CAS 2017/A/5260 World Anti-Doping Agency (WADA) v. South African Institute for Drug-Free Sport (SAIDS) & Demarte Pena
Related case:
SAIDS 2017_05 SAIDS vs Demarte Pena
May 25, 2017
Mixed martial arts
Doping (testosterone)
Naming as respondent of the national anti-doping organisation
Article R56 of the CAS Code and right to be heard
Duty to establish route of ingestion in order to establish lack of intent
Proof of lack of intent
Disqualification of results unless fairness requires otherwise
1. If the appealed decision was rendered, even though by an independent tribunal, in a case for which the national anti-doping organisation had the result management responsibility under Article 7.1 of the applicable anti-doping regulations (ADR) and was in charge of the hearing pursuant to Article 8 of the ADR, it can be considered as a ruling for which the national anti-doping organisation had the responsibility. As a consequence, the national anti-doping organisation is properly named as a respondent by the appellant, which seeks the annulment of the decision. It therefore cannot be removed from the proceedings.
2. Article R56 of the CAS Code introduces a fundamental rule, intended to serve the purpose of concentration and rapidity in CAS proceedings: the parties are not be authorized inter alia to specify further evidence after the submission of the appeal brief and of the answer. The rule corresponds to the obligation imposed on the parties to CAS arbitration to specify all the evidence on which they intend to rely to prove their respective case in the appeal brief (for the appellant) and in the answer (for the respondent). Article R56 allows however a deviation from the rule: further evidence, after the submission of the appeal brief and of the answer, can be specified if the parties agree or the President of the Panel gives an authorization “on the basis of exceptional circumstances”. The possibility to give an authorization, absent the parties’ agreement, represents an exception to the general prohibition, and as such is of strict interpretation. In addition, it leaves no room for an ordinary disregard based on a simple claim that otherwise the parties’ right to be heard would be infringed. The application of Article R56 has been endorsed by the Swiss Federal Tribunal: a party’s right to be heard is not violated if a CAS panel denies the filing of new evidence not submitted in timely manner.
3. The establishment of the source of the prohibited substance in an athlete’s sample is not mandated in order to prove an absence of intent. It could be de facto difficult for an athlete to establish lack of intent to commit an anti-doping rule violation demonstrated by presence of a prohibited substance in his/her sample if s/he cannot even establish the source of such substance: proof of source would be an important, even critical, first step in any exculpation of intent, because intent, or its lack, are more easily demonstrated and/or verified with respect to an identified “route of ingestion”. However, a CAS panel could be persuaded by an athlete’s assertion of lack of intent, where it is sufficiently supported by all the circumstances and context of his/her case, even if such a situation may inevitably be extremely rare: where an athlete cannot prove source, it leaves the narrowest of corridors through which such athlete must pass to discharge the burden which lies upon him/her.
4. An athlete cannot simply plead his/her lack of intent without giving any convincing explanations to prove, by a balance of probability, that s/he did not engage in a conduct which s/he knew constituted an anti-doping rule violation or knew that there was a significant risk that said conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk. The athlete, even though not bound to prove the source of the prohibited substance, has to show, on the basis of the objective circumstances of the anti-doping rule violation and his/her behaviour, that specific circumstances exist disproving his/her intent to dope. In order to disprove intent, an athlete may not merely speculate as to the possible existence of a number of conceivable explanations for the adverse analytical finding (AAF) and then further speculate as to which appears the most likely of those possibilities to conclude that such possibility excludes intent. A protestation of innocence, the lack of sporting incentive to dope, or mere speculation by an athlete as to what may have happened does not satisfy the required standard of proof (balance of probability) and the mere allegation of a possible occurrence of a fact cannot amount to a demonstration that this fact did actually occur: unverified hypotheses are not sufficient. Instead, an athlete has a stringent requirement to offer persuasive evidence that the explanation s/he offers for an AAF is more likely than not to be correct, by providing specific, objective and persuasive evidence of his/her submissions.
