CAS 2006/A/1102
TAS 2006/A/1146

Johannes Eder v/Ski Austria
Agence Mondiale Antidopage (AMA/WADA) c/Johannes Eder & Ski
Austria

ARBITRAL AWARD
rendered by the
COURT OF ARBITRATION FOR SPORT
sitting in the following composition:

President:

Dr Hans Nater, Attorney-at-Law in Zürich, Switzerland

Arbitrators:

Dr Andreas Reiner, Attorney-at-Law in Vienna, Austria
Dr Georg Engelbrecht, Attorney-at-Law in Hamburg, Germany

Ad hoc clerk: Ms Paola Wullschleger, Attorney-at-Law in Zürich, Switzerland

in the arbitration involving

Mr Johannes Eder, Austria
represented by Dr Felix Klement, Attorney-at-Law in Linz, Austria
andSki Austria, Innsbruck, Austria
represented by Dr Karl Klee, Attorney-at-Law in Innsbruck, Austria
andWorld Anti-doping Agency, Montreal, Canada
represented by Mr François Kaiser, Attorney-at-Law in Lausanne, Switzerland

CAS 2006/A/1102 + CAS 2006/A/1146 – Page 2

I.

II.

Proceedings / Parties / Undisputed Facts / Anti-Doping Rules / Parties' Positions
A.

Proceedings ..........................................................................................3B.

The Parties Concerned........................................................................3C.

Undisputed Facts .................................................................................4D.

The relevant Anti-Doping Rules ........................................................5E.

The Parties' Submissions ....................................................................6
1.

The Athlete's Submissions...........................................................62.

The Respondent's Submissions....................................................7

3.

WADA's Submissions .................................................................7

Procedural Issues ..........................................................................................8
A.

B.

C.

Jurisdiction of the CAS.......................................................................8
1.

Re the Athlete's Appeal ...............................................................82.

Re WADA's Appeal.....................................................................8

Respect of the Time Limit for Appeal ...............................................81.

By the Athlete ..............................................................................82.

By WADA ...................................................................................8Applicable Law....................................................................................9III. In Law ..........................................................................................................10A.

The Validity of the Applied Anti-Doping Rules .............................10
1.

Is Rule M2.b of the Prohibited List 2006 valid? .......................10

2.

Are the Articles 10.2, 10.5.1 and 10.5.2 of the FIS Anti Doping-Rules valid?
...................................................................................................11

3.

Intermediate Result ....................................................................12B.

Has a doping offence been committed? ...........................................12C.

Sanction ..............................................................................................13

D.

1.

The Relevant Rules....................................................................13

2.

No Fault or Negligence or No Significant Fault or Negligence?143.

Period of Ineligibility.................................................................16

Costs....................................................................................................163

CAS 2006/A/1102 + CAS 2006/A/1146 – Page 3

The Court of Arbitration for Sport takes into consideration:

I.

Proceedings / Parties / Undisputed Facts / Anti-Doping Rules / Parties' Positions

A.

Proceedings

1

2

3

4

5

6

7

B.
8

9

10

On 2 June 2006, Mr Eder ("Athlete") filed a Statement of Appeal with the Court of Arbitrationfor Sport ("CAS") against the decision of the Austrian Ski Federation ("Ski Austria") of
12 May 2006.
In his Statement of Appeal, Mr Eder appointed Dr Andreas Reiner as arbitrator. On
23 June 2006, the Respondent appointed Dr Georg Engelbrecht as arbitrator.
The CAS designated Dr Hans Nater as President of the Panel. All of the arbitrators accepted
their appointment and confirmed that they were independent of the parties.
Mr Eder's Appeal Brief is dated 14 June 2006 and the Respondent's Answer is dated 4 July
2006.
On 16 August 2006, WADA, on its part, filed a Statement of Appeal against Ski Austria's
decision of 12 May 2006. WADA's Appeal Brief dates from 28 August 2006.
Upon WADA's proposal and the parties' agreement, the CAS joined the procedures in thecases Eder versus Ski Austria and WADA versus Ski Austria.
On 27 September 2006, a hearing was held in Zurich. During the hearing, the Athlete and
Mr Markus Gandler (as a witness) were heard. Subsequently, the parties were given theopportunity to complete their arguments orally. In the course of the oral pleadings, Dr Garnier,
the medical director of WADA, made a statement respective WADA's understanding of Rule
M2.b of the Prohibited List.

