F. v. Athletics Kenya (AK)

II. FACTS

3. Below is a summary of the main relevant facts and allegations based on the parties’ written submissions and evidence and the additional material emerging from the oral hearing. Additional facts and allegations may be set out, where relevant, in connection with the discussion of law and merits that follows. Although 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.

4. On 6 September 2014, the Athlete competed in the Birell Prague GP 10,000m race, following which she gave a urine sample as a part of routine anti-doping testing. When completing her Doping Control Form (“DCF”) the Athlete disclosed on her declaration that she ingested a medication called “DROCEDEK”. This was in fact a misspelling of “Bro-Zedex”, a cough syrup.

5. On 4 November 2014, Mr Thomas Capdevielle, the IAAF Anti-Doping Administrator informed AK by e-mail that the analysis of the Athlete’s urine sample revealed the presence of a prohibited substance, Terbutaline, and that upon conducting the review prescribed under IAAF Rule 37.3 it appeared (i) that the Athlete had no Therapeutic Use Exemption (“TUE”) recorded at the IAAF for the substance in issue and (ii) there was no departure from the IAAF Anti-Doping Regulations or from the WADA International Standard for laboratories which might have caused the adverse analytical finding. The IAAF requested that AK inform the Athlete in writing as soon as possible of (i) the adverse analytical finding, (ii) that it constituted an anti-doping rule violation under IAAF Rules 32.2(a) and 32.2(b), (iii) of the opportunity to provide an explanation for the adverse analytical finding; (iv) of her right to have the B sample analysed and (v) of her right to be provided at her own cost with the A sample documentation package.

F. v. Athletics Kenya (AK),

6. The e-mail requested that AK inform the Athlete that she had until Tuesday 11 November 2014 to provide Mr Capdevielle with a written explanation for the finding in her sample. The explanation could be submitted directly to Mr Capdevielle or through AK.

7. The e-mail also gave details of what the Athlete should do to exercise her right to have the B Sample analysed. It stated “if the athlete waives her right to the B sample analysis, she will be deemed to have accepted the adverse analytical finding in her A sample. She will not be able to contest these results later on in the disciplinary procedure”.

8. The e-mail continued: “Please note that the athlete declared ‘Bro Zedex’, a syrup containing Terbutaline (see drug information attached) on her DCF. Taking into account the athlete’s good faith as well as the explanation provided by her DCF, IAAF recommend the following sanction (under IAAF rule 40.4):

• Reprimand

• Disqualification of the athlete’s results obtained on the 6th September 2014 at the ‘Birrell Prague GP in Prague”.

9. A copy of the e-mail was sent to the Athlete’s representative.

10. According to the Respondent, it wrote to the Athlete on 10 November, 2014 notifying her of the issues in compliance with IAAF’s directive. No copy of that e-mail or letter was produced.

11. By e-mail dated 10 November 2014, the Athlete wrote her account of what had happened to Mr Capdeville with a copy to AK. The material part of that e-mail read as follows: “On the 2nd of September, I went to the local chemistry in Embu (Kenya) to buy a medicine for my soar (sic) throat. I was not feeling well for days and I wanted to buy a medicine to feel better. The people in the chemistry shop advised me to use Bro Zedex for my throat and I used this for a few days before I travelled to Prague. I was not aware that this medicine was containing any ingredients that are not allowed to use and I had the expectation that the medicine did not contain any prohibited substances. This was also confirmed to me by the employees of the chemistry shop. After the race in Prague I had to undergo a doping control as I had done many times before. As required, I wrote on the Doping Control Form that I used this medicine. I was still under the assumption that the medicine was allowed and did not contain any prohibited substances. Herewith, I admit the use of the syrup Bro Zedex, which contained Terbutaline, and I want to offer my sincere apologies for the use of this syrup. I am very sorry that I made the mistake to not check well the medicine before I used it and it is a big lesson to me for next time when I buy something in Kenya. I hope you understand my situation and trust me that I did not take this medicine to improve my level of performance or hide any other prohibited substances, but I used just to treat my sore throat. I do not want to request the analysis of a B sample and I do not want to use the right to be provided with the documentation package of the A sample”.

