15 Dec 2020
CAS 2019/A/6587 Badminton World Federation v. Kate Jessica Foo Kune
In 2017 the Badminton World Federation (BWF) launched an investigation against the official of the Mauritius Badminton Association (MBA) Mr. Raj Gaya and established that he had diverted funds intended for the MBA into his personal bank account.
Consequently the BWF Ethics Hearing Panel decided on 21 November 2018 to impose a fine and a lifetime ban from performing any function in badminton. In this ethics case the Mauritian badminton player Kate Jessica Foo Kune and another key withness assisted the BWF in their investigation and testified against Mr. Gaya.
In June 2019 the BWF reported an anti-doping rule violation against the Athlete Kate Foo Kune after her A and B samples tested positive for the prohibited substance 1-androstenedione. On 21 October 2019 the BWF Doping Hearing Panel deemed that the Athlete had committed an anti-doping rule violation but decided not to impose a period of ineligibility on the Athlete due to no fault or negligence.
Here the Doping Hearing Panel determined that the Athlete more likely than not had demonstrated that she had consumed water that was deliberately spiked with the prohibited substance and victim of malicious sabotage by the MBA.
Hereafter in November 2019 the BWF appealed the decision of its Doping Hearing Panel with the Court of Arbitration for Sport. The BWF requested the Panel to set aside the Decision of 21 October 2019 and to impose a 2 year period of ineligibility on the Athlete.
The BWF accepted that the Athlete’s violation was not intentional but contended that she failed to establish the origin of the prohibited substance. She didn’t demonstrate on the balance of probabilities how the prohibited substance had entered her system nor how an ill-intentioned individual could have deliberately spiked her food or drink with this prohibited substance.
The BWF argued that it is willing to accept any new evidence, and that it is open to re-evaluate its position regarding such new evidence, that would allow the Athlete to demonstrate that sabotage took place, or any other mitigating circmumstances.
The Athlete explained why an accidental contamination of her supplements or her food and water consumed during the Championships in Nigeria was not possible. Instead she submitted that the positive test resulted by way of the malicious sabotage by the MBA or Mr. Gaya, or an associate of either. In particular, she asserted that her team backpack had been left out-of-sight several times during the Championships in Nigeria and that the most likely explanation for the positive test is that her water was intentionally spiked without her knowing during this period.
The Panel regards that the Parties in this case did not dispute that the Athlete’s anti-doping rule violation was unintentional. It also finds that it is not absolutely necessary for the Athlete to show the origin of the prohibited substance to establish absence of intent.
Nevertheless the Panel deems that the Athlete didn’t provide sufficient evidence that supports her assertion while the scientific analysis of an independent expert witness underminded the allegation of sabotage.
The Panel concludes that the Athlete failed to establish on a balance of probabilities how the prohibited substance entered her system. Consequently andy plea of no (significant) fault or negligence must be rejected.
Therefore the Court of Arbitration for Sport decides on 15 December 2020 that:
1.) The appeal filed by the Badminton World Federation against the decision rendered by the BWF Doping Hearing Panel on 21 October 2019, is upheld.
2.) The decision issued by the Badminton World Federation Doping Hearing Panel on 21 October 2019, is partially set aside.
- Ms. Kate Jessica Foo Kune has violated Article 2.1 of the BWF Anti-Doping Regulations and committed an anti-doping rule violation.
- Ms. Kate Jessica Foo Kune is suspended for two (2) years as from the date of this decision in accordance with Article 10.1 of the BWF Anti-Doping Regulations, with credit given for any period of ineligibility already served.
- The results obtained by Ms. Foo Kune during the All African Championships on 28 April 2019 shall automatically be disqualified, pursuant to Article 9 of the BWF Anti-Doping Regulations.
3.) The present arbitration procedure shall be free of charge, except for the CAS Court Office Fee of CHF 1,000 (one thousand Swiss francs), which has already been paid by the Badminton World Federation and is retained by the CAS.
4.) Each party shall bear its own legal and other costs.
5.) All other motions or prayers for relief are dismissed.