Tribunal Arbitral du Sport Court of Aibitration for Sport

Tribunal Arbitral du Sport
Court of Aibitration for Sport
CAS 2007/A/1312 Adams v/CCES
ARBITRAL AWARD
delivered by the
COURT OF ARBITRATION FOR SPORT
sitting in the foUowing composition:
President:
Mr. C. Mark Baker, Attomey-at-iaw in Houston, USA
Arbitrators:
Professor Edward Ratushny QC, Professor in Ottawa, Canada
Mr. Graeme Mew, Barrister in Toronto, Canada
in the arbitration between
JEFFREY ADAMS, Toronto, Canada
Represented by Timothy S. B. Dansen and Steve Reich, Barristers and Solicitors in Toronto, Canada
- the Appellant and
CANADIAN CENTRE FOR ETHICS IN SPORT, Ottawa, Canada
Represented by Robert C. Morrow, Barrister and Solicitor in Ottawa, Canada
- the Respondent and
ATHLETICS CANADA, Ottawa, Canada
Represented by Paul Kane and Heather Box, Barristers and Solicitors in Ottawa, Canada
GOVERNMENT OF CANADA/SPORT CANADA, Gatineau, Canada
Represented by Jacqueline Dais-Visca, Anne Burke, Ban'isters and Solicitors in Toronto, Ontario and
Johanne Imbeau, Avocat in Gatineau, Canada
- Affected Parties -
Chateau de Béthusy Av. de Beaumont 2 CH-1012 Lausanne Tél: +41 21 613 50 00 Fax : +41 21 613 50 01 www.tas-cas.org
Tribunal Arbitral du Sporl
Court of Aj'bitration for Sport
CAS 2007/A/1312-Page 2
I,
THE FACTS
A.
The Partjes
1.
Appellant, Mr. Jeffrey Adams ("Appellant"), is an elite-level, disabled, track-and-field
athlete. He has won competitions at the Paralympic Games, the lAAF World
Championships, and the IPC World Championships. He is a member of Athletics
Canada, receives funding from the Canadian govemment through Sport Canada, and has
thus contractually agreed to submit to doping control procedures.
2.
Respondent, the Canadian Centre for Ethics in Sport (the "CCES"), is a non-profit,
independent organization that promotes ethical conduct in all aspects of sport in Canada.
The CCES provides wide-ranging services, such as anti-doping compliance, to a variety
of clients.
3.
Athletics Canada is the National Sport Organization ("NSO") goveming track and field in
Canada, organized to ensure world-level excellence in this area of sport. It is a member
of the International Association of Athletics Federafions (the "lAAF"). Athletics Canada
has a contractual relationship with both its member athletes and Sport Canada requiring
those athletes to submit to doping control procedures in accordance with the Canadian
Anti-Doping Program Rules ("CADP Rules") as administered by the CCES. Athletics
Canada is an affected party in this arbitration.
4.
Sport Canada is a branch of the Canadian government's Department of Canadian
Heritage. It provides funding to NSOs such as Athletics Canada in order to promote
Canada's international excellence in sport. Sport Canada funds the Athlete Assistance
Program which enables NSOs to select certain top-flight athletes for financial assistance.
As a condition to participating in this program, NSOs must ensure these athletes submit
to doping control procedures. Sport Canada is an affected party in this arbitration.
B.
Chronology of Events
5.
The Appellant alleges that on May 21, 2006, while at the Vatikan bar in Toronto, an
unknown woman sitting next to him put cocaïne in his mouth with her fmgers without bis
consent.
6*
Six days later, the Appellant competed in an athletic event and was selected to give a
urine sample at a doping control station operated by the CCES. The Appellant gave an
"A" sample and a "B" sample for tesfing. The samples were collected under the CADP
Rules.
7.
Two weeks later, a laboratory accredited by the World Anti-Doping Agency ("WADA")'
nofified the CCES that the Appellant's 'A" sample contained a cocaine metabolite. This
caused an adverse analytical finding ('AAF") because cocaine is listed on the 2006
WADA List of Prohibited Substances. The CADP Rules incorporate the WADA List.
^ WADA is an independent, international body that helps coordinate efforts to stop doping in sport. The WADA
Code serves as a model anti-doping protocol for organizations worldwide.
-2-
Tribunal Arbitral du Sport
Court of Arbitration for Sport
CAS2007/A/1312-Page 3
8.
The CCES then notified Athletics Canada of the AAF on June 16, 2006, and Athletics
Canada notified the Appellant.
9.
The CCES's notice to Athletics Canada explained that an AAF was not equivalent to au
anti-doping rule vlolation and that the CCES was conducting an "initial review." The
CCES conducts these reviews after every adverse finding to ensure that there were no
departures from the CADP Rules. The notice also stated that the Appellant could submit
a written explanation of how the cocaine entered his system, which could bear on
sanctions if a violation was found.
10.
On June 16, 2006, the Appellant spoke to the CCES's contact persen, Karine Henrie, by
telephone and advised her of his explanation for the AAF. He mentioned the incident at
the Vatikan bar.
U,
The Appellant's lawyer submitted a written response to the AAF on June 30, 2006. The
response alleged that errors were made in the doping control procedure and that the
Appellant had used a contaminated catheter to give the urine sample.
12.
After its review, the CCES concluded that the Appellant had committed an anti-doping
rule violation because a prohibited substance was found in his sample; the presence of a
prohibited substance is govemed by CADP Rules 7.16 to 7.20. The CCES notified the
Appellant's lawyer of its conclusion on July 6, 2006. Citing CADP Rules 7.20 and 7.37,
the CCES proposed a sanction of two years ineligibility from competition and permanent
ineligibility for fmancial support from the Canadian govemment.
C.
Procedural Background—The Doping Tribunal
13.
The July 6, 2006, letter also advised the Appellant that only a doping tribunal could make
a final determination as to whether an anti-doping rule violation had occurred. He was
informed that, in accordance with CADP Rule 7.53, unless he waived the right to a
hearing before a doping tribunal and accepted the violation, a hearing would be
commenced within 30 days.
14.
On July 7, 2006, counsel for the Appellant filed a formal notice requesting a hearing and
that the Appellant's "B" sample be tested. This sample was tested and also contained the
cocaine metabolite.
15.
In accordance with Article 6.9(b) of the Canadian Sport Dispute Resolution Code
("Canadian Sport Code") promulgated by the Sport Dispute Resolution Centre of Canada
("SDRCC"), a doping tribunal ("Doping Tribunal") was established to hear the
Appellant's challenge to the CCES's assertion of a doping violation.
16.
Richard H. McLaren ("Arbitrator") was appointed by the agreement of the parties. An
initial hearing was held on August 17 and 18 of 2006, in Toronto, Ontario.
17.
On August 22, 2006, the office of the Attorney General of Ontario responded to a Notice
of Constitutional Question submitted by the Appellant alleging that his constitutional
-3-
Tribunal Arbitral du Sport
Court of Arbitration for Sport
CAS2007/A/1312-Page 4
rights had been violated. The response stated that the Attomey General of Ontario did
not intend to intervene in the proceedings.
18.
On August 24, 2006, the office of the Attomey General of Canada also responded to the
Notice of Constitutional Question. The response stated that the Attomey General of
Canada intended to address the constitutional issues at the hearing.
19.
Subsequent hearings were held on September 7 and 8 of 2006, October 11 and 12 of
2006, and December 19, 21, and 22 of 2006. Final written submissions were made on
April 16, 2007. All witness testimony was recorded by a court reporter except for the
testimony of Ms. Anne Brown.
20.
On June 11, 2007, the Doping Tribunal issued its award and found that the Appellant
violated CADP Rule 7.16 as a result of the presence of a Prohibited Substance in his
sample. In accordance with CADP Rule 7.12, the Doping Tribunal prescribed a period of
ineligibility of two years commencing on August 18, 2006, and ending on August 17,
2008. The Doping Tribunal also disqualified the Appellant's competition result achieved
at the May 28, 2006, competition, pursuant to CADP Rule 7.4. Lastly, the Doping
Tribunal cited CADP Rule 7.37 in permanently disqualifying the Appellant from
receiving fmancial support through the government of Canada.
