CAS 2021_O_7977 World Athletics vs Shelby Houlihan

CAS 2021/O/7977 World Athletics (WA) v. Shelby Houlihan

• Athletics (middle-distance)
• Doping (nandrolone/19-norandrosterone (19-NA))
• Prerogative of a laboratory
• Burden of proof of a lack of intention to commit an Anti-
• Doping Rule Violation (ADRV)
• Rebuttal of the presumption that an ADRV is intentional through hair analysis and polygraph testing
  
  

1. Irrespective of whether or not an athlete invoked the ingestion of boar offal as a possible explanation for an adverse analytical finding, it is a laboratory’s prerogative to interpret whether a gas chromatography/carbon/isotope-ration mass spectrometry (GC/C/IRMS) analysis is “not consistent with the exogenous production of the parent compound” or “inconclusive” in light of the Technical Document (TD) 2021NA.

2. According to art. 10.2.1 of the edition 2020 of the World Athletics Anti-Doping Rules (WA ADR), the burden of proof that the ADRV was not intentional is on the athlete. Unlike for “no fault” or “no significant fault”, the WA ADR does not provide that the athlete must show how the substance entered her system in order to claim that the ADRV was not intentional.

3. Neither the positive result of a hair analysis nor of a polygraph test are sufficient for an athlete to rebut the presumption that his/her ADRV was intentional.

In January 2021 the Athletics Integrity Unit (AIU) for World Athletics reported an anti-doping rule violation against the American Athlete Shelby Houlihan after her A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

After notification a provisional suspension was ordered. In May 2021 the case was referred to the Court of Arbitration for Sport (CAS) for a first instance hearing panel. Previously the Athlete's request to lift the imposed provisional suspension was rejected by the AIU as by CAS.

The Athlete denied the intentional use of the substance and  argued that the 19-norandrosterone entered her body by eating a burrito from a food truck containing pork offal and that the burrito was the only possible source of the 19-norandrosterone in the Sample.

The Athlete disputed the test results and asserted, supported by an expert witness, that the analytical results of the Montreal Lab should haven been reported as an Atypical Finding. Further she argued that TD2021NA applies since this document was approved and published and because of the application of the principle of lex mitior.

The Panel establishes that the TD2021NA is applicable in this matter and a majority of the Panel finds that the Athlete failed to demonstrate that the Adverse Analytical Finding (AAF) was not properly reported pursuant to the ISL, neither that the anti-doping rule violation was not properly managed, asserted and notified pursuant to the ISRM.

Following assessment of the evidence the Panel:

• finds it possible but unlikely that the Athlete’s burrito contained boar offal;
• finds it possible but unlikely that the ingestion of boar offal would have resulted in the urinary concentration of 19-norandrosterone found in the Athlete’s A and B samples;
• finds it possible but not probable that the ingestion of boar offal would have resulted in the Athlete’s reported urinary concentration of 19-NA or her carbon isotope ratio of -23‰;
• finds that neither the hair analysis nor the polygraph results are sufficient for the Athlete to satisfy her burden of proving that the anti-doping rule violation was not intentional.

Finally the Panel concludes that the Athlete has not satisfied her burden of proof on the balance of probabilities that the anti-doping rule violation was unintentional, and that the violation must be deemed intentional.

Therefore the Court of Arbitration for Sport decides on 27 August 2021 that:

1. The request for arbitration filed by World Athletics on 18 May 2021 against Shelby Houlihan is upheld.
2. Shelby Houlihan is found to have committed an anti-doping rule violation pursuant to Rule 2.1 and Rule 2.2 of the World Athletics Anti-Doping Rules.
3. Shelby Houlihan is subject to a period of ineligibility of four (4) years starting on 14 January 2021.
4. All competitive results obtained by Shelby Houlihan from 15 December 2020 through to 14 January 2021 are disqualified, including forfeiture of any titles, awards, medals, points and prize and appearance money obtained during this period.
5. (…).
6. (…).
7. All other motions or requests for relief are dismissed.
8. The present decision is confidential, unless the President of the CAS Ordinary Arbitration Division decides that it should be made public.