CAS 2014/A/3572 Sherone Simpson v. Jamaica Anti-Doping Commission (JADCO)
Athletics (sprint)
Doping (oxilofrine)
Distinction between answer and (cross) appeal (ultra petita)
Requirements related to the application of a reduced period of ineligibility for the use of a Specified Substance
Source of the Prohibited Substance in the Athlete’s body
No intent to enhance sport performance
Assessment of the degree of fault
1. CAS rules provide strict time limits and formalities with regards to appeals with a perceptible and proper purpose of ensuring that the parties know at the earliest opportunity what issues can be raised before a CAS panel. It results from the party’s omission to file its own appeal that it cannot seek an increased sanction over and above that ordered by the first instance body having rendered the challenged decision, as an answer to an appeal is not in substance or in form the same as a (cross) appeal. A party cannot take advantage of its own procedural omission albeit unintentional, as doing so would unfairly countenance consideration of a penalty that is the product of procedural unclean hands. That would be ultra petita.
2. In order to prove his/her entitlement to any reduced period of ineligibility under 10.4 of the JADCO Anti-Doping Rules which incorporates the WADA Code, an athlete must establish: 1) how the specified substance entered his/her body on a balance of probability; and 2) that the specified substance was not intended to enhance his/her sport performance. The athlete must also produce corroborating evidence in addition to his/her word which establish to the comfortable satisfaction of the adjudicating panel the absence of an intent to enhance sport performance. If these requirements are satisfied, the athlete’s “degree of fault” will be considered to determine whether the presumptive two-year period of ineligibility should be reduced, and if so, by what period of time.
3. The evidence of the test results establishing that a supplement contained the specified substance is sufficient to establish that the supplement purchased for the athlete was the source of the specified substance found in the athlete’s urine sample.
4. The fact that the specified substance is a low grade, mild stimulant with little if any performance-enhancing benefit, that it is very easy to detect, the open disclosure by the athlete of his/her use of the specified substance and the fact that he/she gave credible evidence that he/she used the product containing the specified substance as a nutritional supplement are objective circumstances which in combination might lead a hearing panel to be comfortably satisfied that the athlete did not intend to enhance his/her sport performance by unknowingly ingesting the specified substance (or indeed by knowingly ingesting the nutritional supplement).
5. It is incumbent upon any international level competitor to at the very least be aware of the risk of supplement use. While it would be unreasonable to expect an athlete to go to the lengths of having each batch of a supplement tested before use, there are other less onerous steps that could be taken, such as making a direct inquiry to the manufacturer and seeking the advice of professionally qualified doctors. The research of the ingredients of the supplement, the check of the supplement’s website and the Google search engine constitute some significant steps to minimize any risk associated with the taking of the specified substance. The fact that there is no way short of a laboratory test in which the substance could have been identified as one of the ingredient of the supplement is also to be taken into account to assess the athlete’s degree of fault.
On 1 May 2014 (with the oral decision on 8 April 2014) the Jamaica Anti-Doping Disciplinary Panel decided to impose a 18 month period of ineligibility on the Athlete Sherone Simpson after her A and B samples tested positive for the prohibited substance oxilofrine (methylsynephrine).
Hereafter in April 2014 the Athlete appealed the decision of 8 april 2014 with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel for a reduced sanction and argued that she had no intention to enhance her performance. She explained how the substance came into her body and her efforts that the supplements she used did not contain any prohibited substances.
The Panel finds that Simpson’s testimony along with the other corroborating evidence establish to its comfortable satisfaction that she did not intend to enhance her sport performance by unknowingly ingesting Oxilofrine (or indeed by knowingly ingesting Epiphany D1).
The Panel finds that in all the circumstances, factually and legally, the eighteen-month period of ineligibility imposed by the Jamaica Anti-Doping Disciplinary Panel was excessive; and, with all the reservations it has already articulated about comparable cases, so far outside the broad run of cases as to excite a sense that an injustice has been done.
Therefore the Court of Arbitration for Sport decides on 7 July 2015:
1.) The Appeal filed by Ms Sherone Simpson against the decision of the Jamaica Anti-Doping Disciplinary Panel dated 8 April 2014 is partially upheld.
2.) The decision of the Jamaica Anti-Doping Disciplinary Panel dated 8 April 2014 is set aside and replaced with the following:
Ms Sherone Simpson is sanctioned with a period of ineligibility of six (6) months, commencing on 21 June 2013.
3.) All sporting results obtained by Ms Sherone Simpson from 21 June 2013 up to the date of the expiring of the period of ineligibilty shall be invalidated.
4.) (…).
5.) (…).
6.) All other or further requests or motions for relief are dismissed.
