CAS 2017/A/5248 World Anti-Doping Agency (WADA) v. Africa Zone V RADO & Anti-Doping Agency of Kenya (ADAK) & Eliud Musumba Ayiro
Bodybuilding
Doping (trenbolone, epitrenbolone, tamoxifen)
Commission of an ADRV for presence of prohibited substances under the applicable ADR
Duty to establish route of ingestion in order to establish lack of intention
1. Pursuant to Article 2.1.2 of the regional anti-doping organization Anti-Doping Rules (ADR), the presence of trenbolone and its metabolite epitrenbolone as well as tamoxifen metabolite 3-hydroxy-4-methoxy-tamoxifen i.e. prohibited substances, in the athlete’s A sample shall be deemed sufficient proof of an anti-doping rule violation (ADRV) in the circumstances of the case: the athlete waived his right to B sample analysis and the B sample was not analysed.
2. An athlete must in principle establish how the prohibited substance(s) entered his or her system in order to discharge the burden of establishing the lack of intention. To establish the origin of the prohibited substance, it is not sufficient for an athlete to merely protest his or her innocence and suggest that the substance must have entered his or her body inadvertently from a supplement, medicine, or other product. Rather, an athlete must adduce concrete evidence to demonstrate that a particular supplement, medication, or other product that the athlete has taken has contained the substance in question. For example, details about the date of intake, the location and route of intake, or any other details about the ingestion are necessary. An ADRV may only be deemed unintentional even if an athlete has failed to prove the source of a prohibited substance in extremely rare cases. An athlete should then establish lack of intention with other robust evidence, such as the possibility that the prohibited substance came from a specific product, the athlete’s credible testimony, evidence by the athlete’s doctors that the athlete had no intent to use a prohibited substance, or the implausibility of a scenario that the athlete intentionally used prohibited substances. If none of such elements is present, thus, it follows that the matter is not one of these extremely rare cases.
On 27 April 2017 the Sports Disputes Tribunal of Kenya decided to impose a 2 year period of ineligibility on the Kenyan bodybuilder Eliud Musumba Ayiro after his sample tested positive for the prohibited substances Trenbolone and Tamoxifen.
Hereafter in July 2017 the World Anti-Doping Agency (WADA) appealed the Kenyan decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the decision of 27 April 2017 and to impose a 4 year period of ineligibility on the Athlete.
The Athlete failed to file any written submissions in this procedure.
WADA argued that the Athlete failed to establish that the violation was not intentional, nor did he establish how the prohibited substances entered his system. WADA pointed to various inconsistencies in the Athlete’s explanations and asserted that it is not sufficient for an athlete to merely make protestations of innocence and suggest that some supplement, medicine or other product was the source of the positive test.
The Africa Zone V RADO and the Anti-Doping Agency of Kenya (ADAK) acknowledged that the Sports Disputes Tribunal of Kenya made an erroneous finding on the applicable sanction. It also erred in finding that the explanation given by the Athlete was to their comfortable satisfaction notwithstanding the inconsistencies in the documentation and evidence.
The Sole Arbitrator holds that the Athlete previously had admitted the use of the prohibited substances and that the positive test results establish that he committed an anti-doping rule violation. It finds the Athlete’s statements unconvincing and insufficient to discharge his burden of establishing the source of the prohibited substances, nor in establishing that the violation was unintentional.
Therefore the Court of Arbitration for Sport decides on 14 December 2017 that:
1.) The appeal filed by the World Anti-Doping Agency against Africa Zone V RADO, Anti-Doping Agency of Kenya, and Mr Eliud Musumba Ayiro on 20 July 2017 is upheld.
2.) The decision rendered by the Sports Disputes Tribunal of Kenya on 27 April 2017 is set aside.
3.) Mr Eliud Musumba Ayiro is sanctioned with a four-year (4) period of ineligibility starting from 3 October 2016.
4.) All competitive results of Mr Eliud Musumba Ayiro from and including 30 July 2016 to the date of this award are disqualified, with all resulting consequences (including forfeiture of medals, points, and prizes).
5.) The costs of the arbitration, to be determined and served to the Parties by the CAS Court Office, shall be borne in their entirety by Africa Zone V RADO.
6.) Africa Zone V RADO is ordered to pay CHF 3, 000.00 (three thousand Swiss Francs) to the World Anti-Doping Agency as a contribution towards its legal fees and expenses.
Africa Zone V RADO, Anti-Doping Agency of Kenya, and Mr Eliud Musumba Ayiro shall bear their own legal fees and expenses.
7.) All other motions or prayers for relief are dismissed.
