Joshua Taylor v. World Rugby

II. FACTUAL BACKGROUND — A. Background Facts

3. Below is a summary of the relevant facts and allegations based on the parties’ written submissions, pleadings and evidence adduced at the hearing. Additional facts and allegations found in the parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, it refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning.

4. On 21 May 2016 (the “Collection Date”), the Appellant provided a urine sample in Narrabeen, Australia as part of the World Rugby U20 Championship Out of Competition testing program. The Appellant’s A and B samples were transported to the Laboratoire suisse d’Analyse du Dopage in Lausanne, Switzerland (the “Lausanne Laboratory”).

5. On 16 June 2016, the test report from the Lausanne Laboratory revealed the presence of 4- specifically, a metabolite of dehydrochlormethyl-testosterone (“DHCMT”).

6. M3 is a metabolite of DHCMT, which is: a) a prohibited substance, and

b) specifically classified in category S1.1a Exogenous Androgenic Anabolic Steroids on WADA’s 2016 List of Prohibited Substances.

7. On 17 June 2016, the Appellant was notified of the Adverse Analytical Finding (“AAF”) and provisionally suspended by the Respondent with immediate effect.

8. On 4-5 October 2016, the Appellant’s B sample was analyzed. The B sample test report, submitted on 6 October 2016, confirmed the results of the A sample.

B. Involvement in Rugby

9. Between January 2009 and November 2014, the Appellant attended high school at the Southport School in Queensland, Australia. He played school rugby between 2009 and July 2014 but did not play club rugby during that time.

10. In July 2014, the Appellant suffered a severely broken ankle, which required seven pins to be inserted into the ankle. As a result of the broken ankle, the Appellant did not play any rugby between July 2014 and approximately March 2015.

11. Following high school, around March 2015, the Appellant started to play rugby for the Bond University Rugby Club U19 team. In May 2015, the Appellant enrolled as a student at Bond University but he struggled with the school work and dropped out shortly thereafter.

12. In or around September 2015, the Appellant signed a loyalty contract with Queensland Reds Rugby (“Queensland Reds”).

13. In April 2016, the Appellant was selected to play for the Australian National Team U20 in the World Rugby U20 Championship.

14. Prior to 21 May 2016 (the date of the Doping Control Test), the Appellant had never been subject to any doping control tests or processes.

15. The Appellant did not receive any anti-doping education while playing for the Bond University Rugby Club. He began playing with them on a casual basis, as he had friends on the team. He was not a student at the University when he started playing for the Bond University Rugby club and maintains that he was not aware that he was subject to anti-doping rules while playing for the Bond University Rugby Club.

16. In or around January 2016, but in any event after the Appellant signed his loyalty contract with the Queensland Reds, he received some anti-doping education in a training session that was given by someone from Australia Rugby.

C. The Use of Deca-Plexx

17. In early November 2014, the Appellant obtained a product called “Deca-Plexx” from a student named […] who was one year ahead of him in high school. The container of Deca-Plexx contained 60 capsules.

18. The Appellant was 17 years old when he started using Deca-Plexx. He states that as a result of his ankle injury he was not playing any rugby at the time.

19. The Appellant asserts that he obtained the Deca-Plexx in order to try to “look good” for an upcoming end of school party at Surfers Paradise Beach. He said that the Surfers Paradise trip is a big social event in the school year, marking the end of High School for the Year 12 group.

20. The Appellant recalled that he was […] since his broken ankle had left him unable to exercise for an extended period of time and he had put on a considerable amount of weight. He also recalled […] being told by […] that the Deca-Plexx would strip fat from his body and quickly give him a leaner look.

21. In May 2015, the Appellant’s father left Australia to return to his home country, Wales (the Appellant had lived with his father since 2012, […]. The Appellant moved back to his mother’s home […].

