[2024] KESDT 1555 (KLR)

Anti-Doping Agency of Kenya (ADAK) v Kiprono (Tribunal Case Eo58 of 2024) [2024] KESDT 1555 (KLR) (7 November 2024) (Decision)

Neutral citation: [2024] KESDT 1555 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case Eo58 of 2024

John M Ohaga, Chair, MN Kimani & Benard Murunga Wafula, Members

November 7, 2024

Between

Anti-Doping Agency of Kenya (ADAK)

Applicant

and

Brenda Jerotich Kiprono

Respondent

Decision

C. Abbreviations and Definitions 1. The following abbreviations used herein have the indicated definitions;ADAK Anti-doping Agency of KenyaADR Anti- Doping RuleADRV Anti- Doping Rule ViolationWA World AthleticsAK Athletics KenyaWADA World Anti-Doping Agency

D. Table of ContentsAbbreviations and Definitions........................................................................... 1Parties......................................................................................................................2Brief Background...................................................................................................2Submissions by the Applicant.............................................................................3Jurisdiction.............................................................................................................4Issues.......................................................................................................................4Merits.......................................................................................................................4Disposition..............................................................................................................8

2. All the definitions and interpretation shall be construed as defined and interpreted in the constitutive document both local and international.

E. Parties 3. The Anti-Doping Agency of Kenya, the applicant, herein referred to as ‘ADAK’ is a state cooperation established under section 5 of the Anti- Doping Act to carry out anti-doping activities in Kenya and its authority to enforce the Act, including any consequence for the breach thereof, is recognized by all national and international sports federations and national and international sports organisations.

4. The Respondent is a female adult athlete at the national level for the purposes of Anti-Doping Regulations.

F. Brief Background 5. The case concerns alleged Anti-Doping Rule Violation for evading, refusing or failing to submit to sample collection in contravention with Article 2. 3 of ADR.

6. On 21st July 2023, ADAK Doping Control Officers arrived at Volare Camp to collect samples from the athletes. The lead DCO introduced his team to the athletes and informed them that their camp had been selected for an out of competition testing and their samples would be collected for testing.

7. The camp Coach was also present by the time the sample collection process began.

8. At around 2. 30pm, one of the DCO’s heard noises of falling objects from one of the rooms and an inspection was conducted immediately. It was discovered that two athletes had not been tested. The coach identified that the two missing athletes were in one of the locked rooms belonging to one, Elijah Kibiwot Cheruiyot, who had locked the room and left with the key.

9. Elijah availed the key and after opening the room, they realized that there were two athletes, the Respondent being one of them and a third person who was a friend to Elijah.

10. The lead DCO informed the trio that they needed to be tested and they agreed. The sample collection process was conducted successfully.

11. ADAK conducted investigations against the Respondent, the other Athlete (Faith Jeptoo Kimutai) and Elijah Cheruiyot. It recommended the three to be charged with Anti-Doping Rule Violation.

12. ADAK subsequently prepared an ADRV Notice but they were unable to effect service upon the Respondent. Their findings indicate that the Respondent had since travelled to United Kingdom and had not returned. There was no contact information provided nor ADAMS account created for the Respondent.

13. The Applicant lodged a charge document before this Tribunal, accusing the Respondent of evading, Refusing or failing to submit sample collection.

14. Efforts to trace the Respondent did not bear fruits as evidenced by the affidavit of service on record. This necessitated the Tribunal to allow the matter to proceed by way of written submissions.

G. Submissions by the Applicant 15. The Applicants stated that the burden of proof was on it to prove the ADRV to the comfortable satisfaction of the Tribunal. They, however, added that the burden shifts to the Respondent to demonstrate no fault, negligence, or intention to entitle the Respondent to a reduction of sanction.

16. With regards to intention, the Applicant submitted that the onus was on the Respondent to demonstrate that she did not intentionally evade, refuse or fail to submit to sample collection. The Applicant relied on CAS 2014/A/3820, to posit that the proof by a balance of probability requires that one explanation is more probable than the other possible explanation

17. With regard to fault or negligence, it was submitted that an athlete had a personal duty to ensure that they should always be available for sample collection at all times and to cooperate with Anti-Doping Organizations investigating Anti-Doping Rule violations. It was stated that the Respondent was grossly negligent for failing to submit to sample collection.