The Parties Concerned
Mr Eder, who was born on 19 October 1979, is a member of Ski Austria. He participated in
the Olympic Winter Games in Turin 2006 in the discipline of cross-country skiing.
WADA, the World Anti-Doping Agency, is an international organization which promotes,
coordinates and monitors the fight against doping in sports. WADA it a Swiss private law
foundation. It has its seat in Lausanne, Switzerland, and its headquarters in Montreal, Canada.
Ski Austria, the Respondent, is an association incorporated and existing under the laws ofAustria. It has its seat in Innsbruck, Austria.

CAS 2006/A/1102 + CAS 2006/A/1146 – Page 4

C.
11

12
13

14

15

16

17
18

Undisputed Facts
Mr Eder was nominated for the relay competition in the discipline of cross-country skiing at
the Olympic Winter Games in Turin taking place on 19 February 2006.
On 18 February 2006, the day before the competition, Mr Eder suffered from severe diarrhoea.
At around 18:30, Mr Eder consulted Dr Peter Baumgartl, the responsible medical doctor of theAustrian Nordic team. Dr Baumgartl, at that moment, attended the ski jumping competition at
Pragelato and told Mr Eder that he would contact him later on1. Despite the fact that the ski
jumping competition took place only a few kilometres from the lodging of Mr Eder, as the
traffic was heavy on Saturday, 18 February 2006, the transfer from one place to the other was
rather time-consuming and difficult2.
Dr Baumgartl did not show up at the team lodgings of the Austrian athletes. After Mr Eder had
tried in vein to reach Dr Baumgartl again, at around 20:00, he contacted his private medical
doctor, Dr Lechner, a former medical doctor of Ski Austria3. Dr Lechner recommended Mr
Eder to inject himself a saline solution by infusion.
At around 20:15, shortly after Mr Eder had started to inject himself a saline solution byinfusion, the Italian "Polizia Giudiziaria" arrived at the premises of the Austrian athletes,presented a search warrant, searched the house and carried out body checks as well as doping
tests on the athletes.
In the bedroom of Mr Eder, hidden under the bed, the Italian police found a used infusion
bottle with rests of a saline solution and a used infusion needle.
The doping test on Mr Eder did provide no adverse analytical finding.
On 12 May 2006, Ski Austria's disciplinary committee (Disziplinarausschuss) took thefollowing decision:"Johannes Eder ist
schuldig,er hat anlässlich der Olympischen Winterspiele in Turin am 18.2.2006 im Quartierals Skilangläufer des ÖSV in Pragelato durch Eigenverabreichung einer
Kochsalzlösung in Form einer Infusion gegen Punkt 2.6.3 der Verhaltensordnung desÖSV (Dopingvergehen-Anwendung einer unerlaubten Methode) verstossen und wird
hiefür gemäss Punkt 4.8 der Verhaltensordnung des ÖSV in Anwendung des Artikels
2.2 der Fis-Anti-Dopingregeln bzw. des identen Artikels des World Anti
Dopingcodes in Verbindung mit Artikel 10.5.2 und in weiterer Verbindung mit
Artikel 10.8 mit derSperre von einem Jahr, beginnend mit 18.2.2006

1
2
3

Cf. statement of Dr Baumgartl in Ski Austria's disciplinary hearing on 18 April 2006.
Cf. statement of Mr Gandler in the CAS-Hearing on 27 September 2006.
Cf. statement of Mr Eder in the CAS-Hearing on 27 September 2006.

CAS 2006/A/1102 + CAS 2006/A/1146 – Page 5

bestraft.
Rechtsmittelbelehrung:
Gegen dieses Disziplinarerkenntnis ist gemäss Artikel 13.2.1 der Fis-AntiDopingregeln bzw. des WADA-Antidopingcodes die Berufung an das
Sportsschiedsgericht (Cour of Arbitration for Sport "CAS") zulässig. Die Berufung
ist binnen 21 Tagen ab Zustellung des Disziplinarerkenntnisses an das
Sportschiedsgericht in Lausanne einzubringen (Artikel 13.5 Fis-Antidopingregeln
bzw. WADA-Antidopingcode)."D.

