In August 2018 World Rugby (WR) had reported an anti-doping rule violation against the American rugby player Kisi Keomaka Unufe after his A and B samples tested positive for the prohibited substance Heptaminol. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the WR Judicial Committee.
The Athlete admitted the violation,stated that it was not intentional and demonstrated with evidence that the positive test was the result of a contaminated supplement despite his efforts to ensure the product was safe. He had mentioned this supplement on the Doping Control Form and analysis of this supplement in a Laboratory confirmed it contained Heptaminol.
WR accepted that the violation was not intentional and that the product literature nor the packaging of the supplement in question made reference to the substance Heptaminol. However WR contended that the supplement was clearly not contaminated as it listed the prohibited substance Dimethylhexylamine (DMHA) as product ingredient in the product literature and website.
A simple reseach on the intenet for DMHA would have revealed that it was a prohibited substance. WR argued that Athlete acted with a substantial degree of fault or negligence and that any reduction of the sanction should be small.
The Panel does not accept that the supplement in question was contaminated because the prohibited substance DMHA was listed in the product literature and website. It deems the prohibited substance disclosed in the product literature was not the prohibited substance for which the Athlete tested positive, and it is an Athlete’s duty to consider any and all ingredients of a supplement product.
The Panel concludes that the Athlete’s Fault or Negligence was not significant but serious enough that any reduction must not be the largest portion of the presumptive 2 year period of ineligibility.
Therefore the WR Judicial Committee decides on 4 February 2019 to impose a 14 month period of ineligibility starting on the date of the provisional suspension, i.e. on 13 August 2018)
Hereafter in February 2019 the Athlete requested the WR Post Hearing Review Body (PHRB) a review of the decision of 4 February 2019. Here the Athlete argued the imposed sanction was unprecedented and disproportionate due to the Judicial Committee:
- failed to find that the procuct in question was contaminated; and
- misapplied the "Cilic" factors as stipulated in case law.
The PHRB disagrees with the Athlete’s contention that the Judicial Committee gave no weight at all to the subjective factors and double-counted the objective factors. To the contrary, the objective / subjective approach articulated in the Čilić decision was fully considered and followed. Comprehensive and cogent reasons were provided by the Judicial Committee.
One member of the PHRB finds that the Judicial Committee erred in agreeing there was No Significant Fault on the part of the Athlete and finds that the degree of fault on the Athlete’s part would warrant no reduction of the presumptive sanction of two years’ Ineligibility.
While the majority of the members do not regard these considerations as warranting an increase in the sanction imposed by the Judicial Committee these factors do underscore the appropriateness of the Judicial Committee’s decision.
The majority of the PHRB would also not tinker with, let alone significantly reduce the sanction of 14 months imposed by the Judicial Committee. That sanction is amply supported by the record and by the Judicial Committee’s findings of fact. It is proportionate in all of the circumstances.
The minority view is that the period of Ineligibility should be increased to two years. All members of the PHRB agree that the Judicial Committee’s decision in respect of the Contaminated Supplement issue was wrong. However, in the PHRB's view, it makes no difference to the outcome. The PHRB holds that the delay in the proceedings does not warrant backdating the commencement of the period of ineligibility to the date of the sample collection.
Therefore the PHRB decides on 12 March 2019 to uphold the WR Judicial committee's decision of 4 February 2019.
