[2024] KESDT 549 (KLR)

Anti-Doping Agency of Kenya v Chelangat (Tribunal Case E043 of 2023) [2024] KESDT 549 (KLR) (25 April 2024) (Decision)

Neutral citation: [2024] KESDT 549 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Tribunal Case E043 of 2023

J Njeri Onyango, Chair, Gabriel Ouko & Peter Ochieng, Members

April 25, 2024

Between

Anti-Doping Agency of Kenya

Applicant

and

Rosemary Chelangat

Respondent

Decision

Counsel Appearing:Mr. Bildad Rogoncho- Counsel for Adak/applicantNo Appearance for the Respondent 1. Abbreviations and Definations The following abbreviations used herein have the indicated definitionsADAK-Anti-doping Agency of KenyaADR- Anti- Doping RuleADRV-Anti- Doping Rule ViolationWA- World AthleticsAK-Athletics KenyaS.D.T-Sports Dispute TribunalWADA-World Anti-Doping AgencyAll the definitions and interpretation shall be construed as defined and interpreted in the constitutive document both local and international.Table of Contents2. Parties 33. The Charge 34. Background Facts 35. Submissions By Adak 66. Jurisdiction 87. Applicable Rules 88. Merit 99. Sanctions. 1110. Decision. 12

2. Parties 1. The applicant is the Anti-Doping Agency of Kenya (hereinafter ADAK) a state corporation established under section 5 of the Anti-Doping Act No 5 of 2016, represented in this proceeding by Mr. Rogoncho Advocate

2. The Respondent is a female adult of presumed sound mind, a national and athlete, not represented in these proceedings

3. The Charge 3. 1.The Anti-Doping Agency has charged the Respondent as an athlete with the charge of;-“Presence of prohibited substance S2. Peptide hormones, growth factors, related substances and mimetics/erythropoietin (EPO)”

3. 2.S2. Peptide Hormones, Growth factors, related substances and Mimetic/ erythropoietin is listed as a Peptide Hormone, Growth Related Substance and Mimetics under S2 of WADA’s 2023 prohibited list.

4. Background 4. 1.On 16th August 2023, an ADAK Doping Control Officer (“DCO”) collected a urine sample from the Respondent. The sample was split into two separate bottles, which were given reference numbers `A 7178150` (the A Sample) and B 7178150 (the B Sample) respectively.

4. 2.Both samples were transported to the WADA accredited laboratory in Qatar where “A” sample was analyzed as prescribed and returned an adverse analytical finding (AAF) for presence of a prohibited substance: S2. Peptide Hormones, Growth Factors, Related Substances and Mimetics/erythropoietin (EPO) which is listed as a Peptide Hormone, Growth Related Substance and Mimetics under S2 of WADA’S 2023 Prohibited List.

4. 3.The findings were communicated to the Respondent athlete by Sarah I. Shibutse, the ADAK Chief Executive Officer through a Notice of Charge and mandatory Provisional Suspension dated 9th October 2023. The Respondent was, in the said communication, offered an opportunity to provide an explanation for the same by 29th October 2023. She was also informed of the process and possible consequences dependent on her actions in response to the Notice.

4. 4On 31st October 2023 a notice of charge was presented to the Tribunal by Mr. Bildad Rogoncho, on behalf of the Applicant. The following were the Tribunal’s directions dated the same day:i.The Applicant shall serve the notice to charge, the notice of ADRV, the Doping Control Form, this direction No.1, and all relevant documents on the respondent, by 14th November, 2023;ii.The Applicant shall engage with the Respondent for the purpose of establishing whether the respondent would require Pro bono counsel;iii.The panel constituted to hear this matter shall be as follows;a.J Njeri Onyango, panel chairperson,b.Gabriel Ouko, member,c.Peter Ochieng’, memberiv.The matter to be mentioned 16th November 2023 to confirm compliance and for further directions.

4. 5.When the matter came up for mention Mr Rogoncho informed the panel that ADAK had requested a company called Cleridium to collect the athlete’s sample and in the doping control form, there was no provision of a telephone number and the email provided did not go through, therefore they could not reach the athlete. He further stated that they had engaged Athletics Kenya to assist in locating the athlete and requested the panel for a date in the new term to be able to locate the athlete and effect service. The Tribunal granted the request and set the next mention as 18th January 2024.

