CAS 2017/A/5296 World Anti-Doping Agency v. Gil Roberts
Related case:
AAA 2017 No. 01 17 0003 4443 USADA vs Gil Robers
July 10, 2017
Athletics (sprint)
Doping (probenecid)
Meaning of the balance of probability test
No fault or negligence
1. In case a panel is offered several alternative explanations for the ingestion of a prohibited substance, but is satisfied that one of them is more likely than not to have occurred, the athlete has met the required standard of proof regarding the means of ingestion of the prohibited substance. It remains irrelevant that there may also be other possibilities of ingestion, as long as they are considered by the panel to be less likely to have occurred. In other words, for the panel to be satisfied that a means of ingestion is demonstrated on a balance of probability simply means, in percentage terms, that it is satisfied that there is a 51% chance of it having occurred. The athlete thus only needs to show that one specific way of ingestion is marginally more likely than not to have occurred.
2. A panel cannot find that the athlete did not exercise utmost caution when he kissed his girlfriend of three years after she had, without his knowledge, consumed medication containing the probenecid ultimately found to be present in his system. The athlete could not have envisioned that she might be inadvertently responsible for administering the probenecid to him if he were to kiss her prior to his out-of-competition test. It follows that the athlete acted without fault or negligence.
In March 2017 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the Athlete Gil Roberts after his A and B samples tested positive for the prohibited substance probenecid.
On 10 July 2017 the AAA Tribunal decided that the Athlete Gil Roberts is without fault in this matter, without disqualification of his results and is he immediately eligible to compete in sporting events.
Considering the statements and evidence the AAA Tribunal concluded that the Athlete had met his burden in establishing how the prohibited substance entered his system and that the athlete did not know or suspect and could not have reasonably known or suspected even with the exercise of utmost caution that he had ingested a prohibited substance.
The Athlete produced the test results from the BSCG Laboratory indicating that a “Moxylong” capsule had been tested which contained probenecid. The Athlete explained that he believed the positive test results for Probenecid resulted from kissing his girlfriend who had recently ingested Moxylong capsules sublingually immediately before he kissed her and shortly before his out-of-competition doping control.
Hereafter in August 2017 the World Anti-Doping Agency (WADA) appealed the AAA Tribunal decision with Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the AAA Tribunal decision of 10 July 2017 and to impose a 2 year period of ineligibility on the Athlete. WADA rejected the Athlete’s explanation and points to inconsistencies and implausible explanations. The Athlete contested that he has met the required standard of proof regarding the means of ingestion of probenecid by providing evidence that kissing his girlfriend was the likely source of contamination/ingestion.
The Panel finds itself faced with compelling factual evidence and, at best, conflicting scientific evidence that acts as a double-edge sword in determining the truth. Put simply, in its assessment, the scientific evidence fails to take this storyline below the requisite threshold. Therefore, the Panel reverts to the non-expert evidence and finds itself sufficiently satisfied that it is more likely than not that the presence of probenecid in the Athlete’s system resulted from kissing his girlfriend shortly after she had ingested a medication containing probenecid.
In consideration of the foregoing, and in contemplation of the evidence put before the Panel in both written and oral form, the Panel concludes that the Athlete has established the origin of the prohibited substance on a balance of probabilities. Furthermore, the Panel finds that even with the exercise of the utmost caution, the Athlete could never have envisioned that kissing his girlfriend would lead to an adverse analytical finding for trace amounts of a banned substance that he was not familiar with. The Panel finds, therefore, that the Athlete acted without fault or negligence
Therefore the Court of Arbitration for Sport decides on 25 Januay 2018 that:
1.) The appeal filed by the World Anti-Doping Agency against Mr. Gil Roberts on 24 August 2017 is dismissed.
2.) The decision rendered by the American Arbitration Association on 10 July 2017 is upheld.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.
