Monday, 17 December 2007

WADA appeals, loses ASADA – Karapetyn case

CAS 2007/A/1283, WADA v. ASADA, AWF & Karapetyn

Whether an Athlete's properly–imposed sanction should be overturned, in light of that sanction not having disqualified an athlete from a Gold Medal won subsequent to the original testing, and prior to the decision taken, was an appeal lost by WADA in the case of Australian weightlifter Aleksan Karapetyn.

WADA based its appeal on seeking support at CAS for its ambiguous drafting language of WADA CODE 2003 Article 10.7 (“Disqualification of Results in Competitions Subsequent to Sample Collection”), which calls on ADOs to strip athletes, who were determined to have violated an anti–doping rule, of their interim victories, results, prizes or medals. However, the CAS decision agreed with the Respondents' arguments, which invoked among other items, the language of the Article itself, which includes the phrase “...unless fairness dictates otherwise, ...”.

The atypical factual aspects of this case reinforce the WADAwatch stance regarding apparent overreach by WADA in seeking judicial interpretation that reinforces the misaddressed elements within its CODE.

The relevant FACTS:

Karapetyn was, and may again be (in the future) an Australian weightlifter (in the 94 kg class), who had represented Australia at the 2000 Olympics, as well as the 2002 and 2006 Commonwealth Games. At these last Commonwealth Games he won a Gold Medal as a competitor on 21 March 2006.

However, some nine months earlier, Mr Karapetyn competed in the Mermet Cup, in the United States. Samples he had submitted on 26 June were tested at the UCLA laboratory, in theory one of the best in the panoply of WADA–accredited labs. His testing results were announced as negative.

Note that labs are not required to report on drugs that may be found, but which are not on the Prohibited List: one presumptively obvious reason would be the additional expenses incured by “non-List testing”. Thus the substance Benzylpiperazine (BZP) was not tested by UCLA at the time: this substance was not included on the WADA Prohibited List as an S6 Stimulant until the 2007 List was published.

BZP could only be considered to be 'on the List' through the 'catch–all language' regarding Section S6–Stimulants: “...and other substances with a similar chemical structure or similar biological effect.

Meanwhile, back in October of 2006, four other Aussie weightlifters had tested positive for BZP, and at some subsequent point in their procedures (Investigator's report of December 2006), two things were revealed: one, that their 'avenue to damnation' was through use of a nutritional supplement by a manufacturer who had both introduced the BZP into the supplement improperly, and then failed to account for that inclusion on the package labelling, and two, that the weightlifters named Mr Karapetyn as another teammate who had ingested this substance.

Finally Karapetyn had tested cleanly one month prior to the Commonwealth Games, as well as during, and one month after: all these tests included BZP screens.

Due to the facts found by the investigation into the other four weightlifters, the Australian Sport Anti–Doping Authority (ASADA), the Australian Weightlifting Federation (AWF) and the Australian Sports Commission undertook a new investigation, begun 17 March 2006, concerning only those four athletes. Karapetyn was interviewed as a witness, on 13 April 2006.

In June 2006, as this investigation proceeded, the UCLA lab was requested to re–run Karapetyn's electronic data files produced from the Mermet Cup testing procedures in 2005; UCLA's lab announced a positive result for BZP, nearly a year after it first reported him as clean.

Two letters came to Mr Karapetyn: the first in November 2006, ASADA advised him that the sample from the Mermet Cup in 2005 was positive, and the second (actually the third, the second having been misaddressed) informing him of the ASADA decision that he'd committed an anti–doping rule violation, for this BZP.

See the CAS Opinion for more substantive discussions of the relevant ASADA decision, at paragraphs 11 – 14. Suffice to add that ASADA, from language found in its Policy Article 13.8 (Identical to WADA CODE Article 10.7), informed the athlete that his ineligibility for two years was imposed from 22 March 2006, until 22 March 2008, and that his Mermet Cup results from 2005 were disqualified, as to results, winnings and prizes.

Thus Karapetyn's results in the Commonwealth Games, which he'd won on 21 March 2006, were allowed to stand. ASADA reasoned that it had discretion NOT to hold that Karapetyn should be disqualified from his Commonwealth Games gold medal, as could be deduced through the discretion allowed under Policy Article 13.8, and addressed its reasons for doing so in its Decision.

Searching to reinforce the WADA CODE, WADA appealed.

ASADA, AWF and Karapetyn were, respectively, Respondents One, Two and Three in the case WADA brought to CAS. WADA offered its legal arguments and interpretations to the CAS Panel in what could be called an appeal of the ASADA decision as constituting 'Abuse of Discretion' from AWF Policy Article 13.8 (identical to WADA CODE 2003 Art. 10.7).

CAS dismissed WADA's appeal.

In doing so, CAS refuted the World Anti–Doping Agency's apparent contention: that an ADO with the authority, via the WADA CODE, to 'disqualify results in competitions subsequent to sample collection' MUST do so, in spite of the clear wording “...unless fairness dictates otherwise, ...”.

CAS reasoned that ASADA had acted within the discretion provided specifically through the AWF's adoption of the WADA CODE into its Policy, when that discretion was “...applied in good faith, without bias, error, or undue influence.”

