Brianna McNeal, World Athletics v. Brianna McNeal, World Athletics

V. JURISDICTION OF THE CAS

164. 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”.

165. The jurisdiction of CAS is based on Rule 13.2.1 of the 2021 WA ADR that provides:

“13.2.1 Appeals involving International-Level Athletes or International Competitions. In case involving International-Level Athletes or arising from Persons participating in an international Competition, the decision may be appealed exclusively to CAS”.

166. Rule 13.2.4 of the 2021 WA ADR also provides:

“13.2.4 Cross-appeals and other subsequent appeals allowed. Cross-appeals and other subsequent appeals by any respondent named in cases brought to CAS under these Anti-Doping Rules are specifically permitted. Any party with a right to appeal under this Rule 13 must file a cross-appeal or subsequent appeal at the latest with the party’s answer to the appeal”.

167. The Panel notes that the CAS jurisdiction to decide the Appeal and Cross-Appeal is derived from Rules 13.2.1 and 13.2.4 of the 2021 WA ADR. The CAS jurisdiction is not contested by the Parties and that the Order of Procedure was duly signed without any observation or objection in relation to this matter.

168. It follows that the CAS has jurisdiction to hear the dispute and the Panel was satisfied to hear the Appeal and the Cross-Appeal together. The proceedings were conducted on this basis.

169. The Panel highlights that under Rule 13.7 2021 WA ADR:

“The decision of CAS shall be final and binding on all parties, and no right of appeal shall lie from the CAS decision, save in limited circumstances to the Swiss federal Tribunal. Subject to Rule 14.3.7, the CAS decision shall be Publicity Reported by World Athletics within 20 days of receipt”.

VI. APPLICABLE LAW

170. Pursuant to Article R58 of the CAS Code, in an appeal arbitration procedure before the CAS:

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“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”.

171. In its fight against doping, WA follows the WA ADR and the rules applicable are those in effect at the time of the facts. Since the alleged anti-doping violation occurred on 13 February 2020 and on 14 March 2020, the regulations which in principle govern the dispute are those were in force from 1 November 2019 and during the date of the facts (the “2019 WA ADR”).

172. In the meantime, a new edition of the WA ADR was approved and implemented – which came into force from 1 January 2021 (the “2021 WA ADR”). The 2021 WA ADR reflects the promulgation of the new 2021 edition of the World Anti-Doping Code (the “2021 WADA Code”).

173. Under Rule 13.9.4 of the 2019 WA ADR it is established that:

“13.9.4 In all CAS appeals involving the IAAF [WA], the CAS Panel shall be bound by the IAAF [WA] Constitution, Rules and Regulations (including the Anti-Doping Rules and Regulations). In the case of conflict between the CAS rules currently in force and the IAAF Constitution, Rules and Regulations, the IAAF [WA] Constitution, Rules and Regulations shall take precedence”.

174. Furthermore, Rule 13.9.5 of the 2019 WA ADR reads as follows:

“13.9.5 In all CAS appeals involving the IAAF [WA], the governing law shall be Monegasque law and the appeal shall be conducted in English, unless the parties agree otherwise”.

175. The Panel highlights that an exception to the principle of application of the law at the time of the facts exists if lex mitior doctrine applies. The principle of lex mitior occupies a central place in sports law and establishes that the “set of rules most favourable as a whole is to be applied” (CAS 2015/A/4005 para.115; and CAS 2020/A/6755 para. 51). The principle of lex mitior is enshrined in Rule 1.7.2 of the 2021 WA ADR (and was already similarly established in Article 21.3 of the 2019 ADR). This rule establishes that:

“1.7.2 These Anti-Doping Rules do not apply retroactively to matters pending before the Effective Date, save that:

(…)

(b) Any anti-doping rule violation case that is pending as of the Effective Date or is brought after the Effective Date but based on an anti-doping rule violation that occurred prior to the Effective Date, shall be governed by the substantive anti-doping rules in effect at the time the alleged anti-doping rule violation occurred and not by the substantive antidoping rules set out in these Anti-Doping Rules, unless the hearing panel determines that the principle of lex mitior appropriately applies under the circumstances of the case, and with respect to

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procedural matters by (i) these Anti-Doping Rules for anti-doping rule violations committed on or after 3 April 2017, and (ii) the 2016-2017 IAAF Competition Rules for anti-doping rule violations committed prior to 3 April 2017. For the purposes of this Rule, the retrospective periods in which prior violations can be considered for the purposes of multiple violations under Rule 10.9.4 and the statute of limitations set out in Rule 18 are procedural rules, not substantive rules, and should be applied retroactively, along with all the other procedural rules in these Anti-Doping Rules (provided however that Rule 18 will only be applied retroactively if the statute of limitations period – whether the original one or as extended by subsequent rules – has not already expired by the Effective Date)”.

176. The Panel accepts and concurs that there is no discretion on the application of the lex mitior principle once it is found that the case appropriately falls within its scope.

177. It is not in dispute that 2021 WA ADR only came into effect for cases where the ADRV occurred after 1 January 2021 – Rule 1.7.1 and 1.7.2 2021 WA ADR. However, during the discussion before the WA Disciplinary Tribunal, both Parties appeared to agree that the 2021 WA ADR was more favourable to the Athlete and that, as such, these rules would apply.

178. Despite the above, in the present proceedings, the Athlete questioned whether the 2021 WA ADR is more favourable to her. Nevertheless, neither in the Athlete’s Submissions, nor in the Athlete’s oral pleadings, was any argument presented about the fact that the 2021 WA ADR rules are less favourable to the Athlete, as established in the Appeal Decision.

179. As the Athlete underlined during the proceedings before the WA Tribunal, the Panel concurs that the 2021 WA ADR rules are more favourable to the Athlete. Lex mitior principle is relevant and applicable when and if – as it is the case of these proceedings – the new rules (i) provide for a reduced sanction; and/or (ii) redefine the disciplinary offense. The 2021 WA ADR offers more favourable terms to athletes with respect to the imposition of sanctions for violations of Tampering offences. Equally, the new rules afford considerably greater flexibility in connection with the consequences to be drawn from a finding of multiple anti-doping rule violations, which is the case, since the Athlete has already committed another ADRV in 2019 and, if the ADRV disputed under these procedures is confirmed, that will be the Athlete’s second violation. Therefore, it is the Panel’s view that 2021 WA ADR is more favourable to the Athlete and that she must benefit from all its provisions.

180. In light of the above and considering that the applicable law is not in dispute, the Panel concludes that the present matter is governed by the 2021 WA ADR and, on a subsidiary basis, the Monegasque Law.

VII. ADMISSIBILITY

181. Article R49 of the CAS Code provides as follows:

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“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”.

182. The time limits of Article R49 of the CAS Code do not apply, because the 2021 WA ADR specifically set a time limit for the filling of an appeal and a cross-appeal. The relevant 2021 WA ADR rules are the following:

1. Rule 13.6 of the 2021 WA ADR governing time for filing appeals provides the following:

“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 the World Athletics.

(…)”.

2. Rule 13.2.4 of the 2021 WA ADR governing time for filing a cross-appeal provides the following:

“13.2.4 Cross-appeals and other subsequent appeals allowed. Cross-appeals and other subsequent appeals by any respondent named in cases brought to CAS under these Anti-Doping Rules are specifically permitted. Any party with a right to appeal under this Rule 13 must file a cross-appeal or subsequent appeal at the latest with the party’s answer to the appeal”.

183. The Appealed Decision was notified to the Parties on 21 April 2021.

184. The Athlete appealed against the Appealed Decision by way of a Statement of Appeal and Appeal Brief both dated 20 May 2012, i.e within the 30 days deadline.

