Agence Mondiale Antidopage (AMA) v. Agence Française de Lutte contre le Dopage (AFLD), Jules Boscq

At a glance

Parties

World Anti-Doping Agency (WADA/AMA) v. French Anti-Doping Agency (AFLD) and Jules Boscq

Case no.

CAS 2022/A/9083

Forum and rules

Court of Arbitration for Sport, appeal procedure under the Code of Sports-related Arbitration (Article R47); hearing in Lausanne

Treaty

None. Applicable rules: AFLD Disciplinary Regulations, read in light of the World Anti-Doping Code (2021); French law in the alternative

Tribunal

Panel: Jacques Radoux (President), Romano Subiotto, Franck Latty

Sector

Ice hockey; doping (tuaminoheptane)

Outcome

WADA's appeal upheld by majority (31 October 2023). The AFLD's two-month suspension was annulled and replaced with a 14-month suspension, less the two months already served.

Amount

No monetary award. WADA sought a suspension of 18 to 24 months. The athlete sought EUR 10,000 towards his legal costs; this request was rejected. The costs rulings (operative ¶¶ 5–6) are redacted in the published award.

The dispute

Jules Boscq is a French professional ice hockey player born on 22 February 2002 and an international-level athlete under IIHF rules. He was tested after a match between Bordeaux and Gap on the night of 3–4 December 2021. His sample contained tuaminoheptane (259 ng/mL), a specified stimulant on the S6 list. The substance came from Rhinofluimucil, a nasal spray his doctor had prescribed on 2 December 2021 for a persistent cold. The IIHF refused a retroactive therapeutic use exemption. The AFLD accepted that the violation was unintentional and that he bore no significant fault or negligence. In a decision he accepted, it imposed a two-month suspension. WADA did not contest those two findings but appealed the length of the sanction: it argued that his fault was of a "normal" degree and called for a suspension of 18 to 24 months. The AFLD and the athlete relied on his youth, his inexperience, his lack of anti-doping education, his consultation of a sports doctor, the former French rules on medical prescriptions, and the principle of proportionality.

Key holdings

1. CAS has full power to review the case de novo. The case law on "manifestly disproportionate" sanctions means only that a panel will not lightly adjust a well-reasoned sanction (for example 17 or 19 months instead of 18). It does not limit the panel's review of the facts and the law. ¶¶ 95–96
2. By majority, the Panel held that under the 2021 WADA Code definition of "fault", both the risk that should have been perceived and the expected conduct are assessed on objective elements. The two-step method of CAS 2013/A/3327 & 3335 and CAS 2017/A/5301 & 5302 still applies: objective elements fix the category of fault, and subjective elements move the sanction within that category. ¶¶ 105–111
3. The athlete consulted a sports doctor and bought the product at a pharmacy. But he did not read the package leaflet, which warned athletes that the medicine could cause a positive test. Missing that basic step placed his fault in the "normal" category (12–24 months, standard 18 months), not the "light" one. ¶¶ 113–114
4. No exceptional circumstances justified moving him to a lower category. A persistent cold is not an exceptional circumstance. He was an adult, not a protected person, and he had enough experience with anti-doping rules. A doctor's prescription does not relieve an athlete of the duty to check the medicine. The former French regime, in force until 30 June 2019, cannot be taken into account. ¶¶ 117–127
5. Weighing his relative youth, the reduced perception of risk after seeing a sports doctor, his earlier use of the same medicine without incident and his early-career status, against his lack of diligence and his declaration of "no medication" on the doping control form, the majority fixed the sanction at 14 months. ¶¶ 128–130
6. Proportionality is already built into the 2021 WADA Code and Article 10.6.1.1 of the AFLD rules. A separate proportionality review is possible only in the most extreme and rare cases of clearly disproportionate sanctions; this is not such a case. ¶¶ 131–134
7. The 14-month suspension runs from notification of the award, less the suspension served between 22 June and 22 August 2022. The athlete's request for an earlier start date because of delay was rejected: there had been no substantial delay. ¶¶ 136–141; operative ¶ 4

Procedural history

1. 3–4 December 2021In-competition doping control after the Bordeaux v. Gap match.
2. 21 December 2021Analysis of the A sample reveals tuaminoheptane.
3. 3 March 2022The IIHF rejects the athlete's application for a retroactive therapeutic use exemption.
4. 23 June 2022AFLD Decision No. D. 2022-27 imposes a two-month suspension, which the athlete had accepted on 22 June 2022. The operative part of the award refers to the decision as dated 22 June 2022.
5. 3 August 2022WADA files its statement of appeal with CAS.
6. 10 November 2022The parties are informed that the Panel has been constituted.
7. 19 December 2022Hearing at CAS in Lausanne.
8. 31 October 2023Award: appeal upheld; 14-month suspension imposed.

Tribunal, counsel and experts

Decided by

• Jacques Radoux President, CAS Panel
• Romano F. Subiotto Co-arbitrator, CAS Panel — appointed by the claimant
• Franck Latty Co-arbitrator, CAS Panel — appointed by the respondent

For the claimant

WADA (in-house) · Nicolas Zbinden

For the respondent

AFLD (in-house) · Jean-Jacques Bertrand · Clémence Picard

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Keywords

• doping
• ice hockey
• tuaminoheptane
• Rhinofluimucil
• specified substance
• no significant fault or negligence
• degree of fault
• Cilic
• World Anti-Doping Code 2021
• AFLD
• medical prescription
• sports doctor
• therapeutic use exemption
• proportionality
• young athlete
• anti-doping education
• period of ineligibility
• WADA appeal

Summary generated with AI from the published documents — refer to the award for the authoritative text.