4. 6.At the mention on 18th January 2024, Mr. Rogoncho informed the Tribunal that the athlete was absent as they were yet to serve the athlete with the charge documents and the athlete was yet to even make a maiden appearance before the Tribunal and that the reason they had not been able to locate the athlete was because the sample was collected by an outsourced company who did not have details such as a phone number in their doping control form. He stated that he was working with Athletics Kenya to assist in finding athlete. He requested for 14 days to find the athlete and serve her appropriately. The Tribunal granted the request and ordered the matter to be mentioned on 1st February 2024

4. 7.During the mention on 1st February 2024, Mr. Mwakio informed the Tribunal that they had been unable to locate the Athlete. Mr. Mwakio prayed for fourteen (14) days to try trace the athlete. The Tribunal granted the request and set the next mention to be on 15th February 2024

4. 8.At the mention on 15th February 2024, Mr. Mwakio stated that the Athletics Kenya Federation was assisting in tracing the Athlete. Unfortunately, they are unable to trace the Athlete. He added that they had served the Federation with the notices and that they are aware of the existence of the matter. He prayed that they be allowed to file their submissions as per Article 3. 2.5 of the ADAK ADR and close this matter. The Tribunal directed the Applicant to file a comprehensive Affidavit of service as evidence in efforts made in order to activate Article 3. 2.5 of the ADAK ADR. The next mention was set to be 29th February 2024.

4. 9.During the mention on 29th February 2024, Mr. Mwakio informed the Tribunal that the purpose of the mention was to confirm filing of Affidavit of Service by the applicant. He confirmed to have complied with the same. He requested to be allowed to proceed by disposing the matter by way of written submissions. He further requested for twenty-one days to file their submissions. The Tribunal granted the request and gave the Applicant twenty-one (21) days to file their written submissions as the matter would proceed under Article 3. 2.5 of the ADAK ADR. The Tribunal set the next mention as 21st March 2024.

4. 10. At the mention on 21st March 2024, Mr. Mwakio confirmed that the submissions had been filed and was now seeking a date for decision from the Panel. The Tribunal granted the date for rendering the decision as 25th April, 2024 at 2. 30pm.

5. Submissions by Adak 5. 1.ADAK`s submissions were filed on 20/3/2024. The Respondent is stated to be a national level athlete, and thus the WA Competition rules, the WADC and ADAK ADR apply to her.

5. .ADAK submitted that they had met the requirements of Article 3. 2 and had to the required standards and methods established the fact of an ADRV by the Respondent. That there was analytical proof of the presence of a prohibited substance in the Respondent’s sample.

5. 3.ADAK further submitted that the Respondent under Article 2. 2 had to take responsibility in context of Anti-Doping, for what he ingested and used.

5. 4.It was ADAK’s position that where use and presence of a prohibited substance has been demonstrated, it is not necessary that intent, fault, negligence or knowing use on the athlete`s part be demonstrated in order to establish an ADRV.

5. 5.ADAK further submitted that Article 10. 2.1 shifts onus to the athlete to demonstrate no fault, negligence or intention, in order to be a beneficiary of reduction of the 4 years’ ineligibility sanction set out in Article 2. 1.

5. 6.On origin, the Respondent didn’t participate in these proceedings thus no explanation was provided for the origin of the prohibited substance and therefore the origin has not been established.

5. 7.On intention, ADAK submitted that for an ADRV to be committed non –intentionally, the Respondent must prove on a balance of probability that the ADRV was not intentional. ADAK relied on CAS 2019/A/35592 at paragraph 2 ‘The burden of proof with respect to intent lies with the athlete, who has the duty to establish, on a balance of probability, that the anti-doping rule violation was not intentional; that is the athlete has the burden of convincing the CAS Panel that the occurrence of the circumstances on which he/she relies on is more probable than their non-occurrence”.

5. 8.ADAK further submitted that since proof of source is a critical first step in exculpation of intent, the Respondent’s inability to establish how the prohibited substance entered her body, raises questions regarding her intention when she was in contact with the prohibited substance.

5. 9.ADAK submitted that the likelihood of the Respondent establishing a lack of intent without providing a source would be extremely difficult.

5. 10. ADAK submitted that the respondent was duly notified of the procedural steps and her rights in accordance with ADAK rules and WADA code. However, the Respondent’s non-participation in these proceedings means that she failed to provide an alternative plausible explanation disproving her intent when she ingested the prohibited substance.

