International Weightlifting Federation (IWF) v. Ahmed Al-Hussein, Safaa Rashid Al-Jumaili, Salwan Jasim Alaifuri

I. INTRODUCTION

1. The International Weightlifting Federation (IWF) brings allegations of breaches of its antidoping rules against the Respondents. The Respondents returned positive tests for the prohibited substance higenamine at international weightlifting competitions held in Rasht, Iran, and Dubai, United Arab Emirates (UAE), in February 2020.

2. The source of the prohibited substance which gave rise to the positive tests is accepted by the International Testing Agency (ITA) (which brings the allegations on behalf of IWF) as being a pre-workout supplement called Impact Igniter which is produced by a supplement company called ALLMAX and sold over the counter in stores.

V. JURISDICTION

56. The IWF ADR 2021 which are applicable to procedural matters provide for the jurisdiction of the CAS ADD at Article 8.1.1.

57. The Athletes did not object to the jurisdiction of the CAS ADD and each party signed and returned the Order of Procedure confirming the jurisdiction of the CAS ADD.

58. In light of the above, the Sole Arbitrator is satisfied that the CAS ADD has jurisdiction to entertain the Request for Arbitration filed by the IWF.

VI. ADMISSIBILITY

59. The IWF has delegated its responsibility for results management including the bringing of allegations of breach of the IWF ADR to the ITA. The IWF ADR 2021 provide for the jurisdiction of CAS ADD to determine allegations of breach of the IWF ADR. There is no dispute as to the admissibility of the proceedings and the parties have confirmed their agreement by signing the Order of Procedure.

VII. APPLICABLE LAW

60. Article A20 of the CAS ADD Rules provides for the application of the IWF ADR or laws of a particular jurisdiction agreed by the Parties or in absence of agreement on applicable law, Swiss law. There is no agreement between the parties as to the application of any particular law. The application falls to be determined by reference to the IWF ADR and Swiss law, on a subsidiary basis.

VIII. MERITS — A. Consolidation of proceedings

61. In the cover letter of its Request for Arbitration, the IWF requested that, as per Article A14 of the CAS ADD Rules, and considering the facts giving rise to the ADRVs committed by all three Athletes are substantially similar, all procedures be consolidated.

62. In its letter of 26 August 2021, the CAS ADD Office invited the three Athletes, no later than 31 August 2021, to provide their positions on the IWF’s request to consolidate these matters in a single arbitration.

63. On 29 August 2021, Mr Al-Hussein and Mr. Al-Jumaili agreed upon the consolidations of the procedures, whereas Mr Alaifuri did not file his position on such issue, but never formally objected to the request for consolidation.

64. Considering the Parties’ Positions (and silence), it is clear that the circumstances of each AAF, having regard to the case put forward by the Athletes, involves significant common issues of fact and law. Accordingly, it is appropriate, both legally and practically, that the matters be determined in a single procedure. This was confirmed by the Sole Arbitrator by letter of 3 November 2021.

B. Anti-Doping Rule Violations – Article 2.1

65. Although the proceedings and hearing proceeded (like the earlier correspondence between the ITA and the Federation and the Athletes) on the basis that the only issue was the sanction for the breaches of Article 2.1, the violations under Article 2.1 have not been formally admitted by the Athletes.

66. The substance detected in the samples provided by the Athletes was higenamine which was at the time when the samples were taken a prohibited substance under S3 Beta-Agonist of the Prohibited List 20201. Furthermore, the testing procedures and results reported have not been challenged by the Athletes. Accordingly, the Sole Arbitrator finds that the evidence establishes to the required standard of comfortable satisfaction that Mr. Al-Jumaili committed a violation of Article 2.1 IWF ADR on 3 February 2020; that Mr. Alaifuri committed a violation of Article 2.1 IWF ADR on 4 February 2020; and that Mr. Al-Hussein committed a violation of Article 2.1 IWF ADR on 28 February 2020.

C. Consequences

67. As regards the consequences of the violations, the ITA accepts that the conduct of the Athletes was not intentional as provided by Article 10.2.3. This means that the presumptive period of ineligibility for a violation of Article 2.1 involving a specified substance such as higenamine as a first violation is two years under Article 10.2.2. The potential application of any defence to eliminate or reduce this period of ineligibility involves considering the fault of the athlete in the circumstances of the violation.

