CAS 2017/A/5295 World Anti-Doping Agency v. Anti-Doping Agency of Kenya & Athletics Kenya & Sally Chelagat Kipyego
In January 2016 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Kenyan Athlete Sally Chelagat Kipyego after her A and B samples - provided in China in December 2015 - tested positive for the prohibited substance 19-Norandrosterone (Nandrolone).
Between February 2016 and August 2017 both the IAAF and WADA had deliberations with the China Anti-Doping Agency (CHINADA) and the Chinese Athletic Association (CAA) about the results management in this case. The IAAF and WADA were informed that only a provisional suspension was ordered by CHINADA and CAA which extended only to China because the Athlete is a foreign athlete and under the Rules no further sanctions can be imposed.
In November 2016 The Athlete was charged by the Anti-Doping Agency of Kenya (ADAK). However Sports Disputes Tribunal of Kenya ruled on 29 March 2017 that results management and hearing is delegated to CHINADA.
Hereafter in August 2017 WADA appealed the Kenyan decision of 29 March 2017 with the Court of Arbitration for Sport (CAS).
WADA requested the Panel to annul the decision and to impose a 4 year period of ineligibility on the Athlete.
WADA contended that the Athlete failed to establish how the prohibited substance had entered her system and asserted that the Kenyan decision was wrong as no valid decision was ever rendered by CHINADA or CAA due to lack of jurisdiction.
ADAK acknowledged that the Sports Disputes Tribunal rendered an erroneous Decision and that the Athlete failed to explain how the substance entered her system. Both Athletics Kenya and the Athlete failed to respond in this case.
The Panel establishes that the Athlete is not an International-Level Athlete and that the National Federation was responsible for the result management and for imposing a provisional suspension on the Athlete. Also the Panel concludes that the IAAF didn’t delegate the responsiblility of results management and hearing to CHINADA / CAA nor that these two bodies rendered a decision.
The Panel determines that the case needs not to be sent back to the first instance for a new hearing and a decision, yet instead it can render a decision on the merits.
In the present case the Athlete asserted that the Prohibited Substance found in her sample was related to the consumption of a painkiller called Celebrex, which she mentioned on the Doping Control Form. However the Panel determines that the Athlete failed to produce corroborating evidence in support of her explanations.
The Panel holds that the Athlete failed the demonstrate how the substance had entered her system, nor the origin of the prohibited substance. Accordingly, the Panel finds that the Athlete has not met her burden of proof, and the ADRV must be deemed to be intentional.
Therefore the Court of Arbitration for Sport (CAS) decides on 1 March 2018:
1.) The appeal filed on 16 August 2017 by the World Anti-Doping Agency against the 29 March 2017 Decision of the Sports Dispute Tribunal of Kenya is partially upheld.
2.) The Decision rendered by the Sports Disputes Tribunal of Kenya on 29 March 2017 is set aside.
3.) A period of ineligibility of four (4) years is imposed on Ms. Sally Chegalat Kipyego, starting from 29 March 2017.
4.) Ms. Sally Chegalat Kipyego is disqualified from the Taihu International Marathon in Suzhou (China) held on 27 December 2015, with all the resulting consequences including forfeiture of any medals, points, and prizes.
5.) All competitive results of Ms Sally Chelagat Kipyego from 27 December 2015 are disqualified, with all resulting consequences (including forfeiture of any titles, awards, medals, profits, prizes, and appearance money).
6.) The costs of arbitration, to be determined and notified to the parties by the CAS Court Office, shall be borne in 40% by the Anti-Doping Agency of Kenya, 40% by Athletics Kenya and 20% by Ms. Sally Chelagat Kipyego.
7.) The Anti-Doping Agency of Kenya, Athletics Kenya and Ms. Sally Chelagat Kipyego are jointly and seperately ordered to pay a total amount of CHF 3,000 (three thousand Swiss francs) 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.
