World Anti-Doping Agency (WADA) v. Monica Maria Cajamarca Illescas, Organizacion Nacional Antidopaje del Ecuador (ONADE)

II. FACTUAL BACKGROUND — A. Background Facts

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

5. On 10 April 2016, the Athlete participated in the city marathon in Vienna, Austria. On such occasion she underwent an “in-competition” doping control (the “First Control”). The doping control was carried out under the responsibility of the International Association of Athletics Federations (“IAAF”).

6. The analysis of the A-sample provided by the Athlete in the First Control revealed the presence of “19-norandrosterone” (the “Substance”), an endogenous anabolic androgenic steroid, prohibited under section S1.1.b of the 2016 WADA List of Prohibited Substances (the “List”), at a concentration of 72 ng/ml (the “First Result”). The Substance is a “non-specified substance” for the purposes of the List. The Athlete waived her right to have the B-sample analysed.

7. On 5 May 2016, the Athlete underwent an “out-of-competition” doping control, carried out by ONADE (the “Second Control”).

8. The analysis of the sample provided by the Athlete in the Second Control also revealed the presence of the Substance at a concentration of 18 ng/ml (the “Second Result”).

9. On 11 May 2016, the IAAF notified the Athlete of the First Result and granted her the possibility to submit explanations regarding the relevant findings.

10. On 12 May 2016, the Athlete was provisionally suspended by the IAAF.

11. On 6 June 2016, ONADE notified the Athlete of the Second Result, expressly advising her of her right to have the B-sample analysed. The Athlete waived her right to have the B-sample analysed.

12. On 11 July 2016, the Disciplinary Committee of ONADE rendered its decision (the “Appealed Decision”), by means of which, in particular, the Athlete was found liable “for the violation of sports and anti-doping regulations, article 2 number 3 section a of the International Convention

against Doping in Sports, in concordance with article 2.1 of the World Anti-Doping Code” and was imposed a one-year “temporary suspension” starting on 12 May 2016.

13. On 30 September 2016, WADA was notified of the Appealed Decision.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

14. On 21 October 2016, WADA filed a statement of appeal with the Court of Arbitration for Sport (the “CAS”) pursuant to Article R48 of the Code of Sports-related Arbitration (the “Code”) against ONADE and the Athlete with respect to the Appealed Decision. WADA designated the statement of appeal as its appeal brief (the “Appeal Brief”).

15. On 17 November 2016, ONADE filed its answer with the CAS Court Office pursuant to Article

16. On the same date, the CAS Court Office informed the parties that the Athlete had failed to provide her answer pursuant to Article R55 of the Code within the time limit indicated therein.

17. On 28 November 2016, the Appellant informed the CAS Court Office of its preference for the Sole Arbitrator to render an award only on the basis of the parties’ written submissions.

18. On 14 December 2016, the CAS Court Office informed the parties that the Panel appointed by the Deputy President of the CAS Appeals Arbitration Division in the present proceedings was constituted by Mr Conny Jörneklint, former Chief Judge in Kalmar, Sweden, as Sole Arbitrator.

19. On 21 December 2016, the Athlete filed her answer pursuant to Article R55 of the Code but out of the time limit stipulated therein.

20. On 21 December 2016, the CAS Court Office invited WADA and ONADE to comment on the late filing of the answer by the Athlete.

21. On 3 January 2017, WADA informed the CAS Court Office that it “would in principle not oppose the Athlete’s answer being admitted to the file”. As a consequence the Sole Arbitrator did not find that the Athlete’s letter and assertions of 21 December 2016 made without a lawyer was in breach of Article R55 of the Code.

22. On 17 January 2017, the Appellant filed an unsolicited submission and the Respondents were invited to comment on the admissibility of the same. The First Respondent objected thereto. As these submissions were made to comment on the allegations made by the Athlete on 21 December 2016 the Sole Arbitrator did not find them to be in breach of Article R56 of the Code.

23. On 19 January 2017 the Athlete sent a letter which is described at the analysis of the merits and where the Athlete argued that she had not changed her version of the situation.

24. On 10 March 2017, the First Respondent informed the CAS Court Office of its preference for the Sole Arbitrator to render an award on the sole basis of the parties’ written submissions.

