ADR and Sports Law Update - Court of Arbitration for Sport dismisses WADA appeal and affirms Shayna Jack’s reduced suspension due to lack of intent

On 19 December 2019, ASADA (now known as Sport Integrity Australia – “SIA”) proposed that a 4-year ban be imposed on Shayna Jack (“Athlete”) after a doping control test revealed the presence of Ligandrol in her body. The Swimming Australia Anti-Doping Policy effective from 1 January 2015 (“Policy”) provides for strict liability for the presence of prohibited substances (like Ligandrol) and for a 4 year ban on competition.

The Policy permits a reduced period of ineligibility from 4 years to 2 years if the athlete can prove that the violation was not intentional (Art 10.2.1.1).

The Athlete challenged SIA’s proposed 4 year ban at the Court of Arbitration for Sport (“CAS”). Alan Sullivan QC was appointed as the Sole Arbitrator. The critical issue in the proceeding was whether the Athlete had discharged the burden (on the balance of probabilities) of showing that the Anti-Doping Rule Violation was not intentional. The Athlete did not, in the proceeding before the Sole Arbitrator, prove the source of the prohibited substance but said, nevertheless, that she did not intend to take it.

Based primarily on the Athlete’s testimony, the Sole Arbitrator found that that the Athlete’s violation was not intentional with the result that the default sanction of a 4-year period of ineligibility was reduced, by operation of Art 10.2.1.1, to 2-years.

Both the World Anti-Doping Agency (“WADA”) and SIA appealed the decision to the Appeal Division of CAS. In such an appeal, the panel may substitute its own merits review of the facts, and need not give deference to the discretion exercised at first instance (Art 13.1).

WADA’s and SIA’s key point in the appeal was that the Sole Arbitrator had erred in relying excessively on the Athlete’s own evidence, and specifically on its conclusions as to her credibility in finding an absence of intent.

The 3-member appeal panel accepted that the Policy does not explicitly require the athlete to prove the source of the prohibited substance before the case could be brought within the operation of Art 10.2.1.1. However, the appeal panel also identified (non-binding) CAS authority, Iannone (CAS 2020/A/6978), in which case the CAS panel had stated:

“[T]he athlete cannot rely on simple protestations of innocence or mere speculation as to what must have happened but must instead adduce concrete and persuasive evidence establishing, on a balance of probabilities, a lack of intent”.

Put differently, Iannone required the athlete in effect to prove the source of the prohibited substance. Other arbitral panels at CAS have taken a different (more liberal) approach and said, in effect, that the athlete may instead demonstrate possible or probable pathways of ingestion and so pass through the “narrowest of corridors” to prove lack of intent without proving the source of the prohibited substance: Abdelrahman (CAS 2017/A/5016 & 5036).

The appeal panel considered at [85] that the key question, in determining an athlete’s intent, was: (i) is an explanation from the athlete which satisfies a CAS panel of the athlete’s sincerity sufficient; or (ii) is more objective proof necessary (and if so, what proof). The Panel found that an athlete’s sincerity, albeit supported by other evidence (such as scientific evidence, character evidence, and the lengths to which the athlete had gone in order to identify – albeit unsuccessfully – the source of the prohibited substance), may, in certain cases, be sufficient.

The appeal panel also stated at [98] that the question is not, broadly, did the athlete intend to cheat; but rather, was the conduct which violated the rules inadvertent, irrespective of the purpose for that conduct. The panel reaffirmed that there is no absolute requirement for the athlete to prove the sources of the prohibited substance ([109], [113], [171]) and noted the difficulties inherent in relying on personal credibility, without more, to prove lack of intent: [101]-[108].

The appeal panel determined that the Sole Arbitrator’s first instance decision was not in accordance with the Policy. It found that the Sole Arbitrator had relied on the fact that the source of the prohibited substance had not been identified, together with “speculations, declarations of a clear conscience, and character references”, which it said did not provide sufficient proof. Instead, the Appeal panel said it ought to approach and analyse the evidence, based on the process articulated in the earlier CAS decision in Lawson (CAS 2019/A/6313), which it said involved considering, in turn:

(a) the science (including pathways or possible pathways of ingestion);

(b) the totality of the evidence or circumstances;

(c) common sense; and

(d) the athlete’s credibility.

The appeal panel then applied these criteria to the facts.

In relation to science, the appeal panel identified that Ligandrol is widely available on the black market in Australia; the small quantity detected in the Athlete was “pharmacologically irrelevant”; and a hair test (independently undertaken by the Athlete) indicated no long term use of Ligandrol.

In relation to the totality of the circumstances it identified a number of factors including that the Athlete was a successful elite swimmer and part of a world-record setting relay team, and on the path to that success she had been tested many times, always (other than the test giving rise to the violation) returning negative results for prohibited substances; her recent swim times were stable and did not show any benefit from the ingestion of Ligandrol; nor was there was any evidence of a recent drop in form, or suggestion of the need to surpass her usual level to stave off competitors.

As for common sense, the Appeal panel asked, rhetorically, would the Athlete have “risked her brilliant prospects” of swimming success “by ingesting a synthetic product peddled and debated on the Internet” without consulting her team and without getting advice, in circumstances where she did not have any acute need to boost her performance or overcome a setback?

In relation to credibility, the Appeal panel said it was “disinclined to give weight to uncorroborated assertions of the accused and persons close to…her”. It also said it was troubled by the fact that she did not ask her partner, an accomplished hockey player, to give evidence.

However, despite these difficulties on the credibility issue, the Appeal panel stated (noting that the decision was by majority, i.e. 2:1) that, taking into account all the circumstances, “the accusation of manifest disregard of the rules makes no sense” and that it appeared, on balance, that her ingestion of the substance was more likely the result of innocent rather than intentional or reckless conduct (in the sense of manifestly disregarding a risk): [180].

Accordingly, the Appeal panel dismissed WADA’s and SIA’s appeal and left in place the 2-year reduction in the Athlete’s period of ineligibility.

Comment

The decision to dismiss the appeal is understandable: a 4-year ban for a positive test result on one occasion in relation to a pharmacologically irrelevant quantity of a banned substance, that provided no benefit to an athlete with an otherwise exemplary record, would appear to be excessive. It could hardly be said to reflect a proportionate response to an otherwise innocent and inadvertent violation, especially where an Olympic and world champion athlete is deprived of the opportunity to compete in significant events (including the Tokyo Olympics). However, as has often been observed, the fight against drugs in sport needs to be based on firm rules and based on strict or absolute liability. The appeal decision in Jack expressly attempts to follow the process articulated in Lawson. In doing so, it was the apparent intent of the appeal panel to ensure consistency of approach to like cases so as to provide greater guidance on how a tribunal might approach the question of intention where the source of the prohibited substance has not been proved.

Nonetheless, perhaps a better approach would be to reform the rules so as to reduce the ban-period for tests which show minute doses of prohibited substances that would not result in performance enhancement.