• CAS 2020/A/7526 World Athletics v. Salwa Eid Naser
• CAS 2020/A/7559 World Anti-Doping Agency (WADA) v. World Athletics & Salwa Eid Naser
  
  
• CAS 2020/A/7526 World Athletics (WA) v. Salwa Eid Naser & CAS 2020/A/7559 World Anti-Doping Agency (WADA) v. WA & Salwa Eid Naser

Related case:

World Athletics 2020 WA vs Salwa Eid Naser
October 14, 2020

• Athletics (track and field)
• Doping (whereabouts failure)
• Reasonable attempt to locate an athlete for testing during the sixty minutes time slot
• Assessment of the DCO recollection of events
• Missed test presumed to have been caused by the athlete’s negligence unless the presumption is rebutted
• Personal responsibility of the athlete in case of delegation of
• Whereabouts Filings to a third party
• CAS scope of review and recharacterization of the charge against the athlete
• Second ADRV for sanctioning purpose
• Reduction of the ineligibility period
• Starting date of the ineligibility period
• Disqualification of the athlete’s results

1. According to the International Standard for Testing and Investigation (ISTI) and the WADA Guidelines, an athlete may only be declared to have committed a missed test where the Results Management Authority can establish that during the 60-minute time slot specified in his/her Whereabouts Filing at the location specified for that time slot, the Doping Control Officer (DCO) did what was reasonable in the “particular circumstances of the case”, in particular given the “nature of the location chosen by the Athlete”, to try to locate the athlete, short of giving the athlete any advance notice of the test. The evaluation of the reasonableness of a DCO’s attempt must be made looking objectively at the steps taken by the DCO in the specified location, in light of the information provided by the athlete and in connection with the athlete’s duty of diligence in filing Whereabouts Information that is accurate enough to allow DCOs to find them without any particular effort.

2. There is no presumption that a DCO’s recollection of events is correct unless proven otherwise. Rather, the hearing body must evaluate the probabilities in the particular circumstances of the case in hand.

3. Where a missed test has been established, the athlete has the burden to rebut the presumption that his/her negligence caused his/her failure to be available for testing. According to the ISTI, a “duty” or “care” is expected from an athlete with regard his/her whereabouts obligations which, include (i) a duty to provide and update sufficient and accurate Whereabouts Information for each day on a quarterly basis and (ii) a duty to specify, for each day, a specific location in which, for a sixty-minute timeslot, he/she would be present, available and accessible for unannounced testing. Considering that an athlete is ultimately responsible for the Whereabouts Information being updated, the failure to be available and accessible caused by the indication of a wrong address shall be deemed to be due to the athlete’s negligence.

4. Under the ISTI, an athlete who delegates Whereabouts Filings to a third party assumes all risks for any errors committed by the latter.

5. Under Article R57 of the CAS Code, a recharacterization of the charge would not exceed the limits of the CAS Scope of review. Furthermore, the principle jura novit curia entails that CAS panels can opt for a legal qualification of the conduct that is different from the one envisaged in the charge, as long as the interested parties’ right to be heard is respected. In this regard, since WADA has its first and only chance to present its case at the CAS appeal level, it must be allowed to fully exercise its appeal rights, which include a recharacterization of the charge(s), with the sole caveat that this should be based on the same set of facts discussed during the first instance proceedings. This is indeed essential to (i) secure the integrity of the system, (ii) secure a worldwide uniform application of the anti-doping rules and (iii) prevent ADOs and first instance hearing bodies, especially those at national level, to characterize charges in an incorrect way which could favour a given athlete.

6. Article 10.7.4(a) WA Anti-Doping Rules (ADR) “Multiple Violations” allows to determine under which circumstances an anti-doping rule violation (ADRV) can be treated for sanction purposes as a second ADRV, i.e. the athlete must have received notice of a first alleged ADRV before a second violation can be established. Thus, even if there are two distinct ADRVs, for the purpose of sanction they must be treated as one, if the condition precedent for treating them otherwise is not satisfied.

7. An athlete, that has shown an unacceptable degree of nonchalance and a worryingly lackadaisical approach to his/her whereabouts obligations under the ADR in all three Whereabouts Failures, thereby deserves no reduction of the ineligibility period and shall be sanctioned with the standard two-year ineligibility period.