25. On 13 March 2017, the Second Respondent filed additional submissions and informed the CAS Court Office of her preference for the Sole Arbitrator to render an award on the sole basis of the parties’ written submissions, subject to the admission of her additional submissions on file indicating that, otherwise, she “would then insist on a hearing”. Both the Appellant and the First Respondent were invited to comment on the admissibility of such additional submissions.

26. On 15 March 2017, the Appellant objected to the additional submissions filed by the Second Respondent on 12 March 2017 and filed, in turn, further unsolicited submissions.

27. On 20 March 2017, the First Respondent provided its position on the admissibility of the additional submissions filed by the Second Respondent on 13 March 2017. The First Respondent, in particular, indicated that it considered “important that the documents submitted by that athlete should be examined by the [CAS], who will oversee justice and make the final decision on the case” and that “ONADE, having defended its position in a duly substantiated way, considers the athlete requirement unacceptable”.

28. On 4 April 2017, the CAS Court Office informed the parties of the Sole Arbitrator’s decisions (i) to declare inadmissible the submissions filed by the Second Respondent on 13 March 2017 and by the Appellant on 15 March 2017 and (ii) to hold a hearing.

29. On 13 April 2017, the CAS Court Office sent the parties an Order of Procedure which was returned duly signed on 20 April 2017 by all parties.

30. In accordance with Article R57 of the Code, the parties were heard at the hearing, held on 12 May 2017 at the CAS offices, in Lausanne, Switzerland.

The following were in attendance:

Panel: Mr Conny Jörneklint, Sole Arbitrator; Assisted by Mr Daniele Boccucci CAS Counsel.

For the Appellant: Mr Ross Wenzel, attorney-at-law; Mr Nicolas Zbinden, attorney-at-law;

For the First Respondent: Mr Adrián Santillán Samaniego, representative at the time of the hearing, Director of antidoping control of ONADE, by video- and tele-conference;

For the Second Respondent: Mr Guillaume Tattevin, attorney-at-law;

Ms Beatriz Rastrepo, attorney-at-law; Ms Mónica María Cajamarca Illescas, by tele-conference.

31. The parties were given the opportunity to present their cases, to examine the witness, to make their submissions and arguments and to answer questions asked by the Sole Arbitrator. Upon closing the hearing, the parties expressly stated that they had no objections in relation to their respective rights to be heard and that they had been treated equally in these arbitration proceedings.

32. On 12 May 2017, after the conclusion of the hearing, the First Respondent filed unsolicited submissions, the admissibility of which was objected by the Appellant on 22 May 2017.

33. On 29 May 2017, the CAS Court Office informed the parties that “the Sole Arbitrator [had] noticed that the written submissions filed by the First Respondent on 12 May 2017 are exactly the same as the submissions made by the First Respondent at the hearing of the same date” and that the Sole Arbitrator had decided to include it to the file.

IV. SUBMISSIONS OF THE PARTIES — A. The Appellant

34. In its Statement of Appeal and Appeal Brief, WADA requested the following reliefs:

“1. The Appeal is admissible.

2. The decision dated 11 July 2016 rendered by the Disciplinary Committee of ONADE in the matter of Monica Maria Cajamarca Illescas is set aside.

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

4. All competitive results obtained by Monica Maria Cajamarca Illescas from and including 10 April 2016 are disqualified, with all resulting consequences (including forfeiture of medals, points and prizes).

5. WADA is granted an award for costs”.

35. WADA’s submissions, in essence, may be summarized as follows.

- The Athlete committed two anti-doping rule violations (“ADRV(s)”) as showed by the samples collected on occasion of the First Control and Second Control. As the Athlete had not received notice of her first ADRV when she committed her second ADRV, however, the violations shall be considered together as one single violation and the sanction imposed shall be based on the violation that carries the most severe sanction. Both violations should give rise to identical sanction with the exception of the disqualification of the results

obtained. As the first ADRV resulted from a doping control on 10 April 2016 and the second ADRV resulted from a doping control on 5 May 2016, the disqualification for the first ADRV will date back further and is, thus, the most severe sanction to be applied.