F. v. Athletics Kenya (AK),

12. On 1 December 2014, the IAAF sent by e-mail a template of a letter to be sent to the Athlete. The substance of the template letter, which AK sought to e-mail on to the Athlete, care of her agent, was as follows: “The analysis of your urine sample code 2936460 collected in competition during the Birell Prague GP in Prague (Czech Republic), on 6th September 2014, revealed the presence of the prohibited substance Terbutaline. The analysis was performed’ at the WADA accredited laboratory of Kreischa, Germany. You will find attached copies of the corresponding laboratory reports and doping control forms. Terbutaline is prohibited under the 2014 WADA Prohibited List (S3 - Beta-2 Agonists). Pursuant to IAAF Rule 32.2 (a) and Rule 32.2 (b), the presence and use of a prohibited substance or its metabolites or markers in an athlete’s sample constitute an anti-doping rule violation. Terbutaline is also identified by the WADA 2014 Prohibited List as a specified substance. This finding therefore constitutes an anti-doping rule violation under IAAF Rule 32.2 (a) and Rule 32.2 (b). According to IAAF Rules, you have now the opportunity (i) to provide an explanation of the finding of Norandrosterone in your urine sample and (ii) to request the analysis of your B sample.

(i) Written explanation You have Monday 8 December 2014 to provide us (preferably by e-mail, with.a written explanation for the finding in your sample. Should you fail to provide us with an explanation by the deadline, you will be immediately provisionally suspended and a date will be set for your hearing.

(ii) B-sample analysis If you wish to have your B samples analysed, you must equally inform us -by no later than Friday 5 December 2014. You have the right to attend in person and/or to be-represented. In any event, you must provide me with the identity of the persons attending on your behalf. You will be required to pay the cost of the analysis, as well as all other related costs (travel, accommodation). Should you fail to request the B analysis by the above deadline, we will consider that you have waived your right to the B sample analysis and you will have no further opportunity to request it”.

It is worth noting that the template is itself inaccurate in that in it refers to Norandrosterone. There had been no such finding: the explanation should have been requested in respect of the finding of Terbutaline. Presumably the template had originally been drafted in respect of a different case and not been altered as it should have been.

13. The letter appears to have been sent as an attachment to an e-mail addressed to the Athlete’s agent, Mr van de Veen, and copied to Mr Capdeville, and one of his assistants, Ms Gallo, but the e-mail address was wrongly typed as “@volaresport” rather than “@volaresports”. On the letter itself (sent only as an attachment to the e-mail) the correct e-mail address has been written in by hand. A copy of the e-mail and its attachment was sent (correctly addressed) to, among others, Ms Gallo who responded by sending AK a copy of the Athlete’s explanation of 10 November 2014. Ms Gallo sent a copy of that email to the Athlete’s agent, but at the incorrect address given by AK. Her e-mail bears the timing “lundi 1 décembre 2014 14.21”.

F. v. Athletics Kenya (AK),

14. She evidently realised the error very quickly because by an e-mail bearing the timing “Monday, December 1, 2014 5.02pm” she sent another e-mail to AK. That e-mail attached the template of a letter to be sent to the Athlete. The body of the letter was in these terms: “We are in receipt of your written explanation, dated 10th November 2014, sent through your manager to IAAF, concerning the adverse finding in your above coded sample. We have carefully reviewed this explanation and note that you have waived your right to the counter-analysis. Please be aware that pursuant to IAAF Rule 37.6, by waiving your right to the B sample analysis, you are deemed to have accepted the A sample adverse analytical finding. You have now l4 days to request a hearing in writing. Should you fail to make such a request in writing, you will be deemed to have waived your right to a hearing and to have accepted that you have committed an anti-doping rule violation under IAAF Rules. Athletics Kenya will then proceed with your case acco rdingly. If you confirm that you wish a hearing in writing, in accordance with IAAF Rule 38.9, the hearing will be held within three (3) months of the date of notification of your request. Please be reminded that IAAF has recommended the following sanction (under IAAF rule 40.4):

• Reprimand

• Disqualification of the athlete’s results obtained on the 6th September 2014 at the `Birell Prague GP’ in Prague I look forward to hearing from you”.

