Arbitration CAS 2017/A/4984 Nesta Carter v. International Olympic Committee (IOC)
Related cases:
- IOC 2016 IOC vs Nesta Carter
January 13, 2017 - JADCO 2021 JADCO vs Nesta Carter
November 25, 2021
- Athletics (4x100m relay)
- Re-analysis of a sample within the limitation period revealing an ADRV
- Violation constituted by the presence of methylhexaneamine (MHA) in the athlete’s sample
- Scope of authority of the accredited laboratory to re-test the athlete’s sample
- Scope of the IOC’s policy related to the re-analysis program
- Absence of prejudice suffered by the athlete due to delay
- Absence of breach of the principle of legal certainty
1. The possibility of the re-analysis of an athlete’s sample within the applicable deadline of eight (8) years in the context of a global process of re-analysis of the samples collected at the Olympic Games can be exercised by the IOC. While not mentioned by name during 2008, methylhexaneamine (MHA) was nevertheless already covered under class S6 Stimulants, as a substance with a similar chemical structure or similar biological effect(s) to an expressly listed stimulant (tuaminoheptane), and it was therefore already prohibited as a stimulant. Since the validity of the results of the analysis of the athlete’s sample is unchallenged, they thus establish the presence of MHA, a prohibited substance, in the athlete’s sample and, therefore, an anti-doping rule violation (ADRV) within the meaning of Article 2.1 IOC Anti-Doping Rules (ADR).
2. According to article 6.5 of the IOC ADR what truly counts is not whether a substance is detected or not in a specific analysis performed at a given time in a given laboratory but whether it is present or not. Article 6.5 of the IOC ADR does not limit the types of tests to be conducted on samples within the “statute of limitation” period. Therefore, apart from departures from clearly written international standards (either ISL or IST) which are stated within the rules to be fundamental and can easily be identified and applied and subject to specific bias towards the athlete, or bad faith or ill intentions and to any express provision to the contrary, there appears to be neither limitation nor reservation on the scope of the analysis. The wording of article 6.5 of the IOC ADR is broad, indicating that samples establishing the presence of any prohibited substance form the basis for an “any anti-doping rule violation”. In this regard, a method validated and “fit for purpose” e.g. capable of detecting the prohibited substances in an economical and effective way in accordance with Article 5.2.4.2.2 of the International Standard for Laboratories (ISL) shall be considered valid. Likewise, the IOC is not limited by its own instruction letter to the laboratory and is not setting limits to its own possibility to extend the re-analysis as it would deem fit.
3. A new analysis performed during the limitation period is not limited by the analysis already performed. The initial analysis does not act as a “re-analysis threshold”. The rules do not exclude from the scope of the re-analysis prohibited substances which the first anti-doping laboratory could have effectively or theoretically discovered given the then existing state of science. In any event, the re-analysis program is meant to protect the integrity of the competition results and the interests of athletes who participated without any prohibited substance and not the interests of athletes who were initially not detected for any reason and are later and within the statute of limitation period found to have competed with a prohibited substance in their bodily systems.
4. The WADA Code 2004 provided for a limitation period of eight years between the date of an alleged violation and an action being commenced. The rules do not form an obligation on the IOC to perform re-analysis at all, or to do so as early as possible, when any new testing method becomes available. Therefore, the argument of the athlete regarding the alleged prejudice suffered due to “delay” cannot be accepted. In this respect, the difficulties to gather evidence including of the possible source of the MHA are inherent to an application of a long statute of limitation period.
5. MHA was already prohibited under the WADA 2008 Prohibited List as a stimulant having a similar structure and effects as one of the listed stimulants (tuaminoheptane). Therefore no dismissal of a claim against the athlete should apply based on the principle of a lack of legal certainty.
Mr. Nesta Carter is a Jamaican Athlete competing in the Men’s 4x100m athletics event in the Beijing 2008 Olympic Games.
In 2016, the IOC decided to perform further analyses on certain samples collected during the 2008 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2008. As a result in May 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after his 2008 A and B samples tested positive for the prohibited substance MHA: methylhexaneamine (dimethylpentylamine).
Consequently the IOC Disciplinary Commission decided on 13 January 2017 to disqualified the Athlete and his team from the events at the 2008 Beijing Olympic Games including forfeiture of any medal, diploma, medallist pin, points and prizes.
Hereafter in February 2017 the Athlete appealed the IOC decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the IOC decision and to annul the disqualification of the results of the Jamaican Team.
The Athlete argued that the case shoud be dismissed due to:
- the Lausanne Laboratory did not have any authority to re-test the Athlete’s sample for any substances other than requested and authorized by the IOC;
- the re-testing of the Athlete’s sample was contrary to the IOC’s publicly stated policy on re-testing;
- by reason of the prejudice caused to the Athlete through the IOC’s delay in bringing these proceedings;
- the charge against the Athlete breaches the principle of legal certainty.
Since the Panel concluded, on the specific circumstances of this case, that:
(i) the re-analysis of the Athlete’s sample collected following the Race at the Beijing Games confirmed the presence of MHA,
(ii) it cannot accept any of the arguments raised by the Athlete contending that the test results should be ignored or the case should otherwise be dismissed for certain alleged failures,
(iii) there was a finding of an objective ADRV based on the presence of a prohibited substance in the Athlete’s sample, and
(iv) this case is strictly limited to the consequences related to the Beijing Games and issues linked with fault or negligence are not relevant since sanctions such as ineligibility or disqualification from other events are not at stake; the Panel concludes that the Athlete’s appeal is dismissed and the Appealed Decision is upheld.
Therefore the Court of Arbitration for Sport decides on 31 May 2018 that:
1.) The appeal filed on 15 February 2017 by Mr Nesta Carter against the decision of the Disciplinary Commission of the International Olympic Committee dated 25 January 2017 is dismissed.
2.) The decision of the Disciplinary Commission of the International Olympic Committee in the matter of Nesta Carter dated 25 January 2017 is upheld.
3.) (…).
4.) (…).
5.) All other or further motions or prayers for relief are dismissed.
