CAS A4/2016 Sarah Klein v. Australian Sports Anti-Doping Authority (ASADA) & Athletics Australia (AA)
- Athletics (long distance)
- Doping (failure to submit to sample collection)
- “Compelling justification” for failing to submit to sample collection
- Principle of proportionality
- Application of the principle of proportionality in case its absence would produce a harsh and unjust result
1. The word “justification” means that the person advancing the circumstances which are said to be “justifiable” must show good reason why he or she did such a thing. The presence of good reasons must be demonstrated to the satisfaction of the adjudicating body. Justification is the state of being justified. So that a justification is a demonstration that the circumstances advanced were just, right or valid. Of that condition the adjudicating body is to be the judge. The word “compelling” qualifies the word “justification”. Furthermore the word compelling must be given its ordinary natural meaning of forcing, driving or constraining. These are powerful qualifiers of the word “justifiable”. As a matter of language the two words in combination set the bar at a substantial height for the athlete to clear.
2. The principle of proportionality has often been referred to and applied in CAS awards and the substance and the possible application of the principle are not in doubt. Moreover the nature and character of the principle is clearly defined with the result that any reference to it is well and precisely understood by those working in the field. It is an accepted principle applied specifically in relation to the Athletics Australia Anti-Doping Policy 2015 (AA Policy) itself. It is in an important sense a part of the AA Policy. When giving consideration to whether the principle applies or not, the adjudicating body is obliged to give regard to numerous admonitions, to the effect that it is only in very rare cases that it would apply.
3. The mere absence of specific provisions in the AA Policy which would enable highly material circumstances, such as the fact that the athlete complied with the request to provide a sample, attempted bona fide to provide a full sample, showed willingness to complete his/her sample when found to be incomplete and returned negative results for all drugs except for EPO for which the sample was inadequate to test, to be taken into account is not sufficient of itself to engage the proportionality principle. However, where the absence of such an adjustment mechanism leads to the imposition of a period of ineligibility which is out of all proportion to the penalties imposed elsewhere in the AA Policy, and where it can be said to be contrary to the deliberate intention of the drafters to confer a discretion upon the adjudicating body, the result is a combination of such circumstances to produce a harsh and unjust result. It is in those circumstances that the doctrine of proportionality applies in rare cases. The sanction in a case which presents such highly material circumstances cannot be equated with a four year period of ineligibility which is the penalty applicable to a proven drug cheat who has deliberately injected a prohibited substance and must therefore be reduced.
In June 2016 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the Athlete Sarah Klein for refusing or failing without compelling justification to submit to sample collection in February 2016.
Here the Athlete was only able to produce a partial sample while she was in a hurry to leave for the airport. In spite of advice and warnings the Athlete chose not the complete the test. She signed the Doping Control Form and left the Doping Control Station.
After notification the Athlete filed a statement in her defence and she was heard for the Court of Arbitration for Sport (CAS) Oceania Registry.
The Athlete argued that the violation was not a strict liablility offence and bad for duplicity while bad in law and it deprived her of natural justice. Also there were serveral considerations against the allegation that there was no compelling justification for her actions.
Based on the evidence the Sole Arbitrator establish that the Athlete inteded to carry out the actions which constituted the anti-doping rule violation and did so knowing that she was obliged to provide a full 90 mL testing samle and had not done so.
The Sole Arbitrator is unconvinced by any of the matters which are said to be a compelling justification for the Athlete’s actions. They were a hotchpotch of wholly inadequate reasons each of which had an obvious simple solution which the Athlete simply decided to bother not to investigate or to invite assistance to help her investigate.
Much of the evidence itself is consistent with and strongly supports the Sole Arbitrator’s analysis of the Athlete’s decision to leave the Doping Control Station as a fatally flawed decision which ran counter to the careful advice repeatedly given to the Athlete by the three experienced ASADA staff.
Consequently the Sole Arbitrator concludes that the Athlete knew that her conduct could constitute an ADRV and that she knew that there was a significant risk that the conduct might constitute or result in an ADRV and manifestly disregarded that risk.
Finally the Sole Arbitrator deems that all of the unsatisfactory features of the Athlete’s behaviour may be adequately and properly dealt with by the imposition of a two-year penalty. Here the Sole Arbitrator finds that a 4 year penalty is disproportionate, harsh and unjust.
Therefore the Court of Arbitration for Sport decides on 25 May 2017 that:
1.) The application to the Court of Arbitration for Sport filed by Ms Sarah Klein on 5 July 2016 succeeds in part.
2.) Ms Klein has committed an Anti-Doping Rule Violation contrary to Article 2.3 of the Athletics Australia Anti-Doping Policy by refusing or failing to submit to Sample collection after notification on 13 February 2016.
3.) The period of ineligibility of four years imposed on Ms Klein is set aside.
4.) In lieu of the period of four years imposed upon Ms Klein a period of ineligibility of two years is imposed.
5.) The period of ineligibility is to commence on 13 February 2016.
6.) (…).
7.) (…).
8.) All other motions or prayers for relief are dismissed.
