TAS - Laudo Arbitral CAS 2015-A-4273 World Anti-Doping Agency WADA v. Sri Lanka Anti-Doping Agency

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Tribunal Arbitral du SportCourt of Arbitration for Sport 15/4/4273 World Anti-Doping Agency (WADA) v. Sri Lanka Anti-Doping Agency(SLADA) & Don Dinuda Dilshani Abeysekara ARBITRAL AWARDdelivered by the COURT OF ARBITRATION FOR SPORTsitting in the following composition: Sole Arbitrator: Mr. Alexander McLin, Attorney-at-law in Geneva, Switzerland in the arbitration between World Anti-Doping Agency (WADA), Montreal, CanadaRepresented by Mr. Ross Wenzel and Mr. Nicolas Zbinden of Kellerhals Carrard, Lausanne,Switzerland Appellant and Sri Lanka Anti-Doping Agency (SLADA), Colombo, Sri LankaFirst Respondent Ms. Don Dinuda Dilshani Abeysekara, Polonnaruwa, Sri LankaSecond Respondent Chateau de Béthusy Av. de Beaumont2 CH-1012 Lausanne Tél: +41 216135000 Fax: +41 216135001 www.tas-cas.org29. Ave. Tribunal Arbitral du SportCourt of Arbitration for Sport

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Il. 9.10. It is from the Appealed Decision that WADA now appeals to the Court of Arbitration ' CAS 2015/A/4273 WADA v. SLADA &Don Dinuda Dilshani Abeysekara — Page 2 PARTIES. The World Anti-Doping Agency (“WADA” or the “Appellant”) is a Swiss private lawfoundation with its headquarters in Montreal, Canada, and its seat in Lausanne,Switzerland, whose object is to promote and coordinate the fight against doping in sportin all its forms.The Sri Lanka Anti-Doping Agency (“SLADA” or the “First Respondent”) is the solenational anti-doping organization in Sri Lanka.Ms. Don Dinuda Dilshani Abeysekara (the “Atblete” or the “Second Respondent”) is aweightlifter. She is an international-level Sri Lankan athlete.

FACTUAL BACKGROUNDBackground FactsBelow is a summary of the relevant facts and allegations based on the parties’ writtensubmissions. Additional facts and allegations found therein may be set out, whererelevant, in connection with the legal discussion that follows. While the Sole Arbitratorhas considered all the facts, allegations, legal arguments and evidence submitted by theparties in the present proceedings, he refers in his Award only to the submissions andevidence he considers necessary to explain his reasoning.On the occasion of the Commonwealth Games held in Kandy, Sri Lanka, the Athleteunderwent an in-competition doping control on 27 April 2014, at which she providedtwo urine samples that subsequently tested positive to mesterolone. The second samplewas taken due to the fact the specific gravity of the first sample was not at the requiredlevel.Mesterolonone is listed as a substance prohibited both in and out of competitionaccording to the 2014 WADA Prohibited List, classified under “S1” (Anabolic Agents).Proceedings before the Sri Lanka Anti-Doping AgencyA preliminary hearing was held at SLADA on 19 May 2014, at which time the Athletewaived her right to have her B sample analysed and accepted a provisional suspension.The SLADA Disciplinary Committee issued a decision dated 3 November 2014imposing an 8-month period of ineligibility on the Athlete, beginning on 27 April 2014(the “Appealed Decision”).WADA requested, and ultimately received, a copy of the case file on 9 October 2015. for Sport (“CAS”). a4+29. Ave.2016 15:00 COURT OF ARBITRATION FOR SPORT N 1666 —P. Tribunal Arbitral du Sport - CAS 2015/A/4273 WADA v. SLADA &Court of Arbitration for Sport 1, Don Dinuda Dilshani Abeysekara — Page 3

PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT11. On 30 October 2015, the Appellant filed its Statement of Appeal against theRespondents with the CAS with respect to the Appealed Decision in accordance withArticle R47 ef seg. of the Code of Sports-related Arbitration (the “Code”). In itsStatement of Appeal, the Appellant requested that the matter be submitted to a SoleArbitrator pursuant to Article R50 of the Code.12. On 5 November 2015, the CAS Court Office acknowledged receipt of the statement ofappeal and, inter alia, invited the Respondents to state whether they agreed to submitthis appeal to a Sole Arbitrator. They were notified that in the absence of an agreementor response, the issue would be resolved by the President of the CAS AppealsArbitration Division, or her Deputy, in accordance with Article R50 of the Code.13. On 9 November 2015, the Appellant filed its Appeal Brief in accordance with ArticleR51 of the Code.14. On 17 November 2015, the CAS Court Office notified Appellant that the courier hadbeen unable to locate both Respondents at the addresses provided in the statement ofappeal, and had therefore been unable to notify the Respondents of the statement ofappeal in this procedure. Appellant was asked to provide relevant contact informationin order for the courier to complete delivery. The same day, Appellant providedaddresses, contact numbers and email addresses for each Respondent, with thesuggestion that the Athlete be notified through the Sri Lanka Weightlifting Federation.The CAS Court Office proceeded to redirect the courier accordingly and service waseffectuated.15. On 16 December 2015, having received no objection. or response from the Respondentsas to the Appellant’s proposal to refer this case to a Sole Arbitrator, the parties wereinformed by the CAS Court Office that the Deputy President of the Division had decidedto submit the matter to a Sole Arbitrator. The next day, on 17

December 2015, the CASCourt Office notified the parties that the Deputy President appointed Mr. AlexanderMcLin, Attorney-at-law in Geneva, Switzerland as Sole Arbitrator.16, On 28 December 2015, the CAS Court Office wrote to parties referring to its letter of19 November 2015 and stating that no answers had been received within the deadlineand drawing the parties’ attention to Article R55 para. 2 of the Code providing for theSole Arbitrator’s ability to render an award despite the lack of a response. In the sameletter, the parties were invited to express their position on whether a hearing wasnecessary in this appeal.17. On 29 December 2015, the Appellant responded that its preference was for the SoleArbitrator to issue an award solely on the basis of written submissions. No response wasreceived from the Respondents.18.On 7 January 2016, the CAS Court Office notified the parties that the SecondRespondent had expressly refused delivery of its letters of 16 and 17 December 2015and asked Appellant either to provide a new address for her, or continue to use theaddress of the Sri Lanka Weightlifting Federation.

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Tribunal Arbitral du Sport CAS 2015/A/4273 WADA v. SLADA &Court of Arbitration for Sport Don Dinuda Dilshani Abeysekara — Page4 19, On 12 January 2015, the Appellant provided the CAS Court Office with the Athlete’saddress in Polonnaruwa from its database, and suggested that if notification could notbe made at this address, correspondence should be sent to the Athlete’s attention directlythrough SLADA.20. The CAS Court Office made further unsuccessful attempts at notifying the Athlete atthe Polonnaruwa address. On 22 January 2016, it sent all previously undeliveredcorrespondence addressed to the Athlete to her attention at address of the FirstRespondent.21. On 16 February 2016, the CAS Court Office informed the parties that the Sole Arbitratordeemed himself sufficiently well informed to render a decision in this appeal without ahearing.22. On 23 February 2016, the CAS Court Office sent the parties the Order of Procedure forthis appeal, which noted that the Sole Arbitrator deemed himself sufficiently wellinformed to render a decision without a hearing in accordance with Article R57 of theCode.23, On 24 February 2016, the Appellant signed and returned the Order of Procedure in thisappeal to the CAS Court Office. The Respondents did not sign or return the Order ofProcedure, and did not otherwise object to its contents.

