9 Jul 2020
CAS 2019/A/6443 Canadian Centre for Ethics in Sport (CCES) v. Dominika Jamnicky
CAS 2019/A/6593 Dominika Jamnicky v. Canadian Centre for Ethics in Sport (CCES)
SDRCC 2018 CCES vs Dominika Jamnicky & Triathlon Canada - Final Award
August 16, 2019
SDRCC 2018 CCES vs Dominika Jamnicky & Triathlon Canada - Partial Award
May 31, 2019
In May 2018 the Canadian Centre for Ethics in Sport (CCES) has reported an anti-doping rule violation against the Triathlon Athlete Dominika Jamnicky after her sample tested positive for the prohibited substance Clostebol allegedly as a result of her use of a contaminated product.
In two Awards rendered by the SDRCC Doping Tribunal on 31 May 2019 and on 16 August 2019 the Arbitrator deemed that the Athlete failed to establish the source of the anti-doping rule violation. However she established that the violation was not intentional and although she committed an anti-doping rule violation only a reprimand was imposed on the Athlete.
Hereafter in September 2019 the CCES and the Athlete in October 2019 appealed the SDRCC decision of 16 August 2019 with the Court of Arbitration for Sport (CAS).
The CCES requested the Panel to set aside the SDRCC decision and to impose a 2 year period of ineligibility on the Athlete. It did not dispute that the violation was not intentional but contended that there were no grounds to impose a reduced sanction based on the principle of proportionality.
CCES regarded that the Athlete’s evidence in support of her Meat Contamination theory clearly was insufficient to meet te required standard of proof. It regarded it extremely unlikely that the positive test was the result of contaminated meat in Australia or Canada. She failed to investigate her theory of meat contamination nor did she identify all possible sources of Clostebol.
The Athlete requested the Panel to dismiss the CCES appeal and to set aside the SDRCC Decision of 6 August 2019. She asserted that the source of the positive test was contamined meat; she bears No Fault; alternative she bears No Significant Fault; or the imposition of a reprimand should be confirmed. She testified that she was in Australia and in Canada in April 2018 and there she had consumed a numer of animal food products that possible illegally was treated with Clostebol.
Supported by expert witnesses and with circumstancial evidence the Athlete demonstrated that Clostebol is a well-known and effective growth promoter for animal food products while the monitoring authorities for domestic and imported livestock products in both Australia and Canada do not test for Clostebol, creating incentives for producers who might wish to enhance production without fear of being caught.
She excluded the possibility of supplement contamination since she was tested before without issues and she handled and checked with utmost care her supplements before using.
The Panel considers that the Athlete had accepted the test result and that the CCES had accepted that the violation was not intentional. After having more closely examined the entirety of the evidence in respect of the Meat Contamination, and when combined with other inferences made, the Panel is unanimously of the view that the Meat Contamination is the only reasonably possible and credible explanation for the Athlete’s positive test and is more likely than not to have occurred.
In reaching this conclusion the Panel deems that it applied the rules and standards that govern triers of fact in assessing circumstantial evidence. In weighing both the inferences to be drawn and the weight of all of the inferences when balanced together, it is satisfied that their conclusion meets the standard of being logical "in light of human experience and common sense".
The Panel holds that the Athlete has established on a balance of probability how Clostebol entered her system, that she bears No Fault in relation to her anti-doping rule violation and that the otherwise applicable 2 year sanction is eliminated.
Therefore the Court of Arbitration for Sport decides on 9 July 2020 that:
1.) The (a) appeal filed by the Canadian Centre for Ethics in Sport against Ms. Dominika Jamnicky and (b) cross-appeal filed by Ms. Dominika Jamnicky against the Canadian Centre for Ethics in Sport concerning the decision rendered by the doping tribunal of the Sport Dispute Resolution Centre of Canada on 16 August 2019 are partially upheld.
2.) The decision dated 16 August 2019 by the doping tribunal constituted and administered by the Sport Dispute Resolution Centre of Canada on 16 August 2019 is set aside.
3.) Ms. Dominika Jamnicky is found to have committed an Anti-Doping Rule Violation but bears no fault or negligence and no period of ineligibility shall be imposed on her.
4.) All other prayers for relief in the Appeal and the Cross-Appeal are denied.