CAS 2019/A/6157 World Anti-Doping Agency v. Anti-Doping Agency of Kenya & Rose Jepchoge Maru
On 6 November 2018 the Sports Disputes Tribunal of Kenya decided to impose a 2 year period of ineligibility on the Kenyan long-distance Athlete Rose Jepchoge Maru after she tested positive for the prohibited substance Erythropoietin (EPO). Here the Athlete had admitted the violation and provided substantial assistance. She explained that she was given 3 injections, 2 small syringes and one big syringe from a chemisch of an unknown product; that the injection procedure was organized and recommended by her friend; and that the intake must have occurred on the occasion of these injections 11 days before she was tested.
Hereafter in February 2019 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 appealed decision and to impose a 4 year period of ineligibility on the Athlete.
WADA contended that the Athlete had accepted the test result and admitted the violation. Further she failed to establish how the prohibited substance entered her system nor that the violation was not intentional. The Athlete had admitted that she was given injections without knowing the content of the syringes but there is no evidence supporting the Athlete’s explanation while her explanations relied solely on her word and assumptions.
The Athlete argued that she gave a prompt admission and that the violation was not intentional. She asserted that she had established the source of the prohibited substance and how it entered her system. Also she had provided substantial assistance as ground for a reducted sanction.
The Sole Arbitrator considers in this case these main issues:
A.) The Occurrence of an ADRV and the Standard Sanction
B.) Burden and Standard of Proof
C.) Was the Athlete's ADRV intentional?
D.) Reduction Based on Substantial Assistance?
E.) Reduction based on the Athlete's Prompt Admission?
F.) Sanctions
The Sole Arbitrator holds that it is undisputed that the Athlete’s sample tested positive for EPO and that the Athlete had admitted the violation. The Athlete has not met her burden of proof, and the anti-doping rule violation must be deemed to be intentional since her explanations are unsubstantiated as they have virtually no evidentiary basis supporting them.
The Sole Arbitrator regards that the Athlete's alleged substantial assistance has not been sufficiently substantiated in the present case. Also WADA has not approved a reduction of the Athlete's 4 year period of ineligibility and consequently it follows that the 4 year period of ineligibility imposed on the Athlete cannot be reduced based on substantial assistance nor on her prompt admission.
Therefore the Court of Arbitration for Sport decides on 25 September 2019 that:
1.) The appeal filed on 20 February 2019 by the World Anti-Doping Agency against the 6 November 2018 Decision of the Sports Disputes Tribunal of Kenya is upheld.
2.) The Decision rendered by the Sports Disputes Tribunal of Kenya on 6 November 2018 is set aside.
3.) A period of four (4) years ineligibility is imposed on Ms. Rose Jepchoge Maru, starting on 20 June 2018, start date of her Provisional Suspension.
4.) Ms. Rose Jepchoge Maru is disqualified from the METRO Marathon in Dusseldorf (Germany) held on 29 April 2018, with all the resulting consequences including forfeiture of any medals, points, and prizes.
5.) All competitive results of Ms. Rose Jepchoge Marn from 29 April 2018 until 20 June 2018 are disqualified, with all the resulting consequences (including forfeiture of any titles, awards, medals, profits, prizes, and appearance money).
6.) The costs of arbitration, to be determined and notified to the Parties by the CAS Court Office, shall be borne by the Anti-Doping Agency of Kenya.
7.) The Anti-Doping Agency of Kenya is ordered to pay a total amount of CHF 4,000 (four thousand Swiss Francs) to the World Anti-Doping Agency as contribution to its legal costs and other expenses that has incurred in this proceeding.
8.) All further and other requests for relief are dismissed.
