Christian Coleman v. World Athletics

V. JURISDICTION

81. 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”.

82. Article 1.8 of the ADR provides that “Within the overall pool of Athletes set out above who are bound by and required to comply with these Anti-Doping Rules, each of the following Athletes shall be considered to be an International-Level Athlete (“International-Level Athlete”) for the purposes of these Anti-Doping Rules and

therefore the specific provisions in these Anti-Doping Rules applicable to International-Level Athletes shall apply to such Athletes: (a) An Athlete who is in the International Registered Testing Pool”.

83. Article 13.1 of the ADR provides that “Unless specifically stated otherwise, decisions made under these Anti-Doping Rules may be appealed only as set out in this Article 13. Such decisions shall remain in effect while under appeal unless CAS orders otherwise”.

84. Article 13.2.1 of the ADR also provides, inter alia, that a decision imposing “Consequences” (as defined in the ADR) may be appealed and Article 13.2.2 provides that “cases arising involving International-Level Athletes (…) may be appealed exclusively to CAS”.

85. Neither Party objects to the jurisdiction of the CAS to resolve this appeal, and moreover, both Parties expressly consented to the jurisdiction of the CAS when signing the order of procedure. In addition, the Parties fully participated in the proceedings without objection.

86. Accordingly, the Panel confirms that the CAS has jurisdiction to decide this appeal.

VI. ADMISSIBILITY

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

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. The Division President shall not initiate a procedure if the statement of appeal is, on its face, late and shall so notify the person who filed the document. When a procedure is initiated, a party may request the Division President or the President of the Panel, if a Panel has been already constituted, to terminate it if the statement of appeal is late. The Division President or the President of the Panel renders her/his decision after considering any submission made by the other parties”.

88. Article 13.7.1 of the ADR provides that the “deadline for filing an appeal to CAS shall be 30 days from the date of receipt of the reasoned decision in question by the appealing party (…) Where the appellant is a party other than the IAAF, to be a valid filing under this Article 13.7.1, a copy of the appeal must be filed on the same day with the IAAF. Within 15 days of the deadline for filing the statement of appeal, the appellant shall file his appeal brief with CAS and, within 30 days of receipt of the appeal brief, the respondent shall file his answer with CAS”.

89. The Athlete received the decision of the AIU Disciplinary Tribunal on 22 October 2020 and his Statement of Appeal was filed on 19 November 2020, within the deadline provided for under Article 13.7.1 of the ADR.

90. The Respondent accepts the admissibility of this appeal.

91. In consideration of the foregoing, the Panel confirms that this appeal is admissible.

VII. APPLICABLE LAW

92. Article R58 of the CAS Code provides as follows:

“The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

93. It is common ground that the rules of law chosen by the parties are those set out in the ADR and the Anti-Doping Regulations, together with the materials to which they refer.

94. In this respect, the following provisions of the ADR (updating references to ‘IAAF’ to read ‘World Athletics’) are to be noted:

“ARTICLE 13 APPEALS

13.9 Appeal Procedure:

13.9.1 The CAS Code of Sports-related Arbitration, as modified or supplemented herein, shall apply to all appeals filed pursuant to this Article 13.

13.9.2 (…).

13.9.3 In all CAS appeals involving World Athletics, the CAS Panel shall be bound by the World Athletics 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 Constitution, Rules and Regulations, the Constitution, Rules and Regulations shall take precedence.

13.9.4 In all CAS appeals involving World Athletics, the governing law shall be Monegasque law and the appeal shall be conducted in English, unless the parties agree otherwise (…).

ARTICLE 20 INTERPRETATION

20.1 These Anti-Doping Rules are sport rules governing the conditions under which sport is played. Aimed at enforcing anti-doping principles in a global and harmonized manner, they are distinct in nature from criminal and civil laws, and are not intended to be subject to or limited by any national requirements and legal standards applicable to criminal or civil proceedings. When reviewing the facts and the law of a given case, all courts, arbitral tribunals and other adjudicating bodies should be aware of and respect the distinct nature of these Anti-Doping Rules implementing the Code and the fact that these rules represent the consensus of a broad spectrum of stakeholders around the world as to what is necessary to protect and ensure fair sport.

20.2 These Anti-Doping Rules shall be interpreted in a manner that is consistent with the Code. The Code shall be interpreted as an independent and autonomous text and not by reference to the existing law or statutes of any Signatory or government. The comments annotating various provisions of the Code and the International Standards shall be used to interpret these Anti-Doping Rules.

20.3 Subject to Rule 20.2 above, these Anti-Doping Rules shall be governed by and construed in accordance with Monegasque law.

20.4 The Definitions shall be considered as an integral part of these Anti-Doping Rules. Terms used in these Anti-Doping Rules beginning with capital letters shall have the meaning given to them in the Definitions”.

95. It is therefore necessary to set out the salient provisions of the ADR and Anti-Doping Regulations and the rules, regulations and guidance to which they refer.

A. The WADC

96. The starting point is the WADC, to which the Respondent is a signatory. The WADC describes itself as “the fundamental and universal document upon which the World Anti-Doping Program is based”. The World Anti-Doping Program is made up of three levels (see the description in Gemmell at [18]):

a. The WADC itself, the provisions of which are “mandatory in substance” and must be followed by each ADO and athlete. The Respondent is a signatory to the WADC and as such is obliged to put in place a comprehensive set of anti-doping rules that comply with the requirements of the WADC (and are substantively and substantially identical to the WADC). The Respondent has done this by the implementation of the ADR and by the regulations issued thereunder by the Respondent from time to time, namely the Anti- Doping Regulations. The ADR is mandatory.

b. The International Standards (defined as “a standard adopted by WADA in support of the [WADC]”). For present purposes, the relevant standard is the “International Standard for Testing and Investigations” (defined above as “ISTI”). It is a mandatory standard, compliance with which “shall be sufficient to conclude that the procedures addressed by the International Standard were performed properly”.

c. The Models of Best Practice and Guidelines, which are not mandatory but offer technical guidance to sporting organisations and to promote harmonisation in their efforts to ADOs in the implementation of anti-doping programs. The guidelines relevant to this dispute are the “WADA Guidelines” (i.e. the Guidelines for Implementing an Effective Testing Program, October 2014, issued by WADA to provide guidance to ADOs on how to apply the WADC and ISTI).

97. In the result, the hierarchy of rules applicable in this case is as follows: (a) the ADR, (b) the Anti-Doping Regulations, (c) ISTI, and (d) the WADA Guidelines (bearing in mind that these are not mandatory). It is necessary to set them out at some length.

B. The ADR

98. With respect to the ADR, the following matters and provisions are to be noted:

a. The effective date of the ADR is 1 January 2019 and thus applies to matters in these proceedings.

b. World Athletics has delegated implementation of the ADR to the AIU.

c. By Article 1.7, “All Athletes (…) shall be responsible for knowing what constitutes an Anti-Doping Rule Violation under these Anti-Doping Rules”.

d. The ADR provide for the establishment of the Registered Testing Pool (see definition above).

e. Article 2 of the ADR specifies the circumstances and conduct which constitute ADRVs. For present purposes, it is to be noted that Article 2.4 provides that an ADRV is committed upon: “Any combination of three Missed Tests (…) as defined in [ISTI], within a twelvemonth period by an Athlete in a Registered Testing Pool”.

f. By virtue of Article 3.1 of the ADR, World Athletics “shall have the burden of establishing that an Anti-Doping Rule Violation has been committed. The standard of proof shall be whether [World Athletics] has established the commission of the alleged Anti-Doping Rule Violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation that is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where these Anti-Doping Rules places the burden of proof upon the Athlete or other Person alleged to have committed an Anti-Doping Rule Violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability”.

g. Article 5.2.1 provides that “Any Athlete who has not retired, including any Athlete serving a period of Ineligibility, may be required to provide a Sample at any time and at any place by the Integrity Unit or any Anti-Doping Organisation with Testing authority over him”.

h. By Article 5.4.1, all testing conducted by (or for) World Athletics must be in “substantial conformity” with the ADR and the Anti-Doping Regulations; and by Article 5.1.1 of the ADR, all testing conducted by (or for) World Athletics “shall be in conformity with the International Standard for Testing and Investigations”.

i. Article 5.7 of the ADR provides inter alia that:

i. athletes are required to comply with the whereabouts information set forth in Appendix A of the Anti-Doping Regulations (5.7.1); and

ii. for the purposes of Article 2.4, an athlete’s failure to comply with the requirements of Appendix A of the Anti-Doping Regulations shall be deemed a Filing Failure or Missed Test “where the conditions set forth in [ISTI] for declaring a Filing Failure or Missed Test are met”.

99. Article 10 sets forth the various sanctions applicable to the various different ADRVs. The following provisions are to be noted:

a. The sanction applicable to a violation of Article 2.4 is provided for in Article 10.3.2, which provides that:

“For an Anti-Doping Rule Violation under Article 2.4 that is the Athlete’s first antidoping offence, the period of Ineligibility imposed shall be two years, subject to reduction down to a minimum of one year, depending on the Athlete’s degree of Fault. The flexibility between two years and one year of Ineligibility in this Article is not available to Athletes where a pattern of last-minute whereabouts changes or other conduct raises a serious suspicion that the Athlete was trying to avoid being available for Testing”.

b. For these purposes, “Fault” in the ADR is a defined term:

“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 or other Person’s degree of Fault include, for example, the Athlete’s (…) experience, whether the Athlete (…) is a Minor, special considerations such as impairment, the degree of risk that should have been perceived by the Athlete and the level of care and investigation exercised by the Athlete in relation to what should have been the perceived level of risk. In assessing the Athlete’s (…) degree of Fault, the circumstances considered must be specific and relevant to explain the Athlete’s (…) departure from the expected standard of 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 his career, or the timing of the sporting calendar, would not be relevant factors to be considered in reducing the period of Ineligibility under Article 10.5.1 or 10.5.2”.

