CAS 2019_A_6574 WADA vs ANAD & Sorin Mineran

On 30 January 2017 the Hearing Panel of the National Anti-Doping Agency Romania (ANAD) decided to impose an 8 year period of ineligibility on the long-distance runner Sorin Mineran for his second anti-doping rule violation after he tested positive for the prohibited substance Higenamine.

However on 16 March 2018 the ANAD Appeal Panel decided to set aside the first instance decision and to acquit the Athlete. Hereafter in November 2019 WADA appealed the Decision of 16 March 2018 with the Court of Arbitration for Sport (CAS).

WADA requested the Panel to set aside the decision of the ANAD Appeal Panel and to sanction the Athlete for his second anti-doping rule violation. Whereas WADA accepted that the violation was not intentional it requested the Panel to impose a 4 year period of ineligibility on the Athlete.

WADA contended that Higenamine is a specific substance prohibited at all times under S3 of the 2016 Prohibited List and that a significant number of Athlete's were sanctioned because of the presence of Higenamine in their samples in 2016.

Refering to the Sakho case, invoked by the Athlete in his defence, WADA points out that the Board in that case did not hear any expert explanation of the bases on which doping authorities have determined that such categorization is justified.

The Athlete did not dispute the test result and denied that he had committed an anti-doping rule violation based asserting that:

• his sanction was precluded by res judicata;
• Higenamine was not on the 2016 Prohibited List, because it was not known to be a Beta-2 agonist; and
• not all WADA-accredited laboratories tested for Higenamine in 2016.

The Panel considered the invoked Sakho case and establish that the UEFA-CEDB decision did not actually find that Higenamine is not a prohibited beta-2 agonist. What the Board wrote was instead that there was "significant doubt" in the matter and that is was "not clear" that Higenamine was a beta-2 agonist.

The Panel holds that the evidence does not show a reluctance of laboratories to test for Higenamine, and to the contrary an expansion of their capability to conduct such testing as the use of that substance has proved to be wide spread.

The Panel accepts WADA's contentions and finds that the Athlete's explanation for his anti-doping rule violation is weak. The Panel deems that Higenamine, although not explicitly named, was present on the 2016 Prohibited List. Furthermore CAS jurisprudence has established and confirmed that a list of prohibited substances need not be exhaustive.

Here the Panel regarded that Higenamine was already listed by name as a prohibited substance on the Global Drug Reference Online in 2013. The substance also had been on the agenda of the WADA List Expert Group meetings serveral times listing Higenamine as a beta-2 agonist.

Therefore the Court of Arbitration for Sport decides on 24 July 2020 as follows:

1. The appeal filed on 5 November 2019 by the World Anti-Doping Agency against the Romanian National Anti-Doping Agency and Sorin Mineran with respect to the decision issued on 11 March 2019 by the Appeal Panel of the Romanian National Anti-Doping Agency is upheld.
2. The decision issued on 11 March 2019 by the Appeal Panel of the Romanian National AntiDoping Agency is set aside.
3. Mr Sorin Mineran is found to have committed an anti-doping rule violation and is therefore sanctioned with a four-year period of ineligibility, commencing on the date of the entry into force of the present award, subject to the proviso that the length of provisional suspension or ineligibility he has already served shall be credited against the total period of ineligibility to be served.
4. The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne 50% by the Romanian National Anti-Doping Agency and 50% by Mr Sorin Mineran.
5. The Romanian National Anti-Doping Agency and Mr Sorin Mineran shall bear their own costs and each is individually ordered to pay to the World Anti-Doping Agency an amount of CHF 2,000 (two thousand Swiss Francs) as a contribution towards WADA's legal fees and other expenses incurred in connection with these arbitration proceedings.
6. All other and further motions or prayers for relief are dismissed.