- The IAAF Rules are the applicable regulations in this dispute. According to Article 7.1 of the WADC, results management and hearings shall be governed by the rules of the antidoping organization which initiated and directed the sample collection. Such provision is implemented by Rule 30.4 of the IAAF Rules which sets out that such rules apply to all doping controls over which the IAAF, its members and area associations have jurisdiction. The Doping Control Form filled by the Athlete on occasion of the First Control indicates that the IAAF was competent for the results management. Therefore, in accordance with Article R58 of the Code, the IAAF Rules are the applicable regulations for the scope of this dispute. As the IAAF Rules contain a comprehensive set of rules on violations and sanctions (with no lacuna), there is no need to apply any national law on a subsidiary basis.

- WADA has a right to appeal pursuant to Rule 42.5 of the IAAF Rules, as the First Control was conducted during an International Competition.

- The Athlete breached Rule 32.2(a) of the IAAF Rules. Pursuant to such provision, the presence of a prohibited substance in the athlete’s sample constitutes an ADRV. In this regard, in particular, it must be noted that an ADRV is established by the mere presence of a prohibited substance “in the Athlete’s A-sample where the Athlete waives analyses of the Bsample and the B-sample is not analysed”, which is exactly what occurred in the Athlete’s case. It must also be noted that the Laboratory of Seibersdorf confirmed that the finding of the A-sample was not consistent with “pregnancy or the use of norethisterone”, as required by the “WADA Technical Document 2014NA”.

- The Athlete should be sanctioned with a four-year period of ineligibility pursuant to Rule 40.2(a)(i) of the IAAF Rules as the Substance found in her samples is a non-specified substance and the Athlete was not able to establish that the ADRV was not intentional, the burden of proof in this regard lying on the Athlete. The Athlete, however, was not even able to establish the source of the substance found in her body and only provided different explanations in contradictions with each other and which would in any case show that she acted with gross negligence at very least.

36. The Appellant has made the following comments to the submissions made by the Athlete during the CAS procedure.

- It was clear from the letter of 21 December 2016 from the Athlete that she was involved in the running of the rooster farm. For example she used the word “we” and “my family and I” when she described the work with the rooster farm and the poultry husbandry. WADA do not object to either of the letters of 21 December 2016 and 17 January 2017 being admitted to the file. However, in its letter to CAS dated 17 January 2017, WADA did note that (i) the Athlete’s consumption of rooster meat in Ecuador could not explain the presence of nandrolone in her urine sample and (ii) in any event, the Athlete’s

behaviour would be so reckless as to fall within the definition of indirect intention for the purposes of article 40.3 of the IAAF Rules (see CAS 2016/A/4609).

- Whereas the Athlete’s latest allegations remain wholly unsubstantiated, in the sense that she has provided no evidence to corroborate her assertions, she has provided further explanations which very conveniently appear to counter WADA’s two points. In an attempt to counter WADA’s evidence that the consumption of rooster meat in Ecuador before leaving for the international marathon in Vienna could not have resulted in the relevant concentration of nandrolone in her urine sample, the Athlete now contends that she took rooster meat with her from Ecuador and consumed it throughout her trip in Europe.

- On its face, the notion of bringing non-refrigerated meat on a long-haul trip from South America to Europe and taking the further risk of consuming it before the single most important race in the Athlete’s career is difficult - if not to say impossible - to believe.

- The fact that the Athlete never raised this point previously in her letters of 21 December 2016 and 17 January 2017 raises further doubts as to its veracity.

- The assertion is unsupported by any corroborating evidence. There is also no specificity as to exactly when the Athlete claims to have eaten the relevant meat.

- Taking meat from Ecuador to Spain - the Athlete apparently flew to, and stayed with relatives in, Madrid - is illegal.

- In her attempt to counter WADA’s submission that the Athlete would be reckless - to the point of having indirect intention - by consuming rooster meat of animals that she knew had been fed with powerful steroid-based products, the Athlete now claims that she had no idea of how the fighting roosters were fed or treated by her husband as the poultry activity was a matter under her husband’s responsibility in which she had no active role, being herself otherwise employed on a full-time basis. This contention, as convenient as it may be to the Athlete’s defence, is entirely at odds with her earlier submissions with respect to her involvement in the rooster farming business.

