World Anti-Doping Agency (WADA) v. Chinese Taipei Anti-Doping Agency, Chinese Taipei Olympic Committee (CTOC), Tzu-Chi Lin

V. JURISDICTION

31. Article R47 of the Code provides as follows:

“An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body”.

32. WADA asserts that because the Appealed Decision was rendered by the Anti-Doping Commission of the CTOC on the basis of the CT ADR those rules are applicable.

33. Article 13.2.1 of the CT ADR provides in pertinent part that, “In cases arising from participation in an International Event or in cases involving International-Level Athletes, the decision may be appealed exclusively to CAS”.

34. International Athletes are defined in the CT ADR as, “Athletes who compete in sport at the international level, as defined by each International Federation, consistent with the International Standard for Testing and Investigations”.

35. The relevant International Federation, the International Weightlifting Federation (“IWF”), defined International-Level Athletes in the Scope section of its Anti-Doping Policy. International-Level Athletes include, “Athletes who participate in IWF Events. Such Athletes are already considered as International-Level Athletes during the two-month period prior to the IWF Event in question”.

36. Without limitation, the Athlete was scheduled to compete in the 2016 Olympic Games in Brazil less than two (2) months after the positive doping control on 24 June 2016. The Olympic Games are an International Event for the purposes of the IWF Anti-Doping Policy. Therefore, the Athlete is an International-Level Athlete.

37. In light of the foregoing, the Sole Arbitrator finds that the CAS has jurisdiction in this procedure. In addition, the jurisdiction was not contested by the Respondents.

VI. ADMISSIBILITY

38. Article R49 of the 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 of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. After having consulted the parties, the Division President may refuse to entertain an appeal if it is manifestly late”.

39. Article 13.7.1 of the CT ADR states that “the filing deadline for an appeal filed by WADA shall be the later of:

(a) Twenty-one days after the last day on which any other party in the case could have appealed, or

(b) Twenty-one days after WADA’s receipt of the complete file relating to the decision”.

40. WADA received at least part of the case file on 22 May 2018.

41. The Statement of Appeal was lodged 12 June 2018. This was within the twenty-one (21) day time limit set forth in Article 13.7.1 of the CT ADR. In addition, WADA filed its Appeal Brief within the ten (10) day deadline of Article R51 of the Code.

42. No party objected to the admissibility of this appeal, and two of the Respondents filed submissions in this proceeding, participating therein, without raising an objection.

43. Accordingly, the Sole Arbitrator finds that this appeal is admissible.

VII. APPLICABLE LAW

44. Article R58 of the Code provides as follows:

“The Panel shall decide the dispute according to the applicable regulations and 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, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

45. Here, the applicable rules, conceded by all is the CT ADR. There is no other indication of a choice of applicable law here.

46. As a result, the Sole Arbitrator determines that the law of the Republic of China, the law of the country in which the federation which has issued the challenged decision is domiciled, is subsidiarly applicable.

47. There has been no presentation of the law of the Republic of China having any bearing on this case. Accordingly, this decision on choice of law, beyond the CT ADR, is of no moment to the outcome of this proceeding.

VIII. MERITS

48. The merits of this proceeding, as in other doping proceedings, can be divided into two fundamental questions, the finding of an anti-doping rule violation and the length of an appropriate sanction.

A. Was there an anti-doping rule violation?

49. Pursuant to Article 2.1 of the CT ADR, the presence of a Prohibited Substance or its Metabolites or Markers constitutes an anti-doping rule violation.

50. Sufficient proof of an anti-doping rule violation is established by the presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s Sample where the Athlete waives analysis of the B Sample and the B Sample is not analysed (Article 2.1.2 CT ADR).

51. The Athlete underwent an out-of-competition doping control on 24 June 2016. The analysis of the sample revealed the presence of 5a-androstane-3a,17b-diol (5aAdiol) and 5b-androstane- 3a,17b-diol (5bAdiol) consistent with exogenous origin. 5a-androstane-3a,17b-diol (5aAdiol) and 5b-androstane-3a, 17b-diol (5bAdiol) are endogenous steroids prohibited under S1.1B of the 2016 WADA Prohibited List.

52. In addition, the Athlete, in her submissions, essentially admits that she took the supplement she did without reading the label and the label contained express reference to the presence of DHEA in the supplement. She did not at any time in these proceedings dispute that she had taken a product that contained a prohibited substance.