IV. SUBMISSIONS OF THE PARTIES24. WADA’s submissions, in essence, may be summarized as follows:- Mesterolone is an anabolic androgenic steroid that appears on the 2014 WADAProhibited List, which indicates that it is prohibited both in and out of competition.Its presence was detected in the Athlete’s bodily sample, Mesterolone is not amongthe substances classified as “specified substances” by the 2014 WADA ProhibitedList,- The presence of the prohibited substance in the Athlete’s bodily sample (which isnot challenged by the Athlete) constitutes a violation of Article 2.1 of the SLADAAnti-doping Rules (“SLADA ADR”).- Article 10.2 of the SLADA ADR provides for a two-year period of ineligibilityfrom competition unless specific conditions are met for a reduction in the period ofineligibility. These are provided for in Article 10,5 SLADA ADR and allow for thereduction of this applicable period of ineligibility in the event there is no significantfault or negligence by the athlete, or even its elimination in the event no fault or .negligence is found.- Inorder to reduce or eliminate the period of ineligibility under the SLADA ADR,the Athlete must first establish how the prohibited substance entered her system. Inthe present case, she has not provided any explanation to this effect.29. Ave.2016 15:09 COURT OF ARBITRATION FOR SPORT N 1666 =P.

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• As the origin of the substance is not established, the application of Article 10.4SLADA ADR was erroneous and the Athlete must be imposed a two-year periodof ineligibility. Article 10.4 SLADA can be applied for specified substances, andmesterolone is not a specified substance.- There are no applicable mitigating factors that might otherwise allow a reductionof the period of ineligibility, including the Athlete’s age.- Since the Athlete has already been ineligible to compete for seven months and eightdays under a provisional suspension, this time should be credited against the two-year ban and she should serve an additional 16 months and 22 days of ineligibilityfrom competition.25. WADA requests that CAS rule as follows:1. The Appeal of WADA is admissible.2. The decision rendered by SLADA Disciplinary Committee on 3 November 2014,in the matter ofMs Don Dinuda Dilshani Abeysekara, is set aside.3. Ms Don Dinuda Dilshani Abeysekara is sanctioned with a two-year period ofineligibility starting on the date on which the CAS award enters into force. Anyperiod of ineligibility, whether imposed on, or voluntarily accepted by, Ms DonDinuda Dilshani Abeysekara before the entry into force of the CAS award, shallbe credited against the total period of ineligibility to be served.4. All competitive results obtained by Ms Don Dinuda Dilshani Abeysekara from 27April 2014 through the commencement of the applicable period of ineligibilityshall be disqualified with all of the resulting consequences including forfeiture ofany medals, points and prices.5. WADA is granted an awardfor costs.26. The Respondents did not file written submissions or otherwise participate in this appeal.The rationale for the Appealed Decision can only therefore be understood from thelanguage contained within it. ,27. From the Appealed Decision, it appears the while the Athlete had disclosed certainsubstances she

had taken in the doping contro] form, none of them explain the presenceof mesterolone in her system. At the SLADA hearing held on 3 November 2014, shestated that she had not taken vitamins or supplements other than those given by hercoach. She also stated that she had received vitamin B12 injections for hand pain.28. The Appealed Decision algo states that the Athlete is a minor and lacks experience, andindicates that this circumstance should allow for the reduction of the sanction underArticle 10.4 of the World Anti-doping Code.29, By virtue of the absence of any written submissions, the Respondents have notarticulated any requests for relief.

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1. JURISDICTION30. Article R47 of the Code provides as follows:An appeal against the decision of a federation, association or sports-related body maybe filed with the CAS insofar as the statutes or regulations of the said body so provideor as the parties have concluded a specific arbitration agreement and insofar as theAppellant has exhausted the legal remedies available to him prior to the appeal, inaccordance with the statutes or regulations of the said sports-related body.31. Articles 13.1.1 and 13.2.3 (6) ofthe SLADA ADR grants WADAa direct right of appealto CAS from a decision of the SLADA Disciplinary Committee, without having toexhaust any internal remedies.32. The CAS, therefore, has jurisdiction to decide this appeal.