The relevant Anti-Doping Rules

19

Article 2 of the FIS Anti-Doping Rules 2005/2006 rules:"Article 2 Anti-Doping Rule Violations
The following constitute anti-doping rule violations:
2.1 […]
2.2 Use or Attempted Use of a Prohibited Substance or a Prohibited Method.
[…]"

20

Rule M2.b of the relevant Prohibited List provides under the heading "Chemical and PhysicalManipulation":"Intravenous infusions are prohibited, except as a legitimate acute medical
treatment."

21

With regard to sanctions, the relevant FIS Anti-Doping Rules provide, so far as material, as
follows:"10.2 Imposition of Ineligibility for Prohibited Substances and Prohibited
Methods. […] the period of Ineligibility imposed for a violation of […] Article
2.2 (Use or Attempted Use of Prohibited Substance or Prohibited Method) […]shall be:First violation:

22

Two (2) years' Ineligibility."And:"10.5 Elimination or Reduction of Period of Ineligibility Based on
Exceptional Circumstances.
10.5.1 If the Athlete establishes in an individual case involving […] Use of a[...] Prohibited Method under Article 2.2 that he or she bears No Fault or
Negligence for the violation, the otherwise applicable period of Ineligibility
shall be eliminated. […]CAS 2006/A/1102 + CAS 2006/A/1146 – Page 6

10.5.2 […] If an Athlete establishes in an individual case involving such
violations that he or she bears No Significant Fault or Negligence, then the
period of Ineligibility may be reduced, but the reduced period of Ineligibility
may not be less than one-half of the minimum period of Ineligibility otherwise
applicable. […]"E.

The Parties' Submissions

1.

The Athlete's Submissions

23

24

25

26

The Athlete submits that Rule M2.b of the Prohibited List 2006 as well as Articles 10.2, 10.5.1
and 10.5.2 of the FIS Anti-Doping Rules are null and void, as they infringe the human rightsof the athletes and violate Austrian Law.
With respect to the merits of the case, the Athlete takes the position that Ski Austria wrongly
assessed the applied Anti Doping-Rules. He submits (i) that the intravenous infusion was a"legitimate acute medical treatment" and, therefore, not prohibited, respectively (ii) that, if theadministration of the infusion should be regarded as Prohibited Method, he bears no fault or
negligence.
In conclusion, the Athlete requests the Arbitral Tribunal to render the following award:"1)

AWARDING the dismissal of the decision of the disciplinary commission of
the Austrian Ski Federation dated May 12, 2006;

2)

AWARDING appellant, its legal, expert, executive and other costs incurred inconnection with this Arbitration

3)

AWARDING that respondent is ordered to make all payments within 14 days;

4)

AWARDING appellant such other and further relief as the Tribunal may deem
appropriate under Austrian law."

Concerning WADA's Appeal, the Athlete, in addition, contests the jurisdiction of CAS andclaims that the appeal has not been filed in due time. In this regard, the Athlete asks the
Arbitral Tribunal to render the following award:"1)

AWARDING the dismissal of the decision of the disciplinary commission of
the Austrian Ski Federation dated May 12, 2006, the dismissal of the appeal by
WADA dated August 29, 2006;

2)

AWARDING Mr Johannes Eder, its legal, expert, executive and other costs
incurred in connection with this Arbitration

3)

AWARDING that WADA is ordered to make all payments within 14 days;

4)

AWARDING Mr Johannes Eder such other and further relief as the Tribunal
may deem appropriate under Austrian law."

CAS 2006/A/1102 + CAS 2006/A/1146 – Page 7

2.
27

28

3.
29

30

31

The Respondent's Submissions
Ski Austria submits that the applied rules comply with the human rights of the athletes as wellas with Austrian law and that the "burden of proof" has not been an issue in the present case.
Moreover, Ski Austria contends that the behaviour of the Athlete does not fall within the scopeof the exception provided for in Rule M2b, as a "legitimate acute medical treatment" demands
the supervision by qualified medical personnel.
Accordingly, Ski Austria requests that its decision be upheld by the CAS and that theAppellant be ordered to pay the costs of the proceedings.

