CAS 2017/A/5157 World Anti-Doping Agency (WADA) v. Africa Zone V Regional Anti-Doping Organization & Anti-Doping Agency of Kenya (ADAK) & Athletics Kenya (AK) & Sharon Ndinda Muli
Athletics (middle-distance)
Doping (19-norandrosterone and its metabolite 19-noretiocholanolone)
Balance of probability
Establishment of source of prohibited substance
1. The standard of proof of balance of probabilities requires an athlete to convince the CAS panel that the occurrence of the circumstances on which the athlete relies is more probable than their non-occurrence.
2. In order to establish under the World Anti-Doping Code (WADC) how a prohibited substance entered an athlete’s body, it is not sufficient for the athlete merely to protest their innocence and suggest that the substance must have entered his or her body inadvertently from some supplement, medicine or other product which the athlete was taking at the relevant time. Rather, an athlete must adduce concrete evidence to demonstrate that a particular supplement, medication or other product that the athlete took contained the substance in question.
In December 2016 the Africa Zone V Regional Anti-Doping Organization (RADO) has reported an anti-doping rule violation against the Kenyan Athlete Ndinda Muli after her sample tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone.
On 30 March 2017 the Sports Disputes Tribunal of Kenya decided to impose a 1 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. 6 December 2016.
The Athlete argued that she suffered from an heel injury and as treatment she used prescribed medication as possible source of the positive test.
Hereafter in May 2017 the World Anti-Doping Agency (WADA) appealed the decision of 30 March 2017 with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the decision of 30 March 2017 and to impose a 4 year period of ineligibility on the Athlete due to the Athlete failed to establish that the anti-doping violation was unintentional.
The Anti-Doping Agency of Kenya (ADAK) and the RADO confirmed that the Athlete had no TUE; that the Sports Diputes Tribunal made some errors and misapplied itself by shifting the burden of proof from the Athlete to the RADO; and the Athlete failed to explain the source of the prohibited substances in her system. ADAK and RADO rejected the claim that they are incompetent and misconceived.
In this case the Sole Arbitrator determines the following issues:
1.) The Occurrence of an ADRV and the Standard Sanction
2.) Burden and Standard of Proof
3.) Was the Athlete's ADRV intentional?
4.) Reduction Based on the Athlete's Prompt Admission?
5.) Sanctions
The Sole Arbitrator finds that the anti-doping rule violation was established and undisputed with a standard sanction of 4 years. The Athlete has the burden of proof and she failed to explain, on the balance of probability, how the prohibited substances entered her system or establish the source of the prohibited substances. The Athlete failed to demonstrate that the violation was not intentional and her prompt admission does not grant her automatically an reduction of the sanction from 4 to 2 years as WADA has not approved such a reduction.
Therefore the Court of Arbitration for Sport decides on 10 October 2017 that:
1.) The appeal filed on 30 May 2017 by the World Anti-Doping Agency against the 30 March 2017 Decision rendered by the Sports Disputes Tribunal of Kenya is upheld.
2.) The 30 March 2017 Decision by the Sports Disputes Tribunal of Kenya is set aside.
3.) Ms Sharon Ndinda Muli is sanctioned with a four-year period of ineligibility starting the date of her provisional suspension (i.e. 6 December 2016).
4.) Ms Sharon Ndinda Muli is disqualified from the Kenya Defence Force Championship on 29 April 2016 with all the resulting consequences including forfeiture of any medals, points, and prizes.
5.) All results earned by Ms Sharon Ndinda Muli after 29 April 2016 are disqualified, with all resulting consequences.
6.) The costs of arbitration, to be determined and notified to the parties by the CAS Court Office, shall be borne by the 40% by Africa Zone V Regional Anti-Doping Organization, 40% by the Anti-Doping Agency of Kenya, and 20% by Ms Sharon Ndinda Muli.
7.) The Africa Zone V Regional Anti-Doping Organization, the Anti-Doping Agency of Kenya, and Ms Sharon Ndinda Muli shall pay jointly and severally a total amount of CHF 3,000 (three thousand Swiss franc) to the World Anti-Doping Agency as contribution to its legal costs and other expenses that it has incurred in these proceedings.
8.) All further and other requests for relief are dismissed.
