contrary, namely that the athlete used this substance as a doping agent. In order to provide this rebuttal, the FIS Doping Panel should have revoked its decision and called for a new hearing of the merits of the dispute on the basis of Article 10.3 FIS-Rules.
4. The athlete’s negligence derives not from any ignorance of the prohibited nature of Dexamethason; her negligence lies rather in her lack of knowledge and application of the proper TUE procedures for the Specified Substance in question. The measure of this negligence does not justify a one year term of ineligibility.
In February 2005 the International Ski Federation (FIS) has reported an anti-doping rule violation against the Athlete after her sample tested positive for the prohibited substance Dexamethasone without a TUE.
The Athlete admitted the violation and explained that she and her doctor had already completed an Abbreviated Therapeutic Use Exemption (ATUE) form in December 2004 which she alleges to have submitted to the Polish Ski Association, but neglected to show to the testing authorities at the time of the doping control in January 2005. Following the notification of the violation the Athlete's application for a TUE was rejected in March 2005 by the Therapeutic Use Exemption Committee (TUEC).
Considering the Athlete's negligence the FIS Doping Panel decided on 13 June 2005 to impose a 2 year period of ineligibility on the Athlete.
Hereafter the Athlete appealed the FIS decision with the Court of Arbitration of Sport (CAS). Yet, at the same time the FIS Doping Panel had decided on 12 July 2005 to impose a new reduced sanction of 1 year instead of the imposed 2 years of ineligibility.
The CAS Panel holds that the one year period of ineligibility unilaterally imposed by the FIS Doping Panel has not only deprived the Athlete of her fundamental right to a fair hearing, but it also does not stand in fair and just proportion to the measure of her negligence. The Panel holds that a period of ineligibility ending 8 December 2005 provides the fair and proportionate measure of sanction.
Therefore on 8 December 2005 the Court of Arbitration for Sport decides:
1.) The decision rendered by FIS Doping Panel on 13 June 2005 and amended by its announcement of 13 July 2005 shall be replaced by a de novo decision on the merits of this case.
2.) The Appellant is disqualified from all individual results obtained in the U23 OPA Intercontinental Cup Competition held on 23 January 2005. The period of ineligibility to be imposed upon the Appellant shall commence on 23 January 2005 and shall end on 8 December 2005.
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