53. Therefore, the violation of Article 2.1 of the CT ADR is established.

B. What is the appropriate sanction?

54. Pursuant to Article 10.7.1 of the CT ADR, “for an Athlete or other Person’s second anti-doping rule violation, the period of Ineligibility shall be the greater of:

(a) six months;

(b) one-half of the period of Ineligibility imposed for the first anti-doping rule violation without taking into account any reduction under Article 10.6; or

(c) twice the period of Ineligibility otherwise applicable to the second anti-doping rule violation treated as if it were a first violation, without taking into account any reduction under Article 10.6”.

55. In view of the circumstances of the case, WADA submits that the third limb of this provision (i.e. twice the period of Ineligibility applicable to the second anti-doping rule violation) is applicable as it leads to the longest period of Ineligibility, as required under the rule. The Sole Arbitrator agrees with this view.

56. Indeed, according to Article 10.2.1.1 of the CT ADR, the period of Ineligibility shall be four years where the anti-doping rule violation does not involve a specified substance, unless the athlete can establish that the anti-doping rule violation was not intentional.

57. Article 10.2.3 of the CT ADR sets out that the term “intentional” is meant to “identify those Athletes who cheat. The term, therefore, requires that the Athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk”.

58. As the athlete bears the burden of establishing that the violation was not intentional (within the above meaning), a series of CAS cases have held that the athlete must necessarily establish how the substance entered his/her body. See, e.g., (i) CAS 2016/A/4377, at 51; (ii) CAS

59. Even in the CAS cases that have left open the possibility that an athlete might be able to rebut the presumption of intentionality without establishing the origin of the prohibited substance, it has been made clear that this will be the case only in the most exceptional of circumstances. In the case of CAS 2016/A/4534, the Panel referred to the “narrowest of corridors”; in the even more recent Award in CAS 2016/A/4919, the Panel held that “in all but the rarest cases the issue is academic” (para. 66). See also CAS 2016/A/4676 and CAS 2016/A/4919 (setting a lower standard with respect to a requirement for establishing or not establishing source). Fortunately, the Sole Arbitrator here is not required to forge a new path through or take a position on these various and sometimes divergent CAS cases.

60. With respect to establishing the origin of the prohibited substance, it is clear from CAS and other case law that it is not sufficient for an athlete merely to make protestations of innocence and suggest that the prohibited substance must have entered his/her body inadvertently from some supplement, medicine or other product which the athlete was taking at the relevant time. Rather, an athlete must provide concrete evidence to demonstrate that a particular supplement, medication or other product that the athlete took contained the substance in question.

61. In the case of CAS 2010/A/2230, the Sole Arbitrator expressed the athlete’s burden in the following terms:

“To permit an athlete to establish how a substance came to be present in his body by little more than a denial that he took it would undermine the objectives of the Code and Rules. Spiking and contamination - two prevalent explanations volunteered by athletes for such presence - do and can occur; but it is too easy to assert either; more must sensibly be required by way of proof, given the nature of the athlete’s basic personal duty to ensure that no prohibited substances enter his body”.

62. As set out by the Panel in the case of CAS 2014/A/3820: “In order to establish the origin of a Prohibited Substance by the required balance of probability, an athlete must provide actual evidence as opposed to mere speculation”. [emphasis added by the Panel].

63. In the present case, the Athlete’s explanation is that she suffered from severe menstrual problems and, as indicated in the Appealed Decision, she claims that “the doctor suggested her to take supplements such as Flovone … to treat her conditions” (sic). WADA notes that the case file contains a document described as an “Athlete’s statement” in which it is suggested that “the person at the drug and cosmetics store suggested Athlete to purchase FLOVONE as it provides health benefits to women with endometriosis”. This position was not reflected in either of the versions of the Appealed Decision, though this fact would not change the outcome one way or another. Flovone contained DHEA, which is an anabolic steroid. The Athlete alleges that she checked all the ingredients of the supplement before purchasing it, but overlooked DHEA.

64. The two versions of the Appealed Decision differ slightly as to the reasons why the Athlete overlooked DHEA: The first version indicated that it was “due to her language barriers”, whereas the second one referred to the fact that “she did not find the substance DHEA on the list with D as the first character (DHEA is listed in the brackets of Prasterone)”. This notwithstanding, there are major deficiencies in the Athlete’s explanation. First, it is clear from the “diagnosis certificate” of her doctor that she was “prescribed the injection of progesterone and oral administration of: scanol, provera, Ferich”; however, contrary to what the Athlete suggests, the certificate does not refer to a recommendation of the Flovone product.

65. In addition, the Athlete has not provided any contemporaneous evidence showing that she purchased the Flovone product, such as a sales receipt. There is simply a picture of the box of the product in the case file, which clearly cannot be sufficient to establish the origin of a prohibited substance in view of the strict case law. An athlete must provide actual evidence that (s)he did use the product and, in particular, that (s)he purchased it at the relevant time.