14. The e-mail which was classified as “Importance High”, ended “Please note that the email address you used in your previous email for Mr Van De Veen is not correct, the correct address is: gerardvandeveen@volaresports.nl”.

15. Mysteriously, the template letter bears the date “26/02/2015”. In any event AK transcribed the letter and e-mailed it to the Athlete care of her agent, presumably as an attachment to an e-mail, though no such e-mail has been disclosed. The letter bears the date “09 Tuesday, 2014” [sic]. Despite the warning given in Ms Gallo’s e-mail the e-mail address typed on the letter was the incorrect address: gerardvandeveen@volaresport.nl.

16. According to the undisputed account of the Athlete, she was unaware of the communications from AK and therefore did not respond to request a hearing or to take any other steps. So far as she was concerned, she had admitted the anti-doping violation, supplied her explanation and noted the sanction proposed by the IAAF. So far as AK was concerned, she had not sought a hearing but had provided an explanation for the offence. Accordingly, on Friday 19 December 2014 without a hearing, AK resolved to impose a sanction of 6 months ineligibility commencing on 6 September 2014, the date of the Birell Prague GP.

17. The decision letter, bearing the date 19 December 2014, was addressed to the Athlete care of her agent at the correct e-mail address. However, the decision was sent as an attachment to an e-mail (copied to Mr Capdeville) and the address on that e-mail was incorrect, being

F. v. Athletics Kenya (AK),

gerardvandeveen@volaresport.nl. The letter is as follows:

“RE: IAAF NOTIFICATION OF ADVERSE ANALYTICAL FINDING, SAMPLE CODE NO. 2936460 Reference is made in regard to the above subject matter. Following consultations with IAAF, we would like to notify you that Athletics Kenya has resolved to sanction you for Six months in reference to IAAF Rule 40.11(b). In this regard your sanction is effective from 6th September; 2014 which is your last date of competition when you took part in Birell Prague GP. Your suspension therefore will end on 6’h March, 2015 after which you may resume training and competitions in accordance to IAAF Rules. Please be informed that your name will be published on the IAAF website and the same will be added to the list of the sanctioned athletes. You are advised to take matters of anti-doping very seriously failure to which such offences if repeated in future will attract stiffer sanctions. Please acknowledge and confirm receipt”.

18. No acknowledgement of receipt was forthcoming. According to the Athlete, she was unaware of the decision until the fact that she was listed as subject to a six-month ban appeared on the IAAF website and in the IAAF News 159- Newsletter. The Athlete’s agent promptly contacted the IAAF and as a result the Respondent’s decision letter was communicated to her on 28 January 2015. The Athlete then commenced the appeal to Court of Arbitration for Sport (the “CAS”) (the “Appealed Decision”).

19. In the period between the Birrell Prague Grand Prix and the sending of the decision letter the Athlete competed in two races: a 15K race at Ustia nad Laben on 14 September 2014 in which she was third and the Macau Marathon on 7 December 2014, which she won. It was common ground that her taking of the prohibited substance before the race in Prague could not have affected her performance in either of these races.

20. On 9 May 2015, after the expiry of the period of ineligibility imposed by the Respondent, the Athlete competed in a marathon in Kenya in which she was third.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

21. By a statement of appeal dated 30 January 2015, the Athlete filed her appeal against the Appealed Decision with the CAS in accordance with Article R38 et seq. of the Code of Sports Related Arbitration (the “Code”). Within such statement of appeal, the Athlete requested that her appeal be submitted to a three-member Panel and nominated Mr. Jeffrey G. Benz as arbitrator. In addition, the Appellant filed a request for provisional measures seeking a stay of the Appealed Decision in accordance with Article R37 of the Code.

