CAS 2007/A/1395 World Anti-Doping Agency (WADA) v. National Shooting Association of Malaysia (NSAM) & Joseline Cheah Lee Yean & Bibiana Ng Pei Chin & Siti Nur Masitah Binti Mohd Badrin
- Shooting
- Doping (propanolol)
- Tacit arbitration agreement between the parties
- Presumption of ingestion of the prohibited substance to enhance the performance
- Reduction of the period of Ineligibility not justified
1. An agreement to arbitrate may be concluded explicitly or tacitly and may result from the content of the pleadings submitted by the parties. The submission by a party of numerous pieces of correspondence to the CAS which never raises or suggests any objection to the prospective jurisdiction of the CAS and contain arguments concerning the rights of the parties in a dispute may constitute responsive pleadings that do not object to the CAS’s jurisdiction and therefore constitute an agreement to arbitrate before the CAS.
2. In case of a specified substance, the applicable two year period of ineligibility may be replaced by a lower period in the event the athletes can establish that the use of such a specified substance was not intended to enhance sport performance. The performance enhancing effects of propranolol which is a beta blocker in shooting cannot be ignored. Therefore, the burden is upon the athletes to show how this specified substance entered in their systems, and to demonstrate that this manner of ingestion was not intended to enhance their performance. Evidence that in the given circumstances an unintentional violation of the anti-doping rules by the shooters was more likely than the intentional misuse of the substance is required particularly in view of the sport enhancing effects of the substance.
3. Athletes have a duty to exercise “the greatest vigilance” or “utmost caution” with regard what they ingest. It is constant in CAS jurisprudence that athletes are responsible for making enquiries about food and medications they are given, regardless of the source. The athlete’s willingness to ingest unwrapped chocolates without further enquiry is at least significantly negligent. The reduction or elimination of the period of ineligibility does not apply where the athletes do not rebut the presumption that they have ingested the prohibited substance to enhance their performance.
In April 2007 the National Shooting Association of Malaysia (NSAM) reported anti-doping rule violations against the Athletes Joseline Cheah Lee Yean, Bibiana Ng Pei Chin and Siti Nur Masitah Binti Mohd Badrin after their A and B samples tested positive for the prohibited substance Propranolol.
Following the provisional suspension of the Athletes in April 2007 there were deliberations between the NSAM, the International Shooting Sport Federation (ISSF) and World Anti-Doping Agency (WADA) about the imposition of the appropriate sanctions.
Prior in September 2007 the NSAM had imposed a sanction of 6 months on the Athletes. However in October 2007 the NSAM revised their decision and imposed a 1 year period of ineligibility on the Athletes. Hereafter in October 2007 WADA appealed the NSAM decisions of 21 September 2007 and 6 October 2007 with the Court of Arbitration for Sport (CAS).
WADA requested the Panel to set aside the Appealed Decisions and to impose a 2 year period of ineligibility on the Athletes. WADA contended that the NSAM did not bring sufficient evidence to establish that the Athletes did not ingest Propranolol for performance enhancing purposes.
Following assessment of the evidence in this case the Panel determines that:
- The Athlete's have committed a a violation of the ISSF Anti-Doping rules.
- The performance enhancing effects of Propranolol in shooting cannot be ignored.
- The burden is upon the Athletes to show how this specified substance entered in their systems, and to demonstrate that this manner of ingestion was not intended to enhance their performance.
- The Athletes and the NSAM did not discharge their burden of proof that the anti-doping rule violation was committed by the Athletes without intention to enhance their performance.
- The Athletes did not establish any exceptional circumstances whereby the suspension period may have been reduced or eliminated.
Theefore the Court of Arbitration for Sport decides on 31 March 2008:
1.) The Appeals filed by WADA on 5 October 2007 and 11 October 2007 are upheld insofar as they are directed against the NSAM. In relation to Ms Josline Cheah Lee Yean, Ms Bibiana Ng Pei Chin and Ms Siti Nur Masitah Binti Mohd Badrin the appeal by WADA is dismissed.
2.) The decision issued on 21 September 2007 by the National Shooting Association of Malaysia is set aside.
3.) The decision issued on 6 October 2007 by the National Shooting Association of Malaysia is amended as follows:
The Shooters Joseline Cheah Lee Yean, Bibiana Ng Pei Chin and Siti Nur Masitah Binti Mohd Badrin are sanctioned with a two-year suspension. The period of ineligibility shall be calculated from 18 April 2007. Any results in a competition obtained by the Shooters from 8 March 2007 until 18 April 2007 are disqualified.
4.) (…).
5.) (…).
6.) All other prayers for relief are dismissed.