5. No reason of fairness is engaged with respect to an athlete found responsible for an intentional anti-doping rule violation. In such case therefore, all the athlete’s results from the date the positive sample was collected through the commencement of the ineligibility period are to be disqualified, with all of the resulting consequences, including forfeiture of any medals, points and prizes.
In February 2017 the Mixed Martial Arts Athlete Demarte Pena tested positive for the prohibited substance Testosterone related to the contaminated supplements he used.
On 25 May 2017 the SAIDS Doping Hearing Panel decided only to reprimand the Athlete and to disqualify his results. Here the Panel concluded that the Athlete established No Significant Fault or Negligence and how the prohibited substance entered his system without intention to enhance his sport performance. In the opinion of the Panel the Athlete acted with the utmost care and that there was little more that he could have done to ensure that the supplements he used were safe.
Hereafter in July 2017 the World Anti-Doping Agency (WADA) appealed the South-African decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the decision of 25 May 2017 of the SAIDS Doping Hearing Panel and to impose a 4 year period of ineligibility on the Athlete.
WADA disputed the Decision of 25 May 2017, which accepted the Athlete' s explanation that the positive test was the result of the consumption of two supplements (Test Freak and Testoforte), as a part of a nutritional plan prescribed by an expert, contaminated with the prohibited substance in question.
WADA argued that the Athlete is responsible for an intentional anti-doping rule violation and that he failed to establish the origin of the prohibited substance on the balance of probabilities. Therefore, he is to be sanctioned with the period of ineligibility of four years on the basis that the violation is deemed to be intentional pursuant to Article 10.2.1.1 of the ADR.
SAIDS refused to participate in the proceedings and it would only attend the hearing as an observer. However the Sole Arbitrator holds that SAIDS under the Rules had the responsibility for the result management in this case, was in charge of the hearing and the Decision as a ruling. Therefore SAIDS was properly named as a respondent in this arbitration by WADA.
The Athlete requested to uphold the decision of 25 May 2017 and admitted the presence of the prohibited substance in his system. The Athlete asserted with evidence that the violation was not intentional, that he bears No Significant Fault or Negligence and that the violation was caused by the use of contaminated supplements.
As undisputed by the parties the Sole Arbitrator finds that the presence of exogenous Testosterone was established in the Athlete’s sample and accordingly the Athlete committed the anti-doping rule violation. Considering the arguments and evidence in this case the Sole Arbitrator concludes that the Athlete has not established, by balance of probability, that the ingestion of the contaminated products Testoforte and Test Freak was at the origin of the positive test result. Neither has the Athlete demonstrated that the anti-doping rule violation was not intentional.
Therefore the Court of Arbitration for Sport decides on 21 June 2017 that:
1.) The appeal filed by the World Anti-Doping Agency on 28 July 2017 against the decision rendered on 25 May 2017 by the Independent Doping Hearing Panel established under Article 8 of the SAIDS ADR is upheld.
2.) The decision rendered on 25 May 2017 by the Independent Doping Hearing Panel established under Article 8 of the SAIDS ADR is set aside.
3.) Mr Demarte Pena is declared ineligible for a period of four years from the date of the present award, with credit given for any period of provisional suspension already served.
4.) All competitive results obtained by Mr Dematie Pena between 11 November 2016, including the results of 11 November 2016, and the date of this award are disqualified, with all of the resulting consequences, including forfeiture of any medals, points and prizes.
5.) Mr Demarte Pena and SAIDS shall bear as to 50% each the costs of the arbitration proceedings, to be determined and served to the parties by the CAS Court Office.
6.) Mr Demarte Pena and SAIDS shall pay to the World Anti-Doping Agency an amount of CHF 3,000 (three thousand Swiss Francs) each towards the legal costs and expenses incuned in connection with the present proceedings.
7.) All other motions or prayers for relief are dismissed.