D. General nature of rules

68. The IWF ADR, like all anti-doping rules which implement the World Anti-Doping Code, impose a personal duty of care on athletes to avoid committing violations by ingesting prohibited substances. Athletes who compete at the international level are generally expected to show a high degree of care in complying with their anti-doping obligations; they are expected to be aware of the rules and the care which must be taken to avoid committing doping violations. The degree of fault of an athlete in relation to a breach of the rules has to be considered in the context of this expected standard of conduct.

69. The defence of no-fault provides for the elimination of the period of ineligibility in exceptional circumstances. This defence can only apply where an athlete can establish that he or she could not have known or suspected even with the exercise of utmost caution that he or she had used a prohibited substance or violated an anti-doping rule. This defence is for exceptional cases.

E. No significant fault or negligence

70. To reduce the period of ineligibility from two years for a violation under Article 2.1, an athlete has first to establish that his or her fault or negligence in connection with the violation is not “significant”. The ITA confirmed the position set out in its written request at the beginning and end of the hearing before CAS ADD; it accepted that each Athlete could establish no significant fault or negligence so that the sanction for the violation could be reduced under Article 10.5.1.12.

1 The level of the substance detected in Mr. Al-Hussein’s sample is low. While this is beneath the minimum required detection level for laboratories under the TD2018MRPL, this level is not a reporting level. There is no level beneath which an AAF cannot be reported. Any detected level amounts to a violation. 2 The defence under Article 10.5.1.2 is specifically for contaminated products. This is not applicable on the facts because the label lists the prohibited substance.

The reason for the ITA’s position was that the Athletes are not able to read or write English and this put them at a disadvantage in being able to take the expected steps to avoid a positive test - checking on the contents of the product to find out whether it contained a prohibited substance.

71. The ITA position could be seen as generous where the Athletes are experienced international level Athletes, who are expected to be aware of their obligations and the steps required to comply with them3. Overall, having read the communications in the proceedings and having heard the evidence at the remote hearing, the Sole Arbitrator considers that the ITA position accepting the application of the defence was appropriate4.

72. Only the defence which allows reduction of the period of ineligibility under Article 10.5.1.1 is relevant. There is no basis for a plea of no-fault under Article 10.4 because none of the Athletes exercised the utmost caution to avoid testing positive. Rather each failed to take steps that should have been taken to avoid taking a pre-workout supplement containing a prohibited substance in competition.

73. Where Article 10.5.1.1 is applicable the consequences of the violation for each Athlete must be determined by reference to his degree of fault. The degree of fault is assessed by applying the definition of fault. This definition is applicable to any consideration of fault under the IWF ADR:

“Fault is any breach of duty or any lack of care appropriate to a particular situation. Factors to be taken into consideration in assessing an Athlete’s or other Person’s degree of Fault include, for example, the Athlete’s or other Person’s experience, whether the Athlete or other Person is a Protected Person, special considerations such as impairment, the degree of risk that should have been perceived by the Athlete and the level of care and investigation exercised by the Athlete in relation to what should have been the perceived level of risk. In assessing the Athlete’s or other Person’s degree of Fault, the circumstances considered must be specific and relevant to explain the Athlete’s or other Person’s departure from the expected standard of behaviour. Thus, for example, the fact that an Athlete would lose the opportunity to earn large sums of money 64 during a period of Ineligibility, or the fact that the Athlete only has a short time left in a career, or the timing of the sporting calendar, would not be relevant factors to be considered in reducing the period of Ineligibility under Rules 10.6.1 or 10.6.2”.

74. Determining fault involves considering the degree of risk that should have been perceived by the athlete in the particular circumstances in which the violation was committed and the level of care that should have been taken exercised in relation to the perceived level of risk must be considered. The personal characteristics of the athlete and any disability are relevant to the consideration of fault because they may explain why the athlete has not met the expected standard of behaviour in the circumstances. Such characteristics may lessen the degree of fault present in a breach of the rules.

75. In considering the sanction applicable under Article 10.5.1.1, CAS awards which divide the degrees of fault covered by the defence into bands – “light fault” “normal fault” or “significant

3 For example, see CAS 2017/A/5320. 4 The Sole Arbitrator also considers that it would not be fair to the athletes to proceed on any other basis.

or considerable fault” 5 – and allocate to each band a range of periods of ineligibility, assist in the exercise of considering an athlete’s fault and arriving at an appropriate sanction reflecting the degree of fault.

