International Olympic Committee (IOC) v. Supatchanin Khamhaeng

II. FACTUAL BACKGROUND

3. Below is a summary of the relevant facts and allegations based on the written submissions and the evidence presented by the IOC in this procedure. As noted below, although the Athlete was properly notified of her opportunity to participate, she did not file an answer to the Request for Arbitration.

4. Additional facts and allegations found in the written submissions, 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 IOC in the present proceedings, she only referred to the submissions and evidence necessary to explain her reasoning.

5. On 13 October 2018, the Athlete competed in the Girls +63 kg Weightlifting event at the 2018 Youth Olympics. The Athlete finished in first place (Gold Medal).

6. Following the event, the Athlete provided an in-competition urine sample (sample no. 4346444) as part of the Doping Control Program at the 2018 Youth Olympics (the “Sample”). The Sample was analysed at the World Anti-Doping Agency (“WADA”) accredited laboratory in Rio de Janeiro, Brazil (the “Rio de Janeiro Laboratory”).

7. Analysis of the Athlete’s A Sample revealed the presence of Etiocholanolone, 5aAdiol and/or 5βAdiol (exogenous origin), a Prohibited Substance belonging to Class S1.1b (Anabolic Androgenic Steroids) of the 2018 WADA Prohibited List.

8. According to Article 2.1 of the IOC Anti-Doping Rules applicable to the 2018 Youth Olympics (the “IOC ADR”), the presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s sample resulted in an adverse analytical finding (“AAF”).

9. On 3 May 2019, the Rio de Janeiro Laboratory notified the International Testing Agency (the “ITA”), who had been tasked by delegation from the IOC with the results management of any AAF arising out of samples collected at the 2018 Youth Olympics, of the Athlete’s AAF.

10. The ITA reviewed the AAF and confirmed inter alia that the Athlete did not possess a Therapeutic Use Exemption for the relevant substance and that no apparent departures from the International Standard for Testing and Investigations or the International Standard for Laboratories could undermine the validity of the AAF.

11. On 5 June 2019, the ITA notified the Athlete of the AAF and in accordance with Article 7.2.4 of the IOC ADR, charged the Athlete with an anti-doping rule violation (“ADRV”). The Athlete, by means of an “AAF Notification Appendix” (the “Appendix”), was then requested to state whether she accepted the AAF, or alternatively, whether she wanted to proceed with the opening of the B Sample and analysis, and receive the accompanying document package.

12. On the same date, 5 June 2019, the ITA reported the Athlete’s AAF to the National Olympic Committee of Thailand.

13. On 14 June 2019, the Athlete signed1 and returned the Appendix whereby she accepted the AAF, declined the opening and analysis of the B Sample and also declined a copy of the laboratory documentation package.

1 As the Athlete was a minor at the time of the AAF, the Appendix was signed by both the Athlete and her mother.

14. On 27 June 2019, the Athlete was provisionally suspended by the International Weightlifting Federation.

15. On 15 August 2019, the Athlete, vis-à-vis the National Olympic Committee of Thailand, returned a signed Voluntary Admission and Acceptance of Consequences Form to the ITA. The Voluntary Admission and Acceptance of Consequences Form provided, in relevant part, as follows:

In accordance with Article 7.7.1 of the IOC Anti-Doping Rules applicable to the Buenos Aires 2018 Summer Youth Olympic Games, I admit the violation, waive a hearing and the right to a written defence, and accept the disqualification of the results obtained at the 2018 Buenos Aires 2018 Summer Youth Olympic Games, including forfeiture of any medals, diplomas, points and prizes. I therefore consent to the issuing of a decision by the Anti-Doping Division of the Court of Arbitration for Sport in Lausanne confirming the commission of the Anti-Doping Rule Violation and imposing the above-mentioned consequences.

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The present admission and acceptance cover only the presence of the Prohibited Substance and the above mentioned consequences pursuant to IOC Anti-Doping Rules. They are without prejudice to any issue or defence which I may have or raise in proceedings conducted under the IWF Anti-Doping Policy regarding aspects other or beyond the ones specifically mentioned. Such are expressly reserved.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

16. On 29 August 2019, the Claimant filed a Request for Arbitration with the Anti-Doping Division of the Court of Arbitration for Sport (the “ADD”) in accordance with Article A13 of the Arbitration Rules of the ADD (the “ADD Rules”).