F. v. Athletics Kenya (AK),

22. The Appellant filed her appeal brief on 10 February 2015 in accordance with Article R51 of the Code.

23. On 23 February 2015, the Athlete requested that a Sole Arbitrator be appointed instead of a three-member Panel for cost purposes. On 24 February 2015, AK was granted a short deadline to state whether it agreed to such request. AK failed to respond.

24. On 3 March 2015, AK filed its answer in accordance with Article R55 of the Code.

25. On 10 March 2015, the President of the CAS Appeals Arbitration Division pursuant to Article R50 of the Code determined that the matter be submitted to a Sole Arbitrator.

26. On 13 March 2015, the Athlete requested that the matter be determined without a hearing. The Athlete also sought permission to file a response to the answer, to put into evidence the A Sample documentation, and to produce medical evidence.

27. On 19 March 2015, AK objected to the Athlete being permitted to lodge a Response or otherwise supplement her case but did not respond on the request that the matter be determined without a hearing.

28. On 31 March 2015, the CAS Court Office, on behalf of the President of the Appeals Arbitration Division, informed the parties that His Honour James Robert Reid QC, retired judge, was appointed Sole Arbitrator.

29. On 7 April 2015, the Sole Arbitrator directed the Athlete to substantiate her request to file a response submission.

30. On 10 April 2015, the Athlete responded to the Sole Arbitrator’s request.

31. On 14 April 2015, the Sole Arbitrator directed the Athlete to file a reply limited to the issue of the Respondent’s reasons for imposing the six-month penalty on the Athlete.

32. On 20 April 2015, the Athlete filed her Reply.

33. On 22 and 25 May 2105, the Appellant and Respondent, respectively, signed and return the Order of Procedure in this appeal.

34. A hearing was held in this appeal on 27 May 2015 at the CAS Court Office in Lausanne. The Sole Arbitrator was assisted by Mr. Brent J. Nowicki, counsel at the CAS and was joined by the following in accordance with Article R44.2 of the Code:

For the Appellant: Mr Michiel van Dijk and Mr Tim Wilms, advocates, by telephone; the Athlete participated by Skype to make a statement and to answer questions put to her by the advocates and the Sole Arbitrator. She was assisted so far as necessary by Ms Hilda Kigen as interpreter.

F. v. Athletics Kenya (AK),

For the Respondent: Mr Elias Masika Juma, advocate, who was assisted by Mr Isaac Mwange Kamande, chief executive officer of the Respondent.

35. At the conclusion of the hearing, both parties expressly confirmed that their right to be heard had been fully respected.

VI. THE PARTIES’ SUBMISSIONS — A. The Appellant

43. The Athlete, in summary, submitted that she had never been made aware of the disciplinary proceedings because the Respondent had sent all relevant correspondence to the wrong e-mail address. She had therefore never had any opportunity to request a hearing and was wrongly sanctioned without having any chance to present her case. The Respondent had breached multiple procedural rules and she therefore she ought to be acquitted of any anti-doping rule violation or with a lesser sanction than that imposed, either in the form of a reprimand with no disqualification or (at worst) a period of disqualification of less than six months.

44. So far as the facts of the case were concerned, the Terbutaline entered her body as a result of taking the syrup Bro-Zedex, which was used to cure her sore throat. On 2 September 2014, she bought this syrup, which is known to help a sore throat, at a local pharmacy “Mbeti Pharmacy” in Embu, Kenya, which she regarded as a trustworthy and reliable source. She had visited the pharmacy several times in the past to receive medical advice and purchase medicines for illness. The pharmacy had provided her with any products that contained a prohibited substance. It was her practice to go to the pharmacy for minor symptoms. For more major problems she would go to the hospital.