D.
Procedural Background—Court of Arbitration for Sport Appeal
21.
The Appellant appealed the Doping Tribunal's decision to the Court of Arbitration for
Sport ("CAS Tribunal") on June 27, 2007, pursuant to CADP Rule 8.22.
22.
The Appellant filed his Statement of Appeal on June 27, 2007. He also included an
application to stay the award appealed against, along with an application for interim
relief, hut these were later withdrawn.
23.
The Appellant filed his Appeal Brief on July 12, 2007, pursuant to an agreed schedule
adopted between the parties. He submitted the completed brief on November 16, 2007.
The Appeal Brief included the entire record of the Doping Tribunal proceedings.
24.
The Appellant filed the rest of his Appeal Brief (referred to by the Appellant as his appeal
factum) on November 16, 2007.
25.
The CCES filed its answer (referred to by the CCES as its appeal factum) on November
29,2007.
26.
The oral hearing was held on February 26, 27, and 28 of 2008 in Toronto. The parties
presented oral arguments and also took the oral testimony of Ms. Anne Brown, whose
testimony in the Doping Tribunal proceedings had not been recorded by a court reporter.
27.
In accordance with Article R57 of the Code of Sports-related Arbitration, this panel has
the "full power to review the facts and law." This Award is thus based on a review of the
oral arguments and evidence presented at the CAS Tribunal hearing, the parties' written
-4-
Tribunal Arbitral du Sport
Court of Arbitration for Sport
CAS2007/A/1312-Page 5
submissions submitted in these proceedings, and the full record of the Doping Tribunal
proceedings.
E.
28.
29.
30.
Evidentiary Proceeding—The Doping Tribunal
The CCES called the following witnesses:
i.
Anne Brown (General Manager for the CCES, Ethics and Anti-Doping Services)
ii.
Joseph De Pencier (Director, Ethics & Anti-Doping Services/General Counsel for
the CCES)
iii.
Nathalie Lapierre (Nurse Practitioner, The Ottawa Hospital)
iv.
Dr. Ayotte, Ph.D. (Expert - Director of the WADA-accredited Laboratory at
Montréal)
The Appellant called the following witnesses:
i.
Jeffrey Adams (the Appellant)
ii.
Harpreet Karir (the Appellant's friend)
iii.
Clint McLean (the Appellant's friend)
iv.
Athlete "A" (anonymous disabled athlete)
V.
Christian Bagg (the Appellant's friend and a fellow athlete)
vi.
Dr. Kadar, Ph.D. (Expert - Professor Emeritus at the Faculty of Medicine at the
University of Toronto)
vii.
Dr. Sellers, M.D., Ph.D. (Expert - Professor of Pharmacology, Medicine, and
Psychiatry at the Faculty of Medicine at the University of Toronto)
Sport Canada called the following witness:
i.
Lane MacAdam (Director of Sport Excellence, Sport Canada)
31.
Athletics Canada did not call any witnesses, but presented oral arguments.
32.
The following summarized testimony has been organized by topic, not by the order of
witness appearances:
1.
33.
The Vatikan Bar Incident
The Appellant, Harpreet Karir ("Karir"), and Clint McLean ("McLean") all gave
testimony to the events that transpired at the Vatikan bar on May 21, 2006. Karir is a
-5-
Tribunal Arbitra! du Sport
Court of Arbitration for Sport
CAS2007/A/1312-Page 6
Case Manager Coördinator at the Attomey General of Ontario and McLean is a
photographer.
34.
The Appellant testified that on May 21, 2006, he visited the Vatikan bar in Toronto with
bis friend Karir. The Appellant stated that after an hour or so, he became tired and
wanted to leave. Karir wanted to stay longer, so the Appellant began to play a game with
her by pretending he was asleep.
35.
According to the Appellant, at aroiind 11:30 P.M., an unknown woman stuck her fingers
in his mouth while he was pretending to be asleep. He testified that he lurched forward
and feit a numbness in his mouth and throat.
36.
Karir testified that at this point, although she had not seen the woman insert her fingers
into the Appellant's mouth, she witnessed the woman removing her fingers from his
mouth and the aftermath. Karir testified that she was shocked by the woman's actions
and yelled at her, and that she believed the woman was on drugs.
37.
Karir testified that she noticed that the woman was carrying a small bag of white powder
and that the woman confirmed it was cocaine. The unknown woman then left. Karir also
noted that the Vatikan bar is located across the street from a drug rehabilitation center.
38.
McLean testified he was seated across the room and noticed the commotion. He fiirther
testified that he came to the Appellant's assistance and then took him home that night.
Karir added that she was very upset about the incident and walked home. No police
reports were filed.
39.
The Appellant testified that he retumed home ft'om the Vatikan bar around midnight and
that within approximately thirty minutes of arriving, he needed to urinate. Because the
Appellant suffersfi*ommultiple cavernous angiomas, the cause of his paraplegia, he must
self-catheterize to urinate. The Appellant stated he used a clean, wrapped catheter to pass
his urine and then stored this catheter (the "Vatikan Catheter") in the emergency pocket
ofhis wheelchair.
2.
The Competition
40.
On May 23, 2006, the Appellant testified that he drove to Ottawa from Toronto to
participate in the May 28, 2006, ING Ottawa Marathon Wheelchair Competition (the
"Competition"). He brought his wheelchair, which he asserted still had the Vatikan
Catheter in the emergency pocket. He also testified that he brought several other
catheters to the Competition.
41.
Before driving to the Competifion, the Appellant testified that he had done extensive
online research and had talked to the head of a U.S. drug testing laboratory to determine
whether the cocaine inserted into his mouth at the Vatikan bar could resuh in a positive
drug test. He testified that he was convinced that the cocaine would have been out ofhis
system by the day of the Competition.
42.
The Appellant placed first in the Competition.
-6-
Tribunal Arbitral du Sport
Court of Arbitration for Sport
CAS2007/A/1312-Page 7
43.
FoUowing his participation in the Competition, the Appellant was selected to provide a
urine sample (the "Sample") at a doping control station operated by the CCES as part of
the doping control program, pursuant to the CADP Rules. Doping control stations are
managed by a doping control officer ("DCO"), who ensures that a chaperone assists the
athlete during sample collection.
44.
The Appellant testified that he was confident he would medal at the Competition and thus
knew he would likely be tested. He also noted that this competition was not particularly
significant to his career, although important to him personally.
3.
Sample Collection
45.
Before the Sample was collected, the Appellant was able to return to his hotel room to
shower. He was accompanied by the chaperone at all times. He had several catheters in
his room.
46.
Upon arriving at the Doping Control Station, the Appellant testified that, to his surprise,
he had only brought the Vatikan Catheter. The Appellant said that the chaperone
watched him use the Vatikan Catheter to provide the Sample.
47.
At no time did the Appellant, the DCO, or the chaperone discuss the use of the used,
unwrapped catheter. A sterile, wrapped catheter was never requested or offered. The
DCO and the Appellant jointly completed the doping control form ("DCF"). No
comments were recorded in the athlete remarks section of the DCF. The DCO did not
describe the use of the catheter by the Appellant or any modifications made to the doping
control process as a result of the Appellant's disability or use of the catheter.
48.
The DCO filed a supplementary report form dated July 6, 2006:
/ did not ask Mr. Alpin [the Chaperone] if there were any
modifications necessary for Mr. Adams' passing of the sample
(catheter, etc.) and the chaperone did not advise me ofsame. Mr.
Adams andi then went forward with the doping control procedure.
49.
Anne Brown, General Manager of the CCES, testified that the CADP Rules do not
require the CCES to provide disabled athletes with a sterile catheter. She asserted that
sample collection equipment, which must be provided by the CCES, does not include
catheters, but only equipment used to directly collect or hold an athlete's sample.
