TAS - CAS 1284, 1308 de 2007

Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2007/A/1284 & CAS 2007/A/1308 World Anti-Doping Agency (WADA) v. Federación Colombiana de Natación (FECNA) & Lina Maria Prieto, award of 8 July 2008

Panel: Prof. Martin Schimke (Germany), Sole Arbitrator: Aquatics (swimming) Doping (norandrosterone; testosterone) Direct application of the rules of an International Federation to athletes Appealable decision before the CAS Applicable law by tacit agreement of the parties Condition for the admissibility of the appeal Consequences of an IF’s delay to communicate a decision to WADA Duty of the athlete to ensure that no prohibited substance enters his/her body

1. Provided that a National Federation is subject to the rules/regulations of an International Federation, such regulations and in particular the doping control rules can be deemed directly applicable to athletes. This may be either through an agreement/license or through the accreditation for a specific competition, or through a chain of references to the International Federation rules in by-laws or other regulations.

This kind of factual assumption - based on experience and the fact that competitors generally submit themselves to all applicable regulations of the relevant competition (including doping rules) by their participation in the competition - has already been confirmed by CAS precedents.

2. The concept of an appealable decision (including an appeal against the failure to make a decision) has been defined in the well-established case law of the CAS. In this respect, the form of the communication has no relevance to determine whether there exists a decision or not; furthermore for a communication to be a decision, the communication must contain a ruling, whereby the body issuing the decision intends to affect the legal situation of the addressee of the decision or other parties. Neither the lack of knowledge of the form in which the official decision has been rendered nor the fact that a formal

(written) decision with reasons has not yet been handed in, changes this in any way.

3. The election of governing law by tacit agreement is possible. For instance, by their behaviour, the parties could have clearly given their assent to the application of a specific law. Nevertheless, to admit this, it must undoubtedly emerge through the parties’ conclusive acts, that they agreed on the applicable law when they entered into the disputed contractual relationship.

4. In cases where a provision refers to the “receipt of the decision” for defining the time limit of the appeal (in contrast to the term “notification/notice of the decision”), this must be interpreted in a sense of a mere and common “time limit provision”. In no way CAS 2007/A/1284 & 1308 2

WADA v. FECNA & Lina Maria Prieto, award of 8 July 2008 does it indicate a requirement of admissibility to the effect that a party entitled to appeal cannot lodge an appeal before the actual receipt of the relevant formal decision. Rather, if there are no doubts as regards the existence of a decision, the term “receipt” has to be interpreted in a way that the “dies a quo” of the time limit is at least – as “a minus” of a receipt – the notice of the decision.

5. A delay of an International Federation to pass to WADA the information of the existence of the decision cannot be held against WADA. Should it be otherwise, it would imply for WADA to intervene in national cases and take measures or make inquiries, which obviously fall into the competence of the National or the International Federations.

6. It is each athlete’s personal duty to ensure that no prohibited substance enters his/her body. For an athlete, to allege that he/she made a few researches on the internet before he/she ingested nutritional supplements allegedly containing the prohibited substance is not enough to meet the standard of care expected of a top-level athlete, i.e. obtain assurances from his/her physician, pharmacist or team doctor that the supplements do not contain a prohibited substance.

The World Anti-Doping Agency (WADA or the “Appellant”) is a Swiss private-law foundation. Its seat is in Lausanne, Switzerland, and its headquarters are in Montreal, Canada. WADA was created in 1999 to promote, coordinate, and monitor the fight against doping in sport in all its forms. The Federación Colombiana de Natación (FECNA) is a national federation governing aquatic sports in Colombia. Its registered seat is in Cali, Colombia, and it is affiliated with the Fédération International de Natation (FINA), the organization governing aquatic sports world-wide. Ms Lina Maria Prieto is a swimmer and a registered member of the FECNA. Ms Lina Maria Prieto participated in the Campeonato Internacional Ciudad De Cali, which took place in April 2006 in Cali, Colombia. This international swimming competition was organized under the supervision of the FECNA. Between 7 and 9 April 2006, Ms Lina Maria Prieto was subject to in-competition drug testing. She tested positive to the prohibited substance norandrosterone and for a too-high ratio of testosterone to epitestosterone. On 3 May 2006, the WADA-accredited Laboratory for Doping Control of Coldeportes Nacional sent its report to the FECNA and a copy to the FINA and the WADA. On 18 May 2006, Ms Lina Maria Prieto was heard by the FECNA Executive Committee, consisting of Mr Edgar Iván Ortiz Lizcano (FECNA President), Mr Lester R. Florillo (FECNA Member), Mr Pedro Pérez Velásquez (FECNA Logistical Director) and Mr Julio César Echeverry (FECNA CAS 2007/A/1284 & 1308 3 WADA v. FECNA & Lina Maria Prieto, award of 8 July 2008 Executive Director). Were also present Mr Hernán Javier Alzate Ortiz (President of the Quindio