185. WA filed its Cross-Appeal against the Appealed Decision by way of a Statement of Appeal and Appeal Brief on 17 June 2021, i.e. on the date that the WA’s Answer was filed. Therefore, the Cross-Appeal was filed within the established deadline of Rule 13.2.4 of the 2021 WA ADR.

186. The Panel notes that the admissibility of the Appeal and Cross-Appeal are not contested by the Parties and that the Order of Procedure was duly signed without any observation or objection in relation to this matter.

187. It follows that the Appeal and Cross-Appeal are admissible.

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VIII. MERITS

(A) Introduction

(A.1) What is this case about?

188. This case is essentially about a Tampering accusation made by WA against the Athlete which was decided, at first instance, by the WA Disciplinary Tribunal. Although this case concerns the breach of ADVs, this is not a case about the presence or use of prohibited substances.

189. The Athlete failed to make herself available to be tested by a DCO on the morning of 12 January 2020, between 6:00 and 7:00 AM. When notified by the AIU in order to provide an explanation for her Missed Test, the Athlete sent the First Medical Note to the AIU and alleged that she failed to wake up due to the unpredictable effects of the medication she took on the previous day for the first time, following a “surprise” medical procedure.

190. The AIU suspected that the First Medical Note had been altered and asked for further evidence from the Athlete, which she provided in the form of two additional medical notes (the Second and Third Medical Notes). Once again, the AIU did not deem such documents to be originals.

191. The Athlete then provided the Medical File when asked to do so by the AIU and, upon being called for an interview in August 2020, confessed that she had indeed changed the dates of the Medical Notes from 10 January 2020 (the real date) to 11 January 2020 (the false date).

192. On 13 January 2021, the AIU charged the Athlete with a Tampering violation under the provision of Article 2.5 2019 WA ADR/WADC and, on 21 April 2021, a decision was issued by the WA Disciplinary Tribunal imposing a 5-year period of Ineligibility on the Athlete due to a Tampering ADRV which was the Athlete’s second violation of anti-doping rules.

193. The present procedure is a consequence of the Appeal lodged by the Athlete against the decision of the WA Disciplinary Tribunal and of the Cross-Appeal lodged by the WA also against that decision. Both appeals were consolidated into one single procedure and will be simultaneously decided due to the commonalty of issues at stake.

(A.2) The Burden of Proof, the applicable standard and the evaluation of the evidence

194. Considering the disciplinary nature ADRV cases, the Panel shall determine first the burden of proof, the applicable standard of proof and the evaluation of the evidence presented to it in order to be able to proceed with the analysis of the merits of the dispute.

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(A.2.1) The burden of proof

195. The burden of proof has to be ascertained in accordance with Rule 3.1 2021 WA ADR, which states that:

“The Integrity Unit or other Anti-Doping Organisation will have the burden of establishing that an antidoping rule violation has occurred”.

196. It is the Panel’s opinion that the burden of proof to demonstrate that the Athlete committed a Tampering ADRV lies with WA. Naturally, the party that bears the burden of proof in relation to certain facts is obliged to submit these to the court.

197. It is the Panel’s duty to verify whether WA has discharged this burden by proving the facts it alleged regarding the involvement of the Athlete in the tampering conduct. However, the Panel stresses that the Athlete has an evident interest in proving and convincing the Panel of the contrary.

(A.2.2) Standard of proof

198. According to Rule 3.1 2021 WA ADR:

“(…) The standard of proof will be whether the Integrity Unit or other Anti-Doping Organisation has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation that has been 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 or other Person alleged to have committed an antidoping rule violation to rebut a presumption or establish specified facts or circumstances, except as provided in Rules 3.2.4 and 3.2.5, the standard of proof will be by a balance of probability”.

199. The comment to Rule 3.1 2021 WA ADR also sheds some light into what the standard of proof “comfortable satisfaction” is considered to be:

“[Comment to Rule 3.1: This standard of proof required to be met by the Integrity Unit is comparable to the standard that is applied in most countries to cases involving professional misconduct]”.

200. CAS Jurisprudence is well acquainted with the “comfortable satisfaction” of the Panel standard of proof and the formula used in Article 3.1 2021 WA ADR (“greater than a mere balance of probability but less than proof beyond reasonable doubt”) is similar to the jurisprudence’s findings. In fact, it has been described as “a kind of sliding scale, based on the allegations at stake: the more serious the allegation and its consequences, the higher certainty (level of proof) the Panel would require to be ‘comfortable satisfied” (CAS 2014/A/3625, para. 132).

201. Despite having to bear “in mind the seriousness of the allegation that has been made”, the standard of proof itself does not vary. As established in CAS 2017/A/5732, para. 679, “(…) the standard

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remains constant, but inherent within that immutable standard is a requirement that the more serious the allegation, the more cogent the supporting evidence must be in order for the allegation to be found proven”.

202. As such, the Panel concludes that the applicable standard of proof is that of “comfortable satisfaction”. In this context, the assessment of the evidence contributes significantly to the decision-making, the Panel needs to have strong evidence that certain facts occurred in a given manner and the evidence also has to satisfy the Panel in the same sense. The relevant circumstances of the case assessed individually and/or combined, commonly known as the context, are major elements to reach this conclusion.

(A.2.3) Evaluation of the evidence

203. The “evaluation of the evidence” concept refers to the judicial process of weighing/assessing the evidence on the record (appréciation des preuves). The Panel reminds the Parties that under Swiss arbitration law, the deciding body is free in its evaluation of the evidence (libre appréciation des preuves). This principle is expressly recalled by Article 9(1) of the IBA Rules of Evidence, according to which “the Arbitral Tribunal shall determine the (…) relevance, materially and weigh of evidence” (see BERGER/KELLERHALS, International Arbitration in Switzerland, 2nd ed., London 2010, para. 1328).

204. In this instance, it is also important to note that according to the wording of Rule 3.2 2021 WA ADR:

“Facts related to anti-doping rule violations may be established by any reliable means, including admissions”.

205. The comment to this rule is also a relevant piece of information for the Panel in the matters of the evaluation of the evidence, as it states the following:

“[Comment to Rule 3.2: For example, the Integrity Unit may establish an anti-doping rule violation under Rule 2.2 (Use of a Prohibited Substance or Prohibited Method) based on the Athlete’s admissions, the credible testimony of third Persons, reliable documentary evidence, reliable analytical data from either an A or B Sample as provided in the comments to Rule 2.2, or conclusions drawn from the profile of a series of the Athlete’s blood or urine Samples, such as data from the Athlete’s Biological Passport]”.

(A.2.4) Conclusions of the Panel regarding the burden of proof

206. In light of the above, the Panel must conclude, regarding the burden of proof, that it is for WA to demonstrate, to the comfortable satisfaction of the Panel, that the Athlete did indeed engage and commit an ADRV of Tampering (Rule 2.5 2021 WA ADR), which includes objective and subjective factors.

207. Nonetheless, the burden of proving that the Athlete was suffering from psychological or mental health issues during the period when the Medical Note’s dates were changed, which in turn affected her judgement and reason, lies with the Athlete. In fact, the Athlete is the one

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which needs to demonstrate the psychological or mental conditions argued during the proceedings that could lead the Panel to consider that she did not act with fault or negligence or even that her degree of fault is lower than what WA argues, seeing as she is the person who derives rights from that fact.

(B) Main Issues to Be Decided

208. In this Appeal and Cross-Appeal, the Athlete essentially argues that she did not have any intent to subvert the Doping Control Process by changing the dates of the Medical Notes and, as such, she cannot be considered as having committed a Tampering ADRV; on the other hand, WA argues that the Athlete intentionally falsified evidence provided to the AIU in support of her missed test justification with the goal of subverting the doping control process and that the Athlete should be punished with a harsher sanction than the one which was imposed on her by the WA Disciplinary Tribunal in first instance. For this reason, the issues to be determined by the Panel are the following:

(a) Under Article 2.5 ADR/WADC, what constitutes a Tampering ADRV?