50.
Brown also testified that the CCES was not obligated to provide catheters in tamperproof packaging, despite the recommendations of the WADA Guidelines for Urine
Sample Collection, as those guidelines are not incorporated into the CADP Rules. Brown
also testified that when athletes bring their own catheters, the CCES never inspects them
prior to their use nor are the athletes ever advised to use a clean catheter.
51.
The parties do not dispute that the Sample was transported, handled, and tested in
compliance with the proper doping control procedures. The only dispute as to the doping
-7-
Tribunal Arbitra! du Sport
Court of Arbitration for Sport
CAS2007/A/1312-Page 8
control procedure is whether the catheter used contaminated the Sample and which party
is responslble for that contamination.
4.
The Appellant's Use of a Catheter
52.
The Appellant asserted that the CCES has never inquired about hls need to use a catheter
as a result of his disability. He testified that the CCES was aware of his need to selfcatheterize.
53.
He also testified that he had not been informed by the CCES or any DCO about the risks
of using a contaminated catheter during the doping control procedure. He had always
used his own catheter, and he states that the CCES has never inspected his catheter prior
to his use of it.
54.
The Appellant testified that he uses "single use only" catheters, yet he uses them multiple
times because it is more cost effective and practical. Other athletes, including Athlete
"A" and Christian Bagg, testified that it is common practice to reuse catheters. They also
testified to the personal and individualized nature of catheters.
55.
The Appellant and the other athletes also testified that they do not clean their catheters
after each use.
56.
Nathaüe Lapierre, a registered nurse and expert witness for the CCES, admitted that it
might be acceptable to reuse a single use catheter. However, she also testified that the
prudent practice would be to clean the catheter after every use.
5.
Scientific Expert Analysis
57.
The experts testified as to the likelihood of the Vatikan Catheter having caused the AAF.
58.
Dr. Ayotte is a professor as well as the director of the WADA-accredited laboratory in
Montréal (the "Lab"). She holds a Ph.D. in Organic Chemistry from the Université de
Montréal. She also has extensive experience and knowledge on the subjects of excretion,
metabolism, and detection periods of drugs. She testified for the CCES.
59.
Dr. Kadar is a professor emeritus at the Faculty of Medicine at the University of Toronto.
He holds a Ph.D. in pharmacology from the University of Toronto and is a specialist in
toxicology. He testified for the Appellant.
60.
Dr. Sellers is a professor of pharmacology, medicine, and psychiatry at the Faculty of
Medicine at the University of Toronto. He holds a Ph.D. in pharmacology from Harvard
Medical School. He is a licensed medical doctor and a Fellow of the Royal College of
Physicians and Surgeons of Canada. He has also published extensively. He testified for
the Appellant.
61.
The experts agreed that the Appellant's Sample (both "A" and "B") each contained
approximately 3 ng/ml of the cocaine metabolite Benzoylecgonine ("BE") and that the
laboratory coUection and testing procedures were accurate and reliable.
Tribunal Arbitral du Sport
Court of Arbitration for Sport
CAS 2007/A/1312-Page 9
62.
The experts disagreed about whether the Vatikan Catheter could have likely been the
cause of the 3 ng/ml BE found in the Appellant's urine.
65.
According to Dr. Ayotte's testimony, when considering whether a contaminated catheter
could have likely resulted in an AAF, several variables must be analyzed:
i.
The amount of cocaïne initially ingested.
ii.
The time between ingestion and the use of the catheter.
iii.
The volume of urine deposited in the catheter.
iv.
The rate of metabolite degradation in the catheter.
64.
Dr. Ayotte testified that in order for the Vatikan Catheter to have contaminated the
Sample, the catheter would have had to contain a great deal of BE. Dr. Ayotte does not
believe that the Appellant could have ingested enough cocaine, in the manner he
described, to produce this result.
65.
Dr. Ayotte explained that 1 hour after ingestion, only about 8% of the metabolites
resulting from cocaine would have been excreted into the body and that only about 40%
of that amount could consist of BE. The Appellant testified that he used the Vatikan
Catheter about 1 hour after the assault, making the amount of BE he could have deposited
into the catheter relatively low.
66.
Dr. Ayotte also testified that the Vatikan Catheter could have retained oftly a very small
amount of urine. She also stated that BE deposited in a catheter at room temperature
would degrade quickly, making it implausible that a catheter left in a wheelchair for a
week could retain any BE.
67.
Dr. Kadar then testified that a significant amount of urine could have been retained in the
catheter. He also stated that the Appellant's alleged exposure to cocaine was significant
enough to cause the AAF.
68.
Dr. Sellers disagreed with Dr. Ayotte's opinion on the degradation rate of BE. Dr.
Sellers also disagreed with Dr. Ayotte as to the volume of urine that may have been
retained by the catheter. He testified that nobody can know how much urine was left in
the catheter, but a significant amount may have remained, which could have caused the
AAF.
69.
The expert witness conference and the examinations of the experts established the
following propositions:
i.
The use of a catheter contaminated with urine containing BE from a prior use
could cause an AAF.
ii.
After oral cocaine ingestion, about 8% is excreted as metabolites in the urine in
the first hour: about 40% of this excretion is the metabolite BE.
-9-
Tribunal Arbitrai du Sport
Court of Arbitration for Sport
CAS 2007/A/1312-Page 10
iü.
The type of catheter used by the Athlete when full would contain 2.3 to 2.5 ml of
urine.
iv.
After use and drainage, the type of catheter used by the Athlete could retain some
urine. However, the amount of residual BE-contaminated urine that was in the
Vatikan Catheter cannot definitively be established.
V.
Degradation of the contaminated urine occurred during the week the Vatikan
Catheter was coiled up and stored, but the extent of that degradation is unknown.
vi.
A significant variable with respect to the likehhood that the Vatikan Catheter
caused the AAF is the amount of cocaine allegedly ingested by the Athlete at the
Vatikan bar. This amount is unknown.
6.
Notice of Constitutional Question
70.
The Appellant submitted that the CCES violated his constitutional rights, and thus
evidence was taken on this issue of whether the CCES is subject to the Canadian Charter
of Rights and Freedoms (the ''Charter'')^ and federal and Ontario human rights
legislation.
71.
This testimony addressed whether the CCES could be considered a government entity or
quasi-govemment actor. The Charter generally applies to the Parliament and the
government of Canada and to the legislature and government of each province. The
Canadian Human Rights Act^ applies to the federal government or its agencies. Thus,
whether the CCES is considered a government entity or quasi-govemment entity is
relevant to whether the Charter or the Canadian Human Rights Act applies to the CCES.
72.
Mr. MacAdam, the Director of Sport Canada, and Mr. De Pencier, the Director of the
CCES, both testified to the relationship between Sport Canada/the Canadian Government
and the CCES. Both witnesses discussed funding at great length, including the details of
how the government uses funding to achieve its sport policy objectives through
organizations such as the CCES.
73.
Both witnesses asserted, however, that the govemment's reach in shaping policy ends at
funding. They asserted that the management of the Canadian Anti-Doping Program and
the promulgation and enforcement of its procedures are strictly handled at the
NSO/private organization level.
74.
The testimony of these witnesses was that the CCES was created to operate
independently of the government of Canada per the reco mm en dation s in the Duhin
Part I of The Comtitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c l ! .
^ R.S.C. 1985, c.H-6.
-10-
Tribunal Ai'bitral du Sport
Court of Arbitration for Sport
CAS2007/A/1312-Page 11
Report.^ They testified that the CCES is an independent organization established under
the Canada Corporaüons Act and is managed independently of Sport Canada.
75.
Mr. MacAdam emphasized that the role of Sport Canada is to provide funding to
organizations such as the CCES through annual contracts. While Sport Canada has the
power to decide whether this funding will be granted based on its assessment of how the
money might be used, it cannot direct how the money will be spent. Sport Canada is
limited to enforcing its contractual rights in its contribution agreements.
7.
76.