Swimming League) and Mr Diego Vargas Uribe (the athlete’s coach). According to the minutes of the meeting: Ms Lina Maria Prieto alleged that certain nutritional supplements she ingested must have lead to the positive test results. This came as a surprise to her as she relied entirely on indication gleaned from the internet, according to which the content of her nutritional supplements were free of any banned substance. The athlete accepted the laboratory results and renounced to have the “B” samples analysed. The FECNA Executive Committee informed Ms Lina Maria Prieto that as of 18 May 2006, “she was forbidden to take part in any kind of competition and that the times achieved at the Championships of the City of Cali would be withdrawn from the national ranking and would not be considered for any form of reference”. On 5 July 2006, the FINA informed the WADA that Ms Lina Maria Prieto had been provisionally suspended by the FECNA and that a decision of a Disciplinary Commission was still to be rendered. On 28 November 2006, the FECNA Disciplinary Commission held a meeting and heard evidence from Ms Lina Maria Prieto as well as from her coach, Mr Diego Vargas Uribe. They both confirmed the submissions made by the athlete to the FECNA Executive Committee on 18 May 2006. On 1 December 2006, Mr Hernán Javier Alzate Ortiz, President of the Quindio Swimming League, and Mr Mario Andrés Villalobos Trejos, physical training instructor, wrote a letter to the FECNA Disciplinary Commission to confirm Ms Lina Maria Prieto’s reputation of a serious and hard working athlete, incapable of taking intentionally doping substances in order to enhance her sportive performance. Sometime during 2006, Ms Lina Maria Prieto was allegedly sanctioned by the FECNA with a oneyear period of ineligibility. On 28 February 2007, the FECNA wrote to the FINA the following (as translated into English by the FECNA): “Reference: Failure Description of Lina Maria Raga Prieto’s Case.

In answer to its office of 6 of February of 2007, and according to its request, we sent the required documents and explained the declared failure. In reference to the case, it is necessary to explain the following elements to determine the reach of the failure, and meaning of the final sanction. In order to transact the case, it was taken according to the established in the Colombian Law identified with the number 49 of 1993, made by the Senate of the Colombian Republic. In this Law the procedures explain that it is due to respect the duties and rights of the parts (This establishes the Right Judgment). Also, Agreement 02 of 1993, welcomes the FECNA’s Discipline Code and this as well, it leans in the mentioned Law that in this case, we take refuge; not without establishing before that we totally know the FINA Rules, in special, in which it makes reference to rule DC2.1, following DC10.2 and so.

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WADA v. FECNA & Lina Maria Prieto, award of 8 July 2008 For this case, the Failed (Document sent to you and translated to English) displayed the following stages that correspond to the due process, that is to say: Object of the uprising: that is, the identification or committed violation. Identity of the Investigated one: Personal data.

Summary of the facts: Report from the Control Doping laboratory that showed the analyses of taken samples, with adverse results.

Qualification of the fault: related to what is established in the FINA disciplinary codes, the FECNA and the Colombian Law related to the subject.

Analysis of the tests: five tests appeared: - Report contributed by the control doping laboratory which considers analytical adverse finding for anabolic steroid. - Act of Diligence (interview) of free version, where the sportswoman accepts to consumed a medicine called “tribulus” as vitamin, and in which she did not know that such vitamine had the component for what she

is being accused. - Sport Trainer version of the sportswoman. - President of Quindio Swimming League written version. - Disciplinary report of the FECNA, on the antecedents of the sportswoman. Considerations where the probatory is valued, it settles down the fault of the sportswoman and the extenuating ones of the fact.

It solves: Resolving act by which proffered the sanction.

