CAS upphäver avstängningen av brasilianska fotbollsspelaren Gabriel Barbosa

CAS 2024/A/10443 Paul Pogba v. NADO Italia ARBITRAL AWARD delivered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: President: Arbitrators: Paul Pogba, France Dr Hans Nater, Attorney-at-Law in Zurich, Switzerland Mr Jeffrey G. Benz, Attorney-at-Law and Barrister in London, UK, and Los Angeles, USA Prof. Dr Martin Schimke, Attorney-at-Law in Düsseldorf, Germany in the arbitration between Represented by: Mr Mike Morgan, Mr Tom Seamer, Morgan Sports Law, 3 More London Riverside, SE1 2RE London, United Kingdom and NADO Italia, Rome, Italy Procura Nazionale Antidoping, Viale dei Gladiatori, 2, 00135 Roma, Italy Appellant Represented by Mr Pierfilippo Laviani, Chief Prosecutor, Procura Nazionale Anti Doping, Rome, Italy Respondent CAS 2024/A/10443 Paul Pogba v. NADO Italia – Page 2 I. 1. 2. 3. II. 4. III. 5. 6. 7. 8. 9. PARTIES Paul Pogba (the “Athlete” or the “Appellant”) is a French professional Football player domiciled in Italy. He is currently under contract to play professional football for Juventus. The Italian Anti-Doping Organization (“NADO” or the “Respondent”) is the national anti-doping organization of Italy, recognised as such by the World Anti-Doping Agency (“WADA”) in accordance with the World Anti-Doping Code (“WADA-Code”), acting through its Anti-Doping Prosecution Office (“NADP”). The Appellant and the Respondent will be jointly referred to as the “Parties”. NATURE OF THE CASE The issues under consideration in the present arbitration concern the consequences of an Anti-Doping Rule Violation (“ADRV”) for the presence of prohibited substances (which presence is undisputed by the Athlete), in particular the issue of whether the decision of the Italian National Anti-Doping Tribunal (“TNA”), which imposed a sanction of disqualification for four years, should be set aside and the period of ineligibility imposed on the Athlete be reduced to a maximum reduction of 12 months. BACKGROUND FACTS Below is a summary of the relevant facts and allegations based on the Parties’ written and oral submissions, pleadings and evidence adduced. Additional facts and allegations found in the Parties’ submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows in this Award. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in its Award only to the arguments and evidence it considers necessary to explain its reasoning. On 20 August 2023, the Appellant played the “Serie A Championship, First Day, Udinese-Juventus-match”. At the end of the Udinese-Juventus-match played on 20 August 2023, the Appellant provided an in-compretition urine-sample, which was assigned the reference code 1137277. The test report, provided to the NADP (the “PNA”) showed that the urine sample was positive for the presence of non-endogenous testosterone metabolytes, a non-specified substance included in the WADA 2023 Prohibited List, category S1.1 anabolic androgenic steroids, which is prohibited both in and out of competition. By letter of 6 October 2023, the Appellant was notified of his B-sample analytical result, which confirmed the result of the A-Sample. CAS 2024/A/10443 Paul Pogba v. NADO Italia – Page 3 10. 11. IV. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. By letter of 9 November 2023, the Appellant accepted the Adverse Analytical Finding (the “AAF”) and admitted that he had committed an ADRV. By letter of 16 November 2023, the Respondent charged the Appellant with the commission of an ADRV under Articles 2.1 and 2.2 of the Anti-Doping Sports Code (the “ADSC”). THE PROCEEDINGS BEFORE THE ITALIAN NATIONAL ANTI-DOPING TRIBUNAL On 11 September 2023, the PNA notified the Athlete of the Adverse Analytical Finding, accusing him of “infringement of Arts. 2.1 and 2.2 of the Anti-Doping Sports Code (ADSC), for the presence of Testosterone Metabolites of non-endogenous origin, a substance included in the WADA List category S1.1 <> ascertained at the outcome of the check during the competition, ordered by NADO Italia at the end of the football competition <

CAS 2024/A/10891 Leandro Visotto Neves v. Fédération Internationale de Volleyball (FIVB) ARBITRAL AWARD rendered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: President: Arbitrators: Mr Jacques Radoux, Référendaire, Court of Justice of the European Union, Luxembourg Mr Jeffrey G. Benz, Attorney-at-Law and Barrister, London, United Kingdom Mr Ken E. Lalo, Attorney-at-Law, Gan-Yoshiyya, Israel in the arbitration between Leandro Visotto Neves, Brazil Represented by Mr Marcelo Franklin, Attorney-at-Law, Franklin Advogados Associados, Rio de Janeiro, Brazil And Fédération Internationale de Volleyball (FIVB), Lausanne, Switzerland - Appellant - Represented by Mr David Menz and Mr Vishakh Ranjit, Attorneys-at-Law, Martens Rechtsanwälte, Munich, Germany - Respondent – Palais de Beaulieu Av. Bergières 10 CH-1004 Lausanne Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 www.tas-cas.org CAS 2024/A/10891 – Page 2 I. 1. 2. 3. II. 4. 5. 6. 7. 8. 9. PARTIES Mr Leandro Visotto Neves (the “Athlete” or the “Appellant”), born on 30 April 1983, is a former professional volleyball player of Brazilian nationality. The Athlete was an active volleyball player at the time of collection of his sample, the analysis of which provides the basis of these proceedings. The Fédération Internationale de Volleyball (the “FIVB” or the “Respondent”) is the international federation governing the sport of volleyball worldwide. It has its registered seat in Lausanne, Switzerland, and is a signatory of the World Anti-Doping Code (the “WADC”), in compliance with which it has, inter alia, adopted a set of rules, namely the FIVB Medical & Anti-Doping Regulations (the “MADR”). The Appellant and the Respondent are collectively referred to as the “Parties”. FACTUAL BACKGROUND AND FIRST INSTANCE PROCEEDINGS Below is a summary of the relevant facts and allegations based on the Parties’ written submissions, pleadings and evidence adduced in this procedure. Additional facts and allegations found in the Parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties, it refers in this Award only to the submissions and evidence it considers necessary to explain its reasoning. On 9 December 2022, during the FIVB Volleyball Men’s Club World Championship 2022, the Athlete was subject to an in-competition doping control. The Athlete’s sample (the “Sample”) was analyzed by the World Anti-Doping Agency (“WADA”) accredited laboratory in Cologne, Germany (the “Laboratory”). The analysis revealed the presence of Clomifene. Clomifene was, and still is, listed as a Prohibited Substance under the WADA Prohibited List (S4.2 – Anti-Estrogenic Substances [Anti-Estrogens and Selective Estrogen Receptor Modulators (SERMS)]) and is considered as Specified Substance. On 24 January 2023, the FIVB notified (the “Notification Letter”) the Athlete of the fact that his Sample had revealed an Adverse Analytical Finding (“AAF”) for Clomifene, informed him that he could request the B-Sample opening and analysis according to Article 5.1.2.1 lit. c) and d) of the MADR, and invited him to provide his explanations within fourteen (14) days of the receipt of the Notification Letter. On 3 February 2023, the Athlete requested an extension of the deadlines, inter alia, to request the opening of the B-Sample and production of the laboratory documentation package and to provide an explanation for the AAF. The Athlete also requested to be informed of the estimated concentration of Clomifene found in the A-Sample and whether metabolites of Clomifene were detected. On 6 February 2023, the FIVB informed the Athlete that the Laboratory “confirmed a roughly estimated concentration of comiphene of 1.8 ng/ml. Additionally, hydroxy CAS 2024/A/10891 – Page 3 comiphene (metabolite) was also detected but not confirmed”, refused to grant an extension of the deadline to request the opening and analysis of the B-Sample, and agreed to grant an extension of seven (7) days of the deadline for the Athlete to submit his explanations. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. On 7 February 2023, the Athlete requested the opening of the B-Sample and the communication of the documentation package of the A-Sample. On 14 February 2023, the Athlete provided FIVB with his preliminary explanations to the Notification Letter (the “Preliminary Explanations”) in which, inter alia, he explained that his AAF was probably caused by a contamination from medication used by his wife. Further, in case the B-Sample would confirm the AAF of the A-Sample, he requested a fair hearing. On 20 February 2023, after several email exchanges between the Athlete and the FIVB, the date for the opening of the B-Sample was set to 25 April 2023. On 24 February 2023, the Athlete informed the FIVB that he would not be able to attend the opening of the B-Sample personally and that he would not be represented either. On 27 February 2023, in the response to the Preliminary Explanations provide by the Athlete, the FIVB requested some further clarifications and invited the Athlete to provide any proof of the information he would give in his answer. On 13 March 2023, the Athlete provided the requested clarifications (the “Additional Explanations 1”) to the FIVB. On 31 March 2023, the FIVB asked the Athlete to provide some more clarification regarding supplements that he declared having taken at the time of his anti-doping control. On 13 April 2023, the Athlete provided the clarifications requested by the FIVB (the “Additional Explanations 2”). On 25 April 2023, the B-Sample was opened by the Laboratory. The analysis of the B Sample confirmed the results of the A-Sample analysis. On 4 May 2023, the FIVB informed the Athlete of the results of the B-Sample analysis. Between 5 May 2023 and 26 July 2023, the Parties discussed a potential amicable settlement of the present matter by acceptance of sanctions. On 26 July 2023, the Athlete informed the FIVB that he was not willing to agree to the proposed sanction and asked for the procedure to continue. On 19 September 2023, the FIVB issued a Letter of Charge (the “Letter of Charge”) reproaching the Athlete to have committed an Anti-Doping Rule Violation (“ADRV”) to Articles 2.1 and 2.2. of the MADR. On 3 October 2023, the Athlete submitted his response to the Letter of Charge. CAS 2024/A/10891 – Page 4 24. 25. 26. 27. 28. III. 29. On 23 November 2023, the case was referred to the FIVB Disciplinary Panel (the “FIVB DP”). On 19 December 2023, the Parties were notified of the composition of the FIVB DP and the Athlete was invited to submit his answer by 15 January 2024 and was asked to provide an English translation of a decision he was making reference to in his submissions; any written prescription or recommendation which suggested Aspirin intake after a heart surgery; the medical record regarding his arrhythmia and surgery, and a medical explanation regarding the prescription of Aspirin after that surgery. On 22 January 2024, after having obtained an extension of the deadline to submit his answer, the Athlete filed his answer together with additional evidence. On 11 March 2024, a hearing was held before the FIVB DP. On 5 September 2024, the FIVB DP rendered its decision (the “Appealed Decision”), the operative part of which reads as follows: “1. 2. 3. 4. 5. 6. The athlete Leandro Vissotto Neves (Brazil) has committed an anti-doping rule violation according to Articles 2.1 of the FIVB MADR 2022 due to the presence in his sample of Clomifene, a prohibited substance listed under the category of S.4.2 of the 2022 WADA Prohibited List. A period of ineligibility of two (2) years is imposed on the athlete Leandro Vissotto Neves, according to Article 10.2.2 of the FIVB MADR 2022. The period of ineligibility is effective as from the day of notification of this decision. All individual competitive results achieved by the athlete Leandro Vissotto Neves on 9 December 2022 are disqualified as per Article 10.10 of the FIVB MADR 2022. This decision may be appealed in accordance with the attached Notice of Appeals. This decision shall be published in accordance with Article 14.3 of the FIVB MADR 2022.” PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT On 25 September 2024, the Appellant filed his Statement of Appeal with the Court of Arbitration for Sport (the “CAS”), in Lausanne, Switzerland, in accordance with Article 13.2.1 of the MADR and Articles R47 et seq. of the Code of Sports-related Arbitration (the “CAS Code”) against the Appealed Decision. In his Statement of Appeal, the Appellant nominated Mr Jeffrey G. Benz, Attorney-at-Law and Barrister in London, United Kingdom, as arbitrator. CAS 2024/A/10891 – Page 5 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. On 30 September 2024, the CAS Court Office initiated the present appeals arbitration procedure, and, inter alia, invited the Respondent to nominate an arbitrator and to state whether it objected to English being the language of the procedure. On 2 October 2024, the Respondent informed the CAS Court Office that it had no objection that the proceedings would be conducted in English. On 10 October 2024, the Respondent informed the CAS Court Office that it nominated Mr Ken E. Lalo, Attorney-at-Law in Gan-Yoshiyya, Israel, as arbitrator in these proceedings. On 23 October 2024, the Appellant filed his Appeal Brief in accordance with Article R51 of the CAS Code. On the same day, the CAS Court Office invited the Respondent to submit its Answer within the deadline set out in Article R55 of the CAS Code, highlighting that if it failed to do so, the Panel may nevertheless proceed with the arbitration and deliver an award. On 3 December 2024, the Respondent filed its Answer. On 4 December 2024, the CAS Court Office acknowledged receipt of the Respondent’s Answer and informed the Parties that, unless they agree or the President of the Panel orders otherwise on the basis of exceptional circumstances, Article R56 para.1 of the CAS Code provides that the Parties shall not be authorized to supplement or amend their requests or their argument, to produce new exhibits, or to specify further evidence on which they intend to rely after the submission of the Appeal Brief and of the Answer. The Parties were also invited to state, by 9 December 2024, whether they preferred a hearing to be held in the present matter and whether they requested a case management conference (“CMC”) with the Panel. On 5 December 2024, the Appellant informed the CAS Court Office that he requested an in-person hearing in the present matter and that a CMC was not necessary. On 9 December 2024, the Respondent informed the CAS Court Office that it also preferred a hearing to be held in the present proceedings. However, for several reasons, it considered that a video-hearing would be preferable and that a CMC was not required. On 11 December 2024, the CAS Court Office asked the Parties whether they would be available for a hearing on 14 or 15 January 2025. On 13 December 2024, the Appellant informed the CAS Court Office of its unavailability on those dates and suggested several other dates for the hearing. On 16 December 2024, the CAS Court Office asked the Parties whether they were available for an in-person/remote hearing on 26 February 2025, which was one of the dates suggested by the Appellant. On the same day, the Respondent confirmed its availability for a hearing on 26 February 2025 and reiterated its preference for a remote hearing. CAS 2024/A/10891 – Page 6 42. 43. 44. 45. 46. 47. 48. On 18 December 2024, the CAS informed the Parties that the Panel appointed to resolve this dispute was constituted as follows: Mr Jacques Radoux, Référendaire, Court of Justice of the European Union, Luxembourg (President), Mr Jeffrey G. Benz, Attorney at-Law and Barrister, London, United Kingdom, and Mr Ken E. Lalo, Attorney-at-Law, Gan-Yoshiyya, Israel. On 20 December 2024, the CAS Court Office informed the Parties that the Panel had decided to hold an in-person hearing in the present matter on 26 February 2025. On 3 January 2025, the CAS Court Office notified an Order of Procedure to the Parties. On 10 January 2025, the Appellant, as well as the Respondent, signed and returned the order of procedure. On 6 February 2025, the Appellant informed the CAS that, due to the expected high travel costs, neither himself nor any of his counsels would participate in person at the hearing but that they would attend the hearing via video conference. In view of this position, the Panel has changed the format of the hearing to take place online rather than in-person. On 26 February 2025, a hearing took place via videoconference. The Panel was assisted by Mr Björn Hessert, counsel to the CAS, and joined by the following participants: For the Appellant: Mr Leandro Visotto Neves, Appellant; Ms Nathalia Tonelli Rohlfs, wife of the Appellant, witness; Prof. Aloa Machado de Souza, expert; Mr Marcelo Franklin, counsel; Mr Swastik Pattanayak, counsel; Mr Joshua Buxton, counsel. For the Respondent: Mr David Menz, counsel; Mr Vishakh Ranjit, counsel; Ms Alessandra Deliberato, FIVB Senior Legal Counsel. At the outset of the hearing, the Parties confirmed that they had no objection as to the constitution of the Panel. During the hearing, the Panel heard evidence from the Appellant. Following that, the Panel heard the evidence of Mrs Nathalia Tonelli Rohlfs (witness) and Prof. Aloa CAS 2024/A/10891 – Page 7 Machado de Souza (expert), both named by the Appellant. Before taking their evidence, the President of the Panel informed the witness and the expert of their duty to tell the truth subject to sanctions of perjury under Swiss law. The Parties and the Panel had the opportunity to examine and cross-examine them. Each of them confirmed their written statement or expert opinion. Finally, the Athlete also made a statement. 49. IV. 50. A. 51. 52. 53. 54. The Parties were given full opportunity to present their case, submit their arguments and answer the questions from the Panel. At the end of the hearing, the Parties confirmed that their right to be heard and their right to a fair trial had been fully respected during the hearing and that they had no objections as to the manner in which the proceedings had been conducted. THE PARTIES SUBMISSIONS The aim of this section of the Award is to provide a summary of the Parties’ main arguments rather than a comprehensive list thereof. However, the Panel confirms that in deciding upon the Parties’ claims it has carefully considered all of the submissions made and evidence adduced by the Parties, even if not expressly mentioned in this section of the Award or in the discussion of the claims below. The Appellant’s Submissions and Requests for Relief In his Statement of Appeal, the Appellant observes, as a preliminary point, that the CAS is competent to hear the present appeal on basis of Article 13.1. of the MADR and Article R47 of the CAS Code. Further, the Appeal would be admissible as it was filed within the deadline prescribed in Article R47 of the CAS Code. In his Appeal Brief, the Appellant holds that the present matter is governed by the MADR and that, in case of lacuna, Swiss law shall also apply according to Article R45 of the CAS Code. As regards the standard of review and the scope of the Appeal, the Appellant recalls that although, pursuant to Article R57 of the CAS Code, an appeal before the CAS has a de novo nature, in the sense that a panel can make a full review of the facts and the law, a CAS panel cannot, according to the CAS jurisprudence, decide issues that were part of the appealed decision but have not been appealed against (CAS 2016/A/4371, paras. 76 and 77). Hence, in the present matter, it would be improper for the CAS to decide whether the Appellant has proven the source of the Clomifene that caused the AAF since that specific issue has not been formally appealed by any of the Parties. The only issues before the CAS would thus be the length of the sanction to be imposed and the date of commencement of the sanction. Concerning the ADRV, which the Appellant does not contest, he argues that is has been established and accepted by the FIVB DP that the most likely source of the Clomifene found in his system was the accidental intake of just one pill of Clomifene belonging to his wife. According to the Appellant, he mistook this pill for an Aspirin pill that he had been recommended to take after he had a heart surgery to correct an arrhythmia. As would be clear from his blood and urine markers, there was no extended use of Clomifene by him. Further, given that he had a successful career, the end of which was CAS 2024/A/10891 – Page 8 already planned at the moment of the accidental intake of the Clomifene pill, as is evidenced by the fact that he had followed coaches’ courses to prepare for the next step in his career, an intentional intake of Clomifene could be excluded. The accidental intake of that pill would moreover be confirmed by the expert report from Prof. Aloa Machado de Souza. 55. 56. 57. 58. In support of his affirmations (i) that he had undergone a heart surgery to correct an arrhythmia, (ii) that he was taking Aspirin for over a decade following his heart surgery, that the use of Aspirin could prevent cardiovascular and cerebrovascular events in patients that have already experienced such an event or were at risk to of such an event, (iii) that he has a vision impairment and (iv) that, unbeknown to him, his wife was prescribed Clomifene in a fertility process, the Appellant filed some medical reports, articles and prescriptions. As regards his degree of fault when committing the ADRV, which is the essential element in the determination of the appropriate sanction, the Appellant maintains that, pursuant to Article 10.2.2 of the 2021 WADC, the regular sanction for an ADRV which was not intentional shall be two years and that, pursuant to the provision of that WADC, with respect to a specified substance such as Clomifene, a reduction can only be considered if an athlete can establish that he or she bore no significant fault or negligence. According to the jurisprudence of the CAS, there are only two (2) categories of fault that come into play: (i) a normal degree of fault, leading to 12 – 24 months sanction with a standard normal degree leading to an 18-month period of ineligibility, and (ii) a light degree of fault, leading to a 0-12 months sanction with a standard light degree leading to a 6-month period of ineligibility. Concerning his objective degree of fault, the Appellant argues that, ever since he was prescribed Aspirin and up until the accidental intake of the Clomifene pill of his wife, he diligently complied with all the necessary steps to make sure that the medication was safe. In contrast to the situation at issue in the case CAS 2017/A/5301 & 5302 (the “Errani case”), the Appellant attempted to control his home environment by storing his medication in a manner that minimised the risk of contamination of food products and ensured it remained out of reach of his three children. However, given that he was unaware of the fact that his wife was taking Clomifene, he was not able to control the environment against the risk arising from this medication. Furthermore, he had been administering his medication from this same box for a decade without ever registering an AAF. Moreover, contrary to the situation at issue in the Errani case, the Appellant had not conferred the responsibility of collecting his medication onto another person and he was exclusively responsible for administering his medication, which had been a successful approach for a decade. Regarding his subjective degree of fault, the Appellant claims that, in light of the CAS jurisprudence, in particular CAS 2012/A/2756, CAS 2006/A/1025, CAS 2011/A/2515 and CAS 2005/A/830, the Panel should take into consideration that the Appellant: (i) (ii) was not aware of the fact that his wife was using Clomifene; is not a medical professional and never requested a Therapeutic Use Exemption (“TUE”); CAS 2024/A/10891 – Page 9 (iii) (iv) (v) (vi) (vii) had never committed an ADRV before the present one; faced significant stress as the end of his active volleyball career approached; could feel safe in his home environment and committed “a careless but understandable mistake” because the pill he mistook for Aspirin has the same thickness and weight as well a similar colour as Aspirin; had no grounds for suspecting the pill he took to be anything other than his Aspirin; had not used his prescription glasses to verify the authenticity of the pill due to his perception of a safe environment following a career of negative anti-doping tests; (viii) had been taking Aspirin for many years without incident which led him to not apply the objective standard of care required when taking a medication for the first time; (ix) (x) (xi) 59. while being responsible for his entourage’s behaviour and faults, should benefit from the fact that his wife, in contrast to the mother of the athlete in the Errani case, is not a pharmacist and does not have specialist knowledge allowing her to know that the medication she was taking contained Prohibited Substances, entailing that the level of fault to be imputed on the Appellant for his wife’s fault (omission to inform him about the medication she was taking) cannot be equivalent on the level of fault imputed on the athlete in the Errani case; has not undertaken any affirmative action or assumption of risk upon which one could attribute any negligence and never intentionally ingested any Prohibited Substance to gain an unfair advantage by enhancing his performance, as corroborated by the expert reports of both parties; was less cautious because he had already announced his retirement and had already set a date for his career to end. As regards the starting point of the period of ineligibility, the Appellant argues that, pursuant to Article 10.13.1 of the MADR, it should be backdated to the date of Sample collection, i.e. 9 December 2022. In support of this argument, he claims that the procedure between the notification of the ADRV and the notification of the Appealed Decision took one (1) year, seven (7) months and twelve (12) days and thus took thirteen (13) months longer than prescribed by WADA’s International Standards for Results Management (“ISRM”). This delay should be considerable and could not be attributable to the Appellant. The Appellant has spent one (1) year, one (1) month, and thirteen (13) days purely waiting for the processes to be completed by the FIVB and other organisations. Therefore, any period of ineligibility should be backdated to the date of the Sample collection or the duration of one (1) year, one (1) month, and thirteen (13) days should be subtracted from any period of ineligibility that might be imposed on the Appellant. CAS 2024/A/10891 – Page 10 60. 61. B. 62. 63. Finally, the Appellant contends that, when assessing the period of ineligibility to apply, the Panel should consider the principle of proportionality, which plays, according inter alia to the Swiss Law and the CAS jurisprudence (CAS 2005/C/976 & 986; CAS 2005/A/830), a key role when determining sanctions in doping matters. According to this principle, sanctions under the WADC could be reduced (TAS 2007/A/1252; CAS 2010/A/2268; CAS 2006/A/1025). Sanction should not be automatic and should be adjusted depending on the circumstances. Hence, the Panel would be under the obligation to consider the principle of individualisation or personalisation for any sanction it decides to impose. In this regard, the Appellant considers that, in the present matter, a proportional sanction would be the time served from 9 December 2022 – the date of the Sample collection – to 30 April 2023 – the Appellant’s last official match. Such a sanction would also be in line with other decisions involving Clomifene and in which the athletes were found to have a significant higher degree of fault and were sanctioned respectively with an eight (8) and a ten (10) months ineligibility periods (Brazilian Anti-Doping Sports Justice Court, ruling n°1/2023 and International Cricket Council, decision of 27 June 2022). In the present matter, the appropriate sanction would be five to eight months based upon the various factors proving that the Appellant acted with a “light” degree of fault. Accordingly, the sanction would be the time already served, and the Appellant would have been eligible to return to competition as of July 2024. In light of the above arguments, the Appellant asks the CAS to rule that: “(i) (ii) (iii) (iv) (v) (vi) That the appeal of Leandro Vissotto is admissible; That the decision of the FIVB Disciplinary Panel be set aside; Appellant Leandro Vissotto’s sanction should be eliminated or, alternatively, reduced to 5-8 months; The provisional suspension served by the Appellant Leandro Vissotto should be subtracted from any period of ineligibility imposed; Due to delays of the case not attributable to the athlete, in contradiction with the ISRM, the date of ineligibility be backdated to the date of the sample collection; The Respondent shall bear all costs of the proceedings, including a contribution towards the Appellant’s Legal costs.” The Respondent’s Submissions and Requests for Relief The Respondent observes, as preliminary points, (i) that it agrees that the CAS has jurisdiction to hear the present appeal in accordance with Article 13 of the MADR; (ii) that the applicable law in the present matter are the MADR and that Swiss law shall apply subsidiarily as the FIVB has its seat in Switzerland, and (iii) that it does not contest the admissibility of the Statement of Appeal and the Appeal Brief. As regards the merits of the case, the Respondent notes that the Appellant accepts that his Sample tested positive for Clomifene and that he committed an ADRV under Article 2.1 of the MADR. CAS 2024/A/10891 – Page 11 64. 65. 66. Concerning the length of the period of ineligibility to be imposed, the Respondent argues that, according to Article 10.2.2 of the MADR, that length is two years and that for the Appellant to obtain a reduction of this period of ineligibility in application of Article 10.6.1.1 of the MADR 2022 for “No Significant Fault or Negligence” for the ADRV, he would have to establish first, on a balance of probabilities, how Clomifene entered his system. Although it contests, per se, the Appellant’s argument according to which it would be “improper” for CAS to decide whether he proved or not the source of the Clomifene since this issue has not been “formally appealed”, and considers that, as it had already claimed before the FIVB DP, that there are some inconsistencies in the Appellant’s argumentation regarding the source of the Clomifene, the Respondent highlights that it abides by the findings in the Appealed Decision and submits to the discretion of the Panel with regard to that issue. Concerning the Appellant’s degree of fault, the Respondent recalls that when assessing an athlete’s degree of fault, it is necessary to analyse, inter alia, the degree of risk that should have been perceived by that athlete and the level of care and investigation exercised by the latter in relation to that level of risk. The Respondent further submits that, according to well established CAS jurisprudence, a reduction of a period of ineligibility based on “No Significant Fault or Negligence” can only be applied in cases “where the circumstances justifying a deviation from the duty of exercising the ‘utmost caution’ are truly exceptional, and not in the vast majority of cases” (CAS 2021/A/8056) and that in order to analyse the degree of fault of an athlete, “objective” and “subjective” elements have to be taken into consideration (CAS 2013/A/3327 & 3335). In the present matter, the objective and subjective elements would show that there can be no doubt that the Appellant’s degree of fault is of the highest level. The Appellant had an undeniable duty and responsibility to ensure that no prohibited substances entered his body and he completely failed in fulfilling this duty, given that his actions and omissions indicate recklessness and negligence which corresponds to fault of the highest level. Indeed, given the Appellant’s age, experience and anti-doping education, he should have been fully aware of his duties and responsibilities, especially when taking medication such as Aspirin. According to CAS jurisprudence, the responsibilities of an athlete would include that he or she is responsible for the behaviour of members of his or her family living in the same house. That would be especially so if, like in the case at hand, the entire family keeps its medication in a single container. Athletes would thus have an obligation to control their environment, i.e. a responsibility to establish basic controls to ensure a safe and clean environment at their homes and must exercise the same level of care at home in a family environment as at outside places like restaurants. Further, contrary to what the Athlete claims, the fact that he was about to end his career did not justify “a reduction in his level of risk perception”. As long as the Appellant was a professional athlete, he was bound by the MADR and the strict liability provided therein. Finally, the fact that the Appellant had, up to the ADRV at hand, a “clean career” would not entitle him to any particular benefit given that the scheme of sanction provided in the relevant provisions already takes into account whether the ADRV of the concerned athlete was the first violation, as confirmed by CAS jurisprudence (CAS 2011/A/2615 & 2618). CAS 2024/A/10891 – Page 12 67. 68. 69. 70. 71. Regarding the possible actions and measures that the Appellant could have taken to avoid the ADRV and the question whether he eventually did or did not take such actions or measures, the Respondent argues, inter alia, that (i) the Appellant and his wife should have discussed the fertility issue and that a professional athlete should inquire what medicines his or her partner uses, for example as part of a fertility treatment. By not doing so, the Appellant failed to fulfil his duties as a professional athlete; (ii) the Appellant should have taken steps to gather further information about the medication his wife was taking; (iii) the Appellant should have been aware of the risk of accidental consumption and should have taken adequate steps to avoid such accidental consumption; (iv) the Appellant, by accepting that all the medications of his family were stored in the same box, did not take the appropriate action to avoid accidental consumption and acted in a highly negligent manner/recklessly; (v) the Appellant was highly negligent when not switching the light on and wearing his prescribed glasses when taking what he thought was an Aspirin pill although he knew he had an impaired vision; (vi) the Appellant admitted that he did not check the blister of the Aspirin before taking the pill, which amounts to a highly negligent behaviour according to the CAS jurisprudence (CAS 2005/A/830); (vii) the admitted use of the same pill crusher as his wife, is another example of the careless approach of the Athlete towards his anti-doping obligations; (viii) the Appellant’s retirement from professional volleyball cannot, in the present case, have had a significant impact on the Appellant’s behaviour given that it was a voluntary retirement and that he had already made plans for his post-professional career. By no means could the Appellant’s alleged level of stress have been of such a high degree as to affect his ability to fulfil his duties and responsibilities. The Respondent considers that, in light of the above arguments, the ineligibility period imposed in the Appealed Decision, i.e. two (2) years, is appropriate and that the Appellant’s claim, according to which this sanction is the maximum sanction for athletes who have committed an ADRV with intent, must be rejected. The same would apply to the Appellant’s argument according to which the imposed period of ineligibility should be reduced on basis of the principle of proportionality. Indeed, as is clear from constant CAS jurisprudence, the 2021 WADC, and thus also the MADR, has the principle of proportionality built into it within the sanctioning regime and as such, the panel should not provide any further benefit to the Appellant on this basis. The jurisprudence cited by the Appellant in support of his position would be outdated as it is from a period prior to the adoption of the 2015 WADC. Finally, the two (2) decisions cited by the Appellant and involving Clomifene would not justify a reduction of the period of ineligibility imposed in the Appealed Decision as the first of these decisions, i.e. from the Brazilian Anti-Doping Sports Justice Court, was a simple ratification of a Case Resolution Agreement entered into between the parties and the second decision, i.e. from the International Cricket Council, involved very different factual elements from the present matter and should, therefore, not be compared to the case at hand. The Respondent thus concludes that the sanction imposed by the FIVB DP in the Appealed Decision is appropriate and that no reduction should be applied on that sanction on the basis of the principle of proportionality or in parity with the cases cited by the Athlete. CAS 2024/A/10891 – Page 13 72. 73. V. 74. 75. The Appellant’s request to have the starting date of the imposed period of ineligibility backdated to the date of the Sample collection in accordance with Article 10.13.1 of the MADR should be rejected. However, the Respondent acknowledges that some delay, not attributable to the Appellant, did occur in the results management proceedings in the present case, and that, while exercising its discretion in this regard, the Panel should take into account several factual circumstances and especially, consider the factors outside the control of the FIVB, including but not limited to, the requirement of the FIVB to rely on the availability and convenience of independent third parties such as the Laboratory and the FIVB DP, the relevant non-business days and holiday periods during the results management process and the time provided to the Athlete to submit responses and explanations (including extensions requested by the Athlete and granted by the FIVB). As mentioned by the panel in CAS 2020/A/7526 & 7559, any justification advanced by the anti-doping organisation as to the delay being “explicable and reasonable” may be taken into account by a CAS panel while deciding on exercising its discretion in this regard. All in all, the Respondent, given the acknowledged delay in the present case and the potential prejudice caused to the Appellant, accepts a backdating of the start of the period of ineligibility amounting to six months from the date of the final hearing. In light of all the above considerations, the Respondent, in its request for relief, requests the CAS to: “I. II. Dismiss the Appeal filed by Mr. Leandro Visotto Neves with the exception that the commencement date of the period of ineligibility imposed by the FIVB Disciplinary Panel is backdated by six months; and Order Mr. Leandro Visotto Neves to pay the FIVB a contribution towards its legal and other costs incurred with this proceeding in an amount to be determined at a later stage of the proceeding.” THE HEARING At the hearing, the Panel heard evidence by the Appellant, by Mrs Nathalia Tonelli Rohlfs (witness) and by Prof. Aloa Machado de Souza (expert). The evidence can, in its relevant points, be summarized as follows: - The Appellant confirmed his written witness statement and stated that he was taking Aspirin since a heart surgery in 2012. He further stated that he had a prescription for glasses, as his vision was impaired, but that, at the moment of the accidental intake of the Clomifene pill, he was not wearing these glasses. He also stated that, although being aware that his wife had started a fertility treatment, she had not told him and he had not asked what kind of medication this treatment would involve. He said that he had no knowledge of Clomifene and that the substance had not been mentioned in the Anti-Doping courses he had attended. He stated that before his AAF, he had well planned his retirement from active volleyball by following FIVB coaching courses (Level I and II) and had moved to the USA in 2022 with his family in anticipation of coaching there. This relocation was a very stressful moment for his entire family. He stated that he and his family are just ordinary people and that, CAS 2024/A/10891 – Page 14 like every other family, they keep all their medications stored at the same place. He added that he did not know whether any Anti-Doping courses advise athletes to keep their medication at a different place from the medications of their families. He further stated that the family threw the carton box in which medications come and just kept the (aluminium/plastic) blister packages. The different medications were kept in a box or on a shelve in a cabinet that is in the laundry area next to the kitchen. He affirmed that he was usually taking his Aspirin before going to bed. - - 76. Mrs Tonelli-Rohlfs confirmed her written witness statement and confirmed that the family was keeping their medications in the laundry area next to the kitchen, on a shelve in a cabinet. She further stated that she had not told her husband what medication she was taking as he had so much on his mind. He never asked her whether she was taking medication for her fertility treatment. She also stated that she did not remember having seen him taking the pill on the day he supposedly took her Clomifene pill. Finally, she reiterated that the Aspirin and the Clomifene pills look the same. Prof. Aloa Machado de Souza is a pharmacist and holds a PhD in Human Physiology. She confirmed her expert report from 30 September 2023 and stated that the Athlete’s blood parameters and urine patterns (i.e. absence of long-term Clomifene metabolites) were not compatible with a use of Clomifene for doping purposes given that it would require a long-term use. In light of the above, she believes that the AAF was the result of an intake of one Clomifene pill. The expert further stated that she had not been physically presented the Aspirin pills and the Clomifene pills that the Athlete refers to and had only been presented photographs of said pills, but on these photographs the pills had a similarity. In general, these pills would have a similarity. She however acknowledged that she was not acquainted with all forms and shapes under which Aspirin and Clomifene were commercialized. On the photos she had been presented, the two products had a faintly different colour, Aspirin being white and Clomifene being slightly yellow, making it difficult to distinguish them in a bad or yellow light. At the end of the hearing, the Appellant made a statement in which, in substance, he thanked the Panel for having taken the time to listen to his arguments and emphasized that the goal of his appeal would not be to play active volleyball again but to clear his name and allow him to find a job post-retirement. He would not like his name to be linked to any form of intentional doping or cheating. He reiterated that all the results achieved in his volleyball career were achieved in a fair way and not by cheating. VI. 77. JURISDICTION Article R47 of the CAS Code provides as follows: “An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body.” CAS 2024/A/10891 – Page 15 78. 79. 80. 81. 82. Pursuant to Article 13.2 of the MADR: “A decision that an anti-doping rule violation was committed, a decision imposing Consequences or not imposing Consequences for an anti-doping rule violation, or a decision that no anti-doping rule violation was committed […] may be appealed exclusively as provided in this Article 13.2.” Article 13.2.1 of the MADR provides as follows: “In cases arising from participation in an International Event or in cases involving International-Level Athletes, the decision may be appealed exclusively to CAS.” In the present matter, it is uncontested that the Appellant was an International-Level Athlete at the time of Sample collection within the meaning of the MADR and none of the Parties objected to the CAS jurisdiction. Moreover, all Parties confirmed such jurisdiction by signing the Order of Procedure. In view of the above, the Panel confirms that the CAS has jurisdiction to decide on the present appeal. VII. ADMISSIBILITY 83. 84. 85. 86. 87. Article R49 of the CAS Code provides as follows: “In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. The Division President shall not initiate a procedure if the statement of appeal is, on its face, late and shall so notify the person who filed the document. When a procedure is initiated, a party may request the Division President or the President of the Panel, if a Panel has been already constituted, to terminate it if the statement of appeal is late. The Division President or the President of the Panel renders her/his decision after considering any submission made by the other parties.” Pursuant to Article 13.6.1 of the MADR, the “time to file an appeal to CAS shall be twenty-one (21) days from the date of receipt of the decision by the appealing party. […]” In the present matter, it is uncontested that the Appealed Decision has been notified to the Athlete on 5 September 2024. By filing his Statement of Appeal on 25 September 2024, the Appellant respected the twenty-one (21) day deadline set out in the MADR. Thus, the present appeal was filed within the prescribed deadline and is admissible. CAS 2024/A/10891 – Page 16 VIII. APPLICABLE LAW 88. 89. IX. 90. 91. 92. 93. 94. Article R58 of the CAS Code provides as follows: “The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.” The Appealed Decision was rendered by the FIVB DP under the MADR and there is no dispute as to the applicability of these MADR in the present matter. Further, as the FIVB has its registered seat in Switzerland, Swiss law shall apply subsidiarily. MERITS In the present matter, it is common ground between the Parties that the Athlete committed an ADRV pursuant to Article 2.1 of the MADR for the presence of a prohibited substance, i.e. Clomifene. The Parties are also in agreement that Clomifene is a Specified Substance and that, accordingly, in absence of proof by the FIVB that the Athlete committed the ADRV intentionally, pursuant to Article 10.2.2 of the MADR, the applicable period of ineligibility is two (2) years. This is exactly the period of ineligibility imposed by the FIVB DP in the Appealed Decision. The Appellant challenges the Appealed Decision arguing that the FIVB DP considered that, contrary to the requirements in Article 10.6.1.1 of the MADR, he had not established that he had acted with No Significant Fault or Negligence. Article 10.6.1.1 of the MADR provides: “Where the anti-doping rule violation involves a Specified Substance (other than a Substance of Abuse) or Specified Method, and the Athlete or other Person can establish No Significant Fault or Negligence, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and at a maximum, two (2) years of Ineligibility, depending on the Athlete’s or other Person’s degree of Fault.” The definitions of “Fault”, “No Fault or Negligence” and “No Significant Fault or Negligence” are set out in Appendix 1 of the MADR. According to this Appendix, Fault is defined as “any breach of duty or any lack of care appropriate to a particular situation. Factors to be taken into consideration in assessing an Athlete’s […] degree of Fault include, for example, the Athlete’s […] experience, whether the Athlete […] is a Protected Person, special considerations such as impairment, the degree of risk that should have been perceived by the Athlete and the level of care and investigation exercised by the Athlete in relation to what should have been the perceived level of risk. In assessing the Athlete’s […] degree of Fault, the circumstances considered must be specific and relevant to explain the Athlete’s […] departure from the expected standard of behavior. Thus, for example, the fact that an CAS 2024/A/10891 – Page 17 Athlete would lose the opportunity to earn large sums of money during a period of Ineligibility, or the fact that the Athlete only has a short time left in a career, or the timing of the sporting calendar, would not be relevant factors to be considered in reducing the period of Ineligibility under Article 10.6.1 or 10.6.2”. 95. 96. 97. 98. 99. No Fault or Negligence is defined as follows: “No Fault or Negligence: The Athlete or other Person’s establishing that he or she did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he or she had Used or been administered the Prohibited Substance or Prohibited Method or otherwise violated an anti-doping rule. Except in the case of a Minor, Protected Person or Recreational Athlete, for any violation of Article 2.1, the Athlete must also establish how the Prohibited Substance entered the Athlete’s system.” The definition of No Significant Fault or Negligence reads as follows: “No Significant Fault or Negligence: The Athlete or other Person’s establishing that any Fault or Negligence, when viewed in the totality of the circumstances and taking into account the criteria for No Fault or Negligence, was not significant in relationship to the anti-doping rule violation. Except in the case of a Minor, Protected Person or Recreational Athlete, for any violation of Article 2.1, the Athlete must also establish how the Prohibited Substance entered the Athlete’s system.” In the Appealed Decision, the FIVB DP found that the Athlete had established, according to the applicable standard of proof, i.e. on the balance of probabilities, that the Clomifene had entered his system through the accidental ingestion of a pill prescribed to his wife. The Appellant argues that given that neither the FIVB nor himself have appealed this finding of the FIVB DP, it has become final and is not subject to a de novo review by the Panel. The Respondent, for its part, observes that it had no valid legal interest to appeal this finding of the FIVB DP, as the sanction imposed in the Appealed Decision was in line with the FIVB’s requests. In this regard, the Panel notes that the Respondent states, in its written submissions, that it “abides by the findings of the FIVB in the Appealed Decision” on how the Clomifene entered the Appellant’s system and submits to the discretion of the Panel regarding this issue. At the hearing, the Respondent noted that although it still had its doubts about the source and, in particular, about the fact that the Appellant used Aspirin on a daily basis, it was willing to accept that the consumption of a single Clomifene pill was the source of the AAF. 100. Given that the Panel considers, as will be clear from what follows, that the Appellant has not established to not have acted with No Significant Fault or Negligence, the question whether or not the Appellant has established, according to the relevant standard of proof, how the substance entered his body can be left unanswered. Assessment of the level of fault or negligence CAS 2024/A/10891 – Page 18 101. In view of the above, the Panel starts its assessment on the premise that the ADRV was unintentional and that the period of ineligibly to be imposed is two years, subject to a potential reduction in accordance with article 10.6.1.1 of the MADR, i.e. based on No Significant Fault or Negligence. In case the Panel finds that such reduction is to be applied, it will still have to decide to what kind of reduction the Appellant should be entitled. 102. As is clear from the definition recalled above, No Significant Fault or Negligence has to be established in light of the criteria for No Fault or Negligence. The starting point of an assessment of No Significant Fault or Negligence is whether an athlete did not know or suspect, and could not reasonably have known or suspected, even with the exercise of utmost caution, that he or she had used the prohibited substance at stake. The Panel has thus to examine if the Appellant departed from the expected standard of behaviour, which is utmost caution, and if in the affirmative how far he departed from that standard, knowing that if the departure was significant then the criteria for No Significant Fault or Negligence would not be met whilst if the departure was not significant then the Athlete could benefit from a reduction for No Significant Fault or Negligence (CAS 2017/A/5301 & 5302, CAS 2021/A/8449 and CAS 2022/A/9141). The Panel keeps however in mind that, according to constant CAS jurisprudence, No Significant Fault or Negligence “is (by definition) consistent with the existence of some degree of fault and cannot be excluded simply because the athlete left some ‘stones unturned’” (CAS 2016/A/4643 and CAS 2021/A/8449). 103. According to the existing CAS jurisprudence, in particular CAS 2013/A/3327 & 3335 and CAS 2017/A/5301 & 5302, when assessing an athlete’s degree of fault for the application of a provision like Article 10.6.1.1 of the MADR, which is equivalent to Article 10.6.1.1 of the WADC, a panel has to assess the level of fault based on objective and subjective elements. The objective element describes “what standard of care could have been expected from a reasonable person in the athlete’s situation”, and the subjective element describes “what could have been expected from that particular athlete, in light of his personal capacities” (CAS 2013/A/3327 & 3335). Further, as indicated in CAS 2013/A/3327 & 3335, the subjective elements for the determination of fault may, in exceptional cases, move an athlete from one category to the other. 104. In the present matter, the Panel notes that it follows from the Appellant’s description of the facts that several elements led to the accidental intake of the Clomifene pill by the Appellant. First and foremost, the Appellant did not check the content of the blister he opened. Second, the Appellant, although aware that he had a vision impairment and needed glasses to read, did not wear his prescription glasses when he took the pill that he believed to be Aspirin. Third, he took the pill in a room that was poorly lit and did not bother turning on the light in that room (pantry) or taking the pill into a space where there was enough light for him to see what medication he was taking. Fourth, the Appellant’s medication was kept in the same cabinet, on the same shelf and/or in the same box as the medications of the other family members. The Panel considers that, when compared to the duty of care that could be expected from a reasonable person in the Appellant’s situation, each of the above elements, taken on its own, amounts to a negligence of a certain significance in relation to the committed ADRV. Indeed, had the Appellant just taken the most elementary steps in relation to these four elements, i.e. (i) had he checked the content of the blister/read the name of the medication on the blister; CAS 2024/A/10891 – Page 19 (ii) worn his prescription glasses; (iii) turned on the light or taken the medication into a room with sufficient light, or (iv) kept his medication clearly separated from those of the other family members, the ADRV would not have occurred. In the Panels view, the fact that the Appellant did not check what medication he was taking and did not take any of the above precautions is even more striking as, according to the Appellant himself and according to his wife, he was very worried about an eventual heart issue. Certainly, taken together, these four elements show that the Appellant’s negligence was significant and that he considerably failed in his duty of care to prevent the ingestion of a prohibited substance. 105. This finding is not called into question by the fact that the Appellant had never experienced any anti-doping related issues over all the years that the family’s medications were stored together in the same cabinet, on the same shelf and/or in the same box. Indeed, such argument proves, at best, that the Appellant was fortunate that his negligence did not cause an AAF at an earlier stage in his career. 106. Further, the argument that he had not been warned about Clomifene in the Anti-Doping courses he had followed, is of no avail to the Appellant either. Indeed, given that, according to his and his wife’s testimony, he was not aware that his wife was taking Clomifene or that Clomifene was in the household, it is unreasonable to believe that he would have adopted another behaviour than he did on the evening he accidently took the Clomifene pill if he had received a warning about Clomifene in the Anti-Doping courses. 107. As regards the stress that the Appellant was allegedly experiencing due to his upcoming retirement from professional volleyball, the Panel finds that this argument is not compelling. Indeed, the Appellant had taken the decision to retire as a professional athlete on his own terms and quite some time before he accidently took the Clomifene pill and had prepared for his after-career by accomplishing the FIVB Level I and II Coaches Courses. In these conditions, and even if the relocation of the Appellant and his family to the another country may have required some adjustments and created some kind of hassle, the Panel does not see how these events could have created a level of stress of such magnitude that a professional athlete of the calibre and experience of the Appellant would have been affected in what should have been his perception of risk. 108. Finally, in view of the Athlete’s age and experience, i.e. long-time professional athlete having competed at the highest international level, it cannot convincingly be argued that he was not aware that he should keep his medication separated from that of his family or that he should pay utmost caution and verify what medication he ingests, whether at home or not. The comparison the Appellant tries to draw between his situation and the situation at stake in the Errani case is, in the Panel’s view, misplaced. Athletes do not only have to take the necessary steps to make sure no medication contaminates their food or drinks but also have to take all elementary and necessary steps to ensure that they do not ingest a medication which is not theirs or which they do not intend to ingest. Had the Appellant been diligent enough to just take one of the steps already mentioned above, he would most likely not have accidently ingested the Clomifene pill of his wife. 109. Hence, the Panel considers that, on basis of the above elements, the objective level of the Appellant’s negligence is significant. CAS 2024/A/10891 – Page 20 110. Subjective elements of the level of fault identified in the CAS jurisprudence (CAS 2013/A/3327 & 3335 and the Errani case) may include, among others: (i) the athlete’s youth and/or experience; (ii) language or environmental problems encountered by the athlete; (iii) the extent of anti-doping education received by the athlete; (iv) other “personal impairments”, such as having taken a product over a long period of time without incident, previously having checked the product’s ingredients, suffering from a high degree of stress, or the awareness of an athlete being reduced by a careless but understandable mistake. 111. In the present matter, it is uncontested that the Appellant, at the moment of the ADRV, was 39 years old and had a considerable experience in anti-doping matters. Further, he had received anti-doping education and, although he acknowledged at the first instance hearing that he was not always focused during those courses, he had attended anti doping courses and could have easily paid more attention. Moreover, the Appellant did not allege any language problems. As regards a potential “environmental” problem that could have arisen through the fact that the cabinet in which the pill was stored was standing in a dimly lit room, this problem could, as mentioned above, have easily been solved. The fact that the Appellant had taken Aspirin over a long period of time without incident is, in the Panel’s view, of no avail to the Appellant in the present matter as the AAF was not caused by a “contaminated” Aspirin pill but by the fact that he took another medication without checking the blister. Finally, as regards the Appellant’s argument that he just committed “a careless but understandable mistake”, the Panel considers it sufficient to recall that, as held above, the Appellant was negligent on at least four different aspects. The omission of all four steps of precaution he could have easily taken amounts to a “significant mistake. The Panel however accepts that the Appellant’s intake of the Clomifene pill was accidental and unintentional. 112. The Panel adds that the comparison the Appellant tries to draw with other cases, in particular CAS 2006/A/1025, the Errani case and CAS 2019/A/6482, is ill-founded as the facts of those cases are, in the Panel’s view, not comparable to the facts at hand. 113. The Panel thus considers that, in the present matter, the subjective elements of fault have no impact on the category of the Appellant’s fault or negligence. 114. The Panel, having determined that the Appellant has shown significant negligence, sees no room for a reduction of the period of ineligibility below twenty-four (24) months. 115. Further, and contrary to the Appellant’s argument in relation to the proportionality of this sanction, the Panel considers this sanction to be proportionate to the significant negligence shown by the Appellant. Further, it shares the view expressed by other CAS panels according to which “[…] the elements of [the principle of proportionality have] already been duly considered by the Panel and are a part of the 2021 WADC. When applying these regulations, only the most extreme and rare cases, where sanctions are clearly disproportionate and unfair, allow for an autonomous consideration of the principle of proportionality ») (CAS 2021/A/7983). In the Panel’s view, none of the elements brought forward by the Appellant are of such nature as to turn the present matter into one of those “most extreme and rare cases”. 116. The Appealed Decision is thus confirmed insofar as it has imposed a period of ineligibility of two (2) years. CAS 2024/A/10891 – Page 21 Starting date of the period of ineligibility 117. Regarding the starting date of that period of ineligibility, the Appellant refers to Article 10.13.1 of the MADR and requests that that date should be backdated to the date of the Sample collection, i.e. 9 December 2022, because of delays not attributable to him. In support of his position, he argues that there were unjustified delays in the B-sample analysis, in the preparation of the Letter of Charge, in the organisation of the hearing and the rendering of the Appealed Decision by the FIVB DP. 118. According to Article 10.13.1 of the MADR: “[w]here there have been substantial delays in the hearing process or other aspects of Doping Control, and the Athlete or other Person can establish that such delays are not attributable to the Athlete or other Person, the FIVB or the FIVB Disciplinary Panel, if applicable, may start the period of Ineligibility at an earlier date commencing as early as the date of Sample collection or the date on which another anti-doping rule violation last occurred. All competitive results achieved by the Athlete alone during the period of Ineligibility, including retroactive Ineligibility, shall be Disqualified”. 119. The Respondent agrees that there were some delays in the present matter not attributable to the Athlete and accepts that the starting date of the ineligibility period be backdated by six months. 120. The Panel has carefully examined the length of the different stages of the procedure in the present matter and finds that the Appellant’s arguments are not compelling as many of the alleged delays were partially due to the Appellant’s procedural behaviour. Indeed, first, as regards the B-Sample opening date of 25 April 2023, it is uncontested that the FIVB had suggested the date of 22 March 2023 but that the Appellant requested a later date. Second, as regards the issuance of the Letter of Charge, the Panel notes that, in the present matter, the Appellant had brought forward not less than four different explanations for the ADRV and finds that the time taken, in those circumstances, by the FIVB to issue the Letter of Charge does not appear be “substantially” too long. Third, also during the written and the oral evidentiary procedure before the FIVB DP, some delays can be attributed to the Appellant himself. The Panel notes moreover that there is no element in the file that would give the impression that the Appellant was eager to have his case handled in the shortest time. Finally, concerning the time taken by the FIVB DP after the hearing to render its decision, i.e. five months and 25 days, the Panel accepts that this may appear to be a long period of time but notes that in anti-doping cases, the deliberations and the drafting often take more time than in other sport related cases. 121. However, the question whether there was a substantial delay not attributable to the Appellant in the issuing of the Appealed Decision and, if in the affirmative, how much it amounted to, may, in the present matter, be left unanswered as the Respondent agrees to a backdating of the start of the ineligibility period by six (6) months, which is a longer period than what the Panel would have been willing to consider as any substantial delays throughout these proceedings. 122. Hence, in light of the Parties’ positions on this point and pursuant to Article 10.13 of the MADR, the Panel holds that the start of the period of ineligibility shall be backdated to 5 March 2024, which is the start date of the provisional suspension imposed on the CAS 2024/A/10891 – Page 22 Appellant. The Appeal is, thus, upheld on this point and the Appealed Decision shall be partially set aside. Disqualification of results 123. Article 10.10 of the MADR states: “In addition to the automatic Disqualification of the results in the Competition which produced the positive Sample under Article 9, all other competitive results of the Athlete obtained from the date a positive Sample was collected (whether In Competition or Out-of-Competition), or other anti-doping rule violation occurred, through the commencement of any Provisional Suspension or Ineligibility period, shall, unless fairness requires otherwise, be Disqualified with all of the resulting Consequences including forfeiture of any medals, points and prizes”. 124. In the Appealed Decision, the FIVB DP decided to apply the “fairness test” and disqualified the results obtained by the Appellant just for the match he played on 9 December 2022, the date that the Sample was collected. 125. This part of the Appealed Decision has not been appealed by any of the Parties and the Panel sees no reason to modify such determination. Indeed, in the present matter, it is uncontested that the Clomifene found in the Appellant’s sample did not produce a significant effect on the Athlete’s performance. 126. Any other and further claims or requests for relief on the merits are dismissed. X. COSTS (…) * CAS 2024/A/10891 – Page 23 ON THESE GROUNDS The Court of Arbitration for Sport rules: 1. 2. 3. 4. 5. The appeal filed by Leandro Visotto Neves against the Fédération Internationale de Volleyball (FIVB) with respect to the decision rendered by the FIVB Disciplinary Panel on 5 September 2024 is partially upheld. The decision rendered by the FIVB Disciplinary Panel on 5 September 2024 is confirmed, save for its item n. 3 which shall be amended as follows: “ 3. The period of ineligibility is effective as from 5 March 2024.” (…). (…). All other and further claims or prayers for relief are dismissed.