76. From the outset the explanations given by the Iraqi Federation on behalf of the Athletes established the basic circumstances in which the violations arose – the Athletes took the ALLMAX product which had been purchased at a store at the competitions in Iran and Dubai and this produced the positive tests. The written and oral statements from the Athletes provided more information about the circumstances in which the violations arose and there were some differences in the explanations by the Athletes. The early emails from the Federation said that the Athletes purchased the package. Mr. Al-Hussein purchased the package and had possession of it. There is no evidence that he purchased it for the team. It was his pre-workout supplement although it was used by his teammates. The other area relates to the extent of Mr. Alaifuri and Mr. Al-Jumaili’s knowledge of the product before they used it at the Fajr Cup in Rasht on 3 and 4 February 2020. Mr. Alaifuri maintained that he simply drank the power drink put out for him; he did not know about the product or who mixed and placed it on the table to drink. Mr. Al- Jumaili competed in the same weight division as Mr. Al-Hussein said that he had not seen the can but that Mr. Al-Hussein had recommended the product. He said that Mr. Al-Hussein had mixed the product for him on the day of the competition. He had taken it before lifting. Mr. Alaifuri competed in a different weight class the next day. He also drank the supplement before lifting. He said he had not mixed the product. It is not clear who mixed the ALLMAX product which Mr. Alaifuri consumed; he said that he did not mix the drink and Mr. Al-Hussein said that he had not mixed the drink for Mr. Alaifuri or given the drink to any coach to mix. It is, however, clear that Mr. Alaifuri used the product which had been purchased by Mr. Al-Hussein as a pre-competition energy drink. The key facts and considerations for the assessment of fault are as follows:

- Mr. Al-Hussein purchased the ALLMAX pre-workout supplement over the counter from a supplement store in Baghdad. He had purchased products at the store in the past. He had told the salesperson that he was competing for the national team at weightlifting. He has asked whether the product was safe for him to use. The salesperson said it was. Mr. Al-Hussein purchased one can. He did not look at the label on the container because he does not read English. He took no more steps to check on the can or ask any other person to check the contents before the product was used in the two competitions. He kept the supplement at home.

- The supplement was taken to the competition in Rasht, Iran, by Mr. Al-Hussein for use as a pre-competition drink. It is normal for the lifters to take an energy-boosting drink pre-competition. Mr. Al-Jumaili and Mr. Alaifuri took the product in a drink on the day 5 The awards are well-known CAS 2013/A/3327; CAS 2017/A/5015; CAS 2016/A/4371. While dividing the range for possible sanctions into bands provides useful guidance for the consideration of the decision on the period of ineligibility the exercise remains one of considering the fault in the case by applying the definitions in the Code to the circumstances of the violation and considering any relevant personal characteristics of the athlete. The use of the word “significant” to describe the higher range of fault within the range of fault under the Article 10.5.1.1. defence creates some difficulty of language where the requirement for the defence to apply is that the fault is not “significant”. The Sole Arbitrator prefers to describe the upper band of fault under the defence as “high” or “considerable”.

of the competition in the warm-up area before competing. Mr. Al-Jumaili and Mr. Al- Hussein competed on the same day in the same weight category. Mr. Al-Hussein had told Mr. Al-Jumaili that the ALLMAX product was a good product. Either he or Mr. Al- Jumaili mixed the product for Mr. Al-Jumaili. Mr. Al-Jumaili drank it in the warm-up room as he was preparing to lift.

- Mr. Alaifuri drank the product while preparing to lift in the 109kg category on the second day of the competition at Rasht. He took the drink from a table in the warm-up room and drank it in preparation for his competition. He assumed that the drink was ok. He had not mixed the drink.

- Neither Mr. Al-Jumaili nor Mr. Alaifuri saw or examined the can of product. Mr. Al- Jumaili trusted the recommendation of his teammate Mr. Al-Hussein. Mr. Alaifuri seems to have assumed that the drink was okay. He too relied on the person who provided the ALLMAX product to drink (Mr. Al-Hussein); he also relied on the team coaches and officials who did speak English and knew about supplements to ensure that any precompetition drink was safe to use.

- After the competition in Rasht, Mr. Al-Hussein used the product at the competition in Dubai. Mr. Al-Jumaili and Mr. Alaifuri did not use the product at that competition but used a different pre-work-out power drinking product.

- Each Athlete knew that they were drinking a pre-workout energy drink. None of the Athletes asked any third party to check the drink or advise them about the product.