8. With regard to the construction of Proviso c of Article 10.10.2 WA ADR providing for the possibility to backdate the starting date of the athlete’s suspension, it is a necessary, but not sufficient, condition precedent that there have been substantial delays in any aspects of doping control, including the hearing process, which are not attributable to the athlete. If the condition precedent is satisfied, backdating the period of ineligibility is an available but not a mandatory consequence. Whether and how such discretion is exercised by the adjudicating body depends axiomatically upon the circumstances of the particular case.

9. Under Article 10.8 WA ADR, the finding that an athlete has committed an ADRV under Article 2.4 WA ADR entails, as a rule, the disqualification of all the results

On 14 October 2020 the World Athletics Disciplinary Tribunal decided to dismiss the 2 charges against the Athlete Salwa Eid Naser for the reported Whereabouts Filing failures and Missed Tests within a 12 month period.

In first instance the Panel deemed that there was a Missed Test committed on 24 January 2020 but concluded that the Missed Test on 12 April 2019 could not be attributed to the Athlete. As a result the anti-doping rule violation (ADRV) has not been established for 3 Missed Tests to the comfortable satisfaction of the Panel. The January 2020 Missed Test still stands against the Athlete. 

Hereafter in November 2020 World Athletics (WA) and the World Anti-Doping Agency (WADA) appealed the Decision of 14 October 2020 with the Court of Arbitration for Sport (CAS).

Both WA and WADA requested the Panel to set aside the Appealed Decision, contending that the 12 April 2019 Missed Test should be confirmed and that thus the Athlete violated Article 2.4 ADR based either on the First Charge or on the Second Charge. As to the consequences for such violation,

WA and WADA contended that the Athlete shall be sanctioned with (i) the standard two-year period of ineligibility, which does not deserve reductions based on the Athlete's degree of fault and (ii) disqualification of her results since the date of the third Whereabouts Failure, 12 April 2019.

The Athlete, sought full confirmation of the Appealed Decision, asserting that on 12 April 2019 there was no Whereabouts Failure. Leaving aside the recharacterization as a Failing Failure, this alleged Whereabouts Failure is crucial to both the First Charge and the Second Charge as, without it, the Athlete would not incur three such failures within a twelve-month period and she could not be charged with any ADRV.

Alternatively, should the Panel find that Athlete did perpetrate an ADRV, the Athlete requested (i) that any imposed period of ineligibility be reduced, taking into account the circumstances of the case at hand, including the delays in the proceedings that led to the Notice of Charge and the Athlete's dyslexia and ADHD, and (ii) that her results be disqualified only from 4 October 2019.

The Panel finds that the 2 separate reported ADRVs against the Athlete must be considered as only one single ADRV for sanctioning purposes and that there are insufficient grounds for backdating the ineligibility period.

Further the Panel concludes that the Athlete, in all three Whereabouts Failures, has shown an unacceptable degree of nonchalance and a worryingly lackadaisical approach to her whereabouts obligations under the ADR, thereby deserving no reduction of her ineligibility period.

Therefore the Court of Arbitration for Sport decides on 30 June 2021 that:

1. The appeal filed by World Athletics on 12 November 2020 against Ms Salwa Eid Naser with respect to the decision issued by the World Athletics Disciplinary Tribunal on 14 October 2020 is partially upheld.
2. The appeal filed by the World Anti-Doping Agency on 30 November 2020 against World Athletics and Ms Salwa Eid Naser with respect to the decision issued by the World Athletics Disciplinary Tribunal on 14 October 2020 is partially upheld.
3. The decision rendered by the World Athletics Disciplinary Tribunal on 14 October 2020 in the matter of Ms Salwa Eid Naser is set aside.
4. Ms Salwa Eid Naser is sanctioned with a period of ineligibility of two years, commencing on the date of notification of this award, with credit given for the period of provisional suspension already served between 4 June 2020 and 14 October 2020.
5. All competitive results obtained by Ms Salwa Eid Naser from 25 November 2019 through to the date of notification of this award shall be disqualified, with all of the resulting consequences, including forfeiture of any medals, titles, ranking points and prize and appearance money.
6. The present award is pronounced without costs, except for the CAS Court Office fees of CHF 1,000 each, already paid by World Athletics and by the World Anti-Doping Agency, which are retained by the CAS.
7. Ms Salwa Eid Naser shall pay CHF 5,000 (five thousand Swiss francs) to World Athletics and CHF 5,000 (five thousand Swiss francs) to the World Anti-Doping Agency as contribution towards their costs incurred in connection with these arbitration proceedings.
8. All other or further motions or prayers for relief are dismissed.