2024/ADD/92 International Weightlifting Federation (IWF) v. Muhammad Waqas Akbar 2024/ADD/93 International Weightlifting Federation (IWF) v. Mr Amjad (Amin) Butt ARBITRAL AWARD delivered by the ANTI-DOPING DIVISION OF THE COURT OF ARBITRATION FOR SPORT sitting in the following composition: Sole Arbitrator: David M Benck, Attorney-at-Law in Birmingham (Alabama), USA in the arbitration between International Weightlifting Federation (IWF) Represented by the International Testing Agency, Lausanne, Switzerland, appearing through Mr. Nicolas Zbinden, Attorney-at-Law Lausanne, Switzerland and 1/ Mr Amjad (Amin) Butt, Pakistan 2/ Muhammad Waqas Akbar, Pakistan Claimant Respondents Palais de Beaulieu Avenue Bergières 10 CH-1004 Lausanne Tel : +41 (21) 613 50 00 [email protected] - Page 2 CAS Anti-Doping Division Chambre Anti-dopage du TAS I. 1. PARTIES 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt The International Weightlifting Federation (“IWF”) is the governing body for the sport of weightlifting. The IWF has delegated the implementation of its anti-doping programme to the International Testing Agency (“ITA”). Such delegation includes the Results Management and subsequent prosecution of potential Anti-Doping Rule Violations (“ADRV”) under the IWF’s jurisdiction. 2. 3. II. 4. 5. 6. 7. 8. Muhammad Waqas Akbar (“Respondent Waqas”) is a Pakistani coach. He is the coach of several Pakistani athletes, including inter alia Messrs Muhammad Sharjeel Butt, Ghulam Mustafa, Farhan Amjad and Abdur Rehman (the “Athletes”). Mr Amjad (Amin) Butt (“Respondent Butt”) is the Vice President of the Pakistan Weightlifting Federation (PWFL), which is a member of the IWF. FACTUAL BACKGROUND On 10 November 2021, Mr. Muhammad Awais Khan, a Pakistani Doping Control Officer (“DCO”) was tasked by the ITA, under the Testing authority of the IWF, with collecting Out-of-Competition urine Samples from the Athletes at the Railways Academy centre in Lahore, Pakistan. Mr. Khan is a certified international DCO with Clearidium, a third-party sample collection company recognised by the IWF authorised to collect urine and blood Samples pursuant to the International Standard for Testing and Investigations (“ISTI”). Mr. Khan had the following documents and authorisations for the Testing Mission in his possession: • ADAMS Mission Order M-1589126683; • ADAMS Whereabouts Details Report for all four athletes to be tested; • A Clearidium Letter of Authorisation; and • A personal National Identity Card issued by the Pakistani Government. Mr. Khan was accompanied by four chaperones, one for each of the Athletes. The chaperones were Jamshed Akbar, Jared Akhtar, Usama Hunjara and Qaiser Abbas. Mr. Khan, along with the four chaperones, all spoke native Urdu, the same language spoken by the Athletes and Respondents. Mr. Khan is also fluent in English. The Whereabouts information for 10 November 2021, which was filed in ADAMS, indicated that three of the four Athletes were training at the Railways Academy training centre in Lahore, Pakistan from 16:00 to 18:00 and present until 20:00. Sharjeel Butt’s schedule was the same, but the location given for his training venue was the Shad Bagh weightlifting club in Lahore. - Page 3 CAS Anti-Doping Division Chambre Anti-dopage du TAS 9. 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt Mr. Khan and the chaperones arrived at the training location at approximately 16:30 and remained there until 21:15. When these individuals first arrived, they did not observe any of the Athletes listed on the Mission Order inside the training location. 10. 11. 12. 13. 14. 15. 16. Between 17:00 and 17:15, two of the Athletes, Farhan Amjad and Ghulam Mustafa arrived at the training location along with their coach, Respondent Waqas. Mr. Khan immediately notified Mr. Amjad and Mr. Mustafa, in the presence of Respondent Waqas, that he was a DCO on a Testing Mission to collect samples for the purpose of Doping Control. Respondent Waqas complained that he had not been informed of the Testing Mission in advance and stated that he wanted to speak to someone from the Pakistani Weightlifting Federation. Respondent Waqas instructed both Athletes not to provide samples at that time and to contact Respondent Butt, one of the Vice-Presidents of the PWF by telephone. Shortly thereafter, Abdur Rehman and Sharjeel Butt arrived at the training location. Mr. Khan provided both of these two Athletes with the same notification that had been provided to Mr. Amjad and Mr. Mustafa. All four Athletes, under the direction of the Pakistani Weightlifting Federation requested additional documentation from the DCO to verify the legitimacy of the demand to provide samples for the purpose of Doping Control. Mr. Khan in response explained to the Athletes that if samples were not given, the Athletes would be charged with an ADRV, to be decided by anti-doping authorities. After completing his call with Respondent Butt, Respondent Waqas reaffirmed that the Athletes would not provide samples unless the Pakistani Weightlifting Federation approved. At approximately 18:00, Respondent Butt, the PWF Vice-President, arrived at the training location and expressed his belief that Mr. Khan was “a fake DCO”. Mr. Khan showed Respondent Butt the Authorisation Documents that he had with him and explained them to Respondent Butt. Respondent Butt indicated that he wished to speak to Dr Waqar Ahmad (“Dr. Waqar”), Chairman of the Anti-Doping Organization of Pakistan, prior to allowing the Athletes to proceed with testing. Respondent Butt called Dr. Waqar and requested that Mr. Khan speak with him. Dr. Waqar requested that Mr. Khan send him, via WhatsApp, copies of the Authorisation Documents. Mr. Khan indicated that the Authorisation Documents were confidential, and he could not send them. Mr. Khan then suggested to Dr. Waqar that he could review the Authorisation Documents at the training location; however, Dr. Waqar replied that he was in Islamabad and could not attend the training location. Dr. Waqar then instructed Mr. Khan to leave the training location and to return the next day when Dr. Waqar could be present. Mr. Khan explained to Dr. Waqar that he was required to either collect samples from the Athletes on - Page 4 CAS Anti-Doping Division Chambre Anti-dopage du TAS 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt that day, or report back to the IWF that the Athletes had refused to provide samples. 17. 18. 19. 20. 21. 22. 23. 24. 25. Mr. Khan then contacted the Clearidium Coordinator, Maurits Huijskens who spoke with Respondent Butt. Following the completion of that conversation, Respondent Butt indicated that the Athletes would not provide samples. After he finished speaking to Dr. Waqar, Respondent Butt told the Athletes that they did not have permission to be tested and were therefore not to provide samples. Mr. Khan completed four Unsuccessful Attempt Report Forms, one for each Athlete, and requested that each of the Athletes complete and sign their own written statement regarding the conduct of the Testing Mission and their refusal to provide samples. Sharjeel Butt wrote and signed his copy of the statement, confirming that, inter alia, “I am waiting for NADO’s Chairman call, whose name is Dr. Waqar if he allow [sic] then I can provide a sample” and “DCO also provided us the letter of authorization from the organization but I am not ready for this”. The three other athletes copied Sharjeel Butt’s statement and signed their respective copies. Prior to leaving the training location, Mr. Khan asked for photographs with the four Athletes and with the four chaperones to confirm their attendance at the training location. Mr. Khan and the chaperones left the training location at approximately 21:15 having not collected any samples. On 21 July 2023, the ITA, on behalf of the IWF, notified the Respondents that it considered asserting ADRVs in relation to the abovementioned facts and gave them a deadline until 11 August 2023 to provide explanations on the charges against them. On 8 August 2023, the Respondents provided explanations by e-mail to the ITA, denying all charges against them. On 14 November 2023, the ITA, on behalf of the IWF, notified the Respondents that it had decided to assert ADRVs in relation to the abovementioned facts (the “Notice of Charge”) and gave them a deadline until 4 December 2023 to provide explanations in respect of the charges against them. Failing any response within the prescribed deadline, the case would be referred to the CAS Anti-Doping Division for adjudication. On 2 December 2023, the Respondents submitted their answer to the Notice of Charge, denying the charges against them. They also requested that their case be heard in front of a Pakistani court. - Page 5 CAS Anti-Doping Division Chambre Anti-dopage du TAS 26. 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt On 29 April 2024, the IWF initiated proceedings against both Respondents for alleged ADRV pursuant Article 2.5 and/or 2.9 of the 2021 IWF Anti-Doping Rules (“2021 IWF ADR”). 27. It is worth noting that on 1 March 2024, the CAS ADD found that the Athletes had committed an ADRV pursuant to art. 2.3 of the 2021 IWF ADR for their refusal to submit to the testing and sanctioned them with a period of Ineligibility of four (4) years starting the from the date of the CAS Award. III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT 28. 29. 30. 31. 32. 33. 34. 35. 36. On 29 April 2024, and in accordance with Article A13 of the Rules of the CAS Anti-Doping Division, the Claimant filed its Request for Arbitration, and the ADD President decided to consolidate both proceedings ADD 92 and ADD 93. On 16 May 2024, in accordance with Articles A16 and A17 of the Rules of the CAS ADD, David M Benck of Birmingham, Alabama, USA, was appointed to act as Sole Arbitrator in this procedure. In accordance with Article A14 of the Rules, the Respondent Waqas filed his Answer to the Request for Arbitration on 17 May 2024, and Respondent Butt filed his Answer to the Request for Arbitration on 4 July 2024. Respondents requested that the CAS ADD establish a joint committee involving the Anti-Doping Organization of Pakistan, the Pakistan Sports Board and the Pakistan Olympic Association under the chairmanship of a High Court judge. This request was considered by the Sole Arbitrator and was denied twice. On 10 October 2024, the IWF signed and returned the Order of Procedure. On 6 November 2024, the Respondents signed and returned the Order of Procedure. In the Order of Procedure, all Parties agreed to refer the present dispute to the Anti-Doping Division of the Court of Arbitration for Sport subject to the ADD Rules. Furthermore, the provisions of Chapter 12 of the Swiss Private International Law Statute (PILS) shall apply to the exclusion of any other procedural law. On 7 November 2024, the Respondents supplemented their witness list with a notice of intent to call Mr Awais Akbar and Mr Ayan Khalid as witnesses, which information was to have been submitted by 4 October 2024 per the Order of Procedure. The IWF objected to the additional witnesses, but the Sole Arbitrator allowed the late additions. On 8 November 2024, a video hearing was held. The Sole Arbitrator was assisted by Mr Fabien Cagneux, Managing Counsel of the ADD, and joined by the following: For the Claimant: • Awais Khan (Witness) - Page 6 CAS Anti-Doping Division Chambre Anti-dopage du TAS • Maurits Huijskens (Witness) • Nicolas Zbinden (Counsel) For the Respondents: 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt • Mr Amjad (Amin) Butt (Respondent) • Muhammad Waqas Akbar (Respondent) • Mr Awais Akbar (Witness) • Mr. Ayan Khalid did not ultimately appear of testify. 37. At the outset of the hearing, the Parties confirmed that they had no objection to the appointment of the Sole Arbitrator. At the close of the hearing, the Parties confirmed that they had received a fair hearing and had been given the opportunity to fully present their cases. IV. SUBMISSIONS OF THE PARTIES A. 38. The Claimant The essence of the Claimant’s submission is that on 10 November 2021, the Respondents (i) violated Article 2.5 of the 2021 IWF ADR by Tampering or Attempted Tampering with part of the Doping Control by an Athlete or Other Person, and (ii) violated Article 2.9 of the 2021 IWF ADR by Complicity or Attempted Complicity by an Athlete or Other Person. 39. 40. 41. The burden of proof is on the IWF to establish, to the comfortable satisfaction of the Sole Arbitrator, that an ADRV has occurred. Article 3.1 of the IWF ADR defines the comfortable satisfaction standard as “greater than a mere balance of probability but less than proof beyond a reasonable doubt”. The IWF submits that it has met its evidentiary thresholds in proving that the Respondents have each committed an ADRV for Tampering or Attempted Tampering with any part of Doping Control and Complicity or Attempted Complicity. The Respondents argued that the DCO failed or refused to provide any identification or documentation to validate the authenticity of the DCO’s mission. Witness Kahn refuted this claim, and the Sole Arbitrator was required to reconcile diametrically contradictory sworn testimony. The Claimant notes that there is abundant contemporaneous evidence of the Respondents’ ADRV as reflected in: • The DCO was accompanied by four chaperones, viz. Jamshed Akbar, Javed Akhtar, Usama Hunjara and Qaiser Abbas for each of the Athletes. • The Doping Control personnel was duly accredited and had the following Authorization Documents for the Testing Mission: o ADAMS Mission Order M-1589126683; o ADAMS Whereabout Details Report for the Athletes; - Page 7 CAS Anti-Doping Division Chambre Anti-dopage du TAS 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt o A Letter of Authorisation from Clearidium, the Sample Collection Authority; o A personal National Identity Card of the DCO by the Pakistani Government; o The four Unsuccessful Attempts Reports filed by the DCO immediately after the event on 10 November 2021, which are all counter-signed by the respective chaperones; • The statements of the four Athletes filed upon conclusion of the unsuccessful mission, in their own handwriting and own words that “The DCO also provide us the letter of authorization from the organization;” and • The testimony of Mr. Khan and Maurits Huijskens, who had both the DCO and Respondent Butt on the phone to attempt to get the Athletes to understand that they needed to provide a sample. 42. 43. 44. 45. 46. 47. The Claimant adds that the fact that the DCO did not return to collect samples the next day also refutes the Respondents’ attempt to change the chain of events of 10 November 2021. The Claimant maintains that Mr. Khan was duly authorized to collect samples on behalf of the IWF as evidenced by the Authorization Documents and the Athletes have all acknowledged that Mr. Khan had duly notified them of their obligation to provide samples. The Claimant further submits that based on the guidance provided in CAS 2019/A/6148, the process followed by Mr. Khan was entirely compliant with the ISTI. It is worth reiterating that on 9 May 2023, the IWF initiated proceedings against the Athletes for an alleged ADRV pursuant to art. 2.3 of the 2021 IWF ADR for Evading, Refusing or Failing to Submit to Sample Collection, and on 1 March 2024, the CAS ADD found that the Athletes had committed an ADRV pursuant to art. 2.3 of the 2021 IWF ADR and sanctioned the Athletes with a period of Ineligibility of 4 years starting the from the date of the CAS Award. It is also submitted by the Claimant that evidence of the existence of the parallel National Anti-Doping Organization (“NADO”) has not been established. In their Requests for Arbitration, the Claimant sought the following relief: 1) The International Weightlifting Federation’s request for arbitration is admissible regarding Mr. Muhammad Waqas Akbar. 2) Mr. Muhammad Waqas Akbar is found to have committed anti-doping rule violations under art. 2.5 and/or 2.9 of the 2021 IWF ADR. 3) Mr. Muhammad Waqas Akbar is sanctioned with a period of ineligibility of four (4) years starting on the date on which the CAS Anti-Doping Division enters into force. - Page 8 CAS Anti-Doping Division Chambre Anti-dopage du TAS 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt 4) The arbitration costs of the proceedings (if any) shall be borne by Mr. Muhammad Waqas Akbar. 5) The ITA is granted an award for its legal and other costs pursuant to art. 10.12.1 of the 2021 IWF ADR. And B. 48. 1) The International Weightlifting Federation’s request for arbitration is admissible regarding Mr. Amjad (Amin) Butt. 2) Mr. Amjad (Amin) Butt is found to have committed anti-doping rule violations undert art. 2.5 and/or 2.9 of the 2021 IWF ADR. 3) Mr. Amjad (Amin) Butt is sanctioned with a period of ineligibility of four (4) years starting on the date on which the CAS Anti-Doping Division enters into force. 4) The arbitration costs of the proceedings (if any) shall be borne by Mr. Amjad (Amin) Butt. 5) The ITA is granted an award for its legal and other costs pursuant to art. 10.12.1 of the 2021 IWF ADR. The Respondents The Respondents submitted that they blocked and refused the testing of the Athletes because the DCO refused to provide any documentation whatsoever to corroborate identity of the DCO or the legitimacy of the testing. It is their position that because of information that they had received about a parallel body to the Anti-Doping Organization of Pakistan operating within Pakistan, their suspicions were aroused when Mr. Khan appeared and they were not in a position to verify his documentation without the assistance of the Chairman of the ADOP. 49. 50. V. 51. The Respondents maintain that they were willing to allow the Athletes to participate in the testing but were only willing to agree to provide samples with the authorization of the PWF. The Respondents have asked to be exonerated from the allegations that they refused to allow the Athletes to provide samples. JURISDICTION Rule A2 of the CAS ADD rules provides as follows: CAS ADD shall be the first-instance authority to conduct proceedings and issue decisions when an alleged anti-doping rule violation has been filed with it and for imposition of any sanctions resulting from a finding that an anti-doping rule violation has occurred. CAS ADD has jurisdiction to rule as a first-instance authority on behalf of any WADA signatory which has formally designated its powers to CAS ADD to conduct anti-doping proceedings and impose applicable sanctions. - Page 9 CAS Anti-Doping Division Chambre Anti-dopage du TAS 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt These Rules apply whenever a case is filed with CAS ADD. Such filing may arise by reason of an arbitration clause in the Anti-Doping Rules of a WADC signatory, by contract or by specific agreement. 52. 53. 54. 55. The IWF appointed the CAS ADD to act as its first instance hearing panel as of 1 January 2021 pursuant Article 8.1.1 of the IWF ADR. This article states as follows: IWF has delegated its Article 8 responsibilities (first instance hearings, waiver of hearings and decisions) to the CAS ADD as an appropriate independent arbitration forum. The procedural rules of the arbitration shall be governed by the rules of the CAS ADD. CAS ADD will always ensure that the Athlete or other Person is provided with a fair hearing within a reasonable time by a fair, impartial and Operationally Independent hearing panel in compliance with the Code and the International Standard for Results Management. In light of the foregoing, the CAS ADD is vested with the jurisdiction to hear this proceeding. The Respondents confirmed to the ITA that they were requesting a hearing before the CAS ADD. As such, the CAS ADD’s jurisdiction is not in dispute. Separately, the Parties confirmed the CAS ADD jurisdiction by signing the Order of Procedure. VI. APPLICABLE LAW 56. 57. In accordance with Article A20 of the Rules, the Sole Arbitrator shall decide the dispute in accordance with the World Anti-Doping Code and the applicable anti doping rules or with the laws of a particular jurisdiction chosen by agreement of the parties, or in the absence of such a choice, according to Swiss law. The asserted ADRVs occurred in 2021 and shall therefore be governed by the IWF Rules in force at the time, the 2021 IWF ADR. VII. MERITS 58. 59. A. 60. The Sole Arbitrator observes that the main issues to be resolved are: a) Did the Respondents fail or refuse to allow the Athletes to provide samples after being advised of their requirement to do so by a duly authorized Doping Control Officer? b) Did the Respondents have a compelling justification for their refusal to allow the Athletes to provide a sample? These issues will be considered in turn. Did the Respondents refuse to allow the Athletes to provide samples to the Doping Control Officer? It is uncontested that the Athletes did not provide samples to the DCO, Mr. Awais Khan, on 10 November 2021. The Respondents have acknowledged that they did - Page 10 CAS Anti-Doping Division Chambre Anti-dopage du TAS 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt not allow the Athletes to provide samples after Mr. Khan requested that they do so. They argue however that they requested documentation from the DCO to corroborate the legitimacy of the DCO and the testing, and that the DCO refused to provide any identification or documentation. 61. 62. 63. 64. B. 65. 66. 67. The Respondents maintain that without the DCO’s identification and documentation, they could not satisfy themselves that they were receiving a legitimate request to provide samples from a DCO acting under the authority of the IWF. On the day in question, DCO Khan presented himself at the Respondents’ training location. He presented his authorization documents to the Respondents and notified them that the Athletes were required to provide a sample. Nevertheless, the Respondents informed the DCO that they would not allow the Athletes to provide a sample until “allowed” by the PWF or ADOP. By continuing to maintain that they would not allow the Athletes to provide a sample until authorized to do so by the PWF or the ADOP, the Respondents refused to allow their Athletes to provide the required samples. The DCO provided the following evidence of the Respondents’ refusal to accede to his request for samples to be collected from the Athletes: • The four Unsuccessful Attempts Reports filed by the DCO immediately after the event which were counter-signed by the respective chaperones; • The statements of the four Athletes in their own handwriting and in their own words; • The involvement of Mauritius Huijsken, DCO Khan’s superior who spoke with Respondent Butt, the PWF Vice-President, over the phone in an attempt to persuade the Athletes understand their obligation to provide a Sample; • The Picture of Mr. Khan with the Respondents and the chaperones taken at the end of the unsuccessful Testing mission. Did the Respondents have a compelling justification for their refusal to allow the Athletes to provide a Sample? Much of the Respondents’ argument was focused on their belief that they were justified in not allowing the Athletes to provide a sample when requested to do so. Pursuant to Article 2.5 of the 2021 IWF ADR, “Tampering or Attempted Tampering with any part of Doping Control by an Athlete or Other Person” constitutes an ADRV. According to the definitions section of the 2021 IWF ADR, Tampering is defined as an “Intentional conduct which subverts the Doping Control process but which would not otherwise be included in the definition of Prohibited Methods. Tampering shall include, without limitation, offering or accepting a bribe to perform or fail to perform an act, preventing the collection - Page 11 CAS Anti-Doping Division Chambre Anti-dopage du TAS 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt of a Sample, affecting or making impossible the analysis of a Sample, falsifying documents submitted to an Anti-Doping Organization or TUE committee or hearing panel, procuring false testimony from witnesses, committing any other fraudulent act upon the Anti-Doping Organization or hearing body to affect Results Management or the imposition of Consequences, and any other similar intentional interference of Attempted interference with any aspect of Doping Control.” Furthermore, the Comment to Tampering indicates that such ADRV “(…) includes misconduct which occurs during the Results Management process”. 68. 69. 70. 71. 72. Pursuant to CAS jurisprudence, Tampering “always requires satisfactory proof that the offender intended to subvert the investigation, even if he/she was unaware that he/she was violating an anti-doping provision.…] The Panel is of the view that in the specific context of the rules, intent does not need to be direct in the sense that subverting the doping control process was the sole and only driving motive behind the athlete’s actions. Rather, it is sufficient for there to be intent that the athlete recognised the consequences of his or her actions and accepted that such consequences have the potential to subvert the process”. See CAS 2021/A/7983 & 8059, §222; see also CAS 2017/A/4937, §128. In the present case, the Respondents instructed the Athletes not to provide samples to a duly accredited DCO. Their actions, which were intentional, had the consequence of subverting the process: without their actions, the doping controls would have taken place. It is clear that the Respondents’ aim was to prevent the Athletes from providing a sample. The Respondents’ conduct is an example of Tampering. The Respondents allege that their conduct was driven by the fact that there was an alleged “parallel NADO” operating in Pakistan. With respect, this explanation was never raised by the Respondents on the day in question. Indeed, when informed by the DCO of the Doping Control, the Respondents only noted that they had not been informed in advance, and asked to speak to the PWLF. At no point did they question the DCO’s mission. The Mission Order, which was shown to the Respondents by the DCO, contained the logo of the IWF and the name of the ITA. It bears also recalling that one of the Athletes tested positive on 26 October 2021, i.e., two weeks before the failed Doping Control. On the facts of this case, the Athletes declared at one point that they were willing to comply with their obligations but needed to have the authorization of the PWF and/or NADO represented by Dr. Waqar. Since prior authorization from a Member Federation or National Anti-Doping Organization is not a requisite of the IWF ADR or ISTI, the Respondents’ determination that they needed to wait for this approval prior to allowing the Athletes to test does not amount to compelling justification. Therefore, it is evident that the Respondents adopted an intentional conduct which subverted the Doping Control process. Their influence was decisive in the Athletes’ not providing a sample. - Page 12 CAS Anti-Doping Division Chambre Anti-dopage du TAS 73. 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt As per Article 2.9 of the 2021 IWF ADR, “Complicity or Attempted Complicity by an Athlete or Other Person” is prohibited. 74. 75. 76. 77. 78. C. 79. According to Article. 2.9 of the 2021 IWF ADR, Complicity includes “[a]ssisting, encouraging, aiding, abetting, conspiring, covering up or any other type of intentional complicity or Attempted complicity involving an anti-doping rule violation, Attempted anti-doping rule violation or violation of Article 10.14.1 by another Person”. Comment to Article 2.9 of the 2021 IWF ADR adds that “Complicity or Attempted Complicity may include either physical or psychological assistance.” The IWF alleges that the Respondents’ conduct would alternatively constitute a clear case of Complicity in respect of the Athletes’ refusal to submit to Doping Control. On the face of the rule, it is indeed clear that the Respondents “encouraged” the Athletes to refuse to submit to Doping Control. As far as intent is involved, the precedent of CAS 2018/A/5885, where a coach similarly instructed an athlete not to provide a sample is analogous: The Panel bears in mind that Mr. Salmond did everything he could to stop Mr. Barut from collecting a sample from Mr. Kozun, including repeatedly telling Mr. Kozun not to cooperate with Mr. Barut. Therefore, Mr. Salmond expressed clear intent from the moment he decided Mr. Kozun would not be tested by Mr. Barut. Indeed, the act of encouragement itself constitutes sufficient intent for the purposes of Article 2.9 WADC as the reference to “or any other type of intentional complicity involving an anti-doping rule violation” means literally (and purposively) that encouragement must itself be one type of intentional complicity of which the italicized phrase cited contemplates other types. Based on the foregoing, “encouragement” itself is intentional. The above considerations apply directly to the situation of the Respondents. It is clear that the Respondents’ Complicity “involved” an ADRV, i.e., the Athletes’ Refusal to Submit to Sample Collection (Article 2.3 of the 2021 IWF ADR). For these reasons, the Respondents committed a Complicity violation within the meaning of Article 2.9 of the 2021 IWF ADR. Period of Ineligibility Pursuant to Article 10.3 of the 2021 IWF ADR, the standard period of Ineligibility for violations of Article 2.3 shall be four years unless the Respondents are able to establish that the ADRV was not intentional. Article 10.3.1 of the 2021 IWF ADR is as follows: For violations of Article 2.3 or Article 2.5, the period of Ineligibility shall be four (4) years except: (i) in the case of failing to submit to Sample collection, if the Athlete can establish that the commission of the antidoping rule violation was not intentional, the period of Ineligibility shall be two (2) years; (ii) in all other cases, if the Athlete or other Person can establish exceptional circumstances that justify a reduction of the period of Ineligibility, the period of Ineligibility shall be in a range from two (2) years to four (4) years depending on the Athlete or other Person’s degree of Fault; or (iii) in a case involving a Protected Person - Page 13 CAS Anti-Doping Division Chambre Anti-dopage du TAS 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt or Recreational Athlete, the period of Ineligibility shall be in a range between a maximum of two (2) years and, at a minimum, a reprimand and no period of Ineligibility, depending on the Protected Person or Recreational Athlete’s degree of Fault. 80. 81. 82. 83. The Sole Arbitrator has found that the Respondents were aware of the obligations for the Athletes to submit to sample collection but purposefully Tampered with the Doping Control when they refused to allow the Athletes to complete the testing. The Sole Arbitrator has found that the Respondents were Complicit in encouraging an ADRV. There are no exceptional circumstances in this case that would warrant a reduction of the period of ineligibility for the ADRV from four years to two years, especially when the Athletes themselves each received a four-year period of ineligibility. Article 10.13 of the IWF ADR states that the period of Ineligibility shall start on the date of the final hearing decision providing for Ineligibility, unless the Respondents are entitled to a credit for serving a Provisional Suspension under Article 10.13.2, which is manifestly not the case in this matter. VIII. COSTS (…) IX. APPEAL 89. 90. 91. Article 8.2 of the IWF Anti-Doping Rules provides that: 8.21 At the end of the hearing, or promptly thereafter, CAS ADD shall issue a written decision that conforms with Article 9 of the International Standard for Results Management and which includes the full reasons for the decision, the period of Ineligibility imposed, the Disqualification of results under Article 10.10 and if applicable, a justification for why the greatest potential Consequences were not imposed. 8.22 IWF shall notify that decision to the Athlete or other Person and to other Anti-Doping Organizations with a right to appeal under Article 13.2.3, and shall promptly report it into ADAMS. The decision may be appealed as provided in Article 13. Article 13.1 of the IWF Anti-Doping Rules provides that: Decisions made under the Code or these Anti-Doping Rules may be appealed as set forth below in Articles 13.2 through 13.7 or otherwise provided in these Anti-Doping Rules, the Code or the International Standards. Such decisions shall remain in effect while under appeal unless the appellate body orders otherwise. Article 13.2.3.1 of the IWF Anti-Doping Rules which governs Appeals Involving International-Level Athletes or International Events, provides that: - Page 14 CAS Anti-Doping Division Chambre Anti-dopage du TAS 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt In cases under Article 13.2.1, the following parties shall have the right to appeal to CAS: (a) the Athlete or other Person who is the subject of the decision being appealed; (b) the other party to the case in which the decision was rendered; (c) IWF; (d) the National Anti-Doping Organization of the Person’s country of residence or countries where the Person is a national or license holder; (e) the International Olympic Committee or International Paralympic Committee, as applicable, where the decision may have an effect in relation to the Olympic Games or Paralympic Games, including decisions affecting eligibility for the Olympic Games or Paralympic Games; and (f) WADA. 92. Pursuant to Article A21 of the ADD Rules, this award may be appealed to the CAS Appeals Arbitration Division within 21 days from receipt of the notification of the final award with reasons in accordance with Articles R47 et seq. of the CAS Code of Sports-Related Arbitration, applicable to appeals procedures. * - Page 15 CAS Anti-Doping Division Chambre Anti-dopage du TAS 2024/ADD/92 IWF v. Muhammad Waqas Akbar 2024/ADD/93 IWF v. Mr Amjad (Amin) Butt ON THESE GROUNDS The Court of Arbitration for Sport rules that: 1. The Requests for Arbitration filed on 29 April 2024 by the International Testing Agency, on behalf of the International Weightlifting Federation, are upheld. 2. Mr. Muhammad Waqas Akbar and Mr. Amjad (Amin) Butt are each found to have committed an anti-doping rule violation pursuant to Articles 2.5 and 2.9 of the IWF Anti- Doping Rules. 3. Mr. Muhammad Waqas Akbar and Mr. Amjad (Amin) Butt are each sanctioned with a period of ineligibility of four (4) years starting from the date of this Award. 4. (…). 5. (…). 6. All other motions or prayers for relief are dismissed. Seat of arbitration: Lausanne, Switzerland Date: 24 February 2025

FIDJIFOTBOLLSPELARE

CAS 2024/A/10766 Sport Integrity Commission v. Turagalailai

ARBITRAL AWARD

delivered by the

COURT OF ARBITRATION FOR SPORT

sitting in the following composition:

Sole Arbitrator:

Ad hoc Clerk:

Ms Elizabeth Brimer KC, Melbourne, Australia

Ms Amy Silver, Attorney-at-law, Melbourne, Australia

in the arbitration between

Sport Integrity Commission, formerly Drug Free Sport New Zealand, Auckland, New

Zealand

Represented by Mr Adam McDonald and Kate Hursthouse, Counsel, Auckland, New Zealand

and

Inoke Turagalailai, Suva, Fiji

Represented by Ms Sarah Wroe, Barrister, Auckland, New Zealand - Appellant - - Respondent -

Palais de Beaulieu Av. des Bergières 10 CH-1004 Lausanne Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 www.tas-cas.org

CAS 2024/A/10766 – p 2

I. THE PARTIES

1.

2.

3.

4.

5.

6.

7.

8.

The Sport Integrity Commission (formerly Drug Free Sport New Zealand) is New

Zealand’s national anti-doping organisation (“the “Appellant”).1

Mr Inoke Turagalailai (“the “Respondent”) is a Fijian football player.

II. INTRODUCTION

The Appellant filed an appeal in the Court of Arbitration for Sport (“CAS”) against the

decision, by majority, of the Sports Tribunal of New Zealand (“the Tribunal”) of 3 July

2024 to impose a sanction of eight (8) months of ineligibility on the Respondent. The

appeal was filed under Rule 13.2.1 of the Sports Anti-Doping Rules 2023 (“SADR”).

III. BACKGROUND FACTS

Below is a summary of the relevant facts and allegations based on the parties’ written

and oral submissions and evidence. Additional facts and allegations found in the parties’

written submissions and evidence may be set out, where relevant, in connection with

the legal discussion that follows. While the Sole Arbitrator has considered all the facts,

allegations, legal arguments and evidence submitted by the parties in the present

proceedings, she refers in its Award only to the submissions and evidence she considers

necessary to explain her reasoning.

The Respondent is a Fijian football player who was playing for the Fijian Men’s

National Under 23 football team in the Oceania Football Confederation Men’s Olympic

Qualifying Tournament in New Zealand in September 2023.

As the Respondent was competing at an international level in New Zealand, he was

bound to the SADR by Rule 1.1.5.4 of the SADR.

The Respondent was tested in competition by the Appellant on 9 September 2023. The

Respondent declared on his Doping Control Form that he had taken or used energy gel,

magnesium tablets and whey protein.

The Respondent’s A Sample test showed the presence of Carboxy-THC metabolite: 11

nor-delta-9-tetrahydrocannabinol carboxylic acid (commonly known as cannabis).

Under the 2023 Prohibited List, cannabis is a specified substance which is prohibited

in-competition. It is classed as a substance of abuse.

1The first instance Anti-Doping Rule Violations (“ADVR”) application was brought by Drug Free Sport New

Zealand (“DFSNZ”), New Zealand’s previous national anti-doping organisation. DFSNZ was disestablished on 30

June 2024 and its functions subsumed by the Appellant, which commenced operations on 1 July 2024.

CAS 2024/A/10766 – p 3

9.

10.

11.

12.

13.

14.

The Respondent confirmed via his counsel that he did not wish to have his B Sample

tested and accepted a provisional suspension which was ordered by the Tribunal on 1

March 2024.

On 15 March 2024, the Appellant brought proceedings alleging breaches of Rule 2.1 of

the SADR (Presence of a Prohibited Substance or its Metabolites or Markers) and Rule

2.2 of the SADR (Use or Attempted Use).

The Respondent admitted the anti-doping rule violations (the ADRVs) and admitted that

he took cannabis on the morning of match day, meaning that he used the substance ‘in

competition’.

Having initially sought to rely on the no significant fault or negligence defence under

Rule 10.6 of the SADR, the Respondent withdrew his reliance on the no significant fault

or negligence defence. He maintained however, that he did not intentionally take

cannabis to enhance his performance.

The hearing before the Tribunal took place on 20 June 2024. DFSNZ accepted and the

Tribunal found that the Respondent did not take the substance intentionally to enhance

his performance pursuant to Rule 10.2.4.2 and noted that the Respondent’s sanction

would be that which is set out in Rule 10.2.2.

Rule 10.2 of the SADR is as follows:

“10.2 Ineligibility for Presence, Use or Attempted Use, or Possession of a

Prohibited Substances or Prohibited Methods

The period of ineligibility imposed for a violation of Rules 2.1, 2.2 or 2.6 shall

be as follows, subject to potential elimination, reduction or suspension pursuant

to Rules 10.5, 10.6 or 10.7:

10.2.1 The period of Ineligibility, subject to Rule 10.2.4 shall be four years

where:

10.2.1.1 The anti-doping rule violation does not involve a Specified

Substance or a Specified Method, unless the Athlete or other Person can

establish that the anti-doping rule violation was not intentional.

10.2.1.2 The anti-doping rule violation involves a Specified Substance or

a Specified Method and DFSNZ can establish that the anti-doping rule

violation was intentional.”

10.2.2 If Rule 10.2.1 does not apply, subject to Rule 10.2.4.1, the period of

Ineligibility shall be two years.

10.2.3 As used in Rule 10.2 the term “intention” is meant to identify those

Athletes or other Persons who engage in conduct which they knew constituted

CAS 2024/A/10766 – p 4

an anti-doping rule violation or knew that there was a significant risk that the

conduct might constitute or result in an anti-doping rule violation and manifestly

disregarded that risk. An anti-doping rule violation resulting from an Adverse

Analytical Finding for a substance which is only prohibited In-Competition shall

be rebuttably presumed to be not “intention” if the substance is a Specified

Substance and the Athlete can establish that the Prohibited Substance was Used

Out-of-Competition. An anti-doping rule violation resulting from an Adverse

Analytical Finding for a substance which is only prohibited In-Competition shall

not be considered “intentional” if the substance is not a Specified Substance and

the Athlete can establish that the Prohibited Substance was Used Out-of

Competition in a context unrelated to sport performance.

“10.2.4 Notwithstanding any other provision in Rule 10.2, where the anti

doping rule violation involves a Substance of Abuse:

10.2.4.1 If the Athlete can establish that any ingestion or Use occurred

Out-of-Competition and was unrelated to sport performance, then the

period of Ineligibility shall be three months Ineligibility. In addition, the

period of Ineligibility calculated under this Rule 10.2.4.1 may be reduced

to one month if the Athlete or other Person satisfactorily completes a

Substance of Abuse treatment program approved by DFSNZ. The period

of Ineligibility established in this Rule 10.2.4.1 is not subject to any

reduction based on any provision in Rule 10.6.

10.2.4.2 If the ingestion, Use or Possession occurred In-Competition,

and the Athlete can establish that the context of the ingestion, Use or

Possession was unrelated to sport performance, then the ingestion, Use

or Possession shall not be considered intentional for purposes of Rule

10.2.1 and shall not provide a basis for a finding of Aggravating

Circumstances under Rule 10.4.” (emphasis added and footnotes

omitted)

15.

16.

The Respondent was heard on the level of sanction. He contended that the application

of the SADR led to a disproportionate sanction being imposed, which sanction should

be reduced in the context of the principle of proportionality and equal treatment. He was

also heard on significant delay and the backdating of any period of ineligibility.

The Tribunal issued a split decision on 3 July 2024. The majority Tribunal concluded

that a two-year period of ineligibility would be unjust and disproportionate, and that a

just and proportionate sanction would be an eight-month period of ineligibility. In their

decision, the Tribunal found that:

CAS 2024/A/10766 – p 5

“Despite the wording of the Code, the majority considers that it can have regard

to proportionality. Under Swiss law anti-doping rules are subject to the

principles of proportionality and CAS jurisprudence would indicate that there is

a general discretion to consider proportionality and, where the circumstances

of a particular case raise the issue of proportionality, the majority has a duty to

ensure that any sanction it imposes is just and proportionate.2

The majority considers that a just and proportionate sanction would be an eight

month period of ineligibility… This acknowledges Mr Turagalailai’s breach of

the rules, the potential risk of harm to his own health by smoking a cannabis

cigarette on the morning of a game and the extent to which in so doing he might

have violated the spirit of sport. It also acknowledges… the difference in

sanctions for in-competition use of substances of abuse compared to out-of

competition use and the fact that substances of abuse are all treated the same.”3

17.

18.

The Tribunal concluded that it would be reasonable to backdate any period of

ineligibility to the date of the beginning of the Christmas shutdown period, 14 December

2023.

The Tribunal ordered, by majority that:

“a period of ineligibility from participation in any capacity in a competition or

activity organised, sanctioned, or authorised by any sporting organisation that

is a signatory to the SADR, of eight months, is imposed on Mr Turagalailai under

Rule 10.2, and by unanimous decision it is backdated to commence as from 14

December 2023. That means he is ineligible to participate in competitive sports

until 14 August 2024”

(“the majority Tribunal decision”).

IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

19.

20.

On 24 July 2024, the Appellant filed a Statement of Appeal in accordance with Article

R48 of the Code of Sports-related Arbitration (2023 Edition) (“the CAS Code”). In its

Statement of Appeal, the Appellant requested that the matter be heard by a Sole

Arbitrator. On 5 August 2024, the Respondent consented to the matter being heard by a

Sole Arbitrator.

On 5 August 2024, the Appellant filed an Appeal Brief in accordance with Article R51

of the CAS Code.

2Drug Free Sport New Zealand v Turagalailai ST01/24, 3 July 2024 at [63].

3Drug Free Sport New Zealand v Turagalailai ST01/24, 3 July 2024 at [65] – [66].

CAS 2024/A/10766 – p 6

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

On 26 August 2024, the Respondent filed its Response to the Appellant’s Statement of

Appeal in reply (the “Response”). No issue was taken with the late filing of the Response

under R55 of the CAS Code.

On 17 September 2024, with the consent of the parties, pursuant to Article R54 of the

CAS Code, the Deputy Division President of the CAS Appeals Arbitration Division

appointed Ms Elizabeth Brimer KC as Sole Arbitrator.

On 25 September 2024, the Registry wrote to the parties to confirm whether a Case

Management Conference was to be requested in these proceedings, pursuant to Article

R56 of the CAS Code.

On 26 September 2024, the Registry wrote to the parties to offer the Appellant the

opportunity to respond by way of written submission to section 3 of the Response which

stated:

“Alternatively, if the arbitrator upholds the appeal and determines that the

period of ineligibility should be two years, the respondent says that the

commencement date should be the date his sample was taken (9 September 2023)

in view of the substantial delays in the doping control process.”

On 27 September 2024, the parties responded agreeing that a Case Management

Conference was not required and that the Appellant file reply submissions as to

backdating.

On 17 October 2024, the Registry wrote to the parties seeking confirmation of the

agreed law applicable to the merits.

On 18 October 2024 the parties confirmed that the law applicable to the merits is New

Zealand Law.

On 24 October 2024, by agreement of the parties, the Appellant filed reply submissions

as to backdating in relation to the Response.

On 1 November 2024, the Registry sent the Order of Procedure to the parties for

agreement and signing.

On 1 November 2024, the parties signed and returned the Order of Procedure to the

Registry.

On 4 November 2024, the Appellant, on behalf of the Parties, filed a common bundle

of authorities in anticipation of the hearing.

CAS 2024/A/10766 – p 7

32.

33.

At 9:00am (AEDT) on 8 November 2024, the hearing of the appeal commenced at the

Registry’s Melbourne office. The Sole Arbitrator was assisted by Ms Amy Silver,

Solicitor in Melbourne, Australia, as ad hoc clerk. In addition, the following persons

attended the hearing (as present on the video conference):

For the Appellant

i.

ii.

iii.

iv.

v.

Mr Hayden Tapper (Appellant);

Mr Paul O’Neil (Appellant);

Ms Sadie Verity (Appellant);

Mr Adam McDonald (Counsel); and

Ms Kate Hursthouse (Counsel).

For the Respondent

i.

ii.

Mr Inoke Turagalailai (Respondent); and

Ms Sarah Wroe (Counsel).

The hearing proceeded by way of submissions. No witnesses were called to give oral

evidence. Following the hearing, the representatives for each of the parties confirmed

that their respective rights to be heard had been fully respected by the Sole Arbitrator

and that they had no issue with respect to the way the CAS procedure or hearing was

conducted.

V. OUTLINE OF THE APPEAL

34.

35.

The grounds of appeal are that the majority of the Tribunal erred in finding that:

i.

ii.

“when applying the SADR, the Tribunal has a general discretion to adjust

sanctions prescribed by the SADR on the basis of principles of proportionality;

and

on the basis of the purported discretion, a two-year period of ineligibility, as

prescribed under the SADR, was not applicable in this case because it

considered that sanction to be disproportionate and unjust on its assessment of

Mr Turagalailai’s violation of the SADR.”

The Appellant sought orders allowing the appeal and:

i.

ii.

“declaring that there is no general discretion for the Tribunal to adjust sanctions

prescribed under the SADR on the basis of principles of proportionality (the

Declaration);

imposing a sanction on Mr Turagalailai in accordance with the SADR; and

CAS 2024/A/10766 – p 8

iii.

36.

any other orders the panel or sole arbitrator, as the case may be, sees fit.”

During the Hearing, the Appellant accepted that the appeal is a hearing de novo.

Accordingly, it did not persist with or press the making of Order 1, the Declaration.

37.

38.

The Respondent’s position as stated in his Answer is that:

“the period of ineligibility of 8 months imposed by the Sports Tribunal of New

Zealand was appropriate as a sanction of two years would be unjust and

disproportionate. Sport Integrity Commission’s appeal should be dismissed.”

The Respondent seeks orders:

i.

ii.

iii.

iv.

“To dismiss the appeal filed by the Commission in its entirety;

To order the Commission to pay any and all costs of these appeal arbitration

proceedings; and

To dismiss any other relief sought by the Commission.

Alternatively, if the arbitrator upholds the appeal and determines that the period

of ineligibility should be two years, the respondent says that the commencement

date should be the date his sample was taken (9 September 2023) in view of the

substantial delays in the doping control process.”

VI. SUBMISSIONS OF THE PARTIES

39.

A.

40.

41.

This section of the award does not contain an exhaustive list of the Parties’ contentions,

its aim being to provide a summary of the substance of the Parties’ main arguments. In

considering and deciding upon the Parties’ claims in this Award, the Sole Arbitrator has

accounted for and carefully considered all of the submissions and evidence, including

allegations and arguments not mentioned in this section of the Award or in the

discussion of the claims below.

Summary of the Appellant’s Submissions

The Appellant’s Counsel, Mr McDonald and Ms Hursthouse, submitted that the

prescribed sanction under Rule 10.2.2 of the SADR of two years ineligibility should be

imposed as it is open to the Sole Arbitrator to find that the Respondent’s Anti-Doping

Rule Violations (“ADRV”) were unrelated to sport performance.

As the Respondent admitted to ingesting cannabis in-competition, he is not eligible for

a reduced period of ineligibility of three months or one month upon satisfactory

completion of a substance of abuse treatment program for out-of-competition ingestion

under Rule 10.2.4.1 of the SADR.

CAS 2024/A/10766 – p 9

42.

43.

Rule 10.2 of the SADR codifies the bases on which the prescribed sanctions for a breach

of SADR 2.1 or 2.2 can be eliminated, reduced or suspended. They are set out under

rule 10.5 (no fault or negligence), rule 10.6 (no significant fault or negligence), or rule

10.7 (substantial assistance/admissions).

The Respondent is not eligible for any of the reductions available to athletes according

to their level of fault. He used cannabis in-competition, ignoring the anti-doping

education he had received which warned him that he might be tested and that he should

not use drugs.

Proportionality

44.

45.

46.

47.

48.

The Appellant submitted that proportionality is inherent in the sanctioning regime in the

World Anti-Doping Code (2021) (“WADC”) and the SADR reflects the WADC. The

WADC specifically states that it “has been drafted giving consideration to the

principles of proportionality and human rights.”4 To the extent that the WADC and thus

the SADR prescribe consequences for ADRV’s they are deemed to be proportionate.

It is well accepted in CAS jurisprudence that proportionality is inherent in the sanction

framework of the WADC. This is illustrated by the availability of the no fault and no

significant fault defences. A fault-based sanction regime is the central basis on which

proportionality is able to be exercised by arbitrators.

The Appellant referred to Nabi v Estonian Centre for Integrity in Sports CAS

2021/A/8125 (“Nabi”), in which the Panel found that:

“…even an ‘uncomfortable feeling’ regarding a sanction mandated in the rules,

had there been one, would not have been sufficient to involve the principle of

proportionality where the applicable rules include a sanctioning regime which

is proportionate and contains a clear and considered mechanism which allows

for a reduction of the applicable sanction.”5

In CAS 2018/A/5546 Guerrero v FIFA, the Panel determined that even where the

application of the WADC may be perceived to bear harshly on an individual, arbitrators

ought not to depart from the WADC, because to do so would be destructive of it, and

legal certainty is critically important in this context.

If there is any ability at all for a panel to independently consider the principles of

proportionality in imposing a sanction, it could only be in the most exceptional of

circumstances. This could conceivably be where the SADR does not provide an answer,

or the WADC stipulates an outcome that is so insupportable or untenable that it cannot

be lawful. The present case falls a long way short of such a situation.

4WADC 2021, p.9.

5Nabi at [193].

CAS 2024/A/10766 – p 10

49.

50.

The Tribunal fell into error when it determined that when applying the SADR it has a

“general discretion” to adjust sanctions prescribed by the SADR if it considered the two

year sanction to be disproportionate. This is because:

i.

ii.

iii.

iv.

The WADC itself states that all of its provisions are mandatory in substance and

expressly sets out where discretions exist. The SADR are the anti-doping rules

that give effect to the WADC in New Zealand.

A general discretion is antithetical to the intent of the WADC. To adjust

prescribed sanctions on the basis of proportionality runs counter to the

application of the WADC as it is designed to operate, namely in a global and

harmonised way, across more than 200 jurisdictions and independent of the

particular criminal legal or societal conditions of any given jurisdiction. What is

a socially, morally or legally proportionate response to the use of cannabis will

be different in, for example, Singapore or Saudi Arabia than it is in New

Zealand.

The Tribunal’s apparent reliance on an obiter, somewhat “throw away”

comment of the Panel in RUSADA v Valieva CAS 2023/A/9451 (“Valieva”) in

determining that there is a general discretion to amend sanctions on

proportionality grounds does not bear scrutiny. The underlying authority cited

in Valieva, Puerta v ITF CAS 2006/A/1025 (“Puerta”) confirms the contrary. In

Puerta the Panel found that the existence of a general discretion would be:

“… inimical to the WADC, which seeks to achieve consistency and

certainty. The panel does not believe that such a discretion exists and

would not welcome its existence.”6

To the extent that the Respondent relies on the reference of the panel in I v FIA7

to “exercising its discretion” in imposing a period of ineligibility of eighteen

months (instead of the prescribed period of two years), it is an aberration and is

probably wrongly decided when the cases following are considered.

The Appellant acknowledged, however, that the appeal is de novo.8 Accordingly, the

Appellant did not persist with or press the making of the Declaration.

Sanction

51.

The Appellant submitted that the introduction of the Substance of Abuse provisions into

the WADC was a major change and was very carefully considered. The WADC review

was a two-year process with multiple rounds of stakeholder consultations on three

different exposure drafts (“the WADC review”).

6Puerta at [94].

7CAS 2010/A/2268.

8The comment to Rule 13.1.2 of the SADR is as follows: “CAS proceedings are de novo. Prior proceedings do

not limit the evidence or carry weight in the hearing before CAS.”

CAS 2024/A/10766 – p 11

52.

53.

54.

55.

56.

Sanctioning differences connected to Substances of Abuse, turning on whether use

occurred out-of-competition and whether use was related to sporting performance and

fault, are rational and consistent with the overarching policy objectives of the WADC

and the SADR. The sanction regime is a graduated and proportionate response

consistent with the policy objectives of the WADC:

i.

ii.

the lower sanction regime for out-of-competition use reflects an athlete

wellbeing approach to recreational drug use occurring out-of-competition and

that is unconnected to sporting performance; and

there are good reasons for the higher starting point for sanctions for in

competition use of substances of abuse including the protection of athlete health

and safety and the right of other athletes to compete in a safe and fair

environment.

The question of cannabis in-competition remaining on the prohibited list was examined

by the executive committee of WADA in 2022. The working group was composed of

external and internal experts in pharmacology, forensic toxicology, drugs of abuse,

pharmacies and sports medicine, and conducted a full de novo review of the status of

THC in sport.

The rationale for wanting firm deterrents of the use of cannabis in-competition is found

in the conclusions. In summary:

i.

ii.

iii.

there is compelling medical evidence that the use of THC is a risk for health,

mainly neurological, and has a significant impact on the health of young

individuals a cohort which is over-represented in athletes;

the evidence is not really conclusive either way on whether THC is performance

enhancing or not; and

looking at the so-called spirit of sport value, respect for self and other

participants includes the safety of fellow competitors and because of that reason

the use of THC in competition violates the spirit of sport.

In WADA’s own view, the welfare and safety of other participants may be compromised

by impaired judgment associated with the presence of cannabis in an athlete in

competition. WADA has described protection of athletes’ “right to compete in a safe

and fair environment” as its “raison d’etre”.9

The majority Tribunal’s view that the sanctioning regime under the SADR created a

“disparity” between in-competition and out-of-competition use, with the implication

that the difference led to disproportionate sanctioning outcomes, does not properly

consider underlying policy for differing sanctions for in-competition and out-of

9WADA Athletes & Support Personnel

CAS 2024/A/10766 – p 12

competition use. The majority Tribunal also overlooked the element of athlete “fault”

which has always been central to the sanction regime

B.

57.

Summary of the Respondent’s Submissions

The Respondent’s Counsel, Ms Wroe, accepted on behalf of Mr Turagalailai that the

effect of the SADR for use of cannabis in-competition that is unrelated to sport

performance is a two-year sanction, subject to reductions under rules 10.5, 10.6 and

10.7. However, she submitted that the applicable sanction of two years is unjust and

disproportionate. The period of ineligibility of eight months imposed by the Tribunal is

appropriate.

Proportionality

58.

59.

60.

61.

62.

The Respondent submitted that the WADC creates contractual arrangements between

sporting organisations and their members. They are intended to create proportionate

responses when athletes commit anti-doping rule violations. If they did not, they would

be illegal. Sitting behind those contractual relations is the general law and part of the

general law that applies in anti-doping law and sports law is the principle of

proportionality.

A sanction that is evidently and grossly disproportionate to the proven rule violation can

be considered a violation of fundamental justice and fairness and can be reduced to

ensure that it complies with the law of Switzerland which governs the anti-doping

regime. Proportionality is not “inherent” in the WADC in the manner described by the

Appellant which would make the drafters of the WADC the final arbiters of

proportionality rather than (ultimately) the courts.

The Respondent submitted that when read in context of the decision as a whole, the

majority Tribunal’s reference to a “general discretion” is an acknowledgement of the

issue of proportionality, that it will arise in rare cases and that it is necessary to have

something more than an “uncomfortable feeling” about the effects of a sanction for it to

offend the principles of proportionality.

Whilst Ms Wroe said she would not have used the term “general discretion”, nor did

she consider she had submitted to the Tribunal that there was one, whether the use of

the words “general discretion” by the Tribunal is appropriate is perhaps neither here nor

there for a de novo consideration of this case.

It is a nuanced point in relation to whether there needs to be a “gap” in the relevant rules

before a sanction can be reduced or what is meant by a gap in any particular case:

i.

In Puerta, the application of the rules led to a result. However, the CAS

determined that the rules did not properly provide for the situation in hand as it

would have led to a disproportionate response.

CAS 2024/A/10766 – p 13

ii.

63.

In I v FAI, the circumstances led to the need to examine the proportionality of

the sanction and adjust it to ensure that it remained proportionate.

The Respondent accepted that the scope for arguing that a sanction should not apply is

limited. The ability to get in behind the rules is limited, will only come up in rare cases

and you need more than an uncomfortable feeling about the rules. In most cases the

rules produce a proportionate result.

Sanction

64.

65.

66.

67.

68.

A sanction of two years would be grossly disproportionate in the circumstances of this

case. The relevant circumstances are:

i.

ii.

the unexplained changes to the WADC making the sanction for cannabis users

harsher than it used to be and disproportionately harsher for use in-competition,

without any clear connection to policy objectives; and

the particularly harsh effect on the Respondent given his personal situation and

living conditions.

The new approach to substances of abuse should be considered against the context of

the developments in the WADC including the increase to the decision limit for cannabis

in 2013 and the 2015 increase in the maximum sanction to four-years, but with the

ability to adjust the sanction depending on the degree of fault based on no significant

fault or negligence if the use of cannabis was unrelated to sport performance.

The new changes were made against the background of a debate as to whether cannabis

should continue to be on the Prohibited List. At the conclusion of the WADC review, it

was determined that cannabis ought to remain on the Prohibited List as it satisfies two

of the three inclusion criteria. That is, it represents an actual or potential risk to the

health of the athlete and it violates the spirit of sport as defined in the WADC. It was

not included on the Prohibited List under the first criteria; that it enhances or has the

potential to enhance sport performance.

The Respondent submitted that it is the presence of cannabis in the system that meets

those criteria, not the timing as to when the cannabis was taken. Any rationale for

prohibiting cannabis in competition comes from the harm that may occur given the

presence of the substance at particular levels in competition rather than the timing of

when it was taken. An athlete may take a substance out-of-competition just before

midnight and have the same levels of THC in their system than an athlete who used the

substance just after midnight. As such, the rationale or policy reason for distinguishing

between sanctions for in-competition and out of competition users is not supported.

Further, there is no reason to impose a period of ineligibility on an athlete who used the

substance in-competition so significantly longer than an athlete who used the substance

out-of-competition. The result of the changes is a much stricter regime for athletes who

CAS 2024/A/10766 – p 14

use in-competition than existed before. The different approach is manifestly

disproportionate and without any explanation or clear connection to policy objectives.

69.

70.

The effects of the 2021 changes suggest something has gone wrong in the introduction

of the substance of abuse provisions which was not anticipated or intended.

Alternatively, the approach taken by WADA is manifestly disproportionate, offends the

principles of proportionality and equal treatment and it ought not to be applied in the

circumstances. For example:

i.

ii.

iii.

iv.

If an athlete admits use of cannabis after midnight on the day of competition

they face stricter sanctions than would previously have applied before the

introduction of the substance of abuse provisions. This is despite the focus of

the commentary being on the need to offer treatment for athletes who use

substances of abuse.

More lenient sanctions were introduced and available to athletes who use a

substance of abuse out-of-competition. Why the same opportunity for sanction

reduction is not offered to athletes who use in-competition is not explained. The

need for rehabilitation is the same.

The changes to the “no significant fault” provisions together with substance of

abuse provisions create obvious disparities that are not explicable by any of the

purposes of the WADC. As the only real change in the goals sought to be

achieved by the introduction of the substance of abuse provisions is the focus on

the need for rehabilitation and treatment, that runs contrary to having longer

sanctions for people who would previously have been able to rely on the no

significant fault definition if the use was unconnected to sport performance.

Cannabis is treated in the same way as other Substances of Abuse such as Class

A drugs (e.g. cocaine) which are accepted to have a performance enhancing

aspect and which use would be more serious in relation to health, character and

the “spirit of sport”.