18. In addressing the issue of knowledge, the Applicant contended that the principle of strict liability is applicable in situations where participation during period of ineligibility by an athlete has constituted an ADRV. It was further stated that the athlete had a long career in athletics hence it could not be said that she had no exposure to the crusade against anti-doping in sports.

19. The Applicant urged this Tribunal to consider Article 10. 12. 3 of ADAK Rules and sanction the athlete to a 4 years period of ineligibility.

20. The Respondent did not participate in the proceedings before the Tribunal.

H. Jurisdiction 21. The Sports Disputes Tribunal has jurisdiction to hear and determine this matter in accordance with the following lawsa.Sports Act, No. 25 of 2013 under Section 58b.Anti-Doping Act, No 5 of 2016, under section 31(a) and (b), (as amended from time to time).

22. In the circumstances, the Tribunal assumes jurisdiction from the above- mentioned provisions of Law.

I. Issues 23. This Tribunal has considered the Charge document together with the annexures thereto and the submissions by the Applicant and the applicable laws.

24. The issue arising for determination is whether the Respondent committed an Anti-Doping Rule Violation under Article 2. 3 of the Anti-Doping Regulations.

J. Merits 25. Article 2. 3 of Anti-Doping Regulations provides;“2. 3Evading, Refusing or Failing to Submit to Sample Collection by an Athlete.[Comment to Article 2. 3: For example, it would be an anti-doping rule violation of "evading Sample collection" if it were established that an Athlete was deliberately avoiding a Doping Control official to evade notification or Testing. A violation of "failing to submit to Sample collection" may be based on either intentional or negligent conduct of the Athlete, while "evading" or "refusing" Sample collection contemplates intentional conduct by the Athlete.]

26. We adopt the above comment by reference to the World Anti-Doping Code as provided under Regulation 2(2) of the Anti-Doping Regulations thus;“The comments annotating various provisions of the World Doping Code (Code) prescribed by the World Anti-Doping Agency (WADA) are incorporated by reference into these Regulations, shall be treated as if set out fully, and shall be used to interpret these Regulations.”

27. Article 3. 1 of Anti-Doping Regulations provides as follows:“ADAK shall have the burden of establishing that an Anti-Doping rule violation has occurred. The standard of proof shall be whether ADAK has established an Anti-Doping rule violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where these Anti-Doping Rules place the burden of proof upon the Athlete or other Person alleged to have committed an Anti-Doping rule violation to rebut a presumption or establish specified facts or circumstances, except as provided in Articles 3. 2.2 and 3. 2.3, the standard of proof shall be by a balance of probability.”

28. Once an ADRV has been established, the burden of proof then shifts to the Athlete to prove either that the ADRV should not be considered as such, or that the ADRV was unintentional or that the applicable period of Ineligibility should be reduced, suspended or eliminated on the grounds provided for in the ADR. The Athlete’s evidentiary threshold is the balance of probability standard.

29. The Applicant’s Investigation Report indicate that the Doping Control Officers arrived at Volare Camp for the purpose of collecting samples from the athletes. It was the Applicant’s evidence that the lead DCO introduced his team to the athletes and informed them that their camp had been selected for an out of competition testing in which case their samples would be collected for that purpose. The sample collection process began but later in the day, they discovered that two athletes had not been tested. The Camp Coach, who was also present during the process, identified the missing athletes and established that they were in one of the locked rooms belonging to one, Elijah Kibiwot Cheruiyot.

30. The room was opened and inside the room were two athletes, Faith Jeptoo Kimutai and the Respondent together with Victor Kipkosgei Koech who was Elijah’s guest. It was at that point that the Applicant conducted sample collection from three athletes, the Respondent included.

31. A total of six witness statements were placed on record as well, which corroborate this position. These were from the three Doping Control Officers, the Camp Coach, Victor Kipkosgei Koech and ADAK’S Intelligence and Investigation officer.

32. The lead DCO, Mr. Oliver Wambua, stated that upon further inquiry, he noted that the Respondent’s room was number 8. He further stated that the Respondent said that she was not expecting or ready to be tested and that was why she locked up in the room.