22. After ceasing to take Deca-Plexx for a few months, the Appellant started to take it again.

23. Around July or August 2015, the Appellant’s mother, Sharon Taylor, noticed the Deca -Plexx container and advised the Appellant against taking it. He told his mother that he had already stopped using Deca-Plexx and on his mother’s advice, he threw the container of Deca-Plexx into a trash bin.

24. The Appellant did not register the Deca-Plexx on his Doping Control Form (“DCF”) since he had stopped taking Deca-Plexx around 10 months prior to the date of the test.

D. Procedural History

25. On 27 June 2016, the Appellant confirmed that, while he did not dispute the result of the A sample analysis, he did not know the source of the AAF. The Appellant requested confirmation of the concentration level of DHCMT that was detected in his sample and a copy of the documentation package. He also requested a postponement of the opening of the B sample until he had had an opportunity to investigate the source of the prohibited substance.

26. On 20 October 2016, after receiving the results of the B sample analysis, the Appellant informed World Rugby that he still did not know the source of the AAF but wished to proceed to a hearing before the Judicial Committee.

27. On 10 April 2017, a hearing was convened in London, at the conclusion of which the Judicial Committee adjourned and ordered the parties to provide written submissions.

28. On 16 July 2017, the Judicial Committee unanimously concluded that the ADRV was explained by the “deliberate ingestion by [the Athlete] of a product or products that contained an effective dose of DHCMT and/or other M3 parent compound in the period within a few months of the urine sample collection”.

29. The Judicial Committee rejected the Appellant’s explanation that the M3 metabolite was present in his system as a result of his use of Deca-Plexx in May-July 2015 and held that the Appellant failed to prove that his ADRV was unintentional.

30. The Judicial Committee dismissed the suggestion that the Appellant could avail himself of the no significant fault or negligence provisions in World Rugby Regulation 21 (the “Regulation(s)”) and held that the period of ineligibility should be four years commencing on the date of the provisional suspension, i.e. 17 June 2016 (the “Four Year Sanction”).

31. By a decision dated 7 February 2018 of the World Rugby’s Post-Hearing Review Body (the “PHRB Decision”), to which the Appellant had exercised his right of appeal, the PHRB concluded that there were no grounds to interfere with the Judicial Committee’s decision. The Four-Year Sanction was accordingly upheld.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

32. On 28 February 2018, the Appellant filed his Statement of Appeal with respect to the PHRB Decision in accordance with Article R47 et seq. of the Code of sports-related Arbitration (the “Code”). In its Statement of Appeal, the Appellant nominated Mr. Alexis Schoeb, Attorney-atlaw in Geneva, Switzerland as an arbitrator.

33. On 13 March 2018, the Respondent nominated the Hon. Michael J. Beloff, M.A. Q.C. as arbitrator.

34. On 18 April 2018, the CAS Court Office, on behalf of the President of the Appeals Arbitration Division confirmed the appointment of the Panel as follows:

President: Hon. Hugh L. Fraser, Judge, Ottawa, Canada Arbitrators: Hon. Michael J. Beloff, M.A. Q.C., London, United Kingdom Mr. Alexis Schoeb, Attorney-at-Law, Geneva, Switzerland

35. On 27 June 2018, the Appellant filed his Appeal Brief in accordance with Article R51 of the CAS Code.

36. On 21 September 2018, the Respondent, following an agreed-upon extension of time, filed its Answer in accordance with Article R55 of the Code.

37. On 12 February 2019, an Order of Procedure was signed by the parties.

38. On 15 February 2019, a hearing was held at the CAS Court Office. The Panel was assisted at the hearing by Mr. Brent J. Nowicki, Managing Counsel to CAS. The following persons were in attendance:

For the Appellant: Mr. Joshua Taylor, Appellant Mr. Matthew Taylor, witness Ms. Sharon Taylor, witness (by telephone) Mr. Tom Seamer, Counsel for Mr. Taylor Mr. William Sternheimer, Counsel for Mr. Taylor Ms. Donna Bartley, Counsel for Mr. Taylor Professor Kevin Moore, expert witness (by telephone)

For the Respondent: Mr. Benjamin Rutherford, World Rugby Senior Counsel Mr. Richard Liddell, Counsel for World Rugby Mr. David Ho, World Rugby Science and Results Manager Professor David Cowan, expert witness

39. At the outset of the hearing, the parties confirmed that they had no objection to the composition of the Panel. During the hearing, the Panel heard evidence from the witnesses listed above including the two experts, in addition to the detailed submissions of the parties’ Counsels.

