In January 2023 Drug Free Sport New Zealand (DFSNZ) reported an anti-doping rule violation against the amateur golf player after her sample tested positive for the prohibited substance Enobosarm (Ostarine) in a low concentration.
Following notification a provisional suspension was ordered. The Athlete filed a statement in her defence and she was heard for the Sports Tribunal of New Zealand.
The Athlete denied the intentional use of the substance and at first she could not explain how the substance had entered her system. Supported by experts the Athlete attempted to find the source of the prohibited substance.
The Athlete ruled out sunscreen, make-up, medications and skin-to-skin contact as source because none of the identified substances contained Ostarine. She believed that a kiss with a bodybuilder or tasting of a protein custard power likely had caused to positive test result.
The Tribunal finds that the presence of a prohibited substance had been established in the Athlete's sample and accordingly that she committed an anti-doping rule violation.
Following assessed of the evidence the Panel rejected the kiss from the bodybuilder as being the probable source of ingestion. Considering the circumstances, and on a balance of probabilites, the Panel deems it more probable than not, that the custard pudding in question was contaminated and that the Athlete unintentionally ingested Ostarine through two spoonsful of it.
The Panel accepts that the Athlete's violation was not intentional and that there were grounds for No Significant Fault or Negligence. The Panel deems that the amateur Athlete acted with a light degree of fault and that she is a truthful and a credible witness.
Therefore the Tribunal decides by majority on 3 October 2023 to impose a 6 month period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 31 January 2023.
In a separate decision the Tribunal addressed the issue of costs requested by the Athlete.
The Athlete argued that there had been delays and that DFSNZ could have done more to investigate whether the violation was not intentional. Instead she made expenses in order to prove that she acted with No Significant Fault or Negligence.
The Tribunal concludes that the Athlete was unsuccessful in her attempt to establish no fault or negligence and that she had a sanction imposed upon her, the proceeding was not without merit. The Tribunal is also not persuaded that DFSNZ failed to act in good faith.
The Tribunal acknowledges that the Athlete went to considerable expenses through this process. Further the Tribunal recognises that the Athlete had to go some distance to establish that she bore No Significant Fault.
However, the Tribunal is not satisfied that this is an exceptional case where costs should be awarded. It is noted that the Athlete already had benefitted from DFSNZ’s Legal Assistance Fund.
Viewing the Tribunal’s decision against the principle of ‘the loser paying the winner’ DFSNZ proved the ADRVs, in that the prohibited substance was in the athlete’s system, but it failed to prove the ingestion was intentional.
As a result the Tribunal is not persuaded that the circumstances justifiy an award of costs against DFSNZ. Therefore the Tribunal decides on 19 October 2023 that costs will lie as they fall.
