CAS 2017_A_5369 WADA vs SAIDS & Gordon Gilbert

2017/A/5369 World Anti-Doping Agency (WADA) v. South African Institute for Drug-Free Sport (SAIDS) & Gordon Gilbert

Related case:
SAIDS 2016_59 SAIDS vs Gordon Gilbert
August 30, 2017

In March 2017 the cyclist Gordon Gilbert tested positive for the prohibited substance Testosterone caused by contaminated supplements he used.

On 30 August 2017 the SAIDS Doping Hearing Panel decided to impose a 6 month period of ineligibility on the Athlete. Here the Panel accepted the Athlete’s explanation on a balance of probability that the prohibited substance entered his system as a result of the ingestion of a contaminated product Biogen Testoforte. Further the Panel acknowledged that the Athlete did take a number of significant steps to minimize any risk associated with the use of supplements. The Panel ruled that the Athlete also did fall short, if not excessively, of the high standards imposed to exercise utmost caution to avoid even inadvertent ingestion of a prohibited substance.

Hereafter in October 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 30 August 2017 of the SAIDS Doping Hearing Panel and to impose a 4 year period of ineligibility on the Athlete.

WADA contended that there is no doubt that the Athlete tested positive for Testosterone and accordingly committed an anti-doping rule violation. The Athlete is required, on the balance of probability, to prove the origin of the prohibited substance while he failed to establish that the contaminated Biogen Testoforte was the source of the prohibited substance in his system. Therefore he is to be sanctioned with the period of ineligibility of four years pursuant to Article 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 30 August 2017 which he deemed to be fair, equitable and justified under the circumstances. He admitted the presence of the prohibited substance in his system and asserted with evidence that the violation was not intentional and 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 was 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 2018 that:

1.) The appeal filed by the World Anti-Doping Agency on 23 October 2017 against the decision rendered on 30 August 2017 by the Independent Doping Hearing Panel established under Article 8 of the SAIDS ADR is upheld.
2.) The decision rendered on 30 August 2017 by the Independent Doping Hearing Panel established under Article 8 of the SAIDS ADR is set aside.
3.) Mr Gordon Gilbert is declared ineligible for a period of four years from 2 March 2017.
4.) All competitive results obtained by Mr Gordon Gilbert between 13 May 2016, including the results of 13 May 2016, and 2 March 2017 are disqualified, with all of the resulting consequences, including forfeiture of any medals, points and prizes.
5.) Mr Gordon Gilbert 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 Gordon Gilbert 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.

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CAS Appeal Awards
21 June 2018
Fumagalli, Luigi
Tribunal Arbitral du Sport (TAS) - Court of Arbitration for Sport (CAS)
South Africa
Adverse Analytical Finding / presence
Legal Terms
Burdens and standards of proof
Circumstantial evidence
Sole Arbitrator
Cycling (UCI) - International Cycling Union
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South African Institute for Drugfree Sport (SAIDS)
World Anti-Doping Agency (WADA)
Bloemfontein, South Africa: South African Doping Control Laboratory
Doha, Qatar: Antidoping Lab Qatar, Doping Analysis Lab
Roma, Italia: Laboratorio Antidoping FMSI
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Isotope-ratio mass spectrometry (IRMS)
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S1. Anabolic Agents
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