CAS OG 20/12 Nazar Kovalenko v. World Athletics & Athletics Integrity Unit

Mr Nazar Kovalenko is a Ukrainian athlete competing in the 20 km race walk discipline. He served a 3 year period of ineligibility, resumed his sporting activitity in March 2020 and started his preparatons for the qualifications for the upcoming Olympic Games.

Previously the Athletics Integrity Unit (AIU) of World Athletics (WA) had placed the Ukrainian Athletic Federation (UAF) into the category A with the highest risk of doping. Consequently  their national team athletes had to undergo at least 3 out-of-competition doping tests in the 10 months before a World Championship or Olympic Games.

This case is about the question of whether the Athlete is eligible to participate as an athlete in the 20 km Race Walk at Tokyo 2020, although it is undisputed that the Athlete failed to meet the Mandatory Testing Requirements which are issued for all athletes belonging to Category A Federations under the WA AD Rule 15.5.1 c.

In this matter the Panel believes that three main questions are presented before it:

• Whether the ineligibility of the Athlete decided by the AIU for the failure to comply with AR Rule 15 is an unenforceable sanction;
• Whether the Athlete has, in practice, complied with the testing requirements and therefore his ineligibility would be a disproportionate, unfair and illegal measure taken against him;
• Whether the Athlete has demonstrated exceptional circumstances that would allow an exemption to the strict application of AD Rule 15.

The Panel finds that the AIU decision is not a sanction and that the imposition of ineligibility is not disproportionate for the failure of a Category A Member Federation to perform sufficient regular anti-doping tests. Further the Panel deems that there are no grounds to conclude that there are exceptional circumstances to allow an exemption.

Therefore on 3 August 2021 the CAS AD Hoc Division decides:

1. The application filed by Mr. Nazar Kovalenko on 1 August 2021 is rejected.

2. The Parties bear their own costs.

• CAS OG 20/06 World Athletics v. Alex Wilson, Swiss Anti-Doping & Swiss Olympic
• CAS OG 20/08 WADA v. Alex Wilson, Swiss Anti-Doping & Swiss Olympic
  
  
• CAS ad hoc Division (OG Tokyo) 20/006 & 20/008 World Athletics (WA) & World Anti-Doping Agency (WADA) v. Alex Wilson, Swiss Anti-Doping & Swiss Olympic

• Athletics (sprint)
• Doping (epitrenbolone)
• Jurisdiction ratione temporis of the CAS ad hoc Division
  Conditions to lift a mandatory provisional suspension

1. The CAS ad hoc Division only has jurisdiction to deal with disputes which arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony. In general, the date when a dispute arises is the date of the decision with which the applicant disagrees. However, such a date can arise later, in some cases, if, for example, it is necessary for the applicant to wait until the full case file and necessary documentation is received in order to enable it to determine whether there is a dispute concerning the decision.

2. Pursuant to Article 7.4.1 of the World Anti-Doping Code (WADC), a mandatory provisional suspension may be eliminated if the athlete demonstrates to the hearing panel that the anti-doping rule violation (ADRV) is likely to have involved a contaminated product. Article 7.4.1 of the Swiss Anti-Doping Rules (Swiss ADR) reflecting the WADC provides that the mandatory provisional suspension can only be lifted if the athlete demonstrates that it was probable that the ADRV was caused by a contaminated product. Thus, the test for the hearing panel is not only whether the positive finding could have been caused by a contaminated product. The two tests are not the same and that they impose very different burdens on the athlete and necessitate very different analyses of the evidence.

In April 2021 Antidoping Switzerland reported an anti-doping rule violation against the Swiss Athlete Alex Wilson after his A and B samples tested positive for the prohibited substance Trenbolone.

After notification a provisional suspension was ordered which was callenged by the Athlete in May 2021. The Athlete requested the Disciplinary Chamber of Swiss Olympic to lift the provisional suspension in order to participate in the outdoor season and the Tokyo Olympic Games.

The Athlete argued that the source of the positive test was  contaminated meat he had ingested in a restaurant in Las Vegas, USA, in March 2021. On 2 July 2021 the Disciplinary Chamber of Swiss Olympic decided to lift the provisional suspension imposed on the Athlete.

Hereafter on 22 and 24 July 2021 both World Athletics and WADA appealed the decision of the Disciplinary Chamber with the CAS Ad Hoc Division. They requested the Panel to set aside the Appealed Decision and for the imposition of the provisional suspension with immediate effect.

