- Citation: CAS 2016/A/4609
- Court: Court of Arbitration for sports [Prof. Martin Schimke (Germany), Sole Arbitrator]
- Petitioners: World Anti-Doping Agency
- Respondents: Indian NADA & Dane Pereira
Facts of the case:
On 20 February 2015, the Player underwent an in-competition doping control in Mumbai, India. During this doping control a urine sample was collected from the Player. On 15 April 2015, the result of the analysis of the A-sample revealed the presence of a Nandrolone metabolite (19-norandrosterone) (“Nandrolone”), estimated at 15 ng/mL whereas a threshold of 2 ng/mL applies. Nandrolone is an Exogenous Anabolic Androgenic Steroid prohibited under S1.1 of the 2015 Prohibited List and it is not a specified substance. The laboratory found that the “GC-C-IRMS result [was] consistent with the administration of exogenous steroids”.On 16 April 2015, the Player was provisionally suspended by the Indian NADA.On 21 April 2015, the Player informed the Indian NADA that he accepted the adverse analytical finding and waived his right to have the B-sample analysed.On 5 May 2015, a “provisional suspension hearing” was held where the Player explained his case to the Indian NADA’s Senior Project Officer. The Player apparently further explained his case to the Indian NADA Anti-Doping Disciplinary Panel (the “NADA ADDP”) during hearings held on 8 December 2015 and on 5, 22 and 27 January 2016. On 30 December 2015, the Indian NADA filed its reply. On 30 March 2016, the NADA ADDP rendered its decision (the “Appealed Decision”), with the following operative part: “On the basis of conjoint reading of Article 10.2.2 and 10.5.2 an ineligibility of one (1) year is imposed on Mr. Dane Pereira. The period of ineligibility shall commence from the period of provisional suspension i.e. 16.04.2015.”All other competitive results obtained by the athlete from the date of sample collection till the expiry of one year from that date, were disqualified with all resulting consequences including forfeiture of medals, points and prizes”
Judgement:
It was mentioned by the panel in this case that “An athlete taking a medicine on the box in which a prohibited substance is specified knows, or at least should know, that the drug contains the prohibited substance. In addition, if the athlete is given the same medication e.g. on four separate occasions, the athlete has sufficient time at his or her disposal to test if the medication contains any banned substances. Unless, in these conditions, the athlete does not even perform a basic internet study on the drug, but relies on his (team) doctor(s)'s (wrong) advice, he or she manifestly disregards the risk and commits "indirect motive" to the anti-doping rule violation. In this context there is an inherent significant risk that drugs may contain prohibited substances; this is all the more so with regard to drugs that are taken by intramuscular injection and are certainly not inadvertently administered through, for example, a tablet. Since athletes have a constant responsibility to handle individually and make certain an athlete, that any medication given is permitted under the anti-doping rules unable to rely entirely on the advice of a doctor; it follows that e.g. a prescription. The athlete's doctor's specific medical drug does not exempt athlete investigating in the fullest possible degree that the drug is not forbidden ingredients.”
The panel was satisfied to accept that a simple internet search would have revealed that Decadurabolin contains Nandrolone and that it is an anabolic steroid, but that the Player did not take any such precaution. Likewise, the Player does not contend to have even attempted to verify whether the medication contained any substances included on the 2015 Prohibited List. 78. In view of the above, the Sole Arbitrator found that the Player’s behaviour was not only extremely negligent, but indeed reckless, and failed to comply with his duties as an athlete subjected to anti-doping testing. The Player neglected all stop signs and accepted the manifest risk that the medication that was prescribed and injected would indeed contain a prohibited substance and result in an anti-doping rule violation.The Sole Arbitrator concluded that the Player manifestly disregarded the significant risk that the medication prescribed to him would result in an anti-doping rule violation and, as a result, committed the anti-doping rule violation with “indirect intent”, or at least failed to establish to the comfortable satisfaction of the Sole Arbitrator that the anti-doping rule violation was not committed intentionally. A four-year period of ineligibility was therefore in principle warranted.