5. 11. ADAK submitted that in view of her non participation in these proceedings the Respondent didn’t discharge her burden on a balance of probabilities, moreover an athlete with clean hands who faces an imminent four-year ban would leave no stone unturned in her quest to prove her innocence and non-intention to dope. The Respondent in this case, however, chose not to participate, and many questions regarding her intention remain unanswered.

5. 12. ADAK further submitted that the Agency’s burden of proof is limited to establishing that a prohibited substance has been properly identified in the athlete’s tissue or fluids. If the Agency is successful in proving this requirement, there is a legal presumption that the athlete committed an offence, regardless of the intention of the athlete to commit such offence.

5. 13. It was ADAK’s submission that an offence has therefore been committed as it was established that a prohibited substance was present in the athlete’s tissues or fluids. There is thus a legal assumption that the Respondent is responsible for the mere presence of a prohibited substance, regardless of the intention of the athlete to commit such an offence

5. 14On the question of fault/negligence ADAK placed reliance on ADAK ADR 22. 1.1 & 22. 1.3. The Respondent has responsibility to be knowledgeable and comply with the ADAK ADR, but was negligent in discharging such responsibility.

5. 15. ADAK urged this panel to apply the principle of strict liability in this instance placing reliance on CAS 2014/A/3820 that the respondent didn’t meet the set threshold by ADAK rules and the WADAC to warrant sanction reduction.

5. 16. ADAK considers that the following relevant issues have arisen and should be considered in setting the sanction.a.The ADRV has been established as against the athleteb.The knowledge and exposure of the athlete to anti-doping procedures and programs and/or failure to take reasonable effort to acquaint herself with anti-doping policies.c.The Respondent herein has failed to give any explanation for her failure to exercise due care in observing the products ingested and used and as such the ADVR was a result of her negligent acts.

5. 16. Therefore, it was ADAK’s submission that the panel should consider the sanction provided in Article 10. 3.3 of the ADAK Rules and sanction the athlete to a period of ineligibility of four (4) years.

6. Jurisdiction 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).c.ADAK Anti-Doping Rules , under Article 8. In the circumstances, the Tribunal assumes jurisdiction from the above- mentioned provisions of Law.

7. Applicable Rules Section 31(2) of the Anti-Doping Act, provides that, the Tribunal shall be guided by the Anti-Doping Act, the Anti-Doping Regulations 2021, the Sports Act, the Word Accord 2021 and International Standards established under it, the UNESCO Convention against Doping in sports, amongst other legal resources when making its determination.

8. Merit 8. 1.In the absence of participation by the Athlete, the following issues are uncontested.a.That the urine sample was collected from the Athlete on the 16th of August 2023. b.That there is no indication of previous ADRV by the Athlete.c.That a notice of charge was issued by the Applicant’s Chief Executive Officer, Dated the 31st October 2023 and that in the said communication the Athlete was offered an opportunity to provide an explanation for the ADRV by the 29th of October 2023, but no response was received from the Athlete despite the said charge document having been sent to the Athlete’s known E-mail address and telephone number as contained in the doping control form.

8. 2.On the question; Did the Athlete commit the charged anti-doping rule violation? The Applicant’s prosecution is based on the provisions of the act which is as follows; Presence of prohibited Substance S2. Peptide hormones, Growth factors, Related substances and mimetics/Erythropoietin( EPO), as outlined at paragraph D7 of the charge documents, Dated 13th December 2023.

8. 3.In the charge document, the Applicant has indicated that there was no known Therapeutic Use Exemption (TUE) recorded at the IAAF for the substances in question and there is no apparent departure from the IAAF Anti-Doping Regulations or from WADA International Standards for Laboratories which may have caused adverse analytical findings. The Applicant further submitted that they failed to respond to charges within the specified time as set out in the notification of charge and also, upon the respondent being served with the charge document in the current proceedings.

8. 4.This panel has reviewed the Affidavit of Service filed by the Applicant at the request of the Tribunal to confirm effective service of the charge document. Having done so, the Panel is satisfied that much effort was put in by the Applicant to contact the Respondent via all known means, including through email and service through the Athletics Kenya Federation. The Affidavit in question is deepened by Mr. Stanley Mwakio and is deponed on the 26th day of February 2024 and filed at the Tribunal on the 28th of February 2024.

8. 5.The Applicant had also submitted that despite being notified of the adverse analytical finding by the Applicant, the Respondent did not request for the analysis of Sample B and therefore waved her right of analysis of the same.