40. At the conclusion of the hearing, the parties indicated that they were satisfied that their right to be heard had been duly respected and that they had been treated fairly and equally during the arbitration proceedings.

41. On 2 April 2019, the Appellant submitted a letter along with documents in relation to a USADA case (the “Salikhov case”) which, according to the Appellant was relevant to the present case. The Appellant also requested additional evidentiary measures.

42. On 9 April 2019, the Respondent submitted its response to the Appellant’s letter of 2 April 2019 by which it objected to the late submission and, in any event, contested the relevance of the Salikhov case to the present matter.

43. On 15 April 2019 the parties were advised that while the Panel had the ability to allow proceedings to be re-opened after the conclusion of a hearing and prior to the handing down of the Award, the party wishing to adduce additional evidence would need to establish that exceptional circumstances existed, in accordance with Article R56 of the Code.

44. The Panel also advised the parties that following the Respondent’s inquiry to WADA and the response received that WADA has not created a Working Group on the M3 metabolite specifically, it was not necessary to request that WADA be asked to provide the further documentation identified by the Appellant. The Panel also concurred with the Respondent's observation that the facts and circumstances relating to Mr. Salikhov were different to those at issue in this appeal and that the UFC Anti-Doping Policy does not replicate the World Anti- Doping Code or World Rugby’s Regulations.

45. As a result, the Panel informed the parties that the proceedings were not reopened in order to refute evidence presented by the Respondent. The Panel found, therefore, that although the Appellant was not aware of the alleged new evidence at the time of the hearing in this matter,

the alleged new evidence is not relevant or conclusive to the determination of the matter at hand, and does not meet the “exceptional circumstances” requirement envisioned in Article

46. For these reasons, the Appellant’s request for additional evidentiary measures was dismissed.

IV. SUBMISSIONS OF THE PARTIES — A. The Appellant

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

a) Use of Deca-Plexx

• The Appellant took Deca-Plexx for vanity reasons to get his body in shape after breaking his ankle.

• He felt that the circumstances around the ingestion of the produce were “a bit shady” given the manner in which the Deca-Plexx was provided to him by his high school acquaintance, […], but denies ever reading the label on the container or being aware that there was a reference to “anabolic” on the packaging.

• He did not conduct any research on the Deca-Plexx supplement that he had received as described above.

• He was 17 years old when he first took the Deca-Plexx and was not interested in playing professional rugby at the time. […].

• When he was playing under 19 rugby at Bond University, it was not a high level or highperformance league and players would come and go during the season, with many having full-time jobs.

• He did not receive any anti-doping education until after he signed his loyalty contract with the Queensland Reds in September 2015. […]. It was at this point, having received some anti-doping education, that he became very conscious about taking medication that might imperil his situation with the Queensland Reds, and that his mother even called someone on the team to question whether he was permitted to take a certain medication […].

• He took some health food supplements to improve his performance in a natural way, and conducted some research on the internet on those supplements.

b) The source of M3

• The Appellants asserts that it is entirely possible that the Deca-Plexx which he consumed may have contained an (unlisted) M3 Parent Compound, given that:

• every other supplement manufactured by Alpha Labs, the manufacturer of Deca- Plexx, contained an M3 Parent Compound;

• another supplement manufactured by Alpha Labs has been reported to be a potential cause of positive tests for DHCMT […].