With the stages of the fault described before, it is necessary to establish that the Disciplinary Commission considered what it is established in the FINA and FECNA Code, in relation to the times of eligibility. In this, both parts consider FINA DC 10.2 by 2 years and FECNA literal Art. 9. G, between 2 and 5 years of eligibility. For the attenuation circumstances the FINA considers the established in DC 10.3 and DC 10.5.2; the WADA Code numeral 10.5.2. In this order it was considered the proves the sportswoman gave (container of Tribulus), it did not have the description of the components that appear in the test of the control doping laboratory; once well-known the sample, and listened to the free version of the sportswoman, she later contributed with two studies, in which it appears the anabolic steroid, fact that the sportswoman did not know, nor its trainer and people who train her in her university. With the contributed arguments, it is referred that the sportswoman consumed the substance under the knowledge the fraud publicity of the label product had. Also, the product is of easy acquisition in the market since it is sold like nutritional supplement. In this case, the Disciplinary Commission of the FECNA considers that Absence of Fault appears or Significant Negligence in the measurement that the sportswoman acted under fraud publicity when she committed the violation, that does not exonerate it of the fault, but it is considered extenuating, fact that adjusts in the established in the WADA Code (10.5.2) and FINA (DC 10.3.).

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WADA v. FECNA & Lina Maria Prieto, award of 8 July 2008 Since the Sportswoman collaborated in the process as she describes herself in the considerations of the failure and considering the norms of both Associations, the fault adjusts to the established norms to reduce half of the period of eligibility, or a year (12 months) as it were failed. According to the established by the same rules the resources for replenishment and appeal in consideration of the judgment established by WADA, FINA and the Colombian Laws. For your collaboration thank you very much”. On 2 April 2007, the FINA wrote to the WADA in relation with the decision of the FECNA sanctioning Ms Lina Maria Prieto for the anti-doping rule violation committed during the Campeonato Internacional Ciudad De Cali, which took place in April 2006 in Cali, Colombia. It explained to the WADA why it did not intend to file an appeal against the said decision. On 16 April 2007, the WADA wrote to the FECNA the following: “Case PRIETO Lina Maria Dear Sir, We have been notified on 10 April 2007 by FINA of the decision rendered by the FECNA Disciplinary Commission in the above-mentioned case and inform you that the World Anti-doping Agency (WADA) is willing to appeal against this decision. (…) Due to the above, WADA considers that the decision rendered in the case of Mrs Prieto is much too lenient and not in line with CAS case law. (…) This letter serves as a formal declaration of appeal which we ask you to transmit to the relevant authority. As soon as we receive the requested information, we will file a detailed brief in the matter. Unless the matter is resolved before 21 days, we will also appeal to CAS to preserve our right of appeal”. On 26 April 2007, the FECNA confirmed to the WADA that its appeal was forwarded to the FECNA

Disciplinary Commission. On 27 April 2007, the WADA filed a statement of appeal with the Court of Arbitration for Sport (CAS). On 15 June 2007, the WADA submitted to the CAS its appeal brief, which contains a statement of facts, legal arguments and is accompanied by supporting documents. It requested the following: “WADA hereby respectfully requests that the CAS rule that: The Appeal of WADA is admissible. The Decision of the FECNA in the matter of Ms. Lina Maria Prieto is set aside; Ms Lina Maria Prieto is sanctioned with a two-year period of ineligibility.

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WADA v. FECNA & Lina Maria Prieto, award of 8 July 2008 All competitive results obtained by Ms Lina Maria Prieto from April 8, 2006, through the commencement of the applicable period of ineligibility shall be disqualified with all the resulting consequences including forfeiture of any medals, points and prizes. WADA is granted an award of costs”. On 3 May 2007, the WADA filed with the FECNA a detailed appeal brief against its decision delivered in the case of Ms Lina Maria Prieto. On 16 May 2007, the FECNA Disciplinary Commission issued the following document (as translated into English by the FECNA): Re.: Clarification regarding the conduct of the Disciplinary Commission concerning the case of the athlete Lina Raga. In relation to the WADA communication of 3 May 2007, we should like to make the following clarifications: Chapter III of agreement 002 of 1993, which revises the Disciplinary Code of the Colombian Swimming Federation (FECNA), establishes the procedure to be followed regarding disciplinary investigation, whilst chapter II establishes the description of the ruling and related punishment, constituting, in accordance with the legal and constitutional laws, the due process of the respective disciplinary proceedings.

