CAS 2018/A/5989 IAAF vs Qatar Athletics Federation & Musaeb Abdulrahman Balla
In May 2016 the International Association of Athletics Federations (IAAF) contacted the Spanish Police to request surveillance and monitoring of athletes and athlete support personnel belonging to the Qatar Athletics Federation (QAF) training camp residing in the Hotel Arrahona in Barcelona. The Spanish Police conducted a series of monitoring operations at the Hotel.
Observing police agents reported that between 31 May 2016 and 9 June 2016 the trainer Jama Mohamoud Aden and the Athlete Musaeb Abdulrahman Balla repeatedly threw used medical materials into refuse containers and waste bins in the area near their Hotel. The Police retrieved these disposed medical materials and identified these as used syringes, used vials, boxes and leaflets for medication and packaging material from anti-doping blood or urine sample kits.
On 17 June 2016 the Police raided the hotel and searched the rooms of the trainer Jama Mohamoud Aden and the Athlete Musaeb Abdulrahman Balla. In the room of the trainer medical products and pre-filled syringes containing different types of Erythropoietin (EPO) were found.
In the room of the Athlete the Police found medical products and a Nike-bag containing EPO vials including in this bag ID photos of the Athlete for visa purposes. Al samples provided by the athletes in the Hotel tested negative for prohibited substances.
After it had been informed by AEPSAD of the results of the search of the Spanish Police the IAAF reported in July 2016 an anti-doping rule violation against the Athlete Musaeb Abdulrahman Balla for Use and Possession of prohibited substances. Following notication the Athlete denied the charges and claimed that the items found in his hotel room belonged to his room mate.
Ultimately a hearing was held in July 2018 and on 31 August 2018 the QAF Disciplinary Tribunal accepted the Athlete's explanations and decided to acquit him.
Hereafter in October 2018 the IAAF appealed the QAF decision with the Court of Arbitration for Sport (CAS). The IAAF requested to set aside the Appealed Decision and to impose a 4 year period of ineligibility on the Athlete.
The IAAF contended that:
- The Athlete attempted to deceive the Police officials conducting the raid by stating that his hotel room no. was 211 instead of 120.
- The EPO was found in the Athlete's bag in his hotel room no. 120 in the Hotel.
- The Athlete's explanations were contradictory and designed to hide the true facts.
- In order to qualify the Athlete's behaviour as an ADRV it is not necessary to have actual possession of a Prohibited Substance or Method. Instead, it suffices that the Athlete has control of the Prohibited Substance or Method or of the premises, in which the same are located.
The arguments of QAF and the Athlete against the appeal were:
- The IAAF appeal is inadmissible because it was filed too late under the IAAF Rules.
- The investigation of the Spanish Police was seriously flawed and accordingly the IAAF allegations against the Athlete were flawed.
- There is no evidence that the Nike-bag in the Athlete’s hotel room belonged to the Athlete.
- A variety of people had access to the Athlete’s hotel room.
- There is no direct or constructive evidence of the Athlete’s Possession or Use of the Prohibited Substances.
- The Spanish Criminal proceedings against the Athlete provided insufficient evidence that the Athlete was involved in any wrongdoings.
The Panel established that the IAAF appeal was timely filed and admissible in accordance with the 2016-2017 IAAF ADR. The Panel ruled that the principle of lex mitior and contra proferentem are not applicable in this appeal and further it settled some other procedural issues raised by the Athlete.
Considering the Athlete’s conduct in this case the Panel finds that there is substantial amount of detailed evidence which draws a rather clear picture, namely of an athlete who persistently tried to keep the policemen away from searching his room no. 120. The only plausible reason for this is that the Athlete knew about the presence of the Prohibited Substances in his hotel room no. 120 and wanted to hide the Prohibited Substances from the Police.
In the case at hand there is no direct evidence that the Athlete had constructive possession, but only circumstantial evidence. However, the Panel finds that - comparable to a puzzle - there are abundant tiny pieces of reliable and corroborated evidence and information that add up to a clear picture of an Athlete that tried persistently to divert from the search of his room.
Because he was hosting and controlling a system of storage and waste disposal for medical products (including Prohibited Substances) in his room and, thus, had constructive possession of the Nike-bag and the Prohibited Substances contained therein. What added to this picture was that most of the Athlete's submission were contradictory, evasive or incoherent.
The Panel is, therefore comfortably satisfied that the Athlete had (constructive) possession of the Prohibited Substances within the meaning of Rule 32.2(f) 2016-2017 IAAF ADR.
Therefore the Court of Arbitration for Sport decides on 12 December 2019:
1.) The appeal filed on 31 October 2018 by the International Association of Athletics Federations against the decision issued by the Disciplinary Tribunal of the Qatar Athletics Federation on 31 August 2018 is admissible.
2.) The decision issued on 31 August 2018 by the Disciplinary Tribunal of the Qatar Athletics Federation is set aside.
3. Mr Musaeb Abdulrahman Balla is found to have committed an anti-doping rule violation.
4.) Mr Musaeb Abdulrahman Balla is sanctioned with a period of ineligibility of four (4) years starting on the date on which the CAS award enters into force. Any period of provisional suspension effectively served by Musaeb Abdulrahman Balla before the entry into force of the CAS award shall be credited against the total period of ineligibility to be served.
5.) The costs of the arbitration, to be determined and served by the CAS Court Office, shall be borne by Mr Musaeb Abdulrahman Balla and the Qatar Athletics Federation in equal shares.
6.) Mr Musaeb Abdulrahman Balla and the Qatar Athletics Federation are ordered to pay jointly and severally to the International Association of Athletics Federations a total amount of CHF 10,000 (ten thousand Swiss francs) as a contribution to its legal fees and other expenses incurred in connection with these arbitration proceedings.
7.) All other motions and prayers for relief are dismissed.