• It is also entirely possible that the Deca-Plexx which he consumed contained an unlisted M3 Parent Compound in an amount that would have caused the AAF approximately 10 months later, for any of the following reasons:

• mislabelling;

• poor labelling;

• adulteration of the supplement (whether deliberate or accidental)

• contamination.

• Since Deca-Plexx can no longer be purchased, and since all Alpha Labs supplements have been discontinued, he cannot verify what levels of M3 Parent Compound the Deca-Plexx might have contained or how exactly the actual formulation differed from the stated formulation.

• The concentrations of the M3 metabolite detected in his sample are consistent with the consumption, 10 months earlier, of various M3 Compounds even at contaminant levels.

• The Schanzer Study Data strongly supports his case on this issue by demonstrating that the M3 metabolite has a long half-life of approximately 50 days.

• Accordingly, he has established on the balance of probability that the Deca-Plexx consumed in 2015 was the source of the M3 metabolite in his sample.

• Moreover, this is a somewhat unusual case; Much is still unknown as to the metabolization and excretion of parent compounds of the M3 metabolite, both generally and in relation to his particular circumstances, […].

c) Regulations

• In any event, the Respondent has not met their burden of establishing that he was subject to the Regulations during the period of his involvement with the Bond University U19 Team.

• Further, if he was not subject to the Regulations (or any other anti-doping rules) during the period in which he consumed the Deca-Plexx as the source of the M3 metabolite, he cannot be held to have committed an ADRV.

d) Respondent’s Burden

- The Respondent is required to establish to the Panel’s comfortable satisfaction that the M3 metabolite detected in his sample originated from a Prohibited Substance. Unless the Respondent can satisfy the Panel that he ingested a substance either expressly listed on the Prohibited List or that has a “similar chemical structure or similar biological effect(s)” to a substance expressly listed on the Prohibited List, he cannot be found to have committed an ADRV.

e) Prejudice

• He has been severely prejudiced by the Respondent’s failure to inform him that the presence of the M3 metabolite in his sample could have resulted from the ingestion of various substances other than DHCMT, as well as the failure of both WADA and/or the Respondent properly to investigate the detection window applicable in respect of the M3 metabolite or the identity of the M3 Parent Compounds.

• Had he been properly informed at the outset as to what could have caused the AAF he would have immediately obtained sealed containers of the supplement from Alpha Labs directly or from other suppliers, and had them analyzed for the presence of the M3 Parent Compounds. By the time that he had identified Deca-Plexx as the likely source of his AAF, Alpha Labs was no longer in business.

• The lapse of time between his ingestion of Deca-Plexx and the AAF and the Respondent’s misstatement that he had tested positive for DHCMT deprived him of his right to a fair procedure, a fair hearing and a fair result. On that basis, the charges should be dismissed or, alternatively, that no period of ineligibility should be imposed.

• In the alternative, he must be given the benefit of any doubt as to the source of the M3 metabolite detected in his sample.

f) Intention

• […].

• He did not act with any intent within the meaning of Regulation 21.10.2.3. In short, his use of Deca-Plexx was motivated […] not by an intention to cheat or to enhance sports performance.

• He has established on a balance of probability that:

• did not intent to cheat;

• did not know that his conduct constituted a Violation; and

• did not know that there was a significant risk that his conduct might result in a violation of the Regulations.

• Establishing the source of a Prohibited Substance was not a prerequisite of proving an absence of “intent”.

• He has been able to identify the source of the AAF but in the event that the Panel does not agree, it is still open to the Panel to find that he has acted without intent on the basis of other available evidence.

g) Degree of Fault

- His case falls under the provisions of Regulation 21.10.5.1.2 in that if he can, as he asserts, establish on a balance of probabilities that the alleged prohibited substance came from a contaminated product and that his fault or negligence was not significant in relationship

to the violation, then his sanction would fall between a reprimand and a period of ineligibility of 24 months.