C. The Anti-Doping Regulations

100. With respect to the Anti-Doping Regulations, the following matters and provisions are to be noted.

a. The effective date is 1 January 2019, and as such the regulations apply to the matters at issue in these proceedings.

b. By paragraph 1.2, “All Athletes, Athlete Support Personnel and other Persons should acquaint themselves fully with the Anti-Doping Rules and with these Anti-Doping Regulations. Both the Anti- Doping Rules and these Anti-Doping Regulations are available for viewing on the IAAF and the Athletics Integrity Unit websites”.

c. By paragraph 1.3, “In accordance with Article 5.2.1 of the Anti-Doping Rules, any Athlete who has not retired, including any Athlete serving a period of Ineligibility, may be required to provide a Sample at any time and place by the IAAF, a Member, an Area Association or any Anti-Doping Organisation with Testing authority over him”.

d. By paragraph 1.10, the Anti-Doping Regulations “must be followed as far as is reasonably practicable”.

e. By paragraph 2.22, all out-of-competition testing shall be “No Advance Notice Testing save in exceptional and justifiable circumstances”.

f. “No Advance Notice Testing” is defined as “Sample collection that takes place with no advance warning to the Athlete and where the Athlete is continuously chaperoned from the moment of notification through to Sample provision”.

101. Appended to the Anti-Doping Regulations are a number of appendices speaking to different aspects of anti-doping control, testing and sampling (and the like). For present purposes, the relevant appendix is Appendix A, headed “Athlete Whereabouts requirements”. It sets forth the requirements on athletes with respect (inter alia) to their whereabouts filings and their availability for testing and the elements that must be proven to sustain a Missed Test.

a. Paragraph 1.1 of Appendix A provides that:

“An Athlete who is in a Registered Testing Pool (…) is required:

(a) to make quarterly Whereabouts Filings that provide accurate and complete information about the Athlete’s whereabouts during the forthcoming quarter, including identifying where he will be living, training and competing during that quarter, and to update those Whereabouts Filings where necessary so that he can be located for Testing during that quarter at the times and locations specified in the relevant Whereabouts Filing (see paragraph 3 of this Appendix below). A failure to do so may be declared a Filing Failure for the purposes of Article 2.4.

(b) to specify in his Whereabouts Filing, for each day in the forthcoming quarter, one specific 60- minute time slot where he will be available at a specified location for Testing: (see paragraph 4 of this Appendix below). This does not limit in any way the Athlete’s obligation under the Rules to be available for Testing at any time and place upon request by an Anti-Doping Organisation with Testing Authority over him. Nor does it limit his obligation to provide the information specified in paragraph 3 of this Appendix as to his whereabouts outside of that 60-minute time slot. However, if the Athlete is not available for Testing at such location

during the 60-minute time slot specified for that day in his Whereabouts Filing, that failure may be declared a Missed Test for the purposes of Article 2.4 [of ADR]”.

b. Paragraph 1.2 of Appendix A provides that:

“Three Whereabouts Failures (which may be any combination of Filing Failures and/or Missed Tests adding up to three in total) by an Athlete within any 12 (twelve) month period amount to an anti-doping rule violation under Article 2.4, irrespective of which Anti-Doping Organisation(s) have declared the Whereabouts Failures in question. The Whereabouts Failures may be a combination of Filing Failures and/or Missed Tests”.

c. Paragraph 1.3 of Appendix A provides that:

“The 12-month period referred to in Article 2.4 [of the ADR] and paragraph 1.2 above starts to run on the date that an Athlete commits the first Whereabouts Failure being relied upon in support of the allegation of a violation of Article 2.4. If two more Whereabouts Failures occur during the ensuing 12-month period, then an anti-doping rule violation under Article 2.4 is committed irrespective of any Samples successfully collected from the Athlete during that 12-month period. However, if an Athlete who has committed one Whereabouts Failure does not go on to commit a further two Whereabouts Failures within 12 months of the first, at the end of that 12-month period, the first Whereabouts Failure “expires” for the purposes of Article 2.4 and a new 12-month period begins to run from the date of his next Whereabouts Failure”.

d. Paragraph 3 of Appendix A provides that:

“3.1 On a date specified by the IAAF that is prior to the first day of each quarter (i.e., 1 January, 1 April, 1 July and 1 October), an Athlete in the Registered Testing Pool must file a Whereabouts Filing with the IAAF that contains at least the following information:

(a) a complete mailing address where correspondence may be sent to the Athlete for formal notice purposes. Any notice or other item mailed to that address will be deemed to have been received by the Athlete five working days after it was deposited in the mail;

(b) details of any impairment of the Athlete that may affect the procedure to be followed in conducting a Sample Collection Session;

(c) specific confirmation of the Athlete’s consent to the sharing of his Whereabouts Filing with other Anti-Doping Organisations having Testing authority over him;

(d) for each day during the following quarter, the full address of the place where the Athlete will be staying overnight (e.g. home, temporary lodgings, hotel, etc); (e) for each day during the following quarter, the name and address of each location where the Athlete will train, work or conduct any other regular activity (e.g. college), as well as the usual time-frames for such regular activities;

(e) the Athlete’s Competition schedule for the following quarter, including the name and address of each location where the Athlete is scheduled to compete during the quarter and the date(s) on which he is scheduled to compete at such location(s); and

(f) any other information related to the Athlete’s whereabouts as the IAAF may require in order to conduct Testing efficiently and effectively.

3.2 (…) the Whereabouts Filing must also include, for each day during the following quarter, one specific 60-minute time slot between 5 a.m. and 11 p.m. each day where the Athlete will be available and accessible for Testing at a specific location.

3.3 (…).

3.4 It is the Athlete’s responsibility to ensure that he provides all of the information required in a Whereabouts Filing accurately and in sufficient detail to enable any Anti-Doping Organisation wishing to do so to locate the Athlete for Testing on any given day in the quarter at the times and locations specified by the Athlete for that day in the Whereabouts Filing, including but not limited to during the 60-minute time slot specified for that day in the Whereabouts Filing. More specifically, when specifying a location in his Whereabouts Filing (whether in his original quarterly filing or in an update), the Athlete must provide sufficient information to enable the DCO to find the location, to gain access to the location and to find the Athlete at the location. A failure to do so may be pursued as a Filing Failure and/or (if the circumstances so warrant) as evasion of Sample collection under Article 2.3 and/or Tampering or Attempted Tampering with Doping Control under Article 2.5. In any event, the IAAF shall consider Target Testing the Athlete”.

e. Paragraph 4 of Appendix A provides that:

“4.1 While Article 5.2.1 [of the ADR] specifies that every Athlete may be required to submit to Testing at any time and place upon request by an ADO with Testing Authority over him, in addition, an Athlete in a Registered Testing Pool must specifically be present and available for Testing on any given day in the relevant quarter during the 60-minute time slot specified for that day in his Whereabouts Filing, at the location that the Athlete has specified for that time slot in such filing.

4.2 To ensure fairness to the Athlete, where an unsuccessful attempt has been made to test an Athlete during one of the 60-minute time slots specified in his Whereabouts Filing, any subsequent unsuccessful attempt to test that Athlete (by the IAAF, a Member or another Anti-Doping Organisation) during one of the 60-minute time slots specified in his Whereabouts Filing may only be counted as a Missed Test (or, if the unsuccessful attempt was because the information filed was insufficient to find the Athlete during the time slot, as a Filing Failure) against that Athlete if that subsequent attempt takes place after the Athlete has received notice, in accordance with paragraph 8.3(c) of Chapter 8, of the original unsuccessful attempt.

4.3 A failure to comply with this requirement shall be pursued as an apparent Missed Test. An Athlete may only be declared to have committed a Missed Test where the IAAF (or Member or other responsible Anti-Doping Organisation with results management authority) can establish each of the following:

(a) that when the Athlete was given notice that he had been designated for inclusion in the Registered Testing Pool, he was advised that he would be liable for a Missed Test if he was unavailable for Testing during the 60-minute time slot specified in his Whereabouts Filing at the location specified for that time slot;

(b) that a DCO attempted to test the Athlete on a given day in the quarter, during the 60-minute time slot specified in the Athlete’s Whereabouts Filing for that day, by visiting the location specified for that time slot;

(c) that during that specified 60-minute time slot, the DCO did what was reasonable in the circumstances (i.e. given the nature of the specified location) to try to locate the Athlete, short of giving the Athlete any advance notice of the test;

(d) that paragraph 4.2 above does not apply or (if it applies) was complied with; and

(e) that the Athlete’s failure to be available for Testing at the specified location during the specified 60-minute time slot was at least negligent. For these purposes, the Athlete will be presumed to have been negligent upon proof of the matters set out at subparagraphs (a) to (d) above. That presumption may only be rebutted by the Athlete establishing that no negligent behaviour on his part caused or contributed to his failure (i) to be available for Testing at such location during such time slot; and (ii) to update his most recent Whereabouts Filing to give notice of a different location where he would instead be available for Testing during a specified 60-minute time slot on the relevant day”.

D. International Standard for Testing and Investigations

102. As noted above, all testing undertaken by or for World Athletics must (“shall”) be in conformity with the International Standard for Testing and Investigations, 2019, promulgated by WADA (defined above as “ISTI”). ISTI is described as “a mandatory international standard” developed as part of the world anti-doping program.

103. By way of overview: Part One of ISTI describes its purpose and objectives (and identifies those articles of the WADC to which the standard is relevant); Part Two sets down the standards to be adhered to when testing athletes; Part Three speaks to the standards that apply in respect of intelligence gathering; and Part Four contains various annexes on various specific matters including, for present purposes, “Annex I, Code Article 2.4, Whereabouts Requirements” (the standard expressly provides that these annexes are to have the same mandatory status as the rest of ISTI). Various provisions of ISTI are annotated by “comments”, and by paragraph 3.4.3 of ISTI, such comments “shall be used to interpret the International Standard”.

104. The following provisions of the body of ISTI are important:

a. Paragraph 5.3.1 provides that “Save in exceptional and justifiable circumstances, No Advance Notice Testing shall be the method for Sample collection”.

b. “No Advance Notice Testing” is defined to mean “Sample collection that takes place with no advance warning to the Athlete and where the Athlete is continuously chaperoned from the moment of notification through Sample provision”.

c. “Missed Test” is defined as follows: “A failure by the Athlete to be available for Testing at the location and time specified in the 60-minute time slot identified in his/her Whereabouts Filing for the day in question, in accordance with Article I.4 of [ISTI]”.