The Athlete raised a number of challenges to jurisdiction of the CAS Ad Hoc Division. However the Panel deems that it has jurisdiction to hear the filed applications and that they are admissible.

Based on the evidence the Panel concludes that the Athlete has not satisfied it that, on the balance of probabilities, it is likely or probable that the Trenbolone came from contaminated meat in the circumstances presently described by the Athlete.

The Panel finds that the evidence available so far clearly shows that the provisional suspension imposed on the Athlete should not have been lifted by the Disciplinary Chamber. It follows that the decision of the Disciplinary Chamber of 2 July 2021 should not be reinstated and, thus, the mandatory provisional suspension shall be reinstated with immediate effect.

Therefore the CAS Ad Hoc Panel decides on 27 July 2021:

1. The Ad Hoc Division of the Court of Arbitration for Sport has jurisdiction to entertain the Application filed by World Athletics on 22 July 2021 and by WADA on 24 July 2021.
2. The applications filed by World Athletics and by WADA on 22 and, respectively, 24 July 2021 are upheld.
3. The Decision rendered on 2 July 2021 by the Disciplinary Chamber of Swiss Olympic is set aside.
4. The provisional suspension imposed on Mr Alex Wilson by Antidoping Switzerland on 28 April 2021 shall be reinstated with immediate effect.
5. Each Party shall bear its own legal costs and other expenses incurred by this procedure.

CAS OG 20/04 Maxim Agapitov v. International Olympic Committee

Mr. Maxim Agapitov is a retired weightlifter and currently the acting President of the European Weightlifting Federation and President of the Russian Weightlifting Federation. As an Athlete he was sanctioned in 1994 for committing an anti-doping rule violation, 27 years ago.

After recent revelations on widespread doping practices at the International Weightlifiting Federation (IWF) the IOC rendered in June 2021 conditions for the accreditation for IWF officials for the Tokyo 2020 Olympic Games.

In July 2021 the IOC decided to withdraw the accreditation for the Tokyo 2020 Olympic Games due to Mr. Agapitov did not meet the criteria for IWF officials as he had “a personal history linked to any anti-doping rule violation and/or sanction”.

Hereafter on 21 July 2021 Mr. Agapitov filed an application with the CAS Ad Hoc Division against the IOC with respect to the withdrawal of his accreditation for the Tokyo 2020 Olympic Games.

Mr. Agapitov requested the Panel to set aside the IOC Decision regarding the withdrawal of his accreditation, to approve his participation and to reinstate his accreditation for the Tokyo 2020 Olympic Games.

The IOC argued that there there were 3 grounds for the withdrawal of Mr. Agapitov's accreditation:

• his 1994 anti-doping rule violation;
• the presence of his name in the IWF independent investigation report drafted by Professor Richard McLaren;
• the official functions of Mr. Agapitov within weightlifting federations at the Russian or European level.

The CAS ad Hoc Panel finds that the Mr. Agapitov's application is admissble, that it has jurisdiction of the present dispute whereas it shall review this matter de novo.

The Panel assessed the IOC criteria in question and concludes that the absence of any limitation in time with respect to the expression of “a personal history linked to any anti-doping rule violation and/or sanction”, 27 years is far beyond the time that could be reasonably considered as being part of a “personal history” likely to adversely affect the reputation of the sport of weightlifting at the Tokyo 2020 Olympic Games.

Furthermore, the Panel finds that the 1994 violation was committed by Mr. Agapitov during his athlete’s life while he is now exercising new functions as a sports official.

Finally, the Panel deems that Mr. Agapitov’s 1994 violation is not even relevant or related to the IWF’s governance problems and its officials’ reprehensible conducts towards doping, which have generated the issuance of the IOC’s criteria.

Quite to the contrary, Prof. McLaren, certainly the best positioned person to make any finding in this respect, has convincingly testified that Mr. Agapitov had an affirmative approach in fighting against doping and in restructuring the governance of the IWF.

As such, in the opinion of the Panel, the withdrawal of Mr. Agapitov's accreditation does not actually serve the purpose pursued by the IOC and could even be perceived as counterproductive in that respect.

