CAS 2012/A/2763 International Association of Athletics Federations (IAAF) v. Athletics Federation of India (AFI) & Akkunji Ashwini, Priyanka Panwar, Tiana Mary Thomas & Sini Jose, award of 30 November 2012 (operative part of 17 July 2012)
Related cases:
- ADDPI 2016_22 INADA vs Priyanka Panwar - Appeal
September 8, 2017 - ADAPI 2017_194 Priyanka Panwar vs INADA - Appeal
May 30, 2019
- Athletics
- Doping (metandienone; stanozolol)
- CAS scope of review
- Standard of proof of establishing how the prohibited substance entered the athletes’ system
- Reduction of sanction based on no significant fault or negligence
- Personal responsibility of the athlete
- Duty of care to establish no significant fault or negligence
- Starting date of the sanction
1. According to Article R57 of the CAS Code, the CAS has full power to review the facts and law of the case. However, prayers for relief challenging an appealed decision must be part of an appeal against that decision, not a part of the response to an appellant’s appeal, as they are otherwise beyond the scope of review of the CAS.
2. The standard of proof of establishing how the prohibited substance(s) entered the athletes’ systems, in accordance with Rule 33.2 of the IAAF Rules, is a balance of probability, a standard that has been held to mean that an athlete alleged to have committed a doping violation bears the burden of persuading the judging body that the occurrence of a specified substance is more probable than its none occurrence; alternatively that the innocent explanation provided is more likely than not the correct explanation.
3. A reduction of sanction based on no significant fault or negligence may be appropriate in cases where the athlete clearly establish that the cause of the positive test was the contamination in a common multiple vitamin purchased from a source with no connection to prohibited substances, but only where the athlete otherwise exercised due care in not taking other nutritional supplements.
4. CAS jurisprudence is clear that athletes cannot shift their responsibility on to third parties simply by claiming that they were acting under instruction or that they were doing what they were told. That would be all too simple and would completely frustrate all the efforts being made in the fight against doping.
5. Even in the case where athletes may not be deemed informed athletes due to a lack of anti-doping education, they must be aware of the basic risks of contamination of nutritional supplements. If athletes have been taking a cocktail of supplements despite the numerous warnings in place about taking supplements, have failed to contact the manufacturers directly or arrange for the supplements to be tested before using them, did not seek advice from a qualified doctor or nutritionist, have failed to conduct a basic review of the packaging of the supplements and any basic Internet research about the supplements, they cannot be deemed to have taken any of the reasonable steps expected of them and cannot establish on the facts that they bear no significant fault or negligence.
6. According to Rule 42.22 of the IAAF Rules, the CAS is bound by the IAAF Rules. Therefore, even if the first instance body has applied other rules regarding the starting date of the sanction, the CAS has to apply Rule 40.10 of the IAAF Rules which provides that the period of ineligibility shall start on the date of the hearing decision except where the athlete promptly admits the anti-doping violation. If the athletes have not provided any evidence that they accepted the anti-doping violation on a timely basis in writing, then the period of ineligibility shall start on the date of the decision.
In June and July 2011 the IAAF and the India National Anti-Doping Agency (INADA) reported several anti-doping rule violations against the four Indian Athletes after their A and B samples tested positive for the prohibited substances metandienone and stanozol (Ms. Tiana Mary Thomas) or the substance metandienone (Ms Sine Jose, Ms Akkunji Ashwini and Ms Priyanka Panwar).
In a consolidated procedure the Indian Anti-Doping Disciplinary Panel (ADDPI) decided on 23 December 2011 to impose a reduced 1 year period of ineligibility on the Athletes starting on the date of their provisional suspension.
Both the World Anti-Doping Agency (WADA) and the Athletes appealed the decision of 23 December 2011 and on 17 March 2012 the Indian Anti-Doping Appeal Panel (ADAPI) decided in a consolidated procedure to uphold the imposed 1 year period of ineligibility but backdated the start date on the date of the sample collection.
Hereafter in April 2012 the IAAF appealed the ADAPI decision with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the ADAPI decision of 17 March 2012 and to impose a 2 year period of ineligibility on the four Athletes.
It was the IAAF’s position that the Athletes have not met their burden of proving on the balance of probability that the used Kianpi Pills supplements were the source of their adverse analytical findings. The IAAF asserted that the Coach of the athletes had devised a separate sophisticated doping regimen, including administering the type of steroids for which the Athletes tested positive.
That doping regimen was put before the CAS. The IAAF also put forward expert evidence that the author of that separate doping regime was the same person who wrote the food supplement program for the Athletes for the period May to June 2011, a document that the Athletes had specifically testified to as being in the handwriting of the Coach.
The IAAF’s submission was that the Coach was prescribing the direct administration steroids – these did not get into the Athletes’ system by contamination.
The CAS Sole Arbitrator noted that the Athletes had a prohibited substance or substances in their bodies in breach of the IAAF Rules and as such were facing a 2 year period of ineligibility in accordance with the IAAF Rules. The Sole Arbitrator therefore had to determine the following:
A.) In accordance with Rule 40.5 of the IAAF Rules, in order for exceptional circumstances to apply, have the Athletes established how the prohibited substance(s) entered their systems?
B.) If the answer to (a) is yes, have the Athletes established that they bear “No Significant Fault or Negligence” entitling them to any reduction in the otherwise applicable 2 year sanction?
C.) If the answer to (b) is yes, what is the appropriate length of suspension to be imposed?
D.) In accordance with Rule 40.10, what is the correct start date for the Athletes’ period of Ineligibility?
The Sole Arbitrator notes that there is no evidence on the file that the Athletes deliberately ingested steroids. Further, the Sole Arbitrator also notes that the Athletes were in fact taking a number of supplements purchased from outside of the training centre which were not from official sources.
The Sole Arbitrator finds that the Athletes were in fact guilty in a number of respects of serious fault or negligence in their conduct and that they must now serve the full 2 year period of suspension. However, the Sole Arbitrator would like to stress again that the IAAF and the Athletics Federation of India need to take further positive action to educate Athletes in relation to the risks of taking supplements in India.
The Sole Arbitrator concludes that het period of ineligibility shall start on the date of the decision.
Therefore the Court of Arbitration for Sport decides on 30 November 2012:
1.) The appeal filed on 5 April 2012 by the International Association of Athletics Federations (IAAF) against the decision of the Indian Anti-Doping Disciplinary Panel issued on 17 March 2011 is admissible and upheld;
2.) The decision of the Indian Anti-Doping Disciplinary Panel of 23 December 2011 is set aside;
3.) Ms. Ashwini, Ms. Panwar, Ms. Mary Thomas and Ms. Jose shall be all declared ineligible for a period of two (2) years starting from the date of the present award, given credit of the period of their previous period of ineligibility and subsequent provisional suspension already served;
4.) All competitive results obtained by Ms. Ashwini and Ms. Panwar from 27 June 2011 and by Ms. Mary Thomas and Ms. Jose from 12 June 2011 until the commencement of their previous period of ineligibility shall be disqualified, with all resulting consequences, in accordance with IAAF Rule 40.8;
(…)
7.) All other motions or prayers for relief are dismissed.
