World Anti-Doping Agency (WADA) v. Africa Zone V Regional Anti-Doping Organization, Anti-Doping Agency of Kenya, Athletics Kenya (AK), Sharon Ndinda Muli

II. FACTUAL BACKGROUND

6. Below is a summary of the relevant facts and allegations based on the Parties’ submissions on the merits of this appeal. Additional facts and allegations found in the Parties’ written submissions may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, he refers in his Award only to the submissions and evidence he considers necessary to explain its reasoning.

7. On 29 April 2016, the RADO undertook an in-competition doping control on the Athlete after she won the 400m race at the Kenya Defence Forces Championship in Nairobi, Kenya (the “Competition”).

8. The analysis of the A Sample revealed the presence of 19-norandrosterone and its metabolite 19-noretiocholanolone in excess of the prescribed Decision Limit of 2.5 ng/mL.

9. 19-norandrosterone and its metabolite 19-noretiocholanolone are Endogenous Anabolic Androgenic Steroids prohibited under S1.1b of the 2016 World Anti-Doping Agency (the “WADA”) Prohibited List.

10. The exogenous origin of the 19-norandrosterone was confirmed by Isotope-Ratio Mass Spectrometry (“IRMS”) analysis.

11. The Athlete waived her right to the analysis of the B Sample and has not sought to deny or contest the Adverse Analytical Finding (the “AAF”).

12. On 30 March 2017, the Sports Disputes Tribunal of Kenya rendered a Decision (the “Decision”) pursuant to the RADO Anti-Doping Rules (the “RADO ADR”) (i) imposing a one-year period of ineligibility starting on the date of the Athlete’s provisional suspension viz. 6 December 2016 and (ii) disqualifying the Athlete’s results (including prize money) at the Competition. In its Decision, the Sports Disputes Tribunal, inter alia, stated the following:

“9.9 Muli also elected to go for a hearing on consequence. She did not challenge the AAF but was not able to provide any adequate reason for the presence of the prohibited substance in line with applicable RADO ADR (or WADA Code). She has however been very cooperative with RADO in promptly admitting her guilt. Given her education level and lack of knowledge and exposure the panel is of the view this can be used or taken into account when considering her fault and determining the consequences of the ADRV.

9.10 In assessing the matter before the panel, and the RADO ADR, we find there is room for reduction in the period of ineligibility. As was held in CAS 2015/A/3979 […], where there is no noted intentional use of prohibited substance, the circumstances through which the substances entered the body have been explained and there has been no attempt to hide and since this is a first time violation (Rule 40.4). Further, RADO did not adduce evidence to show that the Athlete’s use of the Specified Substance was intentional. The athlete has fully cooperated with RADO and willingly submitted herself to the consequences. 9.11 In the case […] CAS 2009/1930 in Paragraph 2.36 the tribunal considered the consequences of a reduced sentence of one year for cocaine metabolites and found that with the evidence at hand, a very serious injustice would be done on the player if a period of one year imposed on the right to practice his profession. Similar to Muli, this would result in her sacking from the armed forces and loss of her only source of earning a living. 9.12. In the case of […] CAS 2013/A/3335 it was held under paragraph 107 that “… this is not a doping offence at the most serious end of the scale. But neither is it a venial offence”. Weighing the factors tending to increase or decrease the degree of Muli’s fault based on similar fact of self-prescribed medicine from pharmacy we have come to the conclusion that the appropriate period of ineligibility should be reduced. 9.13 Consequently, the sanction applicable to Muli under Article 10.2.1 of the RADO ADR shall be a period of ineligibility of one (1) years with effect from the date of the Provisional Suspension which is 6th December 2016 […]”.

13. WADA was notified by the RADO with certain documents of the case file to the Decision on 9 May 2017.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

14. On 30 May 2017, the Appellant filed its Statement of Appeal against the Sports Disputes Tribunal Decision with the Court of Arbitration for Sport (the “CAS”) in accordance with Article 47 et seq. of the Code of Sports-related Arbitration (the “Code”). The Appellant informed that the Statement of Appeal should be considered as the Appellant’s Appeal Brief for the purposes of ArticleR51 of the Code. The Appellant requested that the present case be submitted to a Sole Arbitrator.

15. On 31 May 2017, the CAS Court Office acknowledged the receipt of the Statement of Appeal and invited the Respondents to submit to CAS an Answer within twenty days of receipt of the letter pursuant to Article R55 of the Code. In its letter of the same date, the CAS Court Office invited the Sports Disputes Tribunal of Kenya to file with the CAS an application within ten days of receipt of the letter if it intended to participate as a party in the present arbitration pursuant to Articles R52 para. 2 and R41.3 of the Code.

16. On 6 June and 8 June 2017, the Second Respondent and the Third Respondent, respectively, confirmed that they agreed to the appointment of a Sole Arbitrator. The Fourth Respondent did not comment in this regard.

17. On 15 June 2017, the CAS Court Office informed the Parties that the Deputy President of the CAS Appeals Arbitration Division had decided to submit the present case to a Sole Arbitrator pursuant to Article R50 of the Code.