(b) Did WA manage to discharge its burden of proof and prove that the Athlete committed a Tampering ADRV?

(c) If so, what was the Athlete’s degree of fault and what are the appropriate consequences?

(C) What Constitutes Tampering ADRV Under Article 2.5 ADR?

209. Rule 2.5 2021 WA ADR states that:

“2. Anti-Doping Rule Violations

Doping is defined as the occurrence of one or more of the violations set out in Rules 2.1 to 2.11 below.

The purpose of this Rule 2 is to specify the circumstances and conduct which constitute anti-doping rule violations. Hearings in doping cases will proceed based on the assertion that one or more of the specific rules have been violated.

Athletes or other Persons shall be responsible for knowing what constitutes an anti-doping rule violation and the substances and methods that have been included on the Prohibited List.

Each of the following constitutes an anti-doping rule violation:

(…)

2.5 Tampering or Attempted Tampering with any part of Doping Control by an Athlete or other Person”.

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210. Although Rule 2.5 2021 WA ADR does not itself define the meaning of the term “Tampering”, this issue is resolved in Annex I of that regulation, which reads as follows:

“Tampering: Intentional conduct that subverts the Doping Control process but that 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 of a Sample, affecting or making impossible the analysis of a Sample, falsifying documents submitted to an Anti-Doping Organisation or TUE committee or hearing panel, procuring false testimony from witnesses, committing any other fraudulent act upon the Anti-Doping Organisation or hearing body to affect Results Management or the imposition of Consequences, and any other similar intentional interference or Attempted interference with any aspect of Doping Control.

[Comment to Tampering: For example, this Rule would prohibit altering identification numbers on a Doping Control form during Testing, breaking the B bottle at the time of B Sample analysis, altering a Sample by the addition of a foreign substance, or intimidating or attempting to intimidate a potential witness or a witness who has provided testimony or information in the Doping Control process. Tampering includes misconduct that occurs during the Results Management process. See Rule 10.9.3(c). However, actions taken as part of a Person’s legitimate defence to an anti-doping rule violation charge shall not be considered Tampering. Offensive conduct towards a Doping Control official or other Person involved in Doping Control that does not otherwise constitute Tampering shall be addressed in the disciplinary rules of sport organisations]”.

211. The provision commences by stating the general formula according to which Tampering amounts to: intentional conduct that subverts the Doping Control process but that would not otherwise be included in the definition of Prohibited Methods. Thereafter, the provision provides examples of conduct that can amount to Tampering, in a non-exhaustive list, which includes the following, “falsifying documents submitted to an Anti-Doping Organisation or TUE committee falsifying or hearing panel”.

212. Three important issues arise from the said provision:

(1) Is it necessary that the conduct in question is proved to have actually subverted the Doping Control Process, or does it suffice that the said conduct could, in theory, have done so?

(2) Is intent to subvert the Doping Control Process a necessary element of violation of Rule 2.5 2021 WA ADR?

(3) Are the examples given in the rule automatically considered to be Tampering, or must they be interpreted in accordance with the general formula stated in the first sentence of the Rule?

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(C.1) Is actual subversion of the Doping Control Process a necessary requirement for conduct to be considered to be Tampering, or not?

213. The WA Disciplinary Tribunal considered that the fact that conduct does not result in an actual subversion of the Doping Control Process does not mean that it cannot be punished as a Tampering violation. It would be unfair for an athlete to be able to submit adulterated tests, and for it not to be possible, if the said tests are rejected, (and therefore without any effect on that case), to punish the athlete, as it would otherwise be more advantageous (and less risky) to falsify tests and to seek to have them accepted by the anti-doping authorities, than to comply scrupulously with the rules.

214. Accordingly, it should not be considered that the existence of a result, i.e. the actual subversion of the Doping Control Process, is a necessary requirement of Tampering violations. The Panel therefore agrees with the reasoning of the tribunal, at first instance.

215. Moreover, it should not be overlooked that rule 2.5 2021 WA ADR includes the following possibility among the examples it provides, i.e.: “intentional interference or Attempted interference with any aspect of Doping Control”. This part of the rule (“Attempted Interference”) would make no sense, and it would be not possible to obtain any conviction for attempt to violate this rule, if the result, i.e. subversion of the Doping Control Process, was considered to be a necessary requirement for the commission of this violation.

216. The Panel therefore considers that it is not necessary for a Doping Control Process to be actually subverted, in order for a violation of Rule 2.5 2021 WA ADR to exist, and that it suffices, for that purpose, that the conduct in question could, in theory, is capable of subverting the said process.

217. Finally, it is important to note that a charge of Tampering can also be based on the circumstances provided in Rule 5.7.9 2021 WA ADR:

“If an Athlete or other Person obstructs or delays an investigation (e.g., by providing false, misleading or incomplete information or documentation and/or by tampering or destroying any documentation or other information that may be relevant to the investigation), proceedings may be brought against them for violation of Rule 2.5 (Tampering or Attempted Tampering)” (Emphasis added by the Panel).

(C.2) Is intent to subvert the Doping Control Process necessary, in order for a violation of Rule 2.5 WA 2021 ADR to exist?

218. Rule 2.5 2021 WA ADR also uses the term “intentional conduct” and it is necessary to decide, in that regard, whether the said intentional conduct involves intent to subvert the Doping Control Process, or merely objective intent to act in a certain way, even if without intent to interfere with the Doping Control Process.

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219. The WA Disciplinary Tribunal also addressed this matter, to a certain extent, in its comment on Rule 10.2.3 ADR, which defines intentional ADRVs, and provides as follows:

“(…) Outside Rule 10.2, the term ‘intentional’ as used in these Rules means that the person intended to commit the act(s) based on which the Anti-Doping Rule Violation is asserted, regardless of whether the person knew that such act(s) constituted an anti-doping rule violation”.

220. It appears to follow from this fragment that “intent” is necessary in order for Rule 2.5 2021 WA ADR to be violated. However, it apparently suffices that this intent is merely objective, so that the offender’s intent, or lack of intent, to subvert the Doping Control Process matters not in terms of the commission of a Tampering violation, as intent to practice the said acts is sufficient, even if the offender was unaware that they could subvert the said Doping Control Process.

221. However, and notwithstanding the fact that CAS case law does not include many Tampering cases, it has commented on this violation, i.e. in CAS 2017/A/4937:

“126. On a reading of the words of SADR 2.5 the prohibition requires that a Doping Organisation should bring an allegation of tampering if an athlete’s conduct is fraudulently misleading. A breach of the provision therein contained has three parts: there must be “tampering”; which “subverts”; the “doping control process” (…).

(…)

128. The Panel finds the phrase “tampering”, i.e. fraudulently misleading to subvert doping control, is intended to have a wide ambit and cover any circumstance related to any violation of the rules of anti-doping up to the finality of all appeals provisions. SADR 2.5 purposely construed covers the investigation period and an allegation of fraudulent misleading an investigation requires an intent to subvert the investigation” (Emphasis added by the Panel).

222. In the light of this interpretation, the Panel accepts that the commission of a violation of Rule 2.5 2021 WA ADR 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, however, notes that there are different forms of intent. 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.

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(C.3) Are the examples given in the rule automatically considered to be Tampering, or must they be interpreted in accordance with the general formula stated in the first sentence of the Rule?

223. Rule 2.5 2021 WA ADR provides examples of situations that can amount to Tampering:

“Tampering shall include, without limitation, offering or accepting a bribe to perform or fail to perform an act, preventing the collection of a Sample, affecting or making impossible the analysis of a Sample, falsifying documents submitted to an Anti-Doping Organisation or TUE committee or hearing panel, procuring false testimony from witnesses, committing any other fraudulent act upon the Anti-Doping Organisation or hearing body to affect Results Management or the imposition of Consequences, and any other similar intentional interference or Attempted interference with any aspect of Doping Control” (Emphasis added by the Panel).