Consequently, in respect of the Respondent:

i.

ii.

he does not have access to the same possibility of a reduced sanction if he

undergoes treatment as an athlete who used cannabis out-of-competition. This

is even though his behaviour has not had a greater effect on sporting

performance, is no more risky in terms of potential impact on health and is open

to the same degree of criticism in relation to the spirit of sport;

had the previous version of the WADC applied to the Respondent’s

circumstances he would have been sanctioned on the basis of having no

significant fault or negligence because he could show that his use was not related

to sporting performance. That would have enabled a panel to look at the degree

of fault and to impose a proportionate sanction. Such a difference is not justified

by policies of retribution or education and may hinder his rehabilitation; and

CAS 2024/A/10766 – p 15

iii.

71.

the Respondent’s sanction for use of cannabis ought to be treated differently to

drugs such as cocaine but that is not available under the WADC or the SADR.

The aims of sanctions in relation to substances of abuse are rehabilitation, retribution

and education. The sanction here exceeds that which is reasonably required for the

justifiable aims of rehabilitation, retribution and education.

72.

73.

Past cases in New Zealand in which an athlete had cannabis in their system during

competition, for a first violation generally received sanctions of four to nine months

whether or not they had received education. These sanctions were sufficient to meet the

objectives of the WADC and considered proportionate.

The Respondent is a young man that does not work but received some payments when

he played football. He has suffered social isolation, loss of income and an effect on his

sense of wellbeing. Although he received anti-doping education there is no evidence

that he was told what the sanction would be if he took cannabis in-competition. The

goals of retribution and education have been achieved after a short sanction and would

have continued to be felt throughout the rest of the sanction which expired in mid

August 2024. Given the Respondent’s personal circumstances and living conditions, the

consequences of a sanction of two years is particularly harsh and disproportionate

VII. JURISDICTION

74.

75.

76.

77.

78.

This is an appeal from the majority Tribunal decision.

The appeal is brought pursuant to Rule 13.2.1 of the SADR. Under Rule 13.2.1 of the

SADR:

“In cases arising from participation in an International Event or in cases

involving International -Level Athletes, the decision may be appealed exclusively

to CAS.”

The appeal is conducted pursuant to the CAS Code.

Article R47 of the CAS Code provides as follows:

“An appeal against the decision of a federation, association or sports-related

body may be filed with CAS if the statutes or regulations of the said body so

provide or if the parties have concluded a specific arbitration agreement and if

the Appellant has exhausted the legal remedies available to it prior to the appeal,

in accordance with the statutes or regulations of that body.”

The parties agree that the CAS has jurisdiction This was confirmed by the parties in the

Order of Procedure signed by them on 1 November 2024 and at the hearing on 8

November 2024.

CAS 2024/A/10766 – p 16

79.

Therefore, CAS has jurisdiction to decide this matter.

VIII.

80.

ADMISSIBILITY

Article R49 of the CAS Code provides in relevant part as follows:

“In the absence of a time limit set in the statutes or regulations of the federation,

association or sports-related body concerned, or in a previous agreement, the

time limit for appeal shall be twenty-one days from the receipt of the decision

appealed against.”

81.

There is no issue that the appeal was lodged by the Appellants in time. As such the

appeal is admissible on that basis and there is no other objection to the admissibility of

the appeal.

IX. SCOPE OF THE SOLE ARBITRATOR’S REVIEW

82.

Article R57 of the CAS Code provides in relevant part as follows:

“The Panel has full power to review the facts and the law. It may issue a new

decision which replaces the decisions challenged or annul the decision and refer

the case back to the previous instance …”

X. APPLICABLE LAW

83.

84.

Article R58 of the CAS Code provides in relevant part as follows:

“The Panel shall decide the dispute according to the applicable regulations and,

subsidiarily, to the rules of law chosen by the parties or, in the absence of such

a choice, according to the law of the country in which the federation, association

or sports-related body which has issued the challenged decision is domiciled or

according to the rules of law that the Panel deems appropriate. In the latter case,

the Panel shall give reasons for its decision.”

The “applicable regulations” in this case is the SADR and subsidiarily, the applicable

law chosen by the Parties, i.e. New Zealand law.

XI. THE MERITS

85.

In the present appeal, the Appellant does not challenge the Tribunal’s finding that the

Respondent did not take cannabis intentionally to enhance his performance pursuant to

CAS 2024/A/10766 – p 17

Rule 10.2.4.2 of the SADR such that the appropriate sanction is the prescribed period

of ineligibility of two years under Rule 10.2.2 of the SADR.10

86.

87.

88.

B.

89.

90.

91.

The Respondent accepts:

i.

ii.

iii.

the ADRVs;

that he used cannabis ‘in-competition’; and

that the prescribed sanction under Rule 10.2.2 of the SADR is a period of

ineligibility of two years.

The present appeal concerns the consequences of the ADRVs; whether, as contended

for by the Appellant, the prescribed period of ineligibility of two years under Rule 10.2.2

of the SADR is the appropriate sanction to be imposed, not the period of ineligibility of

8 months imposed by the majority Tribunal having regard to the principle of

proportionality.

As a result of the Parties’ requests and submissions, the Sole Arbitrator will address:

i.

ii.

the application of the principle of proportionality in respect of sanctions

prescribed under the WADC (and the SADR); and

whether, in the circumstances of the Respondent’s case, the application of the

prescribed sanction would be unjust and disproportionate, violating the principle

of proportionality as contended for by the Respondent.

Proportionality

Proportionality is “…a general principle of law governing the imposition of sanctions

of any disciplinary body, whether it be public or private.”11

The principle of proportionality “…provides that the severity of a sanction must be

proportionate to the offense committed. To be proportionate, the sanction must not

exceed that which is reasonably required in the search of the justifiable aim.”12

In the Advisory Opinion delivered by the CAS in relation to the implementation of the

WADC into the FIA Disciplinary Code CAS 2005/C/976 & 978 (“the CAS Advisory

Opinion”),13 although the panel stated that the principle of proportionality is guaranteed

under the WADC, the opinion nevertheless held that:

10 Not four years under Rule 10.2.1 of the SADR.

11 Prof. G. Kaufmann-Kohler, et al., Legal Opinion on the Conformity of Certain Provisions of the Draft World

Anti-Doping Code with Commonly Accepted Principles of International Law, referred to in Puerta at [78].

12 I v FIA at [137] citing the Advisory Opinion delivered by the CAS in relation to the implementation of the WADC

into the FIA Disciplinary Code CAS 2005/C/976 & 978 at, [138]- [139].

13 At [143], referred to in Puerta at [82].

CAS 2024/A/10766 – p 18

“The right to impose a sanction is limited by the mandatory prohibition of

excessive penalties, which is embodied in several provisions of Swiss Law. To

find out whether a sanction is excessive, a judge must review the type and scope

of the proved rule violation, the individual circumstances of the case, and the

overall effect of the sanction on the offender. However, only if the sanction is

evidently and grossly disproportionate in comparison to the proved rule

violation and if it is considered as a violation of fundamental justice and

fairness, would the Panel regard such a sanction as abusive and, thus, contrary

to mandatory Swiss Law.”14

92.

93.

94.

95.

96.

97.

The Sole Arbitrator accepts Ms Wroe’s submission that if the consequences prescribed

by the WADC (and the SADR) for ADRVs are deemed to be proportionate as contended

for by the Appellant, that “…would make the drafters of the Code the final arbiters of

proportionality rather than (ultimately) the courts.”

The circumstances in which the WADC has been found not to provide a just and

proportionate sanction, however, have been described as “in those very rare cases…”15,

and in “…a very exceptional situation…”.16

This is perhaps unsurprising given that the WADC was drafted having regard to the

principals of proportionality:

“The Code has been drafted giving consideration to the principles of

proportionality and human rights.”17

Where however, the imposition of a sanction constitutes an infringement of individual

rights that is “evidently or grossly disproportionate to the proved rule violation” and is

considered a violation of fundamental justice and fairness, the decision maker is

“mandated” to impose a proportionate sentence.18

Accordingly, the description of the application of the principle of proportionality as an

exercise of a “general discretion” as referred to in the majority Tribunal decision, is

inapposite. Indeed, the Respondent did not contend that there is a “general discretion”

as such.

The absence of a “general discretion” as referred to by the majority Tribunal, is

supported by the decision in Puerta, in which the Panel considered that on the particular

facts of that case, the WADC did not provide a just and proportionate sanction by reason

of there being a “gap or lacuna” which was to be filled by the Panel “…applying the

14 CAS 2005/C/976 & 986 at [143], cited in Puerta.

15 Puerta at [92].

16 I v FIA at [144].

17 The Code, Purpose, Scope and Organisation of the World Anti-Doping Program and the Code p.8.

18 Puerta “Any sanction must be just and proportionate. If it is not, the sanction may be challenged” at [90].; I v

FIA at [138].

CAS 2024/A/10766 – p 19

overarching principle of justice and proportionality on which all systems of law, and

the WADC itself, is based.” In undertaking that exercise, the Panel disavowed any

exercise of a general discretion. The Panel went further and stated that:

“Although the WADC does provide for tribunals to exercise a discretion in

certain, limited circumstances…it [the principle of proportionality] does not

bestow upon tribunals a general discretion. Indeed, the existence of such a

general discretion would be inimical to the WADC, which seeks to achieve

consistency and certainty…”19

“The Panel has attempted to make it as clear as it possibly can that its decision

in the present case does not involve the exercise of a discretion…”20

98.

Although the word “discretion” was used by the Valieva panel in obiter observations

made in closing remarks, the Sole Arbitrator does not consider that it supports a finding

of a “general discretion’ as referred to by the Tribunal when considered in the context

of its adoption of the panel’s observations in Guerrero and reliance on Puerta:

“…The panel carefully considered whether there was scope for the exercise of

its discretion to reduce the period of ineligibility according the principles of

proportionality adumbrated in CAS 2006/A/1025 [Puerta] and CAS

2007/A/1252. In the result…a majority of the Panel decided against such a

course and in this respect adopts what was said by the panel in CAS 2018/A/5546

[Guerrero] at [86-90]:

“86. Additionally, the CAS jurisprudence since the coming into effect of

WADC 2015 is clearly hostile to the introduction of proportionality as a

means of reducing yet further the period of ineligibility provided for by

the WADC (and there is only one example of its being applied under the

previous version of the WADC). In CAS 2016/A/4534, when addressing

the issue of proportionality, the Panel stated: “The WADC 2015 was the

product of wide consultation and represented the best consensus of

sporting authorities as to what was needed to achieve as far as possible

the desired end. It sought itself to fashion in a detailed and sophisticated

way a proportionate response in pursuit of a legitimate aim.” (para.

51)…

…89. The Panel is conscious of the much quoted legal adage “Hard

cases make bad law”, and the Panel cannot be tempted to breach the

boundaries of the WADC…because their application in a particular case

may bear harshly on a particular individual…

19 Puerta at [92]-[94].

20 Puerta at [98].

CAS 2024/A/10766 – p 20

92. It is in the Panel’s view better, indeed necessary, for it to adhere to

the WADC. If change is required, that is for a legislative body in the

iterative process of review of the WADC, not an adjudicative body which

has to apply the lex lata, and not some version of the lex ferenda.”

425. A majority of the Panel agrees that so it is in this case…”

99.

In I v FIA, the panel considered that the principle of proportionality may “mandate a

judging body”, in the particular circumstances before the Panel, to reduce the sanction

below that which is provided by the applicable sports rules derived from the WADC.21

Having regard to the particular circumstances of that case, the panel considered that the

fixed two-year sanction must be “measured against the principle of proportionality to

check whether in the specific case of that driver, the sanction was consistent with the

principle of proportionality.” The specific circumstances included that the appellant was

13 years at the time of the award, he was competing in a youth category and not against

adults at the top level. Significantly, given the timing of the European karting season,

the overall effect of a two-year sanction would extend well beyond the 24 months,

impacting three karting seasons. The Panel went on to state:

“Considering all of the above and exercising its discretion, the Panel deems that,

exceptionally, a period of ineligibility of eighteen months must be considered as

proportionate to the offense and, thus, a just and fair penalty.”

100. The reference to an exercise of discretion in determining the period of ineligibility that

would be just and proportionate, having formed the view it was mandated to reduce the

sanction below that which was prescribed by the particular rules is not inconsistent with

the approach set out above.

C.

Sanction

101. The appropriate sanction is the prescribed period of ineligibility of two years under Rule

10.2.2 of the SADR as the Respondent’s use of cannabis was unrelated to sport

performance.

102. For the reasons set out below, the Sole Arbitrator does not consider that the application

of the prescribed sanction under Rule 10.2.2 violates the principle of proportionality in

the circumstances of this case. It is not a case where the sanction is “evidently and

grossly disproportionate in comparison to the proved rule violation” such as to

constitute a violation of fundamental justice and fairness, contrary to mandatory Swiss

law.

21 I v FIA at [138].

CAS 2024/A/10766 – p 21

103. The fundamental rationale for the WADC (and the SADR) is reflected on page 2 of the

SADR:

“Anti-doping programs are founded on the intrinsic value of sport. This intrinsic

value is often referred to as “the spirit of sport”: the ethical pursuit of human

excellence through the dedicated perfection of each Athlete’s natural talents.

Anti-doping programmes seek to protect the health of Athletes and to provide

the opportunity for Athletes to pursue human excellence without the Use of

Prohibited Substances and Prohibited Methods.

Anti-doping programmes seek to maintain the integrity of sport in terms of

respect for the rules, other competitors, fair competition, a level playing field,

and the value of clean sport to the world.

The spirit of sport is the celebration of the human spirit, body and mind. It is the

essence of Olympism and is reflected in the values we find in and through sport,

including:

• Health

• Ethics, fair play and honesty…

• Excellence in performance

• Character and Education…”

104. The policy objectives that justify the infringement on the Respondent’s fundamental

rights are addressed in the 2021 Code Revision – Third Draft, the Summary of Major

Modifications (“the Summary”), the 2021 WADC and ISF Development and

Implementation Guide for Stakeholders (“the Stakeholders Guide”) and the WADA

“Substances of abuse under the 2021 World Anti-Doping Code” guidance note for anti

doping organizations (“the Guidance Note”). They are supported by the Summary of

Major Modifications and Explanatory Notes to the 2023 Prohibited List (“the

Explanatory Notes”), and the article authored by Thomas Hudzik titled “Cannabis and

sport: A World Anti-Doping perspective”22 (“the Hudzik article”).

(collectively, “the Materials”)23

105. Read together, the rationale and policy basis for differentiating between sanctions

imposed where a substance of abuse is used in-competition and where it is used out-of

competition is evident.

22 Editorial in “Addiction SSA” 2023 Society for the Study of Addiction Journal received 1 March 2023, accepted

17 July 2023.

23 Included in the common bundle of authorities filed by the Parties.

CAS 2024/A/10766 – p 22

106. The Materials reveal a connection between the risk to health of athletes that use

cannabis, the potential health and safety impacts of cannabis at certain levels in

competition and the connection between those levels and the timing of the use of

cannabis:

i.

ii.

iii.

iv.

v.

The List Expert Advisory Group (LiEAG) concluded that there is compelling

medical evidence that use of THC is a risk for health, mainly neurological, that

has a significant impact on the health of young individuals, a cohort which is

overrepresented in athletes;24

It was found that there is comprehensive historical literature as well as a rapidly

growing body of contemporary literature supporting the assertion that cannabis

use can negatively impact the health, safety or wellbeing of the athlete. As stated

in the Hudzik article:

“Acute intoxication can result in deficits in reaction time, temporal

estimation and dexterity [7-11] as well as in psychiatric symptoms

[12]….”25

In respect of the use of cannabis in-competition, the Explanatory Notes record

that at the levels of cannabis required to trigger an Anti-Doping Rule Violation

In-Competition26:

“…they would be problematic on medical grounds for a competing

Athlete, or indicative of a chronic habitual user.”27

The current decision limit of 180 ng/ml of THC in urine and a cut-off of 150

ng/ml plus the uncertainty of measurement of 30 ng/ml takes account of the

prohibition of cannabis being in-competition only.28 According to the authors of

the Hudzik article:

“Because of these high thresholds, primarily chronic, frequent cannabis

users and athletes consuming high doses in-competition will be

detected.”29

The guidance note records the thought that was given to the relationship between

the time of the use of cannabis and the levels required to trigger an in

competition ADRV. It states:

24 The Explanatory Notes at p.9.

25 Hudzik article at p.2040.

26 The main psychoactive component of cannabis is reported as an Adverse Analytical Finding by

WADA-accredited laboratories when the urinary concentrations exceeds a threshold of 150 ng/ml with a Decision

Limit of 180 ng/ml. Explanatory Notes 2023 at p.7.

27 Explanatory notes Prohibited List 2023 at p.9.

28 Hudzik article at p.2041.

29 Hudzik article at p.2041.

CAS 2024/A/10766 – p 23

“Presence of carboxy-THC at a concentration above (>) the Decision

Limit (DL) of 180 ng/mL should be considered likely to correspond to an

In-Competition use of cannabis.”30

107. It is evident from the Materials that consideration was given to balancing an athletes’

freedom to consume cannabis legally outside of competition (although it was noted in

the Guidance Note that cannabis remains an illegal substance in the majority of the

world) and the above concerns in respect of the use of cannabis in-competition:

i.

ii.

The Explanatory Note records that:

“Because of these high thresholds, primarily chronic, frequent cannabis

users and athletes consuming high doses in-competition will be detected.

Therefore, the cut-off [which is defined as after 23:59 hours on the day

prior to competition] generally will not affect the freedom of an athlete

who wishes to legally consume cannabis outside of competition.” 31

The Hudzik article authors considered that:

“… the cut-off generally will not affect the freedom of an athlete who

wishes to legally consume cannabis outside of competition.”32

108. Consideration of the Spirit of Sport; the notion of respect for self and other participants,

part of the third criterion for inclusion on the Prohibited List supports the differentiation

between sanctions for use of a substance of abuse in-competition and out-of

competition. This criterion includes the welfare and safety of other participants and is

stated to be “as important as the other two criteria.”33 The Ethics Advisory Group noted

that the spirit of sport encompasses a number of universal values of sport including

respect for self and other participants and considered that:

“…the welfare and safety of other participants may be compromised by impaired

judgment associated with the presence of cannabis in an athlete in

competition.”34

109. The differentiated approach is further supported by:

i.

the first purpose of the WADC which is to “…protect the Athletes’ fundamental

right to participate in doping-free sport and thus promote health, fairness and

equality for Athletes worldwide…”. Protecting the health and safety of athletes

30 WADA Substances of abuse under the 2021 World Anti-Doping Code guidance note for anti-doping

organizations at p.3.

31 The Explanatory Notes at p.7.

32 Hudzik article at p.2040.

33 Hudzik article at p.2040. In its decision, the majority of the Tribunal noted that it “…does not see that the health

of the athlete includes the concept of the safety of the athlete or of other competitors…” at [30]. It appears the

Tribunal did not consider the safety of other participants under the Spirit of Sport criteria.

34 Hudzik article at p.2040.

CAS 2024/A/10766 – p 24

has been acknowledged by the CAS to be a significant function of the WADC.

In Guerrero, the panel observed in respect of the 2015 WADC that:

“The WADC 2015 was designed not only to punish cheating, but to

protect athletes’ health…”35

ii.

the expression of the ultimate goal of the WADC as stated in the stakeholders

guide:

“…The ultimate goal is for all athletes to benefit from the same anti

doping procedures and protections, no matter the sport, the nationality

or the country where tested, so that all athletes may participate in

competition that is both safe and fair.”36

110. Given the correlation between the decision limit and the likely use in-competition,

respect for the WADC, the SADR, and other participants takes on particular

significance having regard to the potential health and safety impacts on other

participants arising from impaired judgment in-competition. If, however, an athlete was

to return a sample above the decision limit, the product of chronic, frequent use out-of

competition, that is likely reflective of a lower degree of disrespect for the WADC and

the potential health and safety impacts on other participants. In those circumstances, the

emphasis on rehabilitation and a therapeutic approach to address recreational out-of

competition use and possible addiction issues may be readily understood.

111. Although there is no express statement in the Summary of the rationale for not taking

the same welfare or therapeutic approach to in-competition use, it is noted that in order

for the article to apply, the athlete must establish the use occurred out-of-competition

and was unrelated to sport performance. The third draft note records that if the use was

unrelated to sport performance then it shall not be considered “intentional” for the

purposes of the longer sanctions (with a reduction from four years to two years’

ineligibility).

112. One might readily infer the objective of deterring in-competition use for the protection,

health and safety of all participants including the relevant athlete. As such, that which

is reasonably required for the justified aims of rehabilitation and education on the one

hand and deterrence and retribution on the other differs in respect of in-competition and

out-of-competition use. This difference is reflected in the sanction regime and is

proportionate having regard to the purposes of the WADC (and the SADR) and the

objectives referred to above.

35 Guerro at [88].

36 2021 World Anti-Doping Code and International Standard Framework Development and Implementation Guide

for Stakeholders at p.1.

CAS 2024/A/10766 – p 25

113. The Respondent’s challenge in oral submissions to the difference between in

competition and out-of-competition sanctions focussed on the proposition that, having

regard to the 11.59pm cut off designating in-competition use, the levels of THC in an

athlete who used before midnight would be the same in-competition (and the levels of

impairment the same) as an athlete who used just after midnight. The disparity in

sanction for the athlete who consumed cannabis on the wrong side of midnight is

disproportionate.

114. Whether in any particular case, the presence of THC in an athlete’s system who used on

the “wrong” side of midnight is the same as an athlete who used cannabis on the “right”

side of midnight would be a matter for evidence in that particular case, should that issue

arise.

115. It is conceivable that there may be a case where the timing of ingestion and levels of

THC detected in the athlete’s system are significant facts and circumstances on the

question of proportionality having regard to the definition of in-competition. However,

that is not the Respondent’s case. The Respondent admitted to using cannabis on the

morning of the competition. The concentration in his sample was 444ng/ml.37 Any

potential issue arising from the definition of “in-competition” being the period

commencing at 11:59pm on the day before a competition through to the end of the

competition and sample collection process, does not arise on the facts and circumstances

of the Respondent’s case.

116. In relation to the Respondent’s submission that the substance of abuse changes result in

stricter sanctions for in-competition use of substances of abuse than would have applied

under the previous version of the WADC, (including given the change to the definition

of no significant fault), a complete and fair reading of the Materials reveals an expert

informed approach to the emphasis on athletes’ health and safety in-competition,

supporting the different sanctions applicable for use in-competition and use out-of

competition.

117. In relation to the failure of the substance of abuse provisions to differentiate between

substances of abuse such as cocaine and cannabis, Ms Wroe submitted that cannabis is

“…also different from cocaine…well certainly in our jurisdiction and possibly most

jurisdictions as being not as – that morally objectional as cocaine a lower level drug so

to speak…”. This submission involves a value judgment that is not necessarily reflected

in all jurisdictions across the globe.

118. The reality of the global application of the WADC is recognised in its introduction,

which states that:

37 Respondent’s document package section 4, Respondent’s response submissions at [9].

CAS 2024/A/10766 – p 26

“When reviewing the facts and the law of a given case, all courts, arbitral

hearing panels and other adjudicating bodies should be aware of and respect

the distinct nature of the anti-doping rules in the Code and the fact that those

rules represent the consensus of a broad spectrum of stakeholders around the

world with an interest in fair sport.”38

119. The Explanatory Notes record that the reviewers of the Prohibited List were cognisant

of shifting public attitudes and laws in certain countries, however determined that:

“…the weight of evidence and argument, along with broad international

restrictive regulatory laws and policies, supports the continuance of cannabis

on the Prohibited List at this time.”39

120. Other aspects of the sanction treatment of substances of abuse under the WADC and

referred to by the Respondent to illustrate disparities in the application of the substance

of abuse provisions, simply do not arise on the facts and circumstances of the

Respondent’s case.40

121. The issue for the Respondent is that, whilst his use was not related to sport performance

(and as such he is entitled to a reduction from four years to two years’ ineligibility), the

Respondent accepted in his written response that “…his level of fault was

‘significant’”41 in the sense that the no significant fault or negligence defence and any

further reduction in sanction is not open to him. The Respondent received anti-doping

education including in relation to the WADC:

i.

ii.

In relation to drugs, players were educated about the risks associated with

substance abuse, including the misuse of substances like cannabis. Over and

above anti-doping education, players were encouraged to adopt healthy habits,

refrain from smoking and excess alcohol consumption, uphold the values of

teamwork and fair play, preserve their reputation and career and safeguard their

health generally.42

Education was delivered during team meetings. One such meeting was on 31

July 2023 which the Respondent attended. The purpose of the meeting was to

discuss team culture, vision and playing style. Refraining from taking drugs was

stated as a “non-negotiable.”43

38 The WADC at p.18.

39 The Summary at p.9.

40 For example, for unintentional violations where no significant fault or negligence is found an athlete will be

sanctioned under SADR 10.6.1.1 in respect of specified substances other than substances of abuse, whereas the

user of a substance of abuse would be sanctioned under SADR 10.6.2, where there is not the same flexibility to

reduce a sanction according to fault.

41 Written Submissions of the Respondent at p.4.

42 Mr Augustine’s statement at [6] and [9].

43 Mr Augustine’s statement at [10].

CAS 2024/A/10766 – p 27

iii.

iv.

Anti-doping was also discussed during one-on-one medical screening processes

including habits related to smoking, alcohol and yagona (kava) consumption and

any form of drug usage including cannabis, meth, heroin and cocaine.44

On 26 August 2024 the athletes were told by text message “There will be doping

control in this tournament. OFC will do random drug tests at games. So please

don’t try and do anything silly”.

122. Whilst the new sanction regime for in-competition use of cannabis is undoubtedly a

significant step up from sanctions previously imposed for use of cannabis in New

Zealand, the cases referred to by the Respondent are for the most part pre-2021 decisions

of the Tribunal and are therefore not concerned with use in-competition under the

substance of abuse provisions. The weight to be given to those pre-2021 WADC

decisions in considering the principles of proportionality and equal treatment is limited.

123. Having regard to the Materials, it could not be said that the impact of the changes is the

product of a lack of thought for the consequences for cannabis users in the Respondent’s

position suggesting that something has gone wrong that was not anticipated or intended,

as submitted by the Respondent. This is underscored by the following:

i.

ii.

The WADC review was extensive and thorough. It involved three consultation

periods over two years, the consideration of submissions from 211 stakeholders,

the receipt of 2,035 comments, the holding of 68 meetings with stakeholders and

123 meetings of the code drafting team.45

In respect of the review of the inclusion of cannabis on the prohibited list, in

2022, WADA reviewed more than 2700 scientific articles.46 As part of the

scientific review process, “…world leading experts on cannabis and addiction

behaviour were consulted to validate the conclusions of the committees.”47

124. Any changes to the sanction regime for substances of abuse to address what the

Respondent identifies as “disparities” are, as aptly stated by the panel in Guerrero, for

“…a legislative body in the iterative process of review of the WADC, not an adjudicative

body which has to apply the lex lata [the law as it exists], and not some version of the

lex ferenda [what the law should be]”48 to make.

125. In relation to the impact and overall effect of the imposition of the sanction prescribed

by the SADR on the Respondent, football has been his only source of income in recent

years. Being banned from playing football has had a big impact on his life. It is the main

thing that he does to socialise and earn money. He has experienced shame and spends

44 Mr Augustine’s statement at [14].

45 The Stakeholders Guide at p.3.

46 Hudzik article at p.2040.

47 Hudzik article at p.2040.

48 Guerrero at [90].

CAS 2024/A/10766 – p 28

time indoors. It is hard for him to get a job. The situation is embarrassing. Not having

football in his life is boring to him, life is meaningless without football.49

126. The Sole Arbitrator accepts the Respondent’s statements. One may well have an

“uncomfortable feeling” about the impact of the sanction on the Respondent in light of

the significant step up in sanction since the introduction of the substance of abuse

provisions. However, for the reasons set out above, it could not be said that the impact

of the sanction produces an outcome that is “exceptional” or “rare” such as was found

to be the case in Puerta and I v FIA, where the panels considered the particular

circumstances led to a manifestly disproportionate effect on the individual with

reference to the goals and purposes of the WADC.

D.

Conclusion

127. The appropriate sanction is the prescribed period of ineligibility of two years under Rule

10.2.2 of the SADR. For the reasons set out above, I do not consider that the application

of the prescribed sanction of two years under Rule 10.2.2 of the SADR violates the

principle of proportionality in the circumstances of the Respondent’s case.

XII. THE COMMENCEMENT DATE OF THE SANCTION – SUBSTANTIAL DELAY

A.

Respondent’s Submissions

128. In his statement of defence,50 the Respondent submitted in the alternative that if the Sole

Arbitrator upholds the appeal and determines that the period of ineligibility should be

two years, the commencement date should be the date his sample was taken (9

September 2023) in view of the substantial delays in the doping control process. On a

full rehearing, the commencement date will need to be determined. The arbitrator is not

bound to accept the commencement date in the Tribunal if a different sanction is

imposed.

129. The Respondent submitted it is appropriate to backdate commencement of a longer

period of ineligibility to 9 September 2023, the date of sample collection. There was

substantial delay not attributable to the Respondent. The Respondent was not notified

of the ADRV for over 5 months from sample collection on 9 September 2023. No steps

were taken between the Appellant being notified on 28 November and 14 December

2023.

130. Once a delay is identified, the discretion that is available under Rule 10.13.1 is to go

right back to the date of the sample. There is no need to relate the backdating to a period

of delay. The whole period of the doping control process must be taken into account:

49 The Respondent’s Statement.

50 Answer of the Respondent dated 26 August 2024.

CAS 2024/A/10766 – p 29

i.

ii.

B.

The International Standard for Laboratories provides that the test result should

“occur in ADAMS” within 20 days of receipt of the Sample. In this case it took

38 days;

No steps were taken by the Appellant between being notified on 28 November

and 14 December 2023. Between 14 December and 9 February 2024, all that

happened was that FIFA and the Fiji federation were notified.

Appellant’s Submissions in Reply

131. The Appellant submitted that backdating even further would ignore the material delay

in serving the Respondent. This delay was caused by the Respondent having given only

a partial street address. Further, the Respondent’s submission ignores the time required

to advance proceedings in the ordinary course. CAS has urged restraint in applying

backdating as it can have the effect of undermining the anti-doping regime. Further, it

may be that the Arbitrator, considering the issues afresh finds that the backdating was

generous and the period ought to be reduced.

132. The starting point is that where there have been “substantial delays” in the Doping

Control process that are not attributable to the Athlete, the Tribunal may backdate the

period to a date as early as the date of sample collection.

133. CAS has found that, when considering whether there has been “substantial delay”, the

decision-maker must ask the following of itself:51

i.

ii.

iii.

iv.

How long has been the period of any delays in the disciplinary process? (a

question of fact);

Is any of that period attributable to the Athlete? (a question of fact);

After deducting any period found in answer to question (ii), are the overall

delays substantial? (a question of appreciation); and

If the answer to question (iii) is Yes (thereby triggering the Panel’s discretion),

should the Panel, having regard to all relevant circumstances, exercise its power

to backdate? (a question of judgment).

134. In his reply statement dated 18 August 2024, Mr Tapper set out the steps taken to

advance the case and appended a chronology. To the extent that there has been delay

not attributable to the athlete, it is, at best, generous to say that it was “substantial”.

C.

Conclusion

135. The Sole Arbitrator agrees with the Tribunal’s assessment that there was substantial

delay not attributable to the Respondent. The Tribunal stated as follows:

51 CAS 2020/A/7526&7559 at [221].

CAS 2024/A/10766 – p 30

“Answering the four questions posed by the CAS, the Tribunal assesses that there

was a five month time period between the sample being taken and notification of

the AAF; if we generously say that the average time period is three months, then

in this situation there was a delay of two months, which means it took 40% longer

than it should have and consequently the delay was substantial. The Tribunal

further assesses that the delay was not attributable to the athlete and was

exacerbated by a long period of inactivity spanning the New Zealand summer

break period…”52

136. Having found that there was substantial delay not attributable to the Respondent, the

Sole Arbitrator may start the period of ineligibility at an earlier date commencing as

early as the date of sample collection.53

137. The Sole Arbitrator does not accept, however, that no steps were taken by the Appellant

between it being notified of the AAF on 28 November 2023 and 14 December 2023 as

contended for by the Respondent. Mr Tapper’s statement and chronology refers to

DFSNZ seeking to confirm the Respondent’s membership of a signatory organisation

and to ascertain whether he had undertaken anti-doping education in New Zealand.

After 14 December 2023 and prior to Christmas, DFSNZ sought legal advice on matters

concerning the case. On 19 January 2024, in his first week back from the Christmas shut

down period, Mr Tapper contacted FIFA and Drug Free Sport Fiji. I accept that it took

time between 9 February 2024 and 16 February 2024 to serve the Respondent as the

phone number the Respondent provided on the Doping Control Form was invalid and

he had given a partial street address.

138. On balance, the Sole Arbitrator considers that backdating the commencement of the

period of ineligibility to 14 December 2023 strikes the right balance between

recognising substantial delay not attributable to the athlete due to the Christmas/New

Year shut down period and the exercise of restraint in applying backdating so as not to

have the effect of undermining the anti-doping regime. It also effects credit for the

period of ineligibility served by the Respondent between 14 December 2023 and 14

August 2024.54 It places the Respondent, in effect, in the position he would have been

in had the Tribunal imposed the prescribed period of ineligibility of two years.55

i.

On 25 March 2025, Ms Wroe informed the CAS that the Fiji Football

Association is treating the Respondent as ineligible to play until the appeal is

finalised. On 22 April 2025, the Respondent’s father re-iterated that the Fiji

Football Association “still treats this case as no game” for the Respondent.

52 Majority Tribunal decision at [76].

53 Rule 10.13.1. CAS 2018/A/5853 FIFA v Tribunal Nacional Disciplinario Antidopaje & Damian Marcelo Musto

at [145]-[147].

54 Rule 10.13.2.1.

55 CAS 2014/A/3868 WADA v Bhupender Singh and NADA India at [64]

CAS 2024/A/10766 – p 31

ii.

There is no information to the contrary. On 21 May 2025, in response to a query

from the CAS as to the Appellant’s position, the Appellant informed the CAS

that it confirmed to Fiji Football that the period of ineligibility imposed by the

Tribunal expired in August 2024 and the Respondent was eligible to return to

sport including while the decision was subject to appeal. However, the

Appellant stated it did not have any insight into Fiji Football disciplinary

matters.

139. Considering that the respondent has in effect been ineligible to play since 14 Dec 2023, a period

of ineligibility of 2 years commencing 14 Dec 2023 without any interruption can be imposed.

As a consequence, he shall be barred from participating in any Competition or other activity as

provided in Rule 10.14 of the SADR for a period of two years commencing on 14 December