WADA's Submissions
WADA takes the position that the mere fact that the Athlete performed on himself an
intravenous infusion excludes the existence of a "legitimate acute medical treatment". Suchinfusion must be, in the view of WADA, performed by nurses or physicians in well-codified
conditions, mainly in emergency situations and reanimation. WADA submits that the Athlete
was not in an emergency situation; otherwise he should have visited the policlinic in the
Olympic village or called a doctor.
WADA contends that the Athlete has neither established that he bears no fault or negligence
nor that he bears no significant fault or negligence under the terms of Article 10.5.1 andArticle 10.5.2 of the FIS Anti-Doping Rules.
As a consequence, WADA requests the CAS to rule as follows:"1. The Appeal of WADA is admissible."
a.

b.

c.

The Decision of the Disciplinary Committee (Disziplinarausschuss) of SKI
AUSTRIA of May 12, 2006, in the matter of Mr. Johannes Eder is set aside.
Mr Johannes Eder is sanctioned under article 10.2 of the FIS Anti-Doping-Rules
with a period of ineligibility of two years.
WADA is granted an award of costs."

CAS 2006/A/1102 + CAS 2006/A/1146 – Page 8

II.

Procedural Issues

A.

Jurisdiction of the CAS

1.

Re the Athlete's Appeal

32

2.
33

The jurisdiction of the CAS derives from Article 4.8 of Respondent's Order of Conduct4 inconnection with Article 13.2.1 of the FIS Anti-Doping Rules. In addition, neither party raised
any objection to the jurisdiction of the CAS before or during the hearing. Accordingly, thejurisdiction is established.

Re WADA's Appeal
WADA's right to appeal as well as the respective jurisdiction of the CAS arise from article
13.2.3 of the FIS Anti-Doping Rules. Therefore, the objection raised by the Athlete has no
grounds.

B.

Respect of the Time Limit for Appeal

1.

By the Athlete

34

2.
35

36

It remained uncontested and is not at issue in the present proceedings that the Athlete's appeal
was made in time.

By WADA
With respect to the appeal of WADA, the Athlete claims that it had not been filed within duetime.
The relevant Article 13.5 of the FIS Anti-Doping Rules, so far as material, reads:"13.5 Time for Filing Appeals. […] the following shall apply in connection withappeals filed by a party entitled to appeal but which was not a party to theproceedings having lead to the decision subject to appeal:a) Within ten (10) days from notice of the decision, such party/ies shall have theright to request from the body having issued the decision a copy of the file onwhich such body relied;4

Verhaltensordnung für die Angehörigen der Nationalkader und Mannschaften des Österreichischen Skiverbandes.

CAS 2006/A/1102 + CAS 2006/A/1146 – Page 9b) If such a request is made within the ten-day period, then the party making such
request shall have twenty-one (21) days from receipt of the file to file an appeal to
CAS."
37

38

Ski Austria informed WADA of its decision rendered on 12 May 2006 with letter of 18 May
2006 (Thursday). WADA contends that it received said letter on 22 May 2006 (Monday).
WADA was unable to offer any proof for the receipt of the letter on 22 May 2006. In the
Panel's view, it seems more than implausible that a letter posted in Austria on Thursday would
arrive at the addressee in Switzerland one day later, i.e. on Friday. On Saturday, WADA is notsupposed to receive any letters sent by registered mail. Accordingly, the Panel accepts without
hesitation WADA's submission that the letter arrived on Monday, 22 May 2006.
On 1 June 2006, within the time limit provided for in Article 13.5 lit. a of the FIS Anti-Doping
Rules, WADA requested the case file (cf. WADA's Exhibit 5). The file was sent by Ski
Austria to WADA's address in Canada on 17 July 2006 and was received there on 26 July
2006 (WADA's Exhibits 8 and 9). WADA submitted its statement of appeal to CAS on 16
August 2006 and therewith observed the time limit set in Article 13.5 lit. b of the FIS AntiDoping Rules.

39

Accordingly, WADA's appeal was filed in due time and is admissible.

C.