224. There is no case law on this aspect and the decision at first instance also did not consider this issue in any depth.

225. However, it must be concluded from the terms of the rule and the understanding advanced that the offender must intend to subvert the Doping Control Process, that the said examples must always be taken into consideration, together with the general formulation, and that they do not amount, per se and in isolation, to autonomous examples of Tampering.

226. Accordingly, the Panel concludes that a violation of Rule 2.5 2021 WA ADR cannot be established merely by reference to the examples included in the rule and therefore that a finding that the offence has actually been committed must include consideration of the subjective aspects of the case. Essentially, the rule merely states some situations that typically amount to Tampering, but which may, depending on the subjective aspects, particularly the offender’s intentions, not do so.

(D) Did WA Manage to Discharge Its Burden of Proof and Prove that the Athlete Committed a Tampering ADRV?

227. Having established the prerequisites for a finding that Rule 2.5 2021 WA ADR has been violated, this Panel must now consider whether the Athlete did, or did not, commit, a Tampering ADRV. It is noted, as explained above (see paras 207-208), that the burden of proof regarding the commission of this offence lies with WA, and must be discharged according to a standard of “comfortable satisfaction”.

(D.1) The Athlete’s Conduct between January and August 2020

228. The Athlete discovered she was pregnant at the beginning of 2020 and, together with her husband, decided to abort, in order to be able to compete in the Tokyo Olympic Games (which, as is now known, were postponed, by a decision announced on 24 March 2020). The Athlete decided, in order to ensure the confidentiality of the procedure, to have recourse to a specialist abortion clinic, near her home, and which, according to the Athlete, had the

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advantage that the abortion could be performed without any loss of training time, i.e. on the weekend.

229. It is not disputed that the abortion occurred on 10 January 2020 and that the medicine was only administered to the Athlete that afternoon. During the following days, the Athlete remained at home resting and, according to her account, spent a lot of time asleep (which is hardly surprising, given the medical procedure to which she had been subjected).

230. On 12 January 2020, a DCO called at the Athlete’s home to conduct a doping control test, but obtained no reply and was unable to carry out the test, despite the fact that the DCO rang the doorbell and contacted the Athlete by telephone.

231. The Athlete was not available for testing and, when challenged, produced a medical note issued by the clinic to explain the missed test, having asked the clinic not to be overly precise regarding the type of procedure to which she has been subjected. The Athlete later confessed that she altered the original date of the said note from 10 January 2020 to 11 January 2020, and that she had only done so because she was unsure, because of the effects that the medical procedure had had on her, of the exact day on which the abortion had, in fact, been performed.

232. The AIU perused the note and immediately concluded that it may have been falsified, and therefore requested the Athlete to provide additional evidence regarding the medical procedure in question. The Athlete submitted two further medical notes and later admitted that she altered the date of both of them, as she had also done with the first medical note.

233. The AIU again concluded that the documents submitted by the Athlete were not authentic and requested the submission of her Medical File. The Athlete submitted the said documents, in an untampered form, on 15 April 2020. The analysis conducted by the AIU revealed the discrepancy between the original Medical Notes and the Medical Notes falsified by the Athlete.

234. Despite this, it was only after the AIU invited the Athlete to an interview, in August 2020, that she admitted that she had altered the dates of the Medical Notes.

(D.2) Evaluation of the Athlete’s conduct

235. The facts in this case are clear, and are, to a very great extent, not at issue between the Parties and have not altered significantly between the decision at first instance and this appeal. The central issue is the interpretation of the facts and inferences that can be made from such facts and the Athlete’s conduct.

236. For, the essential task of the Panel, in this appeal, is to evaluate whether the Athlete’s conduct, i.e. the alteration of the medical notes submitted to the AIU to explain the missed test, does, or does not, amount to a violation of Rule 2.5 2021 WA ADR, i.e. Tampering. In order to make this evaluation, it is first necessary to establish whether the alteration of the dates, could, or could not, influence or subvert the Doping Control Process; and then to seek to establish

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whether the Athlete did, or did not, intend, by her said conduct, to subvert the Doping Control Process.

(D.2.1) Can the alteration of the dates subvert the Doping Control Process?

237. The Athlete gave the following explanation for having missed the test that the DCO sought to administer on 12 January 2020:

“Ms. McNeal was at home for the entire duration of the sample collection attempt by Mr. Willie Newman and Ms. Dani Newman. However, because Ms. McNeal had recently undergone a surprise medical procedure just the day before (in the afternoon), her doctor had prescribed her with pain medication and sedatives to ease her pain during recovery. See note from Dr. Payman, enclosed herewith. Ms. McNeal took the medication for the first time on 11 January 2020, and was not aware how much the medication would impact her”.

For this reason, Ms. McNeal did not change her one-hour window, because she knew that she would be home and typically would have no problem waking up to answer the door. She did not anticipate that the medication she took on 11 January would make it so that she was unable to wake up before 6:00 a.m., and was unable to hear the DCO during the collection attempt. (…)” (Emphasis Added by the Panel).

238. The Athlete’s explanation is essentially based on three arguments, which are supported by the Medical Note submitted:

- The Athlete had been subjected to a “surprise operation”;

- The operation had taken place on the afternoon of the previous day (i.e. on the afternoon of 11 January 2020);

- The doctor had “prescribed” medication for the Athlete to relieve her pain, and to assist her recovery;

- As this was the first time she had taken the medicine “prescribed” by the doctor, the Athlete did not anticipate that she would be unable to awake, in order to be tested by the DCO, at the time and in the place chosen.

239. However, it was apparent from the evidence adduced by the Parties and the debate during the hearing, that the medical treatment to which the Athlete was subjected was not a surprise, but was rather a medical procedure that had been planned by the Athlete, who had selected the clinic, at which she had had appointments prior to the abortion. The operation was scheduled for 10 January 2020 and the Athlete even stated, at first instance, that she had not made a note of the date, because it would be a date that she would “never forget”.

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240. However, this is not the key issue where Tampering is concerned. The issue is not the truth, or otherwise, of the explanation provided, but is rather whether the falsification of the dates of the Medical Notes provided added support to the Athlete’s explanation, i.e. did the changing of the dates, combined with the explanation provided, suffice, or not, in theory, to subvert the Doping Control Process?

241. In the Panel’s opinion, the answer to this question is undoubtedly that it did. For, the Athlete’s arguments all focus on a key event, i.e. the fact that she was subjected to a medical procedure on the afternoon of the previous day. To the extent that it was necessary to substantiate this claim, the alteration of the dates on the Medical Notes, was essential in order to prove to said fact.

242. The explanation given would therefore be considerably bolstered by the submission of a Medical Note, which confirmed the conduct of a medical procedure on 11 January 2020. However, had the Medical Notes been submitted with the original/true date of 10 January 2020, this would certainly have given rise to doubt on the part of the AIU, and they would probably have been rejected, given the conflict between the documents and the reasons given by the Athlete. It is therefore clear that the alteration of the dates was a course of action that was clearly capable of subverting the Doping Control Process, as it would very probably have had a major impact on the acceptance, or rejection, of the Athlete’s explanation of the Missed Test.

243. In short, the alteration of the dates of the Medical Notes can not only be considered to be falsification of a document, under Rules 2.5 and 5.7.9 2021 WA ADR, but also clearly amounts to conduct that tends to/is capable of subverting the Doping Control Process, as it was intended to favour and give added support the explanation given by the Athlete.

(D.2.2) Did the Athlete intend her conduct to subvert the Doping Control Process?

244. Having established that the Athlete’s conduct had the potential to subvert the Doping Control Process, it is necessary to consider the subjective aspects of the Athlete’s act, particularly the Athlete’s intentions. It is therefore necessary to evaluate the explanations given by the Athlete during the proceedings.

