CAS 2010_A_2162 Doping Control Center Malaysia vs WADA

CAS 2010/A/2162 Doping Control Centre, Universiti Sains Malaysia v. World Anti-Doping Agency (WADA)

  • Doping
  • Revocation of a laboratory’s accreditation
  • CAS power of review
  • Duty of a first instance body to act fairly
  • Standard of proof
  • Duty of a laboratory to be aware of and implement all WADA technical documents
  • Absence of harm
  • Duty of a laboratory to operate and be seen to operate according to implemented standards

1. The reference in art. R57 of the Code to the power to review the facts and law does not refer to the facts and law that were before the body producing the original decision. The facts and law referred to are rather those which bear on the issues in the appeal: CAS is restricted only by the subjective and objective limits of the case remitted to it. Any more limited interpretation would have the potential to create unfairness for both parties, by disabling an appellant as well as a respondent from adducing fresh relevant material before CAS. It would also place an obstacle in the path of sensible and speedy resolution of a dispute which is particularly desirable in the world of sport.

2. The fact that a first instance body’s decision may be cured by the appeal to CAS does not have as its corollary an absence of requirement for such first instance body to act fairly. It is obliged to obey the two basic rules of natural justice audi alteram partem and nemo judex in causa sua i.e. to let the party to know the case against it and to give it an opportunity to respond; and to have the issue determined by a body that both is and is seen to be impartial and independent. Failure to comply with these fundamental principles may incite the recipient of an adverse decision to appeal when it might not otherwise have done so. It also deprives the decision (and its reasoning) of such utility it might otherwise have by way of guidance for the CAS Panel in its appellate capacity. Moreover, it risks undermining the stature of the first instance body itself.

3. In a novel situation which does not concern a usual disciplinary case of a doping offence engaging the established test of “comfortable satisfaction”, it must be determined precisely what standard of proof should apply. It is not appropriate to assess whether a laboratory deserves revocation of accreditation in purely quantitative terms. The assessment must also be a qualitative one. Therefore, it is for a panel to decide on the balance of probabilities that the decision to revoke was wrong: WADA’s judgment must itself be accorded due deference, but the panel must nonetheless be persuaded that in all the circumstances, revocation is necessary to ensure the full reliability and accuracy of testing and the reporting of the same.

4. It is indisputable that a laboratory has an obligation to be aware of and implement all WADA technical documents. The plea of ignorance of the existence of key documentation because of technical or administrative problems faced by the laboratory aggravates rather than mitigates the offence.

5. The causation of loss by inappropriate actions is relevant to civil claims for compensation but not to disciplinary (or criminal) charges where it is the degree of fault and not its consequences which is relevant. Therefore, a plea that no harm was done by the errors is without weight.

6. The entire anti-doping system presupposes that, and can only work if, WADA-accredited laboratories actually operate in accordance with the International Standard for Laboratories and in accordance with their own Standard Operating Procedures. The credibility of the system also requires that laboratories be seen to operate in accordance with these standards: any doubts about one laboratory could very quickly jeopardise the entire system.



On 25 May 2010 the World Anti-Doping Agency (WADA) suspended the accreditation of the Malasian Doping Control Center in Penang with immediate effect. WADA deemed that the Center seriously and repeatedly had violated the ISL and relevant technical documents.

Hereafter in July 2010 the Centre appealed the WADA Decision with the Court of Arbitration for Sport (CAS). The Centre requested the Panel to declare illegal and unenforceable the imposed revokation of its accreditation.

WADA contended that the Centre is guilty of not solitary, but serial errors by way of imperfect sample analysis in breach both of the ISL and of its own Standard Operating Procedures (SOP). Also WADA asserted that these errors continued after a period of suspension in 2009.

The Panel assessed and addressed the existence and gravity of the analytical errors made by the Centre and established that the Centre had reported Adverse Analytical Findings (AAFs) for six athletes who did not dope. The Panel holds that the types of failures which led to these AAFs, and the Centre's attempt at explanation, raise serious questions about the Centre's managment.

The Panel concludes that the problems are growing, uncorrected at bench level and above and endemic. Without reform, of which there are no real signs, the reliability of the Centre’s work is suspect. The Panel therefore confirms WADA's revocation of the Centre's accreditation.

The Court of Arbitration for Sport decides on 15 June 2011:

1.) The appeal filed by Doping Control Centre, Universiti Sains Malaysia on 8 July 2010 is dismissed.

(…)

4.) All other and further prayers for relief are dismissed.

Original document

Parameters

Legal Source
CAS Appeal Awards
Date
15 June 2011
Arbitrator
Beloff, Michael J.
McLaren, Richard H.
Subiotto, Romano F.
Original Source
Court of Arbitration for Sport (CAS)
Country
Malaysia
Language
English
ADRV
Adverse Analytical Finding / presence
Legal Terms
Burdens and standards of proof
Competence / Jurisdiction
De novo hearing
Fair trial / procedural fairness
International Standard for Laboratories (ISL)
Removal of accreditation for the Olympic Games
WADA Code, Guidelines, Protocols, Rules & Regulations
Other organisations
University Sains Malaysia Doping Control Centre (USMDCC)
World Anti-Doping Agency (WADA)
Laboratories
Penang, Malaysia: Doping Control Centre Penang [*]
Analytical aspects
Accreditation Process
Atypical Finding (ATF)
B sample analysis
False Positive
Mass spectrometry analysis
Reliability of the testing method / testing result
Sample stability
Doping classes
S1. Anabolic Agents
Substances
19-norandrostenedione (estr-4-ene-3,17-dione)
19-norandrosterone
19-noretiocholanolone
Nandrolone (19-nortestosterone)
Prasterone (dehydroepiandrosterone, DHEA, 3β-hydroxyandrost-5-en-17-one)
Document type
Pdf file
Date generated
27 February 2013
Date of last modification
22 June 2023
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  • Analytical aspects
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