- None of the Athletes can read or write English. The Athletes are generally well aware of their anti-doping obligations and the need to compete clean. But they do not appear to have been specifically educated about the risks that supplements on general sale may have had prohibited substances added by the manufacturers.

F. Discussion

77. The Athletes are all experienced and compete internationally. They took the ALLMAX product in competition when an experienced athlete should be expected to take all necessary steps to avoid breaking the anti-doping rules. Plainly none of the Athletes were intending to break the rules; each thought that the product was safe to use. Each Athlete has made a careless mistake with significant consequences.

78. Mr. Al-Hussein purchased the product and had it in his possession before it was used by his teammates at Rasht and after that by him at Dubai. He asked some questions in the store when he purchased the product but did nothing after that. His lack of English would make it harder to carry out normal checks on the product himself and less likely that he would attempt them. It also perhaps makes it more likely that he might not question a product on sale over the counter in a supplement store and that he would trust the salesperson and the product itself. While the product lists the prohibited substance in its ingredients on the label, the label does

not appear to contain any express warning (whether in writing or symbol) about the risk of breaking anti-doping rules. The failure by Mr. Al-Hussein to ask any third party about the product (apart from the salesperson) and its contents or have any checks carried out is conduct that falls a considerable way short of the standard of care which is required from an international athlete under the rules.

79. Mr Al-Jumaili is an experienced athlete. He was aware that Mr. Al-Hussein had the product. He took Mr. Al-Hussein’s recommendation about the product and used the product before competing. Mr. Al-Jumaili’s lack of English might make it less likely that he would ask to see the can or seek to carry out his own checks. But again, an experienced athlete should have made inquiries about the product of Mr. Al-Hussein or of an official. If he could not be satisfied, he should not have taken the product. Taking such a product in competition relying entirely on any checks by a teammate and his recommendation again falls a considerable way below the standard of compliance for an experienced athlete.

80. Mr. Alaifuri is also an experienced athlete. He did not purchase the product. His statement is to the effect that he was not involved in preparing the drink which he drank before competing in the warm-up area. While he knew that he was drinking an energy drink pre-competition, he did not see the can and did not know what the drink was. This lack of knowledge about the product is supported by Mr. Alaifuri’s declarations on the doping control forms. In Dubai where he says, he knew the identity of the energy drink he took; he names it on the form (“energy bomb”).

81. It seems likely that Mr. Al-Jumaili and Mr. Alaifuri used the supplement which had been purchased by Mr. Al-Hussein at the Rasht competition because they did not have their own energy drink at the competition. But, on any view, Mr. Alaifuri took what he knew was an energy drink in competition without any inquiry whatsoever. Again, this conduct falls some way below the standard of compliance with the anti-doping obligations expected of an experienced athlete.

82. While there are differences in the circumstances of the violations for each Athlete when considered in the context of the obligations of athletes under the anti-doping regime, the fault involved is similar. Mr. Al-Hussein had more opportunity to check the product or have it checked; Mr. Al-Jumaili and Mr. Alaifuri had more limited time in which to exercise caution. But in the context of an anti-doping regime that imposes obligations of utmost caution, the fault of each Athlete can only be described as high.

83. The relevant consideration under the rules is the conduct of the athlete and what the athlete has done to discharge his personal obligations under the rules. Athletes who consume supplements to which manufacturers have added prohibited substances may say with justification that the manufacturer’s failure is the cause of their misfortune. But that is not relevant to the assessment of the athlete’s individual fault under the rules. Nor can an athlete say that he or she should have been better protected by the team officials in his sport and that this explains a failure to meet the responsibilities under the rules. What matters is the conduct of the athlete and what he did to avoid taking the supplement with the prohibited substance in it.

84. The personal characteristics of the Athletes which offer some explanations for their failure to take the care expected are that they do not read or write English (nor Arabic in Mr. Al-Jumaili’s case), and that they do not appear to have had a developed understanding about the significant risk with supplements sold over the counter at stores. All the Athletes were aware of the antidoping regime and their general obligations under it. Mr. Jawad, the coach, explained at the hearing, that the Athletes had been made aware of their obligations. However, the Athletes do not appear to have had the kind of education and access to information about supplements available in some jurisdictions. Together, these factors may explain why the athletes do not appear to have turned their minds to the risk posed by the product/drink and why they took little or no care to check on it.

