CAS 2010/A/2161 Wen Tong v. International Judo Federation (IJF)

• Judo
• Doping (clenbuterol)
• Right to attend or have the athlete’s representative attend the B’ sample opening and analysis
• Procedural mistake

1. According to the 2009 IJF Anti-Doping Regulations (ADR), the athlete has the right to be present for the opening and analysis of his/her B sample regardless of whether it is the athlete or the IJF who requests testing of the B sample.

2. It is now established CAS jurisprudence that the athlete’s right to attend the opening and analysis of her B sample is fundamental and, if not respected, the B-sample results must be disregarded. This is so even if denial of that right is unlikely to affect the result of a B-sample analysis.

3. When the analysis of the B- sample is conducted without the athlete being given due notification of the relevant date and time, it is not possible to remedy such a procedural error through the course of the arbitral process. In contrast to violations of the athlete’s right to be heard, the arbitration cannot substitute the presence (in its widest definition) of a representative of the athlete at the opening of the B-sample.

In September 2009 the International Judo Federation (IJF) reported an anti-doping rule violation against the Chinese judoka Wen Tong after her sample tested positive for the prohibited substance Clenbuterol.

In this case the postive test result was in September 2009 only notified to the Chinese Judo Association (CJA). Only in October 2009 the Athlete learned about her test result.

The Athlete was advised by officials not to request analysis of her B sample, nor to request the documentation packages of her samples. Instead she was advised to cooperate with the IJF in order to gain leniency.

Repeatedly the Athlete's was hampered by the CJA and IJF in her effort to test her B sample. Also she was not notified in November 2009 that her B sample was tested, confirming the test result of her A sample.

Furthermore the Athlete was unaware that the IJF had decided on 4 April 2010 to impose a sanction of 2 years. Thereupon in June 2010 the Athlete only received incomplete information regarding the requested test results and the IJF Decision.

Hereafter in July 2010 the Athlete appealed the IJF Decision with the Court of Arbitration for Sport (CAS) and requested the Panel to annul the Appealed Decision.

The Athlete asserted that she was not given the opportunity to be present herself and/or by her representative for the opening and testing of her B sample in violation of Articles 7.1.4 and 7.1.6 of the 2009 IJF ADR. According to the Athlete, the right of the athlete to be present applies whenever the B sample is analyzed, irrespective of who asks for it or whether the athlete has for her part waived the analysis.

The IJF’s failure to afford the Athlete this essential right renders the B-sample analytical results invalid. As those results therefore cannot confirm the A-sample analytical results, no doping violation has been established pursuant to Article 2.1.2 of the 2009 IJF ADR.

In this case the CAS Panel agrees that the Athlete had a fundamental right to be present whenever her B sample was analyzed, regardless of who asked for it. Violation of this essential right renders the B-sample analytical results invalid. As those results therefore cannot validly confirm the A-sample analytical results, IJF has not established a doping violation pursuant to Article 2.1.2 of the 2009 IJF ADR.

The Panel wishes to emphasize that the present decision in favor of the Athlete should not be interpreted as an exoneration of her. In particular, the Panel is not declaring that the Athlete did or did not, voluntarily or not, ingest Clenbuterol.

The Panel is merely concluding that the IJF has not been able to prove, to the comfortable satisfaction of the Panel, diligent adherence to the rules set out in the applicable anti-doping regulations.

Therefore Court of Arbitration for Sport rules:

1.) The appeal of Ms Tong is upheld.

2.) The IJF’s decision dated 4 April 2010 is annulled.

3.) Ms Tong’s results at the 2009 IJF World Championships are reinstated, she is to retain the gold medal won at those Championships and she is to be reinstated to sports participation with immediate effect.

(…)

6.) All other or further claims are dismissed.

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ASADA believes in pure performance in sport. The 'Pure Performance in Sport' video has been produced to highlight to athletes, coaches, the families of athletes and everyone involved in sport what you can and can't do, how drug testing works and a lot more.

The Australian Sports Anti-Doping Authority (ASADA) is a government statutory authority that is Australia's driving force for pure performance in sport. It is the organisation with prime responsibility for implementation of the World Anti-Doping Code (the Code) in Australia.

ASADA believes in pure performance in sport. The 'Pure Performance in Sport' video has been produced to highlight to athletes, coaches, the families of athletes and everyone involved in sport what you can and can't do, how drug testing works and a lot more.

The Australian Sports Anti-Doping Authority (ASADA) is a government statutory authority that is Australia's driving force for pure performance in sport. It is the organisation with prime responsibility for implementation of the World Anti-Doping Code (the Code) in Australia.

ASADA believes in pure performance in sport. The 'Pure Performance in Sport' video has been produced to highlight to athletes, coaches, the families of athletes and everyone involved in sport what you can and can't do, how drug testing works and a lot more.

The Australian Sports Anti-Doping Authority (ASADA) is a government statutory authority that is Australia's driving force for pure performance in sport. It is the organisation with prime responsibility for implementation of the World Anti-Doping Code (the Code) in Australia.

ASADA believes in pure performance in sport. The 'Pure Performance in Sport' video has been produced to highlight to athletes, coaches, the families of athletes and everyone involved in sport what you can and can't do, how drug testing works and a lot more.

The Australian Sports Anti-Doping Authority (ASADA) is a government statutory authority that is Australia's driving force for pure performance in sport. It is the organisation with prime responsibility for implementation of the World Anti-Doping Code (the Code) in Australia.

ASADA believes in pure performance in sport. The 'Pure Performance in Sport' video has been produced to highlight to athletes, coaches, the families of athletes and everyone involved in sport what you can and can't do, how drug testing works and a lot more.

The Australian Sports Anti-Doping Authority (ASADA) is a government statutory authority that is Australia's driving force for pure performance in sport. It is the organisation with prime responsibility for implementation of the World Anti-Doping Code (the Code) in Australia.

ASADA believes in pure performance in sport. The 'Pure Performance in Sport' video has been produced to highlight to athletes, coaches, the families of athletes and everyone involved in sport what you can and can't do, how drug testing works and a lot more.

The Australian Sports Anti-Doping Authority (ASADA) is a government statutory authority that is Australia's driving force for pure performance in sport. It is the organisation with prime responsibility for implementation of the World Anti-Doping Code (the Code) in Australia.

ASADA believes in pure performance in sport. The 'Pure Performance in Sport' video has been produced to highlight to athletes, coaches, the families of athletes and everyone involved in sport what you can and can't do, how drug testing works and a lot more.

The Australian Sports Anti-Doping Authority (ASADA) is a government statutory authority that is Australia's driving force for pure performance in sport. It is the organisation with prime responsibility for implementation of the World Anti-Doping Code (the Code) in Australia.