18. On 21 June 2017, the First and Second Respondent filed their Answer.

19. On 21 June 2017, the CAS Court Office noted that the Sports Disputes Tribunal did not wish to participate this procedure as a party and asked it to provide the CAS Court Office with an unmarked copy of the Decision.

20. On 26 June 2016, the Judiciary Office of the Sports Disputes Tribunal filed a complete copy of the Decision with the CAS Court Office and confirmed that it did not intend to participate as a party to this arbitration.

21. On 27 June 2017, the CAS Court Office, on behalf of the Deputy President of the CAS Appeals Arbitration Division, informed the Parties that the Panel had been constituted as follows: Mr. Jens Evald, Professor in Aarhus, Denmark.

22. On 30 June 2017, the Third Respondent requested an extension of seven days to file a late answer together with supporting documents, as the Third Respondent did not take part in the proceedings that was subject to the present appeal and therefore did not receive a copy of the Decision until 28 June 2017.

23. On 30 June 2017, the CAS Court Office reminded the Third Respondent that a copy of the Decision was attached the Appellant’s Statement of Appeal/Appeal Brief which was served on the Third Respondent by courier on 2 June 2017. Notwithstanding, the other Parties were invited to state whether they agreed to the Third Respondent’s request to file a late answer within three days and that a party’s silence would be deemed acceptance of such request.

24. No party objected to the Third Respondent filing a late answer.

25. On 6 July 2017, the CAS Court Office received by email the Third Respondent’s answer (without exhibits).

26. On 19 July 2017, the Parties were invited to inform the CAS Court Office within five days whether they preferred a hearing to be held in this matter or for the Sole Arbitrator to issue an Award based solely on the Parties’ written submissions.

27. The Fourth Respondent did not submit an Answer.

28. On 22 July 2017, the First and Second Respondent informed the CAS Court Office that they preferred to have hearing in the present case.

29. On 24 July 2017 to the CAS Court Office, the Third Respondent stated that it “is ready to proceed with the hearing herein in any such manner as the Court may direct”.

30. On 24 July 2017 to the CAS Court Office, the Appellant noted that in view of the fact that the Athlete had failed to file an Answer and “the three institutional respondents appear largely to support WADA’s appeal”, WADA’s preference was that this matter be decided on the basis of the Parties’ written submissions.

31. On 31 July 2017, the CAS Court Office advised the Parties that the Sole Arbitrator, having considered the Parties’ submissions and their respectively positions on whether a hearing was needed, deemed himself sufficiently well informed to render a decision in this appeal without a hearing in accordance with Article R57 of the Code.

32. On 8 and 11 August 2017, the Appellant and Third Respondent, respectively, signed and returned the Order of Procedure. The First, Second, and Fourth Respondent did not return a signed Order of Procedure or otherwise object to its contents.

IV. PARTIES’ SUBMISSIONS — A. The Appellant’s submissions

33. The Appellant’s submissions, in essence, may be summarized as follows:

• An anti-doping violation occurred on the basis of Article 2.1 of the RADO ADR, which is not disputed by the Athlete.

• According to Article 10.2.1.1 of the RADO ADR, the period of ineligibility shall be four years.

• The anti-doping rule violation (the “ADRV”) involves a non-specified substance prohibited at all times. In order to reduce the sanction, the Athlete must establish that the ADRV was not intentional and therefore follows that the Athlete must establish how the substance entered her body.

• Even if an Athlete in exceptional cases might be able to demonstrate a lack of intent when he/she cannot establish the origin of the prohibited substance, there are no exceptional circumstances in this case which show to the relevant standard of proof that the ADRV was not intentional.

• The Athlete is required to prove the origin of the prohibited substance on the “balance of probability” and it is clear from abundant CAS case law that an athlete must provide concrete evidence to demonstrate that a particular supplement, medication or other product that the Athlete took contained the substance in question.

• The Athlete’s explanation that she had been taking, in the seven days before the doping control, a number of over-the-counter medications to treat a heel problem is unsubstantiated.

• The Sports Disputes Tribunal recognized that the Athlete had failed to even substantiate her claim that she was suffering from a heel problem. More fundamentally, none of the medications or products she disclosed on the Doping Control Form contain either of the prohibited substances detected in her Urine Sample.

• This notwithstanding, the Sports Disputes Tribunal imposed only a one-year period of ineligibility on the Athlete. The Panel did not even identify the provision in the RADO ADR which was the basis for the reduction of the default four-year sanction but rather referred to a number of CAS decisions that are entirely irrelevant.

• As the Athlete has clearly failed to identify the origin of the prohibited substance in her system and there are no exceptional circumstances that might otherwise negate the presumed intentionality of the ADRV, she must be sanctioned with a four-year period of ineligibility.

