Swimmer, Shayna Jack, partially succeeds in appeal to Court of Arbitration for Sport

Shayna Jack v Swimming Australia and Australian Sports Anti-Doping Authority (ASADA) CAS A1/2020

On 19 December 2019, ASADA (now known as Sport Integrity Australia – “SIA”) imposed a 4-year ban on Shayna Jack (“Athlete”) after a doping control test revealed the presence of Ligandrol in her system.  Ligandrol, said to have similar properties to anabolic steroids, is prohibited under the World Anti-Doping Authority Prohibited List 2019.

At the time of the test (26 June 2019) the Swimming Australia Anti-Doping Policy effective from 1 January 2015 (“Policy”) applied.  The Policy provides for strict liability for the presence of prohibited substances (Art 2.2.1) and a period of ineligibility of 4 years where, as here, the prohibited substance concerned is not a “Specified Substance” (Art 10.2.1). 

The Policy also allows for a reduction in the otherwise applicable  period of ineligibility to 2 years (instead of 4 years) where the athlete can prove that the violation was not intentional (Art 10.2.1.1). Further avenues for reduction are available if the athlete can show: (1) how the prohibited substance entered into his/her system; and (2) that there are exceptional circumstances which establish that the violation was committed without fault or negligence (enabling a reduction of up to 100% of the otherwise applicable sanction) or no significant fault or negligence (enabling a reduction of up to 50%).

The Athlete applied to the CAS seeking to challenge her ban. She submitted that the ban should be eliminated or, in the alternative, she should only be banned for a period of 1 year, on the bases that the violation was not intentional and that she bore no fault or, alternatively, that she bore no significant fault for it. 

Alan Sullivan QC was appointed as sole arbitrator.

The Athlete was unable to provide any particular account of how Ligandrol had entered her body. Instead she relied on:

• expert scientific evidence which demonstrated an absence of long term use of Ligandrol by the Athlete;
• her own “emphatic” (at [83]) evidence that she said she did not intentionally take Ligandrol and that she had taken “considerable steps, at considerable expense” (at [86]) to try to identify its source, but had failed; and
• character evidence showing her to be “a very hardworking, conscientious, likeable and motivated athlete of the highest integrity who wanted to be a role model for other younger swimmers and, in fact, had proven to be so” (at [91]).

The Arbitrator acknowledged that the Athlete was unable to establish how Ligandrol entered her system and so the attempt to reduce the period of ineligibility based on exceptional circumstances failed upon the threshold question.

However, the Arbitrator accepted that the Athlete did establish that the violation was unintentional. This was due to the combined effect of the expert evidence; her own credible evidence (the Arbitrator found that, “[S]he was one of the most impressive witness [sic] the Sole Arbitrator has seen in his more than 40 years of practice. She appeared to be completely straightforward, genuine and honest in the answers she gave. Her demeanour was excellent and her dismay and upset at the situation she found herself was evident” [87]); and the compelling character evidence. 

Given the finding that the violation was unintentional, Article 10.2.1.1 of the Policy applied and the period of ineligibility was reduced from 4 to 2 years.

Comment

The finding is not without controversy.  This is because of an earlier CAS appeal decision (CAS 2016/A/4534, Villanueva v FINA) where the Panel held that while the rules do not specifically require the athlete to prove the origin of the substance to establish that the violation was not intentional, determination of origin was a “crucial element” in eliminating fault and that it would be “extremely rare” to prove innocence of intent without proving origin . That Panel opined that there is “only the narrowest of corridors” where the athlete will be able to discharge their onus if origin is not established.   

The Arbitrator in Jack’s case, expressly considered Villanueva. He said that whilst he agreed with the substantive reasoning of the Panel (that the athlete is not required to establish the origin of the prohibited substance), he found the Panel’s additional comments (referred to in the preceding paragraph i.e. “extremely rare” and “only the narrowest of corridors” etc) were “an unhelpful, unnecessary and unwarranted gloss on the wording employed in Article 10.2.3” [81].  For this reason, the Arbitrator did not follow   this aspect of the Villanueva decision.

Appeal

SIA and WADA have both appealed. They have done so as the Jack decision could be seen to expand the availability of methods of proof for lack of intention for violations. 

While earlier CAS decisions are not strictly binding in subsequent arbitrations, a question arises as to certainty and harmonisation of approaches (the WADA Code being directed to both aims) for athletes. 

That appeal is yet to be heard and determined by the CAS.