- By filing at least three letters within the CAS proceedings, the Athlete has been able, at every turn, to tailor her defence to the objections that have been raised by WADA.

- However, even if one were to admit the Athlete’s latest submissions and take some account of her unilateral averments of fact, WADA still submits that the Athlete has failed to establish the origin of the prohibited substance on the balance of probabilities. The Athlete’s burden to establish the origin of the prohibited substance entails not only the identification of possible sources, but comprises rather a duty to demonstrate with specific evidence how a given source could have resulted in the positive finding taking into account the timing of ingestion and the concentration in the sample.

B. The First Respondent

37. In its answer, ONADE requested the CAS to:

“- Reject the appeal rendered by WADA, as it has an impossible content, and is no properly motivated, considering the inapplicability of the IAAF Rules, in the Ecuadorian constitutional and legal framework.

- Confirm the decision issued by ONADE, on 11th July, 2016, and thereby, the sanction against athlete Mónica Maria Cajamarca Illescas.

- Grant the ONADE, an award for the costs of this arbitral procedure”.

38. ONADE’s submissions, in essence, may be summarized as follows.

- Only Ecuadorian law is applicable to the present dispute, with the exclusion of any other “foreign” law or regulations, including the IAAF Rules. ONADE, indeed, is an Ecuadorian body established by public law and is bound to apply the Ecuadorian Constitution and all other relevant Ecuadorian laws. As the IAAF Rules “are not part of the Ecuadorian legal framework”, they are not recognized by ONADE and cannot be applied by it, especially for what concerns the determination and imposition of the sanction. The consistence with this argument is also confirmed by the CAS case-law (CAS 2012/A/2900 and CAS 2009/A/1889). As, therefore, “the only binding laws for ONADE’s decisions are the ones belonging to the Ecuadorian legal system”, the appeal filed by WADA should be declared inadmissible.

- WADA’s argument according to which, pursuant to Article 7.1 of the WADC, results management and hearings shall be governed by the rules of the anti-doping organization which initiated and directed the sample collection is groundless. In this regard, it must be noted that ONADE expressly requested the IAAF to deal with the results management itself, but the IAAF dismissed such request and empowered ONADE accordingly. Now, the IAAF Rules are binding only in the control procedures carried out by the IAAF itself and on those performed by its members but “can’t be applied on procedures performed by selfgoverning countries, duly authorized to practice doping controls. Consequently, Ecuador as a constitutional state of rights and justice, a social, democratic, sovereign, independent country, not being a member or associate of the IAAF, is not compelled to apply some private organization rules, since they haven’t been accepted, ratified or adhered to the national legal framework”.

- The one-year “provisional suspension” was imposed on the Athlete in accordance with all requirements and guarantees enshrined in the Ecuadorian Constitution and laws. As a consequence, WADA’s request that the Appealed Decision be set aside “is not applicable”.

C. The Second Respondent

39. In her answer dated 20 December 2016, the Athlete did not present any request for relief. Nevertheless, at the hearing the Athlete requested the CAS to:

(i) dismiss the appeal;

(ii) in the alternative decide to impose a different period of ineligibility and reduce such period to the maximum possible extent;

(iii) in any case credit against any period of ineligibility the period of time served by the Athlete since the entry into force of the provisional suspension of 12 May 2016; and

(iv) order the Appellant, or in the alternative the Appellant and the ONADE severally, to bear any and all costs of the proceedings, and dismiss any claim that the Athlete should pay any contribution to the costs of other parties.

40. All pleas from the Athlete personally during the whole process and not only before the CAS can be summarized as follows.

41. In a letter to Mr Thomas Capdevielle, IAAF Anti-Doping Administrator, on 16 May 2016 the Athlete argued as follows:

I have never administered myself norandrosterone by any means. Currently, the only medication that I use for therapeutic purposes, birth control methods, is medroxyprogesterone acetate injectable suspension (Depo- Provera), which is taken under medical prescription. (…) I would like to mention that the competition I entered before sample collection was Marathon, 42 kilometres, which is a competition that demands big effort and I provided my sample after the competition. I would like to refer to the features of the substance found in my body and the traces left by norandrosterone 19, which is naturally present in humans’ urine. Furthermore, in the specification of the prohibited substance found in my body, it states that after a big effort because of the Marathon, the amount of substance in my body could vary increasingly.