Therefore the CAS Ad Hoc Panel decides on 24 July 2021:

1. The application filed by Mr Maxim Agapitov 21 July 2021 is admissible and upheld.
2. The decision of the IOC to withdraw the accreditation of Mr. Maxim Agapitov is set aside.
3. The accreditation delivered to Mr. Maxim Agapitov in June 2021 for the Games of the XXXII Olympiad in Tokyo shall be reinstated in full.

CAS 2019/A/6148 World Anti-Doping Agency v. Mr Sun Yang & Fédération Internationale de Natation (FINA)

Related cases:

• CAS 2019_A_6148 WADA vs Sun Yang & FINA - Annulled Award
  February 28, 2020
• FINA 2019 FINA vs Sun Yang
  January 3, 2019
• Swiss Federal Court 4A_287_2019 Sun Yang vs WADA & FINA
  January 6, 2020
• Swiss Federal Court 4A_413_2019 Sun Yang vs WADA & FINA
  October 28, 2019
• Swiss Federal Court 4A_318-2020 Sun Yang vs WADA & FINA
  December 22, 2020
• Swiss Federal Court 4A_406-2021 Sun Yang vs WADA & FINA
  February 14, 2021

On the evening of 4 September 2018, an attempt was made to collect blood and urine samples from the Athlete Sun Yang at the Athlete’s residence compound. This was an out-of-competition (OOC) sample collection mission. The mission was authorized by FINA as the Testing Authority. FINA has Results Management Authority. However, International Doping Tests and Management (IDTM) was the Sample Collection Authority. IDTM attempted to collect blood and urine from the Athlete during the Athlete’s previously selected ‘60-minute’ time slot from 10 p.m. to 11 p.m. on September 4, 2018.

No blood or urine samples were ever analysed as a result of the OOC mission conducted by IDTM. Blood was collected but the blood container was destroyed and the collected blood was never sent to the relevant WADA accredited laboratory. The blood remains in the possession of the Athlete’s doctor. No urine sample was provided by the Athlete. It is safe to describe the entire OOC mission as problematic, highly unusual and, at times, confrontational. Both FINA and the Athlete offer vastly different explanations regarding what happened, why the evening unfolded as it did and, critically, what consequences must result.

Consequently on 28 February 2020 the Court of Arbitration for Sport (CAS) decided to impose an 8 year period of ineligibility on the Athlete Sun Yang for committing a second anti-doping rule violation.

The CAS Panel concluded that the Athlete failed to establish that he had a compelling justification to act as he did and forego the Doping Control and accordingly that the Athlete committed a tampering violation under Article 2.5 FINA DC.

Hereafter the Athlete appealed the CAS Award with the Swiss Federal Court. One of the Athlete's grievances was based on evidence of bias on the part of the presiding arbitrator by reasons of prior comments the presiding arbitrator had made on social media. The arbitrator in question spontaneously resigned shortly. The two remaining arbitrators on the CAS Panel also withdrew and on 22 December 2020 the CAS Award was annulled. A new second CAS Panel was arranged with an all new membership, charged with rehearing this case.

At first the Panel establishes that it has jurisdiction in this Appeal, that it was filed by an authorized representative and that it is admissible.

The Athlete and FINA asserted that the attempted sample collection on 4–5 September 2018 violated numerous provisions of the ISTI, violated the Athlete’s fundamental human rights, and were therefore null and void. These defects fully justified the Athlete to refuse to submit to a defective and unjust process.

WADA contended that the attempted sample collection on 4–5 September 2018 complied with all relevant provisions of the ISTI. Upon meeting the Athlete, the DCO notified the Athlete by showing a Letter of Authority from FINA, as well as a copy of her IDTM Doping Control Officer card. Although they were not required to do so under the ISTI, the DCA and BCA also showed valid identification documents. The DCO’s documents sufficed, in WADA’s view, to establish that the Sample Collection Personnel, under her leadership, was duly authorized and credentialed. The Athlete’s refusal to be tested despite having been properly notified by the DCO placed him in violation of Articles 2.3 and 2.5 of the FINA DC.

Considering the facts of what happened on 4-5 September 2018 at the Athlete’s residence compound the Panel assesses that the Athlete was told numerous times the samples had to leave with the DCO. He refused this. A last-ditch bid at persuading the Athlete’s entourage, perhaps ill-advised, ended in a sample’s destruction. The DCO multiple times tried to notify the Athlete of the potential consequences that this could entail. At the very least, these facts should have created questions in the Athlete’s mind whether his chosen course of action was correct.