The Athlete's Character
Athlete "A" and Christian Bagg both testified to the Athlete's strong character and
integrity.
F.
Evidentiary Proceeding—CAS Tribunal
77.
The Appellant called Anne Brown to testify. Her testimony was the only live testimony
heard at the CAS hearings.
78.
Ms. Brown testified about the CCES's various alleged departures from the CADP Rules.
She generally denied that any departures had occurred. The primary bases for her
testimony were that the CCES was not aware that a catheter could be a source of
inadvertent contamination, and that the athletes bear some shared responsibility in
ensuring the integrity of the sample. She conceded that the athletes were not warned of
the risks of using unsterile catheters nor affirmatively provided sterile catheters for these
reasons.
79.
She noted that many of the rules focusing on contamination and the integrity of the
sample were written to ensure that the athletes do not avoid test results by introducing
contamination intentionally.
80.
Ms. Brown also testified that if the Appellant had requested a sterile catheter, he would
have been provided with one, even if, in order to accede to such request, it required a
DCO to go to a local drug store to purchase one.
81.
In addition, Ms. Brown testified that the CCES regularly tests only 20 to 30 selfcatheterizing athletes.
'' See Charles L. Dubin, Commission of Tnquiry Into the Use of Drugs and Banned Practices Intended to Increase
Athletic Performance (Supply and Services Canada, 1990).
-11-
Tribunal Arbitral du Sporl
Court of Arbitration for Sport
CAS2007/A/1312-Page 12
n.
THE PARTIES^ POSITIONS
A.
Appellant
1.
Relief Sought
82-
The Appellant seeks to set aside the decision of the Arbitrator. The Appellant also
requests a declaration that the Appellant was not guilty of an anti-doping rule violation
and further, that the AAF was inadmissible.
83.
The Appellant submits that the Arbitrator made serious errors as to his findings of fact
and his analysis of the law and that relief be granted accordingly.
2.
Appellant's Contentions
84.
The Appellant's arguments are summarized as follows:
85.
The Appellant submits that his constitutional rights guaranteed and protected under ss. 8
and 15 of the Charter were violated when the CCES failed to provide the Appellant with
a sterile catheter or to wam him of the dangers of using a contaminated one. Such a
violation cannot be justified under s. 1 of the Charter. The only remedy can be a
rectification of the constitutional violation by finding that the Appellant is not guilty of a
doping infraction.
86.
In the altemative, the Lab finding in this case is invalid and must be expunged frora the
record and cannot serve as evidence of a violation because:
i.
the Appellant's rights under the Charter were violated, and he is entitled to the
exclusion of this evidence under s. 24 of the Charter or pursuant to the doctrine of
faimess;
ii.
the Human Rights Code (Ontario)^ requires that the Appellant be free from
discrimination and that derogations from this code be remedied with an exclusion
of the Lab's findings; and
iii.
there was:
a) a departure from the CADP Rules hoXh per se and when viewed in light
of natural justice principles, the Charter, and the Human Rights Code,
(Ontario)—for example, Sample Collection Equipment, which must be
read to include catheters, must be provided to athletes under the CADP
Rules; and
b) a failure on behalf of the CCES to prove that this departure was not a
causeofthe AAF.
R.S.0. 1990, c. H.19.
-12-
Tribunal Arbitral du Sport
Court of Arbitration for Sport
CAS2007/A/1312-Page 13
87.
It is submitted that without the Lab's result, the CCES has not met its burden under the
CADP Rules. Therefore, there can be no anti-doping rule violation.
88.
ïn the altemative, if the CCES has met its burden in proving an anti-doping rule violation,
the law of Ontario must be read into CADP Rules 7.38 and 7.39 with the effect that the
laclc of fault (intent, willful blindness, or recklessness) or negügence (unreasonable
Standard of care that causes the resuh) entitles Appellant to the elimination of his or her
sanction. In this case, the Appellant has demonstrated no fault and an absence of
negligence, as those terms are understood at law. He ought, therefore, to have this
sanction eliminated.
89.
In the further altemative, if the stringent standards of fault, negligence, significant fault,
and significant negligence apply despite the law of Ontario, the Appellant has met his
burden under CADP Rules 7.38 and 7.39. He ought, therefore, to have his sanction
eliminated or reduced.
90.
Lastly, the drug cocaine is not a performance-enhancing drug and was not ingested InCompetition. Thus, the punishment suffered by the Appellant offends the community's
sense of fair play and decency.
B.
CCES
1.
91.
Relief Sought
The CCES seeks the dismissal of this appeal with each party hearing its own costs.
2.
CCES's Contentions
92.
The CCES submits that the key facts of this matter are undisputed and that the Arbitrator
made the correct fmdings of fact, fiilly supported by the record.
93.
The CCES further submits that the Arbitrator correctly applied the law and the plain
language of the operative CADP Rules to arrive at his conclusion that an anti-doping rule
violation occurred.
94.
The CCES has shown that the violation occurred to the Arbitrator's "comfortable
satisfaction." In addition, the CCES has shown that any departures from the CADP Rules
alleged by the Appellant never occurred during testing. Thus, the burden of proving that
the AAP was not caused by these alleged departures never shifted to the CCES. The
Arbitrator thus correctly left that burden on the Appellant to show that the AAP was
indeed caused by the alleged errors of the CCES. The Appellant failed to make such a
showing.
95.
Sample Collection Equipment does not include catheters, and under the CADP Rules,
there was no obligation to provide a catheter to the Appellant. A catheter is "additional
and other equipment" that the DCO has the responsibility of inspecting. However, the
Appellant neither: (a) advised the DCO of his need to use a sterile catheter; or (b)
informed the DCO of the history of the catheter.
-13-
Tribunal Arbilral du Sport
Court of Arbitration for Sport
CAS2007/A/1312-Page 14
96.
The CCES also submits that the lack of performance-enhancing quaüties associated with
cocaine has no hearing on whether the presence of the substance is prohibited under the
CADP Rules.
97.
Further, the violation is governed by a strict liability Standard, and thus the fault of the
Appellant does not bear on whether a violation occurred.
98.
It is additionally submitted that the period of ineligibility may only be eliminated if the
Appellant can show that there was no fault or negligence with respect to the violation.
The period of ineligibility can be reduced by up to half if the Appellant shows that there
was no significant fault or negligence. Given that the Appellant failed to take the
appropriate steps after the incident to avoid exposure to risk, he has failed to show either
of these mitigating factors.
99.
The CCES further submits that the Charter and the Canadian Human Rights Act do not
apply to the actions of the CCES or the interpretation of the CADP Rules.
100.
The CCES lastly submits that the Human Rights Code (Ontario), although applicable to
the CCES and the CADP Rules, was never violated because the Appellant had the
freedom to bring any catheter he wished to the doping control station, or, in the
altemative, to request a sterile one.
C.
Athletics Canada
101.
Athletics Canada did not appear at the CAS Tribunal hearing, but made submissions
before the Doping Tribunal.
102.
Athletics Canada submitted that the Appellant failed to meet his re spons ibility to provide
an uncontaminated urine sample. He also failed to demonstrate discrimination under the
Human Rights Code (Ontario) because the Appellant bears at least some responsibility
for the presence of cocaine metabolites in his urine sample.
103.
With respect to the Appellant's testimony about the alleged assault at the Vatikan bar,
Athletics Canada accepted his position and further accepted the position that the Vatikan
Catheter was contaminated and caused the AAF. Athletics Canada made no submissions
with respect to the scientific evidence or Charter issues.
104.
Athletics Canada further submitted that the Canadian Human Rights Act is not applicable
to the present case.
D.
Sport Canada (representing the Government of Canada)
105.
Sport Canada did not appear at the CAS Tribunal hearing, but made submissions before
the Doping Tribunal.
106.
Sport Canada addressed only the issue of whether the CCES discriminated against the
Appellant under the Charter, Canadian Human Rights Act, or the Human Rights Code
(Ontario).
-14-
Tribunal Axbitral du Sport
Court of Arbitration for Sport
CAS2007/A/1312-Page 15
107.
