CAS 2021_A_7983 Brianna McNeal vs World Athletics | World Athletics vs Brianna McNeal

CAS 2021/A/7983 Brianna McNeal v. World Athletics (WA) & CAS 2021/A/8059 WA v. Brianna McNeal

Related case:

World Athletics 2021 WA vs Brianna McNeal
April 21, 2021


  • Athletics (hurdles)
  • Doping (tampering with any part of the doping control)
  • Applicable law and lex mitior
  • Assessment of the evidence
  • Conduct to be considered tampering
  • Sanction for a tampering ADRV as a first offence and exceptional circumstances
  • Degree of fault
  • Applicable sanction to multiple violations
  • Application of the principle of proportionality

1. An exception to the principle of application of the law at the time of the facts exists if lex mitior doctrine applies. The principle of lex mitior occupies a central place in sports law. There is no discretion on the application of the lex mitior principle once it is found that the case appropriately falls within its scope. Lex mitior principle is relevant and applicable when and if the new rules (i) provide for a reduced sanction; and/or (ii) redefine the disciplinary offense. The 2021 WA Anti-Doping Rules (ADR) that enshrines the lex mitior principle offers more favourable terms to athletes with respect to the imposition of sanctions for violations of tampering offences. Equally, the new rules afford considerably greater flexibility in connection with the consequences to be drawn from a finding of multiple anti-doping rule violations.

2. The “evaluation of the evidence” concept refers to the judicial process of weighing/assessing the evidence on the record (appréciation des preuves). Under Swiss arbitration law, the deciding body is free in its evaluation of the evidence (libre appréciation des preuves). This principle is expressly recalled by Article 9(1) of the IBA Rules of Evidence. The assessment of the evidence contributes significantly to the decision-making. CAS panels need to have strong evidence that certain facts occurred in a given manner and the evidence also has to satisfy CAS panels in the same sense. The relevant circumstances of the case assessed individually and/or combined, commonly known as the context, are major elements to reach this conclusion.

3. It is not necessary for a Doping Control Process to be actually subverted, in order for a tampering offence to exist (violation of Rule 2.5 2021 WA ADR). It suffices, for that purpose, that the conduct in question could, in theory, subvert the said process. The commission of a tampering offence always requires satisfactory proof that the offender intended to subvert the investigation, even if the latter was unaware that he was violating an anti-doping provision. In the specific context of the rules, intent does not need to be direct in the sense that subverting the doping control process was the sole and only driving motive behind the athlete’s actions. Rather, it is sufficient for there to be intent that the athlete recognises the consequences of his or her actions and accepts that such consequences have the potential to subvert the process. A violation of Rule 2.5 2021 WA ADR cannot be established merely by reference to the examples included in the rule. Therefore, a finding that the offence has actually been committed must include consideration of the subjective aspects of the case. In this respect, the alteration by an athlete of the dates of medical notes issued by a clinic that is intended to explain a missed test cannot only be considered to be falsification of a document under WA ADR, but also to a conduct that tends to/is capable of subverting the Doping Control Process.

4. Under Rule 10.3.1 2021 WA ADR, a reduction of the 4 years period of ineligibility applicable for a first tampering offence in a range from 2 years to 4 years is possible if the athlete can establish exceptional circumstances depending on the athlete’s degree of fault. The specific meaning of “exceptional circumstances” is not defined in said rule. Yet, some examples of what can be considered to be “exceptional circumstances” are provided in the context of other rules. The interpretation of the expression “exceptional circumstances” must be restrictive so as only to include very unusual or abnormal situations. In this respect, the conduct of an athlete that without any doubt failed to prove that he did not intend to subvert the Doping Control Process, can nevertheless betray a certain level of psychological disturbance, which does not, however, alter the seriousness of his acts and the fact that he committed an anti-doping rule violation (ADRV). In this regard, psychological factors may amount to an abnormality that is “not within the bounds of normal conduct” and therefore to exceptional circumstances that justify that the penalty imposed on the athlete for the Tampering ADRV, when fixed on a first offence basis, varies according to the athlete’s degree of fault.