245. The Panel considers that the Athlete was not able to provide credible reasons for her lack of diligence in confirming the actual date of the abortion. At the outset, it is simply not possible to believe that the Athlete, when confronted with the AIU’s second request, did not consider, or seek, in any way, to check, whether her “belief” that the abortion was performed on 10 January 2020, was mistaken.

246. It is noteworthy that the alteration of a Medical Note signed by a doctor did not only occur once. Instead, the alteration was done on three Medical Notes, the dates of which were altered on two separate occasions, i.e., on 13 February 2020 and 14 March 2020. The Panel is not prepared to accept that the Athlete saw no need to seek confirmation of the true date of the

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abortion, at least when she submitted the last two Medical Notes, either by contacting the Clinic (which she had to contact anyway, in order to request the documents), or by checking her emails, phone call records and SMS (given the fact that she stated, at the hearing, that the Clinic normally called her to warn her of appointments), or by some other method available to her.

247. The Panel also does not accept that the Athlete failed to do so because she did not trust either the Clinic, or the doctor that performed the abortion, as she continued to have appointments at the Clinic, with the same doctor, after the abortion, because of the complications that arose. Even if it is credible that the Athlete did not trust the Clinic completely, because of the said postoperative complications, it is incomprehensible that this would prevent her from confirming the real date of the procedure, by contacting the doctor, or by checking her medical records, which she had the opportunity to do, on various occasions.

248. The evidence of the Athlete and her husband was also contradictory. The Athlete states in her written statement: “(…) I might have asked him [her husband] if he remembered which day it was (…) [the abortion]”. The Athlete’s oral evidence was hesitant and inconsistent. Sometimes, she stated that she asked her husband what the date of the abortion was, while, at other times, she stated that she could not remember whether she asked him, or not. In his written evidence, the Athlete’s husband says: “(…) I do recall her asking me if I remembered what date it happened [the abortion]”. Both of them state, however, that they did not recall the exact day, because they wanted not to remember that day, because it was an emotional burden for both of them. In any event, the Panel considers that there is contradictory evidence regarding this matter, which, once again, indicates a certain lack of “memory” on the part of the Athlete; moreover, if her husband did not remember the exact date of the abortion, the mere fact that she asked him, does not release the Athlete from the duty to ascertain the correct date of the procedure, preferably by contacting the Clinic, before altering this detail in an official document.

249. This scenario advanced by the Athlete becomes even less credible in light of the Athlete’s statement during the hearing before the WA Disciplinary Tribunal, and confirmed during the CAS hearing, that the date of the abortion was so important date that she would “never forget”, and that this was the reason why she did not make a written note of it.

250. The Athlete’s statements regarding this matter were contradictory and did not prove that she really did not remember the date on which the abortion was performed. There is no doubt that Athlete’s lack of care and diligence in not seeking to confirm the real date of the abortion by any means, and by relying solely on her memory, when any reasonable and diligent person placed in the Athlete’s position, would, when confronted with “external warnings”, certainly have sought, in some way, to confirm the real date of the procedure, instead of relying blindly on her memory. This is all the more important considering that she had already a Whereabouts failure and that an additional one would push her close to a bleeding edge.

251. The Athlete’s lawyer also argued that the dates were altered because the Athlete was going through a very difficult period following the abortion, given the psychological consequences

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thereof, which not only caused the confusion regarding the dates, but also caused a general inability to make decisions, with the reasonableness required of her.

252. However, and as stated above, the burden to prove this argument lies with the Athlete. It is for her to prove that the entire list of dramatic events affected her to such an extent that she was unaware of the improper nature of her conduct when she falsified the clinic documents, without having confirmed the real date of the procedure. If that was indeed the case, the Panel accepts, in theory, that it could then be considered that the Athlete never intended to subvert the Doping Control Process.

253. However, the Athlete has not proven that this was the case. The Panel is perfectly cognisant of the psychological effects of abortion, as explained by the expert evidence. The effects of an abortion can be devastating, and it is well-known that abortion carries a major stigma with it, which cannot be underestimated. Despite this, it is necessary, in order to prove that a psychological condition has affected a person’s judgment, to prove (i) the existence of the psychological condition alleged, and (ii) the causal nexus between the psychological condition and the person’s conduct.

254. The Panel understands, particularly from the evidence of Dr. Michael Craig, that the psychological effects of an abortion and consequent complications vary greatly from person to person. Not all women react in the same way. Accordingly, it is not possible to reach a conclusion without considering the individual case.

255. It is clear, in this case, that the report of the specialist Dr. Moyaedi is not a personal and individualised evaluation of the Athlete, as the report is based solely on a short conversation with her, and fails to take a series of other factors in the Athlete’s clinical history into consideration. Indeed, Dr. Moyaedi’s report must be considered to be a more general and generic view, rather than an individual report, as the basis of the report is such that it does not permit the drawing of definite conclusions regarding the effects of the abortion on this specific Athlete.

256. The Athlete has therefore failed to establish that she was, when she altered the Medical Notes, in fact, suffering from a psychological alteration that caused her to falsify the said documents. It is also noted that one of the factors that caused the Athlete the most anguish and which, according to her, caused her to become depressed, was the fact that the Tokyo Olympic Games were postponed; however, this postponement was only decided and announced on 24 March 2020, many days after the Athlete altered and submitted the Second and the Third Medical Notes. It cannot therefore be argued that the postponement of the Games affected her decision.

257. The Panel also recognizes that the Athlete’s explanation of the Missed Test must be considered to be to her advantage, even if the Missed Test had not resulted in the imposition of any penalty. However, the Athlete would have had every interest in explaining this situation, as she had already missed another test during the previous 12 months; i.e. this would be a

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second “strike” and therefore one more missed test during that period would have rendered her liable to the imposition of a sanction, which would always be more severe, as it would be the Athlete’s second ADRV.

258. For the reasons stated, it must therefore be concluded, to the “comfortable satisfaction” of the Panel, that the Athlete was not only not unaware of the date on which the abortion actually took place (10 January 2020), but also intentionally altered the Medical Notes with intent to subvert the Doping Control Process, and by doing so, sought to substantiate the explanation she had given to the AIU, in order to ensure that her said explanation would be accepted. The WA has therefore successfully discharged its burden of proof by arguments and the submission of evidence that prove the commission of a Tampering ADRV. The Athlete has failed to prove the facts on which her defence was based, i.e. she has not comfortably convinced the Panel that the psychological effects of the abortion had such an overwhelming effect on her that she was unable to comprehend the consequences of her acts, and is thus free of all liability in respect thereof.

(E) What Was the Athlete’s Degree of Fault and What are the Appropriate Consequences?

259. The Panel having found that a Tampering ADRV has been committed, via violation of Rules 2.5 and 5.9.7 2021 WA ADR, the fixing of the appropriate penalty necessarily and above all involves consideration of what the punishment for this ADRV would be, on a first offence basis. This is because a 1-year period of ineligibility was previously imposed on the Athlete for a Whereabouts Failure, so that the confirmation of this ADRV will mean the commission of a second violation of anti-doping rules, to which the special framework applicable to multiple violations, in WADC 2021 WA ADR, will apply.

260. Only once this “punishment” has been identified will it be possible to apply the provisions regarding multiple violations (i.e. Rule 10.9.1 2021 WA ADR) and to fix the definitive penalty.

