CAS 2016/A/4716 Cole Henning v. South African Institute for Drug-Free Sport (SAIDS)
Related cases:
- SAIDS 2015_11 SAIDS vs Cole Henning
February 8, 2016 - SAIDS 2015_11 Cole Henning vs SAIDS - Appeal
July 8, 2016
- Mixed Martial Arts
- Doping (methylhexaneamine)
- Burden and standard of proof in respect of Specified Substances
- Identification of the origin of the prohibited substance as a prerequisite to negate intention
- Unavailability of the Special Assessment for an out-of-competition ADRV related to a specified substance
- Qualification of an intentional violation based on the reckless conduct of the athlete and on the circumstances
1. Where an anti-doping rule violation (ADRV) is in respect of Specified Substances, the burden rests with the anti-doping organisation (ADO) to establish that the violation was intentional. Although the WADA Code is silent on the precise standard of proof which the ADO must provide to establish that a violation was intentional, the practice is that the standard required by CAS panels would be the same “comfortable satisfaction” standard that ADO are held to establish in an ADRV, especially since “comfortable satisfaction” has been recognised in CAS awards as the general standard applicable in disciplinary matters, in order for the CAS panel to determine which sanctions or other results should follow.
2. The identification of the substance consumed by the athlete as the cause of the ADRV is a pre-requisite to negate the intentional element of the ADO applicable rules, without which identification of the intention to “cheat” may be assumed.
3. An athlete does not qualify for the benefits of the special assessment provided by the ADO applicable rules (article 10.2.3 of the SAIDS Rules corresponding to article 10.2.3 of the WADA Code), enabling the athlete to invoke the rebuttable presumption that the ADRV was not intentional if the substance is a Specified Substance and the athlete can establish that the prohibited substance was used out-of-competition, because the ingesting of the product the day before competition (at best for the athlete) should be considered as in-competition ingesting especially where pursuant to the athlete’s evidence, the use of the product was to benefit his sporting performance i.e. was used for the purpose of his sport and not for an unrelated purpose, and because neither the athlete nor his counsel have raised or argued for the exclusion of “intentional” from the provisions of Article 10.2.3, either expressly or impliedly.
4. Carelessly ingesting a variety of supplements and products, without investigating whether any of them contained any Prohibited Substances, particularly at a time when he was aware that certain substances are banned, highlights an awareness on the part of the athlete that there existed a risk that this conduct might constitute or result in an ADRV, which risk he manifestly disregarded. These circumstances and evidence justify the conclusion that the athlete knowingly, negligently and/or recklessly engaged in conduct both by acts and/or omissions which truly represent a substantial and inexcusable breach of his duties under the applicable rules, thereby constituting the intention (to cheat).
On 8 February 2016 the South African Independent Doping Hearing Panel (IDHP) decided to impose a 4 year period of ineligibility on the mixed martial arts professional fighter Cole Henning after his sample tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).
The Athlete appealed the IDHP decision and on 2 July 2016 the Anti-Doping Appeal Committee of South Africa (ADACSA) decided to uphold the IDHP decision of 8 February 2016 and to dismiss the Athlete’s appeal.
Hereafter in July 2016 the Athlete appealed the ADACSA decision with the Court of Arbitration for Sport (CAS). The Athlete admitted the violation and stated that the positive test was the result of his use of the supplement TNT-Mercury Napalm containing the prohibited substance. The Athlete denied the intentional use of the prohibited substance and argued that there are grounds for No (Significant) Fault or Negligence.
The South African Institute for Drugfree Sport (SAIDS) contended that the Athlete acted with little concern about the risk for the supplements he took. He showed scant regard for his responsibility to establish what was and what was not prohibited, for checking whether substances he took contained Prohibited Substances and that he was reckless as to consequences.
Considering the Athletes conduct in this case the Sole Arbitrator finds that there exist many significant departures from the expected standard of care, including important breaches of duty on the part of the Athlete, none of which might be subject to a credible, relevant (non-doping) explanation, which could lead to a relatively low level of fault. To the contrary, the Sole Arbitrator finds the Athlete’s level of fault to be high enough to conclude that Athlete had the intention to cheat.
Therefore the Court of Arbitration for Sport decides on 9 March 2017 that:
1.) The appeal filed on 22 July 2016 by Mr. Cole Henning against the decision issued on 2 July 2016 by the Anti-Doping Appeal Committee of South Africa is dismissed.
2.) (…).
3.) (…).
4.) All other prayers and motions for relief are dismissed.