Such agreement also contains articles that establish extenuating circumstances and aggravating circumstances respectively in relation to the sanction. The extenuating circumstances were taken into account in relation to the present case. According to the dictionary of the Real Academia Espanola, extenuating circumstances are: “Facts that reduce criminal responsibility and consequently the sanction” (Larousse Illustrated Dictionary). As such, since her conduct fell under the provisions of article 17 of agreement 002 of 1993, Ms LINA MARIA RAGA PRIETO was granted a reduced sanction, based on the minimum sanction set forth in article 9 G of the aforementioned agreement. We should also like to inform you that article 34 of agreement 002 of 1993 establishes the possibility and form of recourse to appeal rulings issued by the FECNA Disciplinary Commission. Such appeal must be lodged within five (5) days subsequent to notification. For those sentences or rulings issued when there is no recourse pending because the law does not provide for one or because the term during which one may be lodged has expired, there is another concept, that of the res judicata, which, in the field of sanctions, relates to the fact that one person cannot be tried twice for the same crime, regardless of whether such person was found guilty or innocent, and is based on the fundamental impediment imposed on judges and civil servants invested with punitive authority by the principle of NON BIS IN IDEM. When relating this impediment to the case at hand, we find that no recourse is possible since the term of such recourse fully expired and the ruling has the quality of a res judicata. Finally, it should be noted that certain sections in article 29 of the Political Constitution of Colombia, referring to due process, state the following: “… a person may be tried only in accordance with the laws existing at the time of the crime of which such person is accused, before a judge or competent court and in observance of all of the forms that befit each case”. “… to a due process with no unjustified delays … and not to be tried twice for the same crime”.

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WADA v. FECNA & Lina Maria Prieto, award of 8 July 2008 Due process is a whole set of guarantees that protect people, in order to ensure that reliable justice is administered without delay during such process. Article 4 of our Political Constitution states the following: “The Constitution is the law of laws. In the event of incompatibility between the Constitution and the law or other legal regulation, the constitutional provisions shall apply. It is the duty of nationals and foreigners in Colombia to comply with the Constitution and the laws, and respect and obey the authorities”. Furthermore, we, the members of the Disciplinary Commission, can guarantee good faith and transparency in the conduct of the disciplinary proceedings, having given the opportunity to the person involved and her coach to be heard, having sought a fair and equitable decision, and also having based our decision on the report of the Coldeportes National Doping Control Laboratory. Finally, in the future, we shall endeavour to rely on the support of international control bodies before we apply any sanctions”. By fax dated 24 May 2007, the FECNA sent the above quoted “clarification” to the WADA. It also confirmed that its Administration Board and its Disciplinary Commission held a meeting on 12 May 2007 and were expecting the WADA to make “observations, suggestions and instructions (…) in relation to what [FECNA] should do about the case of the athlete Lina Raga, in order to come up with a definitive solution in keeping with current regulations and Colombian law”. On 14 June 2007, the WADA filed another statement of appeal with the CAS. It challenged the “clarification” dated 16 May 2007. On 22 June 2007, the Appellant filed its appeal brief, which contains a statement of the facts and legal arguments accompanied by documents as evidence. It submitted the following request for relief: “WADA hereby respectfully requests that the CAS rule that: The Appeal of WADA is admissible.

The Decision of the FECNA of May 16, 2007 in the matter of Ms. Lina Maria Prieto is set aside; Ms Lina Maria Prieto is sanctioned with a two-year period of ineligibility. All competitive results obtained by Ms Lina Maria Prieto from April 8, 2006, through the commencement of the applicable period of ineligibility shall be disqualified with all the resulting consequences including forfeiture of any medals, points and prizes. WADA is granted an award of costs”. The WADA refers to the legal arguments and petitions made in its first appeal brief of 15 June 2007. The essence of the Appellant’s submissions can be summarized as follows: - The appeal of the WADA is admissible and was filed in a timely manner. - It has been scientifically established that Ms Lina Maria Prieto has violated an anti-doping rule.

