CAS 2015/A/4155 World Anti-Doping Agency (WADA) v. Hasan Mohamed Mahmoud abd El-Gawad & Egyptian Anti-Doping Organization, award of 10 November 2015 (operative part of 14 September 2015)
- Athletics (hammer throw)
- Doping (metenolone)
- Condition for the reduction of a period of ineligibility (substantial assistance)
- Modification of the start date of the period of ineligibility
1. The applicable National Anti-Doping Organization (NADO) rules are particularly clear with respect to the conditions under which a sanction may be reduced. In this respect, after a final appellate decision or the expiration of time to appeal, NADO may only suspend a part of the otherwise applicable period of ineligibility with the approval of WADA and the applicable International Federation. Therefore, a reduction of a sanction in the event of alleged substantial assistance provided by an athlete shall be approved by WADA and the competent IF. Any deviation from a final decision imposing a period of ineligibility, if indeed at all possible, is of an exceptional nature and as a result must be considered as subject to very particular conditions that should be dutifully respected.
2. There is no opportunity to modify the start date of a period of ineligibility without valid basis.
On 10 November 2013 the Egyptian Anti-Doping Organization (EGY-NADO) decided to impose a 2 year period of ineligibility on the Athlete Hasan Mohamed Mahmoud abd El-Gawad after his sample tested positive for the prohibited substance metenolone.
On 29 January 2015 the EGY-NADO decided to reduce the period of ineligibility from 2 years to 18 months for the Athlete’s substantial assistance.
Hereafter in July 2015 WADA appealed the decision of the board members of EGY-NADO with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the appealed EGY-NADO decision and to impose a 2 year period of ineligibility on the Athlete.
WADA argued that EGY-NADO’s second decision (the “Appealed Decision”), shortening the period of ineligibility, makes no reference to the substantial assistance provisions of the NADO Rules. Such a basis for the Appealed Decision was only provided when WADA requested one, and the file contains no evidence of any such assistance having been provided.
Moreover, WADA asserted that neither WADA nor the IAAF gave their approval to a suspension of ineligibility, as required by the NADO Rules once a final appellate decision has been rendered or the appeal deadline has expired.
The Panel notes that the central issue at hand is whether the NADO had the ability, under its rules, to reduce the Athlete’s period of ineligibility in the manner that it did. In addressing this, it is relevant to consider the Respondents’ arguments with respect to mitigation and whether their failure to obtain the approval of WADA and the IAAF with respect to the Appealed Decision was of such a nature that the latter cannot be upheld, or rather a formal requirement of lesser significance.
The Panel finds that while the Respondents seek a modification of the start date of the period of ineligibility, there does not appear to be a valid basis for this. Indeed, were it not for flawed Appealed Decision which itself was not made in compliance with the NADO Rules, there would have not been grounds for the present appeal, and therefore no opportunity to revisit the issue of the start date of suspension which was validly decided in the NADO’s Initial Decision.
Therefore the Court of Arbitration for Sport decides on 10 November 2015 that:
1.) The appeal filed by the World Anti-Doping Agency on 24 July 2015 is upheld.
2.) The undated decision of the board members of the Egyptian Anti-Doping Organization reducing Mr. Hasan Mohamed Mahmoud abd El-Gawad’s period of ineligibility from two years to 18 months is set aside.
3.) Mr. Hasan Mohamed Mahmoud abd El-Gawad is sanctioned with a two-year period of ineligibility commencing on the date of this award with credit given for the time already served by Mr. Mahmoud abd El-Gawad between 18 October 2013 and 9 May 2015.
4.) (…)
5.) (…)
6.) All other motions or prayers for relief are dismissed.
