The case involves an appeal by rugby league player Kurt Foggo against a decision by the National Rugby League’s Anti-Doping Tribunal (NRL Tribunal) regarding a doping violation. The NRL Tribunal found that Foggo had consumed 1,3-dimethylpentylamine, a prohibited substance listed on the World Anti-Doping Code (WADC) Prohibited List, and imposed a two-year ineligibility period starting from October 11, 2010. Foggo sought to reduce this penalty to three months through an appeal to the Court of Arbitration for Sport (CAS). The substance was detected in urine samples taken after a match on September 10, 2010, where Foggo had not declared the supplement 'Jack3d,' which contained the banned substance. The case revolved around key legal principles, including the doctrine of lex mitior, which allows applying current, less severe sanctions if they exist at the time of adjudication. The tribunal also examined the interpretation of Rule 154 of the WADC, which requires the athlete to demonstrate that the ingestion of the substance was not intended to enhance sport performance. The rule focuses on the athlete’s intent at the time of ingestion and requires corroborating evidence beyond the athlete’s testimony to prove the absence of intent. The standard of proof for the athlete to rebut presumptions or reduce penalties is the balance of probabilities, with a higher burden when seeking leniency under Rule 154. The case emphasized the athlete’s duty to ensure compliance with anti-doping rules, stressing that ignorance is not an excuse. The NRL Tribunal rejected Foggo’s arguments under Rules 154 and 156, leading to the imposed penalty. The appeal proceedings were conducted by a CAS panel, with ASADA representing the NRL. The parties agreed on the facts, including Foggo’s acknowledgment of the strict liability violation and the source of the substance. The CAS panel was tasked with evaluating whether the NRL Tribunal’s decision was justified under the applicable rules and principles. The case underscores the importance of athlete diligence in avoiding prohibited substances and the rigorous standards applied in anti-doping adjudications.
Foggo’s appeal centered on three key issues. First, he argued that he did not intend to enhance sports performance by ingesting the substance, citing searches on the ASADA website that did not identify the substance as prohibited in Jack3d. The Respondent countered that athletes must prove they did not intend to enhance performance, regardless of whether they knew the substance was prohibited. Second, Foggo claimed to have provided corroborating evidence, including consultations with a store owner, searches with his mother, and advice from team coaches. His mother’s testimony, a letter from Mr. McNally, and another from former player Mr. Eadie were submitted as proof of his diligence. Third, Foggo argued he bore "No Significant Fault or Negligence" under the relevant rules, questioning whether a different standard applied compared to other provisions. The dispute hinged on whether his actions met the required threshold to avoid sanctions.
The CAS panel found that Foggo met the higher burden of proof required to reduce the sanction, based on evidence including testimony from the athlete and his mother, which was unchallenged during cross-examination. The panel concluded that Foggo did not intend to enhance his performance by ingesting the substance, allowing for a reduced sanction under the updated WADC rules. The case underscores the importance of intent and corroborating evidence in anti-doping violations, as well as the applicability of lex mitior when rule changes benefit the athlete. The panel affirmed the jurisdiction of CAS to hear the appeal and upheld the principle that sanctions should reflect the most current and lenient applicable rules. Ultimately, the CAS reduced the period of ineligibility from the original decision to six months, effective from the date of his initial suspension. The appeal was partially upheld, and the NRL Tribunal's decision was amended accordingly, with all other requests dismissed. The case highlights the challenges athletes face in proving their innocence when unintentionally consuming prohibited substances and the importance of ongoing, reasonable inquiries to avoid unintentional violations.