105. ISTI Annex I “Code Article 2.4, Whereabouts Requirements” provides the standards that must be applied/adhered to by any testing authority, including, of course, the Respondent in these proceedings.

106. Article I.1.1 provides (emphasis added):

“An Athlete who is in a Registered Testing Pool is required:

a) to make quarterly Whereabouts Filings that provide accurate and complete information about the Athlete’s whereabouts during the forthcoming quarter, including identifying where he/she will be living, training and competing during that quarter, and to update those Whereabouts Filings where necessary, so that he/she can be located for Testing during that quarter at the times and locations specified in the relevant Whereabouts Filing, as specified in Article I.3. A failure to do so may be declared a Filing Failure; and

b) to specify in his/her Whereabouts Filings, for each day in the forthcoming quarter, one specific 60-minute time slot where he/she will be available at a specific location for Testing, as specified in Article I.4. (…) [I]f the Athlete is not available for Testing at such location during the 60-minute time slot specified for that day in his/her Whereabouts Filing, that failure may be declared a Missed Test.

[Comment to I.1.1(b): The purpose of the 60-minute time slot is to strike a balance between the need to locate the Athlete for Testing and the impracticality and unfairness of making Athletes potentially accountable for a Missed Test every time they depart from their previously-declared routine. Anti-Doping Organizations that implemented whereabouts systems in the period up to 2009 reflected that tension in different ways. Some demanded “24/7” whereabouts information, but did not declare a Missed Test if an Athlete was not where he/she had said he/she would be unless (a) he/she could still not report for Testing despite being given notice in the form of a phone call; or (b) the following day he/she was still not where he/she had said he/she would be. Others asked for

details of the Athlete’s whereabouts for only one hour per day, but held the Athlete fully accountable during that period, which gave each side certainty but limited the Anti-Doping Organization’s ability to test the Athlete outside that hour. After extensive consultation with stakeholders with substantial whereabouts experience, the view was taken that the best way to maximize the chances of finding the Athlete at any time, while providing a reasonable and appropriate mitigation of “24/7” Missed Test liability, was to combine the best elements of each system, i.e., requiring disclosure of whereabouts information on a “24/7” basis, while limiting exposure to a Missed Test to a 60-minute time slot]”.

107. Article I.3.2 provides (emphasis added):

“Subject to Article I.3.3, the Whereabouts Filing must also include, for each day during the following quarter, one specific 60-minute time slot between 5 a.m. and 11 p.m. each day where the Athlete will be available and accessible for Testing at a specific location.

[Comment to I.3.2: The Athlete can choose which 60-minute time slot between 5 a.m. and 11 p.m. to use for this purpose, provided that during the time slot in question he/she is somewhere accessible by the DCO. It could be the Athlete’s place of residence, training or Competition, or it could be another location (e.g., work or school). An Athlete is entitled to specify a 60-minute time slot during which he/she will be at a hotel, apartment building, gated community or other location where access to the Athlete is obtained via a front desk, or doorman, or security guard. In addition, an Athlete may specify a time slot when he/she is taking part in a Team Activity. In either case, however, any failure to be accessible and available for Testing at the specified location during the specified time slot will be a Missed Test]”.

108. Article I.3.3 provides:

“As the sole exception to Article I.3.2, if (but only if) there are dates in the relevant quarter in which the Athlete is scheduled to compete in an Event (excluding any Events organized by a Major Event Organization), and the Anti- Doping Organization that put the Athlete into the Registered Testing Pool is satisfied that enough information is available from other sources to find the Athlete for Testing on those dates, then the Anti-Doping Organization that put the Athlete into the Registered Testing Pool may waive the Article I.3.2 requirement to specify a 60-minute time-slot in respect of such dates (“In- Competition Dates”)”.

109. Article I.3.4 provides (emphasis added):

“It is the Athlete’s responsibility to ensure that he/she provides all of the information required in a Whereabouts Filing accurately and in sufficient detail to enable any Anti-Doping Organization wishing to do so to locate the Athlete for Testing on any given day in the quarter at the times and locations specified by the Athlete in his/her Whereabouts Filing for that day, including but not limited to during the 60-minute time slot specified for that day in the Whereabouts Filing. More specifically, the

Athlete must provide sufficient information to enable the DCO to find the location, to gain access to the location, and to find the Athlete at the location. A failure to do so may be pursued as a Filing Failure and/or (if the circumstances so warrant) as evasion of Sample collection under Code Article 2.3, and/or Tampering or Attempted Tampering with Doping Control under Code Article 2.5. In any event, the Anti- Doping Organization shall consider Target Testing of the Athlete.

[Comment to I.3.4: For example, declarations such as “running in the Black Forest” are insufficient and are likely to result in a Filing Failure. Similarly, specifying a location that the DCO cannot access (e.g., a “restricted-access” building or area) is likely to result in a Filing Failure. The Anti-Doping Organization may be able to determine the insufficiency of the information from the Whereabouts Filing itself, or alternatively it may only discover the insufficiency of the information when it attempts to test the Athlete and is unable to locate him/her. In either case, the matter should be pursued as an apparent Filing Failure, and/or (where the circumstances warrant) as an evasion of Sample collection under Code Article 2.3, and/or as Tampering or Attempting to Tamper with Doping Control under Code Article 2.5.

Where an Athlete does not know precisely what his/her whereabouts will be at all times during the forthcoming quarter, he/she must provide his/her best information, based on where he/she expects to be at the relevant times, and then update that information as necessary in accordance with Article I.3.5]”.

110. Article I.3.5 provides:

“Where a change in circumstances means that the information in a Whereabouts Filing is no longer accurate or complete as required by Article I.3.4, the Athlete must file an update so that the information on file is again accurate and complete. In particular, the Athlete must always update his/her Whereabouts Filing to reflect any change in any day in the quarter in question (a) in the time or location of the 60-minute time slot specified in Article I.3.2; and/or (b) in the place where he/she is staying overnight. The Athlete must file the update as soon as possible after the circumstances change, and in any event prior to the 60-minute time slot specified in his/her filing for the day in question. A failure to do so may be pursued as a Filing Failure and/or (if the circumstances so warrant) as evasion of Sample collection under Code Article 2.3, and/or Tampering or Attempted Tampering with Doping Control under Code Article 2.5. In any event, the Anti- Doping Organization shall consider Target Testing of the Athlete”.

111. Article I.4.1 provides (emphasis added):

“Availability for Testing I.4.1 While Code Article 5.2 specifies that every Athlete must submit to Testing at any time and place upon request by an Anti-Doping Organization with Testing jurisdiction over him/her, in addition an Athlete in a Registered Testing Pool must specifically be present and available for Testing on any given day during the 60-minute time slot specified for that day in his/her Whereabouts Filing, at the location that the Athlete has specified for that time slot in

such filing. A Failure to Comply with this requirement shall be pursued as an apparent Missed Test (…).

[Comment to I.4.1: For Testing to be effective in deterring and detecting cheating, it should be as unpredictable as possible. Therefore, the intent behind the 60-minute time slot is not to limit Testing to that period, or to create a ‘default’ period for Testing, but rather:

a) to make it very clear when an unsuccessful attempt to test an Athlete will count as a Missed Test;

b) to guarantee that the Athlete can be found, and a Sample can be collected, at least once per day (which should deter doping, or as a minimum, make it far more difficult);

c) to increase the reliability of the rest of the whereabouts information provided by the Athlete, and so to assist the Anti- Doping Organization in locating the Athlete for Testing outside the 60-minute time slot. The 60-minute time slot “anchors” the Athlete to a certain location for a particular day. Combined with the information that the Athlete must provide as to where he/she is staying overnight, training, competing and conducting other ‘regular’ activities during that day, the Anti-Doping Organization should be able to locate the Athlete for Testing outside the 60- minute time slot; and

d) to generate useful anti-doping intelligence, e.g., if the Athlete regularly specifies time slots with large gaps between them, and/or changes his time slot and/or location at the last minute. Such intelligence can be relied upon as a basis for the Target Testing of such Athlete]”.

112. Article I.4.3 provides:

“An Athlete may only be declared to have committed a Missed Test where the Results Management Authority can establish each of the following:

a) that when the Athlete was given notice that he/she had been designated for inclusion in a Registered Testing Pool, he/she was advised that he/she would be liable for a Missed Test if he/she was unavailable for Testing during the 60-minute time slot specified in his/her Whereabouts Filing at the location specified for that time slot;

b) that a DCO attempted to test the Athlete on a given day in the quarter, during the 60-minute time slot specified in the Athlete’s Whereabouts Filing for that day, by visiting the location specified for that time slot;

c) that during that specified 60-minute time slot, the DCO did what was reasonable in the circumstances (i.e. given the nature of the specified location)

to try to locate the Athlete, short of giving the Athlete any advance notice of the test;

d) that Article I.4.2 does not apply or (if it applies) was complied with; and

e) that the Athlete’s failure to be available for Testing at the specified location during the specified 60-minute time slot was at least negligent. For these purposes, the Athlete will be presumed to have been negligent upon proof of the matters set out at sub- Articles I.4.3(a) to (d). That presumption may only be rebutted by the Athlete establishing that no negligent behaviour on his/her part caused or contributed to his/her failure (i) to be available for Testing at such location during such time slot and (ii) to update his/her most recent Whereabouts Filing to give notice of a different location where he/she would instead be available for Testing during a specified 60- minute time slot on the relevant day.

[Comment to I.4.3(b): If the Athlete is not available for Testing at the beginning of the 60-minute time slot, but becomes available for Testing later on in the 60-minute time slot, the DCO should collect the Sample and should not process the attempt as an unsuccessful attempt to test, but should include full details of the delay in availability of the Athlete in the mission report. Any pattern of behaviour of this type should be investigated as a possible anti-doping rule violation of evading Sample collection under Code Article 2.3 or Code Article 2.5. If an Athlete is not available for Testing during his/her specified 60-minute time slot at the location specified for that time slot for that day, he/she will be liable for a Missed Test even if he/she is located later that day and a Sample is successfully collected from him/her].