G. Degree of fault – period of ineligibility

85. Any reduction from the two-year period of ineligibility can only be relatively small because on an objective consideration each of the Athletes fell a considerable way short of the standard expected of international athletes. The degree of fault of each athlete under Article 10.5.1.1 must fall within the part of the range described covering high fault. On the banding approach, the period of ineligibility for this level or fault lies between 16 and 24 months. After considering the circumstances set out above, the Sole Arbitrator has decided that the period of ineligibility of 20 months for the violation of Article 2.1 committed by each Athlete put forward by the ITA is appropriate. The Sole Arbitrator considers that this period of ineligibility properly reflects the failure by each Athlete to meet the standard of care required under the rules and the personal factors which provide some explanation for the failure. This means that period of ineligibility for Mr. Al-Hussein is 20 months.

86. Mr. Alaifuri and Mr. Al-Jumaili have previous violations which are within the same 10-year period as the current violations. Mr. Al-Jumaili served a two-year period of ineligibility from 23 June 2013 to 23 June 2015. Mr. Alaifuri served a two-year period of ineligibility from 27 July 2011 to 27 July 2013. Under IWF ADR 10.7.1(c) – the applicable period of ineligibility for both Athletes is twice the period of the second violation taken as a first violation. This means that period of ineligibility for Mr. Alaifuri and Mr. Al-Jumaili is twice the period of 20 months, i.e. 40 months.

87. Both Mr Alaifuri and Mr Al-Jumaili have stated that this doubled period of ineligibility applicable for a second violation under Article 10.7.1(c) is unfair and should be reduced or cancelled. The point was not expressed in this way, but this might be said to raise the question of whether the doubled period of ineligibility under the rules infringes general principles of proportionality. The IWF ADR implement the World Anti-Doping Code. The Code is an internationally agreed set of anti-doping rules which has been formulated to accord with fundamental principles of proportionality. While the penalty for a second violation is significant, the general principles of proportionality do not provide a basis to reduce the period of ineligibility reached on the application of the rules.

H. Credit for provisional suspension

88. The ITA accepts that all the Athletes are entitled to the benefit of the period of provisional suspension under Article 10.10.3. The ITA records that the Athletes have been provisionally suspended since 19 April 2020; with the credit for the period of the provisional suspension, the period of ineligibility should commence on 19 April 2020. The Sole Arbitrator also considers that the start of the period of ineligibility should be back-dated under Article 10.10.1.

I. Article 10.10.1

89. The process of doping control in these cases began with sample collections in February 2020. The ITA sought to enter into agreements as to consequences with the Athletes in November 2020 and May 2021. The proposals were revised for both Mr. Al-Hussein and Mr. Al-Jumaili and the position of the ITA on sanctions for them before CAS ADD reflected the second proposal. The position on the proposal made to Mr. Alaifuri was different from the position taken in the proceedings before CAS ADD. It is, of course, entirely appropriate for anti-doping organisations to seek to enter agreements as to consequences. However, this case involves allegations of breaches of Article 2.1 arising from positive tests; from the time of sample collection, it has taken over 16 months for the allegations to be referred to CAS ADD. There have been obvious communication difficulties but there have also been periods of inactivity – for example, December 2020 to March 2021. The Sole Arbitrator considers that there has been substantial delay in the doping control process which he does not consider can properly be attributed to the Athletes.

90. In the circumstances, the Sole Arbitrator considers that the periods of ineligibility imposed should start at the date of sample collection under Article 10.10.1 IWF ADR. As a consequence of this backdating of the start date, all results from the time of sample collection including those during the period of retroactive ineligibility must be disqualified. This includes the results obtained by Mr. Al-Jumaili and Mr. Alaifuri in Dubai on 28 and 29 February 2020.

91. As regards the disqualification of results, the results of each Athlete at the 5th International Fajr Cup on 3 and 4 February 2020 are disqualified including the forfeiture of any medals, prizes, and points. The results of Mr. Al-Hussein at the West Asia Championships in Dubai on 28 February 2020 are disqualified including the forfeiture of any medals, prizes, and points.

IX. FINANCIAL SANCTIONS/COSTS

(…).

X. APPEAL

96. Pursuant to Article A21 of the ADD Rules, this Award may be appealed to the CAS Appeals Arbitration Division within 21 days from receipt of the notification of the final Award with reasons. Such appeal is to be filed in accordance with Articles R47 et seq. of the CAS Code, applicable to appeals procedures.