VIL ADMISSIBILITY33. Article R49 of the Code provides as follows:‘In the absence of a time limit set in the statutes or regulations of the federation,association or sports-related body concerned, or ofa previous agreement, the time limitJor appeal shall be twenty-one days from the receipt of the decision appealed against.After having consulted the parties, the Division President may refuse to entertain anappeal if it is manifestly late.34, Article 13.2.3 of the SLADA ADR provides that “the filing deadline for an appeal orintervention filed by WADA shall be the later of:(a) Twenty-one (21) days after the last day on which any other party in the casecould have appealed, or(b) Twenty-one days after WADA’s receipt of the complete file relating to thedecision.”35. WADA received the case file on 9 October 2015, and filed its Statement of Appeal on30 October 2015. It is therefore compliant with the time limit set forth in Article 13.2.3of the SLADA ADR. ,36. The Sole Arbitrator, therefore, confirms that this appeal is admissible.

VII. APPLICABLE LAW37. Article R58 of the Code provides as follows:The Panel shall decide the dispute according to the applicable regulations and,subsidiarily, to the rules of law chosen by the parties or, in the absence ofsuch a choice,according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the29. Avr. 2016 15:09 COURT OF ARBITRATION FOR SPORT N 1666?

Tribunal Arbitral du Sport CAS 2015/4/4273 WADA v. SLADA &Court of Arbitration for Sport Don Dinuda Dilshani Abeysekara — Page 7 rules oflaw the Panel deems appropriate. In the latter case, the Panel shall give reasonsfor its decision.38. The applicable regulations are the SLADA ADR. In the event of relevant gaps in the Vil. SLADA ADR, Sri Lanka law applies as the domicile of both Respondents (that havingissued the Appealed Decision, and the Athlete, its subject). Moreover, Article 20.3SLADA ADR provides that “Sri Lanka law governs these Anti-Doping Rules.” MERITS39. The issue at hand is whether the SLADA ADR allows, in the present circumstances, fora period of ineligibility of less than two years. The Athlete’s anti-doping rule violationis uncontested, The prohibited substance, mesterolone, is not a “specified substance”under the applicable WADA Prohibited List. The Athlete has not provided anexplanation as to the manner in which the prohibited substance came to be in her system.40. Appellant correctly points out that CAS case law has consistently held that the need for 41.

an athlete to establish how a prohibited substance entered his or her system is a conditionprecedent to a finding of absence of fault or no significant fault (CAS 2005/A/922, 923& 926, UCI & WADA v, Hondo & Swiss Olympic; CAS 2006/A/1067 IRB y, Keyter;CAS 2006/A/1130 WADA v. Stanic € Swiss Olympic, para. 41). The applicablestandard of proof being a balance of probability, the absence of any explanation fromthe Athlete means that she cannot hope to meet this standard.As the Appellant notes, the ability for an athlete to reduce a standard applicable periodof ineligibility on the basis of an-anti-doping rule violation on a “no fault or negligence”or “no significant fault or negligence” rationale is reserved for specific circumstanceswhich are not present here. This is borne out not only in the comments to Article 10.5.2SLADA ADR, but also in the now abundant CAS case law which underscores theathlete’s responsibility with respect to whatever he or she ingests or otherwiseadministers to his or her body. Such case law is replete with language to the effect thatan athlete has “a duty of utmost caution to avoid that a prohibited substance enters hisor her body.” (CAS 2005/C/976 & 986, FIFA & WADA). Failing to inquire as to whethera product contains a prohibited substance constitutes significant fault in and of itself,according to CAS precedent (see e.g. CAS OG 04/003 Edwards v. IAAF and USATF,CAS 2006/A/1067 IRB v. Keyter’.42. The Appealed Decision refers to the Athlete’s minor status as a potential factor thatmight have been consideredin reducing the otherwise applicable sanction, as well asher relative lack of experience, The Appellant, however, correctly points out that theWorld Anti-Doping Codeis intended to harmonise sanctions

in such a way thatisequally applicable to athletes young and old, amateur or professional. This is supportedby CAS case law (CAS 2009/A/2012, CAS 2012/A/2959, CAS 2009/A/2012 and CAS2010/A/2268), The World Anti-Doping Code allows for youth andinexperience to beconsidered as factors when determining an athlete’s degree of fault, which, if somehowdeemed to be less than significant, could lighten an otherwise standard period ofineligibility of two years. Thisis however predicated on the existence and assessmentof an athlete’s explanation for the presence of a prohibited substancein his or hersystem. In the present case, no explanation has been provided and it is therefore not

