CAS 2016/A/4563 World Anti-Doping Agency (WADA) v. Egyptian Anti-Doping Organisation (EGY-NADO) & Radwa Arafa Abd Elsalam
Karate
Doping (ractopamine)
Burden of proof
Balance of probability
Duty of the athlete to establish how the prohibited substance entered his/her body
Intentional use
Intentional violation
1. It is the athlete that bears the burden of proof of establishing that the violation was unintentional and thus to establish how the relevant forbidden substance entered into his/her body.
2. The burden of proof is based on the “balance of probability” standard, which entails that the athlete has the burden of convincing that the occurrence of the circumstances on which the athlete relies is more probable than their non-occurrence.
3. To establish the origin of a prohibited substance, it is not sufficient for an athlete merely to protest his or her 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 taken 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. The mere presentation of invoices or bills as evidence for the purchase of contaminated foods cannot fulfil the athlete’s burden of proof that this food was indeed the source of the contamination. In cases of meat contamination, it must – as a minimum – be a requirement that the athlete sufficiently demonstrates where the meat originated from. For example, where did the butcher buy the meat, how was the meat imported into the country, has any of the other imports of meat been examined or tested for the presence of the prohibited substance, etc.
4. If the athlete cannot prove to the comfortable satisfaction of a panel how a prohibited substance got into his/her body, he/she cannot exclude the possibility of intentional or significantly negligent use of a forbidden substance.
5. Under Art. 10.2.1 of the Egyptian Anti-doping Organisation Rules, an athlete who did not discharge his/her burden of proof of the unintentional nature of his/her use of a prohibited product shall be deemed to have intentionally violated the relevant anti-doping regulations.
In August 2015 the Egyptian Anti-Doping Organization (EGY-NADO) has reported an anti-doping rule violation against the karateka Radwa Arafa Abd Elsalam after her sample tested positive for the prohibited substance Ractopamine. On 3 November 2015 the EGY-NADO Disciplinary Committee decided to impose a 2 year period of ineligibility on the Athlete. However the EGY-NADO Appeal Panel decided to reduce the sanction and to impose a 6 month period of ineligibility on the Athlete.
Hereafter in April 2016 the World Anti-Doping Agency (WADA) appealed decision of the EGY-NADO Appeal Panel with the Court of Arbitration for Sport (CAS).
WADA requested the Panel to set aside the decision of the EGY-NADO Appeal Panel and to impose a 4 year period of ineligibility on the Athlete due to she failed to demonstrate how the prohibited substance entered her system. WADA did not accept the Athlete’s explanation that the substance must have entered her system through eating meat contaminated with Ractopamine. Further WADA contested that the Athlete was a minor when tested on 7 August 2015. In fact her age was 18 years, 1 month and 7 days.
Because the presence of the substance Ractopamine was found in the Athlete’s sampe the Sole Arbitrator finds that the Athlete committed an anti-doping rule violation. Considering the evidence in this case and based on a balance of probability the Sole arbitrator concludes that the Athlete has not fulfilled her burden of proof to establish the origin of the prohibited substance Ractopamine in her system. Also the Sole Arbitrator finds that there are no mitigating circumstances for a reduced sanction.
Therefore the Court of Arbitration for Sport decides on 16 January 2017 that:
1.) The appeal filed by the World Anti-Doping Agency on 20 April 2016 is upheld.
2.) The undated decision rendered by the Appeal Panel of the Egyptian Anti-Doping Organisation in the matter of Radwa Arafa Abd Elsalam is set aside.
3.) Radwa Arafa Abd Elsalam is sanctioned with a four-year period of ineligibility starting from 21 September 2015.
4.) All competitive results obtained by Radwa Arafa Abd Elsalam from and including 7 August 2015 are disqualified with all resulting consequences (including forfeiture of medals, points and prizes).
5.) (…).
6.) (…).
7.) All other motions or prayers for relief are dismissed.