As a result the Panel is comfortably satisfied that the Athlete tampered with any Part of Doping Control, at latest beginning with his refusal to allow the blood samples to leave with the Sample Collection Personnel. The Panel is also comfortably satisfied that the Athlete refused and failed to submit to sample collection.

The Panel regards that this is the Athlete's second offense and that under the 2021 FINA Rules and 2021 WADC a greater degree of mitigation is possible in determining the period of ineligibility for the Athlete's anti-doping rule violations.

The Panel deems that the circumstances surrounding the Sample Collection of 4-5 September 2018 merit a period of ineligiblility at the lower end of the range starting on the date of the Annulled Decision, i.e. on 28 February 2020.

Therefore the Court of Arbitration for Sport decides on 6 July 2021 that:

1. The Court of Arbitration for Sport has jurisdiction to hear the present dispute.

2. The appeal filed on 14 February 2019 by the World Anti-Doping Agency against the decision issued on 3 January 2019 by the Doping Panel of the Fédération Internationale de Natation is admissible and is partially upheld.

3. The decision issued on 3 January 2019 by the Doping Panel of the Fédération Internationale de Natation is set aside.

4. Mr. Sun Yang is sanctioned with a period of ineligibility of 4 (four) years and 3 (three) months, beginning on 28 February 2020.

5. (…).

6. (…).

7. All other and further motions or prayers for relief are dismissed.

CAS 2020/A/7536 Ashley Kratzer v. International Tennis Federation (ITF)

Related case:

ITF 2020 ITF vs Ashley Kratzer
October 28, 2020

• Tennis
• Doping (GHRP-6)
• Duty of particular care of an athlete when applying medications
• Distinction between “reckless” and “oblivious” conduct
  
  

1. It is well-known in the world of sport that particular care is required from an athlete when applying or administering substances for therapeutic purposes, because the danger of a prohibited substance entering the athlete’s system is particularly high in such context, i.e. significant.

2. In order to qualify a behavior as “intentional” the person concerned must have accepted or consented to the realization of the offence or at least accepted it for the sake of the desired goal. On the other hand, a conduct is negligent or oblivious only, if the offender does not agree with the occurrence of the offence that is recognized as possible and, in addition, credibly – not only vaguely – trusts that the offence will not materialize. Thus, in order to separate negligence from (indirect) intent one must – in particular – look at this voluntative element. Of course, such element is difficult to determine ex post. However, as a general rule one may say that the more remote the realization of the offence is in the offender’s mind, the less he or she may be deemed to have accepted it and, thus, to have acted intentionally within the above meaning. Whether a certain behavior is “reckless” or only “oblivious” must be decided based on all relevant circumstances. Both types of behaviors are only separated by a very thin line.

On 28 October 2020 the ITF Independent Tribunal decided to impose a 4 year period of ineligibility on the American tennis player Ashley Kratzer after she tested positive for the prohibited substance GHRP-6.

In First Instance the Athlete demonstrated that she suffered from a longstanding, severe blistering problem on her heels, toes and sides of her feet. During her stay in China in April 2019 and thereafter she had used an effective Cream provided in an unlabelled bottle. Analysis of this Cream revealed that it contained a significant amount of GHRP-6.

Although the Tribunal accepted that the Athlete had not deliberately used the prohibited substance it deemed that she engaged in conduct knowing that there was a significant risk that it might result in an anti-doping rule violation and that she manifestly disregarded that risk.

Hereafter in November 2020 the Athlete appealed the ITF Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Sole Arbitrator Panel to set aside the ITF Decision of 28 October and for the imposition of a reduced sanction.

Undisputed between the Parties are the positive test results for GHRP-6 and that the Athlete had committed an anti-doping rule violation. What is contested between the Parties is the appropriate period of ineligibility as a consequence of this anti-doping rule violation.

The Athlete denied that she intentionally tried to cheat or that she knew that the Cream contained a prohibited substance while it only was used as medical treatment for her severe blistering problems. She asserted that did not know that there was a risk of an anti-doping rule violation and consequently that she manifestly had disregarded such risk.

The Sole Arbitrator concludes that it is more likely than not that the Athlete recognized her conduct to be akin to self-medication and that she knew that there was a significant doping risk when applying or administering substances for therapeutic purposes.

Considering the circumstances in this case the Sole Arbitrator finds that during her stay in China in April 2019 the Athlete did not act intentionally or recklessly. However in view of her conduct in the months after she had returned from China the Sole Arbitrator deems that she indeed acted intentionally.