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WADA v. FECNA & Lina Maria Prieto, award of 8 July 2008 - Considering the fact that Ms Lina Maria Prieto has never given any plausible or valid explanation as to a possible cause for the positive findings, she is not entitled to any exclusion or reduction of the otherwise applicable sanction.

• “The ordinary two-year sanction provided for by article DC 10.2 of the FINA Rules is therefore applicable”

(Appeal brief of 15 June 2007, par. 49). - All competitive results obtained by Ms Lina Maria Prieto from April 8, 2006, through the commencement of the applicable period of ineligibility shall be disqualified with all of the resulting consequences including forfeiture of any medals, points and prizes. The Respondents failed to submit a response to the aforementioned submissions of the Appellant either within the given time limit or subsequent to the expiry of it. On 30 August 2007, and upon the instructions of the Sole Arbitrator, the CAS Court Office invited the FECNA to answer the following questions: “i. What was the nature of the competition CAMPEONATO INTERNACIONAL CIDUDAD

DE CALI, which took place in Cali on April 2006? ii. Was this Championship a FINA competition or a FECNA competition? iii. Which sportive authority was responsible for the doping tests? iv. How did FECNA keep FINA and WADA informed about the evolutions of the Lina Maria Prieto’s case, since 3 May 2006, that is when the WADA accredited laboratory sent its report to FECNA with a copy to FINA and WADA?

1. When did FINA establish the first contact with FECNA regarding this case? (…) I hereby invite FECNA to furnish the CAS Court Office with the formal decision imposing a one-year period of ineligibility on Ms Lina Maria Prieto and with all details related to the sanction already imposed (for example beginning of the suspension, provisional suspension, return of any medal, etc…)”.

In the same letter, the Sole Arbitrator invited the WADA to answer the following questions: “i. How did WADA react to the positive findings communicated by the WADA accredited laboratory on 3 May 2006 and how did WADA keep up to date regarding the said positive findings? ii. On 2 April 2007 FINA wrote to WADA regarding Lina Maria Prieto’s case. Was this the first contact between FINA and WADA regarding the said case? If not, WADA is requested to indicate exactly when it first discussed of Lina Maria Prieto’s case with FINA and to what extent”. By fax dated 7 September 2007, the FECNA confirmed to the CAS Court Office the following: - The Campeonato Internacional Ciudad De Cali is a FECNA competition. It is an international event open to South American swimming clubs. - The organ responsible for the doping tests was the Laboratory for Doping Control of Coldeportes Nacional.

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• From the moment it heard about the positive findings, the FECNA had “maintained permanent written communication with FINA, and later on with WADA and CAS, regarding the development of the case”. - The FECNA had “answered all the questions and inquiries that [had] been posed […] in relation to this case and [had] included copies of all the documentation related to the case”. - The first contact the FECNA had with the FINA was on 7 June 2006. On that date, it informed the latter international federation of the name of the athlete who was found guilty of a doping violation.

The FECNA has neither provided the formal decision imposing the one-year period of ineligibility on Ms Lina Maria Prieto nor the details related to the sanction already imposed, such as the beginning of the suspension or the return of any medals, etc. On 12 September 2007, the WADA confirmed to the CAS Court Office, that: - after the notification of May 2006 by the WADA-accredited laboratory, it wrote to the FINA to find out whether disciplinary proceedings had commenced; - on 5 July 2006, it received the name of the interested athlete and the confirmation of the fact that the latter had been provisionally suspended; - “FINA did not provide WADA with other information or documentation on this case before its letter dated April 2, 2007”. Both the WADA and the FECNA confirmed to the CAS Court Office that they agreed to waive a hearing. Ms Lina Maria Prieto was formally invited to inform the CAS Court Office whether she preferred a hearing to be held or whether the Sole Arbitrator should issue an award on the basis of the written submissions. She failed to communicate her position in this regard. In the above circumstances and pursuant to article R57 of the Code of Sport-related Arbitration (“the Code”), the Sole Arbitrator decided to refrain from holding a hearing. As both appeals (CAS 2007/A/1284 and CAS 2007/A/1308) concern the same doping case and the

parties to these proceedings are identical, the Sole Arbitrator decided to join the two appeal procedures and to render one common award. This was explicitly requested by the Appellant and impliedly agreed by both Respondents due to their failure to respond to the letter dated 7 August 2007 sent to the parties by the Counsel to the CAS, which stated: “Unless I hear otherwise form the parties within a deadline of 10 August 2007, it will be assumed that the parties agree to such joinder”.