2023.CAS 2024/A/10766 Sport Integrity Commission v. Turagalailai ARBITRAL AWARD delivered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: Sole Arbitrator: Ad hoc Clerk: Ms Elizabeth Brimer KC, Melbourne, Australia Ms Amy Silver, Attorney-at-law, Melbourne, Australia in the arbitration between Sport Integrity Commission, formerly Drug Free Sport New Zealand, Auckland, New Zealand Represented by Mr Adam McDonald and Kate Hursthouse, Counsel, Auckland, New Zealand and Inoke Turagalailai, Suva, Fiji Represented by Ms Sarah Wroe, Barrister, Auckland, New Zealand - Appellant - - Respondent - Palais de Beaulieu Av. des Bergières 10 CH-1004 Lausanne Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 www.tas-cas.org CAS 2024/A/10766 – p 2 I. THE PARTIES 1. 2. 3. 4. 5. 6. 7. 8. The Sport Integrity Commission (formerly Drug Free Sport New Zealand) is New Zealand’s national anti-doping organisation (“the “Appellant”).1 Mr Inoke Turagalailai (“the “Respondent”) is a Fijian football player. II. INTRODUCTION The Appellant filed an appeal in the Court of Arbitration for Sport (“CAS”) against the decision, by majority, of the Sports Tribunal of New Zealand (“the Tribunal”) of 3 July 2024 to impose a sanction of eight (8) months of ineligibility on the Respondent. The appeal was filed under Rule 13.2.1 of the Sports Anti-Doping Rules 2023 (“SADR”). III. BACKGROUND FACTS Below is a summary of the relevant facts and allegations based on the parties’ written and oral submissions and evidence. Additional facts and allegations found in the parties’ written submissions and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, she refers in its Award only to the submissions and evidence she considers necessary to explain her reasoning. The Respondent is a Fijian football player who was playing for the Fijian Men’s National Under 23 football team in the Oceania Football Confederation Men’s Olympic Qualifying Tournament in New Zealand in September 2023. As the Respondent was competing at an international level in New Zealand, he was bound to the SADR by Rule 1.1.5.4 of the SADR. The Respondent was tested in competition by the Appellant on 9 September 2023. The Respondent declared on his Doping Control Form that he had taken or used energy gel, magnesium tablets and whey protein. The Respondent’s A Sample test showed the presence of Carboxy-THC metabolite: 11 nor-delta-9-tetrahydrocannabinol carboxylic acid (commonly known as cannabis). Under the 2023 Prohibited List, cannabis is a specified substance which is prohibited in-competition. It is classed as a substance of abuse. 1The first instance Anti-Doping Rule Violations (“ADVR”) application was brought by Drug Free Sport New Zealand (“DFSNZ”), New Zealand’s previous national anti-doping organisation. DFSNZ was disestablished on 30 June 2024 and its functions subsumed by the Appellant, which commenced operations on 1 July 2024. CAS 2024/A/10766 – p 3 9. 10. 11. 12. 13. 14. The Respondent confirmed via his counsel that he did not wish to have his B Sample tested and accepted a provisional suspension which was ordered by the Tribunal on 1 March 2024. On 15 March 2024, the Appellant brought proceedings alleging breaches of Rule 2.1 of the SADR (Presence of a Prohibited Substance or its Metabolites or Markers) and Rule 2.2 of the SADR (Use or Attempted Use). The Respondent admitted the anti-doping rule violations (the ADRVs) and admitted that he took cannabis on the morning of match day, meaning that he used the substance ‘in competition’. Having initially sought to rely on the no significant fault or negligence defence under Rule 10.6 of the SADR, the Respondent withdrew his reliance on the no significant fault or negligence defence. He maintained however, that he did not intentionally take cannabis to enhance his performance. The hearing before the Tribunal took place on 20 June 2024. DFSNZ accepted and the Tribunal found that the Respondent did not take the substance intentionally to enhance his performance pursuant to Rule 10.2.4.2 and noted that the Respondent’s sanction would be that which is set out in Rule 10.2.2. Rule 10.2 of the SADR is as follows: “10.2 Ineligibility for Presence, Use or Attempted Use, or Possession of a Prohibited Substances or Prohibited Methods The period of ineligibility imposed for a violation of Rules 2.1, 2.2 or 2.6 shall be as follows, subject to potential elimination, reduction or suspension pursuant to Rules 10.5, 10.6 or 10.7: 10.2.1 The period of Ineligibility, subject to Rule 10.2.4 shall be four years where: 10.2.1.1 The anti-doping rule violation does not involve a Specified Substance or a Specified Method, unless the Athlete or other Person can establish that the anti-doping rule violation was not intentional. 10.2.1.2 The anti-doping rule violation involves a Specified Substance or a Specified Method and DFSNZ can establish that the anti-doping rule violation was intentional.” 10.2.2 If Rule 10.2.1 does not apply, subject to Rule 10.2.4.1, the period of Ineligibility shall be two years. 10.2.3 As used in Rule 10.2 the term “intention” is meant to identify those Athletes or other Persons who engage in conduct which they knew constituted CAS 2024/A/10766 – p 4 an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk. An anti-doping rule violation resulting from an Adverse Analytical Finding for a substance which is only prohibited In-Competition shall be rebuttably presumed to be not “intention” if the substance is a Specified Substance and the Athlete can establish that the Prohibited Substance was Used Out-of-Competition. An anti-doping rule violation resulting from an Adverse Analytical Finding for a substance which is only prohibited In-Competition shall not be considered “intentional” if the substance is not a Specified Substance and the Athlete can establish that the Prohibited Substance was Used Out-of Competition in a context unrelated to sport performance. “10.2.4 Notwithstanding any other provision in Rule 10.2, where the anti doping rule violation involves a Substance of Abuse: 10.2.4.1 If the Athlete can establish that any ingestion or Use occurred Out-of-Competition and was unrelated to sport performance, then the period of Ineligibility shall be three months Ineligibility. In addition, the period of Ineligibility calculated under this Rule 10.2.4.1 may be reduced to one month if the Athlete or other Person satisfactorily completes a Substance of Abuse treatment program approved by DFSNZ. The period of Ineligibility established in this Rule 10.2.4.1 is not subject to any reduction based on any provision in Rule 10.6. 10.2.4.2 If the ingestion, Use or Possession occurred In-Competition, and the Athlete can establish that the context of the ingestion, Use or Possession was unrelated to sport performance, then the ingestion, Use or Possession shall not be considered intentional for purposes of Rule 10.2.1 and shall not provide a basis for a finding of Aggravating Circumstances under Rule 10.4.” (emphasis added and footnotes omitted) 15. 16. The Respondent was heard on the level of sanction. He contended that the application of the SADR led to a disproportionate sanction being imposed, which sanction should be reduced in the context of the principle of proportionality and equal treatment. He was also heard on significant delay and the backdating of any period of ineligibility. The Tribunal issued a split decision on 3 July 2024. The majority Tribunal concluded that a two-year period of ineligibility would be unjust and disproportionate, and that a just and proportionate sanction would be an eight-month period of ineligibility. In their decision, the Tribunal found that: CAS 2024/A/10766 – p 5 “Despite the wording of the Code, the majority considers that it can have regard to proportionality. Under Swiss law anti-doping rules are subject to the principles of proportionality and CAS jurisprudence would indicate that there is a general discretion to consider proportionality and, where the circumstances of a particular case raise the issue of proportionality, the majority has a duty to ensure that any sanction it imposes is just and proportionate.2 The majority considers that a just and proportionate sanction would be an eight month period of ineligibility… This acknowledges Mr Turagalailai’s breach of the rules, the potential risk of harm to his own health by smoking a cannabis cigarette on the morning of a game and the extent to which in so doing he might have violated the spirit of sport. It also acknowledges… the difference in sanctions for in-competition use of substances of abuse compared to out-of competition use and the fact that substances of abuse are all treated the same.”3 17. 18. The Tribunal concluded that it would be reasonable to backdate any period of ineligibility to the date of the beginning of the Christmas shutdown period, 14 December 2023. The Tribunal ordered, by majority that: “a period of ineligibility from participation in any capacity in a competition or activity organised, sanctioned, or authorised by any sporting organisation that is a signatory to the SADR, of eight months, is imposed on Mr Turagalailai under Rule 10.2, and by unanimous decision it is backdated to commence as from 14 December 2023. That means he is ineligible to participate in competitive sports until 14 August 2024” (“the majority Tribunal decision”). IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT 19. 20. On 24 July 2024, the Appellant filed a Statement of Appeal in accordance with Article R48 of the Code of Sports-related Arbitration (2023 Edition) (“the CAS Code”). In its Statement of Appeal, the Appellant requested that the matter be heard by a Sole Arbitrator. On 5 August 2024, the Respondent consented to the matter being heard by a Sole Arbitrator. On 5 August 2024, the Appellant filed an Appeal Brief in accordance with Article R51 of the CAS Code. 2Drug Free Sport New Zealand v Turagalailai ST01/24, 3 July 2024 at [63]. 3Drug Free Sport New Zealand v Turagalailai ST01/24, 3 July 2024 at [65] – [66]. CAS 2024/A/10766 – p 6 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. On 26 August 2024, the Respondent filed its Response to the Appellant’s Statement of Appeal in reply (the “Response”). No issue was taken with the late filing of the Response under R55 of the CAS Code. On 17 September 2024, with the consent of the parties, pursuant to Article R54 of the CAS Code, the Deputy Division President of the CAS Appeals Arbitration Division appointed Ms Elizabeth Brimer KC as Sole Arbitrator. On 25 September 2024, the Registry wrote to the parties to confirm whether a Case Management Conference was to be requested in these proceedings, pursuant to Article R56 of the CAS Code. On 26 September 2024, the Registry wrote to the parties to offer the Appellant the opportunity to respond by way of written submission to section 3 of the Response which stated: “Alternatively, if the arbitrator upholds the appeal and determines that the period of ineligibility should be two years, the respondent says that the commencement date should be the date his sample was taken (9 September 2023) in view of the substantial delays in the doping control process.” On 27 September 2024, the parties responded agreeing that a Case Management Conference was not required and that the Appellant file reply submissions as to backdating. On 17 October 2024, the Registry wrote to the parties seeking confirmation of the agreed law applicable to the merits. On 18 October 2024 the parties confirmed that the law applicable to the merits is New Zealand Law. On 24 October 2024, by agreement of the parties, the Appellant filed reply submissions as to backdating in relation to the Response. On 1 November 2024, the Registry sent the Order of Procedure to the parties for agreement and signing. On 1 November 2024, the parties signed and returned the Order of Procedure to the Registry. On 4 November 2024, the Appellant, on behalf of the Parties, filed a common bundle of authorities in anticipation of the hearing. CAS 2024/A/10766 – p 7 32. 33. At 9:00am (AEDT) on 8 November 2024, the hearing of the appeal commenced at the Registry’s Melbourne office. The Sole Arbitrator was assisted by Ms Amy Silver, Solicitor in Melbourne, Australia, as ad hoc clerk. In addition, the following persons attended the hearing (as present on the video conference): For the Appellant i. ii. iii. iv. v. Mr Hayden Tapper (Appellant); Mr Paul O’Neil (Appellant); Ms Sadie Verity (Appellant); Mr Adam McDonald (Counsel); and Ms Kate Hursthouse (Counsel). For the Respondent i. ii. Mr Inoke Turagalailai (Respondent); and Ms Sarah Wroe (Counsel). The hearing proceeded by way of submissions. No witnesses were called to give oral evidence. Following the hearing, the representatives for each of the parties confirmed that their respective rights to be heard had been fully respected by the Sole Arbitrator and that they had no issue with respect to the way the CAS procedure or hearing was conducted. V. OUTLINE OF THE APPEAL 34. 35. The grounds of appeal are that the majority of the Tribunal erred in finding that: i. ii. “when applying the SADR, the Tribunal has a general discretion to adjust sanctions prescribed by the SADR on the basis of principles of proportionality; and on the basis of the purported discretion, a two-year period of ineligibility, as prescribed under the SADR, was not applicable in this case because it considered that sanction to be disproportionate and unjust on its assessment of Mr Turagalailai’s violation of the SADR.” The Appellant sought orders allowing the appeal and: i. ii. “declaring that there is no general discretion for the Tribunal to adjust sanctions prescribed under the SADR on the basis of principles of proportionality (the Declaration); imposing a sanction on Mr Turagalailai in accordance with the SADR; and CAS 2024/A/10766 – p 8 iii. 36. any other orders the panel or sole arbitrator, as the case may be, sees fit.” During the Hearing, the Appellant accepted that the appeal is a hearing de novo. Accordingly, it did not persist with or press the making of Order 1, the Declaration. 37. 38. The Respondent’s position as stated in his Answer is that: “the period of ineligibility of 8 months imposed by the Sports Tribunal of New Zealand was appropriate as a sanction of two years would be unjust and disproportionate. Sport Integrity Commission’s appeal should be dismissed.” The Respondent seeks orders: i. ii. iii. iv. “To dismiss the appeal filed by the Commission in its entirety; To order the Commission to pay any and all costs of these appeal arbitration proceedings; and To dismiss any other relief sought by the Commission. Alternatively, if the arbitrator upholds the appeal and determines that the period of ineligibility should be two years, the respondent says that the commencement date should be the date his sample was taken (9 September 2023) in view of the substantial delays in the doping control process.” VI. SUBMISSIONS OF THE PARTIES 39. A. 40. 41. This section of the award does not contain an exhaustive list of the Parties’ contentions, its aim being to provide a summary of the substance of the Parties’ main arguments. In considering and deciding upon the Parties’ claims in this Award, the Sole Arbitrator has accounted for and carefully considered all of the submissions and evidence, including allegations and arguments not mentioned in this section of the Award or in the discussion of the claims below. Summary of the Appellant’s Submissions The Appellant’s Counsel, Mr McDonald and Ms Hursthouse, submitted that the prescribed sanction under Rule 10.2.2 of the SADR of two years ineligibility should be imposed as it is open to the Sole Arbitrator to find that the Respondent’s Anti-Doping Rule Violations (“ADRV”) were unrelated to sport performance. As the Respondent admitted to ingesting cannabis in-competition, he is not eligible for a reduced period of ineligibility of three months or one month upon satisfactory completion of a substance of abuse treatment program for out-of-competition ingestion under Rule 10.2.4.1 of the SADR. CAS 2024/A/10766 – p 9 42. 43. Rule 10.2 of the SADR codifies the bases on which the prescribed sanctions for a breach of SADR 2.1 or 2.2 can be eliminated, reduced or suspended. They are set out under rule 10.5 (no fault or negligence), rule 10.6 (no significant fault or negligence), or rule 10.7 (substantial assistance/admissions). The Respondent is not eligible for any of the reductions available to athletes according to their level of fault. He used cannabis in-competition, ignoring the anti-doping education he had received which warned him that he might be tested and that he should not use drugs. Proportionality 44. 45. 46. 47. 48. The Appellant submitted that proportionality is inherent in the sanctioning regime in the World Anti-Doping Code (2021) (“WADC”) and the SADR reflects the WADC. The WADC specifically states that it “has been drafted giving consideration to the principles of proportionality and human rights.”4 To the extent that the WADC and thus the SADR prescribe consequences for ADRV’s they are deemed to be proportionate. It is well accepted in CAS jurisprudence that proportionality is inherent in the sanction framework of the WADC. This is illustrated by the availability of the no fault and no significant fault defences. A fault-based sanction regime is the central basis on which proportionality is able to be exercised by arbitrators. The Appellant referred to Nabi v Estonian Centre for Integrity in Sports CAS 2021/A/8125 (“Nabi”), in which the Panel found that: “…even an ‘uncomfortable feeling’ regarding a sanction mandated in the rules, had there been one, would not have been sufficient to involve the principle of proportionality where the applicable rules include a sanctioning regime which is proportionate and contains a clear and considered mechanism which allows for a reduction of the applicable sanction.”5 In CAS 2018/A/5546 Guerrero v FIFA, the Panel determined that even where the application of the WADC may be perceived to bear harshly on an individual, arbitrators ought not to depart from the WADC, because to do so would be destructive of it, and legal certainty is critically important in this context. If there is any ability at all for a panel to independently consider the principles of proportionality in imposing a sanction, it could only be in the most exceptional of circumstances. This could conceivably be where the SADR does not provide an answer, or the WADC stipulates an outcome that is so insupportable or untenable that it cannot be lawful. The present case falls a long way short of such a situation. 4WADC 2021, p.9. 5Nabi at [193]. CAS 2024/A/10766 – p 10 49. 50. The Tribunal fell into error when it determined that when applying the SADR it has a “general discretion” to adjust sanctions prescribed by the SADR if it considered the two year sanction to be disproportionate. This is because: i. ii. iii. iv. The WADC itself states that all of its provisions are mandatory in substance and expressly sets out where discretions exist. The SADR are the anti-doping rules that give effect to the WADC in New Zealand. A general discretion is antithetical to the intent of the WADC. To adjust prescribed sanctions on the basis of proportionality runs counter to the application of the WADC as it is designed to operate, namely in a global and harmonised way, across more than 200 jurisdictions and independent of the particular criminal legal or societal conditions of any given jurisdiction. What is a socially, morally or legally proportionate response to the use of cannabis will be different in, for example, Singapore or Saudi Arabia than it is in New Zealand. The Tribunal’s apparent reliance on an obiter, somewhat “throw away” comment of the Panel in RUSADA v Valieva CAS 2023/A/9451 (“Valieva”) in determining that there is a general discretion to amend sanctions on proportionality grounds does not bear scrutiny. The underlying authority cited in Valieva, Puerta v ITF CAS 2006/A/1025 (“Puerta”) confirms the contrary. In Puerta the Panel found that the existence of a general discretion would be: “… inimical to the WADC, which seeks to achieve consistency and certainty. The panel does not believe that such a discretion exists and would not welcome its existence.”6 To the extent that the Respondent relies on the reference of the panel in I v FIA7 to “exercising its discretion” in imposing a period of ineligibility of eighteen months (instead of the prescribed period of two years), it is an aberration and is probably wrongly decided when the cases following are considered. The Appellant acknowledged, however, that the appeal is de novo.8 Accordingly, the Appellant did not persist with or press the making of the Declaration. Sanction 51. The Appellant submitted that the introduction of the Substance of Abuse provisions into the WADC was a major change and was very carefully considered. The WADC review was a two-year process with multiple rounds of stakeholder consultations on three different exposure drafts (“the WADC review”). 6Puerta at [94]. 7CAS 2010/A/2268. 8The comment to Rule 13.1.2 of the SADR is as follows: “CAS proceedings are de novo. Prior proceedings do not limit the evidence or carry weight in the hearing before CAS.” CAS 2024/A/10766 – p 11 52. 53. 54. 55. 56. Sanctioning differences connected to Substances of Abuse, turning on whether use occurred out-of-competition and whether use was related to sporting performance and fault, are rational and consistent with the overarching policy objectives of the WADC and the SADR. The sanction regime is a graduated and proportionate response consistent with the policy objectives of the WADC: i. ii. the lower sanction regime for out-of-competition use reflects an athlete wellbeing approach to recreational drug use occurring out-of-competition and that is unconnected to sporting performance; and there are good reasons for the higher starting point for sanctions for in competition use of substances of abuse including the protection of athlete health and safety and the right of other athletes to compete in a safe and fair environment. The question of cannabis in-competition remaining on the prohibited list was examined by the executive committee of WADA in 2022. The working group was composed of external and internal experts in pharmacology, forensic toxicology, drugs of abuse, pharmacies and sports medicine, and conducted a full de novo review of the status of THC in sport. The rationale for wanting firm deterrents of the use of cannabis in-competition is found in the conclusions. In summary: i. ii. iii. there is compelling medical evidence that the use of THC is a risk for health, mainly neurological, and has a significant impact on the health of young individuals a cohort which is over-represented in athletes; the evidence is not really conclusive either way on whether THC is performance enhancing or not; and looking at the so-called spirit of sport value, respect for self and other participants includes the safety of fellow competitors and because of that reason the use of THC in competition violates the spirit of sport. In WADA’s own view, the welfare and safety of other participants may be compromised by impaired judgment associated with the presence of cannabis in an athlete in competition. WADA has described protection of athletes’ “right to compete in a safe and fair environment” as its “raison d’etre”.9 The majority Tribunal’s view that the sanctioning regime under the SADR created a “disparity” between in-competition and out-of-competition use, with the implication that the difference led to disproportionate sanctioning outcomes, does not properly consider underlying policy for differing sanctions for in-competition and out-of 9WADA Athletes & Support Personnel CAS 2024/A/10766 – p 12 competition use. The majority Tribunal also overlooked the element of athlete “fault” which has always been central to the sanction regime B. 57. Summary of the Respondent’s Submissions The Respondent’s Counsel, Ms Wroe, accepted on behalf of Mr Turagalailai that the effect of the SADR for use of cannabis in-competition that is unrelated to sport performance is a two-year sanction, subject to reductions under rules 10.5, 10.6 and 10.7. However, she submitted that the applicable sanction of two years is unjust and disproportionate. The period of ineligibility of eight months imposed by the Tribunal is appropriate. Proportionality 58. 59. 60. 61. 62. The Respondent submitted that the WADC creates contractual arrangements between sporting organisations and their members. They are intended to create proportionate responses when athletes commit anti-doping rule violations. If they did not, they would be illegal. Sitting behind those contractual relations is the general law and part of the general law that applies in anti-doping law and sports law is the principle of proportionality. A sanction that is evidently and grossly disproportionate to the proven rule violation can be considered a violation of fundamental justice and fairness and can be reduced to ensure that it complies with the law of Switzerland which governs the anti-doping regime. Proportionality is not “inherent” in the WADC in the manner described by the Appellant which would make the drafters of the WADC the final arbiters of proportionality rather than (ultimately) the courts. The Respondent submitted that when read in context of the decision as a whole, the majority Tribunal’s reference to a “general discretion” is an acknowledgement of the issue of proportionality, that it will arise in rare cases and that it is necessary to have something more than an “uncomfortable feeling” about the effects of a sanction for it to offend the principles of proportionality. Whilst Ms Wroe said she would not have used the term “general discretion”, nor did she consider she had submitted to the Tribunal that there was one, whether the use of the words “general discretion” by the Tribunal is appropriate is perhaps neither here nor there for a de novo consideration of this case. It is a nuanced point in relation to whether there needs to be a “gap” in the relevant rules before a sanction can be reduced or what is meant by a gap in any particular case: i. In Puerta, the application of the rules led to a result. However, the CAS determined that the rules did not properly provide for the situation in hand as it would have led to a disproportionate response. CAS 2024/A/10766 – p 13 ii. 63. In I v FAI, the circumstances led to the need to examine the proportionality of the sanction and adjust it to ensure that it remained proportionate. The Respondent accepted that the scope for arguing that a sanction should not apply is limited. The ability to get in behind the rules is limited, will only come up in rare cases and you need more than an uncomfortable feeling about the rules. In most cases the rules produce a proportionate result. Sanction 64. 65. 66. 67. 68. A sanction of two years would be grossly disproportionate in the circumstances of this case. The relevant circumstances are: i. ii. the unexplained changes to the WADC making the sanction for cannabis users harsher than it used to be and disproportionately harsher for use in-competition, without any clear connection to policy objectives; and the particularly harsh effect on the Respondent given his personal situation and living conditions. The new approach to substances of abuse should be considered against the context of the developments in the WADC including the increase to the decision limit for cannabis in 2013 and the 2015 increase in the maximum sanction to four-years, but with the ability to adjust the sanction depending on the degree of fault based on no significant fault or negligence if the use of cannabis was unrelated to sport performance. The new changes were made against the background of a debate as to whether cannabis should continue to be on the Prohibited List. At the conclusion of the WADC review, it was determined that cannabis ought to remain on the Prohibited List as it satisfies two of the three inclusion criteria. That is, it represents an actual or potential risk to the health of the athlete and it violates the spirit of sport as defined in the WADC. It was not included on the Prohibited List under the first criteria; that it enhances or has the potential to enhance sport performance. The Respondent submitted that it is the presence of cannabis in the system that meets those criteria, not the timing as to when the cannabis was taken. Any rationale for prohibiting cannabis in competition comes from the harm that may occur given the presence of the substance at particular levels in competition rather than the timing of when it was taken. An athlete may take a substance out-of-competition just before midnight and have the same levels of THC in their system than an athlete who used the substance just after midnight. As such, the rationale or policy reason for distinguishing between sanctions for in-competition and out of competition users is not supported. Further, there is no reason to impose a period of ineligibility on an athlete who used the substance in-competition so significantly longer than an athlete who used the substance out-of-competition. The result of the changes is a much stricter regime for athletes who CAS 2024/A/10766 – p 14 use in-competition than existed before. The different approach is manifestly disproportionate and without any explanation or clear connection to policy objectives. 69. 70. The effects of the 2021 changes suggest something has gone wrong in the introduction of the substance of abuse provisions which was not anticipated or intended. Alternatively, the approach taken by WADA is manifestly disproportionate, offends the principles of proportionality and equal treatment and it ought not to be applied in the circumstances. For example: i. ii. iii. iv. If an athlete admits use of cannabis after midnight on the day of competition they face stricter sanctions than would previously have applied before the introduction of the substance of abuse provisions. This is despite the focus of the commentary being on the need to offer treatment for athletes who use substances of abuse. More lenient sanctions were introduced and available to athletes who use a substance of abuse out-of-competition. Why the same opportunity for sanction reduction is not offered to athletes who use in-competition is not explained. The need for rehabilitation is the same. The changes to the “no significant fault” provisions together with substance of abuse provisions create obvious disparities that are not explicable by any of the purposes of the WADC. As the only real change in the goals sought to be achieved by the introduction of the substance of abuse provisions is the focus on the need for rehabilitation and treatment, that runs contrary to having longer sanctions for people who would previously have been able to rely on the no significant fault definition if the use was unconnected to sport performance. Cannabis is treated in the same way as other Substances of Abuse such as Class A drugs (e.g. cocaine) which are accepted to have a performance enhancing aspect and which use would be more serious in relation to health, character and the “spirit of sport”. Consequently, in respect of the Respondent: i. ii. he does not have access to the same possibility of a reduced sanction if he undergoes treatment as an athlete who used cannabis out-of-competition. This is even though his behaviour has not had a greater effect on sporting performance, is no more risky in terms of potential impact on health and is open to the same degree of criticism in relation to the spirit of sport; had the previous version of the WADC applied to the Respondent’s circumstances he would have been sanctioned on the basis of having no significant fault or negligence because he could show that his use was not related to sporting performance. That would have enabled a panel to look at the degree of fault and to impose a proportionate sanction. Such a difference is not justified by policies of retribution or education and may hinder his rehabilitation; and CAS 2024/A/10766 – p 15 iii. 71. the Respondent’s sanction for use of cannabis ought to be treated differently to drugs such as cocaine but that is not available under the WADC or the SADR. The aims of sanctions in relation to substances of abuse are rehabilitation, retribution and education. The sanction here exceeds that which is reasonably required for the justifiable aims of rehabilitation, retribution and education. 72. 73. Past cases in New Zealand in which an athlete had cannabis in their system during competition, for a first violation generally received sanctions of four to nine months whether or not they had received education. These sanctions were sufficient to meet the objectives of the WADC and considered proportionate. The Respondent is a young man that does not work but received some payments when he played football. He has suffered social isolation, loss of income and an effect on his sense of wellbeing. Although he received anti-doping education there is no evidence that he was told what the sanction would be if he took cannabis in-competition. The goals of retribution and education have been achieved after a short sanction and would have continued to be felt throughout the rest of the sanction which expired in mid August 2024. Given the Respondent’s personal circumstances and living conditions, the consequences of a sanction of two years is particularly harsh and disproportionate VII. JURISDICTION 74. 75. 76. 77. 78. This is an appeal from the majority Tribunal decision. The appeal is brought pursuant to Rule 13.2.1 of the SADR. Under Rule 13.2.1 of the SADR: “In cases arising from participation in an International Event or in cases involving International -Level Athletes, the decision may be appealed exclusively to CAS.” The appeal is conducted pursuant to the CAS Code. Article R47 of the CAS Code provides as follows: “An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body.” The parties agree that the CAS has jurisdiction This was confirmed by the parties in the Order of Procedure signed by them on 1 November 2024 and at the hearing on 8 November 2024. CAS 2024/A/10766 – p 16 79. Therefore, CAS has jurisdiction to decide this matter. VIII. 80. ADMISSIBILITY Article R49 of the CAS Code provides in relevant part as follows: “In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against.” 81. There is no issue that the appeal was lodged by the Appellants in time. As such the appeal is admissible on that basis and there is no other objection to the admissibility of the appeal. IX. SCOPE OF THE SOLE ARBITRATOR’S REVIEW 82. Article R57 of the CAS Code provides in relevant part as follows: “The Panel has full power to review the facts and the law. It may issue a new decision which replaces the decisions challenged or annul the decision and refer the case back to the previous instance …” X. APPLICABLE LAW 83. 84. Article R58 of the CAS Code provides in relevant part as follows: “The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.” The “applicable regulations” in this case is the SADR and subsidiarily, the applicable law chosen by the Parties, i.e. New Zealand law. XI. THE MERITS 85. In the present appeal, the Appellant does not challenge the Tribunal’s finding that the Respondent did not take cannabis intentionally to enhance his performance pursuant to CAS 2024/A/10766 – p 17 Rule 10.2.4.2 of the SADR such that the appropriate sanction is the prescribed period of ineligibility of two years under Rule 10.2.2 of the SADR.10 86. 87. 88. B. 89. 90. 91. The Respondent accepts: i. ii. iii. the ADRVs; that he used cannabis ‘in-competition’; and that the prescribed sanction under Rule 10.2.2 of the SADR is a period of ineligibility of two years. The present appeal concerns the consequences of the ADRVs; whether, as contended for by the Appellant, the prescribed period of ineligibility of two years under Rule 10.2.2 of the SADR is the appropriate sanction to be imposed, not the period of ineligibility of 8 months imposed by the majority Tribunal having regard to the principle of proportionality. As a result of the Parties’ requests and submissions, the Sole Arbitrator will address: i. ii. the application of the principle of proportionality in respect of sanctions prescribed under the WADC (and the SADR); and whether, in the circumstances of the Respondent’s case, the application of the prescribed sanction would be unjust and disproportionate, violating the principle of proportionality as contended for by the Respondent. Proportionality Proportionality is “…a general principle of law governing the imposition of sanctions of any disciplinary body, whether it be public or private.”11 The principle of proportionality “…provides that the severity of a sanction must be proportionate to the offense committed. To be proportionate, the sanction must not exceed that which is reasonably required in the search of the justifiable aim.”12 In the Advisory Opinion delivered by the CAS in relation to the implementation of the WADC into the FIA Disciplinary Code CAS 2005/C/976 & 978 (“the CAS Advisory Opinion”),13 although the panel stated that the principle of proportionality is guaranteed under the WADC, the opinion nevertheless held that: 10 Not four years under Rule 10.2.1 of the SADR. 11 Prof. G. Kaufmann-Kohler, et al., Legal Opinion on the Conformity of Certain Provisions of the Draft World Anti-Doping Code with Commonly Accepted Principles of International Law, referred to in Puerta at [78]. 12 I v FIA at [137] citing the Advisory Opinion delivered by the CAS in relation to the implementation of the WADC into the FIA Disciplinary Code CAS 2005/C/976 & 978 at, [138]- [139]. 13 At [143], referred to in Puerta at [82]. CAS 2024/A/10766 – p 18 “The right to impose a sanction is limited by the mandatory prohibition of excessive penalties, which is embodied in several provisions of Swiss Law. To find out whether a sanction is excessive, a judge must review the type and scope of the proved rule violation, the individual circumstances of the case, and the overall effect of the sanction on the offender. However, only if the sanction is evidently and grossly disproportionate in comparison to the proved rule violation and if it is considered as a violation of fundamental justice and fairness, would the Panel regard such a sanction as abusive and, thus, contrary to mandatory Swiss Law.”14 92. 93. 94. 95. 96. 97. The Sole Arbitrator accepts Ms Wroe’s submission that if the consequences prescribed by the WADC (and the SADR) for ADRVs are deemed to be proportionate as contended for by the Appellant, that “…would make the drafters of the Code the final arbiters of proportionality rather than (ultimately) the courts.” The circumstances in which the WADC has been found not to provide a just and proportionate sanction, however, have been described as “in those very rare cases…”15, and in “…a very exceptional situation…”.16 This is perhaps unsurprising given that the WADC was drafted having regard to the principals of proportionality: “The Code has been drafted giving consideration to the principles of proportionality and human rights.”17 Where however, the imposition of a sanction constitutes an infringement of individual rights that is “evidently or grossly disproportionate to the proved rule violation” and is considered a violation of fundamental justice and fairness, the decision maker is “mandated” to impose a proportionate sentence.18 Accordingly, the description of the application of the principle of proportionality as an exercise of a “general discretion” as referred to in the majority Tribunal decision, is inapposite. Indeed, the Respondent did not contend that there is a “general discretion” as such. The absence of a “general discretion” as referred to by the majority Tribunal, is supported by the decision in Puerta, in which the Panel considered that on the particular facts of that case, the WADC did not provide a just and proportionate sanction by reason of there being a “gap or lacuna” which was to be filled by the Panel “…applying the 14 CAS 2005/C/976 & 986 at [143], cited in Puerta. 15 Puerta at [92]. 16 I v FIA at [144]. 17 The Code, Purpose, Scope and Organisation of the World Anti-Doping Program and the Code p.8. 18 Puerta “Any sanction must be just and proportionate. If it is not, the sanction may be challenged” at [90].; I v FIA at [138]. CAS 2024/A/10766 – p 19 overarching principle of justice and proportionality on which all systems of law, and the WADC itself, is based.” In undertaking that exercise, the Panel disavowed any exercise of a general discretion. The Panel went further and stated that: “Although the WADC does provide for tribunals to exercise a discretion in certain, limited circumstances…it [the principle of proportionality] does not bestow upon tribunals a general discretion. Indeed, the existence of such a general discretion would be inimical to the WADC, which seeks to achieve consistency and certainty…”19 “The Panel has attempted to make it as clear as it possibly can that its decision in the present case does not involve the exercise of a discretion…”20 98. Although the word “discretion” was used by the Valieva panel in obiter observations made in closing remarks, the Sole Arbitrator does not consider that it supports a finding of a “general discretion’ as referred to by the Tribunal when considered in the context of its adoption of the panel’s observations in Guerrero and reliance on Puerta: “…The panel carefully considered whether there was scope for the exercise of its discretion to reduce the period of ineligibility according the principles of proportionality adumbrated in CAS 2006/A/1025 [Puerta] and CAS 2007/A/1252. In the result…a majority of the Panel decided against such a course and in this respect adopts what was said by the panel in CAS 2018/A/5546 [Guerrero] at [86-90]: “86. Additionally, the CAS jurisprudence since the coming into effect of WADC 2015 is clearly hostile to the introduction of proportionality as a means of reducing yet further the period of ineligibility provided for by the WADC (and there is only one example of its being applied under the previous version of the WADC). In CAS 2016/A/4534, when addressing the issue of proportionality, the Panel stated: “The WADC 2015 was the product of wide consultation and represented the best consensus of sporting authorities as to what was needed to achieve as far as possible the desired end. It sought itself to fashion in a detailed and sophisticated way a proportionate response in pursuit of a legitimate aim.” (para. 51)… …89. The Panel is conscious of the much quoted legal adage “Hard cases make bad law”, and the Panel cannot be tempted to breach the boundaries of the WADC…because their application in a particular case may bear harshly on a particular individual… 19 Puerta at [92]-[94]. 20 Puerta at [98]. CAS 2024/A/10766 – p 20 92. It is in the Panel’s view better, indeed necessary, for it to adhere to the WADC. If change is required, that is for a legislative body in the iterative process of review of the WADC, not an adjudicative body which has to apply the lex lata, and not some version of the lex ferenda.” 425. A majority of the Panel agrees that so it is in this case…” 99. In I v FIA, the panel considered that the principle of proportionality may “mandate a judging body”, in the particular circumstances before the Panel, to reduce the sanction below that which is provided by the applicable sports rules derived from the WADC.21 Having regard to the particular circumstances of that case, the panel considered that the fixed two-year sanction must be “measured against the principle of proportionality to check whether in the specific case of that driver, the sanction was consistent with the principle of proportionality.” The specific circumstances included that the appellant was 13 years at the time of the award, he was competing in a youth category and not against adults at the top level. Significantly, given the timing of the European karting season, the overall effect of a two-year sanction would extend well beyond the 24 months, impacting three karting seasons. The Panel went on to state: “Considering all of the above and exercising its discretion, the Panel deems that, exceptionally, a period of ineligibility of eighteen months must be considered as proportionate to the offense and, thus, a just and fair penalty.” 100. The reference to an exercise of discretion in determining the period of ineligibility that would be just and proportionate, having formed the view it was mandated to reduce the sanction below that which was prescribed by the particular rules is not inconsistent with the approach set out above. C. Sanction 101. The appropriate sanction is the prescribed period of ineligibility of two years under Rule 10.2.2 of the SADR as the Respondent’s use of cannabis was unrelated to sport performance. 102. For the reasons set out below, the Sole Arbitrator does not consider that the application of the prescribed sanction under Rule 10.2.2 violates the principle of proportionality in the circumstances of this case. It is not a case where the sanction is “evidently and grossly disproportionate in comparison to the proved rule violation” such as to constitute a violation of fundamental justice and fairness, contrary to mandatory Swiss law. 21 I v FIA at [138]. CAS 2024/A/10766 – p 21 103. The fundamental rationale for the WADC (and the SADR) is reflected on page 2 of the SADR: “Anti-doping programs are founded on the intrinsic value of sport. This intrinsic value is often referred to as “the spirit of sport”: the ethical pursuit of human excellence through the dedicated perfection of each Athlete’s natural talents. Anti-doping programmes seek to protect the health of Athletes and to provide the opportunity for Athletes to pursue human excellence without the Use of Prohibited Substances and Prohibited Methods. Anti-doping programmes seek to maintain the integrity of sport in terms of respect for the rules, other competitors, fair competition, a level playing field, and the value of clean sport to the world. The spirit of sport is the celebration of the human spirit, body and mind. It is the essence of Olympism and is reflected in the values we find in and through sport, including: • Health • Ethics, fair play and honesty… • Excellence in performance • Character and Education…” 104. The policy objectives that justify the infringement on the Respondent’s fundamental rights are addressed in the 2021 Code Revision – Third Draft, the Summary of Major Modifications (“the Summary”), the 2021 WADC and ISF Development and Implementation Guide for Stakeholders (“the Stakeholders Guide”) and the WADA “Substances of abuse under the 2021 World Anti-Doping Code” guidance note for anti doping organizations (“the Guidance Note”). They are supported by the Summary of Major Modifications and Explanatory Notes to the 2023 Prohibited List (“the Explanatory Notes”), and the article authored by Thomas Hudzik titled “Cannabis and sport: A World Anti-Doping perspective”22 (“the Hudzik article”). (collectively, “the Materials”)23 105. Read together, the rationale and policy basis for differentiating between sanctions imposed where a substance of abuse is used in-competition and where it is used out-of competition is evident. 22 Editorial in “Addiction SSA” 2023 Society for the Study of Addiction Journal received 1 March 2023, accepted 17 July 2023. 23 Included in the common bundle of authorities filed by the Parties. CAS 2024/A/10766 – p 22 106. The Materials reveal a connection between the risk to health of athletes that use cannabis, the potential health and safety impacts of cannabis at certain levels in competition and the connection between those levels and the timing of the use of cannabis: i. ii. iii. iv. v. The List Expert Advisory Group (LiEAG) concluded that there is compelling medical evidence that use of THC is a risk for health, mainly neurological, that has a significant impact on the health of young individuals, a cohort which is overrepresented in athletes;24 It was found that there is comprehensive historical literature as well as a rapidly growing body of contemporary literature supporting the assertion that cannabis use can negatively impact the health, safety or wellbeing of the athlete. As stated in the Hudzik article: “Acute intoxication can result in deficits in reaction time, temporal estimation and dexterity [7-11] as well as in psychiatric symptoms [12]….”25 In respect of the use of cannabis in-competition, the Explanatory Notes record that at the levels of cannabis required to trigger an Anti-Doping Rule Violation In-Competition26: “…they would be problematic on medical grounds for a competing Athlete, or indicative of a chronic habitual user.”27 The current decision limit of 180 ng/ml of THC in urine and a cut-off of 150 ng/ml plus the uncertainty of measurement of 30 ng/ml takes account of the prohibition of cannabis being in-competition only.28 According to the authors of the Hudzik article: “Because of these high thresholds, primarily chronic, frequent cannabis users and athletes consuming high doses in-competition will be detected.”29 The guidance note records the thought that was given to the relationship between the time of the use of cannabis and the levels required to trigger an in competition ADRV. It states: 24 The Explanatory Notes at p.9. 25 Hudzik article at p.2040. 26 The main psychoactive component of cannabis is reported as an Adverse Analytical Finding by WADA-accredited laboratories when the urinary concentrations exceeds a threshold of 150 ng/ml with a Decision Limit of 180 ng/ml. Explanatory Notes 2023 at p.7. 27 Explanatory notes Prohibited List 2023 at p.9. 28 Hudzik article at p.2041. 29 Hudzik article at p.2041. CAS 2024/A/10766 – p 23 “Presence of carboxy-THC at a concentration above (>) the Decision Limit (DL) of 180 ng/mL should be considered likely to correspond to an In-Competition use of cannabis.”30 107. It is evident from the Materials that consideration was given to balancing an athletes’ freedom to consume cannabis legally outside of competition (although it was noted in the Guidance Note that cannabis remains an illegal substance in the majority of the world) and the above concerns in respect of the use of cannabis in-competition: i. ii. The Explanatory Note records that: “Because of these high thresholds, primarily chronic, frequent cannabis users and athletes consuming high doses in-competition will be detected. Therefore, the cut-off [which is defined as after 23:59 hours on the day prior to competition] generally will not affect the freedom of an athlete who wishes to legally consume cannabis outside of competition.” 31 The Hudzik article authors considered that: “… the cut-off generally will not affect the freedom of an athlete who wishes to legally consume cannabis outside of competition.”32 108. Consideration of the Spirit of Sport; the notion of respect for self and other participants, part of the third criterion for inclusion on the Prohibited List supports the differentiation between sanctions for use of a substance of abuse in-competition and out-of competition. This criterion includes the welfare and safety of other participants and is stated to be “as important as the other two criteria.”33 The Ethics Advisory Group noted that the spirit of sport encompasses a number of universal values of sport including respect for self and other participants and considered that: “…the welfare and safety of other participants may be compromised by impaired judgment associated with the presence of cannabis in an athlete in competition.”34 109. The differentiated approach is further supported by: i. the first purpose of the WADC which is to “…protect the Athletes’ fundamental right to participate in doping-free sport and thus promote health, fairness and equality for Athletes worldwide…”. Protecting the health and safety of athletes 30 WADA Substances of abuse under the 2021 World Anti-Doping Code guidance note for anti-doping organizations at p.3. 31 The Explanatory Notes at p.7. 32 Hudzik article at p.2040. 33 Hudzik article at p.2040. In its decision, the majority of the Tribunal noted that it “…does not see that the health of the athlete includes the concept of the safety of the athlete or of other competitors…” at [30]. It appears the Tribunal did not consider the safety of other participants under the Spirit of Sport criteria. 34 Hudzik article at p.2040. CAS 2024/A/10766 – p 24 has been acknowledged by the CAS to be a significant function of the WADC. In Guerrero, the panel observed in respect of the 2015 WADC that: “The WADC 2015 was designed not only to punish cheating, but to protect athletes’ health…”35 ii. the expression of the ultimate goal of the WADC as stated in the stakeholders guide: “…The ultimate goal is for all athletes to benefit from the same anti doping procedures and protections, no matter the sport, the nationality or the country where tested, so that all athletes may participate in competition that is both safe and fair.”36 110. Given the correlation between the decision limit and the likely use in-competition, respect for the WADC, the SADR, and other participants takes on particular significance having regard to the potential health and safety impacts on other participants arising from impaired judgment in-competition. If, however, an athlete was to return a sample above the decision limit, the product of chronic, frequent use out-of competition, that is likely reflective of a lower degree of disrespect for the WADC and the potential health and safety impacts on other participants. In those circumstances, the emphasis on rehabilitation and a therapeutic approach to address recreational out-of competition use and possible addiction issues may be readily understood. 111. Although there is no express statement in the Summary of the rationale for not taking the same welfare or therapeutic approach to in-competition use, it is noted that in order for the article to apply, the athlete must establish the use occurred out-of-competition and was unrelated to sport performance. The third draft note records that if the use was unrelated to sport performance then it shall not be considered “intentional” for the purposes of the longer sanctions (with a reduction from four years to two years’ ineligibility). 112. One might readily infer the objective of deterring in-competition use for the protection, health and safety of all participants including the relevant athlete. As such, that which is reasonably required for the justified aims of rehabilitation and education on the one hand and deterrence and retribution on the other differs in respect of in-competition and out-of-competition use. This difference is reflected in the sanction regime and is proportionate having regard to the purposes of the WADC (and the SADR) and the objectives referred to above. 35 Guerro at [88]. 36 2021 World Anti-Doping Code and International Standard Framework Development and Implementation Guide for Stakeholders at p.1. CAS 2024/A/10766 – p 25 113. The Respondent’s challenge in oral submissions to the difference between in competition and out-of-competition sanctions focussed on the proposition that, having regard to the 11.59pm cut off designating in-competition use, the levels of THC in an athlete who used before midnight would be the same in-competition (and the levels of impairment the same) as an athlete who used just after midnight. The disparity in sanction for the athlete who consumed cannabis on the wrong side of midnight is disproportionate. 114. Whether in any particular case, the presence of THC in an athlete’s system who used on the “wrong” side of midnight is the same as an athlete who used cannabis on the “right” side of midnight would be a matter for evidence in that particular case, should that issue arise. 115. It is conceivable that there may be a case where the timing of ingestion and levels of THC detected in the athlete’s system are significant facts and circumstances on the question of proportionality having regard to the definition of in-competition. However, that is not the Respondent’s case. The Respondent admitted to using cannabis on the morning of the competition. The concentration in his sample was 444ng/ml.37 Any potential issue arising from the definition of “in-competition” being the period commencing at 11:59pm on the day before a competition through to the end of the competition and sample collection process, does not arise on the facts and circumstances of the Respondent’s case. 116. In relation to the Respondent’s submission that the substance of abuse changes result in stricter sanctions for in-competition use of substances of abuse than would have applied under the previous version of the WADC, (including given the change to the definition of no significant fault), a complete and fair reading of the Materials reveals an expert informed approach to the emphasis on athletes’ health and safety in-competition, supporting the different sanctions applicable for use in-competition and use out-of competition. 117. In relation to the failure of the substance of abuse provisions to differentiate between substances of abuse such as cocaine and cannabis, Ms Wroe submitted that cannabis is “…also different from cocaine…well certainly in our jurisdiction and possibly most jurisdictions as being not as – that morally objectional as cocaine a lower level drug so to speak…”. This submission involves a value judgment that is not necessarily reflected in all jurisdictions across the globe. 118. The reality of the global application of the WADC is recognised in its introduction, which states that: 37 Respondent’s document package section 4, Respondent’s response submissions at [9]. CAS 2024/A/10766 – p 26 “When reviewing the facts and the law of a given case, all courts, arbitral hearing panels and other adjudicating bodies should be aware of and respect the distinct nature of the anti-doping rules in the Code and the fact that those rules represent the consensus of a broad spectrum of stakeholders around the world with an interest in fair sport.”38 119. The Explanatory Notes record that the reviewers of the Prohibited List were cognisant of shifting public attitudes and laws in certain countries, however determined that: “…the weight of evidence and argument, along with broad international restrictive regulatory laws and policies, supports the continuance of cannabis on the Prohibited List at this time.”39 120. Other aspects of the sanction treatment of substances of abuse under the WADC and referred to by the Respondent to illustrate disparities in the application of the substance of abuse provisions, simply do not arise on the facts and circumstances of the Respondent’s case.40 121. The issue for the Respondent is that, whilst his use was not related to sport performance (and as such he is entitled to a reduction from four years to two years’ ineligibility), the Respondent accepted in his written response that “…his level of fault was ‘significant’”41 in the sense that the no significant fault or negligence defence and any further reduction in sanction is not open to him. The Respondent received anti-doping education including in relation to the WADC: i. ii. In relation to drugs, players were educated about the risks associated with substance abuse, including the misuse of substances like cannabis. Over and above anti-doping education, players were encouraged to adopt healthy habits, refrain from smoking and excess alcohol consumption, uphold the values of teamwork and fair play, preserve their reputation and career and safeguard their health generally.42 Education was delivered during team meetings. One such meeting was on 31 July 2023 which the Respondent attended. The purpose of the meeting was to discuss team culture, vision and playing style. Refraining from taking drugs was stated as a “non-negotiable.”43 38 The WADC at p.18. 39 The Summary at p.9. 40 For example, for unintentional violations where no significant fault or negligence is found an athlete will be sanctioned under SADR 10.6.1.1 in respect of specified substances other than substances of abuse, whereas the user of a substance of abuse would be sanctioned under SADR 10.6.2, where there is not the same flexibility to reduce a sanction according to fault. 41 Written Submissions of the Respondent at p.4. 42 Mr Augustine’s statement at [6] and [9]. 43 Mr Augustine’s statement at [10]. CAS 2024/A/10766 – p 27 iii. iv. Anti-doping was also discussed during one-on-one medical screening processes including habits related to smoking, alcohol and yagona (kava) consumption and any form of drug usage including cannabis, meth, heroin and cocaine.44 On 26 August 2024 the athletes were told by text message “There will be doping control in this tournament. OFC will do random drug tests at games. So please don’t try and do anything silly”. 122. Whilst the new sanction regime for in-competition use of cannabis is undoubtedly a significant step up from sanctions previously imposed for use of cannabis in New Zealand, the cases referred to by the Respondent are for the most part pre-2021 decisions of the Tribunal and are therefore not concerned with use in-competition under the substance of abuse provisions. The weight to be given to those pre-2021 WADC decisions in considering the principles of proportionality and equal treatment is limited. 123. Having regard to the Materials, it could not be said that the impact of the changes is the product of a lack of thought for the consequences for cannabis users in the Respondent’s position suggesting that something has gone wrong that was not anticipated or intended, as submitted by the Respondent. This is underscored by the following: i. ii. The WADC review was extensive and thorough. It involved three consultation periods over two years, the consideration of submissions from 211 stakeholders, the receipt of 2,035 comments, the holding of 68 meetings with stakeholders and 123 meetings of the code drafting team.45 In respect of the review of the inclusion of cannabis on the prohibited list, in 2022, WADA reviewed more than 2700 scientific articles.46 As part of the scientific review process, “…world leading experts on cannabis and addiction behaviour were consulted to validate the conclusions of the committees.”47 124. Any changes to the sanction regime for substances of abuse to address what the Respondent identifies as “disparities” are, as aptly stated by the panel in Guerrero, for “…a legislative body in the iterative process of review of the WADC, not an adjudicative body which has to apply the lex lata [the law as it exists], and not some version of the lex ferenda [what the law should be]”48 to make. 125. In relation to the impact and overall effect of the imposition of the sanction prescribed by the SADR on the Respondent, football has been his only source of income in recent years. Being banned from playing football has had a big impact on his life. It is the main thing that he does to socialise and earn money. He has experienced shame and spends 44 Mr Augustine’s statement at [14]. 45 The Stakeholders Guide at p.3. 46 Hudzik article at p.2040. 47 Hudzik article at p.2040. 48 Guerrero at [90]. CAS 2024/A/10766 – p 28 time indoors. It is hard for him to get a job. The situation is embarrassing. Not having football in his life is boring to him, life is meaningless without football.49 126. The Sole Arbitrator accepts the Respondent’s statements. One may well have an “uncomfortable feeling” about the impact of the sanction on the Respondent in light of the significant step up in sanction since the introduction of the substance of abuse provisions. However, for the reasons set out above, it could not be said that the impact of the sanction produces an outcome that is “exceptional” or “rare” such as was found to be the case in Puerta and I v FIA, where the panels considered the particular circumstances led to a manifestly disproportionate effect on the individual with reference to the goals and purposes of the WADC. D. Conclusion 127. The appropriate sanction is the prescribed period of ineligibility of two years under Rule 10.2.2 of the SADR. For the reasons set out above, I do not consider that the application of the prescribed sanction of two years under Rule 10.2.2 of the SADR violates the principle of proportionality in the circumstances of the Respondent’s case. XII. THE COMMENCEMENT DATE OF THE SANCTION – SUBSTANTIAL DELAY A. Respondent’s Submissions 128. In his statement of defence,50 the Respondent submitted in the alternative that if the Sole Arbitrator upholds the appeal and determines that the period of ineligibility should be two years, the commencement date should be the date his sample was taken (9 September 2023) in view of the substantial delays in the doping control process. On a full rehearing, the commencement date will need to be determined. The arbitrator is not bound to accept the commencement date in the Tribunal if a different sanction is imposed. 129. The Respondent submitted it is appropriate to backdate commencement of a longer period of ineligibility to 9 September 2023, the date of sample collection. There was substantial delay not attributable to the Respondent. The Respondent was not notified of the ADRV for over 5 months from sample collection on 9 September 2023. No steps were taken between the Appellant being notified on 28 November and 14 December 2023. 130. Once a delay is identified, the discretion that is available under Rule 10.13.1 is to go right back to the date of the sample. There is no need to relate the backdating to a period of delay. The whole period of the doping control process must be taken into account: 49 The Respondent’s Statement. 50 Answer of the Respondent dated 26 August 2024. CAS 2024/A/10766 – p 29 i. ii. B. The International Standard for Laboratories provides that the test result should “occur in ADAMS” within 20 days of receipt of the Sample. In this case it took 38 days; No steps were taken by the Appellant between being notified on 28 November and 14 December 2023. Between 14 December and 9 February 2024, all that happened was that FIFA and the Fiji federation were notified. Appellant’s Submissions in Reply 131. The Appellant submitted that backdating even further would ignore the material delay in serving the Respondent. This delay was caused by the Respondent having given only a partial street address. Further, the Respondent’s submission ignores the time required to advance proceedings in the ordinary course. CAS has urged restraint in applying backdating as it can have the effect of undermining the anti-doping regime. Further, it may be that the Arbitrator, considering the issues afresh finds that the backdating was generous and the period ought to be reduced. 132. The starting point is that where there have been “substantial delays” in the Doping Control process that are not attributable to the Athlete, the Tribunal may backdate the period to a date as early as the date of sample collection. 133. CAS has found that, when considering whether there has been “substantial delay”, the decision-maker must ask the following of itself:51 i. ii. iii. iv. How long has been the period of any delays in the disciplinary process? (a question of fact); Is any of that period attributable to the Athlete? (a question of fact); After deducting any period found in answer to question (ii), are the overall delays substantial? (a question of appreciation); and If the answer to question (iii) is Yes (thereby triggering the Panel’s discretion), should the Panel, having regard to all relevant circumstances, exercise its power to backdate? (a question of judgment). 134. In his reply statement dated 18 August 2024, Mr Tapper set out the steps taken to advance the case and appended a chronology. To the extent that there has been delay not attributable to the athlete, it is, at best, generous to say that it was “substantial”. C. Conclusion 135. The Sole Arbitrator agrees with the Tribunal’s assessment that there was substantial delay not attributable to the Respondent. The Tribunal stated as follows: 51 CAS 2020/A/7526&7559 at [221]. CAS 2024/A/10766 – p 30 “Answering the four questions posed by the CAS, the Tribunal assesses that there was a five month time period between the sample being taken and notification of the AAF; if we generously say that the average time period is three months, then in this situation there was a delay of two months, which means it took 40% longer than it should have and consequently the delay was substantial. The Tribunal further assesses that the delay was not attributable to the athlete and was exacerbated by a long period of inactivity spanning the New Zealand summer break period…”52 136. Having found that there was substantial delay not attributable to the Respondent, the Sole Arbitrator may start the period of ineligibility at an earlier date commencing as early as the date of sample collection.53 137. The Sole Arbitrator does not accept, however, that no steps were taken by the Appellant between it being notified of the AAF on 28 November 2023 and 14 December 2023 as contended for by the Respondent. Mr Tapper’s statement and chronology refers to DFSNZ seeking to confirm the Respondent’s membership of a signatory organisation and to ascertain whether he had undertaken anti-doping education in New Zealand. After 14 December 2023 and prior to Christmas, DFSNZ sought legal advice on matters concerning the case. On 19 January 2024, in his first week back from the Christmas shut down period, Mr Tapper contacted FIFA and Drug Free Sport Fiji. I accept that it took time between 9 February 2024 and 16 February 2024 to serve the Respondent as the phone number the Respondent provided on the Doping Control Form was invalid and he had given a partial street address. 138. On balance, the Sole Arbitrator considers that backdating the commencement of the period of ineligibility to 14 December 2023 strikes the right balance between recognising substantial delay not attributable to the athlete due to the Christmas/New Year shut down period and the exercise of restraint in applying backdating so as not to have the effect of undermining the anti-doping regime. It also effects credit for the period of ineligibility served by the Respondent between 14 December 2023 and 14 August 2024.54 It places the Respondent, in effect, in the position he would have been in had the Tribunal imposed the prescribed period of ineligibility of two years.55 i. On 25 March 2025, Ms Wroe informed the CAS that the Fiji Football Association is treating the Respondent as ineligible to play until the appeal is finalised. On 22 April 2025, the Respondent’s father re-iterated that the Fiji Football Association “still treats this case as no game” for the Respondent. 52 Majority Tribunal decision at [76]. 53 Rule 10.13.1. CAS 2018/A/5853 FIFA v Tribunal Nacional Disciplinario Antidopaje & Damian Marcelo Musto at [145]-[147]. 54 Rule 10.13.2.1. 55 CAS 2014/A/3868 WADA v Bhupender Singh and NADA India at [64] CAS 2024/A/10766 – p 31 ii. There is no information to the contrary. On 21 May 2025, in response to a query from the CAS as to the Appellant’s position, the Appellant informed the CAS that it confirmed to Fiji Football that the period of ineligibility imposed by the Tribunal expired in August 2024 and the Respondent was eligible to return to sport including while the decision was subject to appeal. However, the Appellant stated it did not have any insight into Fiji Football disciplinary matters. 139. Considering that the respondent has in effect been ineligible to play since 14 Dec 2023, a period of ineligibility of 2 years commencing 14 Dec 2023 without any interruption can be imposed. As a consequence, he shall be barred from participating in any Competition or other activity as provided in Rule 10.14 of the SADR for a period of two years commencing on 14 December 2023.

