CAS 98/211 B v FINA

Abstract

In August 1998, B (an Irish swimmer, Michelle Smith de Bruin) was suspended for 4 years by the respondent’s (FINA, swimming’s world governing body) anti-doping panel, having been found to have committed an offence—the use of substances and methods altering the integrity and validity of urine samples in doping control—contrary to FINA’s anti-doping regulations. On 2 September 1998, de Bruin submitted an appeal to CAS in which she challenged the findings of FINA’s Anti-doping Panel on various grounds and namely: that FINA’s Anti-doping Panel had failed to reach a decision in accordance with the appropriate burden and standard of proof; that the Chairman of FINA’s Anti-Doping Panel had exhibited substantial bias against her; that the individual anti-doping testers who had carried out the out-of-competition testing of her at her home, and which led to the stated “manipulation” charges, had lacked the authority to carry out “unannounced” tests; that, in any event, unannounced testing out-of-competition was not permitted under FINA’s then anti-doping rules; that the chain of custody of her urine sample had not been properly established by FINA such that CAS ought to have significant doubt as to whether the sample tested was in fact her sample and/or that her sample had been manipulated while on its way to or at the testing laboratory by an unknown third party. CAS dismissed the appeal. The CAS Panel rejected both the “compromised chain of custody” and the “third party manipulation” hypotheses advance by de Bruin. The CAS Panel found that FINA had discharged the burden of proof and met the requisite standard of proof. On the former, the CAS Panel reiterated that there was no doubt that the burden of proof lay upon the sports governing body to establish that a doping infraction had been committed and that the presumption of innocence operated in the athlete’s favour until the governing body had discharged that initial burden. On the latter, the CAS Panel reiterated that the requisite standard of proof required of the relevant anti-doping panel was less than the criminal standard but more than the ordinary civil standard, i.e. the “comfortable satisfaction” standard. Moreover, the CAS Panel held that in sitting as an appellate body which formed part of a wider appeals systems and which allowed it to hear the full merits of the dispute before it, that issues such as the fairness of the hearing before the tribunal of first instance “fade to the periphery”, i.e. any apparent defects in the hearing before FINA’s Anti-doping Panel, were to be considered cured by the de novo nature of the CAS hearing.