Sport Canada submitted that the Charter and the Canadian Human Rights Act do not
apply to the CCES as a private organization and that only the Human Rights Code
(Ontario) applies.
108.
Sport Canada asserted that the role of the federal govemment with respect to the CCES
and the Appellant is purely contractual in nature. The government merely provides
financial assistance to NSOs and athletes through "contribution agreements" for the
broad purpose of promoting drug-free physical activity.
109.
Sport Canada fiirther submitted that its role in funding programs with a shared goal of
eliminating doping in sport does not amount to the regulation or control of the private
institutions invoived. The CCES does not form part of the govemment; it is not subject
to govemment control nor is it a vehicie through which the government is delivering a
comprehensive program. The CCES is the agent of NSOs, and NSOs are nongovemmental organizations.
110.
Finally, Sport Canada submitted that the courts and tribunals should exercise judicial
restraint and thus should not deal with constitutional issues when the case can be
disposed of on non-constïtutional grounds. This matter is more appropriately adjudicated
under the Human Rights Code (Ontario).
E.
Attorney General for Canada/Sport Canada
UI.
The Attorney General for Canada did not appear at the CAS Tribunal hearing, but made
submissions before the Doping Tribunal.
112.
The Attorney General of Canada took up intervener status and addressed the applicability
of the Charter to the CADP Rules as administered by the CCES in response to
Appellant's Notice of Constitutional Question.
113.
The AG submitted that the tribunal need only deal with the Appellant's Charter argument
if there is a fmding that the CCES is a government actor and that the tribunal is a "court
of competent jurisdiction." In addition, judicial restraint ought to be used because the
Human Rights Code (Ontario) provides a remedy in this case and so, resort to the Charter
is not needed.
m.
DISCUSSION
A.
Charter and Human Rights Issues
1.
The Charter Is Inapplicable to This Dispute
114.
The Appellant submits that the Charter applies to this dispute and that the proper
interpretation of the CADP Rules requires that they be read in light of the Charter. We
agree with the Doping Tribunal in that the Charter does not apply to this dispute.
115.
With respect to the entities to which the Charter applies, section 32 of the Charter states:
-15-
Tribunal Arbitral du Sport
Court of Arbitration for Sport
CAS2007/A/1312-Page 16
This Charter applies:
(a) to the Parliament and government of Canada in respect of all
matters within the authority of Parliament including all matters
relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect
of all matters within the authority of the legislature of each
province.
116.
We thus find that the Charter applies strictly to government actors, not private actors. In
stressing the limited scope of section 32, the Suprème Court of Canada in McKinney v.
Board of Governors of the University ofGuelph States that the Charter applies only to the
government:
[The] Charter is confined to government action. This court has
repeatedly drawn attention to the fact that the Charter is
essentially an instrument for checking the powers of government
over the individual. . ..
The exclusion of private activityfrom the Charter was not a result
of happenstance. It was a deliberate choice which must be
respected. . . .
McKinney v. Board of Governors of the University ofGuelph,
261-62.
[1990] 3 S.C.R. 229 at
117.
However, we recognize, as does the law, that since the government cannot breach the
Charter, it cannot indirectly authorize a breach of the Charter by private actors. Thus,
the Charter applies to both the government and private actors empowered or controlled
byit.
118.
As a result, private entities exercising powers greater than a natural person based on
statutory authority are bound by the Charter. See, e.g., Kwantlen Faculty Association v.
Douglas College [1990] 3 S.C.R. 570; Lavigne v. Ontario Public Service Employees
Union [1991] 2 S.C.R. 211. Additionally, private entities controlled by the government,
essentially forming part of the apparatus of the government, are aiso subject to the
Charter.
119.
But a private actor created by statute does not necessarily wield statutory powers. For
example, in McKinney, the Suprème Court held that the mandatory retirement policies of
private universities were not subject to the Charter. Although the universities were
created by statute, they were not granted statutory powers. They had the power only to
negotiate contracts with their employees, as any other private entity or natural person
could. See also Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483 (holding
that the mandatory retirement policy of a hospital was not subject to Charter review as
the hospital did not have powers greater than a natural person); Harrison v. University of
-16-
Tribunal Arbitral du Sport
Court of Arbitration for Sport
CAS2007/A/1312-Page 17
British Columbia, [1990] 3 S.C.R. 451 (holding that the mandatory retirement poUcy of a
university was not subject to Charter review).
120.
The court in McKinney went on to explain that an example of reviewable statutory
authority would be the type of authority vested in municipalities. Although not classified
as part of the govemment, municipalities perform a quintessential government function.
See Re McCutcheon and City ofToronto, (1983) 147 D.L.R. (3d) 193 (Ont. H.C.) at 203.
They are statutorily empowered to enact coercive laws binding on the pubUc. It follows
that their actions should be subject to the Charter, as they have powers far greater than
those of a private entity.
121.
Thus, the court in McKinney reasoned that the universities, unlike municipalities, had
limited powers and were not deemed subject to Charter scrutiny.
122.
In deciding if a private actor is essentially an organ or apparatus of govemment,
McKinney established that if the private actor is legally autonomous, has its own
goveming body, and controls its daily operations unilaterally, it is generally not
considered part of government. The court concluded that the universities, with their own
goveming bodies, were not govemment entities. Furthermore, the court added that even
though these universities performed an important public policy objective and received
govemment funding to further that objective, the universities' independence remained
unchanged. The court even acknowledged that the govemment had a significant
influence on the universities and yet reasoned that they were still independent within the
meaning of the Charter.
It is evident from what has heen recounted that the universities'
fate is largely in the hands of government and that the universities
are subjected to important limitations on what they can do, either
by regulation or because of their dependence on government funds.
It by na means follows, however, that the universities are organs of
government. There are many other entities that receive government
funding to accomplish policy objectives governments seek to
promote. The fact is that each of the universities has its own
goveming body.
McKinney, [1990] 3 S.C.R. at 272.
123.
Like the universities in McKinney, the CCES, although created by statute, has not been
vested with any statutory authority. It has the power only to enforce the contractual
provisions that other parties, such as athletes, have voluntarily agreed to honor.
Voluntary contractual relationships allow the CCES to impose a regulatory framework on
athletes by way of the CAD? Rules. The CCES exercises its power solely with respect to
this framework, and thus no Canadian law is being applied to the Appellant by the CCES.
This limited power resembles quite closely the non-reviewable power of the universities
in McKinney to enforce retirement policies. Further, it is generally established that the
mies of an organization that are binding on its members by virtue of private agreements
are not subject to Charter scmtiny. See Tomen v. Federation of Women Teachers'
-17-
Tribunal Arbitral du Sport
Court of Arbitration for Sport
CAS 2007/A/1312-Page 18
Associations of Ontario, (1989) 70 O.R. (2d) 48 (CA.) (holding that the bylaws of a
private female teachers' organization were not subject to scrutiny under the Charter).
124.
For all that, we recognize that the courts have occasionally deviated from the rule that
statutory authority must be present before a private actor will be deemed subject to the
Charter. In Eldridge v. British Coïumbia (Attorney General), the Charter was found to
apply to a private entity despite its lacking statutory authority. Eldridge v. British
Coïumbia (Attorney General), [1997] 3 S.C.R. 624. However, the key message from
Eldridge is that when the govemment statutorily obligates itself to provide certain
services, such as provincial healthcare, it cannot contract this obligation out to private
entities without simultaneously subjecting those entities to the Charter. This exception
does not apply.
125.
Besides wielding no statutory power, the CCES, as Messrs. MacAdam and De Pencier
testified, is not a govemment organization or an organ of the govemment. The
govemment cannot dictate the daily operations of the CCES. The CCES is an
independent private organization with its own board of directors. Even though the CCES
receives govemment funding to further the govemment's broad policy objective of
encouraging clean sport, the CCES is still entirely independent. Thus, like the
universities in McKinney, the CCES is not an organ of the Canadian govemment.
