CAS 2021/ADD/31 International Weightlifting Federation (IWF) v. Ahmed Al-Hussein, Salwan Jasim Alaifuri & Safaa Rashid Al-Jumaili
- Weightlifting
- Doping (higenamine)
- Consolidation
- Establishment of the presence of a prohibited substance
- Relevance of the level of the substance detected
- Presumptive period of ineligibility for the non-intentional presence of a specified substance
- Athlete’s duty of care
- No fault
- No significant fault or negligence, assessment of the athletes’ individual fault under the rules
1. On the basis of Article 14.6 of the CAS ADD Rules, it is appropriate, both legally and practically, to consolidate the procedures if (i) the parties are in agreement upon the consolidation of the procedures on one side and in silence on the other; and (ii) having regard to the case put forward by the athletes, the circumstances of each Adverse Analytical Finding (AAF) involve significant common issues of fact and law.
2. The evidence i.e. the positive tests, establishes to the required standard of comfortable satisfaction that the athletes committed a violation of Article 2.1 of the IWF Anti-Doping Rules (ADR) because the substance detected in the samples provided by the athletes is higenamine which was at the time when the samples were taken a prohibited substance under S3 Beta-Agonist of the Prohibited List 2020 and the testing procedures and results reported have not been challenged by the athletes.
3. There is no level of the substance detected in the athlete’s sample beneath which an AAF cannot be reported. Any detected level amounts to a violation.
4. Where it is accepted that the conduct of the athletes was not intentional as provided by Article 10.2.3 IWF ADR, the presumptive period of ineligibility for a violation of Article 2.1 IWF ADR involving a specified substance such as higenamine as a first violation is two years under Article 10.2.2. The potential application of any defence to eliminate or reduce this period of ineligibility involves considering the fault of the athlete in the circumstances of the violation.
5. The IWF ADR, like all anti-doping rules which implement the World Anti-Doping Code, impose a personal duty of care on athletes to avoid committing violations by ingesting prohibited substances. Athletes who compete at international level are generally expected to show a high degree of care in complying with their anti-doping obligations; they are expected to be aware of the rules and the care which must be taken to avoid committing doping violations. The degree of fault of an athlete in relation to a breach of the rules has to be considered in the context of this expected standard of care.
6. The defence of no-fault provides for the elimination of the period of ineligibility in exceptional circumstances. This defence can only apply where an athlete can establish that he could not have known or suspected even with the exercise of utmost caution that he had used a prohibited substance or violated an anti-doping rule.
7. To reduce the period of ineligibility from two years for a violation under Article 2.1, an athlete has first to establish that his fault or negligence in connection with the violation is not “significant”. Determining fault involves considering the degree of risk that should have been perceived by the athlete in the particular circumstances in which the violation was committed and the level of care that should have been exercised in relation to the perceived level of risk. The personal characteristics of the athlete and any disability are relevant to the consideration of fault because they may explain why the athlete has not met the expected standard of behaviour in the circumstances. Such characteristics may lessen the degree of fault present in a breach of the rules. What matters is the conduct of the athlete and what he did to avoid taking the supplement with the prohibited substance in it. Despite the awareness of the anti-doping regime and their general obligations under it, the lack of education and access to information about supplements should be taken into account.
In April 2020 the International Testing Agency, on behalf of the International Weightlifting Federation (IWF), reported anti-doping rule violations against the Iraqi weightlifters Ahmed Al-Hussein, Salwan Jasim Alaifuri & Safaa Rashid Al-Jumaili.
ITA reported that the presence of the prohibited substance Higenamine had been established in the A and B samples of these Athletes provided on 3 and 4 February 2020 and on 28 February 2020.
Following notification a provisional suspension was ordered and the Athletes filed statements in their defence. The Athletes did not accept the proposed sanctions and their consolidated cases were referred to the CAS Anti-Doping Division (CAS ADD) for a Sole Arbitrator first instance procedure.
The Athletes denied the intentional use of the substance and requested for a reduced sanction. They explained that they had used a new recommended supplement drink Impact Igniter while they were unaware that it contained Higenamine because they don't know English.
In view of the evidence the ITA accepted that the violations were not intentional and that the supplement drink was the source of the prohibited substance. The ITA requested to impose the following sanctions on the Athletes:
- 20 months on the Athlete Ahmed Al-Hussein for his first anti-doping rule violation;
- 40 months on the Athletes Safaa Rashid Al-Jumaili for his second anti-doping rule violation;
- 40 months on the Athlete Salwan Jasim Alaifuri for his second anti-doping rule violation.
The Sole Arbitrator finds that the presence of a prohibited substance has been established in the Athlete's samples and accordingly that they committed the anti-doping rule violations.
The Sole Arbitrator assessed the circumstances and the Athletes' conduct in these cases and rules that their violations were not intentional.
Furthermore the Sole Arbitrator considers that:
- the Athletes did not read or write English, nor Arbabic in one case;
- they lack a developed understanding about the significant risk with supplements sold over the counter at stores;
- they lack the kind of education and access to information about supplements available in some jurisdictions;
- the proposed sanctions are appropriate and properly reflect the Athletes' failures in this matter.
- there had been substantial delays in the proceedings not attributed to the Athletes.
Therefore the Court of Arbitration for Sport decides on 15 March 2022 that:
1.) The request for arbitration filed by the International Weightlifting Federation on 19 August 2021 against Mr. Ahmed Al-Hussein, Mr. Salwan Jasim Abbood Alaifuri and Mr. Safaa Rashid Al-Jumaili is upheld.
2.) Mr. Ahmed Al-Hussein, Mr. Salwan Jasim Abbood Alaifuri and Mr. Safaa Rashid Al-Jumaili are each found to have committed an Anti-Doping Rule Violation of Article 2.1 of the IWF Anti-Doping Policy.
3.) Mr. Ahmed Al-Hussein is sanctioned with a period of ineligibility of twenty (20) months. The period of ineligibility shall start from 28 February 2020 which is the date of collection of Mr. Ahmed Al-Hussein’s sample.
4.) Mr. Salwan Jasim Abbood Alaifuri is sanctioned with a period of ineligibility of forty (40) months. The period of ineligibility shall start from 4 February 2020 which is the date of collection of Mr. Salwan Jasim Abbood Alaifuri’s sample.
5.) Mr. Safaa Rashid Al-Jumaili is sanctioned with a period of ineligibility of forty (40) months. The period of ineligibility shall start from 3 February 2020 which is the date of collection of Mr. Safaa Rashid Al-Jumaili’s sample.
6.) All competitive results obtained by Mr. Ahmed Al-Hussein at the Western Asia Championship in Dubai, United Arab Emirates, with all resulting consequences (including forfeiture of any medals, points, and prizes) are disqualified.
7.) All competitive results obtained by Mr. Salwan Jasim Abbood Alaifuri and Mr. Safaa Rashid Al-Jumaili at the 5th International Fajr Cup in Rasht, Iran, with all resulting consequences (including forfeiture of any medals, points, and prizes) are disqualified.
8.) All competitive results obtained by Mr. Ahmed Al-Hussein, Mr. Salwan Jasim Abbood Alaifuri and Mr. Safaa Rashid Al-Jumaili from the date of sample collection until the date of their provisional suspension are disqualified with all resulting consequences (including forfeiture of any medals, points and prizes).
9.) (…).
10. (…).
11. All other motions or prayers for relief are dismissed.
