CAS appeal relating to Athlete XYZ concludes
21 Aug 2020
The appeal to the Court of Arbitration for Sport (CAS) in the “XYZ” case has now concluded. In March 2019 Drug Free Sport New Zealand (DFSNZ) appealed the decision of the Sports Tribunal in relation to Athlete XYZ. DFSNZ withdrew its appeal in June 2019, but by that time the athlete in question had himself cross-appealed the Sports Tribunal’s decision. This cross-appeal was later withdrawn and, after a 14-month delay by CAS, the case is now closed.
DFSNZ Chief Executive Nick Paterson said “The delays in this case have been out of both DFSNZ and the athlete’s hands. We’re pleased that this matter has finally come to a close.”
Both DFSNZ and Athlete XYZ were appealing the decision as to liability, not the sanction decision. As a result of the appeals both being withdrawn, the Sports Tribunal’s original decision stands, as well as the later sanction of a two-year ban from sport.
“DFSNZ’s reason for filing the original appeal was concern about the potential of the Sports Tribunal’s initial decision to set a precedent impacting DFSNZ’s ability to carry out its functions. However, this was a finely balanced decision and, following further legal advice and consideration, DFSNZ concluded in June 2019 that continuing this matter would not offer sufficient benefit to clean sport. The resources that would otherwise be applied to this appeal were redirected to other areas, such as our Speak Out line and education programmes,” Mr Paterson said.
As acknowledged by the Sports Tribunal, the World Anti-Doping Code and the Sports Anti-Doping Rules (SADR) require DFSNZ to name any athlete who has committed an anti-doping rule violation when a case is closed.
As a result, even though this athlete has now served his sanction and is able to participate in competitive sport once more, DFSNZ is required to publicly report that the athlete in the XYZ case is Dene Gilmore. This athlete played inter-club golf with recorded scores that put him in the top 3% of golfers in New Zealand. He was also a fully paid-up member of a Surf Life Saving Club for three years, and competed in the 2015 Surf Life Saving New Zealand National Pool Championships.
Mr Paterson said “Our vision is clean athletes and clean sport. This athlete admitted using clenbuterol, like most others in this investigation, but also admitted purchasing and using an anabolic steroid, Dianabol. Dianabol is modified from testosterone and used by athletes to gain size and strength.
“As well as being a significant health risk, both substances that he purchased and used would have given him an unfair advantage in sport. We think that anyone playing sport would be dismayed to learn that their competitors were using prohibited substances. Doping is not acceptable at any level of sport, and people would be discouraged from participating if they knew that their competitors were on steroids. We owe it to all clean competitors to hold people who break the rules to account.
It has been suggested that this case was selected by DFSNZ to test the scope of the SADR in New Zealand. However DFSNZ approached this case in the same manner as the other earlier cases arising from the NZ Clenbuterol investigation in which an athlete had purchased prohibited substances from an online retailer.
“Most Kiwi athletes are clean and know that taking steroids and other similar substances is wrong. To best support them and promote clean sport, DFSNZ recently launched a new online education programme, Clean Sport 101, which was developed in collaboration with Sport Integrity Australia (formerly the Australian Sports Anti-Doping Authority) and the United States Anti-Doping Agency (USADA).
“We have high levels of integrity within sport in New Zealand, and we want to work with clubs and athletes to preserve that from the grassroots up. We will continue to expand our education offerings to help clean athletes avoid making mistakes.”