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WADA v. FECNA & Lina Maria Prieto, award of 8 July 2008 LAW CAS Jurisdiction

1. The main issues to be resolved by the Sole Arbitrator in deciding the question of the jurisdiction

of the CAS are:

A. Is there an “arbitration clause”?

B. Is there a “decision”?

A. Is there an “arbitration clause”?

a) The FINA Constitution

2. As far as can be seen, the Regulations of the FECNA contain no formal provisions granting jurisdiction to the CAS. However, it is obvious and undisputed that the FECNA is the body in Colombia governing aquatic sports and is a member federation of the FINA.

3. Article C 7.2 of the FINA Constitution states that: “The Constitution and rules of a Member must not be in conflict with those of FINA. Where there is a conflict, FINA rules shall prevail”.

4. Pursuant to article C 25 of the FINA Constitution, “Disputes between FINA and any of its Members or Members of Members, individual members of Members or between Members of FINA that are not resolved by a FINA Bureau decision may be referred for arbitration by either of the involved parties to the Court of Arbitration for Sports (CAS), Lausanne. Any decision made by the Arbitration Court shall be final and binding on the parties concerned”.

b) The FINA Doping Control Rules

5. The FINA Doping Control Rules provide at the beginning (under the heading “Scope”) the following: “These Anti-Doping Rules shall apply to each Participant in the activities of FINA or any of its Member Federations by virtue of the Participant’s membership, accreditation, or participation in FINA, its Member Federations, or their Competitions.

These Anti-Doping Rules shall apply to all Doping Controls over which FINA has jurisdiction. All Member Federations shall comply with these Anti-Doping Rules. The regulations of Member Federations shall indicate that all FINA Rules including Anti-Doping Rules shall be deemed as incorporated into and shall be directly applicable to and shall be followed by Competitors, Competitor Support Personnel, coaches, physicians, team leaders, and club and Federation representatives under the jurisdiction of the respective Member Federations (…)”.

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WADA v. FECNA & Lina Maria Prieto, award of 8 July 2008

6. Likewise, article DC 14.1 of the FINA Doping Control Rules states the following: “All Member Federations shall comply with these Anti-Doping Rules. The regulations of Member Federations shall indicate that all FINA Rules including Anti-Doping Rules shall be deemed as incorporated into and shall be directly applicable to and shall be followed by Competitors, Competitor Support Personnel, coaches, physicians, team leaders, and club and Federation representatives under the jurisdiction of the respective Member

Federations”.

7. Furthermore and according to article DC 14.6 of the FINA Doping Control Rules, “When a Member Federation has received an Adverse Analytical Finding on one of its Competitors (…), it shall report

the following information to FINA and WADA within fourteen (14) days of the process described in DC 7.1.2 and 7.1.3: the Competitor’s name, country, sport and discipline within the sport, whether the test was InCompetition or Out-of-Competition, the date of Sample collection and the analytical result reported by the

laboratory”.

8. Finally and as developed hereafter, the jurisdiction of the CAS derives expressly from article

DC 13 of the FINA Doping Control Rules. c) In casu

9. The FECNA pointedly makes reference to the FINA Doping Control Rules in several letters sent to the FINA as well as to Ms Lina Maria Prieto (see for example the letters of 28 February 2007 and of 11 May 2006, appendixes 1 and 13 to the appeal brief dated 15 June 2007). Its Disciplinary Commission even mitigated the minimum penalty of a two-year suspensionprovided by article 9 lit. g) of the agreement 002 of 1993 of the FECNA Disciplinary

Regulations - on the basis of articles DC 10.3 and DC 10.5.2 of the FINA Doping Control Rules (see the letter of FECNA to the FINA dated 28 February 2007).

10. Additionally, the WADA-accredited laboratory sent its positive results to the FECNA and a

copy to the WADA and to the FINA as required by article DC 14.6 of the FINA Doping Control Rules.

11. In its fax dated 7 September 2007, the FECNA confirmed to the CAS Court Office that it had “maintained permanent written communication with FINA, and later on with WADA and CAS, regarding the development of the cas