Applicable Law

40

41

5

Article R58 of the Code of Sports-related Arbitration ("Code") provides that the Panel shalldecide the dispute according to the applicable regulations and the rules of law chosen by theParties or, in the absence of such a choice, according to the law of the country in which thefederation, association or sport-related body which has issued the challenged decision is
domiciled.
In the present case, pursuant to Article 4.8 of Ski Austria's Order of Conduct5, the FIS AntiDoping Rules apply. Therefore, the Panel shall decide the dispute according to these Rules
and, as Ski Austria has its domicile in Austria and in the absence of a choice of law by theparties, according to Austrian law. The proceedings are subject to Articles R47 et seq. of theCode, and to the provisions of Chapter 12 of the Swiss Private International Law Act.

Verhaltensordnung für die Angehörigen der Nationalkader und Mannschaften des Österreichischen Skiverbandes.

CAS 2006/A/1102 + CAS 2006/A/1146 – Page 10

III.

In LawA.

The Validity of the Applied Anti-Doping Rules

1.

Is Rule M2.b of the Prohibited List 2006 valid?

42

The Athlete submits that the prohibition of intravenous infusions provided for in Rule M2.b of
the Prohibited List 2006 is incompatible with(i)the Austrian law of associations,(ii)

the principle of proportionality of the Austrian law,(iii) the athlete's personal right to choose the kind of therapy and to choose a most effective
treatment of an illness,(iv) the athlete's freedom of economic pursuit protected by Article 6 "Staatsgrundgesetz"(StGG),(v)

the right to sufficient and efficient therapy pursuant to section 133 para. 2 of the"Allgemeines Sozialversicherungsgesetz" (ASVG) and(vi) the principle "nulla poena sine lege stricta" pursuant to Article 18 "BundesVerfassungsgesetz" (B-VG) and Article 7 ECHR.
43

44

45

46

In addition, the Athlete asserts that the disciplinary punishment of an association can be - andis in the present case - contra bonos mores in terms of section 879 of the Austrian Code on
Civil Law ("ABGB") and points out that Rule M2.b is a unilateral norm issued by superiormonopolising associations and, being highly vague, according to section 915 ABGB has to beinterpreted in favour of the athlete. The Athlete submits that Rule M2.b is null and void andthus inapplicable.
In Austrian law, it is generally accepted that an association may impose disciplinary sanctions
upon its members if they violate the rules and regulations of the association. The jurisdiction
to impose such sanctions is based upon the freedom of associations to regulate their own
affairs. The association is granted wide discretion in determining the violations which are
subject to sanctions. By voluntarily acceding to the association, the athlete has accepted theapplication of the disciplinary rules und its sanctions. Hence, the Panel sees no reason why
Rule M2.b should be incompatible with the mentioned provisions of the Austrian law.
Article 6 StGG as well as Art 18 B-VG and Art 7 ECHR are fundamental rights protecting
citizens against violations of such rights by the state and its organs. These provisions are
therefore not applicable to legal relationships between private entities such as associations andits members.
Section 133 ASVG para 2 provides for sufficient and efficient therapy granted to the insured
by the compulsory health insurance. The provision defines the scope of benefits the insuranceCAS 2006/A/1102 + CAS 2006/A/1146 – Page 11

is obligated to provide, but does not entail the athlete’s right to inject himself a saline infusion
under particular circumstances.
47

48

2.
49

The athlete’s personal right to choose the kind of therapy and to choose a most effective
treatment of an illness is not violated by Rule M2.b because it does not prevent the athlete
from seeking a doctor’s advice and professional medical treatment.
Rule M2.b is an anti-doping rule adopted to safeguard the purposes and interests of an
association such as Ski Austria. The rule is necessary and adequate in order to prevent athletes
from manipulating blood testing results. The overall interest of the fight against doping
justifies that athletes must adhere to prohibitions as stated in Rule M2.b. The Panel is of theopinion that this Rule does not contradict the principle of proportionality and is therefore also
in compliance with bona mores according to section 879 ABGB.