CAS 2024/A/10821 Fédération Internationale de Volleyball v. Polish Anti-Doping Agency & A. ARBITRAL AWARD delivered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: Sole Arbitrator: Dr. Despina Mavromati, Attorney-at-law in Lausanne, Switzerland in the arbitration between Fédération Internationale de Volleyball (FIVB), Lausanne, Switzerland Represented by Dr Paul Fischer and Mr David Menz, Martens Rechtsanwaltsgesellschaft mbH, Munich, Germany and Polish Anti-Doping Agency (POLADA), Warsaw, Poland Appellant Represented by Mr Michal Rynkowski, POLADA President and Mr Lukasz Krych, Warsaw, Poland First Respondent A., […], Poland Represented by Mr Jan Łukomski, Łukomski Niklewicz Adwokacka Spółka Partnerska, Poznań, Poland Second Respondent CAS 2024/A/10821 FIVB v. POLADA & A. – Page 2 I. 1. 2. 3. 4. II. A. 5. 6. 7. 8. 9. PARTIES The Fédération Internationale de Volleyball (hereinafter the “FIVB” or the “Appellant”) is the governing body for all forms of the sport of volleyball on a global level. Its seat is in Lausanne, Switzerland. The Polish Anti-Doping Agency (hereinafter “POLADA” or the “First Respondent”) is the national anti-doping organisation (hereinafter “NADO”) in Poland, recognized as such by the World Anti-Doping Agency (hereinafter “WADA”). POLADA has its registered seat in Warsaw, Poland. Ms. A. (hereinafter the “Athlete” or the “Second Respondent”) is a professional volleyball player, born on […], who is an international-level athlete. The FIVB, POLADA and the Athlete are hereinafter referred to collectively as the “Parties”. FACTUAL BACKGROUND Background Facts Below is a summary of the relevant facts and allegations based on the parties’ written and oral submissions, pleadings and evidence. Additional facts and allegations found in the parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, she refers in her Award only to the submissions and evidence she considers necessary to explain her reasoning. On 26 April 2024, the Athlete was subject to an out-of-competition test in Spala, Poland, and submitted her sample (hereinafter the “Sample”). On 21 May 2024, the WADA-accredited laboratory in Warsaw, Poland (the “Laboratory”) reported the analysis of the “A” Sample and found that said Sample contained the substance Canrenone at a concentration of 99 ng/mL. Canrenone is a prohibited substance at all times under the WADA Prohibited List (2024) and forms part of Category S5 (Diuretics and Masking Agents). All prohibited substances in this class are Specified Substances for the purposes of the WADA Code. At the time of collection of the Sample, the Athlete had neither applied for, nor been granted, any Therapeutic Use Exemption (hereinafter “TUE”) with respect to Canrenone. The Athlete did not declare the use of the drug Verospiron in the Doping Control Form (hereinafter “DCF”) signed by the Athlete at the time of the Sample collection. CAS 2024/A/10821 FIVB v. POLADA & A. – Page 3 10. 11. 12. 13. 14. 15. 16. B. 17. 18. On 21 May 2024, POLADA issued a notification letter (hereinafter “Notification Letter”), notifying the Athlete that the Sample contained a prohibited substance and hence, POLADA considered that she may have committed an Anti-Doping Rule Violation (“ADRV”). Through the Notification Letter, the Athlete was informed of her right to request the “B” Sample opening and analysis and be present or nominate a representative to attend the “B” Sample opening. The Athlete did not exercise her right to request the “B” Sample opening and analysis. On 21 May 2024, POLADA issued a separate letter to the Athlete notifying her of an immediate provisional suspension until the issuance of a decision in accordance with Article 7.4.2 of the POLADA ADR. On 24 May 2024, the Athlete filed an appeal against the imposition of a provisional suspension. On the same day, the Athlete filed an application to the International Testing Agency (hereinafter “ITA”), requesting a retroactive TUE for Spironolactone, which is a prohibited substance in accordance with the 2024 Prohibited List (S.5 diuretics and masking agents) and which metabolizes partially to Canrenone, i.e., the prohibited substance detected in the analysis of the Sample, in the human body. The Athlete based her application on the diagnosis that she suffered from […] and had been under treatment for the same with the drug Verospiron, which contains Spironolactone, since 31 January 2024. On 29 May 2024, POLADA issued a letter to the Athlete stating that due to the submission of a retroactive TUE application, the provisional suspension imposed on her has been revoked. On 8 June 2024, the ITA issued a certificate of approval for the therapeutic use of Spironolactone effective from 8 June 2024 to 7 June 2025. Proceedings before the previous instance On 11 June 2024, the ITA issued the reasoned decision regarding the Athlete’s application for a retroactive TUE for Spironolactone. The ITA decided to deny the retroactive application, as the requirements provided under Articles 4.1 and 4.3 of the International Standard for Therapeutic Use Exemptions were not fulfilled but still approved a prospective TUE for one year. On 13 June 2024, POLADA issued a letter (hereinafter “Charge Letter”) whereby the Athlete was informed of the initiation of disciplinary proceedings against her as per Article 8 of the POLADA ADR, for the presence of a prohibited substance in the Sample, as set out under Article 2.1 of the POLADA ADR and use of a prohibited substance under Article 2.2 of the POLADA ADR. CAS 2024/A/10821 FIVB v. POLADA & A. – Page 4 19. 20. 21. 22. 23. On 19 June 2024, the Athlete submitted her reply to the Charge Letter. In essence, the Athlete submitted in her reply that she suffered from a medical condition called […] for a long time and was prescribed the drug Verospiron, which contained Spironolactone, as part of her treatment for this condition. While she informed her doctor that she was a professional athlete, she was not informed that taking the medicine would result in an ADRV. The Athlete regrets that she failed to inform her team doctor about the drug, however this was unintentional and was due to lack of awareness. Finally, Spironolactone did not affect her athletic performance nor did it provide her with any sporting advantage and she had, since then, be granted a TUE and a future exemption for this substance. The Athlete further underlined that she was participating at the Women’s Volleyball national League, and at the turns of July and August 2024 was scheduled to participate in the Olympic Games in Paris and that disqualification for a substance she could now use would constitute a grossly severe sanction. The hearing took place on 3 July 2024 and the operative part of the decision of the Disciplinary Panel (“DP”) of First Instance (“Appealed Decision”) was notified on the Athlete on the same day. The English translation of the operative part of the Appealed Decision, that was transmitted to POLADA on 7 August 2024, reads as follows: “I. A. is considered guilty of the aforementioned violation of the Anti-Doping Rules of the Polish Anti-Doping Agency 2021; II. On the basis of Article 10.6.1.1 of the Anti-Doping Rules of the Polish Anti-Doping Agency 2021 a sanction of reprimand is imposed on the respondent; III. The present decision will be made public.” The grounds for the Appealed Decision (hereinafter the “Grounds”), in Polish language, were notified to the Appellant on 1 August 2024. An English translation was provided by POLADA on 7 August 2024. In essence, the Appealed Decision confirmed the ADRV under the applicable rules holding that, under the POLADA ADR, it was the Athlete’s personal duty to ensure to ensure that no prohibited substance entered her body. However, it found that the Athlete’s failure to declare the medicine in the Doping Control Form and to inform her team doctor about her condition was probably because […] is a condition that can lead to embarrassing situations and have a negative impact on her self-confidence. Furthermore, the Appealed Decision held that the treatment was in line with the current standards of the treatment of the medical condition but still off-label use and therefore required additional consent by the Athlete. Such consent was not requested by the Athlete’s doctor (who was not a specialized doctor in sports medicine) and the Athlete was not informed of the off-label application of the drug. The Appealed Decision further found that the Athlete’s hormone tests confirmed the presence of the prohibited substance in the Athlete’s urine sample and thus the origin of the substance. Moreover, the granting of a prospective TUE confirmed the legitimacy of the previously started therapy with the drug containing the prohibited substance. CAS 2024/A/10821 FIVB v. POLADA & A. – Page 5 24. III. 25. 26. 27. 28. 29. 30. 31. In view of the above, the Appealed Decision confirmed that the Athlete should be imposed the sanction of a reprimand for no substantive fault. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT On 28 August 2024, the CAS Court Office acknowledged receipt of the Statement of Appeal filed on 22 August 2024 by the Appellant and noted that it requested an extension until 23 September 2024 to file its Appeal Brief. The CAS Court Office invited the Respondents to comment on this request and suspended the deadline for filing the Appeal Brief as from 28 August 2024. On 2 September 2024, the Athlete responded via her lawyer, consenting to the use of English as the language of the proceedings, to the request for extension to file the Appeal Brief requested by the Appellant and to the appointment of a Sole Arbitrator in this matter. On 5 September 2024, the Appellant sought the consent of the Second Respondent to use Artificial Intelligence (“AI”) translation tools for the relevant documents in the present case from Polish language into English. On 13 September 2024, the CAS Court Office noted that the Athlete objected to the use of AI translation tools by the Appellant, mainly due to data protection considerations, and sought the Respondents’ comments on the Appellant’s subsidiary request to allow the Appellant to first file the documents in the Polish language and to submit translations into English only if deemed necessary by the Sole Arbitrator. The CAS Court Office further noted that the Respondents’ silence on this request would be held as an agreement. On 26 September 2024, the CAS Court Office acknowledged receipt of the Appeal Brief filed on 23 September 2024 and the Athlete’s letters of 19 September 2024 and informed the Parties that the case would be decided by a Sole Arbitrator, to be appointed pursuant to Article R54 of the CAS Code. In the same letter, the CAS Court Office noted that the Deputy Division President had decided to invite the Appellant to submit the exhibits that were drafted in Polish duly translated in English (without AI translation tools) on or before 10 October 2024. To the extent that both Respondents were Polish speaking, the Deputy Division President decided that certified / sworn translations would be reserved if one of the Respondents would challenge the accuracy of the produced translations, in which case the Panel / Sole Arbitrator would decide how to finally address this issue. On 7 October 2024 and as agreed by the Parties, the CAS Court Office notified the Appeal Brief to the Respondents, who were invited to file with the CAS an Answer within twenty days upon receipt of the CAS letter by courier. CAS 2024/A/10821 FIVB v. POLADA & A. – Page 6 32. 33. 34. 35. 36. 37. 38. On 10 October 2024, the CAS Court Office acknowledged receipt of the Appellant’s correspondence, along with the translated exhibits uploaded onto the e-Filing platform on the same day. On 1 November 2024, the CAS Court Office acknowledged receipt of the First Respondent’s Answer sent by email on 28 October 2024 and of the Second Respondent filed via the CAS e-Filing platform and by email on 29 October 2024. The CAS Court Office noted that the Answer of the First Respondent had not been uploaded onto the CAS e-Filing platform and invited the First Respondent to submit, by 6 November 2024, a proof of sending of the hard copies of its answer. On 8 November 2024, the CAS Court Office acknowledged receipt of the First Respondent’s email sent on that same day, whereby the First Respondent confirmed having submitted the Answer exclusively by email on 28 October 2024. In the same letter, it invited the other Parties to indicate, by 14 November 2024, if they would nonetheless accept that the Answer be admitted on file. On 18 November 2024, the CAS Court Office acknowledged receipt of the Appellant’s letter dated 12 November 2024, admitting the Answer of the First Respondent to the file, and of the letter of the Second Respondent dated 14 November 2024, objecting thereto but suggesting that the First Respondent be granted an additional deadline “to file a reply to the Appeal Brief in the correct form”. In the same letter, the CAS Court Office suggested to the Parties that the First Respondent be granted a short deadline to download its Answer onto the CAS e-Filing platform or to send hard copies of such brief. On 22 November 2024, the CAS Court Office acknowledged letters sent by the Appellant and the Athlete, accepting such proposal and invited the First Respondent to send its Answer by courier or download such brief onto the CAS e-Filing platform by 29 November 2024. On 3 December 2024, the CAS Court Office acknowledged receipt of the First Respondent’s Answer onto the CAS e-Filing platform on 28 November 2024 and accepted said submission to the file. On 5 December 2024, the CAS Court Office issued the Notice of Formation of the Panel as follows: Sole Arbitrator: Dr Despina Mavromati, Attorney-at-law in Lausanne, Switzerland On 13 December 2024 and after having duly consulted the Parties, the CAS Court Office informed them that the Sole Arbitrator decided to hold a hearing by video conference and, further a request from the Athlete, a case management conference. Moreover, the Sole Arbitrator noted the Appellant’s request of 12 December 2024 to be allowed to express its comments on the Athlete’s requests “to allow an opinion of an expert witness” formulated in her Answer and invited the Appellant and the First Respondent to submit their comments by 20 December 2024. CAS 2024/A/10821 FIVB v. POLADA & A. – Page 7 39. 40. 41. 42. 43. 44. 45. On 19 December 2024, the Appellant objected to the Athlete’s requests “to allow an opinion of an expert witness” formulated in her Answer. As will be further addressed under section [IV] (B) below, the Appellant further objected to the appointment of an independent expert based on Swiss law and the jurisprudence of the Swiss Federal Tribunal, stating that said conditions were not met in the present case. On 20 December 2024, the CAS Court Office acknowledged the Appellant’s letter dated 19 December 2024 and inter alia noted that, in the Sole Arbitrator’s understanding, the Appellant had requested to be authorized to produce an expert opinion herself rather than the appointment of an independent expert by the panel. As such, the Sole Arbitrator would be inclined to grant such expert opinion provided that the other parties’ right to be heard are duly respected and, inversely, would not intend to appoint such expert based on her own investigating powers. The CAS Court Office further noted that said issue would be discussed during the case management conference. On 3 January 2025, the Athlete filed a letter including submissions regarding her request for an expert opinion and adduced a “Psychological Report” from psychologist Ms. […], responding to the Appellant’s submissions dated 19 December 2024. On 7 January 2025, the CAS Court Office acknowledged receipt of the Athlete’s correspondence and enclosures dated 3 January 2025, noting that the other Parties would have the possibility to express themselves regarding said correspondence and submissions during the case management conference, that would be held on 9 January 2025 at 11h00 am CET. On 9 January 2025, the Sole Arbitrator held a Case Management Conference in the presence of the following parties: - - - - - - Ms Pauline Pellaux, CAS Counsel Dr Despina Mavromati, Sole Arbitrator Mr David Menz and Mr Vishakh Ranjit, External Counsel for the Appellant Ms Alessandra Deliberato, FIVB Senior Legal Counsel Mr Hubert Dziudzik , Deputy Director of POLADA Mr Jan Łukomski, Counsel of the Athlete After the Case Management Conference, the CAS Court Office sent a letter to the Parties, on behalf of the Sole Arbitrator, confirming the issues discussed and decided during the meeting as follows: - The hearing was confirmed to be held by video-conference on 4 February 2025 at 9:30 am CET CAS 2024/A/10821 FIVB v. POLADA & A. – Page 8 - - 46. The Sole Arbitrator decided to accept the Psychological Report of Ms […] on file as well as her testimony during the hearing; at the same time, the Appellant was invited to submit observations and adduce evidence strictly limited to this report, on or before 24 January 2025. The Parties were invited to agree on a joint hearing schedule. On 23 January 2025, the CAS Court Office sent a letter enclosing an Order of Procedure, which was returned duly signed by all Parties on 24 and 31 January 2025, respectively. 47. 48. 49. 50. On 24 January 2025, the Appellant sent its submission about the Psychological Report of Ms […] along with an expert report by Prof. Dr. Catani. In this correspondence, the Appellant informed the CAS Court Office that Prof. Catani would be called to testify at the hearing. On 3 February 2025 and after an exchange of communications on this issue, the CAS Court Office acknowledged receipt of the tentative hearing schedule established by the Parties. On 4 February 2025 at 9:30 CET, the hearing took place by video conference. The following persons were present at the hearing – Dr. Despina Mavromati, Sole Arbitrator – Ms. Pauline Pellaux, Counsel to the CAS – Mr. David Menz, External Counsel of the Appellant – Mr. Vishakh Ranjit, External Counsel of the Appellant – Ms Alessandra Deliberato, Senior Legal Counsel at the FIVB – Mr Jan Łukomski, Counsel of the Athlete – Ms. A., Athlete – Mr Jakub Chudy, Interpreter of the Athlete – Dr. Michal Rynkowski, Director of POLADA In addition to the persons mentioned above, the following persons were heard during the evidentiary proceedings – Dr. […], Clinical Dermatologist, Witness called by the Appellant – Ms. […], Psychologist, Expert Witness called by the Appellant – Dr. Marco Catani, Clinical Psychiatrist, Expert Witness called by the Appellant CAS 2024/A/10821 FIVB v. POLADA & A. – Page 9 51. IV. A. 52. - - - - At the end of the hearing, the Parties confirmed that they were satisfied with the conduct of the proceedings, and they did not have any procedural objections thereto. SUBMISSIONS OF THE PARTIES Main Submissions The Appellant’s submissions, in essence, may be summarized as follows: - - The Appealed Decision correctly established that the Athlete violated Article 2.1 and 2.2 of the POLADA ADR. The appropriate consequences for said ADRVs are however disputed. The imposition of a reprimand was too lenient and incompatible with the Athlete’s significant level of fault in the present matter and failed to impose any sanctions with respect to the disqualification of results obtained by the Athlete. With respect to the period of ineligibility, the Appellant does not consider that there is a serious possibility for the Athlete to have intentionally committed the ADRVs and therefore does not request an ineligibility period of four years under Article 10.2.1.2 of the POLADA ADR. The standard ineligibility period applicable in the present case is two years pursuant to Article 10.2.2 of the POLADA ADR. However, the Appealed Decision erroneously reduced the standard sanction to a reprimand applying Article 10.6.1.1 of the POLADA ADR and finding that “no substantial fault” existed on the Athlete’s part. Though the Athlete provided certain explanations for her ADRVs, her degree of fault in the present case does not warrant a reduction of the applicable ineligibility period to a reprimand only. The Appellant does not challenge the alleged source of the prohibited substance and accepts that the medication Verospiron prescribed by the Athlete’s doctor and consumed from 31 January 2024 was the source of the prohibited substance Canrenone found in her Sample. With respect to her degree of fault, the Appellant analysed the degree of risk that should have been perceived by the Athlete and the level of care and investigation exercised by the Athlete in relation to that level of risk. The reduction based on “No Significant Fault or Negligence” is only possible “where the circumstances justifying a deviation from the duty of exercising the “utmost caution” are truly exceptional, and not in the vast majority of cases.” Relying on CAS case law, the Appellant considers that the Athlete’s bears a significant fault in the present case: the Athlete was an experienced volleyball player who had received sufficient anti-doping education during her long career and therefore aware of her responsibilities as a professional athlete. As such, the mere fact that the medication CAS 2024/A/10821 FIVB v. POLADA & A. – Page 10 was consumed by the Athlete for a therapeutic purpose is irrelevant to the degree of fault analysis. - - - - - - The Athlete admittedly failed to do sufficient research and due diligence to ensure that the medication she consumes does not contain any prohibited substances, such as reading the label of the product, cross-check the ingredients with the list of prohibited substance, or make an internet search of the product. The only step that she took was to inform her doctor that she is a professional athlete and she had to undergo anti-doping testing. However, her doctor was not a specialized doctor in sports medicine and thus not an expert. Even if he were an expert, such duty cannot be entirely delegated to her doctor to fulfil her anti-doping obligations. The Athlete should have informed her team doctor, which she failed to do without any compelling reason to this effect. While the Athlete only mentions her “lack of awareness” as the reason of the failure, the Appealed Decision attributes a separate reason for this omission by the Athlete, namely the Athlete’s possible embarrassment caused by her medical condition, such reason is however not convincing as the team doctor is bound by professional rules of confidentiality. As such, it cannot be reasonably assumed that she took sufficient steps to prevent the possibility of a prohibited substance entering her body. With respect to the Athlete’s submissions that she suffered from a medical condition for a long time and she was undergoing treatment prior to the prescription of Verospiron, the Athlete failed to mention that she conducted any research or due diligence regarding these other medications she consumed. This rather undermines her case showing her extremely casual approach to her anti-doping obligations in general. The Athlete’s argument that the prohibited substance found in her sample lacked any performance-enhancing effect and was only used for treating her medical issue cannot be considered relevant for the assessment of the degree of fault of an athlete, under CAS case law. Last, the Athlete’s potential embarrassment due to her illness is not a sufficient reason for the Athlete to ignore her anti-doping responsibilities. Even if such an argument was to be accepted, it is highly unlikely that solely by mentioning the name of a medication on the DCF within the confidential antidoping process, the Athlete would have had to face any embarrassment. With respect to the prescription from the Athlete’s doctor and the subsequent obtention of a TUE from the competent sports organisation, ‘light fault’ has been found in cases where an athlete tested positive before obtaining the TUE. However, the Appellant is ready to consider that the prospective TUE is one element of the Athlete’s degree of fault, even though it should not automatically result in a finding of “light” fault as it would otherwise undermine the athletes’ incentive to apply for a TUE as early as possible and seek other preventive measures. CAS 2024/A/10821 FIVB v. POLADA & A. – Page 11 - - - 53. In conclusion, the Appellant considers that the imposition of a reprimand in this case is completely inappropriate, as the Athlete, an experienced volley-ball player, failed to comply with her anti-doping obligations even though she received considerable anti doping education in her career. While the Appellant is prepared to consider the prospective TUE granted to the Athlete for the determination of the Athlete’s degree of fault, this certainly does not justify the reduction applied by the POLADA AD or result in a finding of “light” fault. By contrast, the appropriate ineligibility case in the present case must be 12 months. With respect to the disqualification of results, and under a strict application of Article 10.10 of the POLADA, the Sole Arbitrator should disqualify all competitive results obtained by the Athlete from the date the Sample was collected, i.e., 26 April 2024, through the date of commencement of the ineligibility period imposed, including forfeiture of any medals, points, prizes and prize money. However, and although the Athlete bears the burden of proving it, the Appellant acknowledges the potential applicability of the fairness exception contained in Article 10.10 of the POLADA ADR in this case and accepts that considering the prospective TUE obtained by the Athlete, the said purpose would be achieved by disqualifying the Athlete’s results until the effective date of the prospective TUE. As such, the Appellant seeks the disqualification of all competitive results of the Athlete obtained from the date the Sample was collected, i.e., 26 April 2024, until the effective date of the TUE obtained by the Athlete i.e., 8 June 2024, including forfeiture of any medals, points, prizes and prize money. The Appellant submitted the following requests for relief: “I. to confirm the finding of the Disciplinary Panel of First Instance of the Polish Anti-Doping Agency, in its decision dated 3 July 2024, that A. committed violations of Article 2.1 and Article 2.2 of the Polish Anti-Doping Agency Anti-Doping Rules 2021; II. to amend the decision of the Disciplinary Panel of First Instance of the Polish Anti-Doping Agency dated 3 July 2024 insofar as to impose on A. a period of ineligibility of 12 months commencing on the date of issuance of the award in the present appeal; III. to disqualify all the competitive results of A. obtained from 26 April 2024 until 8 June 2024; IV. to order the Polish Anti-Doping Agency and/or A. to bear the entire costs of these arbitration proceedings; and V. to order the Polish Anti-Doping Agency and/or A. to pay to the Appellant a contribution towards its legal fees and other expenses incurred in connection with these appeal proceedings, in an amount to be specified at a later stage.” The First Respondent’s submissions, in essence, may be summarized as follows: CAS 2024/A/10821 FIVB v. POLADA & A. – Page 12 - - - - - - - - - It agrees with the Appellant’s evaluation of facts and legal analysis of the case and has also seen ground to file an appeal itself, however it refrained from doing so due to the costs of the appeal before the CAS. First Respondent notes that its Answer is “of a supplementary character to the Appeal Brief, considering that POLADA shares the same evaluation of the ADRV as FIVB”. Moreover, the prohibited substance found in the Athlete’s sample is included in the group of diuretics / masking agents, therefore it is by definition a prohibited substance even when it does not enhance sports performance. According to the testimony given by the Athlete, the medication lasted for 60 days, which means that the therapy should have ended at the end of March 2024; given that the Athlete did not declare the use of this drug in the doping control form on 26 April 2024, it is not likely that the Athlete was still using the drug at that time. The Athlete is an experienced, high-level athlete, member of the Polish national team and with previous anti-doping training, as such her explanations to her doctor were insufficient. Even considering that she fully trusted her doctor, this would not be sufficient to release her from her obligation to verify for herself whether the treatment was safe for her as an athlete. The Athlete thus failed to verify the composition of the drug which was in her possession since at least 31 January 2024, even more since the substance indicated on the package is itself a prohibited substance. Such action was expected from her as a national team member and would not require specialized knowledge. Therefore, the circumstances of the case do not justify a low degree of fault “but this is, of course, on the condition that CAS finds that the Athlete has demonstrated the use of this drug during the period when the doping control took place”. From a procedural standpoint, First Respondent noted that the denomination by the Appellant of the first instance panel as a Disciplinary Panel of first instance of POLADA or as established by POLADA is misleading. Said Disciplinary Panel is independent and separate from POLADA as required by the WADA Code, International Standard for Results Management and the WADA Regulations. During the hearing, First Respondent reiterated that it agreed with the position of the Appellant, considering that the Appealed Decision was “generous” and that First Respondent requested from the beginning a 2-year sanction or a 16-month sanction, but based on the TUE and the overall assessment, they would follow the proposal by the Appellant. As such, First Respondent filed the following requests for relief: “I. the appeal filed by FIVB on 23 September 2024 is upheld; CAS 2024/A/10821 FIVB v. POLADA & A. – Page 13 II. To amend the decision of the Disciplinary Panel of First Instance dated 3 July 2024 insofar as to impose a period of ineligibility of 12 months commencing on the date of issuance of the award in the present appeal; III. To disqualify all the competitive results of A. obtained from 26 April 2024 until 8 June 2024; IV. To order A. to bear the entire costs of these arbitration proceedings; and V. to order A. to pay to the Appellant a contribution towards its legal fees and other expenses incurred in connection with these appeal proceedings, in an amount to be specified at a later stage.” 54. The Athlete’s submissions, in essence, may be summarized as follows: - - - - - - During the first-instance proceedings, the Athlete admitted that she committed an ADRV and said that she was sorry for that. According to the applicable regulations, there is no numerus clausus of circumstances that should be considered when assessing an athlete’s fault or its degree. Specific circumstances that can be considered include any relevant criterion that could explain a lack of diligence in the athlete’s behaviour. The Athlete suffers from […], also known as […] in women, primarily caused by genetic and hormonal factors, with an increased sensitivity to androgens leading to […]. This causes […]. Beyond its physiological effects, its psychological and emotional impact includes self-esteem and body image issues, social anxiety and isolation, depression and anxiety, but also frustration due to ineffective treatments. The Athlete notes that previously undergone therapies were ineffective as they were based on cosmetic products and not prescribed medication, leading to lowered mood and depression. During the first-instance proceedings it was established that the Athlete consulted her practitioner Dr. […] and duly informed him that she was a professional athlete, as also proven by his witness statement. There are no guidelines issued by the Athlete’s volleyball federation regarding consultation with doctors, and athletes “have not been instructed to consult their medications or therapies with any doctor recommended by the Federation”. Therefore, the Athlete was not aware that consulting with her doctor only would not be sufficient. During therapy the Athlete was undergoing an extremely stressful period in her life resulting from the disease and impairing her ability to recognize the significance of her actions, resulting in diminished awareness and forgetting about a need for doing her own research regarding the prescribed medication. The medication taken by the Athlete (Verospiron) was in accordance with the current treatment standards for this medical condition and was prescribed by a qualified doctor, as this is not disputed by the Appellant. CAS 2024/A/10821 FIVB v. POLADA & A. – Page 14 - - - - - - - Immediately after the Athlete found that she had been using a prohibited substance she applied for the TUE and on 8 June 2024 she received a TUE for the use of said treatment and use of this medication for one year. This confirms that said medication is appropriate and does not constitute a violation of the anti-doping regulations. Pursuant to CAS case law, in situations where an athlete gets a prescription from a doctor for a medication and later actually obtains a TUE for its use, only “light fault” can be attributed to the athlete in case he/she tests positive before obtaining the TUE. As such, the Athlete’s fault should not be at the top of the lower end of the “light fault” range, but rather at the very bottom of it, due to the surrounding circumstances, including her long unsuccessful therapy, the fact that she consulted a qualified doctor, the feeling of shame, stress and depression that impaired her actions, the lack of enhancing effect connected to the medication, and her cooperation with POLADA during the anti-doping proceedings. To the extent that the Athlete received this medication for a treatment that was approved by the ITA, punishing her with any period of ineligibility would only bring her further shame, depression and deprive her of her livelihood. Any sanction would therefore drastically violate the principle of proportionality which could constitute a breach of public policy. The Athlete’s high level of stress and depression due to her condition impaired her cognitive abilities, justifying her not applying for a TUE at an earlier stage. In her submissions, the Athlete requested to be heard during the hearing and called her doctor Dr. […] to give testimony, along with expert witnesses to testify on her suffering from stress and depression as a consequence of her condition and determine that “the Athlete’s lowered mood affected her ability to recognize the significance of her actions”. With respect to the allocation of costs, the Athlete noted that, due to her limited monthly income (of EUR 1’132 after taxation in 2023), burdening her with legal fees and other procedural costs would exhaust her financial resources. Furthermore, with the possibility of ending her professional career in case that the appeal would be accepted, the Athlete would hardly be able to incur costs of these proceedings and reimbursing the costs borne by the Appellant. The Athlete would be willing to adduce her tax declaration proving her financial situation. The Athlete submitted the following requests for relief: “1) dismiss the Appeal, 2) uphold the decision from 3 July 2024 of the Disciplinary Panel of First Instance of the Polish Anti-Doping Agency, 3) order the Appellant to bear the entire costs of these arbitration proceedings, CAS 2024/A/10821 FIVB v. POLADA & A. – Page 15 4) order the Appellant to pay the Second Respondent a contribution towards her legal fees and other expenses incurred in connection with these appeal proceedings in the amount to be specified at a later stage. Alternatively, in case the Sole Arbitrator issues an award accepting the appeal, the Second Respondent wishes to request the Sole Arbitrator to declare: 5) that she is relieved of an obligation to bear costs of these arbitration proceedings (against point V. of the Appellant’s Request for Relief) and that she is relieved of an obligation to pay to the Appellant a contribution towards Appellant’s legal fees and other expenses incurred in connection with these appeal proceedings (against point VI. Of the Appellant’s Request for Relief).” B. 55. 56. Submissions on the Psychological Report filed by the Athlete and the Report filed by the Appellant In her letter dated 3 January 2025, the Athlete adduced a Psychological Report from psychologist Ms […] intended to address the Athlete’s suffering from stress and depression as consequences of […] and evaluate the extent to which the ineffective treatment and its impact on her emotional functioning affected her capacity to recognize the significance of her actions. The content of the submission and the Athlete’s arguments can be summarized as follows: - - - Ms […] had been providing psychological therapy to the Athlete and issued a report diagnosing the Athlete with depressive disorder, including an assessment of the psychological impairments stemming from her condition. The Athlete held that she had already raised her psychological burden during the first instance proceedings. Furthermore, she consulted a psychologist and was diagnosed with depressive disorder, a condition persisting for at least 18 months, noting that these issues affected her cognitive functioning and her ability to make rational decisions. The Athlete also supported that retroactive diagnoses are widely accepted under CAS case law (CAS 2016/A/4631 and CAS 2015/A/4127). In her report, Ms […] noted that the Athlete visited her practice in September 2024 due to a difficult life situation that was impairing her daily functioning. She has been struggling with significant […] for years, which has negatively impacted on her self esteem. She has also been suffering from excessive stress due to the high pressure placed on professional athletes. According to the report, the cognitive functioning of the Athlete is “currently slightly impaired secondary to diagnosed adjustment and mood disorders”. According to her report, “[t]hese factors would “have affected her ability to concentrate, even during matches, resulting in a belief in her low effectiveness, gradual mental health deterioration, and limited ability to make rational life decisions while desperately striving for physical and mental well-being”. On 24 January 2025, and as directed by the Sole Arbitrator following the Case Management Conference, the Appellant provided observations and evidence, CAS 2024/A/10821 FIVB v. POLADA & A. – Page 16 nominating Prof. Dr. Marco Catani as its expert witness and attaching his report to its submissions (the “Catani Report”), summarized as follows: - - 57. 58. 59. 60. First, the Appellant submitted that the Psychological Report was insufficient to prove that the Athlete did suffer from an “adjustive disorder” and a “depressive disorder” at the relevant time, i.e. between 31 January 2024, when she consulted Dr. […] and started her treatment with Verospiron and the date of the sample collection on 26 April 2024. Said report does not explain what these disorders are and how they could affect the Athlete’s fulfilment of her anti-doping obligations. In essence, the Psychological Report only states that the Athlete’s condition persisted for at least 18 months but does not state that her conclusions relate to this time period. Based on the Catani Report, the Psychological Report “lacks comprehensive details necessary for a thorough evaluation”. Specifically for the Athlete’s cognitive difficulties affecting her “ability to make rational life decisions”, a psychometric assessment would have been necessary to evaluate the severity of her impairments. The Psychological Report further lacks elements about the Athlete’s personal, medical and psychiatric history, necessary for such a diagnosis and includes no treatment plan. Furthermore, a retrospective diagnosis would require the collection of supporting evidence or collateral history, which was not provided in the Psychological Report. The Appellant further supports that the Athlete has not invited any family members to testify about her personal life and confirm the assessment provided in the Psychological Report. Also, while the Appellant gives due importance to mental health, it exercises caution in case such as this one, where the illnesses have not been diagnosed through physiological tests and their diagnosis is heavily reliant on the patient’s self-reporting of symptoms. What is more, these arguments on mental health appeared only at the appellate stage of the proceedings. Even if the Psychological Report were to be found sufficient to establish the Athlete’s psychological illness at the relevant time, she has failed to prove that said illness prevented her from performing her anti-doping obligations: first, such illness would affect all areas of her life and not be selective. In this regard, the Athlete called no witness from her personal or professional life who would testify on her deterioration of mental health and its impact on her professional life. According to the Appellant, the Athlete has been posting images of her social life on her public social media profile and that it is unlikely that an individual with severe self image issues would constantly and publicly post such images. Furthermore, the Athlete continued playing professional volleyball including for the Polish women’s national volleyball team in 2024 without any noticeable deterioration of her performance level. In the view of the Appellant, this would be in contradiction to the Psychological Report stating that her “ability to perform effectively at work” was hindered. According to the Catani Report, the symptoms mentioned in the Psychological Report would not have allowed the Athlete to perform at her normal levels. What is more, to the extent that the Athlete informed her doctor Dr […] that she is a professional CAS 2024/A/10821 FIVB v. POLADA & A. – Page 17 athlete, she should also be aware of her general anti-doping obligations, including her research of any medication prior to its consumption. This is reinforced by the fact that the Athlete had been prescribed Verospiron on 31 January 2024 and had more than three months to conduct sufficient research until the date of the sample collection on 24 April 2024. C. 61. 62. 63. 64. 65. Hearing and Examination of Parties and Witnesses During the hearing, the Sole Arbitrator heard testimonies from the parties’ experts and the Athlete. In essence, all experts confirmed the content of their reports, which are also briefly summarized hereafter. Testimony of the Athlete During her examination and in her closing statements, the Athlete confirmed the very difficult situation she had endured due to her illness, that in turn caused a depression and a constant feeling of shame as she is a public person. The problem had already started back in 2023, and she initially started with some lighter treatment but there was no improvement. The Athlete was slowly withdrawing from her social life and would not open to anyone about her condition in order to avoid embarrassment. All this in turn […] and lowered her self-esteem. The Athlete further stated that the pictures posted on social media were done out of social pressure, in order to show a more positive image of herself to the outside, rather than as a sign of emotional wellbeing. She then reached out to Dr. […] who was a trusted professional and diagnosed her medical condition, starting again with alternative therapies before prescribing her the treatment that included the prohibited substance. The Athlete further confirmed that when she visited Dr. […] she informed him that she was a volleyball player and he told her that this medication did not contain any prohibited substances. She would take the medication once daily, sometimes she would forget. In her closing submissions, the Athlete showed again her regret and acknowledged her fault, while reiterating the difficulties she went through due to her medical condition that impacted on her image and her mental state. The Athlete confirmed that it was extremely difficult to confide in a psychologist about her mental health problems, as her medical condition impacted on her image as a public person. While Prof. Catani assessed the Psychological Report in a couple of pages, he could not possibly know how difficult it was for her and how much time it took her to reach a level of emotional stability. The Athlete accepted that there are anti-doping rules that need to be applied but at the same time supported that she was sufficiently punished and ashamed throughout the proceedings and by filing for a TUE, first through the information on the media and second by losing her dream of attending the Olympic Games in Paris. CAS 2024/A/10821 FIVB v. POLADA & A. – Page 18 Testimony of Dr. […] 66. 67. 68. 69. 70. Dr. […] confirmed that the Athlete first visited him in January 2024, experiencing an extensive […]. As with young patients of the Athlete’s age, he considered various kinds of treatments, focusing on any planned pregnancy, lactation and her overall psychological state. Dr. […] said that he is a dermatologist but could still see that the Athlete was suffering of depressed mood because of her voice and overall behaviour. He had the impression that that time […] was the predominant problem in her life. The medication he recommended is the one usually recommended for this type of medical condition. Dr. […] also confirmed that the Athlete told him that she played volleyball during the Athlete’s first visit but he did not get that she was a professional athlete and he probably misunderstood. He would never have told her to apply for a TUE because he did not consider the prescribed medication to contain a prohibited substance, also because he did not have experience in this regard. Dr. […] confirmed that he is a certified dermatologist with no specialization in sports medicine and no experience in treating professional athletes. While the treatment started in January 2024, the Athlete’s last control was on 25 March 2024, prescribing the medication until May 2024, to the extent that the Athlete successfully responded to the medication. When asked why the Athlete applied for a TUE once the treatment was concluded, Dr. […] confirmed that the Athlete suffered from a chronic condition that would most likely come back, and she would need to continue the use of this medication. Dr. […] further stated that the prescribed medication was in line with global recommendations and no further consent was needed. While Dr. […] confirmed that the Athlete informed him that she was a volleyball player, he does not recall how exactly she formulated her statement, but he feels that he acted negligently because he should have enquired more information in order to ascertain that the prescribed medication did not include a prohibited substance. Dr. […] compared this situation to patients who inform him that they are pregnant, in which case he should enquire the month, as there are substances that are explicitly forbidden during the first three months of pregnancy. Testimony of Ms. […] Ms. […] confirmed, at the hearing, that she had at least 10 sessions with the Athlete; her diagnosis included mood disorder, and this depression came from adjustment disorders that she was suffering from. In order to reach her diagnosis, Ms. […] conducted interviews, conversations over several months and capability tests. When asked whether it was possible to determine that she was suffering from a mental disorder in April 2024, Ms. […] mentioned that it was possible and that there were various methods to do so. Even though conducting external interviews could potentially offer more accurate results and this is not always possible, and it may also constitute a violation of the patient’s privacy. Even though the Athlete started her sessions in September 2024, she did not seem aware that she was suffering from depression and, according to Ms. […], this situation originated from mood disorders and adjustment CAS 2024/A/10821 FIVB v. POLADA & A. – Page 19 disorders. The Athlete was trying to hide her problem from others for several months, therefore revealing the problem others would have been detrimental to her mental state. During her sessions, the Athlete would mention many instances or examples of things that she missed during that period, and she was sure that the Athlete was suffering from depression at least six months before they first met. 71. 72. V. 73. 74. 75. Ms […] further stated that the fact that the Athlete was posting photos on herself on social media was an effort for the patient to improve herself image that had suffered significantly as a result of her situation. Last, when Ms. […] drafted her Psychological Report, she mentioned her current state as being substantively improved compared to when she had started therapy. Testimony of Prof. Catani Prof. Catani first confirmed that the medical condition suffered by the Athlete can lead to depression, which in turn can lead to a decrease of cognitive function. He then said that, even though he has no doubt that in September 2024 the Ahtlete showed symptoms of depression, it is not clear that this was related to her medical condition and the exact time line should have been delineated. Prof. Catani subsequently reiterated the content of his report, stating that when a patient suffers from the conditions mentioned in the Psychological Report, these conditions usually affect all areas of her life. While he did not deny that the Athlete’s mental state could impact on her possibility to make rational decisions, he reiterated that this would need more collateral information to be more specific if he had the opportunity to assess the patient. JURISDICTION Article R47 of the Code provides as follows: An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body. Article 13.2.1 of the POLADA ADR provides as follows: In cases arising from participation in an International Event or in cases involving International-Level Athletes, the decision may be appealed exclusively to CAS. The applicable FIVB Medical & Anti-Doping Regulations of the Appellant provide under A. Scope, page 5, for the following definition: (…) the following Athletes shall be considered to be International-Level Athletes for purposes of these Anti-Doping Rules, and therefore the specific provisions in these Anti Doping Rules applicable to International-Level Athletes (as regards Testing but also as CAS 2024/A/10821 FIVB v. POLADA & A. – Page 20 regards TUEs, whereabouts information, Results Management) shall apply to such Athletes: a. Athletes who have competed in at least one FIVB Event in the relevant calendar year and/or in the previous two (2) calendar years; and b. Athletes included by the FIVB in the Registered Testing Pool or Testing Pool(s). 76. 77. 78. 79. VI. 80. 81. The Athlete has competed several times in the 2024 Volleyball Nations League for her national team Poland, which is an “FIVB Competition” pursuant to Article 2.2.2 g. of the applicable FIVB Event Regulations. Therefore, the Athlete is an International Level-Athlete. According to Article 13.2.3.1 of the POLADA ADR: In cases under Article 13.2.1 of the POLADA ADR, the following parties shall have the right to appeal to CAS: (a) the Athlete or other Person who is the subject of the decision being appealed; (b) the other party to the case in which the decision was rendered; (c) the relevant International Federation; (d) POLADA and (if different) the National Anti Doping Organization of the Person’s country of residence or countries where the Person is a national or license holder; (…) Accordingly, the Appellant, as the relevant international federation, had the right to file an appeal to the CAS and the latter has jurisdiction to decide the present case. During the CMC and by signing the Order of Procedure, the Parties acknowledged and confirmed the jurisdiction of the CAS to hear the present Appeal. ADMISSIBILITY Article R49 of the Code provides as follows: In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. After having consulted the parties, the Division President may refuse to entertain an appeal if it is manifestly late. According to Article 13.6.1 of the POLADA ADR entitled “Appeals to CAS”: “The time limit to file an appeal to CAS shall be twenty-one (21) days from the date of receipt of the decision by the appealing party. The above notwithstanding, the following shall apply in connection with appeals filed by a party entitled to appeal but which was not a party to the proceedings that led to the decision being appealed: (a) Within fifteen (15) days from the notice of the decision, such party/ies shall have the right to request a copy of the full case file pertaining to the decision from the Anti-Doping Organization that had Results Management authority; (b) If such a request is made within the fifteen (15) day period, then the party making such request shall have twenty-one (21) days from receipt of the file to file an appeal to CAS”. CAS 2024/A/10821 FIVB v. POLADA & A. – Page 21 82. 83. 84. 85. 86. On 4 July 2024, the Appellant requested a copy of the full case file from the First Respondent, noting that the written decision should conform with Article 9 of the ISRM and, as such, it should include the full reasons for the decision. On 5 July 2024, the First Respondent provided the case file, which did not include the grounds, noting that “(…) full justification for the decision will be available soon, no later than on the 30th day from the date of issuance of the decision.” The grounds of the Appealed Decision were provided on 1 August 2024, in Polish language, and the English translation was provided on 7 August 2024. Accordingly, the Statement of Appeal, filed on 22 August 2024, was filed within the time limit specified in Article 13.6.1 of the POLADA ADR, regardless of whether the 21-day time limit started running upon receipt of the Polish original or of the English translation. It follows that the appeal is admissible. VII. APPLICABLE LAW 87. 88. Article R58 of the Code provides as follows: The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision. The present dispute will therefore be decided according to the POLADA ADR (2021 version). VIII. OTHER PROCEDURAL MATTERS A. 89. B. 90. Hearing by Video Conference The Appellant requested a hearing through video conference in line with Article R44.2 (4) of the CAS Code to reduce the costs and for “the convenience of the Sole Arbitrator/Panel and the Parties (and their representatives and potential witnesses)”. This was explicitly agreed upon by all Parties during the Case Management Conference. Admissibility of the Filing of an Expert Report by the Athlete In its letter dated 19 December 2024, the Appellant objected to the Athlete’s request for the appointment of an expert considering that the conditions for such appointment were not met in the present case. CAS 2024/A/10821 FIVB v. POLADA & A. – Page 22 91. 92. 93. 94. 95. In essence, the Appellant objected to the Athlete’s request of both an expert witness “within the field of psychiatry and an expert witness within the field of clinical psychology” for the following reasons: to the extent that such request failed to indicate the names of any specific experts required under Articles R44.1, R44.2 and R55 and R57 of the CAS Code, the Appellant considered that such request pertained to the appointment of an independent expert by the Sole Arbitrator. However, such expert should be appointed by the Sole Arbitrator under Article R44.3 of the CAS Code (“if it deems it appropriate to supplement the presentation of the parties”) Referring to the jurisprudence of the Swiss Federal Tribunal (SFT 4P.320/1994 of 6 September 1996, at 3b), the Appellant submitted that such appointment is subject to numerous requirements, including filing in time and proper form, paying of costs, and relevance to the matter at stake. The Appellant considered that said criteria were not fulfilled, as the Athlete had not mentioned the alleged psychological impact of her illness in the first instance proceedings, therefore the request’s relevance is questionable. Furthermore, the Athlete failed to provide any evidence of high stress or depression in her submissions. Similarly, an expert appointed and examined in these proceedings would only provide a general opinion on the potential impact of the Athlete’s alleged illness which would not be relevant in the present case as it could not prove the Athlete’s mental status at the time of the ADRV or other issues that the Athlete was facing at that time. Finally, the Appellant submitted that the Athlete would lack the financial means to pay for the costs of such expert as it requested that the Appellant bears the entire costs of the arbitration proceedings, therefore the appointment of an expert would only increase the costs of this procedure. On 3 January 2025, the Athlete filed a letter including unsolicited submissions regarding her request for an expert opinion and responded to the Appellant’s submissions dated 19 December 2024. She proposed Ms […] as an expert witness and adduced an expert report of this psychologist. Responding to the Appellant’s comments dated 19 December 2024, the Athlete noted that during the first instance proceedings, the Athlete had raised the psychological burden associated with her medical condition and treatment (also noted in the Appealed Decision). Furthermore, the filing of an expert opinion regarding the Athlete’s mental health and her psychological disorders should be accepted as relevant and retroactive diagnoses of psychological disorder would be accepted in medical and legal contexts and in line with other CAS case law (CAS 2016/A/4631 and CAS 2015/A/4127). Finally, the Athlete noted that the Appellant’s considerations on limiting the procedural costs should have no relevance on the hiring of the expert to the extent that this would risk violating the Athlete’s right to a fair trial. During the Case Management Conference, and after hearing the other Parties, the Sole Arbitrator decided to accept the witness statement adduced by the Athlete to the file and to call said witness to the hearing, while allowing the Appellant to file observations limited to the expert opinion filed by the Athlete. CAS 2024/A/10821 FIVB v. POLADA & A. – Page 23 96. IX. 97. 98. A. 99. The Sole Arbitrator decided to admit the Psychological Report to the file for the following reasons: first, it could be relevant to assess the Athlete’s psychological situation and its potential impact on the outcome of the case. Whether the Athlete did raise the psychological burden during the first instance proceedings or not is not decisive for the admission of the Psychological Report, to the extent that these proceedings are de novo proceedings based on Article R57 of the CAS Code and the Athlete is allowed to bring new evidence and elaborate new arguments to corroborate her case. Furthermore, to the extent that the Athlete did not request the CAS to bear the costs of such expertise, the arguments raised by the Appellant regarding the likely procedural cost increase seem to be immaterial. Finally, by granting the possibility to the Appellant to file observations to the Psychological Report, the Appellant’s right to be heard was respected. MERITS At the outset, the Sole Arbitrator notes that it is undisputed among the Parties – and it is also correctly reflected in the Appealed Decision - that the Athlete violated Article 2.1 and 2.2 of the POLADA ADR, to the extent that the “A” Sample of the Athlete showed the presence of Canrenone, which is a prohibited substance (“Specified Substance”) as per the 2024 WADA Prohibited List and the Athlete waived her right to a “B” Sample analysis. This is sufficient to establish the presence of a prohibited substance in accordance with Article 2.1.2 of the POLADA ADR. What is however disputed is imposition of the appropriate consequences for said ADRVs in line with the POLADA ADR and relevant CAS case law. The issues that need to be determined by the Sole Arbitrator are therefore the following: A) the Athlete’s level of fault within the meaning of Article 10.6 of the POLADA ADR and the appropriate sanction, and B) the disqualification of the Athlete’s results. The Athlete’s Level of Fault Relevant legal framework and Parties’ respective position To the extent that the Appellant does not consider that there is a plausible scenario for an intentional ADRV and has brought forward no evidence to this effect, the main relevant provision of the applicable regulations is Article 10.6.1.1 POLADA ADR, which provides as follows: “Art. 10.6.1.1 Specified Substances or Specified Methods Where the anti-doping rule violation involves a Specified Substance (other than a Substance of Abuse) or Specified Method, and the Athlete or other Person can establish No Significant Fault or Negligence, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and a maximum, two (2) years of Ineligibility, depending on the Athlete’s or other Person’s degree of Fault.” CAS 2024/A/10821 FIVB v. POLADA & A. – Page 24 100. “No Fault or Negligence” is defined in Appendix 1 of the POLADA ADR as follows: “The Athlete or other Person’s establishing that he or she did not know or suspect and could not reasonably have known or suspected even with the exercise of utmost caution, that he or she had Used or been administered the Prohibited Substance or Prohibited Method or otherwise violated an anti-doping rule. Except in the case of a Minor, for any violation of Article 2.1 the Athlete must also establish how the Prohibited Substance enters his or her system.” 101. Both the Appellant’s and the First Respondent’s consider that the Appealed Decision was flawed by imposing a reprimand but also by failing to impose any sanctions with respect to the disqualification of results obtained by the Athlete. At the same time, the Parties consider that the ingestion of the prohibited substance occurred through the medication Verospiron, prescribed by her doctor on 31 January 2024. The initial doubts raised by the First Respondent regarding the source of the prohibited substance in its Answer were not corroborated by any additional arguments or evidence. Furthermore, in its oral pleadings, First Respondent aligned entirely with the position and the arguments of the Appellant. As such, the Sole Arbitrator accepts that the Athlete established how the Prohibited Substance entered her system. 102. On the other side, the Athlete, albeit accepting her fault, considers that the Appealed Decision correctly imposed a reprimand in view of her insignificant level of fault in the present case. 103. “Fault” is defined in Appendix 1 of the POLADA ADR, which reads, in its relevant parts, as follows: “Fault is any breach of duty or any lack of care appropriate to a particular situation. Factors to be taken into consideration in assessing an Athlete’s or other Person’s degree of Fault include, for example, the Athlete’s or other Person’s experience, whether the Athlete or other Person is a Protected Person, special considerations such as impairment, the degree of risk that should have been perceived by the Athlete and the level of care and investigation exercised by the Athlete in relation to what should have been the perceived level of risk. In assessing the Athlete’s or other Person’s degree of Fault, the circumstances considered must be specific and relevant to explain the Athlete’s or other Person’s departure from the expected standard of behavior. […].” 104. The Sole Arbitrator agrees with the Athlete that the determination of the level of fault depends on numerous circumstances and there is not a predefined list under the applicable rules. The CAS case law has established some commonly accepted criteria, however they are not exhaustive and the final determination depends on the specific circumstances surrounding each case. The Sole Arbitrator has therefore the discretion to assess the Athlete’s fault guided by the CAS case law where relevant and, most importantly, by evaluating the concrete evidence adduced before her. 105. In the assessment of the degree of fault, CAS 2013/A/3327 & 3335 (the “Cilic case”) seems to offer some guidance setting out the steps that an athlete must undertake to meet CAS 2024/A/10821 FIVB v. POLADA & A. – Page 25 their standard of care. More specifically, the Cilic case includes subjective and objective criteria to assess the level of fault: “[t]he objective element describes what standard of care could have been expected from a reasonable person in the athlete’s situation. The subjective element describes what could have been expected from that particular athlete, in light of his personal capacities.” The exact circumstances considered must be specific and relevant to explain a departure from the expected standard behaviour (see CAS 2017/A/5015). 106. The Cilic case has listed several actions that an athlete could take to avoid taking a product that contains a prohibited substance, such as reading the label of the product used, cross-check the ingredients with the list of prohibited substances or make an internet search of the product. On the subjective factors, the Cilic case referred to the athlete’s individual characteristics and circumstances, assessing what could have been expected given the athlete’s unique situation. 107. In light of the above, it is the Sole Arbitrator’s duty to consider each relevant factor in order to assess the Athlete’s level of fault. While the situation shall be globally assessed and relevant elements are interrelated, for the sake of clarity, they have been examined under different subsections below, which however often overlap. Lack of diligence and experience of the Athlete 108. Considering the specific circumstances of this case also in the light of the aforementioned criteria, the Athlete herself admitted her fault by failing to check the medication’s label or disclose the prescribed medication to the team doctor or on her Doping Control Form. What is more, the Sole Arbitrator considers that the lack of performance-enhancing effect of a prohibited substance cannot be decisive as such for the assessment of the degree of fault (cf. CAS 2018/A/5581, § 68). 109. Moreover, the Athlete was a very experienced Athlete, as a member of the Women’s Volleyball national League that was scheduled to participate in the Olympic Games Paris 2024 and had also received anti-doping education (cf. CAS 2021/A/8056, para. 98) Given these factors, the Sole Arbitrator finds that the sanction of a mere reprimand, as imposed by the Appealed Decision, was clearly inappropriate. In this respect, she does not agree with the Athlete’s argument that any sanction imposed on her would “drastically violate the principle of proportionality which could constitute a breach of public policy”. Indeed, the applicable rules include a “sanctioning regime which is proportionate and contains clear and concise mechanism which allows for a reduction of the applicable sanction” (CAS 2019/A/6451; CAS 2021/A/8125, § 193). 110. The Sole Arbitrator notes that the Athlete acknowledged her fault in failing to disclose the medication on her DCF and reiterated the very difficult period she was going through, due to her mental state caused by her illness. As will be shown in more detail below, the Athlete’s mental state – as presented through medical reports and assessed through oral evidence during the hearing– could not exonerate her from her fault of not having disclosed the medication to the DCF or to the team doctor and for not checking the packaging of the medication for potential prohibited substances, all the more as she CAS 2024/A/10821 FIVB v. POLADA & A. – Page 26 was taking the medication for a long period; however, it can be taken into account as a mitigating factor for her departure from her expected standard of care. Consultation with Dr […] 111. At the same time, there are other mitigating factors that need to be considered: accordingly, as was also established during the hearing, the Athlete did inform her dermatologist Dr […] (who prescribed the medication) that she was an athlete and a volleyball player, even if it was not entirely clear whether the Athlete specified that she was subject to anti-doping obligations. 112. In this respect, although Dr. […] is not an expert in sports medicine, he specializes in the Athlete’s medical condition, making it appropriate for the Athlete to seek his advice. During his testimony, Dr. […] confirmed that the Athlete had previously unsuccessfully tried other forms of treatment and that the selected treatment with Verospiron was a targeted treatment for the Athlete’s illness; he further acknowledged that he should have double-checked to ensure that the prescribed medication did not include a prohibited substance for the Athlete and accepted his own fault. On this last point, however, Articles 2.1.1 and 2.2.1 of the POLADA ADR provide that it is the athletes’ personal duty to ensure that no prohibited substance enters their bodies and they are solely responsible for any prohibited substance or its metabolites or markers found to be present in their samples. Also, in line with consistent CAS case law, an athlete cannot abdicate their personal duty to avoid consumption of a prohibited substance by simply relying on a doctor (cf. CAS 2023/A/9525, §§ 86-88). The Athlete’s Mental State 113. The Sole Arbitrator also carefully considered the evidence submitted before her through the Psychological Report and the Catani Report but also during the experts’ and the Athlete’s testimony during the hearing, showing the Athlete’s mental state and the impact on her degree of fault. In the Appellant’s view, the Athlete failed to prove that she suffered from these disorders at the relevant time and, even if she did, this would not prevent her from fulfilling her ADR obligations. 114. The Sole Arbitrator accepts that the Athlete suffered from a difficult health condition that likely impacted on her psychological condition. The treatment including the source of the prohibited substance was neither a nutritional supplement nor a medication taken by her own initiative and without prescription, but rather a prescribed medication by a trusted specialized physician in order to treat a serious – and chronic - health condition. 115. According to the Catani Report and Prof. Catani’s testimony during the hearing, the Psychological Report was not drafted in accordance with the international standards to provide conclusive evidence on the Athlete’s mental stage at the time of the ADRV. However, and notwithstanding possible formal failings in the evaluation method used in the Psychological Report, the Sole Arbitrator is satisfied that the Athlete showed clear signs of psychological distress that likely existed for a longer period, caused or at least aggravated by her medical condition. CAS 2024/A/10821 FIVB v. POLADA & A. – Page 27 116. The content of Prof. Catani’s report was focused on evaluating the credibility of the Psychological Report, without however having examined the Athlete. On the other hand, the Sole Arbitrator gave particular emphasis on the Athlete’s psychologist, Ms. […], and the Athlete herself, whose evidence was found credible and convincing, even without being supported by additional collateral information through e.g. witness statements from family and friends as supported by the Appellant. During the hearing, both experts acknowledged that the medical condition suffered by the Athlete could have an impact on her mental state, with feelings of shame, low self-esteem and legitimately lead to depression and other psychological illnesses. 117. The Sole Arbitrator also considered the Catani Report and his explanations during the hearing, according to which the Athlete’s disorders mentioned in the Psychological Report would not be selective, i.e. would normally not allow her to be functional and operate normally in other sectors of her life. In its additional submissions, the Appellant adduced photos from the Athlete’s public social media posts during the period that the ADRV occurred. In this regard, the Sole Arbitrator considers irrelevant that the Athlete was present on social media and regularly posted images of herself. It is equally immaterial that the Athlete continued to compete without visible signs of deterioration in her athletic performance. The presence on social media is rather a social obligation and - as also explained by the Athlete and confirmed by her psychologist Ms. […] during the hearing - put additional pressure on the Athlete and should not be used as evidence of emotional wellbeing or dismiss the findings of the Psychological Report. 118. In any event, the Sole Arbitrator considers that the Athlete’s distress was not such as to cause a “lack of awareness” as supported by the Athlete or exonerate the Athlete of any fault by justifying a reprimand as found in the Appealed Decision: The Sole Arbitrator therefore considers the Athlete’s psychological distress to be an additional mitigating factor for the assessment of her fault rather than an exonerating factor. 119. The Sole Arbitrator reiterates that the analysis of the degree of fault of an athlete is a highly fact-specific exercise. As such, apart from the 24-month frame enshrined in the POLADA ADR, there are neither clear-cut rules nor CAS cases that automatically apply by analogy without tailoring them to the factual matrix of the case. 120. With respect to the Appellant’s argument that the Athlete raised her mental health issues for the first time at the CAS proceedings, the Athlete supported that had already raised this issue in the previous instance, as it is somehow shown by the Appealed Decision. In any event, the Sole Arbitrator does not consider decisive that the Appellant brought forward extensive arguments on her mental state disorders for the first time in the appeal proceedings before the CAS, to the extent that this is a de novo hearing under Article R57 of the CAS Code. The Impact of the Prospective TUE 121. The Appellant accepts that there is no settled case law as to whether the granting of a prospective TUE is related to the level of fault; even though it accepts that such TUE CAS 2024/A/10821 FIVB v. POLADA & A. – Page 28 should be considered as a mitigating factor, it considers that this should not lead to a “light” level of fault. 122. In the present case, the Sole Arbitrator considered the totality of circumstances: as such, the Athlete suffered from a serious chronic condition that undeniably required an ongoing treatment and likely impacted on her mental state; she then sought help from a specialized practitioner and subsequently applied - and was effectively granted - a prospective TUE. 123. The Sole Arbitrator finds immaterial that the Athlete was not granted a retroactive TUE, as this would have most likely resulted in the elimination of the ADRV altogether. She agrees with the Appellant that the correct application of the rules is important and that all regulations should apply uniformly to all athletes that are subject to them. At the same time, the applicable regulations provide a defined range of sanctions, allowing consideration of the totality of circumstances in each case to ensure a proportionate sanction. As such, and while she agrees with the Appellant that the granting of a prospective TUE should not automatically lead to light fault, she considers that the combination of the factual matrix of the present case should lead to a light level of fault. Conclusion 124. As seen above, the calculation of the degree of fault based on the previous version of the WADA Code (2009) and the Cilic case could also be applied by analogy to the new regime providing for a 24-month range. As such, in CAS 2015/A/3876 the Panel situated the athlete’s fault to the top of the lower end of the “light fault” range, namely 16 months (for an applicable range between 12 and 24 months), finding that the athlete had not taken any precautions to avoid the adverse analytical finding (CAS 2015/A/3876, § 84). 125. In conclusion, and considering the totality of circumstances, including the timing of the Athlete’s ADRV shortly before the Olympic Games in Paris, the Sole Arbitrator agrees with the Appellant and the First Respondent that the imposition of a reprimand in the Appealed Decision was clearly inappropriate as the Athlete admittedly was at fault. However, and after considering all elements and evidence in this case, the Sole Arbitrator considers that her degree of fault is situated in the upper scale of a light fault (reprimand to eight months, by analogy to the assessment in the Cilic case), namely eight months, commencing on the date of issuance of the present CAS award pursuant to Article 10.13 of the POLADA ADR. Said sanction is not disproportionate as it considers all the mitigating factors in favour of the Athlete and at the same time is in line with the applicable range under the POLADA ADR. B. Disqualification of results 126. The Appellant correctly notes that the Appealed Decision did not impose any sanction with respect to the disqualification of results obtained by the Athlete, in line with Article 10.10 of the POLADA ADR, which provides as follows: CAS 2024/A/10821 FIVB v. POLADA & A. – Page 29 “In addition to the automatic Disqualification of the results in the Competition which produced the positive Sample under Article 9, all other competitive results of the Athlete obtained from the date a positive Sample was collected (whether In Competition or Out of-Competition), or other anti-doping rule violation occurred, through the commencement of any Provisional Suspension or Ineligibility period, shall, unless fairness requires otherwise, be disqualified with all of the resulting Consequences including forfeiture of any medals, points and prizes.” 127. The Appellant does not request the strict application of this provision, which would result in the disqualification of all competitive results of the Athlete obtained from the date the Sample was collected, i.e., 26 April 2024, through the date of commencement of the ineligibility period imposed, including forfeiture of any medals, points, prizes and prize money. The Appellant acknowledges the fairness exception enshrined in Article 10.10 of the POLADA ADR due to the the prospective TUE obtained by the Athlete and requests only the disqualification of the Athlete’s results from the date the Sample was collected until the effective date of the TUE obtained by the Athlete. 128. The Sole Arbitrator therefore accepts the Appellant’s request (supported also by the First Respondent) and decides that the Athlete’s results should be disqualified from the date the Sample was collected, i.e., 26 April 2024, until the effective date of the Prospective TUE obtained by the Athlete i.e., 8 June 2024, including forfeiture of any medals, points, prizes and prize money (cf. CAS 2020/O/6759, para. 90). X. COSTS (…)