5. In order to determine into which category of fault – significant, normal or light – a particular case might fall, it is helpful to consider both the objective and the subjective level of fault. The objective element describes what standard of care could have been expected from a reasonable person in the athlete’s situation. The subjective element describes what could have been expected from that particular athlete, in light of his personal capacities. In this respect, an athlete who acted, in objective terms, with a “significant degree of fault” can, due to the existence of exceptional circumstances closely linked to the subjective aspects of the case, have his degree of fault reduced from a “significant degree of fault” to a “normal degree of fault”.

6. In the context of a second ADRV, the minimum level of the penalty to be imposed is the sum total of the period imposed for the athlete’s first ADRV and the period of ineligibility that would be imposed on the athlete for the second ADRV, on a first offence basis. The maximum limit is twice the period of ineligibility that would be imposed on the athlete for the second ADRV. The specific penalty applicable must be fixed within this range, by reference to all the circumstances and the athlete’s degree of fault with regard to the second offence.

7. The period of ineligibility sanction to be imposed on the athlete may not be further reduced under the principle of proportionality if the elements of such principle have already been dully considered in the context of the second ADRV as per the 2021 WADC. Moreover, only the most extreme and rare cases, where sanctions are clearly disproportionate and unfair, allow for an autonomous consideration of the principle of proportionality.



On 21 April 2021 the World Athletics Disciplinary Tribunal decided to impose a 5 year period of ineligibility on the Athlete for Tampering.

In this matter the AIU had established that the Athlete had provided false statements and in support had produced falisified documents in order to explain her missed test on 12 January 2020. When interviewed in August 2020 the Athlete admitted that she had altered documents.

In First Instance the Disciplinary Tribunal Panel regarded that the subjective elements of this case are very specific and exceptional. The Panel considered that the personal circumstances and trauma the Athlete was suffering at the time she committed her Tampering violation justify a reduction of her degree of Fault and reduction of the period of ineligibility for her second anti-doping rule violation.

Hereafter both the Athlete and World Athletics appealed the Decision of 21 April 2021 with the Court of Arbitratration for Sport (CAS).

After assessment of the case the CAS Panel dismissed the appeal filed by the Athlete Brianna McNeal and partially upheld the appeal filed by World Athletics. The Challenged Decision is confirmed, with one additional element.

Therefore the Court of Arbitration for Sport decides on 7 July 2021 that:

  1. The appeal filed by Ms Brianna McNeal on 21 May 2021 against the decision of the World Athletics Disciplinary Tribunal dated 21 April 2021 is dismissed.
  2. The appeal filed by World Athletics on 17 June 2021 against the decision of the World Athletics Disciplinary Tribunal dated 21 April 2021 is partially upheld.
  3. The decision of the World Athletics Disciplinary Tribunal dated 21 April 2021 is confirmed in full, with the following additional item:

    "All competitive results obtained by Ms. Brianna McNeal between 13 February 2020 and 14 August 2020 shall be disqualified with all resulting consequences includingforfeiture of any medals, titles, points, prize money and prizes."

  4. This Award is pronounced without costs, except for the CAS Court Office of CHF 1 '000 (one thousand swiss francs) paid by Ms Brianna McNeal and World Athletics which is retained by the CAS.
  5. Each Party shall bear its own legal and other costs incmTed in connection with these arbitration proceedings.
  6. All other motions or prayers for relief are dismissed.

Original document

Parameters

Legal Source
CAS Appeal Awards
Date
2 July 2021
Arbitrator
Botica Santos, Rui
Haas, Ulrich
Reeves, Barbara A.
Original Source
Court of Arbitration for Sport (CAS)
Country
United States of America
Language
English
ADRV
Tampering / attempted tampering
Legal Terms
Admission
Circumstantial evidence
Exceptional circumstances
No Significant Fault or Negligence
Period of ineligibility
Second violation
Sport/IFs
Athletics (WA) - World Athletics
Medical terms
Legitimate Medical Treatment
Pregnancy
Various
Disqualified competition results
Doping control
Falsification / fraud
Lying / false statement
Document type
Pdf file
Date generated
30 August 2021
Date of last modification
5 October 2023
Category
  • Legal Source
  • Education
  • Science
  • Statistics
  • History
Country & language
  • Country
  • Language
Other filters
  • ADRV
  • Legal Terms
  • Sport/IFs
  • Other organisations
  • Laboratories
  • Analytical aspects
  • Doping classes
  • Substances
  • Medical terms
  • Various
  • Version
  • Document category
  • Document type
Publication period
Origin