Equestrianism: CAS Upholds FEI two-month suspension of dressage horses
By Laura Donnellan, School of Law, University of Limerick, Ireland On 19 March 2018, the Court of Arbitration for Sport (CAS) delivered an arbitral award in a dispute involving two US Dressage athletes: Adrienne Lyle, an Olympic rider, and Kaitlin Blythe, an under-25 competitor (https://inside.fei.org/system/files/CAS%20Decision%20-2017A5114.pdf) and the Fédération Equestre Internationale (FEI). The CAS upheld the FEI policy of provisionally suspending horses for two-months on grounds of animal welfare and ensuring a level playing field. The background to the CAS arbitral awards is as follows: Lyle and Blythe were provisionally suspended on 5 April 2017 after their horses (Don Principe and Horizon) tested positive for the banned substance Ractopamine. The horses had been subject to routine drug testing with the samples taken during Week 5 of the Adequan Global Dressage Festival, which took place between December 2016 and February 2017 in Wellington, Florida. The horses had been administered a number of dietary supplements, including Soothing Pink, which was marketed as providing relief for horses with gastric upsets. It was produced by Cargill, a leading manufacturer of horse feed and supplements. On the list of ingredients there was no mention of Ractopamine, a beta adrenoceptor agonist. The two competitors contended that the adverse analytical finding was due to contaminated food or supplements and thus fell within the definition of specified substance, as discussed below. The FEI’s Equine Anti-Doping and Controlled Medication Regulations (EADCMRs) are divided into two: - the Equine Anti-Doping (EAD) Rules; and - the Equine Controlled Medication (ECM) Rules. The banned substances and controlled medication are collectively referred to as the Prohibited Substances. The most recent EADCMRs took effect on 1 January 2018 (https://inside.fei.org/content/anti-doping-rules). For human competitors, the World Anti-Doping Agency (WADA) rules apply (https://inside.fei.org/fei/cleansport/humans). A violation of the EADCMRs is a strict liability offence (Article 2.1.1 of the EAD Rules). It applies to the “Person Responsible” (PR), which includes the rider and also support personnel in certain circumstances (Article 2.2-2.8). It is not necessary to demonstrate intent, fault, negligence or knowing use of a prohibited substance. When an adverse analytical finding relating to a banned substance is discovered, the PR is automatically provisionally suspended from the date of notification from the FEI. The horse is suspended for two-months. Provisional suspensions are found under Article 7.4 and are placed on the PR pending a full hearing. Where the PR requests the lifting of the provisional suspension, the FEI Tribunal will maintain the provisional suspension unless the PR establishes, to the comfortable satisfaction of the FEI Tribunal, that:
- The allegation of an EAD violation has no reasonable prospect of being upheld due to a material defect in the evidence on which the allegation is based; or
- The PR can demonstrate that the evidence will show that s/he bears No Fault or Negligence for the violation of the rule that is alleged to have been committed, so that any period of ineligibility that might otherwise be imposed for such a violation is likely to be completely eliminated by application of Article 10.4 (Elimination of the Period of Ineligibility Where there is No Fault or Negligence) or Article 10.5 applies (Elimination of the Period of Ineligibility Where there is No Fault or Negligence) and the PR has already been provisionally suspended for a period of time that warrants the lifting of the provisional suspension pending a final decision of the FEI Tribunal; or
- Exceptional circumstances exist that make it clearly unfair, taking into account all of the circumstances of the case, to impose a Provisional Suspension prior to the final hearing of the FEI Tribunal. This ground is to be construed narrowly and applied only in truly exceptional circumstances. For example, the fact that the Provisional Suspension would prevent the Person or Horse competing in a particular Competition or Event shall not qualify as exceptional circumstances for these purposes (Article 7.4.4).