TAS 2015/A/1 Australian Sports Anti-Doping Authority, on behalf of Australian Canoeing and the Australian Sports Commission v, Tate Smith
CAS (Oceania Registry) A1/2015 Australian Sports Anti-Doping Authority (ASADA), on behalf of Australian Canoeing (AC) and the Australian Sports Commission (ASC) v. Tate Smith
- Canoeing
- Doping (stanozolol)
- Burden of proof
- Adverse inference
1. In accordance with Article 3.1 of the WADA Code, the athlete bears the onus of proof to establish first how the substance was ingested and second that he was neither negligent nor at fault. He must establish his case on the balance of probabilities as understood in Australian civil law, as the law of the dispute is the law of New South Wales, and constant CAS jurisprudence.
2. The fact that three other team members were tested at the same time as the athlete concerned and that no Adverse Analytical Findings were recorded permits of an inference that the prohibited substance was either not present in the training waters or, if it was, could not penetrate their skins.
In December 2014 and in January 2015 the Australian Sports Anti-Doping Authority (ASADA) has reported anti-doping rule violations against the Athlete Tate Smith after his samples - provided in July 2014 - tested positive for the prohibited substance Stanozolol. After notification the Athlete filed a statement in his defence and he was heard for the Oceania Registry Court of Arbitration for Sport (CAS)
The Athlete denied the intentional use of the substance and asserted that there were three posible explanations on how the substance had entered his system:
- drinking local water;
- wet hands causing contaminated water to enter the sample;
- absorption of the substance through the skin.
Here the Sole Arbitrator received no direct evidence of the presence of Stanozolol. Material relied on to establish the presence of Stanozolol was, according to some experts, to be found in a report published in 2011 (the Deshmukh Report) which established the presence of Stanozolol in the Danube river, approximately 110 kms from the subject site.
The Sole Arbitrator finds that the connection between the presence of Stanozolol in the first half of 2010 (and not at all in the second half) in the Danube, and its presence nearly six years later in Szolnok 110 kms away is so slim as to be negligible. Of course, it cannot be established conclusively that there were no prohibited substances in the water over which the Athlete trained but the evidence does not go beyond establishing the presence as anything other than a bare possibility.
In all the circumstances, the Sole Arbitrator is of the opinion that the Athlete has failed to discharge the onus upon him to establish how Stanozolol entered his system and hence concludes that ASADA’s application must succeed.
Therefore the Court of Arbitration for Sport decides on 2 October 2015 that:
1.) On or about 22 July 2014, the Respondent committed the anti-doping rule violations of Presence and Use of a Prohibited Substance in breach of Article 7 of the Bylaw (which incorporates by reference Article 2 of the WADA Code) and Article 6.1 of the Policy.
2.) In accordance with Article 17 of the Bylaw (which incorporates by reference Article 10 of the WADA Code) and Article 19.2 of the Policy, a period of ineligibility be imposed upon the Respondent for a period of two (2) years, backdated to commence on 8 September 2014.
3.) All competitive results obtained by the Respondent from 22 July 2014 shall be invalidated with all resulting consequences including forfeiture of any medals, points or prizes.
(…)
6.) All other requests for relief are dismissed.
