As stated, if the B sample has confirmed the A Sample, FEI
then sets a Provisional Hearing. (9) At the Hearing, it is “the
burden of proof upon the Athlete or other Person alleged to
have committed an anti-doping rule violation to rebut a presumption
or establish specified facts or circumstances, and the
standard of proof shall be by a balance of probability.” (10) The
Athlete can then request another Provisional Hearing in certain
instances, or proceed to a FEI Tribunal for a Final Hearing on
the underlying Adverse Analytical Finding and address the issue
of mitigation factors affecting a final suspension.
An Athlete should understand that (11) the facts established
at the Final Hearing by the Tribunal, unless appealed successfully,
or if appeal is later denied, “shall be irrebuttable evidence
against the Athlete.” If the Athlete does not appear at the Final
Hearing live or in person to respond to questions from the Tribunal,
the Tribunal may draw “an inference adverse to the Athlete”
based upon that failure. (12) A finding of the FEI Tribunal will
be reported to the National Federation, in the case of a U.S.
equestrian Athlete, to USEF for a equine discipline under USEF.
(13) The Athlete may appeal a finding of the FEI Tribunal to the
Court for Arbitration for Sport (“CAS”). Effective 30 June, 1984,
CAS is the tribunal to which FEI Disciplinary cases may be
appealed, whether by the Athlete, WADA or a NF. CAS was
established because, at the beginning of the 1980s, “the regular
increase in the number of international sports-related disputes
and the absence of any independent authority specializing in
sports-related problems and authorized to pronounce binding
decisions led the top sports organizations to reflect on the question
but those instances appear from the reported cases to be
few and far between. There is no provision at FEI for less
than a 2 year suspension if an Adverse Analytical Finding
of a banned substance is found. An Athlete who promptly
accepts responsibility for an Adverse Analytical Finding that
would otherwise mandate a 2 year FEI suspension “may “
receive a suspension reduction down to 2 years.
A human doping case at FEI generally follows this path: (1)
a sample is taken from an athlete and split. The A Sample is
tested and the B Sample is held for later testing. (2) The A
Sample is sent to a WADA lab (there are several) for testing.
The laboratories analyze samples solely by code numbers, not
by the names of the athlete. (3) If a finding equal to or exceeding
the allowable amount of a Prohibited Substance is found, an
(“Adverse Analytical Finding”), then a written Notice of Violation
is dispatched to the Athlete. (4) A Provisional Suspension must
be imposed when an A Sample returns an Adverse Analytical
Finding for a Prohibited Method or for a Prohibited Substance
other than a Specified Substance. (5) A Provisional Suspension
by FEI will only be lifted if the Athlete can establish either the
Adverse Analytical Finding was caused by a Contaminated
Product, or because “(a) the assertion of an anti-doping rule
violation has no reasonable prospect of being upheld, e.g.,
because of a patent flaw in the case against the Athlete or
other Person; or (b) the Athlete or other Person has a strong
arguable case that he/she bears No Fault or Negligence for the
anti-doping rule violation(s) asserted.”
(6) At the same time, the Code gives the Athlete hearing
rights, in connection with the imposition of such a suspension.
(7) If the B sample confirms the analysis of the A sample, FEI
will proceed with the results management process, triggering
the right of the Athlete to a hearing. (8) If the B Sample analysis
does not confirm the analysis of the A sample, no further action
will be taken and, any Provisional Suspension will be lifted. (8) EE
of sports dispute resolution.”
In a subsequent article, we will discuss the Court of Arbitration
for Sport, its proceedings, and an equestrian Athlete’s remedies
there as well as other possible avenues for redress after an
adverse finding against an athlete by FEI Tribunal. For the moment,
your take-away should be an understanding and appreciation
that, if you are charged with a doping violation, you should
immediately seek competent counsel to assist you in submitting
a timely response to the Notice. How and when an Athlete first
responds to the Notice of Violation will have consequences for
the future resolution of the Violation and, if a Violation is found,
for the nature and length of discipline imposed.
sion, nor of the presumption of a four (4) year suspension by
FEI for violation of the WADA Code. For clarity – if you, as a
human Athlete, are found to test positive for a WADA-banned
substance, there is an immediate Mandatory Provisional Suspension
and you face a presumed 4 year suspension. The
exceptions to this 4 year presumption are very narrow and
ff you are charged or provisionally suspended, you should
immediately contact legal counsel.
The burden of proof, once the WADA laboratory test is
reported to FEI (which is presumed accurate), shifts from
FEI to establish a violation, to the human athlete to rebut or
adequately explain the presence of the banned substance.
If the athlete cannot present an explanation which FEI finds
credible and satisfactory after a hearing on the issue, then
the presumptive 4 year suspension stands. Occasionally, reductions
downward in the suspension to 2 years are allowed,
86 www.EliteEquestrianMagazine.com
/www.EliteEquestrianMagazine.com