• In the circumstances, his degree of fault was very minor in light of the following factors:

• he was just 17 when he used Deca-Plexx for the first time, 18 when he used it for the second time and 19 when he tested positive;

• he was not an experienced athlete (he had never been paid to play rugby or any other sport and had never played at any level higher than school/youth rugby at the time of the ingestion;

• he did not know that he was subject to any anti-doping rules;

• he had not received any anti-doping education;

• […].

• He was not an experienced, well-resourced international athlete who would justifiably be held to a higher standard with regard to his degree of care.

h) Proportionality

- In the event that the arguments made above are rejected by the Panel, the principle of proportionality should apply alternatively to limit any period of ineligibility imposed on him to no more than 12 months, for the reasons given above.

i) Backdating

• He is entitled to have any period of ineligibility imposed on him backdated to the date of sample collection on the basis of delays in Doping Control.

• The misidentification in the Notice of Charge that his positive test had resulted from the ingestion of DHCMT caused significant delay to the first instance proceedings while he sought to identify the source of DHCMT in his sample.

j) Costs below

• If the Panel were to find that the Deca-Plexx consumed in 2015 was the source of the M3 metabolite found in the sample, then he should not be required to bear any of the Respondent’s costs of the review by the PHRB.

• Regulation 21.13.1 requires a player to submit to, and complete the Respondent’s review process before that player is entitled to appeal a first instance decision to the CAS.

• He has had and still has very limited resources, having had to turn to CAS for a legal aid award in order to proceed with his appeal. Upholding the order for costs would infringe the principle of proportionality in these circumstances.

48. In his Appeal Brief, the Appellant requested the following relief:

a) Set aside: (i) the decision of the Judicial Committee; (ii) both parts of the decision of the PHRB; (b) Confirm that he has not committed an anti-doping rule violation; (c) Alternatively, dismiss the charge on the basis of the prejudice to his defense rights; (d) In the further alternative, find that he acted without fault or negligence and eliminate the period of ineligibility imposed on him; (e) In the further alternative, find that he acted without significant fault or negligence, such that: (i) If the Panel ultimately applies Regulation 21.10.5.1.2 (“Contaminated Products”), no period of ineligibility should be imposed; (ii) If the Panel ultimately applies Regulation 21.10.5.2, a period of ineligibility of maximum 12 months’ duration should be imposed. (f) In the further alternative, apply the principle of proportionality to limit any period of ineligibility imposed on him to a maximum of 12 months; (g) Backdate any period of ineligibility imposed on him to 21 April 2016, being the date of the Sample collection and give him credit for the periods of provisional suspension and ineligibility served by him; (h) Order World Rugby (i) To reimburse the Appellant his legal costs and other expenses pertaining to his appeal proceeding before CAS; (ii) To bear the costs of the arbitration.

B. The Respondent

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

a) Use of Deca-Plexx

- The Respondent does not challenge the Appellant’s evidence that he ingested Deca-Plexx in the period between May and June 2015, and that he had received no anti-doping education from any of his clubs or ASADA prior to or during that period.

b) Source of M3

• There is now a large measure of agreement between the experts who gave evidence in this proceeding, in particular that:

• The M3 metabolite is formed following the metabolisation of M3 Parent Compounds, which include but are not limited to DHCMT, Halodrol, Methylclostebol and Promagnon;

• The Deca-Plexx ingested by the Appellant some 10 months before the Collection Date is a plausible explanation for the 25-30 pg/ml of the M3 Metabolite in Mr.

Taylor’s sample based on the limited data available and assuming that this batch of Deca-Plexx contained an M3 Parent Compound (which it ought not to have done according to its list of ingredients);

• However, depending upon which (if any) of the said M3 Parent Compounds happened to be in the Deca-Plexx and their amount (i.e. whether a contaminant (1 mg) or an effective dose (25 mg), the likelihood of the Deca-Plexx being the source of the M3 Metabolite increases or decreases means that the Deca-Plexx would not have been the source. The experts are not entirely at one on the latter issue.