• The Appealed Decision is manifestly flawed and so erroneous and ill-reasoned that WADA had no choice but to appeal it. RADO acted as the result management authority and prosecuted the case before the Sports Disputes Tribunal and the latter heard the case by delegation from the RADO, which itself was apparently undertaking the result management by delegation from ADAK. It is therefore ADAK and/or RADO that must bear the responsibility for the Appealed Decision and suffer the costs of these CAS proceedings in the event that WADA prevails.

34. The Appellant makes the following requests for relief, asking the CAS:

1. The Appeal of WADA is admissible.

2. The decision rendered by the Sports Disputes Tribunal on 30 March 2017 in the matter of Ms. Sharon Muli is set aside.

3. Ms. Sharon Muli is sanctioned with a four-year period of ineligibility starting on the date on which the CAS award enters into force. Any period of provisional suspension or ineligibility effectively served by Ms. Sharon Muli before the entry into force of the CAS award shall be credited against the total period of ineligibility to be served.

4. All competitive results obtained by Ms. Sharon Muli from and including 29 April 2016 are disqualified, with all resulting consequences (including forfeiture of medals, points and prizes).

5. The arbitration costs shall be borne by ADAK and RADO jointly and severally or, in the alternative, by all the Respondents jointly and severally.

6. ADAK and RADO jointly and severally or, in the alternative, all the Respondents jointly and severally, shall be ordered to pay WADA a significant contribution to its legal and other costs in connection with these appeal proceedings.

B. The First and Second Respondents’ submissions

35. The First and Second Respondents’ joint submission, in essence, may be summarized as follows:

- The First and Second Respondents confirm and state, inter alia, the following:

– Confirm the presence of a prohibited non-specified substance or its metabolites in the Athlete’s Urine Sample, which constitutes an ADRV.

– State that the Athlete did not have any record of a Therapeutic Use Exemption to justify the presence of the prohibited substance.

– Confirm the statement that the period of ineligibility shall be four years where the ADRV does not involve a specified substance.

– Note that as to the period of ineligibility best suited for the Athlete, Article 10.2.2 of the RADO ADR should apply instead of the sanction given by the Sports Disputes Tribunal.

– State that they diligently and carefully discharged their respective responsibilities and should not be condemned to bear costs.

- As to the determination of the sanction to be imposed on the Athlete, the First and Second Respondents state as follows:

– That the Sports Disputes Tribunal in its Decision held the Athlete “did not challenge the AAF but was not able to provide any adequate reason for the presence of the prohibited substance in line with the applicable RADO ADR”.

– The Sports Disputes Tribunal erred in not considering the nature of the substance as being non-specified thereby giving a sanction for a specified substance.

– The Sports Disputes Tribunal further erred and misapplied itself by shifting the burden of proof from the Athlete to RADO against the express provisions of Article 10.2.1.1 of the RADO ADR.

– That whereas the Athlete failed to identify the origin of the prohibited substances in her system and that there were no exceptional circumstances that would otherwise negate the intentionality of the ADRV, the Athlete promptly admitted the ADRV, which may lead to a reduction in the period of ineligibility pursuant to the RADO ADR Articles 10.6.3, 10.2.1 and 10.3.1.

- The First and Second Respondents state that the claims against them are incompetent and misconceived.

36. The First and Second Respondents make the following requests for relief, asking the CAS:

1. The appeal against them be dismissed with costs.

2. Ms. Sharon Muli is sanctioned with not less than two years of ineligibility starting on the day on which the provisional suspension issued by the Respondents was entered into force.

3. The results of April 29, 2016 are disqualified.

4. All parties to bear its own legal and other costs in connection with these appeal proceedings.

C. The Third Respondent’s submissions

37. The Third Respondent’s submissions, in essence, may be summarized as follows:

- The Third Respondent did not take part in the proceedings with the Sports Disputes Tribunal of Kenya, “as its role was, at best, one of an Observer”.

- The Third Respondent states that the Athlete’s admission of the offence of doping and her waiver of the right to request the analysis of the B Sample is a sufficient proof of an ADRV under Rule 2.1.2 of the RADO ADR.

- In light of the Athlete’s obligation under Rule 2.1.1 of the RADO ADR and the Athlete’s admission, “the burden of proof lay squarely upon the 3rd Respondent, as provided for under Rule 10.4 of the RADO Anti-Doping Rules, to establish that she bore No Fault or Negligence in order to have the period of Ineligibility set under Rule 10.2.1 eliminated”.

- It is the Third Respondent’s contention that the Athlete was grossly negligent in consulting a pharmacist across the counter to prescribe medicines as she stated herein.

- The Athlete should have exercised her right to apply for a Therapeutic Use Exemption “to support her assertion that the prohibited substance was not intentionally taken to enhance her performance or violate the spirit of the sport of Athletics”.

- The Third Respondent has not done or failed to do anything in regard to these proceedings and so there is absolutely no basis for the Court to find it liable for costs at all.

38. The Third Respondent makes the following request for relief, asking the CAS:

“WHEREFORE: The 1st Respondent prays that the appeal herein be allowed but only to the extent that no order of cost should be made as against the 3rd Respondent […]”.