42. In a letter on 22 June 2016 to Mr Thomas Capdevielle, the Athlete, among other things, wrote the following:

I have had some medical check-ups in an endocrinology laboratory in my city, and fortunately a potential tumour in my adrenal glands was rule out. I also had a test to find out if I have ovarian cysts, but again, fortunately, I found out I only have a simple infection in my urinary tract. This is the reason why I was prescribed a medication called Buprex flash 400 mg. In regard to my case the doctors do not have scientific understanding how the metabolite found in my body features abnormal levels. -- -- I want to cooperate in this matter, but since I do not have technical or medical support, I find it impossible to prove my innocence or negligence. Therefore, I am sending this letter to accept the corresponding penalty. I just want to state that I do not know so far what is happening in my body or what has caused such alteration.

43. In a new letter sent to CAS and dated on 21 December 2016 addressed to “whom it may concern” the Athlete stated the following.

I am writing to you after serious accusations have been made against me, and would like to explain in detail what really happened and how this altered metabolite was found in my body, which resulted in my disqualification. Therefore, I hereby present a statement based on true facts focusing on a big mistake that was made against me.

In April of this year, I decided to start a personal sports project: competing in the Vienna marathon, in Austria. It is important to mention that it was the first time that I had ever competed abroad. I travelled at

my own expense. I am not now nor have I ever been a federated athlete, or even worse, a high performance athlete. Therefore I never had a medical staff to support me. After I competed and managed to improve the time that my country requested for a marathon, I was told I had qualified for Olympic Games. That moment was really happy for me. It was a dream comes true. At that moment my country knew who I was because I used to participate only in amateur competitions in my city, Cuenca, in Ecuador. I have been doing sport for about 7 years. If I had been using prohibited substances I would have never wasted my money on that trip. Actually, I have 2 small daughters. I would have invested that money in their education. Furthermore, when I travelled to Austria, I knew that there would be anti-doping control for the first seven participants in the competition. If I had been involved in doping, I would not have even attempted to compete. Actually, I have never refused to have an anti-doping control. All the consequences of this issue have totally discouraged me in all my daily activities. I already sent a letter to the IAAF administrator, Mr. Thomas Capdevielle, asking him to make a final decision regarding my case. I am not a person who can afford the expenses of this investigation. I could not travel for the opening of sample B. Therefore, Mr. Capdevielle said the punishment should be executed in my own country.

It is important to mention I live in El Valle, a neighbourhood located in the outskirts of my city, Cuenca, in Ecuador. My family and I have owned a fighting cock farm for a year when we decided to become independent people. Previously, this farm belonged to a group of neighbours, ourselves included. Actually, we belong to an organization engaged in poultry husbandry. This organization is called “Club 77”. We sell these birds. We raise these birds to sell them. We take good care of these birds. Our assistance is so efficient that even when they are just born, they consume their antibiotics, vitamins, minerals, etc. orally. Because we have to feed them with the best food, we live in the mountains (cold weather); however, the weather is sometimes too extreme and it makes them sick and even kills them. This is a big loss for us.

These birds are classified into two groups: those that are used for fighting and those that are not used for fighting, but all of them are treated and taken care of in the same way (training and supplementation). When the birds are between 6 and 8 months old, it cannot fight yet, but it receives a vaccine every 15 days. This vaccine is called “La grúa equina” (The equine crane). This medicine is necessary to prevent the birds from getting respiratory infections among other illnesses.

When the bird is between 10 and 12 months old, it starts to fight and it is time to sell it or make a fight. This is the moment when the bird receive their second vaccine called “Agrobolin”. This drug is used so that the birds can be more resistant to their fights and can increase their appetite too.

As I said earlier, the birds are classified. Those that are not useful for fighting purposes are eaten instead because we feed them very well. Therefore, I am absolutely sure that diet caused my samples to be positive in the anti-doping control. I did not know this could happen to me.

Currently, we have 20 fighting cocks, 10 laying hens, and about 20 chickens. This situation has made me get rid of these birds because I do not want this to happen again in my family as is has meant big problems to me.