126.
For all the foregoing reasons, we fmd that the Charter does not apply to the CAD? Rules
or to their implementation by the CCES. The CCES is not exercising statutory authority
nor is it an organ of govemment.
127.
In the altemative, even if the Charter could apply, we fmd that it is appropriate to
exercise judicial restraint in applying the Charter to any aspect of this dispute. It is clear,
by the Appellant's own admission before the Doping Tribunal, that the Human Rights
Code (Ontario) also applies to this case. The Human Rights Code (Ontario) provides
coextensive protections with respect to the Appellant's claims, and thus, an analysis of
the Charter should be avoided. Professor Hogg notes that when a case can be decided on
non-constitutional grounds as well as constitutional grounds, a constitutional analysis
should be avoided:
A case that is properly before a court may be capable of de cision
on a non-constitutional ground or a constitutional ground or both.
The course of judicial restraint is to decide the case on nonconstitutional grounds. That way, the dispute between the litigants
is resolved, but the impact of a constitutional decision on the
powers of the legislative or executive branches of govemment is
avoided.
Peter W. Hogg, Constitutional Law of Canada, vol. 2, 4* ed. (Scarborough Ont.:
Carswell, 1997) at p. 56-18.2.
-18-
Tribunal Arbitral du Sport
Court of Arbitratioii for Sport
CAS2007/A/1312-Page 19
128.
Because we have determined the Charter does not appiy, we find no need to consider the
question of whether the CAS Tribunal has the jurisdiction to administer a Charter
remedy or whether it is a "court of competent jurisdiction."
2.
The Canadian Human RightsAct Is Inapplicable to This Dispute
129.
The Appellant submits that the Canadian Human Rights Act is applicable to this dispute
and that the CADP Rules must be read in light of the Canadian Human Rights Act. We
agree with the Doping Tribunal in that the Canadian Human Rights Act is inapplicable to
this dispute.
130.
The Canadian Human Rights Act applies to the federal govemment and its agencies. It
does not apply to private corporations unless they are federally regulated. For example,
in Canadian Human Rights Commission v. Haynes, the Federal Court of Appeal stated
that while the actions of the Post Office (an agency of the govemment) and the Bank of
Canada (a federally-regulated business) fall within the ambit of the Canadian Human
Rights Act, the acts of other private organizations generally do not. Canadian Human
Rights Commission v. Haynes (1983), 144 D.L.R. {3d) 734 (Fed. CA.) at 736-37 (cited
with approval in Bell Canada v. Quehec (CSST), [1988] 1 S.C.R. 749 at 761-62). Even if
these organizations, such as private corporations, regularly conduct close business with
govemment entities or federally-regulated businesses, their actions are not subject to the
Canadian Human Rights Act.
131.
The activities of the CCES are thus not regulated by the Canadian Human Rights Act,
because the CCES is not a govemment entity nor are its activities regulated by the
govemment of Canada. Moreover, the fact that the CCES regularly enters into contracts
with NSOs to receive funding from the govemment does not make it subject to the
Canadian Human Rights Act. The CCES, just like other corporations that conduct
business with the govemment, does not become subject to the Canadian Human Rights
Act by virtue of these contracted business dealings.
132.
In addition, the impugned testing which gave rise to the adverse analytical fmding was
conducted in Ontario and the applicable law of this dispute is the law of the Province of
Ontario because this case arises from an SDRCC arbitration.^ Therefore, an analysis of
the discrimination aliegations leveled by the Appellant can and should be made pursuant
to the Human Rights Code (Ontario).
3.
133.
The Human Rights Code (Ontario) Is Applicable to This Dispute, But
Has Not Been Violated
Because the law of Ontario govems this dispute, the Human Rights Code (Ontario)
applies. Section l of the Human Rights Code (Ontario) prohibits discrimination against
individuals in the provision of services on the basis of disability:
Every persen has a right to equal treatment with respect to
services, goods and facilities, without discrimination because of
SDRCC disputes are govemed by the law of Ontario. See SDRCC, Article 6.25.
-19-
Tribunal Arbitral du Sport
Court of Arbitration for Sport
CAS2007/Ayi312-Page 20
race, ancestry, place of origin, colour, ethnic origin, citizenship,
creed, sex, sexual orientation, age, marital status, family status or
disahility.
134.
The Appellant contends that this section has been violated as a result of the CCES failing
to either provide him with a sterile catheter at the Doping Control Station or to wam him
of the dangers of using an unclean one. He maintains that because he is disabled and
must use a catheter, the CCES must ensure that his catheter is sterile. Since able-bodied
athletes do not share the risk of catheter contamination, the Appellant submits that the
CCES treats disabled athletes and able-bodied athletes unequally by imposing that risk
solely on disabled athletes.
135.
We do not fmd that the Human Rights Code (Ontario) placed an affirmative burden on
the CCES to provide sterile catheters or to wam athletes about the risks of using
contaminated catheters. Based on Ms. Brown's testimony at the CAS Tribunal hearing,
we fmd that, at the time, the CCES did not appreciate or fully understand the
contamination risks associated with using unclean catheters. Further, we do not fmd that
the CCES was charged with this knowledge as the CCES has done all it reasonably can to
educate itself and the athletes on successfully navigating the doping control process. The
CCES provides Information on its website and through other media to warn athletes of
the risks associated with using illegal drugs, supplements, and certain medications. Had
the CCES known of the risks of using unclean catheters, we fmd that it would have
similarly wamed the athletes. In our view, the CCES has faü-ly implemented an
exhaustive and comprehensive program designed to protect disabled athletes.
136.
Despite the fact that there are only about 20-30 athletes who self-catheterize, the CCES
has taken significant measures to educate itself on their needs and to ensure that they are
well accommodated. Indeed, had the Appellant requested a sterile catheter, the CCES
would have provided one for him.
137.
In order for a disabled individual to assert di prima facie case under the Human Rights
Code (Ontario), the individual bears the burden to at least show that, prima facie, some
form of discrimination occurred. Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2
S.C.R. 536 at para. 28. We fmd that, generally, a disabled individual must show that he or
she was denied accommodation that was at least reasonably known as a needed
accommodation in order to assert 2i. prima facie case of discrimination. If an organization
is not reasonably aware of a potentially-equalizing accommodation that could be
provided to a disabled person, it is not charged with providing that accommodation.
138.
We fmd, therefore, that there was no requirement under the Human Rights Code
(Ontario) that the CCES offer the Appellant a sterile catheter or wam him of the risks of
not using one.
B.
139.
The Anti-Dopina Rule Violation
The CADP Rules govern the determination of an anti-doping rule violation. These rules
directly incorporate several of the WADA Code provisions.
-20-
Tribunal Arbitral du Sport
Court of Arbitration tbr Sport
CAS2007/A/1312~Page 21
140.
Because we have determined that the Charter and Canadian Human Rights Act do not
apply to this dispute and further that the Human Rights Code (Ontario) has not been
violated, they will not bear on our analysis of the CADP Rules and the anti-doping rule
violation.
1.
The CCES Established a Violation Under the CADP Rules
141.
CADP Rule 7.56 states that facts estabUshed by reliable means may be used in
determining if a violation occurred. It is an undisputed fact that the Appellant's Sample
contained BE and that the lab results were accurate. The Prohibited List includes cocaïne
and lts metabolite BE. According to CADP Rules 7.16 and 7.18, the mere presence of a
Prohibited Substance in an athlete's sample, in any amount, is evidence of an anti-doping
rule violation. We fmd that, under the rules, the manner in which the BE entered the
Sample, either by way of contamination or recent drug use, is irrelevant. During the CAS
Tribunal hearing, it was submitted that if the Appellant successflilly established that the
BE came from the Vatikan Catheter as opposed to his body, no violation would have
occurred. We disagree. Because this is a strict liability violation, we fmd that the mere
presence of BE in the Appellant's Sample ïs in and of itself a violation. The manner in
which the BE entered the sample is irrelevant (unless caused by a rule departure,
discussed infra),
142.