Specifically: “ASADA considered the athlete's inadvertent taking of the banned substance nine months before the Commonwealth Games, the fact that the stimulant in question has no lasting effect on the athlete's performance and that his doping control results one month before, during and after the Commonwealth Games were negative for any prohibited substances.”

Formulating a decision that confirmed the ASADA's proper
use of discretion within the 'fairness' doctrine of Policy Article 13.8 (CODE 10.7), the CAS Panel opined that it could have, in a case where it found an ADO may have acted in bad faith, intervened against the taken Decision “to assert its own views of fairness”.

In WADA's submitted arguments, it argued that it is a rule, “ disqualify results unless the athlete has shown exceptional circumstances”. CAS disagreed in forceful terms, stating that there was no basis in the language of the AWF Policy: WADA (nor AWF by integration of CODE Art. 10.7 as written) had not expressly qualified or quantified express measures of
fairness within the CODE.

Prior CAS decisions that WADA introduced in support of its appeal, were evidently all distinguishable by either the Respondents' arguments or through CAS' reasoning itself.

A further question that was raised by ASADA (see para. 43 of the CAS decision), is the highly important issue of standing, in the multiple parties that could effect an appeal to CAS. In this case, ASADA posited that there could be cases in which an appeal was brought to CAS, in order to ameliorate the standing of a lower–finishing Athlete; if a Silver Medalist could bring appeal when the Gold Medalist is not facing loss of medals and results.

In the CAS decision, this point was left without analysis, as the described situation could only be hypothetically answered.

This case offers another example of WADA's quest to utilize, through CAS appeals (time is costly as well), a
post–drafting means of expanding and refining the juridical reach of the WADA CODE.

This is the same 'remedy' suggested by the authors of the recently published
Legal Opinion on the Conformity of Article 10.6 of the 2007 Draft World Anti–Doping Code with the Fundamental Rights of Athletes: that CAS case–law could or would provide necessary or beneficial 'judicial interpretation' to bear upon cases involving 'Aggravating Circumstances' (CODE 2007 Article 10.6). The authors chose not to support the concept that WADA should express a definition of the term 'aggravating circumstances', either in the APPENDIX of Definitions or within Article 10.6 itself (see this earlier WADAwatch post).

WADAwatch points out that the legal point WADA argued, in its appeal of the Karapetyn case decision by ASADA, reflects on persisting ambiguities in the WADA CODE as drafted between 2001 and 2003. With subsequent adhesion of Signatories to WADA (eg: AWF, ASADA), and adoption and implementation by these Signatories of the CODE's substantive language, they strive to be in compliance and conformity with its Articles, vis–à–vis the Athletes under their regulatory situation.

However, four years after the CODE was accepted, this CAS decision demonstrates yet again, that substantive ambiguities still exist. A ruling on interim results and the 10.7 'fairness doctrine' in WADA CODE 2003 Article 10.7, was not determined until the Decision was published 16 November 2007: nearly one month ago as this column is written.

WADAwatch stridently believe that a global system should not allow itself to abuse either Athletes or its member Signatories, most of whom are striving to 'toe the line', which have been repetitively forced into the role of 'judicial guinea pig', due to an apparent series of WADA drafting imprecisions.

If WADA persists on a reliance of CAS to define what WADA could have, but did not define itself, we may see the year 2010 or 2011 before a first CAS determination is revealed to the world of what WADA means by 'Aggravated Circumstances', in a decision potentially of benefit or detriment to that named Athlete.

NB: For those not inclined to read the final Decision by CAS in the Karapetyn case, WADA was forced to pay some six thousand Swiss francs towards the defense costs incurred by ASADA in the Appeal.

Adding in costs of in–house staff case preparation, and outside counsel legal fees, WADAwatch has to wonder if proper drafting exercises would help defray the long–term increases in WADA legal expenditures? The budgetary constraints confronting WADA today are known to be tied to its receipt of donation funding in US dollars, with the constraint of spending those, through its operational budget in Canadian dollars (see this prior post from the WADA World Conference on Doping in Sport, held in Madrid in November 2007).

Weightlifter Karapetyn keeps his Gold Medal from the 2006 Commonwealth Games, won nine months after testing 'negative' by UCLA, and three months prior to the retested sample being re–examined for BZP.

AWD and ASADA, representing Signatories (as an ADO and a National Federation) are allowed by CAS the discretion plainly expressed in the 'fairness' doctrine of Policy Article 13.8, as ordained by the AWF implementation of WADA CODE 2003 Article 10.7.

Finally, WADA is allowed to muse on the short– and long–term economic benefits of proper drafting of its international, quasi–treaty status documents, versus losing cases that neither expand its reach into the Signatories' decisions, nor reduce ambiguous aspects found in the CODE.

The opinions expressed by WADAwatch are strictly formed with the purpose of inciting WADA to adhere to its Fundamental Rationale, achieve its goals and fulfil the aspirations of its Signatories, in achieving the highest possible level of objective, neutral science in sport-doping control.

Watching WADA,


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