This is not our main business now. We have to look for other jobs because of the economic situation in my country. I have a permanent job now. I am accountant and I work at JEP Cooperative in El Valle as a credit counsellor. I have never had any problems in about 8 years. My husband has a permanent job too. He is a teacher.

44. In another letter dated on 19 January 2017, expressly “meant to respond to the accusations of Mr Nicolas Zbinden, regarding CAS 2016/A/4834 WADA v. ONADE & Monica Maria Cajamarca Illescas” the Athlete among others holds the following:

I have not changed my version of the situation. I must say, again, that no one cared for my case. I have not manipulated this information using any technological devices. On the very day that the IAAF notified me about the issue, I did not know what had happened, but I have always been willing and able to cooperate. Day after day, month after month, I have been discarding different hypotheses (medical; supplementary, and nutritional, empirically). The accusing party should have taken care of this matter the very moment that I asked him, through his expertise, to dictate the corresponding punishment; as I am street runner in my country. I would like to say that I am not using the previous expression to pretend I am a victim, but I really feel impotent. Gentlemen, you knew that my offense had to be condemned. I should have been punished immediately with an appropriate explanation instead of making me spend money on medical consultations, several trips, etc. Currently, I am undergoing a difficult time in my home. All this has been a real waste of my time. I am short of money and I have to look after my small children. -- The accusing party states that I was involved in the most conspicuous anti-doping infraction and that I am an expert in such consumption, claiming that I was using medication on my poultry farm. The truth is that the medication is used for therapeutic purposes, like avoiding the death of these animals due to infectious or chronic illnesses. This is the reason why WADA strongly indicates that the athlete’s allegations do not state the origin of the anti-doping rule violation. -- I also want to remind you that when I travelled to Vienna, Austria, I did it with my own resources and without being an international athlete. It was the first time I had ever run abroad, without harming anyone or trying to take away anything from anyone. It was a personal project. When I travel, I left my two daughters in my country, I was really sorry for my second daughter, Monica Sofia, who was only 10 months old at the time, especially because I used to feed her every day and she consumed only breast milk. If I had consumed forbidden substances, would I have fed my daughter with breast milk?

45. In a “Statement of Monica Maria Cajamarca Illescas” dated on 11 March 2017, the Athlete states inter alia the following:

The lawyers representing me, Guillaume Tattevin and Beatriz Rastrepo, have prepared a statement of defence that will be submitted to the Tribunal. On 10 march of this year, during a telephonic conversation, Beatriz Rastrepo read for me in Spanish each paragraph of the facts that are described therein. I attest that the facts appearing therein accurately reflect what I have declared to my lawyers. I also confirm that the facts I have declared correspond to the truth.

46. The Athlete’s submissions, as made at the hearing by her lawyers, may be summarized as follows.

- The 2015 WADC, reflected in the 2016-2017 IAAF Competition Rules, was intended to be fairer to athletes, by punishing those who cheat while athletes whose cases involved simple errors should face no sanctions, or reduced sanctions. WADA have chosen to take an excessively zealous view of the facts of this case and the wording of the IAAF Rules.

- The Athlete is a street athlete. Not only is she not a professional athlete, she also has received no formal coaching or support from domestic or international sporting bodies. She runs for her pleasure and has done so since she was a child.

- The Athlete was at the time of the adverse finding, and remains today, under full-time employment as a loan officer at a cooperative of savings and credits in the city where she lives. She is married and has two children then aged 6 years respectively 7 months.

- In the course of her training, the Athlete met an Ecuadorean runner with experience of international competitions, who considered her training times and encouraged her to register with him for an international competition, the Vienna City Marathon of 10 April 2016. She was given no support from the Ecuadorian Athletic Federation (the “EAF”). With financial support from family and friends, the Athlete was able to accompany her friend and participate in the Vienna event. In order to limit their expenses, they stayed with relatives during transit in Madrid and brought their own food with them, including pasta, rice, roasted guinea pigs - a traditional Ecuadorean meal - and rooster’s meat.

- In view of the Athlete’s performance at the Vienna City marathon, the EAF, decided to qualify her for the Olympic Games in Rio de Janeiro. Apart from this late affiliation, revoked after the adverse test findings, the Athlete has never been affiliated to EAF or to any other organisation and has never been professionally coached or trained.