45. The Athlete had visited the pharmacy due to her sore throat and explained her symptoms to the pharmacists. The pharmacy was well aware that she was a professional athlete and therefore the World Anti-Doping Code applied to her. In her appeal brief, it was specifically asserted that she explicitly asked whether Bro-Zedex contained any prohibited (doping) substances and that the employees of the pharmacy assured her that Bro-Zedex was allowed and did not contain any prohibited substances included in the WADA Prohibited List. In addition, it was asserted that the Athlete read the label of the syrup, and checked whether the ingredients were included on the 2014 WADA Prohibited List. She did not find any of the ingredients (including Terbutaline) on the 2014 WADA Prohibited List and therefore concluded that the syrup did not contain any prohibited substance.

46. She used the syrup for several days in the days before the 2014 Birell Prague GP. She does not dispute that Bro Zedex contains Terbutaline. She did not use the Bro-Zedex and/or Terbutaline to enhance her sport performance or to mask the use of a prohibited substance, but only to cure her sore throat. She was unaware of the fact that the syrup contained a prohibited substance. The fact that she was not aware that the syrup contained a prohibited substance is shown by her acknowledging its use on the DCF and that she did not request a Therapeutic

F. v. Athletics Kenya (AK),

Use Exemption. After the notice of a positive doping test, the Athlete immediately provided IAAF with a statement in which she declared that she used Bro-Zedex, which contained Terbutaline, explaining that the medicine was intended to cure a sore throat and that she had no intention to enhance her sporting performance and/or to mask the use of prohibited substances. Indeed, since she was unaware of the fact that Bro-Zedex contained a prohibited substance, no intent to use a prohibited substance, for any purpose, could be imputed on her.

47. The Athlete submitted that all the conditions of Article 40.4 of the IAAF Rules were met. She had no, or a very light, degree of fault. She was a well-respected athlete with a clean anti-doping record, and should be sanctioned (if at all) with only a reprimand and no period of ineligibility. This was the view of the IAAF Anti-Doping Administrator, Mr Thomas Capdevielle.

48. If she was to be sanctioned with a period of ineligibility, it should be less than six months. Moreover, if a period of ineligibility was to be imposed, the Appellant requested that it run from 19 December 2014, the day of disputed decision, in accordance with Article 40.10 IAAF Rules, as an earlier commencement date would not be fair due to the fact that the Appellant did not receive a Provisional Suspension and had competed in races in the intervening period unaware of any possible disciplinary proceedings.

B. The Respondent

49. The Respondent submitted that the sanction given to the Athlete was guided by the recommendation from the IAAF that she be sanctioned under IAAF Rule 40.4 as she had declared ingesting a syrup containing Terbutaline, and also taking into account her good faith and declaration of the product on her doping control form. The penalty imposed was not grossly disproportionate to the offence. By agreeing to begin the Athlete’s sanction as of the test date (i.e. the earliest possible date (6 September 2014)), AK took into consideration the special circumstances of this case and demonstrated fairness to the Athlete, though AK would not object to any period of ineligibility fixed on the appeal running from 19 December 2014 rather than from the date of the collection of the sample if that was felt more appropriate.

50. The IAAF’s suggestion that AK issue a reprimand was not binding and the sanction was imposed by the Respondent independently, taking into account the IAAF Rules, the circumstances of the case including the Athlete’s own conduct and the nature and severity of doping allegations. In taking its decision, the Respondent was guided by the increase in doping cases which had seen more than 15 Kenyan Athletes given varying sanctions in the recent past.

51. Although it was accepted that the Athlete had not received the various notifications from the Respondent because of the error in the e-mail address to which the communications were sent, the Athlete had made an unequivocal admission of taking a syrup contained a prohibited substance, it is clear that even if a hearing had taken place, the sanction handed to her would still have been as prescribed under IMF Rule 40.4. Due process was followed

F. v. Athletics Kenya (AK),

and observed as provided for under the Anti-Doping Rules and there had been no violation of the required results management process.