The case involves an arbitration decision by the Court of Arbitration for Sport (CAS) regarding Norwegian cross-country skier Martin Johnsrud Sundby's doping violation involving the use of salbutamol, a prohibited substance, during competitions in December 2014 and January 2015. The World Anti-Doping Agency (WADA) appealed a decision by the Fédération Internationale de Ski (FIS) that had initially ruled in Sundby's favor. The CAS panel, composed of Prof. Luigi Fumagalli, The Hon. Michael Beloff QC, and Mrs. Jennifer Kirby, found Sundby in violation of anti-doping rules due to excessive salbutamol use without a Therapeutic Use Exemption (TUE).
The legal principles applied included "tempus regit actum," meaning the law in force at the time of the act governs, and "lex mitior," ensuring more lenient rules do not retroactively apply unless they benefit the athlete. The panel emphasized that exceptions to prohibited substances must be narrowly construed. While salbutamol is permitted when inhaled within specified thresholds, Sundby exceeded the allowed dosage by using a nebulizer, which administers doses above the permissible limit. The panel noted Sundby’s fault lay in not obtaining a TUE, which would have legalized his use of the substance.
Sundby argued that his elevated salbutamol levels resulted from legitimate therapeutic use for asthma, citing studies like the Oslo and Mazhar studies to support his claim that the delivered dose was within limits. However, WADA contended that the Prohibited List’s reference to a maximum dose should be interpreted as the labeled dose, not the bioavailable amount, and that nebulization typically requires a TUE. The panel interpreted "inhaled salbutamol" as referring to the labeled dose, not the actual amount reaching the lungs, aligning with common medical practice and ensuring legal certainty.
The panel assessed Sundby’s degree of fault, considering both objective and subjective elements. Factors in his favor included his disclosure of salbutamol use, adherence to medical advice, and lack of intent to enhance performance. Against him were his experience as an international athlete and failure to independently verify nebulizer use with authorities. The panel categorized his fault as light, imposing a two-month suspension and disqualifying his results from the Davos and Toblach competitions.
The ruling underscored the strict liability principle in anti-doping regulations, where athletes are responsible for prohibited substances in their system, regardless of intent. It highlighted the need for clarity in rules, particularly regarding therapeutic use exemptions and administration methods. The decision balanced strict enforcement with fairness, maintaining the integrity of competitive sports while considering individual circumstances. The CAS upheld WADA’s appeal, reinforcing the importance of adherence to anti-doping regulations to ensure fairness and equality in sports.