The case involves golfer Daniel Nisbet, who faced an anti-doping violation for possessing dehydroepiandrosterone (DHEA), a prohibited substance under the World Anti-Doping Agency (WADA) Code. The dispute was brought by the Australian Sports Anti-Doping Authority (ASADA) on behalf of the Australian Sports Commission (ASC) and Golf Australia (GA) before the Court of Arbitration for Sport (CAS). Nisbet, a 19-year-old former scholarship holder of the Australian Institute of Sport (AIS), purchased two bottles from a retail pharmacy overseas, one of which, labeled "Decavol," was found to contain DHEA upon analysis by Australian Customs. Nisbet was provisionally suspended from November 25, 2009. The case centered on whether Nisbet violated anti-doping rules by possessing a prohibited substance, as defined by the ASC and GA Anti-Doping Policies, which mirror the WADA Code. These policies prohibit possession unless justified by a therapeutic use exemption or other acceptable reason, with "possession" encompassing both actual and constructive control, the latter requiring knowledge and intent. Nisbet argued he had no intention to use the substance, claiming it was for another person, and cited mitigating factors such as his youth, inexperience, good character, cooperation with authorities, and the legal purchase of the incorrectly labeled product.
The tribunal examined whether Nisbet could claim "No Significant Fault or Negligence" to reduce his sanction. Factors like his age, lack of prior violations, and the circumstances of the purchase were considered relevant. The decision also addressed whether fairness permitted disqualifying his competitive results post-violation, emphasizing that discretion must be exercised impartially. The case underscores the strict liability nature of anti-doping rules, where intent to enhance performance is unnecessary for a violation, though mitigating circumstances can influence sanctions. The tribunal balanced enforcing regulations with fairness, considering Nisbet's unique situation.
The document outlines the definitions and consequences of anti-doping violations, particularly "possession," which includes actual or constructive control, with constructive possession requiring proof of knowledge and intent. Purchasing a prohibited substance, even electronically, constitutes possession unless the athlete declares it to an anti-doping organization before notification. Sanctions for a first violation typically involve a two-year ineligibility period, though mitigating circumstances can reduce this. The rationale for standardized sanctions under the WADA Code is debated, with proponents advocating for consistency and opponents noting disparities across sports.
In Nisbet's case, it was admitted he possessed DHEA out of competition, meeting the violation criteria. The standard two-year sanction could be reduced if he demonstrated "No Fault or Negligence" or "No Significant Fault or Negligence." Nisbet argued for the latter, presenting evidence of his youth, lack of consumption, legal purchase, misleading labeling, and acquisition for a non-athlete friend during a period of illness that may have impaired his judgment. His clean record, cooperation, and exemplary sporting history further supported his case.
Ultimately, the sanction was reduced to 18 months of ineligibility, effective from November 25, 2009, to May 24, 2011. The tribunal also ruled that fairness allowed Nisbet to retain his competitive results from September and October 2009, as he was unaware of the violation at the time. The CAS upheld this decision, emphasizing the absence of intent to cheat and the importance of context in anti-doping rulings. The case highlights the balance between strict enforcement of anti-doping rules and consideration of individual circumstances to ensure fairness. The award was issued on February 2, 2010, by sole arbitrator The Hon. Justice Tricia Kavanagh.