Related case:
CAS 2007_A_1312 Jeffrey Adams vs CCES
May 16, 2008
SDRCC 2006 CCES vs Jeffrey Adams
June 11, 2007
Facts
The Canadian Centre for Ethics in Sport (CCES) has reported an anti-doping rule violation against the Athlete Jeffrey Adams for his refusal or failure to provide sample without compelling justification.
Hearings were held on October 21, 22, 24 and 25, 2010 Toronto, Ontario.
History
The Athlete was previously the subject of a 2007 Doping Tribunal. That decision became the subject matter of a 2008 Court of Arbitration for Sport (“CAS”) arbitral award (“DT/CAS Determination”). In May, 2009, the Athlete commenced proceedings in respect of the DT/CAS Determination by Statement of Claim in the Ontario Superior Court of Justice and for Judicial Review in the Divisional Court.
On September 30, 2009, the Athlete was selected for doping control by the CCES. However, that session was terminated by the CCES before a sample was given. On November 24, 2009, as a follow up for the terminated session, the Athlete was again selected for doping control to take place on November 28, 2009. This session also did not result in the Athlete providing a sample. The CCES alleges the session ended because the Athlete refused to participate. The Athlete states that the CCES terminated the session and there was no refusal.
Decision
The conclusion is that the Athlete did not provide a sample at the November 28th Session because the CCES failed to clarify who was responsible for ensuring that the CCES supplied catheter was contamination free. This is an assurance that the CCES could readily have given in respect of other Sample Collection equipment which must be provided by the CCES.
1. The requirement is consistent with the mutuality concept of contract compliance which is the framework for the relationship between the parties. How can one be said to be in default or in breach of a contract when a requirement is questioned without a response being given or the parties have not reached an agreement on a critical term; such as, “Who is responsible to ensure that a CCES-supplied catheter is contamination free?”
2. The Athlete is contractually entitled to the procedural and substantive rights established by the CADP and applicable jurisprudence which includes the DT/CAS Determination.
3. The DT/CAS Determination arose at a point in time when the guidelines applicable to disabled athletes were evolving. This evolution is reflected in Annex 6B to the CADP which establish the CCES’s obligations to disabled athletes. In the circumstances of the November 28th Session, these obligations were not respected.
4. Unable to conclude on the evidence before me that the Athlete refused to continue with the test because he was retired, as urged by the CCES.
5. The responsibility for the unsatisfactory evidentiary record rests with the CCES, which had refused the request of Mr. Bagg that the session be recorded on videotape. Further, it did not at the time review, challenge or clarify the Athlete’s position that was clearly
spelled out in his written Supplementary Report. Had the CCES chosen an alternate approach at the November 28th Session, it may have succeeded in meeting its burden of proof by avoiding the existing, contradictory, evidentiary record.
6. In determining the outcome, governed by the burden of proof and standard of proof set out in CADP Rule 7.81. It is comfortably satisfied that on the evidence before me, the CCES has failed to discharge its burden that any anti-doping rule violation occurred on November 28, 2009. That is because of its failure to adduce sufficient evidence of a refusal to satisfy even the lower standard of proof in civil cases of a mere balance of probability. Concluded above that the strict liability nature of CADP Rule offences is not engaged in these circumstances. CCES can thus not succeed in this hearing.
7. I am quite able to reach this conclusion on a “comfortable satisfaction”level bearing in mind the seriousness of the allegation which is made. I am not persuaded that in these circumstances, the Athlete refused to provide a test sample as alleged. This is not a case requiring examination of whether “compelling justification”existed for the Athlete’s refusal as I have concluded that no refusal occurred. However, had I found the Athlete failed to submit to Sample Collection, I would have concluded there was “compelling justification” for the Athlete’s action as the CCES failed to comply with its CADP Rule obligations.
8. The CCES has not established to the comfortable satisfaction of the Doping Tribunal that an anti-doping rule violation occurred on November 28, 2009.
