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#sportslaw Sport Integrity Australia to appeal the decision in the Shayna Jack case CAS A1/2020 Shayna Jack v. Swimming Australia & Australian Sports Anti-Doping
Authority - brief (speculative thread) here
https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_A1_2020__FINAL__for_publication.pdf https://twitter.com/TraceyLeeHolmes/status/1335840518178140161
Authority - brief (speculative thread) here
https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_A1_2020__FINAL__for_publication.pdf https://twitter.com/TraceyLeeHolmes/status/1335840518178140161
1. When an organization such as Sports Integrity Australia or WADA appeal a decision such as this one, it is usually on the grounds that the sanction is overly lenient e.g., most sports fans in Australia will remember WADA & the Essendon case.
2. That ground of appeal is not mentioned here and it is noteworthy that Shayna Jack did receive a 2 year ban which of itself is lengthy; indeed, for a while 2 years and not 4 was the default maximum sanction in anti-doping for first time offences.
3. The media release by Sports Integrity Australia highlights "the need for clarity in the application of key anti-doping legal principles". I do not know precisely what the ambiguous legal issue is & have no contact with SIA - pesky academic; so am only speculating but...
4. The Jack case is the third in a line of CAS cases - CAS 2016/A/4534 Villanueva v FINA and CAS
2019/A/6313 Lawson v IAAF being the other two; which consider what an athlete must do to prove that they did not intentionally ingest the PED per Article 10.2.3 of the Code
2019/A/6313 Lawson v IAAF being the other two; which consider what an athlete must do to prove that they did not intentionally ingest the PED per Article 10.2.3 of the Code
5. in the above cases, the appeal by the anti-doping agencies was that an athlete had first to establish how the PED entered their body (the source was eating contaminated meat, contaminated supplement etc), then the issue of (lack of) intention/fault could be addressed.
6. But what was said in all three cases Villanueva, Lawson and now Jack [para 77], is that there is no strict need for the athlete to establish the origin of the PED in order to prove that the positive test was not intentional.
7. Put another way, according the above cases, in the context of a key anti-doping infraction there is no justification for reading Article 10.2.3 as requiring that the Athlete prove how the PED came to be in his or her system.
8. Would it help if an athlete could - scientifically difficulty and costly to do so BTW - establish the source of the PED and how it came into their system? Yes, it would - in Lawson the 4 year ban was annulled.
9. In Shayna Jack's case, she could not establish the origin of the PED (Ligranol) but the arbitrator taking into a/c the totality of evidence, including from Jack herself, held that she did not intentionally cheat and thus the full 4 year sanction could not apply.
10. The legal point for SIA may be that even in Lawson, the CAS Panel held that only in the narrowest of circumstances might an athlete who cannot point to the origin of the PED, be able to show that they had not intentionally cheated
11. Even this narrow "Lawson corridor" for athletes has been criticized as an unsatisfactory and contrary to the strict letter and sprit of the World Anti-Doping Code, e.g, see the views here of Jonathan Taylor https://www.lawinsport.com/topics/item/an-advocate-s-view-on-lawson-v-iaaf-cas-2019-a-6313
12. For others, given that once an athlete tests +, the practical difficulties (scientifically etc) in trying to rebut the presumption that they cheated are huge; allowing a tribunal to accept an athlete's plea in absence of proof of origin is not unfair https://www.lawinsport.com/topics/item/lawson-v-iaaf-a-view-from-the-perspective-of-athletes-counsel
13. The issue for SIA, may be that the Jack case seems to go slightly beyond Lawson e.g., para 81: "the proper approach is to determine whether, on the totality of the evidence, [Jack} has proven on the balance of probabilities that she did not, or did not attempt to, cheat.
14. In sum, SIA may be arguing that legally the interpretation and approach in CAS 2016/A/4534 Villanueva v FINA , CAS 2019/A/6313 Lawson v IAAF & now Jack about ways that athletes can show that they did not intentionally cheat, is wrong and needs to be tightened up.
15. Overall, the SIA's arguments seems to be with the reasoning of the arbitrator in the case - a technical legal point and not, of course, a personal one against either the arbitrator or Jack.
16. Originally, CAS had an advisory opinion system where they could appoint an arbitrator to give an opinion on a matter but that system is now gone - might be a useful one to revive for situations where there is a debate about the interpretation of a net legal point
17. The usual disclaimers on the above apply i.e, I could be entirely wrong.
