Demonising Justin Gatlin
13th September 2015
The Court of Arbitration for Sport (CAS) has rejected an appeal from London 2012 gold medal winner Nikša Dobud against a four-year ban levied by the Fédération Internationale de Natation (FINA) for evading a doping test, despite the fact that the Croatian water-polo player had returned a negative test the day before. The CAS did not agree with Dobud’s explanation that a Doping Control Officer (DCO) had mistaken his wife’s brother, Marko Bralic, for him.
‘The Panel has found that the Appellant twice sought to evade the consequences of his test evasion in a deceitful way by providing in sequence two inconsistent explanations and in his later version of events involving members of his family in the deceit’, read the CAS decision. ‘The Panel is bound by the provisions of the World Anti-Doping Code as embodied in the FINA regulations and there is no applicable provision for reducing a penalty for evasion of doping controls’.
The Panel also accepted evidence from the Croatian water-polo federation (HVS), which found that Dobud had attempted to contact the DCOs involved . However as no threats were made or ‘bribes’ offered, a criminal complaint was dismissed.
As reported by the Sports Integrity Initiative in July last year, Dobud completed a doping test at the World Water Polo League match against Montenegro in Budva on 20 March 2015. The CAS accepts that he could not initially produce a sample, so stayed behind and missed the Croatian team bus at 8pm. The CAS accepts that the 20 March sample, taken at 8:30pm, came back negative. It also accepts that he telephoned his wife and told her he would stay in Budva and come back to Dubrovnik (his home town) the next morning.
Dobud had filed in his ‘whereabouts’ form that he would be available for testing at his home address in Dubrovnik between 7am and 8am for the entire month of March 2015. The CAS accepts that he returned to his home address at Dubrovnik by taxi between 5:30am and 6am on 21 March, and that a DCO knocked on the door to test Dobud at 6:44am to be told that Dobud was not at home by his wife.
Dobud contends that he had gone to sleep in an apartment at his home address without telling he wife that he had arrived home, in order not to wake her or their sick baby. Dobud’s wife and brother Marko Bralic, who was staying with his wife who is a doctor, answered the door again at 8m and told the DCO that Dobud was not at home. Dobud’s evidence argues that they did properly engage with the DCO, despite repeated knocking, because they were busy with the sick baby. At 9am, Dobud’s wife told the DCO that they should leave otherwise they would phone the police.
However, the CAS did not find this explanation credible. In an 8 April 2015 email, Dobud wrote: ‘Since my name was drawn out for the doping control (in competition), I stayed in Budva after my team left because I wasn’t able to provide the sample right away. That is also the reason why I hadn’t changed the whereabouts data in ADAMS about the following morning because simply there was no time to do it. Since the control finished really late and I had no transportation to go back home, I decided to sleep over in my friends house and return home the following day…I have 4 eye witnesses who can confirm I was not home on the morning in question.’
The CAS argued that according to Dobud’s version of events, he was at home on 21 March, so there would have been no reason to change his whereabouts data. It also disputes his assertion that he had four eye-witnesses that could confirm he was not at home.
‘That could only have been a reference to persons who were with him in Budva’, argues CAS. ‘There were only three persons who could have confirmed – if that were indeed the case – that he was in the flat adjacent to his own, and not his own flat. On that number i.e. of the members of his own family at the address on 21 March 2015, the Appellant could not have been mistaken.’ The fact that Dobud may have been referring to the friend’s house he slept in in Budva and the three family members who did not think he was home was not considered by the CAS.
‘The email is entirely devoid of any explanation equivalent to the Appellant’s version (the late return to the Address, the unannounced arrival, the decision to sleep in the adjacent flat, etc.)’, argues the CAS. ‘In the Panel’s view this commission, set against that version, is as inexplicable as it is unexplained […] The Appellant was indeed saying in these emails that he was in Budva on the morning of 21 March 2015. In the Panel’s view, this was his initial defence. It was discarded not only because it was untrue, but also to support it in the Appeal would have involved others (not being members of his family) in perjury.’
The CAS also found that ‘no cogent explanation’ was given as to why Bralic didn’t tell the DCO that he was not Dobud. It found the explanation that he was afraid of the DCO to be ‘utterly unpersuasive’ due to Bralic’s profession as a bar/club owner.
The panel also discarded the idea that the DCO could have mistaken Bralic for Dobud. ‘The Panel witnessed first-hand at the hearing, when the Panel asked Mr. Dobud, Mr. Bralic and the DCO to stand side by side, the height and physical differences between the door answerer, Mr. Bralic, and Mr. Dobud. It found it difficult to imagine how one could be confused with the other, even in a fleeting moment and an ill-lit environment.’
The CAS didn’t accept earlier evidence from a 15 July FINA Doping Panel hearing that the DCO hesitated in identifying Dobud. “During the hearing, the DCO was asked to identify the Player’, it reads. ‘He had difficulty and hesitated’. It also didn’t consider photos taken of the door answerer submitted by the DCO to his company, IDTM, or inconsistencies in the DCO’s evidence as highlighted in the FINA evidence.
‘It does not consider that the DCO’s initial hesitation in identifying before the FINA panel the Appellant on frozen Skype images undermines the strength of his evidence’, argues the CAS. Its decision means that Dobud will not be available for the Rio 2016 Olympics.