17. In its Request for Arbitration, and in accordance with Article A16 of the ADD Rules, the Claimant requested that this procedure be referred to a Sole Arbitrator appointed by the President of the ADD.

18. On 4 September 2019, the ADD, on behalf of the President of the ADD, confirmed the appointment of Mrs Carol Roberts, Attorney-at-Law in Vancouver, Canada, as Sole Arbitrator in accordance with Article A16 of the ADD Rules.

19. On 1 October 2019, the ADD confirmed that the Respondent did not file an answer in accordance with Article A14 of the ADD Rules. In this same correspondence, the ADD, on behalf of the Sole Arbitrator, invited the parties to state, no later than 4 October 2019, whether they requested a hearing. A party’s silence would be considered confirmation that no hearing was needed.

20. On 7 October 2019, the ADD confirmed that no party requested a hearing, and on behalf of the Sole Arbitrator who had considered the entire file, informed the parties that she was sufficiently well informed to render a decision without a hearing.

21. On 9 and 10 October 2019, the Claimant and Respondent signed and returned the Order of Procedure.

22. On 11 October 2019, an email was filed by “TAWA [Thai Amateur Wrestling Association] cooperation officer” on behalf of the Respondent, which provided various documents concerning the results of the Respondent’s AAF.

23. On 16 October 2019, the Claimant confirmed that it had no objection to the admission of the Respondent’s 11 October 2019 submission of documents, but highlighted that the current proceedings relate only to the automatic disqualification of the Respondent’s results pursuant to the IOC Anti-Doping Rules applicable to the 2018 Summer Youth Olympic Games.

IV. SUBMISSIONS OF THE PARTIES

24. The IOC’s submissions, in essence, may be summarised as follows:

- Etiocholanolone, 5aAdiol and/or 5βAdiol (exogenous origin), a Prohibited Substance, was found in the Athlete’s A Sample. This substance belongs to Class S1.1b (Anabolic Androgenic Steroids) of the 2018 and 2019 WADA Prohibited List.

- The Athlete accepted the AAF in accordance with Article 7.7.1 of the IOC ADR and waived her right to the analysis of the B Sample.

- In accordance with Article 2.1 of the IOC ADR, an ADRV is established when the presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample where, as is the case here, the Athlete waived the analysis of her B Sample and the B Sample is not analyzed.

- Such presence constitutes an ADRV in accordance with Article 2.1 of the IOC ADR.

- The Athlete has not provided any explanation to date as to the presence of the Prohibited Substance in her sample and the finding of these substances is consistent with the intentional use to improve sporting performance.

- Under the IOC ADR, the consequences of an ADRV are limited to consequences in connection with the 2018 Youth Olympics. Therefore, the results obtained by the Athlete during the 2018 Youth Olympic Games (i.e. first place in the +63 kg event) shall automatically be disqualified, with all resulting consequences.

25. In its Request for Arbitration, the IOC requested the following relief:

The International Olympic Committee hereby respectfully asks the Court of Arbitration for Sport to rule that:

1) The International Olympic Committee’s request is admissible.

2) Supatchanin Khamhaeng is found to have committed an anti-doping rule violation in accordance with the IOC Anti-Doping Rules.

3) Supatchanin Khamhaeng’s results from the 2018 Youth Olympics are disqualified and is ordered to return her gold medal, along with all other consequences, including forfeiture of any diplomas, points, and prizes.

26. Although the Athlete did not file an answer, provide a defence or otherwise make any formal requests for relief, the Secretary General of the Thai Amateur Wrestling Association (“TAWA”) submitted a number of documents, apparently at the request, and on behalf of, the Athlete. The documents included test results for prohibited substances of a number of Weightlifting Athletes who competed in international competitions during the 2017-2018 season, including the Athlete, conducted by the Doping Control Agency of Thailand. The documents also included an investigation report into how the prohibited substances entered the Athlete’s system.

27. The IOC did not object to the admission of these documents, noting however that the current proceedings relate only to the automatic disqualification of the Athlete’s results pursuant to the IOC Anti-Doping Rules applicable to the 2018 Summer Youth Olympic Games.