Are the Articles 10.2, 10.5.1 and 10.5.2 of the FIS Anti Doping-Rules valid?
The Athlete, referring to Article 10.5.1 (burden of proof) and Article 10.5.2 in connection with
Article 10.2 (minimum doping ban of 1 year) of the FIS Anti-Doping Rules, takes the position
that these provisions(i)are absolutely disproportional, in particular with respect to practice bans in other areas of
the Austrian law,(ii)

they violate Article 6 para 2 ECHR (presumption of innocence) and,(iii) being an excessive conventional penalty, are contra bonos mores according to section
879 ABGB.
50
51

52

Hence, in the Athlete's opinion, said Articles should be deemed null and void.
The Panel considers that a standard suspension of two years is in compliance with theprinciple of proportionality, as well as a suspension of one year in case of no significant fault
or negligence. The Austrian law does not require a sanction lower than one year to be fixed in
the case of no significant fault or negligence. The sanction is necessary and adequate to securea worldwide standard in the application of anti-doping rules to which Ski Austria is committed
as the national skiing federation. Even if, under Austrian law, the rules applicable toconventional penalties applied also to disciplinary sanctions of associations – which is not thecase – the suspension of one year is not excessive. The athlete was clearly aware of the
sanctions when he acceded to the association of Ski Austria. The sanctions are therefore notagainst bona mores according to section 879 ABGB. Hence, Article 10.5.1 and 10.5.2 inconnection with Article 10.2 of the FIS Anti-Doping Rules comply with Austrian law.
The presumption of innocence is a concept of criminal law. Disciplinary sanctions imposed byassociations are subject to the civil law and must be clearly distinguished from criminal
penalties. The shifting of the burden of proof to the athlete to demonstrate that he or she acted
without (significant) fault does not conflict with the presumption of innocence. Athletes have arigorous duty of care towards their competitors and the sports organization to keep their bodies
free of prohibited substances. Anti-doping rule violations do not "just happen" but are, in mostCAS 2006/A/1102 + CAS 2006/A/1146 – Page 12

cases, the result of a breach of that duty of care. This justifies (i) to presume that the athlete
acted with fault or negligence and (ii) to shift the burden of proof from the sanctioning body tothe athlete to exonerate him- or herself. On the other hand, to impose on the sanctioning bodyto demonstrate that the athlete acted with fault or negligence would make the fight against
doping extremely difficult or impossible.

3.
53Intermediate Result
Rule M2.b of the Prohibited List as well as Articles 10.5.1 and Article 10.5.2 in connection
with Article 10.2 of the FIS Anti-Doping Rules are in compliance with Austrian law, and,
therefore, applicable in the case at hand.

B.

Has a doping offence been committed?

54

Article 2 of the FIS Anti-Doping Rules 2005/2006 rules:"Article 2 Anti-Doping Rule Violations
The following constitute anti-doping rule violations:
2.1 […]
2.2 Use or Attempted Use of a Prohibited Substance or a Prohibited Method.
[…]"

55

Rule M2.b of the relevant Prohibited List provides under the heading "Chemical and PhysicalManipulation":"Intravenous infusions are prohibited, except as a legitimate acute medical
treatment."

56

57

58

The parties are in disagreement on whether the Athlete may rely on the exception provided forin Rule M2.b of the Prohibited List.
Consequently, the Panel has to consider whether the administering of an intravenous infusionof a saline solution by the Athlete constituted a "legitimate acute medical treatment".
In the case "Walter MAYER et al. versus IOC" (CAS 2002/A/389/390/391/392/393), the(earlier) Panel identified six tests or criteria by which the legitimacy of a medical treatment
would be judged. They were the following:(1)

The medical treatment must be necessary to cure an illness or injury of theparticular athlete.

(2)

Under the given circumstances, there is no valid alternative treatment available,
which would not fall under the definition of doping.

(3)

The medical treatment is not capable of enhancing the athlete's performance.

CAS 2006/A/1102 + CAS 2006/A/1146 – Page 13

59

60

61

62

63

(4)

The medical treatment is preceded by a medical diagnosis of the athlete.

(5)

The medical treatment is diligently applied by qualified medical personnel in an
appropriate medical setting.

(6)

Adequate records of the medical treatment are kept, and are available forinspection.