66. WADA’s primary submission is, therefore, that the Athlete has failed to establish the origin and the sanction for this second violation shall be a four-year Ineligibility period. As a result, by way of Article 10.7.1(c) of the CT ADR, the Athlete should be sanctioned with an eight-year period of Ineligibility for her second violation.

67. Even if the Athlete was found to have sufficiently established the origin of the Prohibited Substance, she would nonetheless receive the same sanction because the Athlete’s violation would necessarily qualify as indirectly intentional within the meaning of Article. 10.2.3 of the CT ADR (viz. the Athlete “knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk”).

68. The concept of indirect intention has been discussed in different CAS cases:

a. In the case CAS 2016/A/4609, the athlete had received an injection of nandrolone from a physician. The Sole Arbitrator found that because it was a medication and, importantly, because the package clearly indicated that the product (decadurabolin) contained nandrolone, the athlete knew that there was a significant risk that the injection of decadurabolin might contain a Prohibited Substance. In addition, the athlete received injections several times and there was no evidence supporting his word that he had made any relevant check to ensure that the product injected did not contain Prohibited Substances. The Sole Arbitrator, therefore, found that the athlete was reckless and had

disregarded the significant risk that the product might contain a Prohibited Substance. As a result, the Sole Arbitrator held that the athlete had acted with indirect intention and imposed a four-year period of Ineligibility on him.

b. In the case of CAS 2017/A/5282, the athlete ingested dehydrochlormethyltestosterone based on the advice of bodybuilders in a gym. The athlete claimed that he took the product because he admired the bodybuilders’ “abilities and shape” and wanted to reach similar results. Moreover, the athlete confirmed that he took it for several months, without asking the opinion of a doctor or making any internet research on its properties. The Panel considered that the athlete had knowingly ingested a product designed to enhance the performance. As a result, there was a significant risk that his conduct might result in an anti-doping rule violation and he manifestly disregarded this obvious risk. Therefore, his violation was also considered intentional for the purposes of Article 10.2.3.

c. In the case of CAS 2017/A/5178, the athlete claimed that his positive finding came from B-12 vitamin ampoules contaminated with nandrolone. The athlete provided pictures of these ampoules, which had no labelling whatsoever and no indication as to their contents. The Panel found that an athlete who uses such unlabelled ampoules is knowingly engaging in a conduct that exposes himself to a significant risk of an antidoping rule violation and, therefore, that the violation had to be found to be intentional for the purposes of Article 10.2.3.

69. In the present case, the product that the Athlete claimed to have taken states in major letters circled with a golden ring that it contains DHEA. In the view of the Sole Arbitrator, the presence of a Prohibited Substance in this product could not be more obvious. She simply failed to read it or attempt to understand it. The Athlete used this product for a week without making any relevant check. Her allegation, reflected only in the later version of the Appealed Decision that she looked under the letter D on the Prohibited List and could not find the substance is not sufficient. A simple Internet search would have shown that DHEA was an anabolic steroid and prohibited. The Athlete was clearly careless in not even taking this elementary step.

70. A language barrier is no defense to an athlete meeting the basic standard of conduct of all athletes. If she could not understand the ingredients label then she either had to find someone who did or simply not take the substance. She cannot hide behind her native language as a way of avoiding her responsibilities. This is not the case of CAS 2013/A/3327 and CAS 2013/A/3335 where a check was made about the contents of the product and one substance was confusingly spelled very similarly to another substance in another language.

71. The Athlete submitted that she took the Flovone on the advice of her physician, so presumably she could have asked her physician to review the ingredients with her, in her native language, to determine if any ingredient was on the Prohibited List. Inexplicably she did not do this.

72. The Athlete simply did not do anything to protect herself from a possible ADRV and took the substance here without any proper diligence.

73. As the Sole Arbitrator has found that the source of the substance was not established in any way, the Athlete’s ingestion, under the CT ADR, must be found to be intentional. As a result, since this is a second offense by the Athlete, the Athlete must receive an eight-year Ineligibility period, i.e., twice a four-year period of Ineligibility under Article 10.7.1(c) and Article 10.2.1.1 of the CT ADR.

74. Accordingly, for all of the foregoing reasons, the Sole Arbitrator determines that it has been established that the Athlete committed an anti-doping rule violation, that that use was intentional under the relevant rules, and that since it was a second offense she is to receive an eight (8) year sanction, starting from the date of the present Award.