CAS 2024/A/10655 World Anti-Doping Agency v. Japan Anti-Doping Agency & Masaki Toyoda ARBITRAL AWARD delivered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: Sole Arbitrator: Dr Heiner Kahlert, Attorney-at-Law, Munich, Germany in the arbitration between World Anti-Doping Agency, Montreal, Canada Represented by Mr Ross Wenzel, WADA General Counsel, and Mr Nicolas Zbinden and Mr Robert Kerslake, Attorneys-at-law and Japan Anti-Doping Agency, Tokyo, Japan Represented by Mr Koichi Tsujii and Mr Shoichi Satake, Attorneys-at-law Mr Masaki Toyoda, Sagamihara City, Japan Appellant First Respondent Represented by Mr Koichiro Mochizuki, Mr Takao Ohashi, Mr Hiromu Taga, Mr Yoji Kudo, Dr Masayuki Tanamura, Mr Kengo Iida, Ms Yugo Kanamaru and Mr Daniel Allen, Attorneys at-law Second Respondent CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 2 I. 1. 2. 3. 4. II. 5. A. 6. 7. 8. 9. PARTIES The World Anti-Doping Agency (“Appellant” or “WADA”) is the international anti doping agency. It has its registered seat in Lausanne, Switzerland, and has its headquarters in Montreal, Canada. The Japan Anti-Doping Agency (“First Respondent“ or “JADA”) is the National Anti Doping Organisation in Japan. It operates under the Japan Anti-Doping Code 2021 (the “JADC”). Mr Masaki Toyoda (“Second Respondent” or “Athlete”) is a 400m hurdle race (“400mH”) athlete from Japan, born on 17 January 1998. He has competed at international track and field events in the 400mH since 2015. The First Respondent and the Second Respondent are hereinafter jointly referred to as the “Respondents”. The Appellant and the Respondents are hereinafter jointly referred to as the “Parties”. FACTUAL BACKGROUND Below is a summary of the relevant facts based on the Parties’ submissions (this term including oral pleadings and evidence adduced). Additional facts may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator has considered all the facts transpiring from the Parties’ submissions in the present proceeding, he refers in his Award only to the facts he considers necessary to explain his reasoning. The Athlete’s testing history, testing pool affiliations and competitions prior to 19 May 2022 From 13 May 2019 until before the doping test at issue here, the Athlete was subject to seven doping controls, including on 13 December 2021 and 25 February 2022. None of those tests resulted in any Adverse Analytical Finding1 (“AAF”). On 2 June 2021, the Athlete was notified of his inclusion in the JADA’s testing pool, rendering him obligated to submit his whereabouts information. On 11 March 2022, he was notified that he was included in JADA’s Registered Testing Pool (the “RTP”). On 24 April and 1, 3, 8 and 15 May 2022, the Athlete competed in 400mH races. 1Capitalized terms not defined herein have the meaning ascribed to them in the JADC. CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 3 B. 10. 11. 12. 13. 14. 15. 16. The Adverse Analytical Finding The Athlete underwent an Out-of-Competition test conducted by JADA on 19 May 2022 between 6:01 and 6:25 a.m. (the “Test”). During the Test, the Athlete provided a urine sample with the sample number 4637867 (the “Sample”). On the doping control form signed by the Athlete (the “DCF”), he indicated having used the following supplements: “HULKFACTOR CREATINE, WINZONE WHEY PROTEIN, [Sun Chlorella tablets]”. The WADA-accredited laboratory in Tokyo, Japan (the “Tokyo Laboratory”) analysed the “A” Sample and reported, on 7 June 2022, an AAF for epitrenbolone. This is a metabolite of trenbolone, which is a non-specified substance prohibited In- and Out-of Competition pursuant to section 1.1 of the 2022 WADA Prohibited List (anabolic androgenic steroids, “AAS”). On 11 June 2022, the Athlete competed at the 2022 Japan Championships and finished third. On 21 June 2022, the Athlete returned from a competition overseas to Japan and was notified of the AAF via telephone by the head of JADA’s Results Management Department. Still on the same day, shortly after the verbal notification by JADA, the Athlete called Mr Shunji Karube (the Athlete’s coach at Hosei University) and Mr Shinji Takahira (the Athlete’s coach at Fujitsu’s track and field team), informing them about the AAF. Later on the same day, the Athlete was also informed in writing about the AAF and was provisionally suspended by JADA in accordance with Article 7.4.1 JADC. On 20 July 2022, based on the Athlete’s request, the Tokyo Laboratory conducted an analysis of the “B” Sample. This was attended, inter alia, by the Athlete, his lawyer Mr Yoji Kudo, and a representative from JADA. On this occasion, Mr Masato Okano, the Head of the Tokyo Laboratory explained, among other things, the following: (i) The concentration of epitrenbolone detected in the “A” Sample was estimated at 1.4 ng/mL, which Mr Okano referred to as “extremely low”. He explained that WADA’s Technical Documents required WADA-accredited laboratories to be able to detect concentrations of 2.5 ng/mL of trenbolone. (ii) Trenbolone has a powerful muscle-strengthening effect and is therefore often used in bodybuilding. In cases of intentional consumption for bodybuilding, the urinary concentration would be around 50 or 100 ng/mL. (iii) Trenbolone is not approved as a drug in Japan and is not available over the counter. (iv) While trenbolone is prohibited in Japan as a growth promoter in animals, it is used as such in the United States and Australia. There is data showing that trenbolone CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 4 can be detected in the animal’s liver, but it may also be present in ordinary cuts of meat. While the Japanese authorities conduct sample checks for prohibited substances, it does not check every item. Therefore, it is unknown whether imported meat sold at Japanese supermarkets may contain trenbolone. 17. 18. C. 19. 20. D. 21. 22. 23. 24. 25. 26. On 21 July 2022, the Athlete was notified that the analysis of his “B” Sample had confirmed the AAF, with the estimated concentration again being 1.4 ng/mL. On 20 February 2023, the Athlete was charged by JADA with the commission of an anti-doping rule violation (“ADRV”) under Articles 2.1 and 2.2 of the JADC. The decision of the Japan Anti-Doping Disciplinary Panel On 6 July 2023, the Athlete was heard before the Japan Anti-Doping Disciplinary Panel (the “JADDP”). On 5 January 2024, the JADDP issued its decision (the “JADDP Decision”) as follows, in the English translation provided by WADA in this arbitration: “- Violations of Articles 2.1 and 2.2 of the Code are found to have occurred. - In accordance with Article 10.10 of the Code, all of the individual results of the Athlete obtained from May 19, 2022, the date of sample collection, through June 21, 2022, the commencement date of the provisional suspension period shall be disqualified, and all medals, points and prizes obtained during such period shall be forfeited. - In accordance with Articles 10.2.2 and 10.13.1 of the Code, ineligibility shall be imposed for a period of two years starting from May 21, 2022.” The decision of the Japan Sports Arbitration Agency On 25 January 2024, JADA appealed to the Japan Sports Arbitration Agency (the “JSAA”) requesting a partial reversal of the JADDP Decision by seeking a period of ineligibility of four years instead of two. By a decision dated 2 April 2024 (the “Appealed Decision”), the JSAA dismissed JADA’s appeal. On 3 April 2024, JADA notified WADA that JADA’s appeal of 25 January 2024 had been dismissed. On 8 April 2024, WADA received the Appealed Decision. On 9 April 2024, World Athletics received the Appealed Decision. On 22 April 2024, WADA submitted a case file request and received elements of the case file on the same day. CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 5 27. 28. 29. 30. 31. III. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. On 23 April 2024, WADA requested additional documents and World Athletics submitted a case file request of its own. On 24 April 2024, the requested additional documents were provided to WADA. On 26 April 2024, World Athletics received elements of the case file. On 16 May 2024, JADA provided WADA and World Athletics with further translated documents. On 21 May 2024, the Athlete resumed his sporting activities. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT On 6 June 2024, the Appellant filed its Statement of Appeal within the meaning of Article R48 of the Code of Sports-related Arbitration (2023 edition) (“CAS Code”) before the Court of Arbitration for Sport (“CAS”). In its Statement of Appeal, the Appellant requested that the dispute be decided by a sole arbitrator. On 12 June 2024, the CAS Court Office initiated the procedure CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda and notified, among other information, the Statement of Appeal to the Respondents. On 18 June 2024, the Second Respondent requested the President of the Appeals Arbitration Division to appoint three arbitrators. On 27 June 2024, the Appellant filed the Appeal Brief (within the deadline as extended by the CAS). On 2 July 2024, the CAS Court Office invited the Respondents to submit their Answers within the meaning of Article R55 of the CAS Code. On 24 July 2024, the First Respondent submitted its Answer. On 5 August 2024, the Second Respondent submitted its Answer (within the deadline as extended by the CAS). On 6 August 2024, the CAS Court Office asked the Parties to confirm whether they preferred for a hearing and a case management conference (“CMC”) to be held. On 13 August 2024, the Second Respondent requested a hearing as well as a CMC. On 13 August 2024, the Appellant requested a hearing but stated that it did not consider a CMC necessary. CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 6 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. On 20 August 2024, the CAS Court Office informed the Parties pursuant to Article R50(1) of the CAS Code that the Deputy President of the CAS Appeals Arbitration division had decided to submit the case to a sole arbitrator. On 26 September 2024, the CAS Court Office, on behalf of the Deputy President of the CAS Appeals Arbitration Division, informed the Parties that pursuant to Articles R33, R52, R53 and R54 of the CAS Code, the arbitral tribunal had been constituted as follows: Sole Arbitrator: Dr Heiner Kahlert, Attorney-at-Law in Munich, Germany. On 1 October 2024, on behalf of the Sole Arbitrator, the CAS Court Office requested the Parties to indicate whether they preferred a hearing in person or via video conference, noting that the final decision on this matter would be taken by the Sole Arbitrator in accordance with Article R57 of the CAS Code. On 3 October 2024, the First Respondent indicated that, for cost reasons, it requested a hearing via video conference. On 4 October 2024, the Second Respondent indicated that he preferred a hybrid hearing as that would allow himself and a witness to testify in person. On the same day, the Appellant requested a hearing in person but confirmed that did not object for other parties to attend via video conference. On 8 October 2024, on behalf of the Sole Arbitrator, the CAS Court Office informed the Parties that, pursuant to Article R57 of the CAS Code, a hybrid hearing would be held in Lausanne and by video conference. On 30 October 2024, the Appellant notified the CAS Court Office of its view that the Second Respondent’s arguments before CAS concerning the establishment of the source of the AAF had changed compared to the previous instances. On 31 October 2024, on behalf of the Sole Arbitrator, the CAS Court Office invited the Appellant to indicate as soon as possible, but no later than 8 November 2024, whether it requested to be granted the opportunity to file a further submission in respect of the source of the prohibited substance. On 7 November 2024, the Second Respondent emphasized that, in his view, his legal position had remained consistent throughout all instances and that any further submissions by WADA would be unfairly late. On 7 November 2024, on behalf of the Sole Arbitrator and after having confirmed the Parties’ availability, the CAS Court Office informed the Parties that the hybrid hearing would be held on 29 January 2025. CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 7 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. On 8 November 2024, the Appellant replied to the Second Respondents’ letter of 7 November 2024 and provided an expert report by Prof. Christiane Ayotte (the “First Ayotte Report”). On 12 November 2024, on behalf of the Sole Arbitrator, the CAS Court Office invited the Respondents to comment on the First Ayotte Report until 15 November 2024. On 15 November 2024, the Second Respondent requested that the First Ayotte Report not be admitted. On 27 November 2024, the Appellant was granted a deadline of 4 December 2024 to provide further comments on whether the requirements for admitting the First Ayotte Report under Article R56 of the CAS Code were met. On 29 November 2024, the Appellant provided such comments, maintaining its position that the First Ayotte Report should be admitted to the case file. On 2 December 2024, on behalf of the Sole Arbitrator, the CAS Court Office granted the Respondents until 6 December 2024 to submit observations further to the Appellant’s comments of 29 November 2024. On 4 December 2024, the Second Respondent submitted his observations. On 11 December 2024, a CMC conference was held by videoconference. The Appellant and the Second Respondent were represented in the CMC. On 19 December 2024, the Appellant was invited to clarify, by 15 January 2025, whether Professor Ayotte would testify during the hearing also on “the relevance of anabolic steroids such as trenbolone in track-and-field”, as alluded to in the Appeal Brief, and (if so) to submit a supplementary expert report on that issue (the “Second Ayotte Report”). On 23 December 2024, on behalf of the Sole Arbitrator, the CAS Court Office informed the Parties that the First Ayotte Report was admitted to the file and that the reasons therefor would be provided in the final Award. On 14 January 2025, the First Respondent returned a signed copy of the Order of Procedure and confirmed that it did not wish to make any oral argument or examine any of the witnesses. On 15 January 2025, the Appellant and the Second Respondent returned signed copies of the Order of Procedure. Moreover, the Appellant submitted the Second Ayotte Report. On 22 January 2025, the Second Respondent made use of the opportunity granted by the Sole Arbitrator to submit a supplementary report by Professor Ohe in response to the Second Ayotte Report. CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 8 66. 67. 68. 69. On 23 January 2025, the CAS Court Office informed the Parties of the tentative hearing schedule and provided a list of questions that the Sole Arbitrator invited the Parties to address at the hearing. On 29 January 2025, a hybrid hearing was held in person and by videoconference. In addition to the Sole Arbitrator, Ms Andrea Sherpa-Zimmermann (Counsel at the CAS) and Ms Juliane Schneider (observer), the following persons participated in the hearing: For the Appellant: For the First Respondent: For the Second Respondent: Mr Ross Wenzel (General Counsel) Mr Nicolas Zbinden (counsel) Mr Robert Kerslake (counsel) Mr Shin Asakawa (Chief Executive Officer) Mr Yuichi Nonomura (Result Management) Mr Koichi Tsujii (counsel) Mr Shoichi Satake (counsel) Ms Risa Kumano (interpreter) Ms Grace Liu (interpreter) Mr Masaki Toyoda (the Second Respondent) Mr Daniel Allen (counsel) Mr Yoji Kudo (counsel) Ms Yuko Kanamaru (counsel) Mr Hiromu Taga (counsel) Mr Kengo Iida (counsel) Mr Takao Ohashi (counsel) Mr Koichiro Mochizuki (counsel) Mr Masayuki Tanamura (counsel) Mr Michael Sekine (interpreter) The following expert witnesses testified before the Sole Arbitrator: - - - Professor Christiane Ayotte (called by the Appellant) Professor Tomoyuki Ohe (called by the Second Respondent) Professor Satoru Tanigawa (called by the Second Respondent) At the outset of the hearing, the Parties confirmed that they had no objections to the arbitral procedure thus far. At the conclusion of the hearing, the Parties confirmed that they had no complaint regarding the conduct of the hearing, in particular, as regards their right to be heard and to be treated equally. CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 9 70. 71. 72. IV. 73. A. 74. On 13 March 2025, the Appellant provided a copy of the award rendered in CAS°2023/A/9916 & 9966. On 19 March 2025, the Second Respondent submitted that it considered the Appellant’s communication of 13 March 2025 procedurally inappropriate and reserved its rights in this regard. On 26 March 2025, the Sole Arbitrator informed the Parties that he had decided to admit the award issued in CAS 2023/A/9916 & 9966 into the record without admitting further submissions from the Parties, inter alia because the said award did not contain any finding (relevant to this arbitration) that went beyond the CAS jurisprudence already addressed in the Parties’ written submissions and oral pleadings. SUBMISSIONS OF THE PARTIES The following summary of the Parties’ positions is illustrative only and does not necessarily comprise every submission advanced by them. The Sole Arbitrator confirms that he has carefully considered all submissions made, regardless of whether there is any specific reference to them in this Award. WADA’s submissions and requests for relief WADA’s submissions, in essence, may be summarised as follows: - - - - - Pursuant to Article 13.2.3.2 of the JADC, WADA has the right to appeal to the CAS. The Statement of Appeal was lodged in a timely fashion. In accordance with Article 13.6.1 of the JADC, World Athletics’ deadline for appeal was 21 days from the receipt of the case file. As it received elements thereof on 26 April 2024, World Athletics’ deadline to appeal was, at the earliest, 17 May 2024. Accordingly, pursuant to Article 13.6.1(b)(i) of the JADC, WADA’s deadline could not be any earlier than 7 June 2024. As it is undisputed that the Athlete has committed an ADRV, the only question to be decided is the applicable sanction. The burden to prove lack of intent lies solely on the Athlete, as confirmed by CAS jurisprudence (e.g. CAS 2012/A/2759, paras. 11.31 et seq.; CAS 2014/A/3615, para. 52; CAS 2017/A/5016 & 5036, para. 131). As intentionality includes indirect intent, the Athlete must not only disprove rational and informed cheating, but also recklessness. Per Article 3.1 of the JADC, the standard of proof for lack of intent is on the balance of probabilities. As per CAS jurisprudence, it is not for WADA to come up with alternative scenarios. Instead, one only needs to analyse the scenario put forward by the Athlete. The Athlete argued that the AAF was a result of contamination but was unable to establish the source of the prohibited substance in his Sample. As noted in the Appealed Decision, this was uncontroversial amongst the parties at second instance. While the Athlete has argued before CAS that meat contamination was the most likely source of CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 10 the AAF, he has failed to provide sufficient evidence to meet his burden of proof in this regard. Specifically, there is no analytical evidence that beef liver was contaminated. Moreover, the Athlete accepted in his oral testimony that it is not clear whether he even ate beef (liver) the day before the Test. In addition, the Athlete’s evidence as to his consumption of beef liver must be approached with caution: During cross-examination, he agreed that he added the beef liver photo to the summary of his diet (the “Diet Summary”) after he had instructed his lawyers, while the text in that document neither referred to liver nor to Australian beef (WADA referred in this regard to CAS 2019/A/6319, which WADA argued showed the significance of a change in position as to the consumption of beef liver). Further, as confirmed by the expert testimony of Professor Ayotte, meat contamination is highly improbable as a source of the Athlete’s AAF. Professor Ohe’s testimony, by contrast, is entirely speculative as it refers to the maximum residue limit (“MaxRL”) permissible in Japan. This does not reflect reality because it is much higher than the concentration of trenbolone found in any study of beef livers. It is also fair to assume, contrary to Professor Ohe, that the Athlete urinated between eating beef liver and being tested, for otherwise the Athlete would have surely mentioned this at some stage of the proceedings. - - - There is consistent CAS jurisprudence holding that the Athlete must necessarily establish source to successfully prove that the substance was not taken intentionally (e.g. CAS 2017/A/5295, para. 105; CAS 2017/A/5335, para. 137; CAS 2017/A/5392, para. 63; CAS 2018/A/5570, para. 51; CAS 2016/A/4377, para. 51; CAS 2016/A/4563, para. 50; CAS 2016/A/4845, para. 41). Other CAS panels have decided that while proof of source is not a strict requirement for establishing the lack of intentionality, it is still a “crucial, almost indispensable element for an athlete to disprove intent” (CAS 2023/A/9377, para. 66) such that the absence of proof of source “leaves the narrowest of corridors through which such athlete must pass” (CAS 2016/A/4534, para. 37; endorsed by CAS 2022/A/8653, para. 233(d)), meaning that “in all but the rarest cases the issue is academic” (CAS 2016/A/4919, para. 66). It follows from the comment to Article 10.2.1.1 of the JADC, which mirrors identically the language contained in the equivalent comment of the 2021 World Anti-Doping Code (the “WADC”), that there exists only a theoretical, yet highly unlikely, possibility for an Athlete to prove that the ADRV was not intentional without establishing the source of the prohibited substance. In other words, absent proof of source, a four-year period of ineligibility applies, save in the most exceptional and extremely rare circumstances. The rationale is that absent proof of source, a key piece of evidence is missing to substantiate the claim that the substance was consumed inadvertently, requiring the tribunal to make a logical leap (cf. CAS 2016/A/4761, para. 40, citing with approval a decision of the Sport Dispute Resolution Centre of Canada in the matter of Tylor Findlay), which is not possible save in the most exceptional circumstances where alternative evidence can show the lack of intention. The Athlete’s testimony is only a protestation of innocence, not concrete actual evidence. In accordance with CAS jurisprudence, such protestations are not sufficient proof of an unintentional ADRV and will thus carry no material weight in the assessment of whether the ADRV was intentional (CAS 2020/A/6978 & 7068, para. CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 11 163; CAS 2017/A/5016 & 5036, para. 125; CAS 2017/O/5218, para. 166; CAS 2018/A/5584, para. 139). Even in a rare outlier case where lack of intent was found in the absence of proof of source, the panel emphasized that it was “disinclined to give weight to uncorroborated assertions of the accused and persons close to him or her” (CAS 2020/A/7579 & 7580, para. 172). In any case, the Athlete’s testimony was flimsy as to his consumption of beef, and when he included beef liver in his statement. He also admitted that he took protein and creatine to improve his explosive power, which gainsays his argument that the use of trenbolone makes no sense. - - - - Moreover, there is no scientific evidence ruling out an intentional violation and no other exceptional circumstances have been identified proving lack of intent. Instead, the Appealed Decision relies mainly on “evidence” allegedly showing that the Athlete had no incentive to dope as trenbolone allegedly would not have a performance-enhancing effect on a 400mH competitor. This finding was not based on objective facts. In particular, undue weight was attributed to the Athlete’s and his coach’s testimony in asserting that trenbolone would not have a performance enhancing effect. The Athlete’s testimony is again merely a protestation of innocence. His coach is not to be regarded an independent witness (which is reinforced by the Athlete’s coach giving evidence in support of the good character of the Athlete and his reaction to the AAF), nor was his opinion given on the basis of scientific evidence. In any case, CAS jurisprudence confirms that much more than an (alleged) lack of incentive to dope is required to establish that the ADRV was not intentional (CAS 2017/O/5218, para. 166; CAS 2017/A/5016 & 5036, para. 125; CAS 2019/A/6213, para 65; CAS 2018/A/5584, para. 139). Indeed, deciding otherwise would be to assume that every ADRV is well thought out and calculated on the part of athletes, which is not always the case. If an athlete could prove lack of intent by establishing that there was no potential increase in performance, this would undermine the purpose of anti-doping regulations in keeping participants safe and sport fair. Similarly, to the extent that the Appealed Decision referred to “the words and actions of the Respondent after the Testing and after the notification of the test results, as well as the fact that the Respondent’s side implemented an analytic investigation in order to discover the route of entry into his system by using enormous energy and expenses”, this contradicts CAS jurisprudence according to which diligent but unsuccessful attempts by the athlete to discover the origin of the prohibited substance are insufficient to prove lack of intent (CAS 2017/O/5218, para. 166; CAS 2018/A/5584, para. 139). Moreover, the statistics do not support the Athlete’s allegation that 400mH athletes would never use steroids, given that other 400mH athletes have tested positive for the use of steroids and have faced four-year periods of ineligibility as it was deemed intentional. The statistics also illustrate that the Athlete’s case is not such a large outlier that one could automatically rule out direct intention. Rather, the statistics show that use of trenbolone in short distance athletics is not uncommon. This is also supported by multiple CAS precedents involving short distance track and field athletes who were sanctioned with periods of ineligibility of four years for ADRVs involving trenbolone (e.g., CAS OG 20/06 & 08; CAS 2017/A/5105; CAS 2019/A/6319; CAS 2021/O/8111). CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 12 Moreover, Professor Ayotte’s expert testimony confirms that trenbolone is used by track-and-field athletes, which also disproves Professor Tanigawa’s evidence that, allegedly, no 400mH athlete would take trenbolone. - - - - 75. Also, the allegation is not that the Athlete was on a course of 200mg trenbolone for eight weeks. It is unknown what happened, the point is that the Athlete failed to provide evidence showing that he lacked intent. Therefore, the Athlete’s argument that he did not gain weight is a red herring. In fact, the athlete in CAS 2019/A/6319, who likewise tested positive for trenbolone, was a diminutive athlete who was nonetheless found to have used a steroid intentionally. Moreover, the Athlete has only submitted six weight figures across three years at random points. There could be all sorts of reasons for this loss of weight. No scientific evidence was presented that would show that this loss of weight means anything, and Professor Ayotte confirmed that trenbolone is useful also for maintaining (i.e., not necessarily gaining) weight. Adducing evidence of shock or a clean sporting record is likewise insufficient (see regarding the latter CAS 2017/O/5218, para. 166). Otherwise, floodgates would be opened and the four-year sanction, which was introduced in 2015 primarily due to requests by athletes, would become the exception. All of the Athlete’s arguments are mounted against direct intent, while he has not sought to disprove indirect intent. In light of all of the above, it was not proven that the ADRV was unintentional. Consequently, the mandatory four-year period of ineligibility as per Article 10.2.1 of the JADC shall apply. WADA made the following requests for relief in its Appeal Brief: “1. The appeal of WADA is admissible. 2. The decision dated 27 February 2024 rendered by the Japan Sports Arbitration Agency is set aside. 3. Masaki Toyoda is found to have committed an anti-doping rule violation pursuant to Articles 2.1 and 2.2 of the Japan Anti-Doping Code. 4. Masaki Toyoda is sanctioned with a four (4) year period of ineligibility starting on the date on which the CAS Appeals Division award enters into force. Any period of provisional suspension or ineligibility effectively served by Masaki Toyoda before the entry into force of the CAS Appeals Division award shall be credited against the total period of ineligibility to be served. 5. All competitive results obtained by Masaki Toyoda from and including 19 May 2022 until the date on which the CAS Appeals Division award enters into force are disqualified, with all resulting consequences (including forfeiture of medals, points and prizes). CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 13 6. The Japan Anti-Doping Agency, or in the alternative the Respondents, jointly and severally, are ordered to pay the arbitration costs of these proceedings (if any). 7. The Japan Anti-Doping Agency, or in the alternative the Respondents, jointly and severally, are ordered, jointly and severally, to pay a contribution to WADA’s legal and other costs.” B. 76. 77. C. 78. JADA’s submissions and requests for relief JADA submits that, because it has no right to appeal the Appealed Decision, it considers appropriate not to involve itself in the dispute between WADA and the Athlete, but rather to take a “neutral and silent position”. Therefore, JADA refrains from making any substantive arguments. However, JADA considers unfair to be requested to pay the arbitration costs, or to contribute to WADA’s legal and other costs. JADA made the following requests for relief: “Therefore, JADA respectfully requests that the arbitration costs are ordered to be paid in equal shares by the Appellant and the Respondents. […] Therefore, JADA respectfully requests that [WADA’s request against JADA for a contribution to WADA’s legal and other costs] be dismissed.” The Athlete’s submissions and requests for relief The Athlete’s submissions, in essence, may be summarised as follows: No intentional ADRV - - - The applicable standard of proof for lack of intent is “by the balance of probability” (Article 3.1 of the JADC). Accordingly, the probability of the “ADRV is not intentional” only needs to be slightly higher than the probability of the “ADRV is intentional”. WADA overemphasizes the importance of establishing source. First, it is precisely those athletes whose ADRV was unintentional who will find it difficult to prove source. Secondly, proof of source may often be important, but is not indispensable, as confirmed by CAS jurisprudence (CAS 2020/A/7579 & 7580), the comment to Article 10.2.1.1 of the JADC and a comparison with the definitions of No (Significant) Fault or Negligence. Even without proof of source, the “corridor” for innocent Athletes to exculpate themselves must be wide enough and the specific objective and subjective circumstances of the case must be considered, recognizing that no case is the same as the other (CAS 2019/A/6313, paras. 75 and 76; CAS 2020/A/6978 & 7068, para. 136). During the second consultation phase of the 2021 WADC Review, it was pointed out by some stakeholders that “the capability of laboratories to detect lower and lower concentrations of banned substances opens the door to more and more unintentional CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 14 anti-doping rule violations for the presence of a prohibited substance”. This has resulted in inconsistent CAS jurisprudence on proving lack of intent without establishing source. WADA itself acknowledges that this lack of consistency has led to unequal treatment of athletes (see “Concepts for Consideration and Feedback regarding the WADA-Code & IS Update Process”). This situation is caused by an ambiguity of Article 10.2.1.1 of the WADC, by which the Athlete must not be disadvantaged. The legal concept of strict liability under the WADC already puts athletes in a difficult position. One should not make it even more difficult for them to establish their case by limiting them to scientific and analytical evidence. Rather, lack of intent, which is a past subjective circumstance, can only be determined by a comprehensive evaluation of various indirect facts. As facts vary from case to case, there is a great risk of wrong decisions in some cases if facts or evidence are to be restricted and excluded from the consideration. Instead, it is essential to properly consider and evaluate all facts and evidence, including circumstantial ones, as supported by CAS jurisprudence (CAS 2020/A/6978 & 7068, para. 136; CAS 2017/A/5016 & 5036, para. 124). - The evidence shows that the source of the prohibited substance is most likely the meat eaten by the Athlete prior to the Test. Therefore, his ADRV was most likely unintentional. This is supported by the following evidence: o No prohibited substances were to be detected in the supplements and skin creams used by the Athlete prior to the Test. o While trenbolone is not used in Japan, it is used outside of Japan as a veterinary drug to improve rearing efficiency and promote growth in beef cattle. A very large quantity of meat, including beef, is imported to Japan and there is no way to investigate all such quantity of imported beef to be able to determine the presence or amount of trenbolone. o The Athlete ate imported meat, including beef and beef liver, on more than one occasion during the period immediately preceding the Test. The Athlete’s statement that he also ate beef liver is particularly credible because it was sent to his attorney on or before 20 July 2022 – before the Athlete and his attorney first learned that trenbolone is particularly prone to remain in beef liver, namely during the opening of the “B” Sample on 21 July 2022. o The Athlete’s AAF is consistent with the amount of meat eaten. As confirmed by Professor Ohe, consuming 200g of beef liver containing trenbolone at the MaxRL applicable in Japan would result in a urinary concentration of trenbolone of 1 ng/mL after 24 hours, assuming that one litre of urine has passed by that time. This is also confirmed by the testimony of WADA’s expert witness, Professor Ayotte, on the rate of excretion. At the JADDP hearing, the Athlete stated that he usually consumes about 300g of beef liver per meal. Thus, the concentration would be 1.5 ng/mL after 24 hours, thus corresponding with the 1.4 ng/mL detected in the Athlete’s “A” and “B” Sample. In addition, as it is impossible to investigate all the vast quantity of beef imported into Japan, there CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 15 is the possibility that the beef liver consumed by the Athlete contained trenbolone above the maximum residue limit. o In CAS 2019/A/6313 and the New Era Arbitration Tribunal case of Erriyon Knighton, the tribunals acknowledged the possibility of meat being contaminated by trenbolone, resulting in no period of ineligibility being imposed. - - - - - Even if the source of the prohibited substance is not proven, holistic considerations of the scientific, circumstantial and human evidence as well as application of common sense, rule of thumb and plausibility shall lead to the conclusion of the Athlete successfully establishing that his ADRV was unintentional on a balance of probabilities. There is significant circumstantial evidence that the Athlete did not intentionally take trenbolone. To begin with, the Athlete has appeared before the Sole Arbitrator and, after having been told about the possibility of criminal sanctions, has credibly denied having intentionally used trenbolone. He was shocked when he learnt of the AAF and he did not even know what trenbolone was. In addition, there is a plausible alternative explanation for the AAF, namely ingestion of contaminated beef liver. WADA tried to frame this as a binary issue, which it is not. Even if contaminated beef cannot be proven to be the source, it is a plausible alternative source that cannot be just ignored in the overall assessment of evidence. Moreover, as trenbolone is not approved as a drug in Japan, the Athlete would have had to acquire it while overseas, or from overseas, or through another athlete, none of which is the case. It is clear from his travel history that he did not purchase trenbolone while overseas. As proven by his current and previous passport, his last international travel before the Test was to Quatar in October 2019. If the Athlete were to have purchased trenbolone on that occasion, he would have begun continuous use. Yet, no prohibited substances were detected in subsequent tests. It is not plausible that the Athlete purchased a trenbolone product during his travel in October 2019 or earlier, only to then start suddenly using it after receiving the RTP inclusion notice in March 2022. Moreover, the Athlete’s purchasing history from online shopping websites and his credit card statements show that he did not purchase trenbolone from overseas (or otherwise). Finally, it is inconceivable that the Athlete could have acquired a trenbolone product from another athlete. No Japanese track and field athlete has ever tested positive for trenbolone before. In fact, even the existence of the substance was virtually unknown in the Japanese track and field community until the media reported on the JSAA’s arbitral award against the Athlete and the case of Erriyon Knighton in 2022. Further, there was no incentive for the Athlete to take trenbolone: o As proven by the expert testimony of Mr Tanigawa, 400mH is characterized by (1) requiring “speed endurance” rather than explosive power and (2) races being decided by technical skill as well as adaptability. Trenbolone has a particularly CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 16 pronounced muscle hypertrophy effect, resulting in it typically being used by bodybuilders and similar athletes. It would be counterproductive for any 400m hurdler to use trenbolone in-season, given the decrease in endurance and sudden change in physical balance arising out of an increase of caloric intake and bodyweight due to extreme hunger caused by the substance. If at all, trenbolone use could make sense during winter, when it is common for 400m hurdlers to do more weight training, before excess muscle is trimmed and the body is brought in line with race specifications before the start of the competitive season in April/May. o The foregoing applies with even greater force to the Athlete, who is a “second half” or speed endurance athlete who competes on hurdling technique. He would therefore suffer even more from the negative effects of trenbolone than those 400mH athletes who compete on higher speed in the first half of the race. o In 2022, the Athlete’s winter training season proceeded without incident, and his results were highly promising in the 2022 season. If he continued to perform at this level at the Japan Championships in early June 2022 (as he eventually did), he was assured a second appearance at the World Athletics Championships in late July. Hence, there was no incentive for the Athlete, in May 2022, just prior to his most important competition, to intentionally take trenbolone, which could disrupt his race pattern as explained by Mr Tanigawa. o The Athlete fully understood the risks and seriousness of doping. Specifically, he had completed multiple anti-doping education courses with JADA and other organizations. In addition, his coach had told him that doping can affect the lives of others, using as an example his own story of a changed Olympic medal ten years after the race due to an ADRV. - - In addition, the Athlete is the only Japanese athletics athlete who ever tested positive for trenbolone; the other Japanese positive tests were in strength sports. WADA even confirmed that he is the only 400mH athlete world-wide who ever tested positive for trenbolone. WADA’s expert, Professor Ayotte, likewise testified that trenbolone is used for increasing muscle mass and therefore mostly used in power sports. Also, the following facts are not consistent with intentional consumption of trenbolone: o As confirmed by the Head of the Tokyo Laboratory, the concentration of trenbolone detected in the Athlete’s Sample was extremely low, even below the analytical precision required by WADA for analytical laboratories. Had the Athlete taken trenbolone intentionally, a higher concentration would have been found in his Sample. In addition, the Athlete competed in back-to-back competitions during the period from early to mid-May 2022, resulting in a higher possibility of an in-competition test. It is inconceivable that the Athlete would intentionally take a prohibited substance during such time. If he would have done so intentionally, it would have only made sense for him to have consumed the substance immediately after the series of competitions ended on 15 May CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 17 2022, thus just before the Test on 19 May 2022. However, in that case, the detected concentration would have been much higher. o As the use of trenbolone would have required a daily intake of 10.000 kcal or more, the Athlete’s bodyweight would have been higher in 2022 than in previous years had he taken trenbolone. However, this was not the case: As proven by his bodyweight records, his weight even slightly dropped in 2022 compared to the previous two years. o As confirmed by Professor Ohe, trenbolone must be taken continuously over a period to have any significant effect. In addition, if a 400m hurdler were to take trenbolone, it is unthinkable that he would take it suddenly just before his most important competition, because he would need to relearn how to run the race in a state of muscle hypertrophy after taking trenbolone. Hence, the Athlete would have needed to take trenbolone continuously well before May 2022. However, the Athlete tested negative on 13 December 2021 and on 25 February 2022, demonstrating that he was not using trenbolone long-term. o Although a relatively large proportion of top athletes run 13 strides between hurdles in the early stages of the race, the Athlete runs 14 strides in the early stage of the race, resulting in a race pattern where he catches up in the second half. As confirmed by Mr Tanigawa, if the Athlete were to intentionally consume a substance known to have a particularly pronounced muscle hypertrophy effect, he would surely attempt to learn how to race with fewer strides between hurdles than before (by using the 13-stride pattern in the early stage). This is because, if the body’s own power output is increased by muscle hypertrophy without changing the stride pattern between hurdles, the surplus of power output will result in “bunching up” strides between hurdles. However, he never attempted to change his stride pattern after 2019. Instead, as confirmed by Mr Tanigawa, at the 11 June 2022 Japan Championships race, the Athlete continued to use 13 strides in the early stages of the race. o Prior to the Test, the Athlete was tested seven times since May 2019. The last two of those tests occurred on 13 December 2021 and 25 February 2022, i.e., only two months apart. On 11 March 2022, the Athlete was included in the RTP. The Athlete has testified that he knew this would mean that the frequency of tests would go up. In such a situation, it is highly unlikely that the Athlete would newly and intentionally begin to take a prohibited substance fully knowing that an out-of-competition test could come at any time. o As confirmed by the video of 11 June 2022 Japan Championships race, the Athlete did not show any of the effects or side-effects of trenbolone, including muscle growth or extreme acne. - Moreover, the Athlete’s behaviour surrounding the Test is inconsistent with intentional doping: CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 18 o The Athlete has never had a single missed test or filing failure for whereabouts information and consciously designated 6:00 a.m. at his home as the one-hour time slot for testing because a senior athlete had advised him that this decreased the risk of any change of plans that could result in a missed test. o He underwent the Test without evasive action even though he knew that the ringing of his bell at exactly 6:00 a.m. could only mean a doping test as no courier or other service would arrive that early in the morning. Had the Athlete intentionally taken a prohibited substance, he would have tried to avoid the Test by pretending not to be home, especially as he had not previously missed any tests. o The Athlete’s behaviour before and after the test did not change as he went on to calmly train for the Japan Championships, placing third in line with his abilities at the competition. If the Athlete would have taken trenbolone, he would have been psychologically as well as athletically out of balance. However, his athletic performance was not affected in any way. o Right after learning about his AAF and before receiving the PDF of the notice, the Athlete went on to call Mr Karube and Mr Takahira in a state of confusion and exhaustion. Such immediate reaction would have been different if he had intentionally taken the substance. In such case, he would have carefully considered how to proceed when reporting and explaining his situation, rather than calling his coaches in a state of confusion and exhaustion after mere verbal notice of the positive result. o The Athlete’s efforts in the process of analysing his supplements and skin creams by a laboratory have been carried out intensively at the expense of time and effort. If the Athlete had intentionally taken a prohibited substance, he would have known the source of the prohibited substance found in his body from the beginning, so he would not have bothered to put in the expense, time, and effort required to conduct the multiple analyses that he did – after all, he would reason that the sooner the analytical results were obtained, the sooner he could return to competition. o The Athlete adequately took precautions regarding supplements he consumed, specifically choosing Japan-made products because he believed that such products were more credible than those being made overseas. It is difficult to imagine that the Athlete would take such precautions regarding his supplements while at the same time intentionally taking trenbolone, a prohibited substance. o The people around the Athlete have unanimously attested that he is a sincere person who respects discipline and is quiet and cautious. Everyone familiar with the Athlete is confident that he did not intentionally take trenbolone. - While most of the above evidence was already presented to the JADDP and/or the JSAA, none of it was addressed in the Appeal Brief. Instead, the Appeal Brief referred CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 19 to another CAS case in which one central piece of evidence was the athlete’s body-mass index, as is the case here. - - - - - - - Based on his race schedule, the only reason one could imagine for the Athlete to take trenbolone before the Test is for recovery. However, there is no evidence it could be used in that way, how much one would take, and in what form. In fact, Professor Ayotte confirmed there is no data on this. Accordingly, this is a very speculative theory. That said, had the Athlete taken trenbolone after 15 May 2022 to recover, it is highly likely that the concentration in his Sample would have been higher. WADA’s reference to case law on mere protestations of innocence has nothing to do with the current case. Similarly, the Athlete does not argue in the abstract about lack of sporting incentive and situation that are inconsistent with intent to dope. Instead, the Athlete’s case is based on his own specific and individual situation, considering the characteristics of 400mH, the scientific features of trenbolone and numerous other factors, as supported by scientific and analytical evidence based on expert testimony. Based on such facts and evidence, the Athlete has established that him having ingested trenbolone innocently is more likely on balance than that he either intended to take trenbolone or was recklessly oblivious to the risk of contamination during his activities. Delays not attributable to the Athlete In accordance with Article 10.13.1 of the JADC, the Athlete’s period of ineligibility should have started on 21 May 2022 due to delays in the disciplinary procedure not attributable to the Athlete. Specifically, the Athlete was only notified by JADA on 21 June 2022, i.e. 33 days after the Test. The JADDP Decision confirms that such notification would have been possible approximately 10 days after sample collection. There was no exceptional reason for such a delay in notifying the AAF in this case. Further, after the hearing before the JADDP on 6 July 2023, the JADDP requested additional submissions. While the Athlete promptly prepared and filed an additional brief on 15 September 2023, JADA submitted a rebuttal only on 31 October 2023, requiring another rebuttal from the Athlete on 7 November 2023. The JADDP, in turn, took approximately two months between the final submission and the issuing of its decision, showing at least one month of additional delay without attribution to the Athlete. Moreover, while the Appealed Decision was rendered on 2 April 2024, WADA appealed only on 6 June 2024. There is no justification for the delay in JADA providing the complete file to WADA. In accordance with CAS jurisprudence, the Athlete “has a right to an expeditious hearing and timely completion of the adjudicative process” (CAS 2009/A/1759-1778, para. 95). Discretionary backdating of the period of ineligibility can compensate for the CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 20 undue delays in the disciplinary process for which WADA or JADA, but not the Athlete, bears responsibility. No disqualification of results in competition - 79. V. 80. In the event of non-application of Article 10.13.1 of the JADC and the two-year period of ineligibility being upheld, the Athlete would only be suspended approximately one month following the CAS Award. If, however, in accordance with Article 10.10 of the JADC, the Athlete’s results in competitions during the period starting from the date of the Appealed Decision until the commencement of the ineligibility would be disqualified, this would result in his competition-results being disqualified for more than two years, which would be unreasonable and contrary to fairness within the meaning of Article 10.10 of the JADC. The Athlete made the following requests for relief: “(i) dismiss the Appeal in its entirety; (ii) affirm the Appealed Decision in its entirety; (iii) confirm that the Athlete is suspended for a period of 2 (two) years commencing as 21 May 2022; and (iv) order WADA or, alternatively JADA, to pay: a. costs of the arbitration; and b. the legal fees and other expenses incurred in connection with the present proceedings.” JURISDICTION Pursuant to Article R47 of the CAS Code: “An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body […]”. (emphasis added) 81. As the Appealed Decision was issued by JSAA, which is governed by the JADC, the wording “regulations of the said body” in Article R47 of the CAS Code is a reference to the JADC. According to Article 13.2 of the JADC, CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 21 “a decision imposing Consequences or not imposing Consequences for an anti doping rule violation […] may be appealed exclusively as provided in this Article 13.2”. 82. 83. 84. 85. VI. 1. 86. 2. 87. 88. The Appealed Decision is such a decision. Consequently, Article 13.2 of the JADC exhaustively provides for the appeal mechanism for the Appealed Decision. If the Athlete qualifies as an International-Level Athlete, the jurisdiction of CAS follows from Article 13.2.1 of the JADC, which provides that “[…] in cases involving International-Level Athletes, the decision may be appealed exclusively to CAS.” (emphasis added) However, CAS also has jurisdiction if the Athlete does not qualify as an International Level Athlete: Article 13.2.2.3.4 of the JADC, which refers to decisions of the JSAA rendered in cases of athletes who are not International-Level Athletes, provides that such decisions “may be appealed as provided in Article 13.2.3”. Article 13.2.3.2, in turn, provides in its last paragraph that “WADA […] shall also have the right to appeal to CAS with respect to the decision of the [JSAA].” (emphasis added) Accordingly, it does not fall to be decided whether the Athlete qualifies as an International-Level Athlete. In either case, CAS would have jurisdiction. In addition, neither of the Respondents challenged CAS jurisdiction at any time and all Parties have expressly confirmed CAS jurisdiction by signing the Order of Procedure. Therefore, the Sole Arbitrator finds that he has jurisdiction to adjudicate the present case. ADMISSIBILITY WADA’s right to appeal Depending on whether the Athlete qualifies as an International-Level Athlete, WADA has a right to appeal under Article 13.2.3.1(f) or 13.2.3.2 in fine of the JADC. The timeliness of the appeal Article R49 of the CAS Code provides as follows: “In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against […]”. Accordingly, Article R49 of the CAS Code accords priority to any time limit for appeal provided for in the regulations of the governing the body that issued the decision CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 22 appealed against. In that regard, Article 13.6.1 of the JADC relevantly provides as follows: “[…] the following shall apply in connection with appeals filed by a party entitled to appeal but which was not a party to the proceedings that led to the decision being appealed: (a) Within fifteen (15) days from the notice of the decision, such party/ies shall have the right to request a copy of the full case file pertaining to the decision from the Anti-Doping Organisation that had Results Management authority; (b) If such a request is made within the fifteen (15) day period, then the party making such request shall have twenty-one (21) days from receipt of the file to file an appeal to CAS . The above notwithstanding, the filing deadline for an appeal filed by WADA shall be the later of: (a) Twenty-one (21) days after the last day on which any other party having a right to appeal could have appealed, or (b) Twenty-one (21) days after WADA’s receipt of the complete file relating to the decision.” 89. 90. World Athletics, which is the Athlete’s International Federation and, thus, a party having a right to appeal under Article 13.2.3.2 in fine of the JADC, received the Appealed Decision on 9 April 2022. It submitted a case file request on 23 April 2022, i.e. within the deadline for such request provided for in letter (a) of the first paragraph of Article 13.6.1 of the JADC. Further to its request, World Athletics received elements of the case file on 26 April 2022. Assuming in the Respondents’ favour that this case file was complete, it follows from letter (b) of the first paragraph of Article 13.6.1 of the JADC that World Athletics’ deadline to appeal expired 21 days after 26 April 2022, i.e. on 17 May 2022. Accordingly, pursuant to letter (a) of the second paragraph of Article 13.6.1 of the JADC, WADA’s deadline cannot have expired any earlier than 21 days after 17 May 2022, i.e. 7 June 2022. Therefore, WADA’s Statement of Appeal, which was received by CAS on 6 June 2022, was filed in time. As there are no indications in the file that the appeal could be inadmissible for any other reasons and noting that no Party has raised any objections as to the admissibility of the appeal, the Sole Arbitrator determines that the appeal is admissible. VII. OTHER PROCEDURAL MATTERS 91. As mentioned above, the Sole Arbitrator admitted the First Ayotte Report into the record and indicated that the reasons for this decision would be provided in this Award. The decision was made mainly because there is a reference in the Appealed Decision to an expert statement by Mr Fedruk, who according to the Appealed Decision opined that “if trenbolone had been detected from the Respondent’s sample due to the Respondent’s intake of meat in this case, it would have been necessary to take over 6 kg of beef in the 24 hours prior to the sample collection, which is ‘very unlikely.’” This expert view CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 23 contradicts the Second Respondent’s assertion in this arbitration that meat contamination is the most likely source of the AAF. In order to be comfortable making a finding on this assertion by the Second Respondent, the Sole Arbitrator would have had to at least review the contradicting expert statement of Mr Fedruk expressly referenced in the Appealed Decision. However, neither Party submitted that expert statement in this arbitration. While the Sole Arbitrator could have ordered that document to be produced as part of the case file pursuant to R57(1) of the CAS Code, he found it more helpful to hear live testimony from the expert proffered by the Appellant in respect of the meat contamination argument. This situation amounted to exceptional circumstances within the meaning of Article R56 of the CAS Code. VIII. APPLICABLE LAW 92. 93. IX. 94. 95. Article R58 of the CAS Code provides as follows: “The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.” Both the Appealed Decision and the Parties’ pleadings on the merits referred to the JADC, which the Sole Arbitrator agrees are applicable to this case. Subsidiarily, Japanese law shall apply, being the law of the country in which the JSAA is domiciled. However, the Sole Arbitrator also notes that none of the Parties made any reference to Japanese law in its pleadings and that, pursuant to Article 29.2 of the JADC, any issues of interpretation shall be resolved autonomously, not by reference to any national law. MERITS It is undisputed that epitrenbolone was present in both the “A” Sample and the “B” Sample, and that it is a Metabolite of trenbolone, which in turn is a Prohibited Substance under section 1.1 of the 2022 WADA Prohibited List. Accordingly, there is sufficient proof of an ADRV pursuant to Article 2.1.2 of the JADC. While the estimated concentration of epitrenbolone was very low, it follows from Article 2.1.3 of the JADC that this is irrelevant for the existence of an ADRV as there is no Decision Limit for trenbolone. Since there are also no special reporting criteria within the meaning of Article 2.1.4 of the JADC, the Sole Arbitrator finds it established, and no Party has disputed, that the Athlete has committed an ADRV under Article 2.1 of the JADC. Consequently, what is left to be decided is the applicable sanction. The Sole Arbitrator will first turn to the period of ineligibility before addressing the disqualification of competitive results (with resulting consequences). CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 24 A. 1. 96. 97. Period of ineligibility Length i. Legal standard Article 10.2 of the JADC provides, in its relevant parts, as follows: “The period of Ineligibility for a violation of Article 2.1 Article 2.1, 2.2 or 2.6 shall be as follows, subject to potential elimination, reduction or suspension pursuant to Article 10.5, 10.6 or 10.7: 10.2.1 The period of Ineligibility […] shall be four (4) years where: 10.2.1.1 The anti-doping rule violation does not involve a Specified Substance or a Specified Method, unless the Athlete or other Person can establish that the anti-doping rule violation was not intentional. [Comment to Article 10.2.1.1: While it is theoretically possible for an Athlete or other Person to establish that the anti-doping rule violation was not intentional without showing how the Prohibited Substance entered one’s system, it is highly unlikely that in a doping case under Article 2.1 an Athlete will be successful in proving that the Athlete acted unintentionally without establishing the source of the Prohibited Substance.] 10.2.1.2 The anti-doping rule violation involves a Specified Substance or a Specified Method and JADA can establish that the anti-doping rule violation was intentional. 10.2.2 If Article 10.2.1 does not apply […] the period of Ineligibility shall be two (2) years. 10.2.3 As used in Article 10.2, the term “intentional” is meant to identify those Athletes or other Persons who engage in conduct which they knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk. […]” Trenbolone is not a Specified Substance. Hence, if lack of intent is not established, the standard period of ineligibility is four years pursuant to Article 10.2.1.1 of the JADC. Otherwise, it is two years in accordance with Article 10.2.2 of the JADC. While the JADC provides for certain cases in which the standard period of ineligibility, whether two or four years, can be increased or reduced, the Sole Arbitrator finds that the relevant provisions can be disregarded in his further analysis, for a combination of three reasons. CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 25 98. 99. First, there is no suggestion by any Party, and the Sole Arbitrator sees no indication in the record, that the standard period of ineligibility would need to be increased, specifically under Articles 10.4 and 10.9 of the JADC. Secondly, while the Athlete’s argument of meat contamination could, if accepted, mean that the requirements of Article 10.5 or 10.6 of the JADC might be met, the Sole Arbitrator notes that those provisions require a finding of No (Significant) Fault or Negligence. Such finding, in turn, would be tantamount to a finding that the ADRV was not intentional within the meaning of Article 10.2.1.1 (to same effect, e.g., CAS 2017/A/5282, para. 73; CAS 2023/A/9451, 9455 & 9456, para. 342 with further references). In that case, the applicable standard sanction would be two years, per Article 10.2.2 of the JADC. It follows that the sole purpose of applying Article 10.5 or 10.6 of the JADC would be to lower the period of ineligibility to below 2 years. This, however, is something that the Sole Arbitrator is unable to do: The Athlete has not (cross-)appealed the Appealed Decision, instead he is merely seeking the dismissal of WADA’s appeal. Consequently, even if the Athlete were to meet the requirements of Article 10.5 or 10.6 of the JADC, the principle of ne ultra petita would prevent the Sole Arbitrator from applying such reduction in this arbitration. 100. Thirdly, should the four-year period of ineligibility as provided for in Article 10.2.1.1 of the JADC be the applicable standard sanction in this case, the Sole Arbitrator fails to see, and none of the Parties has submitted, how this sanction could be reduced to a period between two and four years. In particular, Article 10.8.1 of the JADC clearly does not apply. 101. For those reasons, the Sole Arbitrator finds that his decision on the applicable period of ineligibility is a binary one: Depending on whether lack of intent is established, the period of ineligibility is either two years or four years. For this reason, the following analysis will be limited to the issue of intentionality. ii. Burden of proof 102. It follows from the clear wording of Article 10.2.1.1 of the JADC – and is not called into question by the Athlete – that the burden is on the Athlete to prove that the ADRV was not intentional. The Sole Arbitrator agrees with WADA and the Athlete that, in view of Article 10.2.3 of the JADC, this requires the Athlete to disprove both a deliberate ADRV (‘direct intent’) and a reckless ADRV (‘indirect intent’). 103. However, as rightly pointed out by the Athlete, this means that he is to prove a negative (and subjective) fact. This entails, according to the Swiss Federal Tribunal, a certain duty of cooperation of the counterparty, i.e. WADA, to avoid procedural unfairness (see CAS 2011/A/2386, paras. 102-106; CAS 2017/A/5045, paras. 106-109). Therefore, while WADA does not bear the burden of proving alternative scenarios, a paucity of sufficiently plausible alternative scenarios presented to the Sole Arbitrator may assist the Athlete in meeting his burden of proof (cf. CAS 2011/A/2386, para. 111; CAS 2019/A/6443 & 6593, para. 181). CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 26 iii. Standard of proof 104. As to the standard of proof applicable to the Athlete’s burden to prove lack of intent, Article 3.1 of the JADC provides as follows, in its relevant part: “The standard of proof shall be whether JADA has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where these Anti-Doping Rules place the burden of proof upon the Athlete […] alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances […] the standard of proof shall be by a balance of probability.” (emphasis added) 105. Accordingly, the Athlete must prove lack of intent by a balance of probability, which requires less than the comfortable satisfaction. According to the prevailing line of CAS jurisprudence, this requires that “the occurrence of a specified circumstance is more probable than its non-occurrence” (CAS 2006/A/1067, para. 7; to same effect, e.g., CAS 2009/A/1926 & 1930, para. 31; CAS 2012/A/2759, para. 11.6; CAS 2012/A/2789, para. 7.4; CAS 2012/A/2797, para. 61; TAS 2013/A/3320, para. 95; TAS 2014/A/3475, para 79; CAS 2016/A/4377, para. 51; CAS 2017/A/4944, para. 62; CAS 2017/A/5295, para. 107; CAS 2019/A/6541, para. 80; CAS 2020/A/6978 & 7068, para. 162; CAS 2021/O/8111, para. 72). Put differently, the athlete must establish that the likelihood of the occurrence of the relevant circumstance is greater than 50% (see, in particular, CAS 2009/A/1926 & 1930, para. 31; TAS 2014/A/3475, para. 79; CAS 2014/A/3615, para. 57; CAS 2017/A/5296, para. 52; CAS 2023/A/9451, 9455 & 9456, para. 355). 106. The Sole Arbitrator is aware that there is another line of CAS jurisprudence whereby it is sufficient for athletes to prove that the theory put forward by them is the most likely among several scenarios (see, e.g., CAS 2007/A/1370 & 1376, para. 58; CAS 2008/A/1515, para. 116; CAS 2012/A/2986, para. 69; CAS 2011/A/2384 & 2386, paras. 111-113). However, the Sole Arbitrator considers that it is not necessary for him to take any position on those two diverging views as he would not arrive at different conclusions under any of them. This holds true, in particular, as there are only two alternatives for the main fact to be proven by the Athlete – either his ADRV was intentional, or it was not intentional. Pursuant to both lines of jurisprudence, the Athlete needs to establish by a probability of greater than 50% that the ADRV was not intentional: According to the ‘more likely than not’ approach, this is always the required probability. Under the ‘most likely among several scenarios’ approach, the existence of only two scenarios (intentional or not) means that for one of the two scenarios to be ‘the most likely’, it must likewise be more than 50% probable. iv. Admissible means of evidence 107. As to the means of evidence that the Athlete may rely upon to meet his burden of proof, the JADC does not provide for any restrictions. It follows that any means of evidence are admissible, subject of course to general restrictions on admissibility of evidence CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 27 (same view CAS 2020/A/7579 & 7580, para. 171; CAS 2023/A/9451, 9455 & 9456, para. 356). This view finds additional support in the reference to “any reliable means” in Article 3.2 (see CAS 2011/A/2384 & 2386, para. 243; CAS 2023/A/9451, 9455 & 9456, para. 356). 108. For the avoidance of doubt, the Sole Arbitrator notes that written witness statements are also an admissible means of evidence. However, if the witness is not called to appear at the hearing, this may affect the evidentiary value of the witness testimony (see NOTH/HAAS, in ARROYO, M.: Arbitration in Switzerland – The Practitioner’s Guide, 2nd ed, Article R44, para. 41; cf. also Swiss Federal Tribunal, judgment of 31 May 2012, 4A_682/2011, paras. 4.1 et seq.). This holds true, in particular, if the counterparty challenges the contents of the written witness statement or has indicated that it seeks to cross-examine that witness. v. Principles for the assessment of evidence 109. It is generally accepted that there is no concept of binding precedent in CAS jurisprudence (see, e.g., CAS 2014/A/3668, para. 66; CAS 2016/A/4643, para. 82; CAS 2020/A/6978, para. 135). Nonetheless, the Sole Arbitrator finds it appropriate, in the interest of a harmonized application of the WADC and the regulations that are based on it (such as the JADC), to take guidance from past jurisprudence on the interpretation of the relevant rules. However, when it comes to the assessment of the facts and the evidence to which those rules must be applied, it is trite that no case is identical to the other, meaning that each case needs to be decided on its own particular circumstances (see CAS 2011/A/2515, para. 71; CAS 2014/A/3685, para. 72; CAS 2015/A/4233, para. 114; CAS 2020/A/6978 & 7068, para. 136). 110. Moreover, the Sole Arbitrator notes the following finding of the Swiss Federal Tribunal (4A_538/2012, decision of 17 January 2013, at E.5.1): “Aussi bien, comme l’intimée le souligne à juste titre, si chaque partie pouvait décider par avance, pour chaque pièce produite, quelle sera la conséquence probatoire que le tribunal arbitral sera autorisé à en tirer, le principe de la libre appréciation des preuves, qui constitue un pilier de l’arbitrage international (BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2e éd. 2010, n° 1238), serait vidé de sa substance.” Translation into English: “Also, as the respondent rightly points out, if each party could decide in advance, for each document produced, what evidentiary consequences the arbitral tribunal would be authorised to draw from it, the principle of the free assessment of evidence, which is a pillar of international arbitration (BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2nd ed. 2010, no. 1238), would be stripped of its substance.” (emphasis added) CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 28 111. In view of the above, the Sole Arbitrator considers that his task is to assess the totality of facts and evidence before him to determine the likelihood of the Athlete’s ADRV having been unintentional. This task would not be fulfilled if he were to merely adopt conclusions that other tribunals reached based on their assessment of different facts and different evidence. For this reason, the Sole Arbitrator is not persuaded by what he understands to be WADA’s argument, namely that certain types of evidence, such as testimony by the athlete (“protestations of innocence”), evidence for lack of sporting incentive, evidence of diligent attempts to discover the origin of the prohibited substance, or evidence of a clean record are per se incapable of assisting the Athlete in proving lack of intent, allegedly because they are not “actual, concrete evidence”. It may well be that in other cases, CAS tribunals came to the conclusion that specific pieces of evidence before them falling into those categories were insufficient to prove lack of intent. This does not mean, however, that evidence from the same categories could not, under the circumstances of another case, help an athlete in proving lack of intent. This holds true, in particular, as the specific pieces of evidence and the combination of different pieces of evidence will hardly ever be identical between two cases, and neither will be the factual matrix to which the evidence relates. In short, the Sole Arbitrator shares the view expressed by the panel in CAS 2023/A/9451, 9455 & 9456, para. 363: “In this respect, the Appellants (principally WADA) contended that protestations of innocence, however credible they appear, ‘carry no material weight in the analysis of intent’ and that the same applies to a lack of a demonstrable sporting incentive to dope, diligent attempts to discover the source of the Prohibited Substance and/or the Athlete’s clean record. The Panel is of the view that these contentions go too far. These matters will carry whatever weight they will carry in the particular circumstances of the particular case. There is no a priori reason or basis to dismiss such evidence out of hand.” (emphasis added) 112. However, it goes without saying that for any evidence (from whichever category) to carry any material weight, it will need to be concrete and persuasive, as emphasized repeatedly in CAS jurisprudence (see, e.g., CAS 2016/A/4919, para. 71; CAS 2017/A/5369, para. 148; CAS 2020/A/2978, para. 134). 113. Finally, the Sole Arbitrator notes that multiple pieces of evidence can have a cumulative effect (CAS 2013/A/3124, para. 12.3; CAS 2017/A/4937, para. 51). This is sometimes described by a ‘strands in a cable’ metaphor: While each strand of evidence by itself may not be strong enough to meet the burden of proof, the cable created by all strands together may be sufficient to prove the relevant fact (CAS 2015/A/4059, paras. 120, 139, 141; CAS 2017/A/5434, para. 212). vi. No requirement to prove source 114. The Sole Arbitrator agrees with the Athlete that proof of source is not a requirement under Article 10.2.1.1 of the JADC. There is no indication in the wording of that Article, or in the definition of the term “intentional” in Article 10.2.3 of the JADC, of any such requirement. This stands in stark contrast to the definitions of No Fault or Negligence CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 29 and No Significant Fault or Negligence, which expressly require athletes to establish how the Prohibited Substance entered their system. Had the draftspersons of the JADC (or rather of the WADC) sought to introduce such requirement also for proof of lack of intent, they would presumably have used the same language there. Instead, they did the opposite by expressly acknowledging in the comment to Article 10.2.1.1 of the JADC (which, according to Article 27.2 of the JADC, shall be used as an interpretative tool) that it is possible for an athlete to establish lack of intent without establishing source. 115. Under those circumstances, the Sole Arbitrator sees no basis for reading into Article 10.2.1.1 of the JADC a requirement to prove how the Prohibited Substance entered the athlete’s system. The Sole Arbitrator is comforted by the fact that many CAS tribunals have reached the same conclusion (see, e.g., CAS 2016/A/4534, para. 37; CAS 2016/A/4676, para. 72; CAS 2016/A/4828, para. 136; CAS 2016/A/4919, para. 66; CAS 2017/A/5016 & 5036, para. 122; CAS 2017/A/5178, para. 88; CAS 2017/A/5112, para. 111; CAS 2018/A/5768, para. 142; CAS 2019/A/6313, para. 77; CAS 2020/A/7579 & 7580, para. 171; CAS 2021/O/8111, para. 73; CAS 2023/A/9451, 9455 & 9456, para. 357). The Sole Arbitrator notes that most, if not all, of the CAS tribunals that took a different view were faced with the 2015 WADC, which did not yet include the above mentioned comment to Article 10.2.1.1 of the JADC (see, e.g., CAS 2016/A/4377, para. 51; CAS 2016/A/4662, para. 39; CAS 2017A/5175, para. 67; CAS 2017/A/5335, para. 137; CAS 2017/A/5392, para. 63; CAS 2017/A/5295, para. 105; CAS 2018/A/5570, para. 46). 116. It follows from the foregoing that any evidence related to the source of the AAF is simply one strand of the evidentiary cable relied upon by the Athlete to prove the only fact he must prove, namely lack of intent. The Sole Arbitrator fully agrees with CAS jurisprudence that any such evidence regarding source is a particularly important strand of this cable (see, e.g., CAS 2017/A/5016 & 5036, para. 123; CAS 2021/A/7579 & 7580, para. 171). Indeed, compelling evidence of a source that suggests non-intentional ingestion may sometimes even be sufficient, in and of itself, for athletes to meet their burden of proving lack of intent. However, the Sole Arbitrator agrees with the Athlete that just because evidence as to source is less compelling, such evidence does not become irrelevant (see also CAS 2017/A/5248, para. 55; CAS 2019/A/6313, paras. 65, 80 and 90; CAS 2020/A/7579 & 7580, para. 155). Instead, given the cumulative effect of evidence, it is for the Sole Arbitrator to decide on the totality of evidence, and not for certain pieces or types of evidence separately, whether the Athlete discharged his burden of proving lack of intent. 