CAS 2021/A/7761 World Athletics v. Joyce Chepkirui & Anti-Doping Agency of Kenya (ADAK) & Athletics Kenya (AK)
In June 2019 the Athletics Integrity Unit (AIU) of World Athletics (WA) reported an anti-doping rule violation against the Kenyan Athlete Joyce Chepkirui after an AIU Expert Panel concluded unanimously in February 2018 in their Joint Expert Opinion that the Athlete’s hematological profile “highly likely” showed that she used a prohibited substance or a prohibited method: the use of EPO or Blood doping.
This conclusion of the AIU Expert Panel was based on assessment of blood samples, collected in the period from 18 April 2013 until 4 August 2017 reported in the Athlete’s Biological Passport (ABP).
After notification the Athlete submitted several explanations for the abnormalities in her ABP. However after consideration the Expert Panel rejected the Athlete’s explanations in their 2nd (May 2019) and 3rd (August 2019) Joint Opinion.
A provisional suspension was ordered in June 2019 and the Athlete was heard for the Sports Dispute Tribunal of Kenya (SDT). Yet on 19 November 2020 the SDT decided to dismiss the ABP case against the Athlete.
Hereafter in March 2021 WA appealed the SDT Decision with the Court of Arbitration for Sport (CAS) while the Athlete filed a cross appeal in April 2021. WA requested the Panel to set aside the Appealed Decision, conversely the Athlete requested to dismiss the Appeal filed by WA.
WA contended that the ABP profile of the Athlete constitutes reliable evidence of blood doping in the period 2016 and 2017. None of the Athlete's arguments explain the abnormalities in her ABP, nor that her violation was not intentional. ADAK Athletics Kenya concurred with the submissions made by WA.
The Athlete disputed the validity of the ABP as a reliable means of evidencing intentional blood manipulation. Further she argued that her medical condition, her medication and diet could explain the abnormalities in her ABP.
The Sole Arbitrator finds that principal reliability of the ABP has been confirmed by CAS in numerous cases and has been codified by WADA and WA on the basis of reliable scientific evidence.
The Arbitrator deems that the Athlete failed to substantially contest the Expert Panel's findings of the Second Expert Panel Joint Opinion (confirmed by the Third Expert Panel Joint Opinion). Further there are no indications that would cast doubt on the plausibility and appropriateness of the Expert Panel's findings.
The Sole Arbitrator is comfortably satisfied by the assessment of the Athlete's ABP that the Athlete has committed an anti-doping rule violation, i.e. that WA succeeded in establishing that the abnormal values of samples 4 to 8 in the Athlete's ABP were caused by blood doping.
The Athlete failed to prove by a balance of probability that the abnormal values in her ABP resulted from vaginal bleeding following hormonal imbalance, the use of various medications or an iron-rich diet.
Finally the Sole Arbitrator considers that there were substantial delays in the proceedings not attributed to the Athlete and that it is unfair to disqualify all the results of the Athlete over a period of more than five years.
Therefore the Court of Arbitration for Sport decides on 28 March 2022 that:
- The appeal filed on 5 March 2021 by World Athletics with the Court of Arbitration for Sport against the decision of the Sports Dispute Tribunal of the Republic of Kenya dated 19 November 2020 is upheld.
- The decision of the Sports Dispute Tribunal of the Republic of Kenya dated 19 November 2020 is set aside.
- A period of ineligibility of four years is imposed on Ms. Joyce Chepkirui starting from 28 June 2019.
- All competitive results of Ms. Joyce Chepkirui from 6 April 2016 until 4 August 2017 are to be disqualified, with all resulting consequences, including forfeiture of any titles, awards, medals, profits, prizes, and appearance money.
- The costs of the arbitration, to be determined and served to the Parties separately by the CAS Court Office, shall be borne by the Anti-Doping Agency of Kenya.
- The Anti-Doping Agency of Kenya shall pay an amount of CHF 2,000 (two thousand Swiss Francs) to World Athletics as contribution to its legal costs and other expenses incurred in the present proceedings.
