04 lug 2019
luglio 4, 2019
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CAS 2018/A/5866 Madyson Cox v. Fédération Internationale de Natation (FINA)
The case involves the Appellant Madisyn Cox, a professional swimming athlete, represented by Paul J. Green, attorney – at – law with Global Sports Advocates LLC and the Respondent, the Fédération International de Natation (FINA), represented by Mr. Jean – Pierre Morand, attorney – at – law with Kellerhals Carrard.
On the 5th of February 2018 the Athlete provided out-of-competition urine and blood samples at her training location in Austin, Texas, and the sample collection was authorized by FINA, as the association established as responsible for ant-doping control.
The Athlete’s urine sample was sent to the World Anti-Doping Agency (WADA) accredited laboratory located in Montreal, Canada. On the 2nd of March 2018 The Montreal INRS laboratory reported that the Athlete’s urine sample returned an adverse analytical finding (AAF) for the presence of Trimetazidine, listed under Class S.4 of the WADA Prohibited List. It is important to specify that Trimetazidine is banned at all time.
The Athlete was notified by FINA regarding the AAF. The Athlete then requested that her second sample be analyzed. This was done by the Montreal INRS laboratory again and the second sample analysis matched the first sample.
On the 14th of May 2018 FINA asserted in a Notice of Charge that the athlete had committed an anti-doping violation involving the presence of Trimetazidine. Because of this, the Athlete was provisionally suspended by FINA from that date.
The Athlete responded to the Notice of Charge that she admitted the anti-doping rule violation and requested a hearing before the FINA Doping Panel to determine the sanction.
A hearing took place on the 6th of July 2018 and a decision was issued by the FINA Doping Panel on the 10th of August 2018. The Athlete was sanctioned with a two year ineligibility period starting on the 3rd of March 2018.
The Panel argued that, based on the totality of the evidence, the Athlete did not act with intent in association with the AAF for Trimetazidine, but it was not persuaded otherwise that the athlete had demonstrated the source of the substance in her system. The Athlete had failed to prove how the Trimetazidine entered in her body, therefore she was not eligible for a sanction reduction below two years.
After having been notified of the Appealed decision, the Athlete decided to test the multivitamin tablets (Cooper Complete Elite Athlete multivitamin) she was taking prior to her blood test. The Trimetazidine was detected at approximately 4 nanograms per tablet.
On the 15th of August 2018, the Athlete filed a Statement of Appeal against the Respondent with the CAS in accordance to the Code of Sports-Related Arbitration, challenging the appealed decision. The athlete, in her statement of appeal, nominated an arbitrator.
On the 23rd of August 2018, the Parties informed the CAS Court Office that they had settled their dispute and they requested that the CAS appoint a Sole Arbitrator to enter a Consent Award confirming the terms of the Parties’ Settlement Agreement.
The question raised by the case examines the infliction of a ban from practicing sports even when the Athlete inadvertently ingested a contaminating substance. Indeed, the FINA Doping Panel was persuaded that the Athlete didn’t act with the intent in association with the SAF Trimetazidine and she did not dope. However, the Panel was not persuaded either that the Athlete had demonstrated effectively the source of the Trimetazadine and how it had entered her system.
Although during the Appeal there had been an elimination of many potential sources, the Panel was not convinced by the results of the process of deduction alone and deducted that the remaining cause for the AAF had been ingestion of a contaminated tap water.
The Doping Panel had concluded that the Athlete had failed to prove how the illegal substance had entered her body and that she was at “no fault or negligence”. Because of this, the Athlete was not eligible for a sanction reduction below two years.
As above mentioned, the Parties have settled their dispute with a Settlement Agreement signed on the 21st/22nd of August. Under Article R56 of the CAS Code, an arbitration tribunal has the authority to issue an award embodying the terms of the parties’s settlement if the parties agree on a termination of their dispute in this manner. The Sole Arbitrator ratified the Settlement Agreement and incorporated it into a consent award.
In the Settlement Agreement, the Parties stated that the Athlete was declared ineligible for a period of two years by the FINA Doping Panel and that, due to the following identification of the contaminated multivitamin pills, the Respondent had agreed to a reduction of the Athlete’s sanction from two years to six months, beginning on the 3rd of March 2018 and ending on the 2nd September 2018, under the Article 10.5.1.2 of the FINA Anti – Doping Control Rules.
The sanction, as specified in the Settlement Agreement, was reduced depending on the degree of fault of the Athlete. Considering the facts and all the circumstances of this case, the Respondent declared that the Athlete’s degree of fault appeared light, since the Trimetazadine had entered inadvertently into her system.