The case revolves around Marko Strahija, a Croatian elite swimmer accused of doping by the Fédération Internationale de Natation (FINA) after testing positive for human chorionic gonadotrophin (hCG) in out-of-competition tests conducted in 2002. The dispute was brought before the Court of Arbitration for Sport (CAS), which examined several legal and procedural issues. The principle of a fair hearing was upheld, ensuring the athlete's right to challenge evidence, though this right is subject to procedural rules. The lex mitior principle was applied, meaning the most favorable rules for the athlete at the time of the hearing were used, even if they differed from those in force during the alleged offense. The CAS also affirmed that an appeal authority can rectify procedural flaws from earlier stages if it has full jurisdiction.
The laboratory testing procedures were scrutinized, with the CAS confirming that the accredited laboratory complied with relevant standards, including the use of two different immunoassays to detect hCG, as required by the Olympic Movement Anti-Doping Code. FINA bore the burden of proof to establish the doping violation, requiring a high standard of evidence—less than criminal but more than civil—and any reasonable doubt could undermine the findings. The CAS clarified that hCG is not classified as a substance susceptible to unintentional doping, making intentional use more likely. Strahija failed to prove unintentional ingestion, merely denying use without providing substantive evidence.
Strahija’s case stemmed from tests in March and July 2002, with the first sample showing elevated hCG levels. FINA’s Doping Control Review Board recommended further tests, which confirmed abnormal hCG concentrations in a subsequent sample. After a provisional suspension and a hearing before FINA’s Doping Panel, Strahija appealed to CAS, challenging the findings and procedural fairness. The CAS upheld FINA’s decision, concluding that the laboratory results were valid, the burden of proof was met, and Strahija did not provide sufficient evidence to counter the doping allegation. The ruling reinforced the strict liability principle in anti-doping regulations and underscored the need for athletes to present credible explanations when accused of violations.
The case also addressed procedural timelines and fairness. Strahija missed deadlines for submitting his appeal brief and witness list, citing illness, but the CAS accepted the late submission as FINA raised no objections. However, his request for telephone testimony for witnesses was denied due to procedural delays and insufficient details. The panel emphasized that fair hearing principles are subject to procedural rules and reasonable case management.
Regarding sanctions, the CAS applied the lex mitior principle, favoring the more lenient 2003 FINA rules, which reduced Strahija’s suspension from four to two years. The suspension was backdated to account for his provisional suspension period, ending on 26 November 2004. The CAS dismissed Strahija’s appeal, upholding the amended FINA decision and confirming the two-year ineligibility period. The case highlights the balance between procedural fairness and rigorous enforcement of anti-doping rules in sports arbitration.