- After the competition in Vienna, the Athlete was required to take a doping control conducted by the IAAF. This was her first doping control and she had not received any prior guidance. During the sample collection, the Athlete, who does not speak English, was unable to communicate with the person conducting the test. No interpreter was provided. As a result, she was not able to declare any ongoing treatments or medications. Once she returned to Ecuador, a second doping control was conducted by ONADE, in Spanish. This time, the process was explained to her and she was able to provide information about the medication she used.

- After the notification of adverse findings, the Athlete provided IAAF with all the information available to her, namely her medical records, medical certificate from her personal medical physician and Depo Provera (birth control) prescription. Given the associated costs, the Athlete was unable to enlist the assistance of legal and medical professionals who could have guided her in understanding and explaining the adverse findings. Due to her lack of economic resources, she had no other alternative but to accept the sanction imposed by ONADE.

- The Athlete’s husband has part time employment at the local school and a small fighting rooster farm which he maintains at their home for his benefit and that of other fighting roosters owners. In the course of these proceedings, it occurred to her husband that some of the treatments provided to the fighting roosters, specifically Agrobolin and Grua Equina, as described in the Athlete’s own letter of 21 December 2016, could possibly have resulted in accidental contamination of the Athlete, given that those fighting roosters that are no longer of use were then consumed by the family and that fighting rooster meat was even taken to Vienna. It was then that the Athlete herself investigated the treatments provided to the fighting roosters and identified the elements already indicated in her first statement before this Panel.

- This means that the Athlete, on the balance of probabilities, can show how the prohibited substance entered her system. She can show that this contamination was not intentional and that she bears no fault or negligence; alternatively: no significant fault or negligence.

- The possibility that the Athlete ingested the prohibited substance by eating the meat of the birds from her husband’s farm constitutes the most likely explanation as to how this substance was found in her samples. Yet WADA argues that it is highly unlikely that the consumption of contaminated meat in Ecuador could lead to a positive finding for the Substance in a sample collected in Vienna several days later.

- WADA’s argument that consumption of fighting rooster meat could not have led to a positive finding several days later is based on an erroneous factual assumption. In fact, the consumption of fighting roosters meat took place regularly and shortly before the doping controls.

- In sum, the Athlete establishes that (i) poultry treated with steroids, including nandrolone, can result in positive findings in an order of magnitude not inconsistent with the adverse findings in this case and (ii) the Athlete did regularly consume such poultry during the relevant period. As such, the Athlete does provide the most likely reason for the adverse finding.

- The Athlete submits that pursuant to Rule 40(5) IAAF Rules she bears no fault or negligence under the specific circumstances of the case, justifying the elimination (or, in the alternative, the reduction) of the applicable sanction in light of her specific degree of fault. As a result of this, and given the points already made concerning her lack of awareness of the food and treatment regime given to her husband’s fighting roosters, and the ensuing risks of an adverse finding for her, the Panel should find that the Athlete committed no fault or negligence and no period of non-eligibility should be enforced.

- Alternatively, if the Panel believes that the Athlete did commit by fault or negligence, it should consider, for the same reasons that such fault or negligence is not significant, and consequently reduce the period of ineligibility to the maximum extent provided by Article 40.6(b).

47. The Athlete was heard during the hearing via telephone conference. During this testimony the Athlete expressed the following:

She and her husband started feeding up game cocks in January 2015. It was her husband who took the greatest responsibility for the birds. She never administered the medications for the birds. She brought meat with her to Europe for the trip to Vienna. It was cock meat and meat from Guinea pig. She was not aware that this was forbidden. It was for the purpose of saving money. It is a costume of Ecuadorians to bring food to other countries. The meat was smoked and covered by aluminium folio. She ate from it until the day before the race. The first time she realised that the ADRV could have been due to her consumption of meat was in October – November 2016 when she tried to find an explanation to the ADRV. When she in the letter of 21 December 2016 said that they had got rid of the birds it meant that they still kept some chickens and some cocks. It is correct

that there are two kinds of birds; those that are used for fighting and those that are not used for fighting, but all of them are treated and taken care of in the same way by for example medication.