117. For the avoidance of doubt, the Sole Arbitrator does not disagree with the well established CAS jurisprudence that without evidence as to how the prohibited substance entered the athlete’s system, it is usually very difficult to prove lack of intent (see, e.g., CAS 2021/O/8111, para. 73). This is why such scenario is “extremely rare” (see, e.g. CAS 2016/A/4534, para. 37; CAS 2016/A/4676, para. 72; CAS 2016/A/4828, para. 136; CAS 2017/A/5016 & 5036, para. 123; almost identical terminology is used in CAS 2016/A/4919, para. 66; CAS 2018/A/5768, para. 142). However, for the reasons set out above, the Sole Arbitrator subscribes to the view of the panel in CAS 2023/A/9451, 9455 & 9456, para. 362: CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 30 “[…] It is very difficult for the Panel to form a view as to the intention of the Athlete without evidence as to how she happened to ingest the [prohibited substance] in this case. It is important, however, not to elevate these observations to statements of dogma lest doing so obscures the true nature of the task to be undertaken by the Panel. The task of the Panel is to weigh the evidence adduced by the Athlete and to form a view as to whether that evidence as a whole is sufficient to meet the Athlete’s burden of proving that she did not intend (directly or recklessly) to commit the ADRV.” vii. Analysis of the evidence on record 118. The Sole Arbitrator will now turn to the evidence before him. As the fact to be proven by the Athlete, viz. lack of intent, is both a subjective fact and a negative fact, the Sole Arbitrator finds it appropriate to first address the only direct evidence that the Athlete can possibly proffer for lack of intent, namely his own testimony (see section (a) below). Subsequently, the Sole Arbitrator will analyse all other evidence, which is necessarily circumstantial and aims at proving objective circumstances that allow for an inference that the AAF was not intentional (see sections (b) to (l) below). Finally, the Sole Arbitrator will weigh the totality of the evidence to determine whether the Athlete discharged his burden of proving that the AAF was, more likely than not, unintentional (see section (m) below). (a) The Athlete’s denial 119. The Athlete appeared at the hearing in person and expressly denied having taken trenbolone intentionally. The Sole Arbitrator does not share WADA’s view that such denial carries no material weight per se. In this regard, the Sole Arbitrator refers to his general considerations in respect of the admissibility of any means of evidence, and the free assessment of such evidence (see paras. 107 and 111 above). Moreover, Article 3.2.5 of the JADC allows hearing panels to draw adverse inferences from an athlete’s refusal to appear at the hearing and answer questions. It would hardly be reconcilable with procedural fairness and equal treatment if, in the opposite scenario of the athlete appearing and testifying, this could likewise only work against the athlete, but not to the athlete’s benefit. Similarly, the fact that an ADRV may be proven by admission, as clarified by Article 3.2 of the JADC, necessarily implies that an athlete’s testimony may (if credible) carry substantial evidential weight against the athlete. This again begs the question why the same should not be true for (credible) testimony to his benefit. In summary, the Sole Arbitrator fails to see why the tribunal’s personal impression of the accused and his testimony should be irrelevant. He is comforted by the fact that several CAS tribunals have likewise considered an athlete’s testimony relevant in anti-doping cases (see, e.g., CAS 2002/A/385, para. 57; CAS 2016/A/4534, para. 37; CAS 2016/A/4676, para. 72 and 76; CAS 2017/A/5016 & 5036, para. 123; CAS 2017/A/5112, para. 111; CAS 2019/A/6313, para. 87; CAS 2019/A/6443 & 6593, para. 182; see also LEWIS/TAYLOR, Sport: Law and Practice, 4th edition, 2021, para. C5.10). CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 31 120. Of course, denials may be untruthful (as may admissions, even though presumably much more rarely). This is why it is for the tribunal to assess the credibility of the testimony of the accused. 121. At the hearing, the impression that the Athlete’s overall demeanour left on the Sole Arbitrator was that of a very serious and sincere young man. The Sole Arbitrator notes that this impression aligns with the descriptions of him in the written witness statements given by Mr Kishimoto (a teammate at Fujitsu’s track and field team), Mr Karube and Mr Takahira. Of course, neither of them was called to testify at the hearing and all three of them belong to the Athlete’s “camp”. These are factors that limit the evidentiary weight that the Sole Arbitrator is prepared to give to their written statements. However, their written statements as to the personality of the Athlete benefitted from the fact that they went beyond abstract descriptions of his character. Instead, all of them included concrete examples of his behaviour in certain situations that lent credibility to their statement. Moreover, the Sole Arbitrator accepts Mr Kishimoto’s explanation that while he is a teammate of the Athlete, they are at the same time rivals competing in the same discipline for a limited number of national team slots for the Olympic Games and World Championships. In addition, WADA itself relied on factual allegations contained in the written witness statement of Mr Takahira in its cross-examination of the Athlete (see para. 123 below). Based on those considerations, the Sole Arbitrator finds that those three written statements do lend some support to his impression of the Athlete at the hearing. 122. Moreover, the Athlete’s credibility was helped by the fact that from the very beginning of this case, and as confirmed again in cross-examination without any hesitation, the Athlete acknowledged that he no longer remembered what precisely he ate the days before the Test. Similarly, even though he testified (understandably, in the Sole Arbitrator’s view) that he could not clearly remember the precise timeline, he was promptly willing to accept WADA’s proposition in cross-examination that he instructed his Japanese attorneys on 28 June 2022 (WADA relied in this regard on the written witness statement of Mr. Takahira). The Athlete also did not hesitate to confirm that it was only about half a month later that he took the photo of a package of Australian beef liver of the kind he says he regularly consumed. As all those acknowledgements by the Athlete have an obvious potential to hurt his case, they go to the Athlete’s credit. 123. That said, there were two parts of the Athlete’s testimony that WADA picked up at the hearing to challenge his credibility. The first one was the Athlete’s testimony on the quantity of beef liver allegedly consumed by him, which WADA found “hard to believe”. The Sole Arbitrator notes that the Athlete initially referred, in direct examination, to “about 200-300g” per meal. When shown, during cross-examination by WADA, the picture of the beef liver package that he says he consumed, he corrected the quantity, without being asked about it, to 220-330g because the label of the package said that it contained 110g (the Athlete testified that he would eat two to three such packages a meal). The Sole Arbitrator does not consider that this correction by 20-30g called into question the Athlete’s credibility, nor does he understand WADA to have so suggested. Instead, WADA appeared to doubt only that the Athlete would eat such a large quantity of beef liver in a single meal. While the Sole Arbitrator agrees that 330g CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 32 of beef is quite a large portion, he does not find it entirely implausible for a professional athlete to eat such a quantity. In any case, the Athlete himself clarified that he usually ate only two such packages, i.e. 220g. Contrary to WADA’s suggestion during its closing argument, this clarification was made spontaneously by the Athlete on his own motion, i.e. not only after being pressed by WADA that 330g would seem rather excessive. This voluntary acknowledgement that he usually consumed less than 330g again goes to the Athlete’s credit. Under those circumstances, the Sole Arbitrator does not find that this part of the Athlete’s testimony hurt his credibility. 124. The second point that, according to WADA, should cause the Sole Arbitrator to approach the Athlete’s testimony with caution was related to the Diet Summary. As mentioned before, the Athlete accepted in cross-examination that the picture of the package of Australian beef liver shown in the Diet Summary was taken only after he had instructed his lawyers. He further testified that the text of the same document was written at an earlier point in time (even though it remained unclear whether this was before or after he instructed his attorneys). He acknowledged that such text did not contain any reference to beef liver specifically, or to Australia. The Athlete’s explanation for the discrepancy between the text and the photo was that when he first drew up the Diet Summary, he went to the supermarket and took pictures of all meat products he consumed in the time before the Test; however, at the time, beef liver was not in stock, which is why he returned at a later point in time, took a picture of beef liver then and added it to the Diet Summary thereafter. According to the Athlete, he forgot to add also a textual reference to beef liver and Australia. 125. WADA’s call for caution obviously alludes to the possibility that the Athlete learnt from his lawyers, who he confirmed are sports law experts, that (epi-)trenbolone is particularly prone to remain in beef liver, and that he decided thereafter to falsely claim that he had eaten beef liver before the Test. The Sole Arbitrator notes that WADA did not openly confront the Athlete with the proposition that he was lying about having eaten beef liver (from Australia or at all). Also, WADA did not in fact challenge the Athlete’s submission that “[t]he Athlete and his attorney first learned that trenbolone is particularly prone to remain in beef liver by Mr. Masato Okano, head of the Anti Doping Laboratory, when observing the analysis of the B Sample on 21 July 2022” and that this was after the Athlete had emailed the Diet Summary, which includes the beef liver photo, to his lawyers. The Athlete confirmed on re-direct that the first time he heard about beef liver being prone to retain trenbolone was during the opening of the “B” Sample, and that this was after he took the photo of the beef liver that is contained in Diet Summary. WADA did not challenge this testimony on re-cross. 126. In any case, while the course of events apparently insinuated by WADA is of course possible, the Sole Arbitrator considers it unlikely, for a combination of two reasons. First, to the extent that this implies any improper behaviour on the part of the Athlete’s lawyers, it would be a most serious matter. The Sole Arbitrator is not prepared to make any assumptions to this effect in the absence of any concrete assertion by WADA, let alone any evidence for such misconduct. It should be mentioned that WADA, to its credit, seemed to carefully avoid making any such accusation at the hearing. Secondly, had the Athlete learned from his lawyers that beef liver could contain higher quantities CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 33 of trenbolone and had he thereafter decided to include beef liver in the Diet Summary before sending it to his lawyers, he would no doubt have asserted in that same document that he ate beef liver the night before the Test. Yet, this is not what he has done. Instead, he has very candidly admitted from the very beginning (already during the first instance proceeding) that he does not remember precisely what he ate the days before the Test. It seems rather implausible that he would bother to lie about having regularly eaten Australian beef liver, only to volunteer with the acknowledgement that he does not even remember what type of meat he ate before the Test. The Sole Arbitrator finds the Athlete’s explanation significantly more plausible, i.e. that he forgot to update the text in the Diet Summary after he had managed to take a picture of the beef liver during his second trip to the relevant supermarket. In addition, the text of the Diet Summary does not specify any body parts of the chicken, pork or beef that he says he ate. Had beef liver been the only body part specifically mentioned in the test of the Diet Summary, this might have rather supported than undermined the very suspicion raised by WADA. 127. For the above reasons, the Sole Arbitrator does not consider that the timeline of the preparation of the Diet Summary, or the Athlete’s failure to mention Australian beef liver in the text of that document, diminishes the credibility of the Athlete’s testimony. WADA’s reference in this context to the award in CAS 2019/A/6319 is of no avail because, in that case, the athlete acknowledged that she had given false testimony at the first instance as to her diet before the relevant doping test. WADA fairly acknowledged in its closing argument that it was not saying this is what happened in the present case. Indeed, the Sole Arbitrator is not persuaded that the Athlete’s testimony that he regularly consumed beef liver in the time before the Test, which he maintained through all three instances, was false. 128. In conclusion, the Sole Arbitrator considers that the Athlete’s testimony does carry evidentiary weight which, while not enough to meet his burden of proof in and of itself, it is not insignificant either. (b) Evidence of meat contamination 129. The following facts are common ground in this arbitration: Trenbolone is approved as a veterinary drug in beef cattle in Australia and the USA. The same is true for a few other countries, but not for Japan. However, a large quantify of the beef meat sold in Japan is imported, including from Australia and the USA. Administration of trenbolone in beef cattle entails that meat sourced from such cattle may contain trenbolone (in muscles) or epitrenbolone (in livers). The MaxRL for trenbolone in beef liver is 10 ng/g. However, as the Japanese authorities do not test all beef meat imported into Japan, it is unknown to what extent trenbolone could have been present in any beef meat eaten by the Athlete. The human consumption of beef meat containing trenbolone or epitrenbolone will result in the presence of epitrenbolone in the urine of the person who ingested such meat. The Sole Arbitrator also notes that in at least two other cases (CAS 2019/A/6313 and New Era Arbitration Tribunal, Case 24052801), sports tribunals have CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 34 accepted that an AAF for trenbolone was caused by ingestion of contaminated beef meat. 130. According to Professor Ohe’s calculation, consumption of 200g of beef liver contaminated with the MaxRL of trenbolone (2 μg) would result in a urinary concentration of 1 ng/mL after 24 hours. This calculation relies on a study referred to by both Professor Ohe and Professor Ayotte, which found (among other things) that 50% of trenbolone is excreted through urination within the first 24 hours after ingestion. 131. While the concentration of 1 ng/mL resulting from Professor Ohe’s calculation is 0.4 ng/mL lower than the (estimated) concentration of epitrenbolone in the Athlete’s Sample, the Sole Arbitrator notes that according to both experts, excretion differs between individuals. In addition, the Athlete testified having regularly consumed 220g of beef liver instead of 200g as underlying Professor Ohe’s calculation (who explained that he had not been provided with any information as to the Athlete’s actual consumption of meat). Moreover, as the Sample was provided on or before 6:21 a.m. (when the Sample was sealed pursuant to the Doping Control Form), significantly less than 24 hours would have passed between ingestion of epitrenbolone and the Test if the Athlete had beef liver for lunch or dinner on the day before the Test. Accordingly, the Sole Arbitrator does not find it difficult to see that based on Professor Ohe’s testimony, consumption of 220g (let alone 330g) of beef liver the day before the Test could have caused a urinary concentration of 1.4 ng/mL in the Athlete. 132. Professor Ayotte did not challenge the accuracy of Professor Ohe’s calculation as such. Instead, she challenged some of his assumptions underlying the calculation. However, for the following reasons, the Sole Arbitrator is not satisfied that any of those challenges make it impossible for meat contamination to explain the estimated urinary concentration found in the Sample (and the Sole Arbitrator did not understand this to be Professor Ayotte’s position). 133. First, Professor Ayotte testified that the excretion pattern differs depending on whether one ingests trenbolone or epitrenbolone. However, Professor Ohe disagreed with this statement, saying that both substances have a similar pharmakinetic profile. To support her diverging view, Professor Ayotte referred to a study performed by herself in 2021, according to which epitrenbolone was no longer detectable in two individuals’ urine five to ten hours after they had each ingested 1 μg of epitrenbolone (in meat or liquid). However, the Sole Arbitrator is unable to conclude, from those numbers alone, that the excretion patterns of epitrenbolone and trenbolone are in fact different. When being asked about that very study in cross-examination, Professor Ayotte acknowledged that excretion differs between individuals and that the purpose of her study in 2021 was merely to “give some idea and background of what we can expect in urine”. In addition, it is not clear how sensitive the measuring equipment used in that study was. Therefore, it is unknown how high a concentration of epitrenbolone may still have been present in the urine samples 5 to 10 hours after ingestion. It is also unclear what this may mean for a scenario in which the dosage of epitrenbolone was higher (as was the case with all studies on trenbolone referred to by the experts, and as may have been the case if the Athlete ingested 220g of Australian beef liver). In particular, it is unclear whether, had CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 35 Professor Ayotte’s study been based on higher dosages of epitrenbolone, it would have likewise detected epitrenbolone after 24 hours and would have found that the half-life of epitrenbolone was 24 hours, as for trenbolone. In this regard, the Sole Arbitrator also notes that in his second written report, Professor Ohe stated that the study performed by Professor Ayotte on the excretion of 1 μg of epitrenbolone was consistent with the results of his calculation on the excretion of 2 μg of trenbolone, which statement was not specifically challenged by WADA at the hearing. 134. Secondly, Professor Ayotte highlighted that excretion of a substance is not flat, meaning that during the 24-hour half-life of trenbolone, excretion would first peak and then go down. However, Professor Ohe testified (and Professor Ayotte did not challenge) that epitrenbolone does not leave the body without urination, and that depending on the amount and timing of urination, the urinary concentration of epitrenbolone could be several dozen times higher than could normally be expected. If the Athlete had beef liver for dinner the day before the Test, the Sole Arbitrator does not consider it far fetched that he did not urinate large amounts (if at all) after relevant quantities of epitrenbolone had reached his bladder and before the Test began, which was at 6:01 a.m. the next morning. 135. Thirdly, Professor Ayotte criticized the assumption underlying Professor Ohe’s calculation that the beef liver consumed was contaminated with the MaxRL of trenbolone. She testified that between 2015 and 2021, the Canadian Food Inspection Agency tested 1725 beef livers and found epitrenbolone in 115 of them, with the highest concentration ever found being 6 ng/g. She further testified that this was consistent with other studies. The Sole Arbitrator finds that there is force to this argument, even though it is unclear if the practical use of trenbolone in cattle may differ between Canada and Australia. However, even if one assumed contamination with only 6 ng/g as suggested by Professor Ayotte in her first expert report, this would still result in 1.32 μg for 220g of beef liver (or 1.98 μg for 330g of beef liver). For the reasons mentioned in paras. 130 and 134 above, the Sole Arbitrator would still not find it excluded that such dosage of epitrenbolone could explain the Athlete’s AAF. 136. For the above reasons, the Sole Arbitrator finds that based on the data and science presented to him in this arbitration, it is possible that the AAF was caused by the Athlete having ingested contaminated beef liver. The Sole Arbitrator is comforted in this finding by the fact that WADA itself did not go as far as excluding that possibility, arguing instead that such contamination was highly unlikely to have occurred. 137. That said, meat contamination being a scientifically plausible explanation of the Athlete’s AAF does not, of course, mean that this is necessarily what happened or is even likely to have happened. Instead, as the actual meat consumed by the Athlete prior to the Test is not available for inspection, the focus must be on other circumstantial evidence that could indicate the likelihood of meat contamination being the source of the AAF. In this regard, the Sole Arbitrator notes that it is unclear whether the Athlete ate beef liver at all on the days immediately preceding the Test. There is no contemporary evidence in this regard, such as purchase receipts or witness statements. The Athlete’s own testimony is equally of no help in this regard as he candidly admitted CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 36 not remembering the specific meals he ate prior to the Test. The Sole Arbitrator further notes that none of the eleven meat products tested by the Athlete after the notification of the AAF, including one package of beef liver, showed any presence of trenbolone. Of course, this does not exclude that, more than a month earlier, trenbolone may have been present in beef liver that the Athlete may have eaten shortly before the Test. However, had the meat tested positive, this would have certainly increased the likelihood that the same could have been the case a few weeks earlier. 138. Moreover, it is undisputed that the Tokyo Laboratory reported only six AAFs for trenbolone from 2015 to August 2024, which represents approximately 0.01% of all samples analysed by the Tokyo Laboratory during that time, including approximately 6,200 tests during the 2021 Olympic Games in Tokyo. Three of those AAFs involved Japanese athletes, amongst them the Athlete, and there was no suggestion by any Party that any other WADA-accredited lab ever reported a trenbolone AAF for any Japanese athlete. The Sole Arbitrator agrees with Professor Ayotte’s assessment that if there was any widespread problem of meat available on the Japanese market being contaminated with relevant amounts of trenbolone, one would have expected more AAFs for trenbolone in Japan, or in respect of Japanese athletes, during a period of almost 10 years (cf. also CAS 2015/A/4049, para. 91). In the Sole Arbitrator’s view, this holds true even if one takes into account that the detection window for trenbolone is relatively short because no long-term metabolite is known to date (per Professor Ayotte’s testimony), that at least some Japanese athletes are encouraged to avoid foreign beef if possible (per Professor Tanigawa’s testimony), and that not all athletes may eat beef liver. Meat contamination with trenbolone thus apparently not being an endemic problem reduces, in turn, the likelihood that any meat ingested by the Athlete was contaminated with sufficient amounts of trenbolone to explain the AAF. 139. Further, while it is scientifically possible for the AAF to have been caused by the consumption of beef liver, this possibility is not straight-forward as it depends on a number of assumptions in the Athlete’s favour: Unless one assumes that the Athlete’s individual excretion profile is more beneficial to his case than that of the individuals involved in the relevant studies, the level of trenbolone contamination of the meat ingested must have been quite significant, the time between the ingestion of the beef liver and the Test must not have been longer than 24 hours, and he must not have urinated too much (if at all) between the time relevant amounts of epitrenbolone reached his bladder and the time he underwent the Test. 140. In summary, based on the above-mentioned evidence, the Sole Arbitrator finds it possible, but not very likely, that the Athlete’s AAF was caused by his having eaten contaminated beef liver. That said, the passage of time between the Test and the notification of the AAF, which was more than a month, made it objectively more difficult, through no fault of the Athlete, for him to furnish compelling evidence regarding the source of the AAF (see also CAS 2019/A/6313, para. 84). In particular, it is not surprising that he would not know, more than a month after the fact, what precisely he ate on the day(s) before the Test. Similarly, if one assumes that meat contamination with trenbolone is not a wide-spread problem in Japan, the passage of time also reduced the likelihood that if any beef liver ingested by the Athlete before the Test was in fact CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 37 contaminated, the same would be true for a similar product bought more than a month thereafter. When weighing the significance of the relative weakness of the evidence proffered by the Athlete on meat contamination, the Sole Arbitrator finds it appropriate to take this difficulty of obtaining such evidence into account. (c) Evidence regarding supplements and skin products used prior to the Test 141. The Athlete submitted that being very aware of his anti-doping responsibilities, he exercised particular care in selecting his supplements, specifically by trying to avoid any foreign-made supplements. He further submitted that after being notified of the Test, he sent all supplements and skin creams that he had used in the weeks prior to the Test to a WADA-accredited laboratory in the USA, which found no trenbolone in any of those products. In the case of a creatine product, a protein product and two skin creams, the Athlete provided to the laboratory the unsealed packages that he says he used prior to the Test, whereas for an amino acid product and a chlorella product, he provided sealed packages with the same lot number or from the same box as the package that the Athlete says he consumed prior to the Test. 142. Those submissions were not contested by WADA. They were also supported by the Athlete’s own written statement, the written witness statement by Mr Takahira, purchase receipts, photos of the relevant packages, waybills and analysis results. On this basis, the Sole Arbitrator accepts those submissions to be true. 143. However, the Sole Arbitrator considers that the only conclusion that can be drawn from the test results regarding the above-mentioned products used by the Athlete before the Test is that contamination of the creatine and protein products as well as the skin creams can be ruled out as the source of the AAF, and that it is very unlikely that the amino acid or chlorella products were that source. This conclusion does not, in the Sole Arbitrator’s view, make it less likely (or more likely) that the AAF was non-intentional. Instead, it merely increases in equal degrees the likelihood of all other potential sources, including intentional doping, meat contamination or any unknown sources. Therefore, the Sole Arbitrator finds that the result of the testing of the supplements and skin creams does not assist the Athlete in showing that the AAF was non-intentional. 144. Similarly, regarding the undisputed fact that the Athlete exercised specific care when it came to his selection of supplements, the Sole Arbitrator is not persuaded by the Athlete’s argument that this would make it less likely for him to deliberately take any prohibited substances. Not exercising sufficient diligence in the use of supplements creates a risk of its own in terms of committing an ADRV. This risk comes on top of any other risk created or tolerated by an athlete. Therefore, an athlete who deliberately takes a prohibited substance has at least the same incentive to avoid taking contaminated supplements as a clean athlete, lest the risk of testing positive is increased even further. 145. By contrast, the Sole Arbitrator considers that the Athlete’s undisputed care as regards supplements, and the negative test of all products used by him prior to the test, reduces the likelihood of any reckless behaviour as a cause of the ADRV. CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 38 (d) Statistical evidence 146. According to the ADAMS data referred to in Professor Ayotte’s expert reports, there have been 616 AAFs for trenbolone internationally across all sports from 2015 to August 2024. 65.9% of those AAFs related to bodybuilding and powerlifting. Another 6.2% (representing 38 cases) related to athletics. Moreover, as mentioned already in the context of the evidence related to meat contamination, out of the approximately 60,000 urine samples analysed by it between 2015 and August 2024, the Tokyo Laboratory reported only six AAFs for trenbolone. Three of those six trenbolone AAFs involved Japanese athletes, one of them being the Athlete, the other two being bodybuilding and wrestling athletes. The three non-Japanese nationals testing positive for trenbolone were bodybuilding and powerlifting athletes. There is no suggestion by any Party that any other WADA-accredited lab ever reported any trenbolone AAF for any Japanese athlete. There is also no suggestion that the Tokyo Laboratory reported any further trenbolone AAFs before 2015 or after August 2024. Accordingly, based on the record, the Athlete is the only Japanese athlete outside bodybuilding and wrestling who ever tested positive for trenbolone. 147. Looking at trenbolone AAFs in hurdlers, it is undisputed that there has never been any trenbolone AAF worldwide for any 400mH athlete except for the Athlete’s AAF. Moreover, from 2015 to August 2024, there was only one other trenbolone AAF for any hurdler worldwide. This concerned a 60/100m hurdler, who was tested in 2015 by the Russian National Anti-Doping Agency (RUSADA), and whose sample showed the presence of both trenbolone and metenolone. The Sole Arbitrator finds it likely that this case formed part of the Russian doping scheme in place at the time, given the timing of the test, the involvement of RUSADA and the substances found, both of which were ingredients of the cocktail of steroids designed by Dr Rodchenkov, as confirmed by the testimony of Professor Ayotte. According to an interview with Dr Rodchenkov referenced by Professor Ayotte, it took him years to design the cocktail, and athletes received detailed instructions on how to use the cocktail to avoid testing positive. As there is no suggestion that any doping scheme of remotely similar sophistication existed in Japan around the time of the Test (or at all), the Sole Arbitrator finds it difficult to draw from this only other trenbolone AAF in hurdling any reliable inferences as to the likelihood that the Athlete may have used trenbolone intentionally. 148. Even when one looks beyond hurdlers and considers also 400m sprint and 4x400 relay athletes (who would seem largely comparable to 400mH athletes in terms of the speed/endurance profile, but not in terms of technical requirements), there were only three trenbolone AAFs between 2015 and August 2024 (and the Sole Arbitrator was not made aware of any further AAFs before or after). One of those three AAFs concerned an athlete who tested positive for trenbolone and oxandrolone in 2015, with RUSADA being the Testing Authority and Results Management Agency. Again, it seems likely that this was part of the Russian doping scheme. As to the other two trenbolone AAFs among 400m sprinters, while there is no indication that they were part of the Russian doping scheme, it is noteworthy that in each of them there was an AAF also for another substance in addition to trenbolone (in one case another AAS, in the other a stimulant). CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 39 Also, one of those two athletes competed also in 100/200m sprint, which has a different speed/endurance profile than 400mH. 149. Based on those statistics, the Sole Arbitrator disagrees with WADA’s (and Professor Ayotte’s) view that the Athlete’s case is not so atypical statistically as to cast doubt on him having doped intentionally. While the Sole Arbitrator agrees that athletics accounting for a mere 6.2% of all trenbolone AAFs between 2015 and August 2024 does not make trenbolone AAFs sufficiently atypical as such, he does not consider that the entirety of track and field athletes (which includes, e.g., shot-putters and hammer and discus thrower) is the appropriate comparison group for assessing the likelihood of the Athlete having used trenbolone intentionally. Amongst Japanese track and field athletes, the Athlete’s AAF is the only trenbolone case. The same is true for hurdlers (of any distance) worldwide, except for one case likely linked to the Russian doping scheme, where a sophisticated cocktail of steroids used by many Russian athletes included, inter alia, trenbolone. 150. The Sole Arbitrator is not persuaded that WADA’s references to statistics for AAFs involving AAS more generally (or other anabolic agents) in 400mH, or in all sprint and hurdling disciplines up to and including 400m, would make the Athlete’s case appear significantly less atypical. 151. First, while WADA has provided a list showing 313 AAFs between 2015 and August 2024 for AAS (including trenbolone) or other anabolic agents in all sprint and hurdling disciplines up to and including a distance of 400m, JADA did not act as Testing Authority or Results Management Authority in any of those cases (apart from the Athlete’s case). There is also no suggestion by any Party that any athlete on that list, other than the Athlete, was Japanese, or that any Japanese athlete in those disciplines tested positive for an AAS before the period covered by WADA’s list. Hence, at least as far as Japanese athletes in short-distance racing and hurdling are concerned, this list provides further confirmation that the Athlete’s AAF is very atypical. 152. Secondly, as will become clear in section (h) below, the Sole Arbitrator accepts that the sporting characteristics of 400mH differ significantly (in a way relevant to the characteristics of trenbolone) from both shorter distance hurdling disciplines and from sprint disciplines. While this does not mean that comparing the Athlete with athletes competing in those other disciplines has no value at all, it does limit the meaningfulness of such comparison. 153. Thirdly, while WADA has provided a list allegedly showing 24 cases from 2015 to August 2024 in which 400mH hurdlers tested positive for AAS other than trenbolone, seven of those cases in fact relate to other anabolic agents. Moreover, the list includes numerous athletes who competed also in other disciplines than 400mH (including shorter distance sprinting), raising again the issue of comparability. In addition, many of the samples were taken at a time that, depending on the individual race calendar, may well have been during the 400mH winter season for the athlete in question (which is relevant because the normal use of trenbolone, i.e. to bulk up, would be counterproductive in 400mH during the competition season, see section (h) below). If CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 40 one focuses on those cases in which athletes competing only in 400mH tested positive for an AAS at a time that was most likely during their competition season, this leaves one to three cases, depending on how early the competition season and the winter season began for the individual athlete. 154. Fourthly, WADA has not made any submissions on how comparable those other AAS (and, even more so, other anabolic agents) are to trenbolone. While it is safe to assume that all those substances are believed to have an anabolic effect, the magnitude of that effect is relevant here because the Sole Arbitrator finds it plausible that the Athlete needs to avoid muscle hypertrophy during the competition season (see section (h) below). Also, the extent of any androgenic or side-effects could make those substances more or less relevant for a comparison with the present case. 155. Fifthly, the Sole Arbitrator was not provided with any information as to whether any of those other 312 other athletes testing positive for anabolic agents were found to have doped intentionally. While, realistically, such finding will have been made at least for some of them, the actual number is relevant to be able to calculate a statistical probability of intentional doping among those athletes. In particular, it is unclear whether any (and, if so, how many) of the other 400mH athletes who tested positive for AAS other than trenbolone were found to have doped intentionally. It is not for the Sole Arbitrator to speculate about any findings on (lack of) intent that may have been made in those other cases. Accordingly, based on the record, it is very difficult for the Sole Arbitrator to follow WADA’s suggestion that those other cases would stand in the way of the Athlete disproving lack of intent. 156. Similarly, the Sole Arbitrator is not persuaded by WADA’s suggestion that the Athlete’s case is not atypical because there are four CAS cases in which track and field athletes were sanctioned with four-year periods of ineligibility for ADRVs involving trenbolone. To begin with, while WADA claimed that those four athletes were short distance athletes like the Athlete, the athletes in CAS 2019/A/6319 and CAS 2021/O/8111were actually race walkers competing in 10-20 km and 3-20 km, respectively. The athletes in CAS 2017/A/5105 and CAS OG 20/06, in turn, were 60/100 m and 100/200 m sprint athletes. Even leaving aside the fact that the evidence in those cases was very different from the case at hand, the Sole Arbitrator is not satisfied that those four cases in disciplines with decisively different sporting requirements (see section (h) below) carry significant weight in the statistical analysis, at least when compared to the fact that the Athlete is the only Japanese track and field athlete, the only 400mH athlete worldwide and the only hurdler worldwide (except for a case likely connected to the Russian doping scandal) to ever have tested positive for trenbolone, and is also the only Japanese athlete competing on distances up to and including 400mH to ever have tested positive for an anabolic agent. 157. Hence, the Sole Arbitrator concludes that the Athlete’s case is very atypical statistically. It goes without saying that this does not exclude intentional doping by the Athlete. Rather, it remains perfectly possible that he is the first 400mH hurdler worldwide, the first hurdling athlete worldwide (except for one case connected to the Russian doping scheme), and the first Japanese athlete outside bodybuilding and wrestling to have used CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 41 (or at least to be caught using) trenbolone. Likewise, it is perfectly possible that he is the only Japanese runner in distances up to and including 400m to have used (or at least to be caught using) any anabolic agent. However, possibility is not the same as likelihood, and the Sole Arbitrator finds that the statistically atypical nature of the Athlete’s AAF reduces the likelihood of intentional doping. This relates not only to deliberate doping but also to reckless doping, given that the statistics suggest that there is no significant risk of ingesting trenbolone unwillingly in Japan that the Athlete should have been aware of but chose to manifestly disregard. (e) Evidence of acquisition of trenbolone 158. In support of his argument that he could not have acquired trenbolone while abroad, the Athlete submitted copies of his passports issued on 28 May 2015 and 22 November 2019. Based on this evidence, the Sole Arbitrator accepts (and WADA did not contest) that his last overseas travel before the test was to Qatar in October 2019. He further accepts that it is unlikely that Athlete purchased trenbolone in or before 2019 abroad, to use it only in mid-2022. 159. To prove his point that he could not have purchased trenbolone online, the Athlete submitted purchasing histories from the only two online shopping website he claims to be using. He further submitted credit card statements for three credit cards, which he alleged were the only credits cards used by him. WADA did not contest that those were the only online shops and credits cards used by the Athlete and the Sole Arbitrator found nothing in the record that could call the veracity of those assertions into question. It is undisputed that neither the purchase history from the two online shops nor the credit card statements contain any indication that the Athlete may have purchased any product that may have contained trenbolone. 160. Moreover, the Sole Arbitrator accepts the Athlete’s submission that in view of him being the first Japanese track and field athlete ever to have tested positive for trenbolone, it is rather unlikely that he was able to obtain trenbolone from fellow athletes or athletic staff. 161. Of course, it remains possible that the Athlete purchased (or otherwise obtained) a trenbolone product elsewhere and paid for it in a different fashion (if at all). However, just as it is not enough for an Athlete to speculate about the origin of the AAF, the Sole Arbitrator does not find it appropriate to speculate himself about ways in which the Athlete could have purchased trenbolone, given that WADA neither suggested any nor challenged the Athlete’s testimony on this topic in cross-examination. Under those circumstances, the Sole Arbitrator finds that this evidence reduces the likelihood of the Athlete having doped intentionally. (f) Athlete’s bodyweight 162. The Athlete argues that any intentional use of trenbolone is disproven by the fact that he did not gain any weight during the relevant period of time. In support of this argument, he has submitted the following measurements of his bodyweight, which were CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 42 taken at company health checkups during the season and at the Japan Institute of Sports Sciences during winter training: Winter In-season 2020 71.6 kg (27 January 2020) 68.7 kg (11 June 2020) 2021 71.9 kg (12 February 2021) 68.3 kg (24 November 2021) 2022 71.3 kg (25 February 2022) 67.9 kg (5 July 2022) 163. The accuracy of those measurements was not contested by WADA and is supported by contemporaneous documentation submitted in this arbitration. The Sole Arbitrator therefore accepts that the Athlete’s bodyweight was as mentioned in the above table. 164. The Sole Arbitrator also accepts the Athlete’s submission, which WADA did not dispute, that trenbolone is regarded as “the ultimate anabolic steroid” because it is known for particularly pronounced muscle hypertrophy compared to other AAS, while facilitating the burning of fat at the same time. This submission was supported by two internet articles already submitted by JADA in the previous instance proceedings. Among other things, those articles suggest that trenbolone is five times more effective than testosterone. Similarly, relying on multiple scientific publications, Professor Ayotte described trenbolone as a “highly potent anabolic steroid” that derives its anabolic efficacy “from its ability to bind to androgen receptors with an affinity 3 times superior to testosterone”. 165. Of course, as rightly noted by WADA, the times at which the Athlete’s bodyweight was measured (especially during the competition season) appear quite random. In particular, his in-season weight 2022 was measured roughly one and a half months after the Test, and almost two weeks after the notification of the AAF. It cannot be excluded that he had in fact gained weight in the weeks before the Test, but lost it again by the time he was weighed. However, without any specific questions about this mere possibility being put to the Athlete, and taking into account that he was regularly competing prior to the Test, the Sole Arbitrator does not find it very likely that the Athlete’s in-season bodyweight in 2022 was significantly higher before the Test. Therefore, he accepts that the Athlete did not gain significant weight as compared to previous years, and agrees that this tends to suggest that he was not using trenbolone for the purpose that this substance seems to be mainly used for, namely to facilitate rapid muscle hypertrophy. CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 43 (g) Clean testing history 166. The Athlete argues that his clean testing history prior to the Test speaks against him having used trenbolone, given that he would have had to use it long-term to achieve any relevant effect. 167. The Sole Arbitrator accepts that for trenbolone to have any muscle-strengthening effect, it must be taken consistently for cycles of several weeks (while performing strength training and taking in very large amounts of calories). Professor Ohe stated as much in his written expert report, referring also to a scientific article that mentioned 2-3 cycles of 6-18 weeks per year, albeit for AAS generally. Similarly, Professor Ayotte testified at the hearing that “the normal usage” of trenbolone was “in cycles of multiple weeks”. This is also in line with one of the internet articles provided in this arbitration, which suggested the use of trenbolone in cycles of eight weeks. 168. It is undisputed that the Athlete tested negative on 13 December 2021 and on 25 February 2022. This makes it very unlikely that he was using trenbolone before those dates for purposes of gaining muscle. Of course, the Sole Arbitrator cannot exclude that there was just enough time between those two tests, and between the 25 February 2022 test and the Test, to undergo a cycle of trenbolone use and still test negative (even though Professor Ohe testified that use of the requisite dosages of trenbolone would be excreted over at least 10 days). However, those negative tests do reduce the likelihood that this is what happened, given that the Athlete would have had to be quite lucky to time his cycles neatly between those testing dates not known to him in advance. Moreover, if one combines the clean testing history with the lack of any weight gain, the Sole Arbitrator considers it unlikely that the Athlete was on any “normal usage” of trenbolone as described by Professor Ayotte. (h) Evidence of lack of incentive for the Athlete to use trenbolone around the time of the Test 169. The Athlete argued that considering the general characteristics of 400mH and his own sporting characteristics among 400m hurdlers, it would not make any sense for him to use trenbolone in-season. While WADA submitted that this argument was insufficient to prove lack of intent, it did not dispute the sporting characteristics invoked by the Athlete as such. Similarly, while WADA argued that the Athlete’s coach, Mr Karube, whose written witness statement supported the Athlete’s position, was not an independent witness, WADA did not make the same argument regarding Professor Tanigawa, whose testimony was aligned with that of Mr Karube. 170. Indeed, the Sole Arbitrator finds no reason to doubt the independence of Professor Tanigawa, whose testimony on the sporting characteristics of 400mH in general, and of the Athlete in particular, the Sole Arbitrator found convincing. Therefore, the Sole Arbitrator accepts that 400mH differs significantly from other short-distance disciplines in terms of what is required from athletes to be successful. In particular, both endurance and technical factors play a much bigger role in 400mH. This holds true even more for the Athlete, whose stride pattern means that his success is more contingent than that of CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 44 other 400mH athletes on his endurance (because he is slower than most competitors in the first half of the race) and his technique (because he must change his leading leg more often than most of his competitors). 171. Further, the Sole Arbitrator finds it established, based on Professor Tanigawa’s persuasive testimony, that while rapid muscle hypertrophy might help a 400mH athlete during winter (when they usually undergo more intensive weight training), it would have a significant negative impact in-season because it would disrupt the athlete’s stride pattern. The Sole Arbitrator notes for completeness that the same point was confirmed by the written testimonies of Mr Karube and Mr Kishimoto, even though they were not called to testify at the hearing. Contrary to WADA, the Sole Arbitrator does not consider that Professor Tanigawa’s credibility in this regard was adversely affected by his statement that he found it “unthinkable” for any 400mH to use trenbolone during competition season, given the rapid hypertrophic effect that it is said to have (Professor Tanigawa volunteered to acknowledge that he is not an expert on the effects of trenbolone himself). The Sole Arbitrator does not agree with WADA’s view that the four CAS cases in which runners were banned for four years due to the use of trenbolone, or the statistics on AAFs in 400mH involving other AAS and anabolic agents, establish that 400mH athletes are in fact using trenbolone (or substance with a similarly pronounced hypertrophic effect) during the competition season. As mentioned above, the CAS cases did not concern 400mH athletes and there are multiple issues with the list of AAFs for other anabolic agents (see section (d) above). 172. Finally, the Sole Arbitrator accepts, based on the undisputed submission by the Athlete, the testimony of Professor Tanigawa and the race data submitted, that the Athlete did not change his stride pattern at the 2022 Japan Championships, compared to previous races. 173. The decisive question is, however, to what extent those facts help the Athlete to establish that the AAF was not intentional. As correctly noted by WADA, multiple CAS tribunals have found that the athletes before them were unable to discharge their burden of proving lack of intent despite allegations of lack of sporting incentive having been made. However, as mentioned before, each case must be decided on its own facts and evidence and it is the Sole Arbitrator’s task to assess the particular evidence before him rather than to exclude certain types of evidence from the outset (see para. 107 above). In this regard, the Sole Arbitrator notes that contrary to many of the CAS cases referenced by WADA, the Athlete did not merely make assertions. Instead, he relied on what the Sole Arbitrator found to be convincing expert testimony by Professor Tanigawa on the sporting characteristics of 400mH and the Athlete himself (in addition to the statements of Mr Karube and Mr Kishimoto). Also, the Athlete’s argument was not that he had no incentive to dope per se, but rather that using this very specific substance at the very specific time of the season when the Test occurred was non-sensical. Therefore, the Sole Arbitrator is not prepared to consider this evidence immaterial from the outset. 174. That said, the Sole Arbitrator agrees with WADA that one must not too readily conclude that simply because, objectively, a certain substance is of little or no use as a doping agent in a particular sport or discipline, the athlete in question cannot have taken the CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 45 substance intentionally. Indeed, as argued by WADA, such conclusion would imply that every ADRV is well thought out and calculated on the part of athletes, which may not always be the case. At the same time, however, the Sole Arbitrator finds it equally unconvincing to assume, by default, that athletes willing to dope would randomly take prohibited substances without informing themselves about, among other things, the potential of those substances to enhance their sporting performance. Rather, it is for the Sole Arbitrator to assess, with respect to the particular athlete before him, how likely it is for him to have intentionally taken a doping agent that is not fit for purpose. In the words of the panel in CAS 2020/A/7579 & 7580, at para. 169: “Foolishness is of course not a defence; intent is not excluded if the marathon runner ingests a product designed for bulk. The question is rather the implausibility of either in the case of a particular athlete.” 175. As mentioned above, the Athlete appears to be a serious and sincere young man, and it has remained undisputed that he exercised significant diligence in selecting his supplements. The Sole Arbitrator does not find it likely that the Athlete is the kind of person who, assuming he is willing to dope, would take the next best substance without thoroughly informing himself of the (side-)effects and the potential to enhance his performance. 176. Against this background, the Sole Arbitrator considers that given the evidence presented on the sporting characteristics of 400mH, and of the Athlete specifically, and in combination with the evidence on his bodyweight and testing history, it is unlikely that the Athlete was using trenbolone to bulk up. The Sole Arbitrator is not persuaded by WADA’s argument that this is gainsaid by the Athlete’s statement that he used protein and creatin to improve his “explosive power”. Even disregarding the Athlete’s explanation in cross-examination that this was to be understood rather as a reference to sharpness in movement, any effect that protein and creatine may have in terms of increasing muscle is obviously not comparable to the rapid hypertrophic effect of trenbolone. Hence, even if the Athlete’s use of protein and creatine aimed at increasing muscle power, this does not contradict the conclusion that he is unlikely to have used “the ultimate anabolic steroid” to bulk up during his competitive season. 177. To the extent that WADA suggested for the first time at the hearing that the Athlete may have used trenbolone to maintain (as opposed to gaining) weight, there is no indication in the record that the Athlete had any problems maintaining his weight. In fact, based on the bodyweight measurements mentioned above, the Athlete lost less weight in 2022 from winter season to competition season (3.4kg) than in the previous year (3.6kg). Also, when asked by the Sole Arbitrator – before there was any suggestion that trenbolone could have been used to maintain weight – whether there was any reason why his in-season weight seems to have decreased slightly from 2020 to 2022, the Athlete did not seem to be aware of any significant weight loss and explained that he had prioritized aerobic training in the winter season 2021/2022. This was not only a plausible explanation (that remained unchallenged by WADA) for the slight weight loss but also one that does not suggest any ongoing weight loss during the competition CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 46 season that could have caused the Athlete to use trenbolone to avoid losing further weight. 178. At the hearing, WADA also suggested for the first time that the Athlete may have used trenbolone to speed up recovery. Indeed, Professor Ayotte’s written expert reports mentioned that trenbolone (like other AAS) could speed recovery, and Professor Ohe agreed with that statement during cross-examination. However, the Sole Arbitrator notes that, as confirmed by Professor Ayotte, due to the absence of any studies, very little is known about this type of use, in particular which dosage would need to be applied. Also, she acknowledged that the “normal” use of trenbolone was in cycles to gain muscle. This is also precisely how trenbolone is characterised by the online sources on record. It does not seem very likely that an athlete who is trying to avoid hypertrophy and is merely looking for ways to recover more quickly would choose trenbolone of all substances – a substance that is described as “ultimate anabolic steroid” and that is associated throughout with bodybuilding. There is also no indication in the record that, contrary to long-term use for gaining muscle, there is any public information on how to use trenbolone if the goal is to speed up recovery while not bulking up. In the absence of such evidence on record, it seems probable that use of trenbolone exclusively for recovery purposes would require rather sophisticated methods, as the one described by Dr Rodchenkov in the interview referenced by Professor Ayotte (according to that interview, the cocktail and the very specific manner of application were designed to help athletes “recover quickly […], allowing them to compete in top form over successive days”). Given that there has never been any trenbolone AAF of any Japanese track and field athlete before the Athlete’s AAF, it is not very likely that the Athlete could have obtained the necessary guidance from someone in the Japanese track and field community. 179. Moreover, the Sole Arbitrator agrees that the Athlete’s inclusion in the RTP approximately two months prior to the Test is likely to have reduced any incentive he may have felt to use a prohibited substance at that time. 180. Of course, despite the above, it is not excluded that the Athlete was unfazed by his inclusion in the RTP just two months ago, that he learnt of the potential of trenbolone to facilitate recovery (or to maintain muscle mass), and that he either attempted to figure out himself how this worked (even though this would seem a bit out of character, see para. 175 above) or somehow managed to find someone to help him do it. However, based on the evidence on record, the Sole Arbitrator does not find it very likely that this is what happened. In this regard, the Sole Arbitrator also notes the finding of the panel in CAS 2020/A/7579 & 7580, at para. 168: “If anything is speculative, it is the recovery theory now put forward by the Appellants without any indication of the Athlete’s need to take a risk to achieve it in a new and unsupervised way. […] Uncorroborated speculation is said not to avail an accused athlete; it should not in fairness avail the accuser either.” (i) Sporting performance before and after the Test CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 47 181. It is not in dispute that the Athlete performed well before the Test: He finished second at the Shizuoka International on 3 May 2022 (first among Japanese athletes) and fourth at the Seiko Golden Grand Prix on 8 May (second amount Japanese athletes). It is likewise undisputed that if he continued to perform at the same pace, he was positioned to qualify for the World Athletics Championships at the Japan Championships in the first half of June 2022 (as he eventually did, finishing third at that event). The foregoing is also confirmed by the written witness statement of Mr Karube, to which attached were the results from the Seiko Golden Grand Prix and the Japan Championships. 182. That said, the Sole Arbitrator does not consider that those facts carry any significant weight in proving lack of intent. The use of a prohibited substance will not necessarily show in a spike in sporting performance, in particular if, as is the case here, the evidence anyway suggests that the Athlete did not consume trenbolone long-term with significant dosages. Moreover, even if one expected a spike in performance, the relative stability of the Athlete’s results in May and June could also be explained by him having used trenbolone both before the May competitions and before the June competition. Viewing the Athlete’s sporting performance in isolation, the Sole Arbitrator does not view any of the two scenarios significantly more likely than the other. However, one can say at least that the Athlete’s sporting performance does not provide any evidence in favour of intentional doping, neither in terms of uncharacteristically poor performances (in May) that could have provided him with an incentive to dope, nor uncharacteristically strong performances (in June) that could raise the suspicion that he was doped at that time (cf. CAS 2015/A/4059, para. 124; CAS 2020/A/7579 & 7580, para. 147). (j) The Athlete’s behaviour during the Test 183. The Athlete argued that had he doped intentionally, he could have simply pretended not to be home when his bell rang for the doping control, given that he had never missed any doping test before and that it was clear that his bell ringing at 6 am, at the beginning of his one-hour time slot indicated for testing, could only mean a doping test. WADA did not dispute those circumstances or challenge the Athlete’s testimony in this regard in cross-examination. 184. Of course, assuming that the Athlete had knowingly taken trenbolone, it is possible that his opening of the door could also have been due to the fact that he just woke up and did not think clearly, or that he thought the trenbolone would have already left his system. However, if the Athlete knew that he had ingested a Prohibited Substance, the Sole Arbitrator finds it more likely on balance that he would not have taken the risk and instead pretended not to be home, especially since his anti-doping education (see section (l) below) supports the suggestion that he was aware that an isolated missed test would not constitute an ADRV. 185. That said, based on published CAS decisions alone, guilty athletes have tested positive out-of-competition before in situations where they could have avoided the doping control. Therefore, the Sole Arbitrator is not prepared to attach significant weight to this strand of evidence. CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 48 (k) The Athlete’s behaviour after the Test and after the notification of the AAF 186. The Athlete argued that had he doped intentionally, he would have been out of balance psychologically and athletically after the Test, while he did not in fact appear different at all after the Test, instead training calmly for and competing successfully in the Japan Championships. In support of this argument, the Athlete submitted written witness statements from Mr Takahira, Mr Karube, and Mr Kishimoto, all of whom confirmed that the Athlete seemed his usual self after the Test. The Sole Arbitrator also notes that WADA did not dispute that the Athlete’s behaviour or outward appearance did not change after the Test, even though WADA did question in general the evidentiary weight of witness testimony by teammates and coaches. 187. Similarly, the Athlete argued that after the verbal notification of the AAF, he was in a state of shock, immediately calling Mr Takahira and Mr Karube, rather than waiting first for the written confirmation and devising a strategy what to say to his coaches, as could be expected had he doped intentionally. The timeline of his calls with Mr Takahira and Mr Karube is evidenced by phone records from the Athlete’s and Mr Takahira’s phones. In addition, the written witness statement of Mr Takahira mentioned that during their call, the Athlete was in tears and sounded exhausted. Mr Karube’s written witness statement described the Athlete as having been “simply stunned” during their call and that he sounded like “his mind was completely blank”. The Sole Arbitrator notes that WADA did not dispute those descriptions of the Athlete’s behaviour right after the verbal notification of the AAF but, as mentioned before, called for the Sole Arbitrator to approach the relevant evidence with caution. 188. Finally, the Athlete argued that had he doped intentionally, he would have known the source of the AAF and would not have bothered to put in the expense, time, and effort to conduct multiple analyses of supplements, skin creams and meat products (the latter requiring him to travel to Tokyo twice as had had moved back to his family home away from Tokyo in the meantime). In support of his investigative efforts, the Athlete submitted the relevant shipping documents, test results, and the written witness statements by Mr Takahira and Mr Taga. WADA did not dispute that those efforts were made, but questioned their evidentiary value. 189. Regarding the first two points, i.e. the Athlete’s demeanour right after the Test and after the notification of the AAF, the Sole Arbitrator notes that it is inherently difficult to reliably deduct a person’s state of mind from his outside appearance. For instance, if he had doped intentionally, the Athlete’s focus on practice and competition could have been a way for him to repress any concerns he may have had regarding the outcome of the Test. Similarly, his state of shock after notification of the AAF could just as well have been due to such repression mechanism being suddenly blown away by the reality that he had been caught cheating. That said, in view of the Athlete’s personality as displayed at the hearing and as described in the witness statements of Mr Karube, Mr Takahira and Mr Kishimoto, the Sole Arbitrator is minded to accept that the Athlete having called his coaches in an emotionally devastated state right after the verbal notification of the AAF seems a bit out of character and therefore tends to indicate genuine surprise on his part about the AAF. However, if the Athlete had doped CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 49 intentionally, this surprise and emotional devastation may also be explained by a thwarted expectation that he would not be caught (e.g. because he thought trenbolone would no longer be in his system when tested). For the foregoing reasons, the Sole Arbitrator is unable to conclude that the Athlete’s demeanour right after the Test and the notification of the AAF is a clear enough indication against him having doped intentionally. Therefore, the Sole Arbitrator is not prepared to accord any material weight to the related evidence. 190. As to the third point, i.e. the Athlete’s investigative efforts after notification, the Sole Arbitrator disagrees with the Athlete’s argument that he would have been unlikely to undertake such efforts had he known how trenbolone had entered his system. First, the Athlete himself has submitted, and it has remained undisputed, that it was Mr Takahira who told him to test the supplements, skin creams and meat. Even if the Athlete had doped intentionally, he hardly could have ignored this advice of his coach without raising great suspicion. Secondly, there was an obvious risk that any tribunal would likewise find it suspicious if the Athlete argued contamination but did not bother to make any investigations in this regard. Thirdly, regardless of whether the Athlete doped intentionally, there was at least a possibility that one of the products would test positive for trenbolone, which would have helped the Athlete’s defence in any scenario. For those reasons, the Sole Arbitrator does not consider that the Athlete’s investigative efforts provide any material support to his assertion that he did not dope intentionally. For completeness, the Sole Arbitrator also notes the concerns of the panel in CAS 2020/A/7579 & 7580, at para. 107, that it would be an “unacceptable prospect that guilty athletes could spend their way out of trouble by engaging in extensive post violation investigations”. (l) Athlete’s awareness of risks and seriousness of doping 191. In support of his argument that he was acutely aware of risks and the seriousness of doping, the Athlete referred, firstly, to six anti-doping courses that he attended between January 2020 and April 2022. This was corroborated by attendance certificates from those courses. Secondly, the Athlete submitted that he understood how doping was not only problematic for those who doped but could also change the lives of other athletes, given that his coach, Mr Takahira, had shared with him (and his teammates) his personal experience of being awarded an Olympic silver medal only 10 years after the race, when it turned out that there had been doping on the team that initially won the silver medal. This aspect was confirmed by Mr Takahira in his written witness statement. WADA did not dispute those submissions. 192. Of course, anti-doping education does not immunize athletes against the temptation to further their athletic success through doping. However, arguably the main purpose of such education is to reduce the risk of doping. Against this background, the Sole Arbitrator accepts that the Athlete’s participation in multiple anti-doping courses and, more importantly, the very personal experience that Mr Takahira shared with him, will have had an impact on the Athlete’s stance on doping. Realistically, the combination of both will have made it more difficult for the Athlete to be able to justify doping before CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 50 himself (making deliberate doping less likely) and will have increased his diligence in trying to avoid risks of ADRVs (reducing the likelihood of reckless doping). 193. That said, it is trite that awareness of the consequences of misbehaviour (for the culprit and others) often is not enough to discourage such misbehaviour. Therefore, while the Sole Arbitrator accepts that the Athlete’s awareness of the risks and seriousness of doping make intentional doping less likely, he finds that this evidence forms a rather thin strand in the evidentiary cable. (m) Assessment of the totality of evidence 194. Based on the above, the Sole Arbitrator is unable to accept WADA’s contention that the Athlete has failed to provide any actual evidence, or has offered at best a mere protestation of innocence, in support of his assertion that his ADRV was not intentional. One may hold different views on whether the evidence adduced is sufficient to meet the Athlete’s burden of proof on a balance of probability, but the Athlete clearly submitted multiple pieces of actual and concrete – albeit necessarily circumstantial – evidence to corroborate his own testimony. 195. The Sole Arbitrator does not consider that any single strand of the said evidence is strong enough for the Athlete to discharge his burden of proving that the ADRV was not intentional. However, albeit not without hesitation, the Sole Arbitrator has concluded that the cumulative weight of the evidence is sufficient to meet the burden of proof on a balance of probability. 196. Specifically, the Sole Arbitrator finds that the following evidence, when viewed cumulatively, discharges the Athlete’s burden of proving that he did not use trenbolone deliberately (‘direct intent’): - - - - - The Athlete’s credible denial. The scientific evidence showing that the AAF could have been caused by the consumption of contaminated beef liver, taking into account also the fact that the time that passed between the Test and the notification of the AAF made it more difficult for the Athlete to prove what precisely he ate on the days before the Test, and whether it may have been contaminated with trenbolone. The statistical evidence establishing that the Athlete’s case is very atypical. The evidence on the Athlete’s bodyweight, his clean testing history and the sporting characteristics of 400mH and the Athlete himself, making it unlikely that the Athlete used trenbolone to gain muscle mass, combined with the rather speculative nature of the suggestion that he may have used trenbolone for other purposes. The evidence on his not having acquired any trenbolone product abroad, through the online shops he uses or with the credit cards he uses. CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 51 - - The evidence that he knew he was about to be tested, was aware that a missed test would not amount to an ADRV, but did not attempt to evade the Test. The evidence regarding the Athlete’s anti-doping education and the personal experience with ADRVs (of other athletes) that Mr Takahira shared with him. 197. To be clear, none of the above-mentioned evidence excludes that the Athlete knowingly used trenbolone. However, this is not the applicable standard of proof. Instead, it is sufficient for the Athlete to show that it is more than 50% likely that he did not take trenbolone deliberately. Based on the above-mentioned evidence, the Sole Arbitrator finds that the Athlete succeeded in doing so. 198. Regarding the Athlete’s burden to also prove that he did not use trenbolone recklessly (‘indirect intent’), the Sole Arbitrator considers that this is a particularly difficult form of a proof of a negative, at least if the source of the AAF remains unclear. It is simply not possible for an athlete to prove that in unknown situations that could have caused the AAF, the athlete either did not know about the existence of a significant risk of an ADRV or did not manifestly disregard that risk. Therefore, the Sole Arbitrator finds that it must be sufficient for an athlete to establish the absence of recklessness (by a balance of probability) in relation to those situations for which, based on the record, there is at least a possibility that they could have caused the AAF. Therefore, while WADA does not bear the burden of proof, the fact that it did not suggest any situations in which the Athlete may have acted recklessly makes it easier for the Athlete to meet his burden of proof in this regard (see, in general, para. 103 above). 199. For the only two situations transpiring from the record that could have caused the AAF (apart from deliberate doping and unknown other sources), the Sole Arbitrator is satisfied that no recklessness exists: - - In respect of possible meat contamination, the statistical evidence shows that the Athlete had no reason to be particularly cautious with the consumption of meat in Japan. In respect of his use of supplements, it has remained undisputed that the Athlete exercised particular care. Hence, even if trenbolone should have been present in the amino acid or chlorella products (which is not excluded as the Athlete could only test sealed containers with same lot number or from the same box as the ones he used before the Test), there is no indication of any recklessness on the part of the Athlete. 200. Having found that the Athlete established that the ADRV was not intentional, the period of ineligibility shall be two years pursuant to Article 10.2.2 of the JADC. 2. Starting date 201. As to the starting date of the period of ineligibility, the Athlete argued that due to delays in notifying the AAF to him and completing results management at first instance, the CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 52 period of ineligibility should start on 21 May 2022, according to Article 10.13.1 of the JADC. Given that the Athlete was provisionally suspended from 21 June 2022, a starting date of 21 May 2022 would effectively result in a one-month retroactive period of ineligibility. 202. The Sole Arbitrator notes that the Athlete’s request as to the starting date was granted both the JADPP and the JSAA. He further notes that in this arbitration, neither WADA nor JADA made any specific arguments regarding the starting date (even though, in its request for relief, WADA did request that the period of ineligibility start on the date of the CAS Award in this matter). In particular, they did not dispute that the notification of the AAF could have been quicker, and that there were certain delays in the procedure before the JADPP that were not attributable to the Athlete. Moreover, the Sole Arbitrator notes that the first instance decision by the JADDP was issued more than one and a half years after the notification of the AAF, while the ISRM provides a period of six months as a guideline for the duration of this process. 203. Under those circumstances, the Sole Arbitrator finds it appropriate to apply Article 10.3.1 of the JADC and to confirm the starting date indicated in the Appealed Decision, i.e. 21 May 2022. B. Disqualification of competitive results 204. Pursuant to Article 10.10 of the JADC, all (individual) competitive results of the Athlete obtained from 19 May 2022 (the date of the Test) through 21 June 2022 (the commencement of the provisional suspension) shall be disqualified, including forfeiture of any medals, points and prizes obtained during that period. For completeness, the Sole Arbitrator notes that for the period between 21 May 2022 and 21 June 2022, i.e. the period of retroactive ineligibility, this is also confirmed by Article 10.3.1 in fine of the JADC. X. COSTS (…) CAS 2024/A/10655 WADA v. JADA & Masaki Toyoda – Page 53 ON THESE GROUNDS The Court of Arbitration for Sport rules that: 1. 2. 3. 4. 5. The appeal filed by WADA on 6 June 2024 is dismissed. The decision rendered by the Japan Sports Arbitration Agency on 2 April 2024 in the matter of Masaki Toyoda is confirmed.

