CAS 2017/A/5016 Ihab Abdelrahman v. Egyptian Anti-Doping Organization
CAS 2017/A/5036 WADA v. Ihab Abdelrahman & Egyptian Anti-Doping Organization
CAS 2017/A/5016 Ihab Abdelrahman v. Egyptian Anti-Doping Organization (EGY-NADO) & CAS 2017/A/5036 World Anti-Doping Agency (WADA) v. Ihab Abdelrahman & EGY-NADO
Related case:
CAS OG_2016_23 Ihab Abdelrahman vs Egyptian Anti-Doping Organisation
August 16, 2016
Athletics (javelin)
Doping (testosterone)
Absence of departure from the ISL regarding the right to attend the opening of the B sample
Requirement to prove an absence of intent in order to reduce the otherwise applicable sanction
Disqualification of results
1. The basic right of the athlete to be given a real opportunity to verify the accuracy of the sample opening process is materially respected where the athlete and his representative were present when the identity of the sample and the integrity of its seal were verified, when the sample bottle was opened and when the analytical procedures were initiated. No “fundamental” departure from the International Standard for Laboratories (ISL) can have occurred at the opening of the B where said rights have been respected. In the absence of any specific rule specifying how the verification of the integrity of the seal or other similar device should in practice be carried out, even visual inspection of the verification process by the athlete and/or his/her representative fulfils the requirement of “attendance” in the opening of the sample, provided that the integrity of the seal or other device can be sufficiently verified by vision. In this respect, any departure that may have occurred because the seal of the sample was partially broken when the Laboratory was still completing the Sample Inspection Form cannot have caused the AAF where it is common ground, and cannot be disputed, that no (metabolites of a) substance (corresponding to those detected in the A sample) could have entered a closed bottle, properly sealed – as verified, at least visually, by all attending the test – up to the moment the process of the breaking the seal was started.
2. The establishment of the source of the prohibited substance in an athlete’s sample is not mandated in order to prove an absence of intent. In particular, the provisions of the Egyptian Anti-Doping Rules (EADR) concerning “intent” do not refer to any need to establish source, in direct contrast to Article 10.5 EADR, combined with the definitions of “No Fault or Negligence” and “No Significant Fault or Negligence”, which expressly and specifically require to establish source. Yet, it could be de facto difficult for an athlete to establish lack of intent to commit an anti-doping rule violation demonstrated by presence of a prohibited substance in his sample if he or she cannot even establish the source of such substance. However, the athlete, even though s/he is not bound to prove the source of the prohibited substance, has to show, on the basis of the objective circumstances of the anti-doping rule violation and his/her behaviour, that specific circumstances exist disproving his/her intent to dope.
3. In case of an anti-doping rule violation, article 10.8 EADR mandates the disqualification of all the athlete’s results from the date of collection of the positive sample through the commencement of any provisional suspension or ineligibility period unless fairness requires otherwise. No reason of fairness is engaged with respect to an athlete found responsible for an intentional anti-doping rule violation.
In July 2016 the Egyptian Anti-Doping Organization (EGY-NADO) has reported an anti-doping rule violation against the javelin thrower Ihab Abdelrahman after his A and B samples tested positive for the prohibited substance Testosterone.
Concerning the B-sample, the Athlete was selected to compete at the Rio 2016 Olympic Games while the Barcelona laboratory was closed during the summer holiday and the analysis of his B-sample was scheduled on 30 August 2016. Because of the provisional suspension and the pending analysis of his B sample the Athlete appealed his suspension with the CAS Ad Hoc Division (AHD) in Rio (CAS OG 16/23) and requested to lift the provisional suspension. However on 11 August 2016 CAS AHD dismissed the Athlete’s application.
Before the opening the Athlete’s B-sample it was noted that the laboratory staff already had broken the seal before the Athlete or his representative could check the seal. The analysis of the B-sample confirmed the findings of the A-sample. On 9 February 2017 the EGY-NADO Doping Hearing Panel decided to impose a 2 year period of ineligibility on the Athlete.
Hereafter in March 2017 both the Athlete and the World Anti-Doping Agency (WADA) appealed the decision of 9 February 2017 with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the EGY-NADO decision or to impose a reduced sanction. WADA requested the Panel to impose a 4 year period of ineligiblility on the Athlete and to dismiss his’s appeal.
The Athlete denied the intentional use of the prohibited substance and asserted that it was caused by a prescribed product that was contaminated or mixed-up by the producer. He argued that there was a violation of the “principle of good governance” during the proceedings and that the test results were invalid as a result of several departures of the WADC and ISL.
WADA rejected the Athlete’s assertions about the opening and analysis of the B-sample and stated that during the process the B sample bottle remained visible to the Athlete and his representative and they were able to verify that the seal was intact. WADA contended that the Athlete’s B-sample analysis confirmed the Adverse Analytical Finding and he failed to establish that any alleged departure could reasonably have caused the anti-doping rule violation.
WADA finds that the alleged facts regarding “good governance”, as regrettable, have no relevance to the establishment of the anti-doping rule violation and the applicable sanction. Further WADA holds that the Athlete failed to establish the source of the prohibited substance.
Considering the evidence in this case the Panel concludes that no "fundamental" departure occurred when the B-sample was opened because the Athlete and his representative were present when the identity of the sample and the integrity of its seal were verified, when the sample bottle was opened and when the analytical procedures were initiated. In other words: the basic right of the Athlete (to be given a real opportunity to verify the accuracy of the sample opening process) was materially respected.
The Panel dismiss the Athlete's contentions about the allegedly untimely partial breaking of the seal of the bottle containing the B sample. Here the Panel holds that the Athlete failed to establish that such departure could reasonably have caused the Adverse Analytical Finding. Also the Panel rejects that other alleged violations effected the procedure which resulted in the Adverse Analytical Finding and leading to the Decision in question.
As a result the Panel rules that the Athlete committed the anti-doping rule violation and that he failed to demonstrate that the violation was not intentional.
Therefore the Court of Arbitration for Sport decides on 18 Decemer 2017 that:
1.) The appeal filed by Mr Ihab Abdelrahman on 1 March 2017 against the decision rendered on 9 February 2017 by the EGY-NADO Doping Hearing Panel is dismissed.
2.) The appeal filed by the World Anti-Doping Agency on 20 March 2017 against the decision rendered on 9 February 2017 by the EGY-NADO Doping Hearing Panel is upheld.
3.) Mr Ihab Abdelrahman is declared ineligible for a period of four years from 21 July 2016, the date of his provisional suspension. All competitive results obtained by Mr Ihab Abdelrahman between 17 April 2016 and 21 July 2016 are disqualified, with all of the resulting consequences, including forfeiture of any medals, points and prizes.
4.) Mr Ihab Abdelrahman and EGY-NADO shall bear as to 50% each the costs of the arbitration proceedings, to be determined and served to the parties by the CAS Court Office.
5.) Mr Ihab Abdelrahman and EGY-NADO shall pay to the World Anti-Doping Agency an amount of CHF 3'000 (three thousand Swiss Francs) each towards the legal costs and expenses incurred in connection with the present proceedings.
6.) All other motions or prayers for relief are dismissed.
