CAS 2016/A/4919 WADA v. World Squash Federation & Nasir Iqbal
CAS 2016/A/4919 World Anti-Doping Agency (WADA) v. World Squash Federation (WSF) & Nasir Iqbal
Related case:
Swiss Federal Court October 23, 2017 4A_424/2017 Nasir Iqbal vs WADA & World Squash Federation
May 28, 2018
Squash
Doping (19-norandrosterone)
System of reduction in the period of ineligibility
Proof of the source of the prohibited substance when establishing absence of intent
Conditions to establish absence of intent
Appeal against failure to grant approval of a reduction in the period of ineligibility for prompt admission of an ADRV
1. In order for an athlete to avoid the standard four-year period of ineligibility provided for in Article 10.2.1 WSF Anti-Doping Rules (WSFADR), s/he must establish on a balance of probability (Article 3.1 WSFADR) that his/her ADRV was not intentional (Article 10.2.1.1 WSFADR). If s/he is unsuccessful in so establishing the absence of intent, s/he can still have his/her four-year period of ineligibility eliminated or reduced if s/he can establish on a balance of probability how the prohibited substance entered his/her system and if s/he can further establish (a) that s/he bears no fault or negligence (elimination of the sanction, Articles 10.2, 10.4 WSFADR) or (b) that s/he bears no significant fault or negligence and that the detected prohibited substance “came from a Contaminated Product” (reduction of the sanction, Article 10.5.1.2 WSFADR. If s/he fails to succeed under (a) or (b) above s/he can still obtain a reduction in the period of ineligibility by showing that s/he promptly admitted the ADRV (Article 10.6.3 WSFADR).
2. While the Definitions in the WSFADR for no or no significant fault or negligence require athletes to establish how the prohibited substance entered their system if they want to benefit from an elimination or reduction of an otherwise applicable sanction, no such requirement is expressly stipulated in the WSFADR in respect of proof of the absence of intent. In very exceptional circumstances proof of the absence of intent is therefore conceivable even without evidence on how the prohibited substance entered an athlete’s system. Had the authors of the WADA Code (which has been copied in the WSFADR) wanted to establish for proof of absence of intent the same requirement of proof of the source as is required for proving the absence of no or no significant fault or negligence, they would have said so.
3. In order for an athlete to establish the absence of intent for purposes of Article 10.2.1.1 WSFADR, it is not sufficient for him/her to assert that s/he did not consume a prohibited substance and that s/he does not know how it came into his/her body. It is also not sufficient to offer mere speculation as to what the source could theoretically have been. Rather, the athlete must provide actual evidence of the circumstances in which the allegedly unintentional ingestion of the prohibited substance occurred. Simply prove to have used nutritional supplements does not provide any evidence that these supplements were the source of the adverse analytical finding, especially if similar supplements were tested and returned no positive results. The fact that (clean) supplements were listed on the doping control form and that similar products were tested as clean, cannot prove the absence of intent of the intentional intake of a prohibited substance. Furthermore, the alleged lack of usefulness of a prohibited substance in a particular sport does not provide proof that an athlete did not intentionally take such substance. Finally, stating that the athlete “may have consumed some contaminated meat” in a country without even stating, still less providing evidence that contamination with steroids in fact occurs in this country and when and where the athlete did in fact eat meat is simply not sufficient to counter the presumption of intentional use in Article 10.2.1.1 WSFADR.
4. A party affected by a decision of WADA or the anti-doping organisation with results management authority not to grant the approval required under Article 10.6.3 of the WADA Code (copied in Article 10.6.3 WSFADR) for a reduction in the period of ineligibility in case of prompt admission of an anti-doping rule violation, must be entitled to appeal by reason of the rule of law, notwithstanding the absence of an express provision to that effect. However, both WADA and the anti-doping organisation with results management authority (here the WSF) have wide discretion whether or not to grant such approval.
In February 2016 the World Squash Federation (WSF) has reported an anti-doping rule violations against the Pakistan squash player Nasir Iqbal after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone). On 2 October 2016 the WSF decided to impose a 1 year period of ineligibility on the Athlete as agreed between the parties.
Hereafter in December 2016 the World Anti-Doping Agency (WADA) appealed the WSF decision of 2 October 2016 with the Court of Arbitration for Sport (CAS).
WADA requested the Panel to set aside the WSF decison and to impose a 4 year period of ineligibility on the Athlete. WADA contended that the test results establish that the Athlete committed an anti-doping rule violation and that he failed to demonstrate that the violation was not intentional. Neither did he show how the prohibited substance entered his system. Analysis of the Athlete’s supplements by the accredited laboratory in Cologne revealed that they contained no prohibited substances. Also WADA refused to grant a reduction of the sanction on the basis of the Athlete prompt admission.
The Athlete argued that the violation was not intentional and was probably caused by the contaminated supplements he had used or through the consumption of contaminated meat.
The WSF asserted that the Athlete’s supplements in question were purchased at official retailers and that a doctor had checked the ingredients of this supplement before using.
The Panel finds that the 2 positive test results in this case are considered as one single first violation and it rejects the WSF arguments in favour of the Athlete. The Panel concludes that the Athlete failed to establish the violaton was not intentional nor did he produce concrete evidence for the alleged contamination of supplements.
Therefore the Court of Arbitration for Spor decides on 26 June 2017 that:
1.) The Appeal filed on 23 December 2016 by the World Anti-Doping Agency against the decision to impose a sanction on Mr Nasir Iqbal contained in the "Agreement'' between the World Squash Federation and Mr Nasir Iqbal of 2 October 2016 is upheld.
2.) The decision to impose a sanction on Mr Nasir Iqbal contained in the ''Agreement'' between the World Squash Federation and Mr Nasir Iqbal of 2 October 2016 is set aside.
3.) A period of ineligibility of four (4) years beginning on 29 February 2016 is imposed on Mr Nasir Iqbal.
4.) All results achieved by Mr Nasir Iqbal at the South Asian Games held in Gluwahati / India in February 2016 are disqualified.
5.) All other competitive results of Mr Nasir Iqbal obtained from 7 February 2016 are disqualified with all of the resulting consequences including forfeiture of any medals, points and prizes.
6.) The award is pronounced without CAS costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by the World Anti-Doping Agency, which is te1ained by the CAS.
7.) The World Squash Federation and Mr Nasir Iqbal shall bear their own costs and are ordered to pay each to the World Anti-Doping Agency an amount of CHF 1,500 (one thousand five hun dred Swiss Francs) as a contribution towards the legal fees and other expenses incurred by the World Anti-Doping Agency in connection with the present arbitration.
8.) All other motions or prayers for relief are dismissed.