CAS 2024/A/10770 Norbert Kobielski v. World Athletics ARBITRAL AWARD delivered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: Sole Arbitrator: Mr Jordi López Batet, Attorney-at-Law, Barcelona, Spain in the arbitration between Norbert Kobielski, Poland Represented by Mr Łukasz Klimczyk, Attorney-at-Law in Wroclaw, Poland and World Athletics, Monaco Represented by Mr Nicolas Zbinden, Attorney-at-Law in Lausanne, Switzerland * Appellant Respondent CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 2 I. THE PARTIES 1. 2. II. Mr. Norbert Kobielski (the “Athlete” or the “Appellant”) is a Polish international-level athlete competing in the discipline of high jump. World Athletics (“WA” or the “Respondent”) is the international governing body for the sports of athletics. FACTUAL BACKGROUND A. FACTS 3. 4. 5. B. 6. 7. Below is a summary of the main relevant facts, as established on the basis of the Parties’ written and oral submissions and the evidence taken in the course of the present appeal arbitration proceedings. This background is set out for the sole purpose of providing a synopsis of the matter in dispute. While the Sole Arbitrator has considered all the facts, allegations, legal arguments, and evidence submitted by the Parties in these proceedings, the Award refers only to the submissions and evidence deemed necessary to explain the reasoning. On 26 May 2024, the Athlete provided a urine sample during the “Opolski Festiwal Skoków” in Opole, Poland (the “Sample”). On 28 June 2024, the WADA-accredited laboratory in Warsaw (the “Laboratory”) reported that the analysis of the Sample revealed the presence of the pentedrone norephedrine metabolite, a metabolite of pentedrone or α-pyrrolidinovalerophenone (“α PVP”). Both pentedrone and α-PVP are cathinone analogues. Cathinone and its analogues are classified as Prohibited Substances under the WADA 2024 Prohibited List (“the List”) in the category S6.B Specified Stimulants. Therefore, pentedrone norephedrine metabolite is considered a Specified Substance and is prohibited In-Competition. PROCEEDINGS BEFORE THE ATHLETICS INTEGRITY UNIT On 3 July 2024, the Athletics Integrity Unit (the “AIU”) communicated the Adverse Analytical Finding (“AAF”) to the Athlete, informed him that such AAF could result in Anti-Doping Rule Violations under Rule 2.1 and/or Rule 2.2 of the 2024 World Athletics Anti-Doping Rules (the “WA ADR”) as well as in the potential imposition of a Provisional Suspension. The Athlete was also informed of his right to request a Provisional Hearing by submitting written reasons to the AIU explaining why an Optional Provisional Suspension should not be imposed. On 11 July 2024, the Athlete submitted his explanations on the AAF to the AIU and the reasons why an Optional Provisional Suspension should not be imposed on him. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 3 8. On 23 July 2024, the AIU resolved to impose a Provisional Suspension on the Athlete, in the following terms: “63. Pursuant to the foregoing, the Athlete has failed to establish that any of the grounds identified in Rule 7.4.4 exist to demonstrate that an Optional Provisional Suspension should not be imposed upon him in his case. 64. The AIU has therefore decided to impose an Optional Provisional Suspension upon the Athlete in accordance with Rule 7.4.2 effective immediately.” III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT 9. On 28 July 2024, the Appellant filed a Statement of Appeal with the Court of Arbitration of Sport (“CAS”) against WA with respect to the decision rendered by the AIU on 23 July 2024 (the “Appealed Decision”). In his Statement of Appeal, the Appellant requested the implementation of an expedited procedure, requested the appointment of a sole arbitrator and requested the stay of the Appealed Decision. 10. On 29 July 2024, upon request of the CAS Court Office, the Athlete informed that it was his understanding that these proceedings were to be referred to the CAS Appeal Arbitration Division. However, the Athlete mentioned that if WA confirmed the jurisdiction of the CAS Paris Ad Hoc Division to deal with the case, then he would agree to refer it to such Ad Hoc Division. 11. On 30 July 2024, the CAS Court Office noted that indeed this case was related to the participation of the Athlete in the Paris 2024 Olympic Games (the “OG 2024”) -in particular, in the high jump competition scheduled on 7 August 2024 - and invited the Respondent to state whether it would agree that this case be dealt exclusively with the CAS Paris Ad Hoc Division and to provide its position on the request for stay of the Appealed Decision. 12. On 30 July 2024, WA informed that it considered that the appeal could be determined by the CAS Appeal Arbitration Division on an expedited basis, proposed a procedural calendar enabling to have the operative part of the award issued by 4 August 2024 and considered for this reason that the request for stay made by the Appellant was moot. 13. On 31 July 2024, the CAS Court Office formally acknowledged receipt of the Statement of Appeal, which also served as the Appeal Brief, sent it to WA and invited the latter to file its Answer. In the same correspondence, the CAS Court Office informed the Parties that failing an agreement to refer the procedure to the CAS Ad Hoc Division for the OG 2024, the arbitration had been assigned to the CAS Appeal Arbitration Division, and confirmed the Parties’ agreement to expedite the procedure with the following procedural timetable (subject to the Sole Arbitrator’s possible adaptation): WA filing its Answer by CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 4 1 August 2024, 20:00 CEST; a hearing being held via video conference on 2 August 2024; and the notification of the operative part of the Arbitral Award being provided by 4 August 2024 by 10:00 CEST, with the possibility of a slight delay if necessary. The CAS Court Office also noted the Appellant’s request that the AIU be required to submit the full case file related to the Athlete’s proceedings and invited WA to address this request in its Answer, and that the proceedings would be conducted in English and resolved by a Sole Arbitrator as agreed by the Parties. Finally, the CAS Court Office acknowledged the Appellant’s application for provisional measures but indicated that this request could become moot in light of the expedited calendar and the issuance of the operative part of the Award by 4 August 2024. 14. On 1 August 2024, the CAS Court Office informed the Parties that, pursuant to Article R54 of the CAS Code, the Arbitral Tribunal appointed to decide the present matter had been constituted as follows: Sole Arbitrator: Mr Jordi López Batet, Attorney-at-Law in Barcelona, Spain. 15. In the same letter of 1 August 2024, the CAS Court Office informed the Parties that the Sole Arbitrator had decided to slightly modify the procedural schedule previously established. 16. Also on 1 August 2024, the Respondent filed its Answer. 17. Also on 1 August 2024, the Appellant submitted an unsolicited email which reads as follows: “I acknowledge receipt of WA’s position, but at the same time note that there is no power of attorney on file authorising Mr Nicolas Zbinden, who signed the content of the Answer, to represent WA in this case. With regard to the exhibits submitted by WA: 1) one of them is a certified reference material dated 24 April 2014 - in this regard, we request that WA be required to provide and/or obtain information from the manufacturer as to whether this is still a (valid) certificate. This is all the more justified as the manufacturer’s website states that the product is no longer available for sale. Answer The validity of the certificate is an important circumstance of the case, as it appears from the explanations in the Answer that an analytical result confirming the presence of “PENTENDRONE NOREPHEDRINE METABOLITE” was issued on the basis of this reference material, which, as the indicates, is only the trade name of this material. Furthermore, in the context of the above-mentioned case, it is also important to ask the manufacturer of the above-mentioned certificate to explain why ‘NOREPHEDRINE’ is encoded in the name of the certified reference material. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 5 2) we also note the additional opinion of Prof. Saugy which, due to its specialised nature, requires us to have it verified by an expert, but given the scheduled date of the hearing, this may be very difficult (if not impossible) to do. Given the relevance of the issue raised, we would like to be granted the right to respond to its contents (we are already taking steps to determine whether Dr Kwaśnica will be able to respond to the opinion and, if so, when this will be possible). At the same time, in light of the WA’s position that the Laboratory did not request a second opinion in this case (paragraph 22 of the Answer), I hereby respectfully request that the WA and/or the Laboratory be ordered to submit to the case file all correspondence concerning my Client’s sample that it had with WADA (if there was any correspondence other than that previously produced for the case file) and with other WADA-accredited laboratories. In view of the fact that the analysis of Sample “B” is scheduled for tomorrow, the result of which will probably be communicated to the Parties after the hearing, and in view of the aforementioned requests for evidence and the need for a more detailed examination of the expert report, which may make it impossible to consider the case in comprehensive manner during tomorrow’s hearing, I fully uphold request for provisional measures in the form of staying appealed decision and to allow the Parties to take all the necessary steps to verify the correctness of the analysis carried out by the Laboratory (at the moment we our position is that we established can that there is untrue information on the test report regarding the detection of the PENTENDRONE NOREPHEDRINE METABOLITE, which does not exist as a compound - as confirmed by Prof. Saugy), which may require more time and the involvement of third parties.” 18. On 2 August 2024, WA submitted a power of attorney in favour of his counsel Mr Nicolas Zbinden. 19. Also on 2August 2024, both Parties signed the Order of Procedure of this arbitration. 20. On 2 August 2024, a hearing was held by video-conference in these proceedings. The following persons attended the hearing in addition to the Sole Arbitrator and Mr Giovanni Maria Fares, CAS Counsel: a. The Appellant b. Counsel for the Appellant - Mr Łukasz Klimczyk. c. Counsel for the Respondent – Mr Nicolas Zbinden. d. Mr Tony Jackson, AIU Deputy Head of Case Management. e. Mr Huw Roberts, AIU General Counsel. f. Prof. Martial Saugy, expert proposed by the Respondent. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 6 21. After the Parties’ opening statements, Prof. Saugy was examined, the Parties made their respective closing statements and a turn for rebuttal was also granted to them. At the outset of the hearing, the Parties confirmed that they had no objections with regard to the constitution and composition of the Panel, and at the end of the hearing all the Parties expressly declared that they did not have any objections with respect to the procedure. 22. After the hearing, the CAS Court Office, on behalf of the Sole Arbitrator, informed the Parties that (i) the Respondent had to provide by 2 August 2024 at 18.00 CEST, all correspondence concerning the Appellant’s sample that it had with WADA (if there was any correspondence other than that previously produced for the case file) and with other WADA-accredited laboratories, (ii) the Appellant was granted until 3 August 2024 at 11.00 CEST to strictly comment on the correspondence provided by the Respondent as per point (i) above, and the Respondent was granted until 2 August 2024 at 17.00 CEST to file its comments strictly focused on those of the Appellant on such matter, (iii) the Respondent was ordered to produce the results of the Appellant’s B sample analysis that were expected to be received on 2 August 2024 in the afternoon as soon as it received them and both Parties were granted until 3 August 2024 at 17.00 CEST to file their comments strictly focused on such B sample analysis’ results and (iv) all the remaining petitions made by the Appellant in his email of 1 August 2024 at 9:50 pm were dismissed, the reasons for such a dismissal to be given in the award with grounds that will be drafted in due time. 23. On 2 August 2024, the Respondent provided the correspondence between the Laboratory and other WADA accredited laboratories concerning the Appellant’s sample, as well as the Athlete’s B Sample results (which confirmed the AAF reported after the A Sample analysis). 24. On 3 August 2024, the Appellant filed his comments to the correspondence produced by WA and the B Sample results, in the following terms: “A. Correspondence: 1. During the hearing, the Respondent stated that it was simply a matter of a positive analytical result. 2. This is contradicted not only by the evidence so far, but also by additional (albeit in our view incomplete - as discussed below) correspondence from the laboratories. 3. First, an important observation - 6 WADA-accredited laboratories (not including the Warsaw laboratory) were involved in the interpretation of this analytical result, i.e.: 1) Institute of Biochemistry - German Sport University Cologne 2) DoCoLab Universiteit Gent-UGent 3) Institute of Doping Analysis and Sports Biochemistry (IDAS) – Dresden CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 7 4) Drug Control Centre King’s College London 5) INRS Centre Armand-Frappier Santé Biotechnologie 6) Seibersdorf Labor GmbH Doping Control Laboratory 4. None of them were able to help - they did not have the knowledge, the experience or the ability to carry out such analyses. This shows that if the Athlete’s sample had been sent to another laboratory for analysis, we would not have present case (this is also a reason for lifting the Provisional Suspension - it is clearly unfair to maintain it during proceedings in which Athlete will contest that the detected metabolite is actually a Prohibited Substance). 5. Beside that reply from Mr Tiia Kuuranne dated 28 June 2024 confirm position expressed by Athlete and his expert Dr Kwaśnica, i.e: If I have understood correctly, the metabolite is not a cathinone derivative and in the absence of the parent compound, I would be very cautious in interpreting the results. 6. The above confirms that the metabolite detected by another director of a WADA-accredited laboratory was determined not to be a metabolite of a Cathinone derivative (which undermines Prof. Saugy’s position) and at the same time indicates that in the absence of a parent compound the laboratory should be very cautious in interpreting the result (i.e. the matter is not as obvious as the WA attorney claims). 7. There is therefore no doubt that in this case the Warsaw laboratory (due to the fact that this was the first time this type of substance had been detected and in view of the information received from other WADA-accredited laboratories) should request a second opinion based on Article 5.3.8.1 of the ISL or report the result as an Atypical Finding. 8. This is confirmed by the opposing opinions and positions on the matter - on the one hand, Prof. Saugy’s opinion that this metabolite is unlikely to be a metabolite other than Pentendrone or PVP, which contradicts the position of the Director of the Switzerland accredited by WADA laboratory, who states that this metabolite is not a derivative of cathinone, and, on the other hand, he agrees with the metabolism of the substance as presented by Dr Kwaśnica (but dispute result of such process). 9. Metabolism takes place in two steps: 1) reduction of the ketone group (c=0) in the pentahedron to a hydroxyl group (oh); 2) NB delacylation, i.e. removal of the sub-satellite (in this case the methyl group - ch3) from the nitrogen (nitrogen - i.e.: n). 10. Effect would be the same if we were dealing with a compound like metabolite detected in the Athlete’s sample, but with a group (of some kind) attached to the nitrogen. Then there will be no reduction step - because there is nothing to reduce - but there will be an n-delacylation step and as a result our metabolite will be formed, but such a substance (with a hydroxyl group and not a ketone group) should be considered an analogue of Catine (more than Cathinone). 11. There is no any supportive evidence why Prof. Saugy states’ that the detected metabolite is exclusively related to the ingestion of Pentedrone or PVP (or another unidentified cathinone CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 8 analogue), because (from above email from the Director of the Switzerland laboratory and dr Kwaśnica opinion) it could just as well be the result of the ingestion of an N-alkyl derivative of 1- phenyl-1hydroxy pentane - a Catine analogue (not Cathinone analogue). The expert’s categorical opinion was not supported by any factual arguments, but in addition, the expert agreed that the metabolism of this type of compound proceeds through an n-dealkylation step (disconnection of substituents at the amino group), which leads to the formation of the detected metabolite. His conclusion seems therefore illogical (this is right now not only confirmed by Dr Kwaśnica, but also opinion of Ms. Kuuranne). 12. The publication referred to by the experts in the email correspondence Testing for Designer Stimulants: Metabolic Profiles of 16 Synthetic Cathinones Excreted Free in Human UrineJournal of Analytical Toxicology, Volume 38, Issue 5, June 2014, Pages 233-241 – it shows besides the fact that the detected substance is indeed a metabolite of Pentedrone , the presence in the urine sample of Pentedrone itself (or the so-called Parent Compound- PC), but also of another metabolite of it (according to the indicated metabolic pathway) - i.e. Norpentedrone. Thus, the expert’s quibbles about the absence of Parent Compound in the urine of the Athlete are not entirely true, because at 513 ng/mL PC should be detected (or its other metabolite, Norpentedron – as indicated in the publication referred in the email correspondence). 13. Regarding the issue of the incompleteness of the forwarded correspondence, we point out two issues that need to be clarified/completed by WA and/or the Laboratory: 1) in email dated 26 June 2024, Ms Dorota Kwiatkowska only refers to a “pasted” message from Mr Guenter Gmeiner of the Seibersdorf laboratory. In this regard, WA was obliged to provide the complete correspondence regarding the sample, and from this email, it appears that there is an additional email (reply) from Mr Gunter Gmeiner, which was not provided in its entirety. 2) in email dated 28 June 2024, Ms Dorota Kwiatkowska wrote: “We received an answer that we can conclude the presence of this prohibited substance in the sample”. In this regard, we also request that the WA and/or Laboratory be obliged to provide this answer which, in the opinion of the Laboratory, should decide whether the result should be considered as AAF. 14. These points are extremely relevant and perfectly illustrate what the Athlete has been pointing out all along about the current process - we have a compound that the laboratory has detected for the first time, the laboratory doesn’t really know what it is or where it might have come from in the Athlete’s sample (we have contradicts opinion is it metabolite of Cathine analogue, Cathinione analogue or maybe some different substance which is similar), tries to get confirmation, but no one really confirms the result, with the final decision from the Laboratory (instead of taking action in accordance with the ISL to clearly verify the result, such as obtaining a second opinion and/or reporting an Atypical Finding for further verification) being that it is AAF, and shifting the burden of proof to the Athlete. 15. This is precisely the reason for lifting the Provisional Suspension - in the totality of the circumstances of this case (emails about all clean results; reporting a substance that does not exist and then claiming it is a trade name; the lack of sufficient knowledge and experience of CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 9 WADA-accredited laboratories in detecting similar compounds; and finally, the shifting of the burden of proof to Athlete with its limited access to entire documents relevant to this case (example: the Athlete has not received the email correspondence between the laboratories that he requested since the date of the decision until yesterday, i.e. he lost another two weeks to obtain the email correspondence between the laboratories that he requested from the very beginning), before such an important competition as the Olympic Games), it is definitely not fair to uphold the Provisional Suspension. B. Result of the B sample: 16. The Respondent has taken the position that the result of Sample ‘B’ is not relevant for the purposes of this case, and we would be surprised to find a different position right now. 17. However, in our view, the result of Sample ‘B’ itself only confirms Athlete’s previous position - Laboratory again reported the presence in B sample of a compound that does not exist - PENTENDRONE NOREPHEDRINE METABOLITE (even though Laboratory is already aware of the allegations made in this regard, they continue to make the incorrect designation in the test report). 18. Consequently, Athlete fully maintains his previous position regarding “A” sample, also with regard to “B” sample.” 25. Also on 3 August 2024, the Respondent filed its comments to those of the Appellant as per the CAS Court Office letter of 2 August 2024, in the following terms: 1.1. “Mr Klimczyk argues that the Athlete’s Sample would not have tested positive if it had been sent to a different WADA-accredited laboratory, and that this makes it unfair to impose the Provisional Suspension. 1.2. Whilst the Athlete might feel that this is unfortunate for him, it is most certainly not unfair. It ignores the particular problem of cathinone analogues acknowledged to exist in Poland in the scientific literature (see footnote 4 of World Athletics Answer Brief)1 and therefore the particular reason why the WADA-accredited Laboratory in Warsaw has the capability and experience to detect 1-phenyl-1-hydroxy-2-aminopentane (the pentedrone norephedrine metabolite). 1.3. Mr Klimczyk asserts based on an email from Prof. Kuuranne on 27 June 2024 that “the metabolite detected […] was determined not to be a metabolite of a Cathinone derivative (which undermines Prof. Saugy’s opinion)”. With all due respect, this is not what Prof. Kuuranne said: what she said is that the metabolite itself is not a cathinone analogue, i.e. a cathinone structure (which is undisputed). In her e-mail attached to this letter, Prof. Kuuranne confirms that Mr Klimczyk’s interpretation is incorrect: more particularly, she states that she was not referring in her comment to metabolism, but to chemical structure, and confirms that, although the metabolite does not have a cathinone structure, it may be a metabolite of a cathinone analogue. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 10 1.4. On this key issue, it is undisputed between the parties that 1-phenyl-1-hydroxy-2- aminopentane is a metabolite of pentedrone, a cathinone analogue. Even the Athlete’s expert, Dr Kwaśnica, accepts this in specific terms: “In the case of pentedrone, it leads to the production of 1 - phenyl -1 -hydroxy-2 -aminopentane (CAS 64037 -35 -0)”. 1.5. Mr Klimczyk’s argument that the Warsaw laboratory should request a second opinion is also wrong. Article 5.3.8.1 of the ISL places no obligation upon the Warsaw Laboratory to do so and the Warsaw Laboratory did not consider it needed to in this instance. 1.6. In any event, the Warsaw Laboratory received clear instructions from WADA in its e-mail of 28 June 2024 at 13:54 as to the requirements to report an Adverse Analytical Finding. The Warsaw Laboratory responded by confirming that everything was clear (from that e mail) and subsequently reported the Adverse Analytical Finding. Mr Klimczyk has not demonstrated any criteria that has not been established to report the Adverse Analytical Finding and both Prof. Saugy and Prof. Olivier Rabin, WADA Senior Director, Science & Medicine, confirm that the Adverse Analytical Finding was properly reported. 1.7. Mr Klimczyk’s continued attempts to create confusion where there is none are unattractive. There is no “doubt” with the analysis. It is for the Athlete to establish a departure which could reasonably have caused the Adverse Analytical Finding, and he certainly has not done that. 1.8. Further, Mr Klimczyk was granted a deadline to “strictly comment on the correspondence provided”. However, and unsurprisingly, he has taken the opportunity to file additional submissions in respect of Prof. Saugy’s evidence at para. 9-12. The place to make these submissions was at the hearing yesterday. It was Mr Klimczyk’s choice not to question Prof. Saugy on such matters yesterday, as it was not to call his own expert to give evidence. His attempt to have new scientific submissions admitted through the back door is to be resisted and World Athletics submits that these submissions should therefore be disregarded. 1.9. In any event, World Athletics has liaised with Prof. Saugy on these matters, who has confirmed that the new submissions made by Mr Klimczyk are not only unsupported by any evidence but remain fundamentally wrong: as Prof. Saugy explained at the hearing yesterday, 1-phenyl-1-hydroxy-2-aminopentane has 11 carbon atoms whereas cathine has only 9 carbon atoms. Prof. Saugy has confirmed that cathine analogues (like cathine) contain only 9 carbon atoms. Therefore, it remains impossible for 1-phenyl-1- hydroxy-2 aminopentane to come from cathine or a cathine analogue, because cathine has only 9 carbon atoms whereas 1-phenyl-1-hydroxy-2-aminopentane has 11 carbon atoms (and carbon atoms cannot be created from thin air). 1.10. Prof. Saugy also explained at the hearing yesterday that it is not unusual at all to detect only a metabolite (and not the parent compound), which will always depend on the timing of the ingestion (he cited by way of example where you typically see the metabolite ritalinic acid but not the parent compound, methylphenidate). The Warsaw Laboratory has confirmed that it does not test for norpentedrone, so the point advanced about the absence of this metabolite in the Athlete’s Sample being indicative of the source being something other than a cathinone analogue goes nowhere. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 11 1.11. World Athletics notes the new request for documents made by Mr Klimczyk. In the interest of time, and to avoid fruitless debate, World Athletics has liaised with the Warsaw Laboratory and has obtained a copy of the e-mail exchanged with Dr Gmeiner (enclosed). 1.12. Finally, Mr Klimczyk misquotes the e-mail from Dr Dorota Kwiatkowska of 28 June 2024, which states as follows: “Eventually, we got a reply that we may conclude the presence of this prohibited substance in the sample.” 1.13. The reference to “a reply” is to the e-mail that Dr Kwiatkowska received from WADA on 28 June 2024 at 13:54. 1.14. In the end, as explained at the hearing, the matter is simple: the metabolite of a prohibited substance has been correctly identified, and this is sufficient proof of an ADRV. The result of the Athlete’s ‘B’ Sample has now confirmed that of the ‘A’. The Athlete has not come up with anything to challenge this, except smoke and speculation. 1.15. In the circumstances, the Athlete has not established “no reasonable prospect of the violation being upheld”, quite the contrary. There is also no basis to claim that the Provisional Suspension is “clearly unfair” in the circumstances.” 26. Prof. Kuuranne’s email produced by WA with its submissions of 3 August 2024 reads in the pertinent part as follows: “Sharing of specific details of analytical methods and disseminating information regarding behavior of analytes is part of laboratory compliance requirements for WADA accredited laboratories (ISL, Annex A, Code of ethics for laboratories). I therefore answered the question on the basis of my own experience and knowledge as follows: “If I have understood correctly, the metabolite is not a cathinone derivative and in the absence of the parent compound, I would be very cautious in interpreting the results. Is this also the metabolite that is shared with PVP?” To avoid any misinterpretation of the wording, I would like to emphasize the parts highlighted in colors: • The identified substance does not have a cathinone structure. Respectfully, my comment is not about metabolism but about the structure of the identified compound, and does not discuss the origin of the compound. Therefore, respectfully, the interpretation of my response as “a metabolite detected by the Warsaw laboratory was not a metabolite of a Cathinone derivatuve” is incorrect. Biotransformation of a ketone group (=O) to secondary alcohol (-OH) is a common metabolic pathway and consequently, the identified substance may be a metabolite of a cathinone derivative (analogue), even though it no longer has this structure […] CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 12 • Remark on the absence of parent compound was made to discuss the potential origin (e.g. administered compound) of the identified substance (metabolite) between the laboratories, as the same metabolite is observed after the administration of e.g. pentedrone and a-PVP, which both are cathinone analogs. For clarification, in this context my wording, “derivative” is a synonym for “analog”, i.e. substances that share the same chemical structure. I hope that these details will assist in clarifying the context of my response to Warsaw laboratory.” 27. On 4 August 2024, the CAS Court Office informed the Parties that the requests made by the Appellant in paragraph 13 of his letter of 3 August 2024 were dismissed for reasons that would be provided in the award and notified them the operative part of the award. IV. SUBMISSIONS OF THE PARTIES 28. The following summary of the Parties’ positions is illustrative only and does not necessarily comprise each contention put forward by them. However, in considering and deciding upon the Parties’ claims, the Sole Arbitrator has carefully considered all the submissions made and the evidence adduced by the Parties, even if there is no specific reference to those submissions in this section of the Award or in the legal analysis that follows. A. THE APPELLANT 29. The Appellant, in his Statement of Appeal serving as Appel Brief, made the following prayers for relief: A. “In principal 120. The Athlete hereby respectfully requests the CAS to issue a decision holding that: 1) the request to lift an Optional Provisional Suspension is accepted; 2) the Optional Provisional Suspension imposed on Athlete is lifted; 3) the Athlete is eligible to compete (especially during OG 2024) during anti-doping proceedings; 4) that the Respondent shall bear the costs of the arbitral proceedings and contribute an amount to the legal costs and other expenses of the Athlete incurred in connection with the proceedings of the Athlete regarding to Rule R64.5 of the Code; 5) that the Respondent shall bear the additional costs of the proceedings which occur due to the proceedings before the AIU. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 13 B. In alternative (request for provisional measure) (i) Request: 121. If it is not possible for CAS to hear the Appeal and issue a decision by 4 August 2024 (day before scheduled day of departure for Paris), the Athlete will then make an alternative request for a provisional measure for the duration of the proceedings (request for provisional measure), with the following reasoning being equally justified for the purpose of lifting the OPS. 122. The Athlete hereby submit a request for provisional measure in the form of stay of the appealed decision 123. The Athlete hereby respectfully request that the President of the CAS Division, prior to the transfer of the Panel or Sole Arbitrators and base (sic) on this application, make an order for provisional measure and rules as follows: 1) the request of the Athlete for stay the appealed Decision rendered by the AIU in the matter of Mr. Norbert Kobielski is granted; 2) that the appealed Decision does not cause legal effects (especially during OG 2024), at least until the end of these proceedings and issuance of final awards on merits; 3) that the costs of the order will be determined in the final award or in any decision terminating the procedure. or 124. The Athlete hereby respectfully request that the Panel and/or Sole Arbitrator, make an order for provisional measure and rules as follows: 1) the request of the Athlete for stay the appealed rendered by the AIU in the matter of Mr. Norbert Kobielski is granted; 2) that the appealed Decision does not cause legal effects on the Athlete, and that the Athlete is eligible to compete with immediate effect (especially during OG 2024), at least until the end of these proceedings and issuance of final award on merits; 3) that the costs of the order will be determined in the final award or in any decision terminating the procedure.” 30. The Appellant’s submissions, in essence, may be summarized as follows: - - The Optional Provisional Suspension imposed by the AIU under Rule 7.4.2 of the WA ADR should be lifted in accordance with Rule 7.4.4 a), b), and e) of the WA ADR. Rule 7.4.4 a) and b) of the WA ADR The Optional Provisional Suspension is based on the detection in the Appellant’s sample of a substance (“Pentedrone Norephedrine Metabolite”) that does not exist, as confirmed by the expert opinion from Dr. Andrzej Kwasnica. Dr. Kwasnica affirms that “Pentedrone Norephedrine Metabolite” is not a recognized compound in chemistry. Pentedrone and norephedrine are chemically distinct substances, and there is no known CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 14 metabolite that combines elements of both. Furthermore, these substances do not share common metabolites. Therefore, the suspension should be lifted based on this. - - - - - Dr. Kwasnica further identified that the substance detected by the Laboratory could correspond to “1-phenyl-1-hydroxy-2-aminopentane” (CAS 64037-35-0), a compound that shares structural similarities with norephedrine, a substance included in WADA’s Monitoring Program but not prohibited. Given that the Laboratory did not detect the substance pentedrone itself, it cannot be conclusively determined that the detected substance is attributable to the ingestion of pentedrone. This calls into question the Laboratory’s conclusion that the substance detected is a metabolite of pentedrone. Instead, the detected substance may be related to a permitted substance. Therefore, this potential misidentification also justifies the immediate lifting of the Optional Provisional Suspension. There is evidence in the case indicating that the Laboratory itself expressed doubts regarding the AAF. Correspondence between the Laboratory and WADA reveals uncertainty about whether the detected substance indeed constituted an AAF. The Laboratory sought clarification from WADA, which responded that it could not confirm the validity of the Laboratory’s analytical result and recommended further consultation with other WADA-accredited laboratories. WADA’s correspondence did not confirm that “Pentedrone Norephedrine Metabolite” is a cathinone analogue, nor did it provide a definitive validation of the Laboratory’s result. WADA clarified that it could not guide the Laboratory on how to interpret or report their findings beyond what is established in WADA’s rules. Despite this, the Laboratory reported the AAF based on its interpretation. Communications between the Laboratory and other WADA-accredited laboratories revealed that some laboratories had not encountered this compound before or did not test for pentedrone, further complicating the certainty of the AAF. The lack of consensus and the non-detection of pentedrone itself suggest that the finding should have been classified as an Atypical Finding, which would have required further investigation. An email from a European Athletics official to the competition organizer initially stated that all samples from the event, including the sample in question, were negative. This was later explained by the AIU as a communication error, but the initial statement raises concerns about the accuracy of the reported findings. In the event that the AIU or the Laboratory claim that a different substance was detected in the sample -whether it be a metabolite of pentedrone known under a different name or a result of a communication error- it is necessary to prove beyond reasonable doubt that the sample contained such a substance. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 15 - - - - The circumstances of the case require submitting all relevant Standard Operating Procedures (“SOP”) documents and considering the analysis of the B sample at another WADA-accredited laboratory, at the expense and risk of the AIU, as permitted by the International Standard for Laboratories (“ISL”). Furthermore, a thorough verification is required to determine whether the detected metabolite indeed originated from pentedrone and to assess the validity of not having a specified decision limit for cathinone analogues. These actions require additional information, cooperation, and time, which is currently challenging given the lack of access to necessary documents and the imminent OG 2024. This also justifies lifting the Optional Provisional Suspension immediately. Rule 7.4.4 e) of the WA ADR The Athlete would face irreparable harm if the Optional Provisional Suspension was maintained, as he would lose the opportunity to participate in the OG 2024. This risk is not solely due to the AAF but also because of delays in the doping control process that are not attributable to the Athlete. The sample was collected on 26 May 2024 and delivered to the Laboratory on 29 May 2024, but the result was not disclosed to the Athlete until 3 July 2024, a delay of 35 days which violates the ISL, that mandates that the result is disclosed within 20 days. Had the results been disclosed on time, the Athlete could have taken necessary steps to investigate and defend his case before the OG 2024. The delay in this case negatively impacted the Athlete’s ability to defend himself and could justify the lifting of the Optional Provisional Suspension. In addition, the detected substance is prohibited only during the “In-Competition” period, meaning its use outside this period is permissible and carries no consequences under the WA ADR. The “In-Competition” period, as defined by the WA ADR, begins at 23:59 p.m. on the day before the competition. In this case, the anti-doping control occurred at 20:25 on 26 May 2024, so the “Out-of-Competition” period extended until 23:58 on 25 May 2024. Given the low concentration of the detected substance, which is significantly lower than the decision limits for other substances in the same group, and considering the timing of its potential ingestion, it is more likely that the substance entered the Athlete’s system during the “Out-of-Competition” period, when its use was permitted. This conclusion is supported by the AIU’s opinion, which indicated that the detected concentration corresponds to a level measurable within approximately 24 hours after the intake of a “pharmacologically active” dose of a cathinone analogue. Additionally, the substance in question is no longer present in the Athlete’s body, confirming that it had no impact on his current performance capabilities. The Athlete obtained his OG 2024 qualification during the Diamond League Finals in Eugene on 18 September 2023, where he was subject to anti-doping control that did not reveal the presence of any prohibited substance. The Athlete secured such qualification in full compliance with anti-doping rules. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 16 - - The number of anti-doping cases involving cathinone analogues, including the detected substance, is marginal, further demonstrating that the substance in question is rarely detected and is not commonly used in sport. The Athlete has demonstrated, on the balance of probabilities, that the circumstances are exceptional, and that maintaining the Optional Provisional Suspension would cause irreparable harm, making it unfair to continue the suspension. B. THE RESPONDENT 31. In its Answer, the Respondent requested an award be rendered in the following terms: I. II. III. “The appeal filed by Norbert Kobielski is dismissed; The arbitration costs (if any) shall be borne by Norbert Kobielski; World Athletics is granted an award on costs.” 32. The Respondent’s submissions, in essence, may be summarized as follows: - - - - The Athlete did not establish any of the grounds under Rule 7.4.4 of the WA ADR to avoid the imposition of the Optional Provisional Suspension. Regarding the Appellant’s argument that the detected metabolite “does not exist,” it shall be noted that “Pentedrone Norephedrine Metabolite” is simply the commercial name of the certified reference material used by the Laboratory. The exact chemical name is 1-phenyl-1-hydroxy-2-aminopentane, a metabolite of pentedrone and/or α PVP, as confirmed by Prof. Martial Saugy. The fact that the reference material includes “Norephedrine” in its name does not imply chemical similarity with norephedrine. Prof. Saugy pointed out that norephedrine, composed of 9 carbon atoms, cannot metabolize into 1-phenyl-1-hydroxy-2 aminopentane, which has 11 carbon atoms. The same applies to cathine. Under Rule 3.2.1 of the WA ADR, analytical methods or decision limits approved by WADA are presumed scientifically valid. The burden is on the Athlete to prove that the method used by the Laboratory was not scientifically valid in identifying a prohibited substance. There is no uncertainty regarding the AAF. Rule 3.2.4 of the WA ADR presumes that WADA-accredited laboratories conduct sample analysis and custodial procedures according to the ISL. The Athlete must demonstrate a departure from these standards that could have reasonably caused the AAF, which he failed to do in casu. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 17 - - - - The Athlete’s claim that the Laboratory should have included communications with other laboratories as per Article 5.3.8.1 of the ISL is incorrect. This provision only applies to requests for second opinions before reporting an AAF. The Laboratory’s communications with WADA were about gathering feedback on new psychoactive substances, not about seeking a second opinion before reporting the AAF. Rule 4.3 of the WA ADR states that WADA’s decisions regarding the Prohibited List, including the classification of substances, are final and cannot be challenged by an Athlete. Therefore, the Athlete’s argument regarding the lack of a decision limit for cathinone analogues is without merit. The Athlete refers to lit. (b) of Rule 7.4.4 of the WA ADR in his submission to try to ground his case, but he does not explain its relevance to his appeal. Since the violation is established and the Athlete has not proven the source of the Prohibited Substance, he has not demonstrated a “strong arguable case” that no period of Ineligibility is likely to be imposed. The Athlete has also not provided any basis for reducing the standard two year period of Ineligibility. The Athlete relies on lit. (e) of Rule 7.4.4 of the WA ADR to ground his case, by citing alleged delays in reporting the AAF, the fact that the prohibited substance is banned only In-Competition, the absence of the substance in his body, his testing during the competition in which he qualified for the OG 2024, and the limited number of cathinone analogue positive results. However, none of these circumstances make it “clearly unfair” to impose a Provisional Suspension in this case: (a) the alleged delay in reporting the AAF is not substantiated, as Article 5.3.8.4 of the ISL states that the Laboratory “should” report results in ADAMS within 20 days, but this is a guideline, not a mandatory requirement; and (b) the fact that (i) the substance is prohibited only In Competition, (ii) the substance is no longer in the Athlete’s body, and that (iii) the Athlete was tested during his qualification for the Olympic Games without an AAF being reported is also irrelevant in terms of unfairness. V. JURISDICTION 33. Article R47 of the CAS Code provides as follows: “An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of the said sports-related body”. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 18 34. Rule 7.4.5 of the WA ADR reads as follows: “Appeal against a Provisional Suspension: Where the Integrity Unit imposes (or does not lift) a Provisional Suspension after a Provisional Hearing, the Athlete or other Person has a right to appeal the decision to CAS in accordance with Rule 13 (save that there will be no right to appeal a decision not to eliminate a Provisional Suspension on account of the Athlete’s assertion that the violation is likely to have involved a Contaminated Product), provided however that the Provisional Suspension shall remain in effect pending a decision by CAS on the merits of the appeal. For the avoidance of doubt, an appeal to CAS against a Provisional Suspension (or a decision not to lift a Provisional Suspension) shall not stay, delay or otherwise prevent the matter from proceeding to a hearing before the Disciplinary Tribunal in accordance with Rule 8.” 35. None of the Parties has contested the jurisdiction of the CAS in these proceedings. 36. The jurisdiction of CAS is further confirmed by the Order of Procedure duly signed by the Parties. 37. It follows from the aforementioned that CAS has jurisdiction to adjudicate and decide on the present dispute. VI. ADMISSIBILITY 38. Article R49 of the CAS Code provides as follows: “In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against.” 39. Rule 13.6.1 of the WA ADR reads, in its pertinent part, as follows: “13.6.1 Appeals to CAS (a) The time to file an appeal to the CAS will be thirty (30) days from the date of receipt of the reasoned decision by the appealing party. Where the appellant is a party other than World Athletics or WADA, to be a valid filing under this Rule 13.6.1, a copy of the appeal must be filed on the same day with World Athletics.” 40. The Appealed Decision was notified to the Parties on 23 July 2024. The Statement of Appeal was filed on 28 July 2024, within 30 days of the date of the Appealed Decision. 41. The Respondent has not contested the admissibility of the appeal in any way. 42. It follows that the appeal is admissible. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 19 VII. APPLICABLE LAW 43. Article R58 of the CAS Code provides the following: “The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”. 44. Both Parties have referred in their submissions to the application of the WA ADR, and the Sole Arbitrator agrees that this set of rules is the one applicable to resolve this case. 45. Based on the aforementioned, the Sole Arbitrator will decide this dispute in accordance with the WA ADR. VIII. MERITS A. Preliminary issue: the dismissal of some of the Appellant’s requests made in his letter of 1 August 2024 and in his submissions of 3 August 2024 46. On 1 August 2024, the Athlete made several requests for information and documentation to the CAS, some of which were dismissed by the Sole Arbitrator by virtue of the CAS Court Office letter of 2 August 2024. Reasons for such a dismissal are given below. 47. The requests for information from the manufacturer on the certified reference material produced by WA with its Answer were rejected as in the Sole Arbitrator’s view, they were immaterial to, and irrelevant vis-à-vis, the substantive issues of the case. In accordance with Prof. Martial Saugy’s expert report produced by WA with its Answer and his declaration at the hearing, it was made clear that 1-phenyl-1-hydroxy-2 aminopentane indeed exists and is a metabolite of pentedrone and/or α-PVP, irrespective of issues of naming or nomenclature. 48. With regard to the request to be granted the right to respond Prof. Saugy’s expert report contents as made in the Athlete’s email of 1 August 2024, it is the Sole Arbitrator’s opinion that the Athlete had the possibility to bring his own expert to the hearing to rebut the considerations made by Prof. Saugy in his report, a report which by the way, consisted only of 4 pages and only addressed 5 questions (some of which were answered in one paragraph only). In any event, the Athlete voluntarily decided not to call his expert to appear at the hearing. 49. Regarding the request for stay of the Appealed Decision made by the Athlete in his letter of 1 August 2024, the Sole Arbitrator decided to dismiss it not only because the Athlete CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 20 agreed to an expedited procedure with a decision being rendered by 4 August 2024, but also because the grounds on which such request was based did not justify the stay: the Athlete had the opportunity in these proceedings to comment inter alia on (i) the B Sample analysis, (ii) the correspondence exchanged between the Laboratory and other WADA-accredited laboratories and (iii) Prof. Saugy’s report. 50. With regard to the complaint made by the Appellant in his submissions of 3 August 2024 that WA did not provide the complete correspondence regarding the Athlete’s sample as it appeared that an additional email from Mr. Günter Gmeiner existed, the Sole Arbitrator shall point out that this email was anyhow produced by WA with its submissions of 3 August 2024 and that the content of such email is coincident with the quote made of it by Dr. Kwiatkowska in her email of 26 June 2024. 51. Finally, concerning the request made by the Appellant in para.13.2 of his submissions of 3 August 2024, the Sole Arbitrator considers that the reference made by Dr. Kwiatkowska to the “reply” in her email of 28 June 2024 has to do with the email she received from Prof. Kuuranne on 27 June 2024, which had been already produced to the CAS file by WA. The Athlete failed to prove that it could reasonably refer to something different. B. The merits of the case 52. The Sole Arbitrator shall firstly note that given that a decision on the case was issued by 4 August 2024, only the Athlete’s principal requests for relief are to be entertained in this award, and not those made by the Athlete in the alternative and for the case that “it is not possible for CAS to hear the Appeal and issue a decision by 4 August 2024)”. 53. In the Appealed Decision, after conducting a Provisional Hearing in accordance with the WA ADR, the AIU imposed a Provisional Suspension on the Athlete based on Rule 7.4.2 of the WA ADR, which reads as follows: “Optional Provisional Suspensions in the case of an Adverse Analytical Finding for a Specified Substance, Contaminated Product or other Anti-Doping Rule Violations: Where an Adverse Analytical Finding is reported for a Specified Substance, Contaminated Product, or in the case of other Anti-Doping Rule Violations not covered by Rule 7.4.1, the Integrity Unit may Provisionally Suspend the Athlete or other Person pending resolution of their case, provided however that a Provisional Suspension may not be imposed unless the Athlete or other Person is given an opportunity for a Provisional Hearing either (at the election of the Integrity Unit) before imposition of the Provisional Suspension or on a timely basis after imposition of the Provisional Suspension.” 54. While Rule 7.4.2 of the WA ADR indeed allows the AIU to impose a Provisional Suspension on an athlete, Rule 7.4.4 of the WA ADR outlines the grounds under which a such Provisional Suspension may be lifted: CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 21 “Where a Provisional Suspension has been imposed (or may be imposed) in accordance with this Rule 7, the Athlete or other Person may make a written submission to the Integrity Unit showing cause why the Provisional Suspension should be lifted (or, where it has not yet been imposed, should not be imposed) by establishing that: a) the violation has no reasonable prospect of being upheld, e.g., due to a serious flaw in the case such as the Integrity Unit has no jurisdiction over the Athlete or other Person; or b) there is a strong arguable case that the circumstances are such that no period of Ineligibility is likely to be imposed; c) the violation asserted is likely to have involved a Contaminated Product; d) the violation asserted involves a Substance of Abuse and the Athlete establishes entitlement to a reduced period of Ineligibility under Rule 10.2.4(a); e) other facts exist that make it clearly unfair, in all the circumstances of the case, to impose a Provisional Suspension prior to determination of the anti-doping rule violation(s). This ground is to be construed narrowly and applied only in truly exceptional circumstances. For example, the fact that the Provisional Suspension would prevent the Athlete or other Person competing or participating in a particular Competition shall not qualify as exceptional circumstances for these purposes.” 55. Bearing the aforementioned in mind and applying it in casu, for the Provisional Suspension to be lifted, the Athlete shall establish that one of the grounds specified under Rule 7.4.4 of the WA ADR takes place. In his appeal, the Athlete relies on grounds a), b) and e) of Rule 7.4.4 WA ADR and requests the Provisional Suspension be lifted based on them. 56. For the avoidance of doubt, the Sole Arbitrator’s task in these proceedings is the determination on the occurrence or not of any of the events set out in Rule 7.4.4. WA ADR based on the facts brought to his attention and the evidence taken, and not to determine whether an ADRV has been committed by the Athlete and the potential sanction to be imposed on him. In this respect, the Sole Arbitrator shall recall and shares the following considerations made in CAS 2011/A/2479, also referred to a Provisional Suspension imposed on an athlete: “the Panel underlines that its task is not to determine whether an anti-doping rule violation has been committed by Sinkewitz and, if so, whether Sinkewitz has to be sanctioned. This duty is left for the NADA’s competent hearing body (i.e. the DIS-Deutsche Sportschiedsgericht, “DIS-SportG”) – which shall have to assess the available evidence, including expert opinions, and apply the pertinent rules. As a consequence, any decision taken by this Panel with respect to the lifting of the Provisional Suspension does not affect the different question of the existence of an anti-doping rule violation (and of an alleged disciplinary responsibility of Sinkewitz) or bind any body (including any possible CAS panel at a later stage) called to adjudicate on it.” i. Rule 7.4.4. a) of the WA ADR. The violation has no reasonable prospect of being upheld, e.g., due to a serious flaw in the case such as the Integrity Unit has no jurisdiction over the Athlete or other Person CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 22 57. The Sole Arbitrator shall start his analysis by noting that the AIU (whose jurisdiction over the Athlete has not been contested by the latter) notified the AAF to the Athlete on 3 July 2024. In this communication, the AIU inter alia mentioned that the Athlete did not have a Therapeutic Use Exemption (which has not been contradicted by the Athlete), that there was no apparent departure from the International Standard for Testing and Investigation (“ISTI”) of from the ISL that could reasonably have caused the AAF and that the AAF may result in an ADRV pursuant to Rule 2.1 and/or Rule 2.2 of the WA ADR. 58. The Sole Arbitrator shall also note that (i) in line with CAS 2011/A/2479, Rule 7.4.4.a) WA ADR makes it clear that the Athlete “bears the burden to prove that the apparent anti-doping rule violation has no reasonable prospect of being upheld: in fact, if this burden is not discharged, the provisional suspension “shall not be lifted” and (ii) in the verification of such condition, his assessment shall be limited to an evaluation of the chances of success of the case, in order to determine whether the Appellant has proved that they are not reasonable. As already mentioned above, it is not for the Sole Arbitrator to consider in these proceedings whether an ADRV has actually been committed. 59. Under this ground a) and to justify that the violation has no reasonable prospects of being upheld, the Athlete in essence (i) suggests that the metabolite identified by the Laboratory does not exist, (ii) raises the possibility that such metabolite could have resulted from the ingestion of a permitted substance rather than from a prohibited one, (iii) considers that the result of the Athlete’s sample analysis should have been classified as an Atypical Finding rather than as an AAF and (iv) insists on the need for the AIU to scientifically confirm the analytical evaluation and classification of the detected substance as an analogue of a Prohibited Substance. 60. After having analyzed the Appellant’s arguments and the evidence brought to these proceedings, the Sole Arbitrator considers that the Athlete failed to establish that the violation has no reasonable prospect of being upheld. 61. Without prejudging (as it is not the object of this proceedings to determine whether an ADRV has taken place and its consequences), the case presented by WA appears to be substantiated, and WA has contested with expert evidence the Appellant’s arguments and contentions intending to support the occurrence of ground a) of Rule 7.4.4. of the WA ADR in casu. 62. Prof. Saugy’s report produced by WA with its Answer is conclusive in stating that (i) the pentedrone norephedrine metabolite has been identified as a metabolite of Pentedrone and/or α-PVP, which are both cathinone analogues, and that the exact chemical name of this compound is 1-phenyl-1-hydroxy-2-aminopentane, (ii) 1-phenyl-1-hydroxy-2 aminopentane is composed of 11 atoms of carbons together with 1 of oxygen and 1 of nitrogen (+ 17 hydrogens), while Norephedrine (in the hypothesis presented by the CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 23 Appellant) has only 9 atoms of Carbons together with 1 of oxygen and 1 of Nitrogen (+ 13 hydrogens), (iii) the absence of pentedrone or PVP in the Athlete’s urine does not mean that the presence of the metabolite cannot be unequivocally attributable to the ingestion of these two compounds, (iv) regarding the Athlete’s ingestion of a non prohibited substance (for example Norephedrine) being the cause of the AAF, he could not agree that 1-phenyl-1-hydroxy-2-aminoheptane with 11 Carbons is a metabolite of Norephedrine and/or Cathine with only 9 Carbons in their chemical structure, and (v) if the source of the AAF was not pentedrone or PVP, it is extremely likely that the source must be another cathinone analogue. Regarding Dr. Kwasnica statement in his report that the presence of 1-phenyl-1-hydroxy-2-aminopentane in the Athlete’s urine sample may be attributable to his ingestion of any N-alkyl derivative of this substance (which are not classified as prohibited substances by WADA), Prof. Saugy mentioned that any N-alkyl derivate of 1-phenyl-1-hydroxy-2-aminopentane is a substance with similar chemical structure or similar biological effect and is therefore part of the cathinone analogues as described in the prohibited list. 63. Prof. Saugy’s declaration at the hearing was consistent with the conclusions of his report, as well as clear and convincing. 64. In addition, Dr. Olivier Rabin also agreed and confirmed Prof. Saugy’s report, and in particular stated that the AAF was properly reported and that there is no basis for the contention that it resulted from the ingestion of a non-prohibited substance. 65. Moreover, it shall be also noted that the result of the analysis of the Athlete’s B Sample confirmed the presence of the prohibited substance, and with regard to the exchange of correspondence between the Laboratory and other laboratories on pentedrone, it cannot be inferred from its content that (i) it had to do with a request for second opinion or (ii) the violation has no reasonable prospect of being upheld or (iii) for the sake of completeness, that grounds b) or e) of Rule 7.4.4 of the WA ADR are to be deemed established as regards of such correspondence. 66. The Sole Arbitrator shall also recall that, under Rule 3.2.1 of the WA ADR, analytical methods or decision limits approved by WADA are presumed scientifically valid. In this context, the burden is on the Athlete to demonstrate that the analytical method used by the Laboratory was not scientifically valid in identifying a Prohibited Substance. The Sole Arbitrator agrees with WA that the Athlete failed to meet this burden of proof. Therefore, the validity of the Laboratory’s methods is upheld. Furthermore, according to Rule 3.2.4 of the WA ADR, WADA-accredited laboratories are presumed to have conducted sample analysis and custodial procedures in accordance with the ISL. To challenge this presumption, athletes are required to demonstrate that a departure from these standards occurred and that such a departure could reasonably have caused the AAF. However, the Sole Arbitrator notes that the Athlete failed to identify any such departure and one that could have reasonably influenced the positive finding. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 24 67. Bearing the aforementioned in mind, the Sole Arbitrator finds that the Athlete failed to establish that there is no reasonable prospect of the violation being upheld, as required under ground (a) of Rule 7.4.4 of the WA ADR. ii. Rule 7.4.4 b) of the WA ADR. There is a strong arguable case that the circumstances are such that no period of Ineligibility is likely to be imposed 68. The Athlete has also invoked, in support of his request for lifting the Provisional Suspension, ground (b) of Rule 7.4.4. of the WA ADR. 69. The Sole Arbitrator shall firstly note that this ground is treated by the Athlete in his Appeal Brief jointly with ground a) referred to above, so the same considerations made in section B.i) of this award shall also apply herein. In addition, the Sole Arbitrator shall stress that the Athlete did not provide any convincing explanation as to why in this case, no period of Ineligibility would be likely to be imposed. In particular, the Athlete did not even establish the source of the Prohibited Substance found in his sample, which is a prerequisite for a No Fault or Negligence grant in accordance with the WA ADR that could lead to the elimination of the period of Ineligibility. 70. Consequently, the Sole Arbitrator concludes that the Athlete did not establish that there is a strong arguable case that the circumstances are such that no period of Ineligibility is likely to be imposed. iii. Rule 7.4.4 e) of the WADA ADR. Other facts exist that make it clearly unfair, in all the circumstances of the case, to impose a Provisional Suspension prior to determination of the anti-doping rule violation(s) 71. The Sole Arbitrator observes that the Athlete has also invoked Rule 7.4.4 e) of the WA ADR in his submissions, which pertains to the existence of “other facts” that would make it clearly unfair, in all the circumstances of the case, to impose a Provisional Suspension prior to the determination of the ADRV. 72. The Athlete has cited several specific circumstances in support of this ground: (a) alleged delays in the reporting of the AAF, for which the Athlete asserts no responsibility; (b) the fact that the prohibited substance found in his sample is banned exclusively during the In-Competition period and it is likely that it could have entered his body in an out-of competition period; (c) the absence of the substance in the Athlete’s body; (d) the fact that the Athlete was tested negative during the competition where he qualified for the Paris Olympic Games and in competitions prior and after 26 May 2024; and (e) the marginal number of positive findings involving cathinone analogues. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 25 73. In such respect, the Sole Arbitrator shall note that in accordance with Rule 7.4.4.e) WA ADR, “this ground is to be construed narrowly and applied only in truly exceptional circumstances.” 74. Taking the aforementioned into account, it is the Sole Arbitrator’s view that none of the aforementioned circumstances alleged by the Athlete, either considered individually or jointly, would make the Provisional Suspension imposed on him clearly unfair. 75. Regarding the alleged delay in reporting the AAF, the Athlete failed to demonstrate how the deviation from the 20-day period set forth in Article 5.3.8.4 of the ISL within which the reporting of the sample results “should” occur in ADAMS (even if arguendo, such deadline was considered compulsory) significantly impacted his ability to defend his “no Provisional Suspension contention” and how it would make clearly unfair to keep such suspension. The Athlete even failed to explain what he would have specifically done or which steps he would have taken to improve his defense in case the reporting of the sample results would have been received earlier. 76. Concerning the Athlete’s thesis that the prohibited substance could have entered his body in an out-of-competition period, the Sole Arbitrator finds that it has not been duly proven, so no merit shall be made to it. 77. The fact that the prohibited substance was not present in the Athlete’s body in the test made in the competition at which he qualified for the OG 2024 (back in September 2023) or in tests made before or after the one of 26 May 2024 has no relevance in terms of fairness as per Rule 7.4.4.e) of the WA ADR, as well as the fact that there are more or less cases of cathinone analogues positives worldwide. The Athlete refer to these circumstances but fails to specifically explain how or why they would render the Appealed Decision unfair. 78. Needless to say, the effect of the Provisional Suspension (preventing the Athlete from competing) does not by itself serve to invoke the fairness exception set out in Rule 7.4.4 WA ADR. As specifically mentioned in such Rule, “the fact that the Provisional Suspension would prevent the Athlete or other Person competing or participating in a particular Competition shall not qualify as exceptional circumstances for these purposes”. 79. In summary, the Sole Arbitrator concludes that the Athlete also failed to establish existence of other facts that would make it clearly unfair, in all the circumstances of the case, to impose a Provisional Suspension prior to the determination of the ADRV. CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 26 C. Conclusion 80. After a thorough review of all the evidence and arguments presented by the Parties, the Sole Arbitrator finds that the Athlete has not successfully established the existence of a valid ground under Rule 7.4.4 of the WA ADR that justifies lifting the Provisional Suspension in this case and therefore, the appeal must be dismissed. 81. The Sole Arbitrator shall however reiterate that this conclusion does not mean or imply that the Athlete has committed an ADRV, an issue that is to be determined by the competent body within the corresponding proceedings. IX. COSTS (…) CAS 2024/A/10770 Norbert Kobielski v. World Athletics – Page 27 ON THESE GROUNDS The Court of Arbitration for Sport rules that: 1. 2. 3. 4. The Appeal filed by Mr Norbert Kobielski on 28 July 2024 against the decision rendered by the Athletics Integrity Unit on 23 July 2024 is dismissed. (…). (…). All other motions or prayers for relief are dismissed. Seat of arbitration: Lausanne, Switzerland Date of notification of the operative part of the award: 4 August 2024 Date of the notification of the award with grounds: 14 May 2025 THE COURT OF ARBITRATION FOR SPORT Jordi López Batet Sole Arbitrator