(E.1) The appropriate sanction for the Tampering ADRV as a first offence

261. Firstly, the provisions of Rule 10.3.1 ADR regarding the Period of Ineligibility applicable to violations of Rules 2.3 or 2.5 ADR must be considered:

“10.3.1 For violations of Rule 2.3 or Rule 2.5, the period of Ineligibility will 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 anti-doping rule violation was not intentional, the period of Ineligibility will 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 will be in a range from two (2) years to four (4) years depending on the Athlete’s or other Person’s degree of Fault; or (iii) in a case involving a Protected Person or Recreational Athlete, the period of Ineligibility will be in a range between a maximum of two (2) years and,

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at a minimum, a reprimand and no period of Ineligibility, depending on the Protected Person or Recreational Athlete’s degree of Fault” (Emphasis added by the Panel).

262. From this, it follows that the correct penalty is, in principle, a 4-year Period of Ineligibility. Despite this, the rule offers the possibility, in Tampering cases, that the penalty applicable to an athlete, or other person, can be reduced in appropriate “exceptional circumstances”. In that case, the penalty can vary from a minimum period of ineligibility of 2 years to a maximum of 4 years, according to the degree of fault of the athlete in question.

263. The first step is therefore to establish the existence, or non-existence, of “exceptional circumstances”, in this case. There is little or no case law regarding violations of Rule 2.5 2021 WA ADR, and the possibility created by Rule 10.3.1 2021 WA ADR.

264. 2021 WA ADR and the WADC also contain no guidance regarding the specific meaning of this term, which is not defined in Rule 10.3.1 2021 WA ADR. However, the rules provide some examples of what can be considered to be “exceptional circumstances”, in the context of other rules:

“[Comment to Rule 10.5: (…) They will only apply in exceptional circumstances, for example, where an Athlete could prove that, despite all due care, they were sabotaged by a competitor”.

“12.4 If the decision of the Disciplinary Tribunal is that a violation of Rule 12 has been committed, save in exceptional circumstances (for example, where the Athlete or other Person is a Minor) (…)”.

“12.6 If the decision of CAS is that a violation of Rule 12 has been committed, save in exceptional circumstances (for example, where the Athlete or other Person is a Protected Person)”.

265. According to the Merriam-Webster dictionary, the word “exceptional” can have the following meanings:

“1: forming an exception: RARE

For example: an exceptional number of rainy days

2: better than average: SUPERIOR

For example: exceptional skill

3: deviating from the norm: such as

a: having above or below average intelligence

b: physically disabled” (Emphasis Added by the Panel).

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266. It appears therefore that the expression “exceptional circumstances” must be interpreted with the greatest possible care, so as only to include very unusual or abnormal situations. The interpretation of this expression must therefore be restrictive.

267. In cases such as this, the existence of exceptional circumstances requires a good dose of reflection regarding the circumstances and background of the Tampering that occurred. Essentially, the aim is to ascertain whether the conduct at issue does, or does not, fall within a range of events that are so clearly beyond the bounds of “normal” or “foreseeable” conduct, that the imposition of a Period of Ineligibility of 2 to 4 years is justified (even if it is subsequently concluded, following specific analysis of the case, that the degree of fault of the offender, is not such as to permit any reduction).

268. In the Panel’s opinion, and notwithstanding the fact that there is no doubt that the Athlete has failed to prove that she did not intend to subvert the Doping Control Process, it can be concluded that her conduct betrays a certain level of psychological disturbance, which does not, however, alter the seriousness of her acts and the fact that she committed an ADRV.

269. An Athlete, who competes at the highest level worldwide and is an Olympic medallist is required to conduct herself with great diligence in order to avoid the commission of ADRVs. Nevertheless, only the deterioration of her psychological/mental state can explain her conduct, which appears to have been both strange and incautious.

270. The erratic falsification by the Athlete of the Medical Notes, and her failure to seek to confirm the same, evinces a blatant lack of diligence, which is completely abnormal for any athlete at this competitive level, and cannot be explained solely in terms of her desire to explain the Missed Test and to subvert the Doping Control Process. As demonstrated in the report of the specialist Dr. Moyaedi, albeit in general terms, an abortion can cause a series of mental and psychological debilities that can distort a person’s judgment.

271. Moreover, the fact that the Athlete failed, on receipt of her Medical File, to immediately realise that her belief regarding the real date of the abortion was mistaken and to inform the AIU accordingly, can be viewed in two different ways: firstly, as further proof of the Athlete’s blatant lack of diligence; and secondly, by considering that the fact that the Athlete did not falsify the entire Medical File she sent to the AIU, which was therefore inconsistent with the alterations she had previously made, shows that she had, at least to a certain extent, “abandoned” her previous intention to perpetuate the falsification of the Medical Notes submitted. This course of conduct, which was inconsistent with her initial course of conduct, is a convincing indication that the Athlete was not making decisions in a “natural” way, and that it is very probable that her psychological state was affected to a certain extent.

272. The Panel’s assessment that the Athlete could, at least to a certain extent, have been affected by psychological factors that impacted her actions, does not invalidate the condemnation that her actions merit. For, there is no indication that the Athlete was unaware that she was subverting the investigation of her Missed Test, which was also part of the Doping Control

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Process (and also amounted to investigation within the meaning of Doping Control, in Appendix 1 of 2021 WA ADR). However, notwithstanding the fact that the said psychological factors did not vitiate the Athlete’s intent to subvert the Doping Control Process, they clearly amount to an abnormality, that was “not within the bounds of normal conduct”.

273. Furthermore, it should not be overlooked that the Athlete’s mental state was the consequence of a traumatic event, that is of particular difficulty in the life of any woman and always involves a high probability of sequellae. This is clearly a traumatic and abnormal situation, even in the “world of medical procedures”, because of all the factors in play before and after an abortion.

274. The Panel therefore concludes that there are exceptional circumstances in this case that justify that the penalty imposed on the Athlete for the Tampering ADRV, when fixed on a first offence basis, varies according to her degree of fault, within a range of from two to four years of Ineligibility, in accordance with Rule 10.3.1 (ii) 2021 WA ADR.

275. The next step is to determine the degree of the Athlete’s fault and the extent to which it permits the reduction of the penalty that would be imposed if this was the Athlete’s first ADRV. Fault is defined in the ADR, as follows:

“Fault: 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 behaviour. Thus, for example, the fact that an 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 Rule 10.6.1 or 10.6.2.

[Comment: The criteria for assessing an Athlete’s degree of fault are the same under all Rules where fault is to be considered. However, under Rule 10.6.2, no reduction of sanction is appropriate unless, when the degree of fault is assessed, the conclusion is that No Significant Fault or Negligence on the part of the Athlete or other Person was involved]”.

276. The case CAS 2013/A/3327 & 3335 establishes the existence of three degrees of fault:

“69. The breadth of sanction is from 0 – 24 months. As Article 10.4 says, the decisive criterion based on which the period of ineligibility shall be determined within the applicable range of sanctions is fault. The Panel recognises the following degrees of fault:

a. Significant degree of or considerable fault.

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b. Normal degree of fault.

c. Light degree of fault”.

277. The following ranking can be established, as the penalty must be fixed within a range of 4 to 2 years:

a) Significant degree of fault – 4 years to 3 years and 4 months;

b) Normal degree of fault – 3 years and 4 months to 2 years and 8 months;

c) Light degree of fault – 2 years and 8 months to 2 years;

278. Moreover, the analysis of the degree of fault must comply with the formula provided in the said CAS case law:

“71. In order to determine into which category of fault a particular case might fall, it is helpful to consider both the objective and the subjective level of fault. The 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.

72. The Panel suggests that the objective element should be foremost in determining into which of the three relevant categories a particular case falls.

73. The subjective element can then be used to move a particular athlete up or down within that category.

74. Of course, in exceptional cases, it may be that the subjective elements are so significant that they move a particular athlete not only to the extremity of a particular category, but also into a different category altogether. That would be the exception to the rule, however”.

279. Therefore, and in accordance with the CAS case law, the Panel will determine the Athlete’s degree of fault on the basis of objective and subjective criteria.