[Comment to I.4.3(c): Once the DCO has arrived at the location specified for the 60- minute time slot, if the Athlete cannot be located immediately then the DCO should remain at that location for whatever time is left of the 60-minute time slot and during that remaining time he/she should do what is reasonable in the circumstances to try to locate the Athlete. See WADA’s Guidelines for Implementing an Effective Testing Program for guidance in determining what is reasonable in such circumstances.

Where an Athlete has not been located despite the DCO’s reasonable efforts, and there are only five minutes left within the 60-minute time slot, then as a last resort the DCO may (but does not have to) telephone the Athlete (assuming he/she has provided his/her telephone number in his/her Whereabouts Filing) to see if he/she is at the specified location. If the Athlete answers the DCO’s call and is available at (or in the immediate vicinity of) the location for immediate testing (i.e., within the 60-minute time slot), then the DCO should wait for the Athlete and should collect the Sample from him/her as normal. However, the DCO should also make a careful note of all the circumstances, so that it can be decided if any further investigation should be conducted. In particular, the DCO should make a note of any facts suggesting that there could have been tampering or manipulation of the Athlete’s urine or blood in the time that elapsed between the phone call and the Sample collection. If the Athlete answers the DCO’s call and is not at the specified location

or in the immediate vicinity, and so cannot make himself/herself available for testing within the 60-minute time slot, the DCO should file an Unsuccessful Attempt Report.

Because the making of a telephone call is discretionary rather than mandatory, and is left entirely to the absolute discretion of the Sample Collection Authority, proof that a telephone call was made is not a requisite element of a Missed Test, and the lack of a telephone call does not give the Athlete a defence to the assertion of a Missed Test]”.

113. Article I.6.4 provides:

“In all cases (…):

(a) each Athlete in a Registered Testing Pool remains ultimately responsible at all times for making accurate and complete Whereabouts Filings, whether he/she makes each filing personally or delegates the task to a third party. (…).

(b) such Athlete remains personally responsible at all times for ensuring he/she is available for Testing at the whereabouts declared on his/her Whereabouts Filings”.

E. The WADA Guidelines for Implementing an Effective Testing Program

114. The WADA Guidelines provide (non-mandatory) guidance generally as to the constituent elements of a viable testing programme and in particular in respect of how a DCO should carry out his or her responsibilities. The above-noted Comment to ISTI Annexe I.4.3(c) cross-refers to the WADA Guidelines for guidance “in determining what is reasonable on the part of a DCO in the circumstances to try to locate the Athlete”.

115. Under the heading “9.2.1 Making a Reasonable Testing Attempt”, this is said (with emphasis added):

“An unsuccessful attempt to test an Athlete will not amount to a Missed Test unless the ADO on whose behalf the test was attempted can demonstrate to the comfortable satisfaction of the hearing panel that (among other things) the DCO made a reasonable attempt to locate the Athlete for Testing during the 60-minute timeslot specified for the day in question in the Athlete’s Whereabouts Filing.

What constitutes a reasonable attempt to locate an Athlete for Testing during the 60- minute timeslot cannot be fixed in advance, as it will necessarily depend on the particular circumstances of the case in question, and in particular on the nature of the location chosen by the Athlete for that timeslot.

The only truly universal guideline is that the DCO should use his/her common sense. He/She should ask him/herself: “Given the nature of the location specified by the Athlete, what do I need to do to ensure that if the Athlete is present, he/she will know that a DCO is here to collect a Sample from him/her?”

In this context, the DCO should bear in mind the requirement to avoid insofar as possible giving the Athlete advance notice of Testing that might provide an opportunity for Tampering or evasion or other improper conduct.

In certain circumstances, a degree of advance notice may simply be unavoidable. For example, an Athlete may live or train at a location where access is controlled by security personnel who will not permit access to anyone without first speaking to the Athlete or (for example) a team official.

This in itself is neither improper nor suspicious, but the DCO should be especially vigilant in such cases of any other circumstances which may be suspicious (such as a long delay between the security guard contacting the Athlete or team official and the DCO being given access to the Athlete). In this case, the DCO should provide a full report of such suspicious circumstances and should consider requiring the Athlete to give a second Sample.

The DCO does not necessarily have to be present at the location specified for the 60-minute time-slot from the beginning of the sixty minutes specified in order for the attempt to be reasonable. However, once he/she arrives at the location the DCO should remain at that location for whatever time is left of the 60-minute timeslot, and the DCO should ensure that he/she allows sufficient time to make a reasonable attempt to locate the Athlete during that remaining time.

For example, if the location specified is a sports center, and the Athlete has said he/she will be in either the gym or the pool or the changing room, then the Athlete may need to check each of those possible places, and so it is likely that more time will be required to make a proper attempt than if the location specified is the Athlete’s house.

[Comment: The DCO should stay at the specified location for the remainder of the 60- minute timeslot even if he/she receives apparently reliable information that the Athlete will not be at the location during the 60-minute timeslot (e.g. because he/she is out of the country). This is to avoid any subsequent argument that the information received was in fact wrong and the Athlete turned up at the location after the DCO had left].

If the specified location is the Athlete’s house or other place of residence, the DCO should ring any entry bell and knock on the door as soon as he/she arrives. If the Athlete does not answer, the DCO may telephone the Athlete to advise him/her of the attempt in the closing five minutes of the 60-minute period. Such a call is not mandatory however, nor should it be used to invite the Athlete for Testing, but rather to potentially further validate that the Athlete is not present.

[Comment: If the Athlete merely specifies the sports center, and the number of potential locations within the sports center make it difficult for the DCO to find the Athlete within the 60-minute timeslot, the Athlete risks a Missed Test].

Preferably, the DCO should wait somewhere close by (e.g. in his/her car) in a place where he/she can observe the (main) entrance to the residence. He/she should then knock/ring again a short time later (e.g. 15 minutes), and should keep doing so

periodically until the end of the 60 minutes. At that point, he/she should try one last time at the end of the 60 minutes before leaving the location and completing an Unsuccessful Attempt Report.

If the DCO is told that the Athlete is not present at the specified location but can be found in an alternative location not far away, then the DCO should record this information (including the name, number and relationship to the Athlete of the person providing the information), but the DCO should not leave the specified location to go to try to find the Athlete, in case the Athlete is trying to get back to the specified location and the DCO misses him/her in transit.

Instead, the DCO should remain at the specified location for the remainder of the 60-minute timeslot. Thereafter, he/she is entitled to go to the alternative location (if so instructed by the ADO) to see if the Athlete can be located there for Testing. Even if that Athlete is located for Testing at the alternative location, however, and a Sample is collected, the Athlete is still liable for an apparent Missed Test and so the DCO should also provide an Unsuccessful Attempt Report to the ADO.

If the specified location for the 60-minute time-slot is a sports complex, it is the Athlete’s responsibility to specify where in the complex he/she can be located. If the Athlete specifies a time when he/she knows he/she might be in one of several places within the location (e.g. the gym, or the treatment room, or the changing room), he/she should name each of them in the Whereabouts Filing, and the DCO should visit each of the places named, in turn.

In such circumstances, the Athlete takes the risk that the DCO might miss him/her in transit, in which case the DCO should file an Unsuccessful Attempt Report and the Athlete may have a Missed Test declared against him/her.

If the Athlete only specifies the sports complex for his/her 60-minute time-slot, and does not specify where in the sports complex he/she will be during the 60-minute timeslot, the DCO should make reasonable attempts to check each of the locations where the Athlete may be within the complex, but if notwithstanding those attempts the Athlete cannot be found then the DCO should file an Unsuccessful Attempt Report and the Athlete may have a Missed Test declared against him/her.

If there is a Public Address (PA) system at the venue, the DCO should consider asking for an announcement to be made, telling the Athlete to report to a particular meeting point, but without announcing the reason for the request. If necessary, that announcement could then be repeated at regular intervals for the remainder of the 60-minute timeslot.

Whatever the location specified, it may be appropriate for the DCO to speak to people he/she encounters during the attempt to see if they can assist in locating the Athlete. If so, the DCO should try to get the names and positions (e.g. neighbour, coach, receptionist) of the people with whom he/she speaks, for recording (along with relevant details of the conversations) on the Unsuccessful Attempt Report. The DCO should not identify the purpose of his/her visit, unless necessary for safety or security reasons.

The DCO should note any circumstances he/she observes during his/her attempt to test the Athlete that could be relevant.

For example, if the attempt is made at the Athlete’s home, and no one answers the door, the DCO should note whether or not there are any lights on in the house, or if he/she notices any movement in the house. If there is a car in the driveway, the DCO might note the make/colour/licence plate number, and check whether the engine hood is warm, indicating that the car has been used recently. It is up to the DCO to gather such anti-doping intelligence as may be useful to the ADO. This information should be included in the Unsuccessful Attempt Report.

If the DCO locates the Athlete and is able to collect a Sample from him/her, but has suspicions of possible manipulation or Tampering, the DCO may require the Athlete to provide a second Sample (and further Samples if necessary) after the first. An example might be circumstances where it appears that the Athlete knew of the DCO’s presence at the specified location early in the hour, but the Athlete did not make himself/herself available for Testing until late in the hour.

If the DCO is unable to locate the Athlete during the 60-minute timeslot, he/she should complete and submit an Unsuccessful Attempt Form to the ADO that ordered the mission as soon as possible, and in any event no more than three working days after the attempt.

The DCO should provide a detailed account in the Unsuccessful Attempt Report of exactly what he/she did during the 60-minute timeslot to try to find the Athlete. For example, if the attempt was at the Athlete’s home, the DCO should note when and how many times he knocked on the door, where he/she waited in between attempts, etc). The DCO should specify exactly where he/she went, for how long, what he/she did, who he/she spoke to about where the Athlete might be (including the names of the people involved, and what was said”.

VIII. MERITS

116. The Athlete appeals against the decision of the AIU Disciplinary Tribunal dated 22 October 2020. There is an appeal on liability and on sanction.