Therefore the Court of Arbitration for Sport decides on 15 June 2021 that:

1. The appeal filed by Ms Ashley Kratzer on 18 November 2020 against the International Tennis Federation with respect to the decision rendered by the Independent Tribunal on 28 October 2020 is dismissed.

2. All results obtained by Ms. Ashley Kratzer from 28 March 2020 are disqualified, with all resulting consequences, including forfeiture of any titles, ranking points, and prize money obtained at the Oracle Challengers Tournament in Newport Beach, California, USA.

3. The Award is pronounced without costs with the exception of the Court Office fee, already paid by Ms Ashley and which is retained by CAS.

4. Ms. Ashley Kratzer is ordered to pay the International Tennis Federation a total amount of CHF 4,000 (four thousand Swiss francs) as contribution towards the expenses incurred in connection with these arbitration proceedings.

5. All other motions or prayers for relief are dismissed.

• CAS 2020/A/6695 Nicole Walker v. PANAM Sports
• CAS 2020/A/6700 Equestrian Canada v. PANAM Sports
• CAS 2020/A/7386 PANAM Sports v. Nicole Walker and Equestrian Canada

Related case:

FEI 2019 FEI vs Nicole Walker
June 4, 2021

In August 2019 the Pan American Sports Organization (PASO) reported an anti-doping rule violation against the Canadian Athlete Nicole Walker after her A and B samples tested positive for the prohibited substance Cocaine.

On 11 December 2019 the Panam Sports Disciplinairy Commission decided to disqualify the Athlete and her results. Consequently under the PANAM Rules Team Canada's 4th place result in the Team Competition was also disqualified.

Hereafter in January 2020 the Athlete and Equestrian Canada appealed the PANAM Sports Decision with the Court of Arbitration for Sport (CAS). PANAM Sports filed a Cross-Appeal in March 2020. Each of the appeals was heard together and all are dealt with collectively in this one single award.

In these appeals also the Canadian Olympic Committee (COC), the International Equestrian Federation (FEI), the Argentinian Equestrian Federation (FEA) and the Argentinian Olympic Committee (COArg) particpated and filed their positions in this matter.

The Athlete requested the Panel to set aside the PANAM Sports Decision and to reinstate her results obtained at the PANAM Games. Equestrian Canada appealed only in relation to the issue of the substraction of the Athlete's scores from Team Canada's results. It adopted, in writing and orally, all arguments and submissions made on behalf of the Athlete.

The Athlete demonstrated with corroborating evidence that the positive test was the result of her ingestion of tea at the hotel where she stayed at the occasion of the Pan American Games. She was not aware at that time that the green tea she took was in fact coca tea.

The Athlete did not challenge the disqualification of her individual results obtained on 7 and 9 August 2019 but did challenge the disqualification of her results she had obtained on 6 and 7 August 2019 for the team competition which consequently resulted in disqualification of Team Canada's 4th place result.

PANAM Sports contended that the Athlete had failed to establish that the anti-doping rule violation was the result from the consumption of tea containing Cocaine at the relevant time. Further PANAM Sports asserted that under the PANAM Rules it was clearly mandated to automatically disqualify the results of the Athlete and Team Canada because of the Athletes anti-doping rule violation.

Considering the evidence in this case the Panel:

• (a) Accepts that the Athlete did not intentionally ingest Cocaine at any relevant time on or prior to 7 August 2019;
• (b) Accepts that there was no unintentional ingestion of cocaine by the Athlete at any relevant time prior to 7 August 2019;
• (c) Finds that the AAF was the result, and only the result of, the unintentional ingestion of cocaine by the Athlete on the morning of 7 August 2019 as a result of her using a teabag containing cocaine which she took from the breakfast service area of the Los Incas Lima Hotel.

The Panel deems that PANAM Sports was mandated under the Rules to disqualify the results of Team Canada obtained on 7 August 2019. However the Panel finds that there is no basis for the automatic disqualification of the Athlete's results obtained on 6 August 2019.

Therefore the Court of Arbitration for Sport decides on 22 April 2021 (Operative Part 12 January 2021) that:

1. The appeals filed by Ms Nicole Walker and Equestrian Canada on 2 January 2020 against PANAM Sports with respect to the decision rendered by the PANAM Sports Disciplinary Commission on 11 December 2019 are dismissed.

