Reference: CAS 2000/011
Court: Court of Arbitration for Sport
Judge: Kavanagh J, Netzle, Oliveau
Date of judgment: 28 Sep 2000
Summary: Sport - Gymnastics - Disqualification - Doping / drug taking - Strict Liability - Relevance to penalty
The applicant was a Romanian gymnast participating at the Olympic Games in Sydney in September 2000. Between 19 and 24 September she won two gold (one team, one individual) and one silver medal in gymnastic events. On 21 September, after winning her second gold, she underwent doping controls. On 24 September pseudoephedrine, a stimulant, was detected in her urine sample at a concentration greater than the threshold permitted by the IOC. On 25 September the IOC stripped her of her second gold medal. On 26 September the applicant applied to the Court of Arbitration for Sport to set aside the IOC decision and restore the gold medal to her.
Whether doping or drug taking in breach of the Olympic Movement Anti-Doping Code is a strict liability offence or whether an element of intent is required to establish the offence. Whether, to establish a doping offence, it is necessary to demonstrate that the athlete obtained a competitive advantage.
The IOC’s decision was upheld and the application dismissed. Doping is a strict liability offence. The mere presence in the urine sample of a prohibited substance or a relevant substance at a prohibited concentration is sufficient to establish the offence. It is not necessary in establishing the offence to demonstrate that the athlete secured a competitive advantage. The subjective elements argued in the attack on the finding of doping were only relevant to the assessment of any disciplinary sanction.
“The system of strict liability of the athlete must prevail when sporting fairness is at stake. This means that, once a banned substance is discovered in the urine or blood of an athlete, he must automatically be disqualified from the competition in question, without any possibility for him to rebut this presumption of guilt”. So the CAS firmly upheld. The Anti-Doping Code had to be enforced “without compromise”. That the applicant had taken Nurofen for a cold, not to gain a competitive advantage was irrelevant. As was expert opinion that she had obtained no such advantage.