33. Victor Kipkosgei Koech, who was in the room with the Respondent, stated that when the two ladies (Faith and the Respondent) entered the room, they looked nervous and uneasy. That they made calls but he did not know to whom, neither did he hear what they spoke.

34. The Respondent was immediately suspended from the camp and later relocated to United Kingdom as evidenced by the travel Itinerary form the Directorate of Immigration Services and the statement of ADAK’s Intelligence and Investigation Officer.

35. In CAS 2022/ADD/49 International Weightlifting Federation (IWF) v. Yunder Beytula It was held that refusing to submit to sample collection is presumed to have been committed intentionally and that the burden of proving that the violation was not committed intentionally lies with the Athlete.

36. The Arbitrator in CAS 2022/ADD/49 [supra] while citing CAS 2013/A/3341 World Anti-Doping Agency (WADA) v. Daniel Pineda Contreras & Chilean Olympic Committee (COC), stated that the defence of compelling justification of a refusal to submit to sample collection is to be interpreted restrictively given the consequences that arise from a finding that such rule has been violated.

37. This Panel is also guided by Article 3. 2 of the Anti-Doping Regulations which provides;“Facts related to Anti-Doping rule violations may be established by any reliable means, including admissions. “

38. This Panel finds that the Respondent’s explanation on why she was locked up constituted an admission and thus relevant and admissible in these proceedings.

39. It should be remembered that the Respondent did not participate in these proceedings and attempts to reach her bore no fruits. This means that the evidence presented by the Applicant was not challenged.

40. We concur with the Applicant that the Respondent had a personal duty to ensure that they should always be available for sample collection at all times and to cooperate with Anti-Doping Organizations Investigating Anti-Doping rule violations as required under Article 22. 3 of the Anti-Doping Regulations.

41. We note that that the Applicant actually collected sample from the Respondent establishing the whereabouts of the Respondent. We are, however, guided by the decision in CAS 2016/O/4854 International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (RUSAF) & Alexandr Khiutte, where it was held;“As demonstrated by the Claimant’s reference to CAS case law23, Rule 32. 2(c) of the IAAF Rules does not cease to consider an attempted evasion of anti-doping controls as a doping violation merely because a sample is ultimately collected. For this reason, an attempted (or, in this case, successful) evasion does not cease to be one merely because the Athlete returned to submit to testing hours after the fact. The Sole Arbitrator considers this approach justified by the policy logic of the IAAF Rules as well as by the plain meaning of the term “evasion”, which does not admit of a temporal requirement and need not last indefinitely. “

42. The Arbitrator in CAS 2016/O/4854 [supra] further held that such evasion, even if on the recommendation of a third party such as a coach, was committed knowingly, and with specific intent.

43. This Panel finds that the Applicant has proved the charge against the Respondent to the comfortable satisfaction of the Panel.

K. Sanctions 44. The Respondent having been found to be in violation of Article 2. 3 of the Anti-Doping Regulations, the Panel now turns to the sanctions to be imposed.

45. Article 10. 3.1 of the Anti-Doping Regulations provides;“For violations of Article 2. 3 or 2. 5, the period of Ineligibility shall be four (4) years except:in the case of failing to submit to Sample collection, if the Athlete can establish that the commission of the Anti-Doping rule violation was not intentional, the period of Ineligibility shall be two (2) years.”

46. The Respondent failed to prove lack of intention, fault and knowledge. Therefore, a period of ineligibility for four (4) years shall apply.

L. Disposition 47. The Panel hereby renders the following decision:a.The Respondent is liable for committing ADRV for evading, refusing or failing to submit to sample collection;b.The period of ineligibility shall be four (4) years;c.The period of ineligibility shall be from the date of the provisional suspension and therefore commences on the 4th August 2024 to the 3rd August 2028;d.Disqualification of any and/or all of the Athlete’s competitive results from 21st July 2023;e.Each party shall bear its own costs.f.The right of Appeal is provided for under Article 13 of the Anti-Doping Regulations and the WADA Code.

DATED AT NAIROBI THIS 7TH DAY OF NOVEMBER 2024. Signed:JOHN M OHAGA, SC; CARB- PANEL CHAIRPERSONMARY N KIMANI (MS) - MEMBERBERNARD WAFULA MURUNGA - MEMBER