A. Liability

117. By way of preliminary matters, a number of things are common ground:

a. Article 2.4 of the ADR provides that an ADRV is committed upon: “Any combination of three Missed Tests and/or Filing Failures, as defined in [ISTI], within a twelve-month period by an Athlete in a Registered Testing Pool”.

b. In this appeal, there is no challenge by the Athlete in respect of the Missed Test of 16 January 2019 or the Filing Failure of 26 April 2019; the challenge is limited to the Missed Test of 9 December 2019. It follows that, if the Missed Test of 9 December 2019 is sustained, then there will be three Missed Tests and/or Filing Failures within a 12-month

period and an ADRV will have been committed. The Panel is therefore concerned, with respect to liability at least, solely with the question whether there was a Missed Test on 9 December 2019.

c. The Respondent bears the burden of establishing that an ADRV has been committed, and the standard of proof is whether the Respondent has established the ADRV to the comfortable satisfaction of the Panel, bearing in mind the seriousness of the allegation that is made.

d. In the event that an ADRV is sustained, ADR Article 10.3.2 provides that, because this is the Athlete’s first anti-doping offence the period of ineligibility shall be two years, subject to a reduction down to a minimum of one year “depending on the Athlete’s degree of Fault”.

e. It is common ground that, pursuant to Appendix A of the Anti-Doping Regulations, the Athlete was required to do the following things:

i. He was required to make quarterly Whereabouts Filings that provided accurate and complete information about his whereabouts during the forthcoming quarter including identifying where he would be living, training and competing during that quarter so that he could be located for testing during that quarter at the times and locations specified.

ii. He was required to specify in the Whereabouts Filing for each day in the forthcoming quarter one specific 60-minute slot between 05:00 and 23.00 hours where he would be available at a specific location for testing (and if he did not so make himself available such location during the 60-minute time slot specified then that may be declared as a Missed Test).

118. As to the latter obligation, the Athlete appears to have been under the impression that it was sufficient to discharge his duty under Appendix A of the Anti-Doping Regulations and ISTI Annex I.3.2 if he were at the specified location at the same time as the DCO and that it was enough for him to be nearby his specified location and rely on the fact that he could return to the location within short order if notified of the need for a test.

119. In the Panel’s view, properly understood, the requirement that an athlete must be available at a specific location for testing for a 60-minute period imposes a requirement on the athlete to be physically present at the specified location during the 60-minute period that has been specified by him or her. It is not enough that the athlete be nearby, such that he or she can get to the specified location if asked to do so within the 60-minute period. It is instead an obligation to be physically at the specified location, and to be accessible and available for testing at that specified location during the specified time.

120. This is reinforced by:

a. Anti-Doping Regulations, Appendix A, paragraph 3.2 to the effect that the athlete must be “available and accessible” at the specified location in one specific 60-minute time slot.

b. Anti-Doping Regulations, Appendix A, paragraph 3.4 which requires the athlete “to provide sufficient information to enable the DCO to find the location, to gain access to the location and to find the athlete at the location”.

c. ISTI Annex I.3.2, pursuant to which an athlete is required to provide one specific 60- minute slot between 05:00 and 23.00 hours each day where “the athlete will be available and accessible for Testing at a specific location”.

d. The comment to ISTI Annex I.3.2 which says “The 60-minute time slot “anchors” the Athlete to a certain location for a particular day” and thus makes plain that the requirement to provide a 60-minute window each day is to provide a guarantee that the athlete can be found at that certain location and that a sample can be collected then and there, and also to anchor the athlete to that certain location at one time in the day for the purposes not just of testing in the specified window but to make it easier to locate the athlete for testing outside the window as well.

121. It is, therefore, the Panel’s view that the Athlete was required to be at his residential address and available to be tested there during the period specified by the Athlete on 9 December 2019, viz., between 7:15 and 8:15pm on the evening of 9 December 2019.

122. In any event, pursuant to the Appendix A of the Anti-Doping Regulations (para. 3.8) and ISTI Annex I (I.3.6), it is a matter for the Respondent to prove the constituent elements of an ADRV. The Respondent must establish (the burden on it) each of the following things in order to sustain a charge of a Missed Test:

a. One, that when the Athlete was given notice that he had been designated for inclusion in the Registered Testing Pool, he was advised that he would be liable for a Missed Test if he was unavailable for Testing during the 60-minute time slot specified in his Whereabouts Filing at the location specified for that time slot. It appears to be common ground that this element was satisfied.

b. Two, that a DCO attempted to test the Athlete by visiting the Athlete’s residential premises in Lexington, Kentucky on 9 December 2019 between 7:15 and 8:15pm, that being the location and time specified by the Athlete in his Whereabouts Filing for that day. Likewise, it is common ground that the DCO did so, although on the Athlete’s primary case it is suggested that the DCO left before the end of the 60-Minute period.

c. Three, that during that specified 60-minute time slot, the DCO did what was reasonable in the circumstances (given the nature of the specified location) to try to locate the Athlete, short of giving the Athlete any advance notice of the test. This is the essential dispute in this case.

d. Four, that the Athlete has been given notice of the earlier unsuccessful attempts at testing the Athlete (i.e. in January and April 2019) in accordance with the requirements of paragraph 4.2. It is common ground here that such notice has been given.

e. Five, that the Athlete’s failure to be available for testing at the specified location (i.e. his apartment) on 9 December 2019 during the specified 60-minute time slot was at least negligent; and, for these purposes, there is a rebuttable presumption that the Athlete has been negligent upon proof of the matters set out at subparagraphs (a) to (d) above. This presumption is rebuttable by the Athlete if he can establish that any failure on his part (i) to be available for testing between 7:15 and 8:15pm on that day at his apartment and (ii) to update his Whereabouts Filing to give notice of a different location where he would be available for testing during a specified 60-minute time slot on that day was not caused (or contributed to) by his negligence.

123. The elements put in issue by the Athlete are the third and fifth, as set forth in the prior paragraph. It is common ground that no issue arises with respect to first, second or fourth issues identified in the prior paragraph.

124. As to the third issue, the Parties are divided in that the Athlete says that the Respondent has not discharged its burden in this respect, while the Respondent says that DCO did what was reasonable in the circumstances to try to locate the Athlete, short of giving the Athlete any advance notice of the test. Indeed, the Athlete says, positively, that the DCO did not do so.

125. As to the fifth issue, the primary case on the part of the Athlete is that there was no failure on his part to be available for testing at his apartment on 9 December 2019; to the contrary, he was there from approximately 8:00 until shortly after 8:15pm, and the DCO was not.

126. Accordingly, these are the issues in these proceedings in relation to liability:

a. One, on 9 December 2019 did the DCO do what was reasonable in the circumstances to try to locate the Athlete, short of giving the Athlete any advance notice of the test?

b. Two, did the Athlete fail to be available for testing at his apartment on 9 December 2019 during the specified 60-minute time slot?

c. Three, if so, was that failure “at least negligent”?

127. In order to decide these questions, it is necessary for the Panel to form a view as to what took place on the evening of 9 December 2019. On this question, the Panel has read and heard the evidence of the Athlete himself and the DCO, Mr George, and has read and considered the witness statement of the BCA, Mrs Freese. The Panel has also had regard to the evidence given by these witnesses at the hearing before the AIU Disciplinary Tribunal.

128. The starting point is that, by his Whereabouts Filing for the 4th quarter 2019, the Athlete gave notice that he was available for testing on 9 December 2019 for the 60-minute period from 7:15pm - 8:15pm at his residential address in Lexington, Kentucky.

129. The Athlete lives in a gated community. There is an off-street parking area for non-residents. There is a gate across the roadway into the complex, which gate requires an access code. To the side of the gate is a footpath that allows access to pedestrians on foot. There is no gate across that footpath.

130. The evidence of Mr George is that on 9 December 2019 he arrived at the premises “at around 7:00-7:05” and that Mrs Freese was already there. Mr George and Mrs Freese parked in the visitor parking area outside the gate. Mr George asked someone he understood to be a staff member of the residential complex (who had approached him) about getting access and he was told that, if he did not have a code to the gate, he would have to take the footpath alongside the gate. The DCO and BCA did that and made their way to the Athlete’s apartment on foot, noticing when they arrived that the apartment was dark and there was no car parked in front of the (closed) garage at the ground floor beneath or adjacent to the living area of the Athlete’s apartment.

131. According to Mr George and Mrs Freese, Mr George knocked on the front door of the Athlete’s apartment and rang the doorbell at 7:15pm. Mr George’s evidence was to the effect that he could not hear the doorbell ringing inside so it was unclear to him if it was working, but he made “multiple knocks” on the door and rang the doorbell every 10 minutes during the entire one-hour period. It was, in fact, put to Mr George in cross-examination that he “knocked loud enough so that it could be heard on any of the three levels of the townhouse”, with which he agreed, and that any issue with the doorbell “would not have prevented the occupant of the townhouse from knowing that he [the DCO] was there”, with which he also agreed.

132. Mr George and Mrs Freese both gave evidence that there was no answer and no sign of anyone inside the apartment. The officers remained standing outside the apartment. It is their evidence that they left at 8:15pm and at no time did they see any sign of the Athlete. They made their way back to their cars in the parking area, from where Mr George took a photograph timestamped at 8:21pm (it would of course have been a relatively easy matter for the DCO (or the BCA) to render certain the times at which they arrived and left the apartment by the simple device of a time-stamped photograph on arrival and departure. No explanation was put forward as to why this was not done, nor why it is not part and parcel of every testing attempt).

133. Mr George and Mrs Freese gave clear and consistent evidence that they were at the Athlete’s premises for the entire 60-minute period from 7:15 to 8:15pm on 9 December 2019.

134. The DCO completed an “Unsuccessful Attempt Report” for 9 December 2019 (undated but said to have been completed contemporaneously) which corroborated his evidence.

135. The Athlete’s evidence is that he went by car to the Fayette Mall (on Nicholasville Road, Lexington, Kentucky near his apartment) on the late afternoon/evening of 9 December 2019

(he could not recall when he left home for this trip) in order to finish up his Christmas shopping and “to run my errands for the day”. It appears that the Athlete was keen to complete his Christmas shopping ahead of time because it was an extraordinarily busy period for him.