(E.1.1) The objective analysis of the Athlete’s degree of fault

280. From an objective point of view, the Panel’s duty can be summarised as the duty to determine the extent of the fault of a normal person, when placed in the same position as the Athlete, and particularly to evaluate the minimum level of diligence and care that would be required of such a person.

281. There can be little doubt, so far as the objective aspects are concerned, that any normal person, when placed in the Athlete’s position, should avoid alteration of the date of official documents that contain the signature of a doctor.

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282. The falsification of documents via the alteration of the date thereof, cannot be justified by the argument that there was a “genuine memory lapse” on the part of the Athlete, regarding the actual day on which a medical procedure took place. The invocation of this explanation is unsustainable when three documents were tampered with, and the Athlete was aware that the correct date of the said medical procedure could be checked (by contacting the clinic, from telephone records, messages, or by other reliable means). Matters become even more incomprehensible, when the Athlete herself states that she made no attempt to establish the date on which the medical procedure took place and that she does not recall whether she asked her husband, who was with her that day and during the days following the procedure.

283. It is therefore not possible to reduce the Athlete’s degree of fault from the first level, as she acted, in objective terms, with a “significant degree of fault”.

(E.1.2) The subjective analysis of the Athlete’s degree of fault

284. Nevertheless, and taking the Athlete’s specific situation into consideration, the Panel finds that there are various aspects that strongly indicate that her mental faculties were negatively affected.

285. The conclusions detailed in paragraphs 268 to 274 regarding the Athlete’s psychological impairment are deemed to be reproduced here.

286. The Panel further concludes, notwithstanding the fact that it is unable to conclude that the Athlete had no intent to subvert the Doping Control Process, particularly because of her extreme lack of care, that it is nevertheless convinced that the traumatic experience through which the Athlete passed must be taken into consideration as a factor that shadowed her judgment, to a certain extent.

287. Moreover, the Panel has already concluded that there are exceptional circumstances in this case, because of the nature of the medical procedure to which the Athlete was subjected and the risk and psychological disturbance that the said procedure involves.

288. The Panel accordingly also considers that the said exceptional circumstances are closely linked to the subjective aspects of the case, and that it is appropriate, because of the said aspects, to reduce the Athlete’s degree of fault from a “significant degree of fault” to a “normal degree of fault”.

289. The Panel also considers, given the reduced degree of fault now applied to the Athlete, that it is also appropriate that the reduction of the applicable penalty should not exceed a 1-year and therefore fixes the penalty to be imposed on the Athlete, on a first offence basis, for the commission of this Tampering ADRV, as a 3-year period of ineligibility.

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(E.2) The multiple violations provisions and the appropriate sanction

290. We note that, in this case, the Athlete has a previous ADRV recorded against her, i.e. a Whereabouts Failure that occurred in 2017 and led to the imposition of a 1-year ineligibility period.

291. The provisions of the 2021 WA ADR regarding this type of case, i.e. Rule 10.9.1 (a) (ii), which provide as follows, are therefore applicable:

“10.9 Multiple Violations

10.9.1 Second or third anti-doping rule violation:

(a) For an Athlete or other Person’s second anti-doping rule violation, the period of Ineligibility will be the greater of:

(i) a six-month period of Ineligibility; or

(ii) a period of Ineligibility in the range between:

(aa) the sum of the period of Ineligibility imposed for the first anti-doping rule violation plus the period of Ineligibility otherwise applicable to the second anti-doping rule violation treated as if it were a first violation; and

(bb) twice the period of Ineligibility otherwise applicable to the second anti-doping rule violation treated as if it were a first violation.

The period of Ineligibility within this range will be determined based on the entirety of the circumstances and the Athlete or other Person’s degree of Fault with respect to the second violation” (Emphasis Added by the Panel).

292. The Panel has already decided that the appropriate penalty for the Tampering ADRV committed by the Athlete, on a first offence basis, would be a 3-year Ineligibility period. Accordingly, and as the minimum level of the penalty to be imposed is the sum total of the period imposed for the Athlete’s first ADRV (1 year) and the period of ineligibility that would be imposed on the Athlete for the second ADRV, on a first offence basis (3 years), the minimum period of Ineligibility that can be imposed is 4 years.

293. The maximum limit is twice the period of Ineligibility that would be imposed on the Athlete for the second ADRV, on a first offence basis (3 years), i.e. 6 years.

294. It follows therefore, according to Rule 10.9.1 (a) (ii) of the 2021 WA ADR, that the appropriate penalty will be a period of Ineligibility of from 4 to 6 years. The specific penalty applicable must be fixed within this range, by reference to all the circumstances and the Athlete’s degree of fault with regard to the second offence.

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295. For this reason, and according to the formula in 2021 WA ADR, and having already considered that the Athlete’s degree of fault, taking all the circumstances of the case into consideration, is such that her penalty can be reduced by one year, the Panel confirms the said conclusion, which shall be applied in the final penalty.

296. The Panel therefore considers that the application of the rules to this case requires the imposition, on the Athlete, of a period of ineligibility of 5 years, for this ADRV, and therefore upholds the decision of the WA Disciplinary Tribunal.

(E.3) The potential autonomous application of the Principle of Proportionality

297. The Athlete also raised the issue of the principle of proportionality, arguing that any sanction that would be determined under the 2021 WA ADR Rules would have to be balanced against the application of this principle and the consequent reduction of the sanction.

298. The previous version of the WADA Code (2015) has been consistently considered by CAS jurisprudence to already having proportionality “built in” its mechanisms. In fact, the Panel in CAS 2018/A/5546 & 5571 accurately captured this:

“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).

87. In CAS 2017/A/5015 & CAS 2017/A/5110, the CAS Panel, with a further reference to CAS 2016/A/4643, confirmed the well-established perception that the WADC “has been found repeatedly to be proportional in its approach to sanctions, and the question of fault has already been built into its assessment of length of sanction” (emphasis added, para. 227) as was vouched for by an opinion of a previous President of the European Court of Human Rights there referred to see https://www.wadaama.org/en/resources/legal/legal-opinion-on-the-draft-2015-worldanti-doping-code”.

299. While CAS 2006/A/1025 appears to open the door to consider the application of the principle of proportionality autonomously, this Panel notes that such jurisprudence not only relates to an older version of the WADC but the Panel also notes that cases where this argument is valid are rare:

“92. In the circumstances of the present case, the fact that it is the second offence does not, in the Panel’s view, require the imposition of a sanction that would have the effect of bringing Mr Puerta’s career to an end. The Panel’s view in this regard is fortified when it considers the circumstances of the first offence by Mr Puerta (albeit of the 2003 ATP Anti-Doping Program rather than the WADC) and the Award of a very experienced CAS arbitrator, Professor Richard McLaren, in that case. Whether taken individually or

WA v. Brianna McNeal, award of 9 June 2022 (operative part of 2 July 2021)

cumulatively, the degree of fault or blame (or negligence) on the part of Mr Puerta has been very small. As the Panel has stated elsewhere in this Award, it is satisfied that Mr Puerta is not a cheat, and that the fact that he has been found to have been in breach of anti-doping regulations is more the result of bad luck than of any fault or negligence on his part.

93. But what is a CAS Panel to do in such a case? In the Panel’s view, the answer is clear, albeit not without problems and difficulties. Any sanction must be just and proportionate. If it is not, the sanction may be challenged. The Panel has concluded, therefore, that in those very rare cases in which Articles 10.5.1 and 10.5.2 of the WADC do not provide a just and proportionate sanction, i.e., when there is a gap or lacuna in the WADC, that gap or lacuna must be filled by the Panel. That gap or lacuna, which the Panel very much hopes will be filled when the WADC is revised in the light of experience in 2007, is to be filled by the Panel applying the overarching principle of justice and proportionality on which all systems of law, and the WADC itself, is based.