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Tribunal Arbitral du SportCourt of Arbitration for Sport TX. 43. CAS 2015/A/4273 WADA v. SLADA &Don Dinuda Dilshani Abeysekara — Page 8 possible to assess the Athlete’s degree of fault, and the extent of her youth orinexperience as factors in this assessment,Since the SLADA ADR imposes a two-year period of ineligibility absent conditionsthat would meet the requirements of Articles 10.5.1 or 10,5,2, and these conditions arenot met, the Appealed Decision cannot be deemed compliant with the applicable rules,and an additional period of ineligibility must be imposed in order to bring the sanctionin line with the rules.44. Consequently, the Sole Arbitrator determines that the Athlete has committed an anti-doping rule violation in accordance with Article 2.1 of the SLADA ADR (presence ofa prohibited substance or its metabolites or markers in an athlete’s bodily specimen) andtherefore shall serve a two-year period of ineligibility from the date of this award inaccordance with Article 10.2 of the SLADA ADR. Any period of ineligibility servedby the Athlete as a result of the Appealed Decision shall be credited against the totalperiod of ineligibility to be served.

Costs45. Article R64.5 of the Code provides that “/iJn the arbitral award, the Panel shalldetermine which party shall bear the arbitration costs or in which proportion the partiesshall share them, As a general rule, the Panel has discretion to grant the prevailingparty a contribution towards its legal fees and other expenses incurred in connectionwith the proceedings and, in particular, the costs of witnesses and interpreters. Whengranting such contribution, the Panel shall take into account the complexity andoutcome of the proceedings, as well as the conduct and the financial resources of theparties.”46. WADA fully succeeded in bringing this appeal, having increased the Athlete’s periodof ineligibility in accordance with the SLADA ADR. In this respect, SLADA. bearsresponsibility for the issuance of the Appealed Decision which, as noted above, was animproper application of its own rules. The Sole Arbitrator is therefore of the opinionthat SLADA should bear the costs of the arbitration, to be calculated and served on theparties by the CAS Court Office. Moreover, considering that WADA was fullysuccessful and was required to file this appeal to properly enforce the SLADA ADR,but noting that no hearing took place and the straightforward nature of the appeal, theSole Arbitrator determines that SLADA shall contribute to the legal and other costs ofWADA in the amount of CHF 3,000.

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Tribunal Arbitral du Sport CAS 2015/A/4273 WADA v. SLADA &Court of Arbitration for Sport Don Dinuda Dilshani Abeysekara — Page 9 ON THESE GROUNDS The Court of Arbitration for Sport rules that:L.,The appeal filed by the World Anti-Doping Agency on 30 October 2015 against the SriLanka Anti-Doping Agency and Ms Don Dinuda Dilshani Abeysekara with respect tothe decision rendered by the Sri Lanka Anti-Doping Agency Disciplinary Committeeon 3 November 2014 is upheld.The decision rendered by the SLADA Disciplinary Committee on 3 November 2014 isset aside.Ms Don Dinuda Dilshani Abeysekara is sanctioned with a two-year period ofineligibility commencing on the date of this award with credit given for any period ofineligibility already served by Ms Don Dinuda Dilshani Abeysekara between 18 May2014 and 27 December 2014,The costs of the arbitration, to be determined and served to the parties by the CAS CourtOffice, shall be borne by the Sri Lanka Anti-Doping Agency.The Sri Lanka Anti-Doping Agency shall pay the World Anti-Doping Agency CHF3,000 as a contribution to its legal and other costs.All other motions or prayers for relief are dismissed, Seat of arbitration: Lausanne, SwitzerlandDate: 29 April 2016

THE COURT OF ARBITRATION FOR SPORT

Alexander McLinSole Arbitrator 10