136. He says that he made purchases at Macy’s, a Dead Sea Beauty Products kiosk (the receipt is time-stamped 7:13pm), and at the Apple Store (the receipt is time-stamped 7:27pm), before going to Chipotle Mexican Grill (also in the Fayette Mall) to get dinner to go (the receipt is time-stamped at 7:53:46pm). He then went home, which trip he says took “5-6 minutes at the most” and he arrived home “between 7:58pm and 8:05pm, somewhere in that range”, and parked his car outside.

137. According to the evidence of the Athlete, he did not see anyone standing outside his apartment and he said that, if the DCO and BCA were there, he would have seen them. Indeed, he agreed that “it would have been impossible to miss” the DCO, had he been standing there.

138. The Athlete opened the garage door, walked through, and made his way upstairs into the apartment. He turned on the television to the Monday night NFL football game, and sat down at his table and ate his dinner from Chipotle. He says that he saw the pre-match build-up and the kick-off and that, shortly after the kick-off, he decided to head out to his local Walmart deli to get some supplies for training for the next and subsequent days. He is not entirely certain when he left, but it was shortly after the kick-off.

139. He drove from his apartment to Walmart, parked, made his way around the store buying 16 or 17 items, then paid for them via the self-service scanner. The transaction was completed at 8:22pm and he drove home.

140. The Athlete says therefore that he was home during the 60-minute slot, albeit not for all of it, and that the DCO was not at his premises.

141. The Panel is faced with a stark conflict in the evidence between the Athlete on the one hand and the DCO and BCA on the other. By its written submissions, the Respondent contended that, where there is a conflict between the evidence of a DCO and an athlete there is, in effect, a presumption in favour of the DCO evidence, rebuttable only by cogent evidence on the part of the athlete. The Respondent, rightly, did not press that position at the hearing. It is in the Panel’s view entirely misconceived and does not in any event accord with the authorities relied upon by the Respondent. The position must be, as the Respondent came to accept, that it is a matter for the Panel to form a view on the evidence and to weigh it according to its context and circumstances.

142. Having read and heard the evidence, the Panel does not accept the Athlete’s evidence on this issue. The Panel is of the clear view that the evidence of the DCO and the BCA is to be preferred. There is no reason at all not to accept the evidence of the officers that they were at the Athlete’s premises for the 60-minute time slot from 7:15 to 8:15pm on 9 December 2019. By contrast, the Panel finds the Athlete’s account wholly implausible. In the Panel’s view, it is wholly implausible that the Athlete arrived home when he says that he did only to leave very

shortly thereafter to go shopping for various items at Walmart, and that his account that he left the apartment, drove to Walmart and bought 16 or 17 grocery items all inside seven minutes is not to be believed. The Walmart trip had some life when it was said (incorrectly) that the trip to Walmart took place later that evening at around 10:00pm. But as soon as the Walmart transaction was clocked at 8:22pm, the Athlete’s story became untenable.

143. The ready and plausible explanation for the various movements on this evening is that the Athlete did in fact stop into Walmart on his way home from the Fayette Mall and that he did not make it home until sometime after 8:22pm, i.e., outside his 60-minute window.

144. There are other difficulties with the Athlete’s evidence, in that the account of what took place appears to have taken various forms over time. Ready examples are:

a. When the Walmart transaction first came to light, it was explained away as irrelevant because it took place at 10:00pm that night. It was only when the Walmart receipt entered the fray with its time-stamp of 8:22pm did the story change to a short, quick trip after 8:15pm, with the obvious difficulty that, for his account to hold up, the Athlete had to be at his apartment at 8:15pm but at Walmart at 8:22pm.

b. The Athlete’s Appeal complained that the Athlete was at home for at least some of the 60-minute window, “during which he was not able to hear the DCO knocking or the doorbell ringing from his position on the second floor of the townhouse”. By contrast, it was put to Mr George in cross-examination that he, Mr George, “knocked loud enough so that it could be heard on any of the three levels of the townhouse” and he agreed that any issue with the doorbell “would not have prevented the occupant of the townhouse from knowing that he was there”. This suggested that it came to be accepted on behalf of the Athlete that, if the Athlete were home, he would have heard the DCO knocking on the door.

145. In the result, the Panel finds, as a matter of fact, that there was no evidence supporting any claim that the Athlete was at the location identified by him at any time during the 60-minute slot specified by him for testing on 9 December, 2019.

146. As noted, to sustain a charge of a Missed Test, the Respondent must show that this failure on the part of the Athlete to be available for testing at the specified location on 9 December 2019 during the specified 60-minute time slot was “at least negligent”. Put another way, there is no strict liability here but, rather, there must be a measure of negligence – a lack of due care – in respect of the Athlete’s failure before the Athlete can be held liable. The Panel notes that this standard is separate, and different, from the standard of “significant fault” that applies under the WADC and its implementing legislation in determining whether there should be a reduction of a sanction.

147. The Panel is of the clear view that the Athlete’s failure in this respect was negligent. In the Panel’s view the Athlete did not take sufficient care to ensure that he was available at the location during the specified time on that day. The Panel has found that he was absent for the entire 60-minute period. But even on the Athlete’s own case, he decided to make a shopping

trip to the mall rather than remain at home for the entire period. It is obvious that the Athlete took, and was prepared to take, a risk that he would not be back in time if a test attempt was made that evening during his self-designated time period.

148. The Panel also notes that the Athlete accepted that he was required to be available in person at his specified location; not nearby, but at the location. Moreover, on 9 December 2019 the Athlete was sitting on two Whereabouts Failures. He must have known that a third would give rise to an ADRV, with a potential period of ineligibility of two years (the Panel is confident in its view that he was aware of this risk because he had been charged with three missed tests previously by USADA, though they later withdrew their charge upon closer review of the relevant rules). The Athlete nevertheless decided to spend his time shopping at Fayette Mall, with all of the attendant risk in so doing. To take that risk was careless.

149. The sole remaining question on liability is, therefore: did the DCO do what was reasonable in all the circumstances to try to locate the Athlete at the specified location?

150. By way of generality, it is important to note that the right question to be asked is whether or not, on 9 December 2019, Mr George did what was reasonable in all the circumstances to try to locate the Athlete at the specified location to collect a sample. It is not, as has sometimes been said by the Athlete, whether the DCO did what was reasonable in the circumstances to collect a sample from the Athlete.

151. This is obvious when one looks at the common-sense question to be asked by a DCO as set forth in the ISTI Guidelines - “Given the nature of the location specified by the Athlete, what do I need to do to ensure that if the Athlete is present, he/she will know that a DCO is here to collect a Sample from him/her?”

152. Thus, the question is: taking into account (a) the three-level townhouse specified by the Athlete and (b) the time of day specified by the Athlete, 7:15-8:15pm, what did Mr George need to do to ensure that if the Athlete was at home the Athlete would know that Mr George was there to collect a sample?

153. It is submitted by the Athlete that, had he received a call from the DCO five minutes before the end of the hour window, “whether he was in his apartment, at Wal-Mart, or on the road there or back, he absolutely would have submitted to a sample collection within the 60-minute window”.

154. There are two immediate difficulties for the Athlete. The first is that he was not at home, as the Panel has found. The second is it has been conceded by the Athlete that if the DCO knocked on the door loudly enough and often enough, anybody inside the home would know someone was at the door. It follows that if he were at home then he would have known that Mr George was there, so that it also follows that Mr George did what was reasonable in all the circumstances to try to locate the Athlete at the specified location.

155. The Athlete contends that, even so, it was incumbent on Mr George to call the Athlete at some point in time during the window on the basis that, if he were not at home, he could have made

his way home to be tested and that the failure on the part of Mr George to call him meant that there was no reasonable attempt on the part of Mr George to locate the Athlete on 9 December 2019.

156. The fatal flaw in the Athlete’s argument is that it fails to appreciate that the common-sense question to be posed by the DCO, set forth above, is founded on the premise that the athlete in question is present at the specified location (or in the immediate vicinity). As the Panel has concluded above, this means what it says: the athlete is required to be present at the location specified by him or her and not somewhere else, even if that somewhere else is a five-minute drive away.

157. In this respect, the Athlete relies on Annex I to ISTI, which is entitled “Code Article 2.4 Whereabouts Requirements” and, in particular, the comment to Annex I.4.3(c). These are set out above in full and upon the WADA Guidelines.

158. Both the ISTI and the WADA Guidelines make clear that: (a) telephone calls on the part of a DCO are not mandatory but discretionary; (b) the purpose of a call to the athlete is not to invite the athlete for testing but to verify whether or not the athlete is at the specified location; and (c) it is not necessary for an ADO to prove that the DCO made a call in order to sustain a Missed Test (more particularly in order to prove that a DCO did what was reasonable to try to locate the athlete at the specified location) and the absence of a call is not available as a defence to a charge of Missed Test (on the same basis), when they provide in pertinent part as follows:

a. The comment to Article I.4.3(c) of ISTI states that “Where an Athlete has not been located despite the DCO’s reasonable efforts, and there are only five minutes left within the 60-minute time slot, then as a last resort the DCO may (but does not have to) telephone the Athlete (assuming he/she has provided his/her telephone number in his/her Whereabouts Filing) to see if he/she is at the specified location” (emphasis added).

b. The final sentence of the comment to Article I.4.3(c) states in terms that the absence of a telephone call is absolutely discretionary and will not be defence to a Missed Test: “Because the making of a telephone call is discretionary rather than mandatory, and is left entirely to the absolute discretion of the Sample Collection Authority, proof that a telephone call was made is not a requisite element of a Missed Test, and the lack of a telephone call does not give the Athlete a defence to the assertion of a Missed Test” (emphasis added).

c. The WADA Guidelines include a specific paragraph on the steps that are likely to be reasonable when the “specified location is the Athlete’s house or other place of residence”. The relevant paragraph states that “the DCO should ring any entry bell and knock on the door as soon as he/she arrives. If the Athlete does not answer, the DCO may telephone the Athlete to advise him/her of the attempt in the closing five minutes of the 60-minute period. Such a call is not mandatory however, nor should it be used to invite the Athlete for Testing, but rather to potentially further validate that the Athlete is not present” (emphasis added).

