- CAS 2020/A/7526 World Athletics v. Salwa Eid Naser
- CAS 2020/A/7559 World Anti-Doping Agency (WADA) v. World Athletics & Salwa Eid Naser
- CAS 2020/A/7526 World Athletics (WA) v. Salwa Eid Naser & CAS 2020/A/7559 World Anti-Doping Agency (WADA) v. WA & Salwa Eid Naser
Related case:
World Athletics 2020 WA vs Salwa Eid Naser
October 14, 2020
- Athletics (track and field)
- Doping (whereabouts failure)
- Reasonable attempt to locate an athlete for testing during the sixty minutes time slot
- Assessment of the DCO recollection of events
- Missed test presumed to have been caused by the athlete’s negligence unless the presumption is rebutted
- Personal responsibility of the athlete in case of delegation of
- Whereabouts Filings to a third party
- CAS scope of review and recharacterization of the charge against the athlete
- Second ADRV for sanctioning purpose
- Reduction of the ineligibility period
- Starting date of the ineligibility period
- Disqualification of the athlete’s results
1. According to the International Standard for Testing and Investigation (ISTI) and the WADA Guidelines, an athlete may only be declared to have committed a missed test where the Results Management Authority can establish that during the 60-minute time slot specified in his/her Whereabouts Filing at the location specified for that time slot, the Doping Control Officer (DCO) did what was reasonable in the “particular circumstances of the case”, in particular given the “nature of the location chosen by the Athlete”, to try to locate the athlete, short of giving the athlete any advance notice of the test. The evaluation of the reasonableness of a DCO’s attempt must be made looking objectively at the steps taken by the DCO in the specified location, in light of the information provided by the athlete and in connection with the athlete’s duty of diligence in filing Whereabouts Information that is accurate enough to allow DCOs to find them without any particular effort.
2. There is no presumption that a DCO’s recollection of events is correct unless proven otherwise. Rather, the hearing body must evaluate the probabilities in the particular circumstances of the case in hand.
3. Where a missed test has been established, the athlete has the burden to rebut the presumption that his/her negligence caused his/her failure to be available for testing. According to the ISTI, a “duty” or “care” is expected from an athlete with regard his/her whereabouts obligations which, include (i) a duty to provide and update sufficient and accurate Whereabouts Information for each day on a quarterly basis and (ii) a duty to specify, for each day, a specific location in which, for a sixty-minute timeslot, he/she would be present, available and accessible for unannounced testing. Considering that an athlete is ultimately responsible for the Whereabouts Information being updated, the failure to be available and accessible caused by the indication of a wrong address shall be deemed to be due to the athlete’s negligence.
4. Under the ISTI, an athlete who delegates Whereabouts Filings to a third party assumes all risks for any errors committed by the latter.
5. Under Article R57 of the CAS Code, a recharacterization of the charge would not exceed the limits of the CAS Scope of review. Furthermore, the principle jura novit curia entails that CAS panels can opt for a legal qualification of the conduct that is different from the one envisaged in the charge, as long as the interested parties’ right to be heard is respected. In this regard, since WADA has its first and only chance to present its case at the CAS appeal level, it must be allowed to fully exercise its appeal rights, which include a recharacterization of the charge(s), with the sole caveat that this should be based on the same set of facts discussed during the first instance proceedings. This is indeed essential to (i) secure the integrity of the system, (ii) secure a worldwide uniform application of the anti-doping rules and (iii) prevent ADOs and first instance hearing bodies, especially those at national level, to characterize charges in an incorrect way which could favour a given athlete.
6. Article 10.7.4(a) WA Anti-Doping Rules (ADR) “Multiple Violations” allows to determine under which circumstances an anti-doping rule violation (ADRV) can be treated for sanction purposes as a second ADRV, i.e. the athlete must have received notice of a first alleged ADRV before a second violation can be established. Thus, even if there are two distinct ADRVs, for the purpose of sanction they must be treated as one, if the condition precedent for treating them otherwise is not satisfied.
7. An athlete, that has shown an unacceptable degree of nonchalance and a worryingly lackadaisical approach to his/her whereabouts obligations under the ADR in all three Whereabouts Failures, thereby deserves no reduction of the ineligibility period and shall be sanctioned with the standard two-year ineligibility period.