The CCES, under CADP Rule 7.17, need not show intent, fault, negligence, or knowing
use on the part of the Appellant to show a violation because of the presence of a
Prohibited Substance in the Appellant's Sample. Rule 7.17 imposes the Standard of strict
liability, which is well established in anti-doping cases despite the fact that the results
may be unfair in certain situations. Absolute faimess in all individual cases is not the
goal of an anti-doping program nor is it possible as a practical matter. The goal is overall
faimess to all the competitors involved:
It is true that a strict liability test is likely in some sense to be
unfair in an individual case, such as that of Q, where the Athlete
may have taken medication as the result of mislabeling or faulty
advice for which he or she is not responsible — particularly in the
circumstances of sudden illness in aforeign country. But it is also
in some sense 'unfair' for an Athlete to getfoodpoisoning
on the
eve of an important competition. Yet in neither case will the rules
of the competition be altered to undo the unfairness. Just as the
competition will not be postponed to await the Athlete 's recovery,
so the prohibition of banned substances will not be lifted in
recognition of its accidental absorption. The vicissitudes of
competition, like those oflife generally, may create many types of
unfairness, whether by accident or negligence of unaccountable
Persons, which the law cannot repair.
Furthermore, it appears to be a laudable policy objective not to
repair an accidental unfairness to an individual by creating an
intentional unfairness to the whole body ofother competitors. This
-21 -
Tribunal Arbitral du Sport
Court of Arbitration tbr Sport
CAS2007/A/1312-Page 22
is what would happen if hanned
performance-enhancing
substances were tolerated when absorbed
inadvertently.
Moreover, it is likely that even intentional abuse would in many
cases escape sanction for lack of proof of guilty intent. And it is
certain that a requirement of intent would invite costly litigation
that may well cripple federations - particularly those run on
modest budgets - in theirfight against doping.
USA Shooting & Quigley v. UIT, CAS 94/129, 193 (Ct. Arb. Sport 1994).
143.
We thus agree with the conclusions of the Doping Tribunal that the CCES has established
an anti-doping rule violation. Under CADP Rule 7.55, the CCES has the initial burden of
proving that the Appellant committed an anti-doping rule violation. This burden is
greater than a balance of the probabilities but less onerous than proof beyond a
reasonable doubt. The CCES has met this burden by showing the uncontroverted
presence of BE in the Appellant's sample.
2.
Alleged CADP Departures
144.
One of the Appellant's chief contentions is that there were departures from the CADP
Rules. Those departures, he submits, caused the AAF and the resulting anti-doping rule
violation. Under CADP Rules 7.56 and 7.57, if the Appellant can show that a departure
from the CADP Rules occurred, the CCES must show that this departure did not cause
the anti-doping rule violation.
145.
Specifically, the Appellant alleges that the Vatikan Catheter was used during testing as a
direct result of departures from the CADP Rules. He alleges that, under the rules, the
CCES had a duty to warn the Appellant of the dangers of using an unclean catheter or to
provide him with a sterile one. He further alleges that the presence of BE in the Vatikan
Catheter was the actual cause of the AAF and that there was no BE present in his system
when he was tested. Thus, under CADP Rules 7.56 and 7.57, because departures
allegedly occurred, the Appellant submits that the CCES had the burden of showing that
those departures were not the cause of the anti-doping rule violation. The Appellant
urges that had the CCES foliowed the CADP Rules appropriately and ensured he used a
sterile catheter, the AAF would not have occurred.
146.
This argument, at the outset, requires us to accept that the presence of BE in the
Appellant's Sample was in fact the result of contamination. The leamed Arbitrator of the
Doping Tribunal came to the conclusion that the Appellant's testimony regarding the
Vatikan bar incident, on balance, was not entirely credible; we, with the greatest respect,
do not share this conclusion on the evidence available. We fmd that the Appellant's
version of the facts was never contradicted and was fully corroborated by two reputable
witnesses. We further fmd that the lack of physical evidence surrounding the incident
' The Appellant alleges departures from the following CADP rules: 1.1, 6.42(e), 6.51, 6.53, 6.55, 6.59, 6.61(a), 6.62,
6.63, 6.69, 6.72(m), 6A.4, 6B.1, 6B.2, 6B.3, 6B.4, 6B.5, 6B.6, 6B.10, 6B.11, 6C.2, 6C.3, 6C.4, 6C.5, 6C.7 and 6F.6.
He also alleges a departure from the WADA Guidelines for Urine Sample Collection, Rule 6.7.1 (not incorporated
into the CADP Rules) and the WADA Prohibited List - Prohibited Methods, Rule M2. .
-22-
Tribunal Arbitral du Sport
Court of Arbitration for Sport
CAS 2007/A/1312-Page 23
and the fact that police reports were never filed do not, in our view, weigh greatly against
the veracity of the Appeliant's unshaken testimony. Thus, we accept his testimony of the
events at the Vatikan bar. Additionally, we find, as did the Doping Tribunal, that the
scientific evidence is inconclusive as to whether urine remaining in the Vatikan Catheter
could have caused the AAF. When the entire circumstances and known facts are viewed
in light of the Appeliant's uncontroverted testimony and high character, we find that the
AAF was the result of the contamination of the Vatikan Catheter.
147.
However, we agree with the Doping Tribunal in that the CADP Rules Appellant
complains were departed from were not violated. As Ms. Brown testifïed, these rules are
part of an evolving set of guidelines that siowly adjusts through feedback and experience.
The rules, at least at the time of the violation, did not create an affirmative duty to wam
athletes of the dangers of using an unclean catheter or to provide a clean one. At that
time, neither the CCES nor the athletes really understood the risks of using an unclean
catheter. We fmd that the rules did not clearly express such an obligation, particularly in
light of the CCES's knowledge and experience surrounding self-catheterization at that
time. Thus, we will not read such an obligation into the rules.
148.
Moreover, it is not disputed that BE was found in the Appeliant's sample and that the Lab
tests were accurate and conducted properly. Those undisputed facts conclusively
establish the strict liability violation of presence in sample under CADP Rules 7.16 and
7.18. Because the Appellant has been unable to show a departure from the CADP Rules,
the CCES does not have the burden of showing that such a departure did not cause the
anti-doping rule violation. Had the lab departed from a rule that caused, for example, an
incorrect lab result, meaning that no Prohibited Substance was actually found in the
Appeliant's Sample, then there would have been no anti-doping rule violation.
3.
Out-of-Competition Use of Cocaïne Irrelevant
149.
The Appellant alleges that his use of cocaine was Out-of-Competition and that because
cocaine is on the prohibited list for In-Competition use, there was no anti-doping
violation or that sanctions should be mitigated.
150.
In support of his argument Appellant references the editorial comments to Article 2.2.1 of
the WADA Code:
An Athlete's Out-of-Competition Use of a Prohibited Substance
that is not prohibited Out-of-Competition would not constitute an
anti-doping rule violation.
151.
We agree with the Doping Tribunal in that the Appellant has misread the WADA Code
and the CADP. A violation resulting from the presence of a substance found on the
Prohibited List during an In-Competition test operates independently of a violation
resulting from the use of a Prohibited Substance Out-of-Competition. Both violations
may arise independently. For example, an athlete caught smoking marijuana at a party by
a CCES employee would not be found to have committed an anti-doping rule violation
because the use of marijuana is not prohibited Out-of-Competition. However, if that
-23-
Tribuna] Arbitra! du Sport
Court of Arbitration for Sport
CAS 2007/A/l 312 - Page 24
same ath!ete participated in a competition the next month and was tested In-Competition,
his Out-of-Competition use would no longer be relevant. If the presence of marijuana
was detected in his urine, he would be found in violation of CADP Rule 7.16 for the
presence of a Prohibited Substance notwithstanding the time of ingestion or use.
4.
Performance Enhancement Irrelevant
152.
The Appellant further argues that because cocaine could not have enhanced his
performance, either an anti-doping violation should not be found or sanctions should be
mitigated.