159. The Athlete also invokes materials issued by other International Federations and ADOs in relation to what they say said about what a DCO should do in order to make a reasonable attempt to locate an athlete (and conduct a test) under their jurisdiction. Reliance is placed on the following:

a. The International Tennis Federation’s “Out-of-Competition ‘Whereabouts’ testing protocol for DCOs” provides, inter alia, that, “Where you have made a reasonable attempt (…) but have not been able to find the Player, and you cannot see any other way of locating the Player, as a last resort only, five (5) minutes before the end of the 60-minute time slot you shall telephone the Player, first at the location in question (if a number for that location has been provided in the whereabouts filing), and then (if that is unsuccessful) by calling the Player’s mobile phone”.

b. USADA’s guidelines, entitled “Locating Athletes for Out-of-Competition Testing”, provide that “Within the last five minutes of the Athlete’s 60-minute window, if determined the Athlete is still unavailable, the DCO should place a call to the primary number listed on the Athlete’s quarterly Whereabouts Filing”.

160. The difficulty for the Athlete is that these rules on testing are immaterial to this dispute, at least with respect to the question of what was required by the DCO on this occasion in this case. As explained by Mr George, the WADC (plus ISTI) provide the framework for anti-doping testing but each federation/ADO is free to construct its own rules so long as those rules are compliant with the WADC. It follows that it was entirely a matter for the AIU, as the entity requesting the test in question, to design its rules as it saw fit (assuming compliant), and to adopt its own position on the making of calls by the DCO.

161. Having said that, the Panel does accept that the different regimes, adopted by the AIU on the one hand, and USADA and others on the other hand, must give rise to uncertainty in the mind of any athlete as to what is required on any given occasion for the athlete to comply. It is not for the Panel, of course, but it is obvious that the more harmonisation there is across the various international regimes, the very much better it would be for everyone with an interest in these matters. It is not a matter, however, that bears on liability; instead it is to be brought to account when having regard to sanction and degree of fault. The Panel returns to this aspect below.

162. The Athlete relies on SR/Adhocsport/12/2018 and what is said there that the ‘no advance notice testing’ rule should be administered flexibly. SR/Adhocsport/12/2018 is, however, a very different case on the facts and it is certainly not authority for the proposition that a call should be made in every instance where the DCO cannot locate the athlete. That case does however assist the Panel by drawing attention to the following matters of general application:

a. Out-of-competition testing is an important element of the WADC and the general rule of no advance notification to the athlete is the “central element” of that regime.

b. While whereabouts requirements are onerous on athletes, they are necessary in order (1) to facilitate no advance notification out-of-competition testing, and (2) to allow athletes

to claim with credibility that they are subject to testing at any time so that the public can have confidence that the athletes are clean.

c. The definition of ‘no advance notice’ is clear – it requires that the athlete is continuously chaperoned from the moment of notification through to sample provision and that the chaperone be in sight of the athlete at all times.

d. If a call is placed by the DCO then it follows that the athlete does have notice and is not in the chaperone’s sight at all times.

163. As noted, the only criticism of the DCO here that remained in issue on this appeal is that the DCO did not make a telephone call to the Athlete. In the Panel’s view, that criticism is misplaced. As is made plain by the ADR, the Anti-Doping Regulations, ISTI and the WADA Guidelines, there is no requirement on the part of a DCO to place a telephone call, and it is entirely a matter for the discretion of the ADO. Here, the ADO took the view that the test should be without notice of any sort, something perfectly permissible under the Respondent’s rules. In any event, the stated purpose is not to call the athlete in – as would have been the case here because the Athlete was not at the specified location – but as a tool for the DCO when there is no apparent sign of the athlete at the location as a means to confirm, as a last resort, that the athlete is not there.

164. In the result, the Panel is of the clear view that, on 9 December 2019, the DCO did do what was reasonable in all the circumstances, given the nature of the residential premises and the time of day, to try to locate the Athlete at his home in Lexington, Kentucky. On the evening of 9 December 2019, the DCO knocked on the door and rang the bell in such a manner, as is accepted by the Athlete, that if anyone were home at the time they would have been made aware that the DCO was there. The Panel is more than satisfied that, had the Athlete been at home, the attempts made by the DCO on the night in question would have been perfectly adequate to let the Athlete know that someone was at the door. Had he been at home and answered the door, the test could have been conducted without issue.

165. Accordingly, the Panel finds that the Respondent has established, to the comfortable satisfaction of the Panel, that each of the ingredients of an ADRV has been proved.

B. Sanction

166. The Athlete also appeals the sanction imposed by the AIU Disciplinary Tribunal.

167. The Parties’ submissions on sanction are set out above at some length. In précis, the Athlete submits that his degree of fault here is at the low end of the spectrum so that a sanction closer 12 months is appropriate, while the Respondent submits that the Athlete’s degree of fault is at the high end and that there is no reason here to reduce the two-year sanction.

168. The following general matters are common ground between the Parties:

a. Article 10.3.2 provides that the period of ineligibility is two years subject to reduction down to a minimum of one year, depending on the Athlete’s “degree of Fault”.

b. This ‘flexibility’ is available to the Panel here as there is no suggestion that there has been a pattern of last-minute whereabouts changes or that other conduct raises a serious suspicion that the Athlete was trying to avoid being available for testing.

c. When assessing the Athlete’s degree of fault in this case, the Panel should take into account the circumstances surrounding all three ‘offences’ (i.e., the Missed Test of 16 January 2019, the Filing Failure of 26 April 2019 and the Missed Test of 9 December 2019).

d. “Fault” is a defined term in the WADC and the ADR. It is defined in both as “any breach of duty or any lack of care appropriate to a particular situation”.

e. The ADR (within the definition of “fault”) identifies a number of factors that are to be taken into account by a tribunal in considering an athlete’s degree of breach of duty. These are by way of example and are plainly neither exhaustive nor intended to be so. The example factors are:

i. the athlete’s experience;

ii. whether the athlete is a minor;

iii. any special considerations such as impairment;

iv. the degree of risk that should have been perceived by the athlete; and

v. the level of care and investigation exercised by the athlete in relation to what should have been the perceived level of risk.

f. The definition of “fault” also provides guidance by saying that the circumstances to be taken into account when assessing fault “must be specific and relevant to explain the Athlete’s (…) departure from the expected standard of behaviour”. Matters not of this character are to be ignored. As a result, “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 his or her career, or the timing of the sporting calendar” are not to be taken into account.

169. As noted, fault means “any breach of duty or any lack of care appropriate to a particular situation”. The duties on an athlete are set forth in the ADR, the Anti-Doping Regulations and in Annex I to ISTI.

170. The Panel notes the following express duties:

a. ADR Article 1.7: “All Athletes (…) shall be responsible for knowing what constitutes an Anti- Doping Rule Violation under these Anti-Doping Rules”.

b. Paragraph 1.1 of Appendix A to the Anti-Doping Regulations:

“An Athlete who is in a Registered Testing Pool (…) is required:

(a) to make quarterly Whereabouts Filings that provide accurate and complete information about the Athlete’s whereabouts during the forthcoming quarter, including identifying where he will be living, training and competing during that quarter, and to update those Whereabouts Filings where necessary so that he can be located for Testing during that quarter at the times and locations specified in the relevant Whereabouts Filing (see paragraph 3 of this Appendix below). A failure to do so may be declared a Filing Failure for the purposes of Article 2.4.

(b) to specify in his Whereabouts Filing, for each day in the forthcoming quarter, one specific 60- minute time slot where he will be available at a specified location for Testing: (see paragraph 4 of this Appendix below). This does not limit in any way the Athlete’s obligation under the Rules to be available for Testing at any time and place upon request by an Anti-Doping Organisation with Testing Authority over him. Nor does it limit his obligation to provide the information specified in paragraph 3 of this Appendix as to his whereabouts outside of that 60-minute time slot. However, if the Athlete is not available for Testing at such location during the 60-minute time slot specified for that day in his Whereabouts Filing, that failure may be declared a Missed Test for the purposes of Article 2.4 [of ADR]”.

c. ISTI Annex I Article I.1.1:

“An Athlete who is in a Registered Testing Pool is required:

a) to make quarterly Whereabouts Filings that provide accurate and complete information about the Athlete’s whereabouts during the forthcoming quarter, including identifying where he/she will be living, training and competing during that quarter, and to update those Whereabouts Filings where necessary, so that he/she can be located for Testing during that quarter at the times and locations specified in the relevant Whereabouts Filing, as specified in Article I.3. A failure to do so may be declared a Filing Failure; and

b) to specify in his/her Whereabouts Filings, for each day in the forthcoming quarter, one specific 60-minute time slot where he/she will be available at a specific location for Testing, as specified in Article I.4. (…) [I]f the Athlete is not available for Testing at such location during the 60-minute time slot specified for that day in his/her Whereabouts Filing, that failure may be declared a Missed Test”.

d. ISTI Annex I Article I.3.4: “It is the Athlete’s responsibility to ensure that he provides all of the information required in a Whereabouts Filing accurately and in sufficient detail to enable any Anti- Doping Organization (…) to locate the Athlete for Testing on any given day in the quarter at the times and locations specified by the Athlete in his Whereabouts Filing for that day, including (…) the 60-

minute time slot”. The comment to that Article provides that “Where an Athlete does not know precisely what his whereabouts will be at all times during the forthcoming quarter, he must provide his best information, based on where he expects to be at the relevant times, and then update that information as necessary”.

e. ISTI Annex I Article I.6.4: “In all cases (…): (a) each Athlete in a Registered Testing Pool remains ultimately responsible at all times for making accurate and complete Whereabouts Filings, whether he/she makes each filing personally or delegates the task to a third party. (…) and b) such Athlete remains personally responsible at all times for ensuring he/she is available for Testing at the whereabouts declared on his/her Whereabouts Filings”.