• The refinement of Professor Cowan’s views as to the likelihood of the Deca-Plexx being the source of the M3 Metabolite reflects new information that came to light after the Judicial Committee’s and PHRB’s decisions. In particular, the new evidence indicates that the level of the M3 Metabolite in the Appellant’s sample was significantly less than had been initially assumed; and that the likely half-life of the M3 Metabolite was longer than Professor Cowan had assumed.

• Nonetheless Professor Cowan concluded in his third report that another potential explanation for the AAF is that the Appellant consumed 20 mg of DHCMT about 40 days before the Collection Date (in accordance with the Schanzer study data). Similarly, Professor Cowan considers that it would follow that another potential explanation for the AAF is that the Appellant took a contaminated supplement for a period of time in 2016 such that the accumulated amount of DHCMT was equivalent to 20 mg of DHCMT approximately 40 days before the Collection Date.

• Albeit Promagnon, Halodrol and Methylclostebol (unlike DHCMT and Clostebol) are not specifically named in the Prohibited List, the Appellant’s argument that there was no ADRV is totally without merit.

• Based on Professor Cowan’s opinion, any unknown or unlisted substance would contain the same steroid structure as well as the chlorine atom and would therefore fall under category S1 (Anabolic Agents) in the Prohibited List as a substance with a similar chemical structure to DHCMT.

• The expert scientific opinions of Professor Moore and Professor Cowan support the Appellant’s case that Deca-Plexx could be a source of the M3 metabolite - only if certain assumptions are true: (i) DHCMT has a half-life of 50 days as per the Schanzer study and (ii) if the concentration of the M3 metabolite in the Appellant’s sample based on the information provided by the Lausanne Laboratory amounts to 25-30 pg/ml.

• Deca-Plexx is not the only potential source of the M3 metabolite and could only be considered as the source if the Panel were satisfied both that the Deca Plexx consumed by the Appellant contained a M3 Parent Compound and that the Appellant had not consumed any prohibited substances including Deca-Plexx after July 2015.

• The Respondent rejects both of these propositions and points to the other potential explanations given above.

• […].

• The Panel should conclude that the Appellant has not been able to establish that the source of the M3 metabolite was more likely than not the Deca-Plexx, which he last consumed some 10 months prior to the Collection Date.

• Another equally likely explanation was that the Appellant had deliberately ingested DHCMT and/or one or more of the M3 substances close to the Collection Date; or alternatively that he had taken a supplement closer to the Collection Date with a contaminant level of one or more of the said prohibited M3 Parent Compounds.

c) Regulations

• It is not incumbent on the Respondent to establish that the Appellant was subject to the Regulations at the time of the ingestion of the substance, which resulted in the AAF but only to establish that the Appellant was subject to the Regulations at the Collection Date.

• In any event, the Appellant was subject to the Regulations at the time of the ingestion of the substance as all players of the game of rugby union at every level are bound at all times to comply with the Respondent anti-doping rules set out in the Regulation as a condition of participation in the game at any level in any Rugby Union around the world.

• Furthermore, the Appellant was also bound at all material times by the Anti-Doping Code of the Australian Rugby Union which is a member of the Respondent and as a player with Bond University, a Queensland Rugby Union Premier Grade club which has membership in the Queensland Rugby Union, he would also have been part of the Australian Rugby Union, now known as Rugby Australia.

d) Respondent’s Burden

• The Respondent denies that it was under any obligation to establish that the M3 Metabolite can only be formed following the metabolization of a Prohibited Substance parent compound and to inform the Appellant of the possible parent compounds.