8. 6.Further, WC, WADC and ADAK ADAR articles 2. 1.2 states as follows; Sufficient proof of an anti-doping rule violation under Article 2. 1 is established by any of the following; Presence of a prohibited substance or its metabolites or markers in the Athlete’s sample, A sample where the Athlete waves analysis of the B sample and the B sample is not analyzed or where the Athlete’s B sample is analyzed and the analysis of the Athlete’s B sample confirms the presence of the prohibited substance or its metabolites or markers in the Athlete’s sample. Without a contrary analysis of the Athlete’s A sample, then the presence of the prohibited substance in the Athlete’s sample has been demonstrated by the Applicant as argued by the Applicant. Where use and presence of a prohibited substance has been demonstrated, it is not necessary that intent, fault, negligence or knowing use on the Athlete’s part be demonstrated in order to establish an ADRV.

8. 7.The Panel is satisfied that proper service was effected on the Respondent who failed to respond. And in the circumstances, the Panel is comfortably satisfied that the Applicant has established that the Athlete in this matter has committed an ADRV.

8. 8.On the question; Was the violation committed by the Athlete intentional (especially where an unspecified substance is involved)? The cord places the burden of proof upon the Athlete to rebut a presumption or establish specific facts or circumstances, and the standard of proof shall be by balance or probability. In the present circumstances, in the absence of the athletes participation or any document to the contrary, the presumption would be that the specified facts and circumstances have not been controverted.

8. 9.In the absence of any response from the Respondent, it would not be necessary to go into the issues of whether the ingestion of the substance was intentional or otherwise or whether to assess the degree of fault or not at all. It is the position of the Panel, therefore, that the existence of The ADRV has been sufficiently demonstrated to the required degree by the Applicant.

9. Sanctions. 9. 1.It was the submission by the Applicant that for an ADRV under Article 2. 1, Article 10. 2.1 of the ADAK ADR provides for a regular sanction of a four-year period of ineligibility where the ADRV involves a specified substance and the agency can establish that the ADRV was committed intentionally. If Article 10. 2.1 does not apply, the period of eligibility shall be two years. It was further submitted that Article 10. 4 creates 2 conditions precedent to the elimination or reduction of the sentence which would otherwise be visited on an Athlete who is in breach of Article 2. 1. These are; that the Athlete must establish how the specified substance entered his or her body, or that the Athlete did not intend to take the specified substance to enhance his or her performance. It is only if those two conditions are met that the Athlete can benefit from a reduction in the period of ineligibility.

9. 2.The Applicant’s position in the submissions is that the Athlete in the current case has not discharged the burden by any degree to warrant reduction of the sanction specified. And as a consequence of the Respondent’s lack of participation in these proceedings, no explanation has been provided for how the prohibited substance got into her system and therefore, the first venue to warrant reduction of a sentence is excluded. The Applicant further submitted that on the second limb, the Respondent would also not in the absence of intentionally setting out intentions, have any ground to establish the level of degree of fault and that the same assessment is not applicable in the present circumstances. Therefore, at the end, the Applicant submitted that there are no grounds in the current proceedings to warrant any reduction of the sentence.

9. 3.The Panel’s position is that the breach of the relevant code requirements has been committed. There being no response by the Respondent to dispel that position, the Panel also considers that there is a duty upon the Respondent to acquaint themselves with the requirements of Anti-Doping Rule violations and to be responsible for what is ingested. It is the Panel’s finding that in the absence of a response, there are no circumstances to grant the Respondent any reduction in the specified period of ineligibility. The Panel also makes the following findings:1. WADC’s Article 10. 13. 2 provides that credit may be awarded for the Provisional period of suspension served by an Athlete as against the period of ineligibility that they are sanctioned.2. The panel has not been informed that there has been any Breach of the period of mandatory suspension by the Respondent.

10. Decision. Consequent to the discussions on merits above, the Panel orders are as follows.a.The period of ineligibility shall be four ( 4) years;b.The period of ineligibility shall be from the date of the provisional suspension and therefore commences on the 29th October 2023 to the 28th October 2027;c.Any and or all competitive results by the Respondent effective the 16th of August 2023 are hereby disqualified;d.Each party shall bear its own costs;e.The right of Appeal is provided for under Article 13 of the ADAC, ADR and the WADA Code.

DATED AT NAIROBI, THIS 25TH DAY OF APRIL2024. Signed:...............................J Njeri Onyango, FCIArb - Panel ChairpersonGabriel Ouko - MemberPeter Ochieng - Member