171. If it were necessary to summarise these various duties as they apply to the Athlete (an international level athlete in the Registered Testing Pool), it could fairly be said that the Athlete was under a duty to inform himself of what amounts to an ADRV under the ADR (and with that to understand the Whereabout requirements), to provide accurate and up-to-date whereabouts information at all times, and to make himself available for testing each day in the 60-minute window specified by him and at the place specified by him. In this respect, the Panel agrees with what was said in AAA No. 01-17-001-3244 at [7.7] that “We find that the level of care that is expected from a person such as [the Athlete] is at the very least the athlete’s compliance with the rules requiring accurate whereabouts information, and the athlete’s being available for testing where she has declared she would be in her Whereabouts Filing”.

172. As the Panel has concluded, certainly the failure on the Athlete’s part to be at his apartment during the specified hour on 9 December 2019 was negligent; put another way, there has in this case been a breach by the Athlete of his duty of care, and therefore a departure by him from the standard of behaviour expected of him. In accordance with the guidance (within the definition of “fault”) in the ADR on assessing fault, the task for the Panel is to take account of all specific and relevant matters that go to explain that departure by the Athlete.

173. As noted, it is common ground that this task is to be undertaken in respect of each of the three incidents that go to make up the ADRV. Having said that, because the focus before this Panel was almost exclusively upon the facts, matters and circumstances surrounding the events of 9 December 2019, the Panel is not in any position to form a considered view of those earlier incidents, and these are put to one side.

174. What then are the specific and relevant matters that go to explain the Athlete’s departure from the expected standard of behaviour in respect of the Missed Test of 9 December 2019? When one focuses upon this question, it is a relatively straightforward exercise of weighing in the balance such specific matters, both for and against.

175. The Athlete first relies on AAA No. 01-17-001-3244 and submits that, as there, the Panel should take into account: (a) that it was the Athlete’s first offence after years of frequent testing, both in and out of competition; (b) that there was no evidence of the Athlete seeking to avoid testing, masking drug use, or using drugs or otherwise seeking to evade doping controls; and (c) the fact that the Athlete has been subjected to frequent testing so that if he has three Whereabouts

Failures to his name within a 12-month period that is but a small fraction of the times that he has been tested.

176. The Panel acknowledges that this is the Athlete’s first offence and that, despite being subjected to frequent testing, there is no evidence of the Athlete seeking to avoid being tested, or masking drug use, or using drugs or otherwise seeking to evade doping controls. Indeed, the Panel would go so far as to say that all of the evidence in this case suggests that, to the contrary, the Athlete is a clean athlete and there is no room for suggestion otherwise.

177. But none of these matters is a specific matter that provides any measure of explanation as to the Athlete’s departure from the standard of behaviour expected of him on 9 December 2019 and, for that reason, these matters are not to be brought to account in assessing the Athlete’s degree of fault in relation to the 9 December 2019 Missed Test.

178. The Athlete next submits that the Panel should take into account that it has been the Athlete’s “custom and experience during his extensive drug testing history that a DCO making a test attempt will make a call to him if he cannot otherwise be located, prior to concluding the test attempt”. In this respect the Athlete relies on the following arguments:

a. The fact that there have only been two “no call” testing attempts made on the Athlete in his career, the other of which was after the 9 December 2019 test attempt.

b. It is said that this experience is consistent with that of many other athletes. The Athlete puts forward an analysis of 25 “Unsuccessful Attempt Reports” from other whereabouts cases conducted under the authority of various different ADOs from 2015 to 2020. It is said that this analysis shows that:

i. the DCO called the athlete during the 60-minute window in 14 out of 16 of the test attempts conducted in these cases;

ii. in each of the two instances in which the DCO did not call the athlete during the 60-minute window, an individual at the location placed a call to the athlete and the DCO spoke to the athlete over the telephone;

iii. in 12 out of 16 of these cases, more than one call was placed in an attempt to locate the athlete in question;

iv. the athletes had multiple Filing Failures and/or Missed Tests counted against them; and

v. in the result, each athlete received some manner of telephone contact from the DCO.

179. On the back of this experience, it is submitted that, despite the fact that a telephone call during the 60-minute window may not be mandatory, it was nevertheless reasonable for the Athlete to

expect such a call – and, had the DCO placed such a call to the Athlete on 9 December 2019, the Athlete would have been available at his stated location for the sample collection and a successful sample collection would have been conducted.

180. The Panel accepts this submission in part. The Panel accepts that it is right to take account of the Athlete’s own particular experience in this respect because it is fair to say that such experience had an influence on the Athlete’s decision on 9 December 2019 to be away from home during the specified time slot – and is therefore a matter that is both specific and relevant to explain the Athlete’s conduct on 9 December 2019.

181. The Athlete’s particular experience was as follows. First, in the long history of testing performed on the Athlete, he had received on numerous occasions a call from the DCO during the 60- minute time slot and never before 9 December 2019 had there been a no-call instruction: indeed, there have only been two “no call” testing attempts made on the Athlete in his entire career, one on 9 December 2019 and one after 9 December 2019. Second, while the Respondent was keen to stress that the Athlete had received a considerable amount of training in whereabouts matters, closer examination of the training material in fact suggests that the training received by the Athlete reinforced the practice of a DCO placing a call before the expiry of the 60-minute slot.

182. In this respect, the Panel notes the following:

a. All of the training material in evidence relates to training by USADA and not by the Respondent. As an aside, when asked whether the Respondent had provided training to the Athlete on the Respondent’s doping control process, Mr Roux’s answer was that he had “no idea”.

b. USADA’s guidelines (entitled “Locating Athletes for Out-of-Competition Testing”) in fact provide that a DCO should call an athlete at the 55-minute mark of the hour if the athlete has not yet been found: “Within the last five minutes of the Athlete’s 60-minute window, if determined the Athlete is still unavailable, the DCO should place a call to the primary number listed on the Athlete’s quarterly Whereabouts Filing”.

c. The training material expressly noted that a telephone call would be made in the last five minutes. This was said in relation to notification for those athletes in an international testing pool (i.e., the Athlete): “Phone call made to athlete in last five minutes of 60-minute time slot. The phone call is for confirming unavailability of athlete, not to locate athlete for testing”.

183. On balance, therefore, the Panel is prepared to take these matters into account as providing some explanation for the Athlete’s conduct on 9 December 2019.

184. For its part, the Respondent submits that, by the time 9 December 2019 came around, whatever had happened in the past, the Athlete was sitting on two Whereabouts Failures and he should have been on “high-alert”. The Panel agrees. There is no doubt that the Athlete should have been acutely aware of the fact that he was on two out of three strikes and that the consequences of a

third were dire. Quite plainly, he should have taken every step within his control to ensure that a third Whereabouts Failure did not happen. It is right to weigh that in the balance when assessing the Athlete’s degree of fault in respect of the incident on 9 December 2019.

185. Accordingly, it is a matter for the Panel to form a view of the appropriate sanction when each of these matters is brought to account. The Panel could find no cases setting forth a standard for assessing fault in these matters, though there are myriad outcomes and facts and circumstances.

186. In CAS 2013/A/3327 & 3335, in a case that was not concerned with whereabouts matters and with a period of ineligibility of 0-24 months, the CAS panel calibrated “Significant Fault” according to three levels as “significant” (16-24 months, with a midpoint of 20 months), “normal” (8-16 months, with a midpoint of 12 months) and “light” 0-8 months, with a midpoint of 4 months).

187. That is a helpful guide, though the calibration would necessarily be different here in light of the different possible period of ineligibility of 12-24 months; thus (albeit using slightly different labels) the following levels of fault would correspond to whereabouts cases: “high” (20-24 months, with a midpoint of 22 months), “medium” (16-20 months, with a midpoint of 18 months), and “low” 12-16 months, with a midpoint of 14 months).

188. The most important factors for the Panel in this context are as follows:

a. One, as the Panel has now found, the Athlete was not at home during the 60-minute time slot on 9 December 2019, as he should have been, and he saw fit to take a risk that a DCO would call for testing that evening. The Panel is not concerned here with an emergency or unforeseen outing of some sort (an urgent trip to the doctor, for example), or a family situation or crisis, but instead with a leisurely outing to the local shopping mall which could readily have been done at a different time. Nor is the Panel here concerned with a frustrated attempt to return home during the 60-minute window. By contrast, it seems that the Athlete either chose not to make it home in time or let time run away on him; either way it was careless in the extreme.

b. Two, as noted, the Athlete should have been on ‘high-alert’ on the evening of 9 December 2019, given the two strikes against him. The fact that he was not is impossible to understand.

c. Three, whatever the formal position under the Respondent’s rules and regulations relating to the making of a telephone call, right up until the evening of 9 December 2019 the practice deployed when testing the Athlete more often than not included, when a DCO could not immediately locate the Athlete, a telephone call to the Athlete - and this practice was expressly underscored by the very training materials used by USADA in training the Athlete on his whereabouts obligations (and relied upon by the Respondent for establishing that the Athlete had received ample education about his whereabouts-related obligations). For the evening of 9 December 2019, the evidence is that, had he not been

instructed not to call, the DCO would have called the Athlete and that, had the Athlete been called, he would have been able to return to his apartment during the 60-minute window and a test would have been concluded.

189. On balance, there is enough here, in the Panel’s view, to shift the Athlete’s degree of fault away from the highest end of the spectrum. There is a very high responsibility on all athletes (including the Athlete) to comply with the whereabouts requirements at all times but, at the same time, there is an equally high responsibility on the Respondent here (and on any federation) to ensure that the rules with which the athletes must comply are clear in both word and application in order to ensure that the doping control programme does not become arbitrary and capricious.

190. In the result, the Panel takes the view that, upon taking into account the specific and relevant factors which go to explain the Athlete’s departure from the standard of behaviour expected of him in respect of his conduct on 9 December 2019, the Athlete’s degree of fault falls to be characterised as “medium”, i.e. within the 16-20 months band, with a midpoint of 18 months.

191. The Panel, therefore, partially upholds the appeal and reduces the period of ineligibility from 24 months to 18 months.