• The Respondent notes that when the Appellant admitted the ADRV the burden of proof shifted to him to establish that the doping was unintentional. Once the Appellant reversed from that admission and denied the ADRV, the onus then shifted to the Respondent to establish that the M3 metabolite is a metabolite of a Prohibited Substance, and the Respondent submits that they have met that burden.

e) Prejudice

• If the Appellant did not contact Alpha Labs immediately upon or shortly after receipt of the charge letter to investigate whether the Deca-Plex was the source of the M3 metabolite, this was through no failing on the part of the Respondent but on his own part.

• The Appellant has not satisfied the Panel that he would in fact have sought to obtain the supplements from Alpha Labs before they ceased to exist and that he would have

undertaken testing on any such supplements given the evidence of his financial health and logistical challenges.

• The Appellant’s main investigative difficulty was his inability to have his container of Deca-Plexx tested because he had discarded the same.

• The Respondent denies that there have been any failings on its part or that it has caused any prejudice to the Appellant, or alternatively any material prejudice that might justify the charge being dismissed.

f) Intention

• Even if the Appellant was unable to establish the source of the AAF, this does not necessarily prevent the Panel from finding that the ADRV was unintentional, but also submits that it would only be in a very exceptional case that a lack of intention could be shown where the source of a Prohibited Substance in an athlete’ system cannot be established.

• If the Panel were to conclude that the Appellant had not established the source of the M3 Metabolite, this is not on the facts one of those very exceptional cases in which the Appellant could discharge the burden of establishing that the ADRV was unintentional.

• If the Panel were to find that the source of the M3 metabolite is more likely explained by the Appellant ingesting an effective dose of DHCMT and/or one of the other M3 Parent Compounds in 2016 and closer to the Collection Date, the Respondent contends that:

• this conduct was “intentional” in that the Appellant knew that what he was doing was wrong and in breach of the anti-doping rules; or that in taking a substance when he did not know its precise contents, he knew (following his anti-doping education in 2016) that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk. Furthermore, the Appellant on his own evidence, knew as of September 2015 […] that he had to be very careful about what he ingested; and

• […] with respect to his ability to distinguish appropriate from inappropriate conduct, he was able to recognize that the circumstances of his purchase of the Deca-Plexx were, in his words, “a bit shady”.

g) Degree of Fault

- It is only if the Panel were to accept the Appellant’s account of the source of the M3 metabolite as being the Deca-Plexx ingested in 2015, and find that his conduct was unintentional that there could be any prospect of the Appellant successfully availing himself of the “No Significant Fault or Negligence” provisions. The assessment of fault would therefore depend upon the factual findings made by the Panel as to his awareness of anti-doping matters/risks […].

- The Respondent submits that the Appellant is unable to avail himself of the “No Significant Fault or Negligence” provisions based on the evidence that he failed to take any reasonable steps to research the listed ingredients on the Deca-Plexx label.

h) Proportionality

• The Respondent submits that the principle of proportionality is already embodied in the Regulations, which are based on the 2015 WADA Code, but asserts that if the Panel were to conclude that the Appellant could avail himself of the “No Significant Fault or Negligence” provisions, but his degree of fault justified a 2 year sanction, then the principle of proportionality would not come into play as the Panel would have already assessed the Appellant’s degree of fault […].

• It would be a very rare case in which a CAS panel would conclude that the sanction arrived at under the Regulations would fall to be reduced below two years on proportionality grounds and this is not such a case.

i) Backdating

- There is no reason to backdate the start of the Appellant’s period of ineligibility to 21 May 2016.

j) Costs Below

- The PHRB Costs Decision was a fair and just decision, and should not be set aside. The Appellant would need, at least, to establish that Deca-Plexx was the source of the AAF and then to be granted a reduction of the 4 year sanction currently imposed in order to overturn the PHRB Costs Decision.

50. In its Answer, the Respondent requested the following relief:

• The anti-doping rule violation under Regulation 21.2.1 is established;

• The period of Ineligibility is four years commencing on 17 June 2016; and

• The Appellant bears the costs of the arbitration and reimburses World Rugby its legal costs and other expenses pertaining to this CAS Appeal.