2. The appeal filed by PANAM Sports on 14 March 2020 against Ms Nicole Walker and Equestrian Canada with respect to the decision rendered by the PANAM Sports Disciplinary Commission on 11 December 2019 is partially upheld.

3. The results for Team Canada in the jumping competition at the 2019 Pan Am Games are disqualified, which includes forfeiture of any medals, points and prizes.

4. The costs of the arbitration to be determined and served separately to the Parties by the CAS Court Office shall be borne by ¼ by Ms Nicole Walker, ¼ by Equestrian Canada and ½ by PANAM Sports.

5. Each Party shall bear its own costs and expenses incurred in connection with these arbitration proceedings.

6. The amici curiae, Canadian Olympic Committee (COC), Federation Internationale Equestre (FEI), the Argentinian Equestrian Federation (FEA) and the Argentinian Olympic Committee (COARG), shall each bear their own costs and expenses incurred in connection with these proceedings.

7. All other motions or prayers for relief are dismissed.

The Athlete's anti-doping rule violation was referred to FEI in November 2019. Both the Athlete and FEI agreed that the violation was not intentional and that the Athlete bears No Significant Fault or Negligence with a light degree of Fault or Negligence. The Athlete accepted the proposed FEI sanction and agreed to fulfil the Education Requirement within 1 year.

Therefore the FEI Tribunal decides on 4 June 2021 in accordance with the mutual consent of the Parties to impose a fine and a 1 year period of ineligibility on the Athlete starting on 26 September 2019.

CAS 2018/A/5796 Ahmed Abdelhak v. International Handball Federation (IHF)

• Handball
• Doping (19-norandrosterone; 19-noretiocholanolone)
• Burden of proof for absence of intent in case of non-specified substance
• Intent
• Burden of proof for source of prohibited substance

1. In case of an adverse analytical finding (AAF) in an athlete’s sample of a prohibited substance not classified as a “Specified Substance” by the 2017 WADA Prohibited List (e.g. nandrolone and its metabolites), the athlete does not have the benefit of the doubt when it comes to whether or not his/her anti-doping rule violation (ADRV) was intentional in nature. Consequentially, the athlete must establish that s/he did not commit the ADRV intentionally; the standard of proof applicable to the athlete’s discharge of his/her burden in this respect is a balance of probability.

2. The requirement of ‘intent’ is satisfied by a situation in which there was a significant risk that an athlete’s conduct might constitute or result in an anti-doping rule violation and the athlete manifestly disregarded that risk.

3. In order to establish the source of the prohibited substance it is not sufficient for the athlete to protest innocence and to suggest that the substance must have entered his/her body inadvertently from some contaminated food or water. Rather, the athlete must adduce concrete, actual and credible evidence to prove the origin of a prohibited substance. While the CAS has on occasion held that it may be possible to disprove intent without proving the manner in which the substance entered an athlete’s body, it has also stressed that this would likely occur only in the rarest of cases. Furthermore, to accept mere speculation that the substance is present as a result of hypothetical contamination would be to lower the bar well below the threshold of the athlete’s duty to ensure that no prohibited substances enter his/her body.

On 13 April 2018 the Anti-Doping Disciplinary Panel of the International Handball Federation (IHF) decided to impose a 4 year period of ineligibility on the Qatari handballer Ahmed Abdelhak after he tested positive for the prohibited substance 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

Hereafter in May 2018 the Athlete appealed the IHF decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the IHF decision and to impose a reduced sanction.

The Athlete accepted the test results and denied the intentional use of the substances. He claimed that the ingestion of a contaminated product had caused the positive test and he acknowleged a certain level of negligence due to his lack of anti-doping education.

The IHF contended that the Athlete had committed an anti-doping rule violation and failed to establish how the prohibited substance had entered his system, nor that the violation was not intentional. He also failed to demonstrate that he acted without significant fault or negligence.

Considering the evidence in this case the Sole Arbitrator concludes that the Athlete has been unable to prove that the prohibited substance entered his system entirely unintentionally, or otherwise prove lack of intent.

Therefore the Court of Arbitration for Sport decides on 27 December 2018 that:

1.) The appeal filed by Ahmed Abdelhak on 3 May 2018 is dismissed.
2.) The decision of the International Handball Federation Anti-Doping Disciplinary Panel dated 13 April 2018 and suspending Ahmed Abdelhak for a period of ineligibility of four years, expiring at midnight on 23 January 2021, is confirmed.
(…)
5.) All other or further motions or prayers for relief are dismissed.