Konstatinos Mitoglou v. Fédération Internationale de Basketball (FIBA)

At a glance

Parties

Konstantinos Mitoglou (Greece) v. Fédération Internationale de Basketball (FIBA)

Case no.

CAS 2023/A/9518

Forum and rules

Court of Arbitration for Sport, Appeals Arbitration Division; CAS Code; hearing in Lausanne

Treaty

Specific arbitration agreement of 13 March 2023 (CAS Code Article R47); FIBA Anti-Doping Rules (Book 4 of the FIBA Internal Regulations, as revised on 1 January 2022)

Tribunal

Prof. Stefano Bastianon (President), Mr Manfred Peter Nan, Mr Patrick Lafranchi

Sector

Basketball; anti-doping

Outcome

Appeal upheld in part (operative part 5 July 2023; reasoned award 18 March 2024). The 4-year ineligibility for intentional doping was confirmed, but 32 months of it were suspended for substantial assistance, so the ban ended on 28 July 2023.

Amount

No monetary award stated. Sanction: 4 years' ineligibility, 32 months suspended (the FIBA Disciplinary Panel had suspended 16 months). Results from July 2021 to 28 March 2022 disqualified.

The dispute

Konstantinos Mitoglou is a Greek professional basketball player who played for Olimpia Milano at the material time. He tested positive for metandienone, a non-specified anabolic steroid, at an in-competition control on 4 March 2022. He also admitted receiving intravenous infusions of more than 100 mL per 12-hour period, which is a prohibited method. He blamed unmarked yellow pills, described as a "miraculous medicine from Russia", and IV therapy given to him by Dr Ilektra Gerou, a microbiologist and pathologist. His complaints led Greek authorities to arrest and charge her. The FIBA Disciplinary Panel imposed 4 years' ineligibility for intentional doping and suspended 16 months for substantial assistance. On appeal, Mitoglou argued that he had not acted even with indirect intent, so the base sanction should be 2 years, further reduced for No Significant Fault or Negligence and by up to 75% for substantial assistance. FIBA argued that he had not proved the source of the substance, that he had acted at least with indirect intent, and that the 16-month suspension was proportionate.

Key holdings

1. An athlete can in theory prove lack of intent without proving the source of the prohibited substance. But this requires objective, specific and credible evidence that an intentional violation can be excluded, not a bare plea of innocence. ¶¶ 77–81
2. The athlete knew there was a significant doping risk. No specific anti-doping education is needed to know this when taking medicines. He took unlabelled pills described as a 'miraculous medicine from Russia' and IV therapy from a practitioner he did not know before, without consulting his team doctor. He had no objective basis to trust Dr Gerou. ¶¶ 85–90
3. He manifestly disregarded that risk. The IV therapy was advertised as athletic performance enhancement, and his text messages showed he feared doping ('is this doping?'). His conduct was reckless, so he committed the violation with indirect intent and the 4-year period applies. ¶¶ 91–96
4. Because the violation was intentional, a reduction for No Significant Fault or Negligence under Article 10.6 is excluded. ¶ 98
5. Substantial assistance under Article 10.7.1 justifies suspending 32 of the 48 months. The violation was very serious, but it was a first violation without direct intent. The assistance was timely, concerned a doctor treating many athletes, and uncovered a complex illegal medicine-trafficking scheme. The Panel noted that the athlete appeared to hold further information about other athletes that he chose not to give. ¶¶ 99–108
6. No further reduction on grounds of proportionality. The effective sanction falls within the 12–18 months the athlete himself considered proportionate, and the WADC sanction system is already proportionate. ¶¶ 110–112
7. The ineligibility runs from 28 March 2022 and ends on 28 July 2023. Results from July 2021 to 28 March 2022 are disqualified because of the multiple violations. ¶¶ 114–115; operative part

Procedural history

1. 4 March 2022In-competition sample collected after a EuroLeague match between Olimpia Milano and Panathinaikos. The Cologne laboratory reported an adverse analytical finding for a metandienone metabolite.
2. 28 March 2022FIBA notified the athlete of the finding and provisionally suspended him.
3. 14 July 2022The athlete reported to FIBA that he had filed complaints against Dr Gerou with the Criminal Prosecutor of Athens, the Athens Medical Association and the National Anti-Doping Organisation.
4. 4 August 2022FIBA charged the athlete with presence of metandienone and use of a prohibited method (IV infusions), and proposed a 3-year ban. The athlete rejected the proposal on 10 August 2022.
5. 6 February 2023FIBA Disciplinary Panel decision (re-issued on 14 February 2023 to correct a clerical error): 4 years' ineligibility, 16 months suspended for substantial assistance, results from July 2021 disqualified.
6. 13 March 2023The parties agreed that the decision could be appealed directly to CAS, bypassing the FIBA Appeal Body.
7. 22 March 2023Statement of Appeal filed with CAS.
8. 16 May 2023Ms Annett Rombach resigned as President after the athlete asked for her removal over her role as an arbitrator at the Basketball Arbitral Tribunal. The Panel was constituted on 17 May 2023 with Prof. Stefano Bastianon as President.
9. 4 July 2023Hearing held in Lausanne.
10. 5 July 2023Operative part issued: appeal upheld in part, 32 of the 48 months suspended. The reasoned award followed on 18 March 2024.

Tribunal, counsel and experts

Decided by

• Stefano Bastianon President, CAS Panel — appointed by the institution (appointed after the resignation of Annett Rombach)
• Manfred Peter Nan Co-arbitrator, CAS Panel — appointed by the claimant
• Patrick Lafranchi Co-arbitrator, CAS Panel — appointed by the respondent

For the claimant

Howard Jacobs · Christina Syrengela

For the respondent

FIBA (in-house) · Antonio Rigozzi · Marie-Christin Bareuther

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Keywords

• anti-doping
• basketball
• metandienone
• anabolic steroid
• indirect intent
• dolus eventualis
• source of prohibited substance
• intravenous infusion
• prohibited method
• substantial assistance
• Article 10.7.1 FIBA ADR
• No Significant Fault or Negligence
• proportionality
• multiple violations
• disqualification of results
• World Anti-Doping Code
• Dr Gerou

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