These criteria were identified before Rule M2.b of the Prohibited List came into effect. Evenso, they can be adduced as a guideline regarding the interpretation of said Rule.
The Panel has no basis to put into question that the Athlete suffered from severe diarrhoea on
the evening of 18 February 2006. It is true that the Athlete, even so he stopped the infusion
after 15 to 20 minutes, intended to participate in the relay the next day. As his forerunners lost
considerably time in comparison with the competitors, the officials did not let him start.
Therefore, the Panel has no knowledge whether the Athlete would have been capable ofracing.
Furthermore, the Panel got the impression that an infusion of a saline solution works as aneffective relief against the loss of liquid caused by diarrhoea. The Panel accepts that a saline
solution is not a substance capable to enhance an athlete's performance.
However, the Panel finds that in this case the other elements of legitimate medical treatment
were not met: The intravenous infusion was administered by the Athlete himself, in his
bedroom. The Athlete was not examined by a medical doctor prior to the administering of theinfusion. There were no medical personnel present when the Athlete set himself the infusion.
And finally, no records of any kind were drawn.
The Panel concludes that the infusion of a saline solution administered by the Athlete on
himself did not comply with the requirements for legitimate medical treatment and therefore
must be considered as a doping offence.

C.

Sanction

1.

The Relevant Rules

64

With regard to sanctions, the relevant FIS Anti-Doping Rules provide, so far as material, as
follows:"10.2 Imposition of Ineligibility for Prohibited Substances and Prohibited
Methods. […] the period of Ineligibility imposed for a violation of […] Article
2.2 (Use or Attempted Use of Prohibited Substance or Prohibited Method) […]shall be:First violation:

Two (2) years' Ineligibility."

CAS 2006/A/1102 + CAS 2006/A/1146 – Page 14

65

And:
"10.5 Elimination or Reduction of Period of Ineligibility Based on
Exceptional Circumstances.
10.5.1 If the Athlete establishes in an individual case involving […] Use of a[...] Prohibited Method under Article 2.2 that he or she bears No Fault or
Negligence for the violation, the otherwise applicable period of Ineligibility
shall be eliminated. […]10.5.2 […] If an Athlete establishes in an individual case involving such
violations that he or she bears No Significant Fault or Negligence, then the
period of Ineligibility may be reduced, but the reduced period of Ineligibility
may not be less than one-half of the minimum period of Ineligibility otherwise
applicable. […]"

66

In Appendix 1 of the FIS Anti-Doping Rules, the terms "No Fault or Negligence" and "No
Significant Fault or Negligence" are defined as follows:"No Fault or Negligence. The Athlete's establishing that he or she did not know
or suspect, and could not reasonably have known or suspected even with theexercise of utmost caution, that he or she has Used or been administered theProhibited Substance or Prohibited Method.""No Significant Fault or Negligence. The Athlete's establishing that his or her
fault or negligence, when viewed in the totality of the circumstances and taking
into account the criteria for No Fault or Negligence, was not significant inrelationship to the anti-doping rule violation."

2.
67

68

69

No Fault or Negligence or No Significant Fault or Negligence?
The establishment of a doping offence prima facie requires a sanction of a period of
Ineligibility under Article 10.2 of the FIS Anti-Doping Rules for a first offence of two years.
However, the Panel has to examine whether the proven circumstances are such that either No
Fault or Negligence or No Significant Fault or Negligence has occurred.
The following factors have to be taken into account:-

The Athlete suffered from severe diarrhoea the evening before the relay competition he
was supposed to participate took place.

-

The Athlete contacted the responsible team doctor. The team doctor was not available toassist him respectively put him off. He told the Athlete that he would contact him lateron and considered injecting him a saline solution by infusion.

-

Since the team doctor was not available to assist him, the Athlete consulted his private
medical doctor on the phone. Dr Lechner instructed him to administer himself a saline
solution by infusion.

CAS 2006/A/1102 + CAS 2006/A/1146 – Page 15

-

70

71

72

73

The Athlete was in a stressful situation asi)at the eve of the most important competition of his sports life, he was confronted
with a disease putting at risk his participation;ii)

his non-participation would have hindered the Austrian team to participate in therelay competition (as there were no replacement skiers);iii)

the possibility to treat his medical condition effectively by the infusion of a saline
solution was brought up by two medical doctors;

iv)

time was working against him, as he did not know whether and when the team
doctor would be able to reach him and he knew that an infusion lasts 1 to 1.5
hours.