153.
We agree with the Doping Tribunal in that performance enhancement is simply not a
factor that may be considered under the CADP Rules or the WADA Code in determining
whether an anti-doping rule violation has occurred or whether sanctions should be
mitigated (unless the substance is a "Specified Substance" on the Prohibited List).
C.
Reduction of Sanctions
1.
The Ineligibiüty Period
154.
Under CADP Rule 7.20, the Appellant was made ineligible to compete for two years as a
result of the anti-doping rule violation. The Appellant urges that CADP Rule 7.38 or,
altematively, CADP Rule 7.39 is applicable and that his Lieiigibility period should thus
be eliminated or reduced.
155.
Under CADP Rule 7.38, the Ineligibiüty period shall be eliminated if the Appellant can
show how the Prohibited Substance entered his body and that there was "No Fault or
Negligence" in committing the violation. This means that the athlete did not know or
suspect that he or she had used or been administered a Prohibited Substance. Under
CADP Rule 7.39, the Ineligibility period may be reduced by up to half if the Appellant
can show how the Prohibited Substance entered his body and that there was "No
Significant Fault or Negligence" in committing the violation. This rule applies if
athlete's fault was not significant in relation to the anti-doping rule violation. The
commentary^ relating to the corresponding provisions of the WADA Code illustrates that
To illustrate the operation of Article 10.5, an example where No Fault or Negligence would result in the total
elimination of a sanction is where an Athlete could prove that, despite all due care, he or she was sabotaged by a
competitor. Conversely, a sanction could not be completely eliminated on the basis of No Fault or Negligence in the
following circumstances: (a) a positive test resulting from a mislabeled or contaminated vitamin or nutritional
supplement (Athletes are responsible for what they ingest (Article 2.1,1) and have been wamed against the
possibility of supplement contamination); (b) the administration of a prohibited substance by the Athlete's personal
physician or trainer without disclosure to the Athlete (Athletes are responsible for their choice of medical personnel
and for advising medical personnel that they cannot be given any prohibited substance); and (c) sabotage of the
Athlete's food or drink by a spouse, coach or other person within the Athlete's circie of associates (Athletes are
responsible for what they ingest and for the conduct of those persons to whom they entrust access to their food and
drink). However, depending on the unique facts of a particular case, any of the referenced illustrations could result
in a reduced sanction based on No Significant Fault or Negligence. (For example, reduction may well be
appropriate in illustration (a) if the Athlete clearly establishes that the cause of the positive test was contamination in
a common multiple vitamin purchased from a source with no connection to Prohibited Substances and the Athlete
exercised care in not taking other nutritional supplements.)
-24-
Tribunal Arbitral du Sport
Court of Arbitration for Sport
CAS2007/A/1312-Page 25
only in truly exceptional circumstances will the circumstances of an anti-doping rule
violation warrant elimination or reduction of a mandatory sanction because of No Fault
or Negligence or No Significant Fault or Negligence. Thus, even in cases of inadvertent
use of a Prohibited Substance, the principle of the Athlete's personal responsibility will
usually result in a conclusion that there has been some fault or negligence. The degree of
such fault or negligence, if not "significant," may be sufficiënt to warrant a reduction of
the applicable period of Ineligibility, but will rarely result in elimination of the period of
Ineligibility altogether.
156.
In Pobyedonostev v. IIHF CAS 2005/A/990, a case involving a positive test by an icehockey player for norandrosterone, it was found that the Prohibited Substance had
entered his system during emergency hospital treatment following an on-ice incident in
which the Player had been injured. Unknown to him, while in hospital, he was treated for
a heart condition with a steroid called Retabolil which was the cause of the positive
result. The Panel found that in the unique circumstances of that case the Player had not
even known until long after his positive test that he had been treated for a heart condition.
Trom his perspective, he had been taken to hospital after he was body checked in a
hockey game and had hit the boards very hard. He had left hospital 24 hours after the
incident and had been able to resumé training soon thereafter. In the circumstances, he
had no reason to suspect that he was being treated with a substance which—contrary to
practice in Western Europe—was being applied for a heart condition. The Tribunal
accordingly found that he was without fault or negligence.
157.
The circumstances of this case are, in our view, also truly exceptional.
158.
While the Appellant knew he had been administered cocaine, we have determined that
this was not actually the cause of the AAF and the resulting anti-doping rule violation.
The cause of the AAF was the contamination of the Vatikan Catheter, so there was no BE
in the Appellant's body at all when he was tested. Thus, to meet the requirements of
Rule 7.38, we find that the Appellant need only explain that there was no BE in his body
and that he was not at fault with respect to the contamination.
159.
We find that the Appellant has sufficiently explained in his testimony that there was no
cocaine or BE in his body at the time of testing and that the AAF was the result of
contamination by the Vatikan Catheter. The Appellant was the victim of an assault in the
Vatikan bar which led to his ingestion of cocaine. He cannot be held to have been
negligent or otherwise at fault in not preventing that incident from occurring.
160.
We also find that the Appellant was not at fault because he could not reasonably have
appreciated the risks of using a used catheter. The Appellant and other athletes testified
that they never knew about or considered the risks of catheter contamination. Moreover,
if the CCES was unable to appreciate these risks, we cannot expect the Appellant to have
known about them either,
161.
While we still find the Appellant to have committed the strict liability violation of
presence of a Prohibited Substance, in the unique circumstances of this case, we must
-25-
Tribunal Ai'bitral du Sport
Court of Arbilration for Sport
CAS 2007/A/1312-Page 26
eliminate the Appellant's Ineligibility period under CADP Rule 7.38 because he was not
at fauit.
2.
162.
CADP Rules 7.5 and 7.6 provide for the disquaUfication of results achieved at events and
competitions. Accordingly, the Appellant's competition result, medals, points, and prizes
received at the ING Ottawa Marathon held at Ottawa, Ontario on May 28, 2006, are
forfeited.
3.
163.
Funding
As the Doping Tribunal noted, CADP Rule 7.37 provides that an athlete who commits
and is sanctioned for an anti-doping rule violation pursuant to Rules 7.16-7.25 and 7.287.36, shall be permanently ineHgible to receive any direct financial support provided by
the Government of Canada. Having determined that no term of suspension should be
imposed on the Athlete despite the AAF, does the disquaUfication from the Athlete's
competition result nevertheless constitute a "sanction," with the resultant loss of federal
funding? We think not. The disquaUfication of results is provided for by CADP Rules
7.5 and 7.6. These clauses are not mentioned in CADP Rule 7.37. If it had been
intended that anyone found to have committed an anti-doping rule violation should be, as
a result, rendered ineligible for fürther govemment funding, the applicable rules could
have been promulgated to that effect, but were not.
D.
164.
Disqualiflcation of Results
Allocation of Costs
(...)
-26-
Tribunal Arbitra! du Sport
Court of Arbitration tbr Sport
CAS2007/A/1312-Page 27
ON THESE GROUNDS
The Court of Arbitration for Sport rules;
1.
The Appeal filed by Mr. Jeffrey Adams at the Court of Arbitration for Sport
(CAS) against the Canadian Centre for Ethics in Sport on 27 June 2007 is
partially upheld.
2.
In accordance with the Doping Tribunal's findings, an anti-doping rule violation
is found to have occurred under CADP Rule 7.16.
3.
Mr. Adams' Ineligibility period of two years shall be eliminated.
4.
In accordance with the Doping Tribunal's findings, Mr. Adams' competition
result, medals, points, and prizes received at the ING Ottawa Marathon held at
Ottawa, Ontario on May 28, 2006, are forfeited under CADP Rule 7.4.
5.
Mr. Adams is eligible to receive direct fmancial support from the Government of
Canada.
6.
(...)
Done in Lausanne, this 16 day of May 2008.
Mr. C. Mark Baker, Esq.
President of the Panel
Professor Edward Ratushny, Q.C.
Mr. Graeme Mew, Barrister
Arbitrator
Arbitrator
-27-