(…)

95. The circumstances in which a tribunal might find that a gap or lacuna exists in the WADC in relation to sanctions for breach of its provisions will arise only very rarely.(…)

96. (…) Indeed, the Panel repeats its view that in all but the very rarest of cases the sanction stipulated by the WADC is just and proportionate. There are unlikely to be many cases in which, as in the present case, the combination of circumstances of the two offences convinces the Panel that the WADC does not produce a just and proportionate result” (Emphasis Added by the Panel).

300. In light of the above, it is clear that the principle of proportionality may be applied if the WADC does not provide a just and proportionate sanction or a lacuna or gap is found. Despite this, the jurisprudence of CAS 2006/A/1025 is also clear in establishing that such cases are “very rare” and that its decision was based on its assessment that the athlete had a very small degree of fault and that his breach of antidoping regulations was more a result of “bad luck” than of any fault or negligence. Clearly, this is not the case of the Athlete and it certainly does not resemble the findings of this Panel.

301. Even though this Panel considers that the sanction to be imposed on the Athlete is indeed a harsh sanction, which may end her career, there is no reason to consider that this is a disproportionate or unfair decision, especially given the fact that she falsified three official documents on two separate occasions. There are simply no similarities with the case CAS 2006/A/1025 above referenced which would allow this Panel to consider any proportionality arguments to further reduce the 5-year period of ineligibility to be imposed.

302. On the contrary, not only does this Panel consider that proportionality has already been considered and is “built in” the WADC / WA ADR, but it also adheres to the following reasoning from CAS 2018/A/5546 & 5571:

WA v. Brianna McNeal, award of 9 June 2022 (operative part of 2 July 2021)

“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 (or FIFA ADR) because their application in a particular case may bear harshly on a particular individual. Legal certainty is an important principle and to depart from the WADC would be destructive of it and involve endless debate as to when in future such departure would be warranted. A trickle could thus become a torrent; and the exceptional mutate into the norm.

90. 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” (Emphasis Added by the Panel).

303. In light of the above, the 5-year period of Ineligibility sanction to be imposed on the Athlete may not be further reduced under the principle of proportionality, since the elements of such principle have already been dully 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.

(E.4) The start date of the sanction

304. Pursuant to Rule 10.13 2021 WA ADR, by default all periods of ineligibility should start on the date of the decision of the hearing panel providing for Ineligibility. Despite this, when delays which are not attributable to the Athlete or other Person occur the period of ineligibility may start prior to that moment.

305. In this case, the Panel finds that there have been substantial delays in the hearing process and other aspects of Doping Control. It was clearly demonstrated during the procedures that these delays were clearly not attributable to the Athlete and, as such, Rule 10.13.1 2021 WA ADR may apply:

“Where 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 him/her, the body imposing the sanction 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 during the period of Ineligibility, including retroactive Ineligibility, will be Disqualified”.

306. In light of the above, the Panel considers appropriate that the 5-year Period of Ineligibility starts on 15 August 2020, the day after the AIU Interview (after which no additional evidence or facts which could justify the delay of the process were discovered).

(E.5) Disqualification of results

307. In accordance with Rule 10.10 2021 WA ADR:

WA v. Brianna McNeal, award of 9 June 2022 (operative part of 2 July 2021)

“In addition to the automatic Disqualification of the results in the Competition that produced the positive Sample under Rule 9, all other competitive results obtained by the Athlete 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, will, unless fairness requires otherwise, be Disqualified with all of the resulting Consequences including forfeiture of any medals, titles, points, prize money, and prizes”.

308. The Panel finds that even though the Athlete did not, at any stage, use any prohibited substance, there are no substantial reasons not to disqualify her competitive results from prior to 15 August 2020, as the WA Disciplinary Tribunal decided.

309. As such, the Panel determines that all competitive results obtained by Ms. Brianna McNeal between 13 February 2020 and 14 August 2020 shall be disqualified with all resulting consequences including forfeiture of any medals, titles, points, prize money and prizes.

(F) Final Remarks / Conclusions

310. In this final section, the Panel wishes to summarize its reasoning.

311. After due consideration, the Panel arrived at the conclusion that the 2021 WA ADR are indeed more athlete-friendly, since the 2021 WA ADR offers more favorable terms to athletes with respect to the imposition of sanctions for violations of Tampering offences and considerably greater flexibility in connection with the consequences to be drawn from a finding of multiple anti-doping rule violations (which is very relevant to our case).

312. Following such reasoning, under which the lex mitior principle’s application to the present case was confirmed, the Panel sought to describe exactly the requirements under which a Tampering ADRV may be established for the breach of Rules 2.5 and 5.7.9 2021 WA ADR.

313. The Panel then analyzed the conduct of the Athlete and the arguments of both Parties and considered that (i) WA managed to establish and discharge his burden of proof regarding the Tampering ADRV and that (ii) the Athlete did not manage to prove to the comfortable satisfaction of the Panel that she did not intend to subvert the doping control process.

314. Having established that the Athlete committed a Tampering ADRV, the Panel proceeded to determine the adequate sanction to be imposed on the Athlete, considering that this would be her second ADRV. It was determined that, according to Rules 10.3.1 and 10.9.1. (a) (ii) 2021 WA ADR, a 5-year period of Ineligibility would be the appropriate sanction.

315. Finally, the Panel sought to clarify whether the principle of proportionality could or could not provide, in the present case, a further reduction of the sanction to be imposed on the Athlete. The conclusion was, however, that proportionality had already been “factored in” the decision and the WADC and that an autonomous consideration of the principle of proportionality is only possible in very rare situations.

WA v. Brianna McNeal, award of 9 June 2022 (operative part of 2 July 2021)

316. In taking the above-mentioned steps, the Panel took its time to go through all of the Parties’ submissions and considered all of the arguments laid out in the hearing. The Athlete’s oral statements were a crucial part of this proceedings, since they allowed the Panel to further analyze the totality of the elements surrounding the case, including her explanations and interpretation of the facts, as well as some contradictions in her statements. While the Athlete’s husband did not take the stand as a witness, his written statement (the content of which the Parties’ agreed to be already so complete that it justified not examining and cross-examining this witness during the hearing) was also duly considered and relevant for the Panel to reach its conclusions and provide its reasoning.

317. In addition, the expert reports and oral statements provided by Dr Moayedi and Dr Michael C. Craig were an important part of the proceedings, since they allowed the Panel to learn the full scope of the psychological and mental effects which an abortion may provoke on women, providing very relevant insight into how the Athlete’s judgement could have been altered by such medical procedure.

318. In the end, a period of ineligibility of five years was determined as the appropriate sanction to be imposed on the Athlete, taking into account that this is her second ADRV. The Panel understands that such a sanction may end the Athlete’s career prematurely but, in any case, this Panel is bound by the WADC /WA ADR and its mechanisms. The Athlete should have been more diligent and tried to verify the correct date. Furthermore, the Athlete could have rectified her decision many times and come forward with the true facts. The Panel notes that the Athlete never took the opportunity to step back from the attempt. Only when her attempt to get rid of the Whereabouts failure with her false declaration definitely failed, did she decide to come clean. Instead of turning around and correcting the mistake, she has gone further and further into a dead end in a kind of tunnel vision. However, the Panel is also sensitive to the psychological aspects of the case and understands that, at least to some degree, although not to an excusable one, she was personally affected and distracted by other circumstances.

319. Finally, the Panel must again recall that this case does not directly concern abortion. This is a mere case of Tampering, where an Athlete has falsified the dates of three official documents and submitted them to the AIU. While the abortion she undertook played a part on her reasoning, that element is not the main concern of this Panel but only a factor among others which influenced the Athlete’s sane judgement, and which was duly weighted by the Panel.

WA v. Brianna McNeal, award of 9 June 2022 (operative part of 2 July 2021)