8. With regard to the construction of Proviso c of Article 10.10.2 WA ADR providing for the possibility to backdate the starting date of the athlete’s suspension, it is a necessary, but not sufficient, condition precedent that there have been substantial delays in any aspects of doping control, including the hearing process, which are not attributable to the athlete. If the condition precedent is satisfied, backdating the period of ineligibility is an available but not a mandatory consequence. Whether and how such discretion is exercised by the adjudicating body depends axiomatically upon the circumstances of the particular case.
9. Under Article 10.8 WA ADR, the finding that an athlete has committed an ADRV under Article 2.4 WA ADR entails, as a rule, the disqualification of all the results
On 14 October 2020 the World Athletics Disciplinary Tribunal decided to dismiss the 2 charges against the Athlete Salwa Eid Naser for the reported Whereabouts Filing failures and Missed Tests within a 12 month period.
In first instance the Panel deemed that there was a Missed Test committed on 24 January 2020 but concluded that the Missed Test on 12 April 2019 could not be attributed to the Athlete. As a result the anti-doping rule violation (ADRV) has not been established for 3 Missed Tests to the comfortable satisfaction of the Panel. The January 2020 Missed Test still stands against the Athlete.
Hereafter in November 2020 World Athletics (WA) and the World Anti-Doping Agency (WADA) appealed the Decision of 14 October 2020 with the Court of Arbitration for Sport (CAS).
Both WA and WADA requested the Panel to set aside the Appealed Decision, contending that the 12 April 2019 Missed Test should be confirmed and that thus the Athlete violated Article 2.4 ADR based either on the First Charge or on the Second Charge. As to the consequences for such violation,
WA and WADA contended that the Athlete shall be sanctioned with (i) the standard two-year period of ineligibility, which does not deserve reductions based on the Athlete's degree of fault and (ii) disqualification of her results since the date of the third Whereabouts Failure, 12 April 2019.
The Athlete, sought full confirmation of the Appealed Decision, asserting that on 12 April 2019 there was no Whereabouts Failure. Leaving aside the recharacterization as a Failing Failure, this alleged Whereabouts Failure is crucial to both the First Charge and the Second Charge as, without it, the Athlete would not incur three such failures within a twelve-month period and she could not be charged with any ADRV.
Alternatively, should the Panel find that Athlete did perpetrate an ADRV, the Athlete requested (i) that any imposed period of ineligibility be reduced, taking into account the circumstances of the case at hand, including the delays in the proceedings that led to the Notice of Charge and the Athlete's dyslexia and ADHD, and (ii) that her results be disqualified only from 4 October 2019.
The Panel finds that the 2 separate reported ADRVs against the Athlete must be considered as only one single ADRV for sanctioning purposes and that there are insufficient grounds for backdating the ineligibility period.
Further the Panel concludes that the Athlete, in all three Whereabouts Failures, has shown an unacceptable degree of nonchalance and a worryingly lackadaisical approach to her whereabouts obligations under the ADR, thereby deserving no reduction of her ineligibility period.
Therefore the Court of Arbitration for Sport decides on 30 June 2021 that:
- The appeal filed by World Athletics on 12 November 2020 against Ms Salwa Eid Naser with respect to the decision issued by the World Athletics Disciplinary Tribunal on 14 October 2020 is partially upheld.
- The appeal filed by the World Anti-Doping Agency on 30 November 2020 against World Athletics and Ms Salwa Eid Naser with respect to the decision issued by the World Athletics Disciplinary Tribunal on 14 October 2020 is partially upheld.
- The decision rendered by the World Athletics Disciplinary Tribunal on 14 October 2020 in the matter of Ms Salwa Eid Naser is set aside.
- Ms Salwa Eid Naser is sanctioned with a period of ineligibility of two years, commencing on the date of notification of this award, with credit given for the period of provisional suspension already served between 4 June 2020 and 14 October 2020.
- All competitive results obtained by Ms Salwa Eid Naser from 25 November 2019 through to the date of notification of this award shall be disqualified, with all of the resulting consequences, including forfeiture of any medals, titles, ranking points and prize and appearance money.
- The present award is pronounced without costs, except for the CAS Court Office fees of CHF 1,000 each, already paid by World Athletics and by the World Anti-Doping Agency, which are retained by the CAS.
- Ms Salwa Eid Naser shall pay CHF 5,000 (five thousand Swiss francs) to World Athletics and CHF 5,000 (five thousand Swiss francs) to the World Anti-Doping Agency as contribution towards their costs incurred in connection with these arbitration proceedings.
- All other or further motions or prayers for relief are dismissed.