Ski Austria took the view that the Athlete was not without any fault or negligence when using
the Prohibited Method, as it could have been expected that he had doubts whether he wasallowed to do what he did. However, Ski Austria, taking into account the circumstances
described above, found that the Athlete's behaviour was only slightly negligent, since thesubjective elements of the doping offence were missing to a large extend. Therefore, Ski
Austria concluded that it had the discretionary powers of the Exceptional Circumstances
provision in Article 10.5.2 of the FIS Anti-Doping Rules.
The Panel is not disposed to disagree with Ski Austria's assessment: The Athlete tried in vein
to get medical assistance by his team doctor. He knew that the team doctor considered orplanned to treat him by performing an infusion of saline solution. The Athlete could assume
that the performing of such infusion by the team doctor would not have been a doping offence
under Rule M2.b of the Prohibited List. His private medical doctor likewise was of the opinion
that in his case the infusion of a saline solution was indicated and recommended him to
perform on himself such infusion. Of course it would have been advisable for the Athlete to
await the arrival of the team doctor or to try his best to get assistance by any other medical
doctor. The fact that he lost his nerves, followed his private doctor's advice and performed theinfusion himself does him no credit. Nevertheless, under the given circumstances, it seems
difficult to find significant fault in it.
In addition, the Panel is of the opinion that with regard (and only with regard) to the questionof the degree of the Athlete's fault, the vagueness of the provision in Article M2.b of theProhibited List should be taken into consideration. The Athlete, when using a Prohibited
Method, (i) did so based on a medical doctor's disposition, (ii) with a view to cure a diseaseand (iii) using a remedy which in fact is suitable to counteract the loss of liquid caused bydiarrhoea. Although it is true that no athlete can hide behind ignorance, the Panel understands
that the Athlete, being in distress and let down by the team doctor, was inclined to take theinfusion of the saline solution as a "legitimate acute medical treatment".
By weighing up all of the listed elements, the Panel reaches the conclusion that the Athlete
acted without significant fault.

CAS 2006/A/1102 + CAS 2006/A/1146 – Page 16

3.
74

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Period of Ineligibility
The period of Ineligibility under Article 10.2 of the FIS Anti-Doping Rules for the first
offence is two years. That period may be reduced by Article 10.5.2 of the FIS Anti-Doping
Rules but may not be less than one half of the two years otherwise applicable. Exercise of
discretion accordingly allows imposition of a sanction between one and two years.
Ski Austria imposed the minimum period of Ineligibility of one year. While Ski Austria's
verdict may be thought to err, if at all, on the side of generosity, the Panel would not dissent.
In the Athlete's favour weigh that he did not have the intention to wrongfully enhance his
performance or to mask prohibited substances or methods. He did not seek to gain advantage
over his competitors. Furthermore, it has to be mentioned that the Athlete, since the beginningof the proceedings, did always cooperate with the authorities and did not embark on a strategy
of obstruction.

76

As a result, the Panel does not feel disposed to overturn Ski Austria's verdict.

D.

Costs

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78

The costs of appeal arbitration proceedings are governed by Article R65 of the Code. Apartfrom the Court office fee of CHF 500.00 paid by each of the Appellants, which the CAS willretain (Article 65.2 of the Code), the proceedings are free (Article R65.1 of the Code).
In light of the result of these proceedings, the Panel considers it to be fair that each party shallbear its own costs.

CAS 2006/A/1102 + CAS 2006/A/1146 – Page 17

ON THESE GROUNDSThe Court of Arbitration for Sport rules:
1.

The appeal filed by Johannes Eder on 2 June 2006 is dismissed.

2.

The appeal filed by WADA on 16 August 2006 is dismissed.

3.

The decision issued by the Austrian Ski Federation on 12 May 2006 is confirmed.

4.

This Award is rendered without costs, except for the Court Office fees of CHF 500.00 (fivehundred Swiss Francs) paid by the Appellants, which shall be retained by the Court of
Arbitration for Sport.

5.

Each party shall bear its own costs.

6.

All other claims are dismissed.

Lausanne, 13 November 2006

THE COURT OF ARBITRATION FOR SPORT

Hans Nater
President of the Panel

Andreas Reiner
Arbitrator

Georg Engelbrecht
Arbitrator

Paola Wullschleger
Ad Hoc Clerk