Full Award released in Alex Wilson case
The Court of Arbitration for Sport Ad-Hoc Division ('CAS AHD') has released the full arbitral Award relating to the provisional suspension of Alex Wilson from the Men's 100-metre sprint.
As reported by Sports Law Combine earlier this week Wilson, a Swiss sprinter who had impressed in the days before the Games in breaking the 100-metre European record, is out of the Olympics because the CAS AHD reinstated a provisional suspension against him.
This article reports in further detail the Award now that the CAS AHD has released it.
Background
Wilson's provisional suspension was initially handed out by Anti-Doping Switzerland and later overturned by the Disciplinary Chamber of Swiss Olympic after the presence of a steroid trenbolone was found in his system during out-of-competition testing in March 2021.
Wilson claimed the source of the prohibited substance was through the ingestion of contaminated meat consumed in a Jamaican restaurant in Las Vegas in March 2021.
On 22 July, World Athletics ('WA'), later joined by WADA on 24 July, filed an application with the CAS AHD appealing the Swiss Olympic decision and to have the provisional suspension reinstated immediately.
CAS AHD held a hearing last Sunday before a three-person panel presided over by the Hon. Dr Annabelle Bennett, the former Australian Federal Court Judge.
CAS jurisdiction
Mr Wilson and his Counsel raised several jurisdictional arguments, including that because WA were notified of the Swiss Olympic decision to lift Wilson's provisional suspension on 8 July, that date was not within the ten days before the Opening Ceremony required to fall within CAS AHD jurisdiction.
WA contented that on 8 July, they did not know whether there was a dispute concerning the decision. It was not until they were provided with the case file and all the relevant documentation on 16 July. The Panel was satisfied WA acted promptly to obtain all material information and until they had reviewed it they would not have known if there was an issue giving rise to an appeal.
Accordingly, the Panel was satisfied 16 July was the date the dispute could reasonably have said to have arisen, a date within ten days before the 23 July Opening Ceremony.
Wilson also argued it was unfair to be put in the position to defend the matter so close to his Olympic competition commencing and as confined by Ad Hoc Division Arbitration Rules of the Olympic Games. However, the Panel said they "... must determine its jurisdiction according to law and not on the basis of personal consequences for the Parties."
The Panel also dismissed an argument that the CAS AHD lacked jurisdiction because, under Swiss Anti-Doping Rules, the appealed decision is final and not subject to appeal.
"so unlikely as to be impossible"
WA's appeal was straightforward in that pursuant to the World Anti-Doping Code, reflected in Swiss Anti-Doping Rules (Article 7.4.1 of the Code), a provisional suspension is mandatory where a substance (like trenbolone) is detected.
An athlete can object to the issuing of a provisional suspension, they said, but only if the athlete demonstrates that it was probable or likely a contaminated product caused its presence.
"WA's submissions are to the effect that the Decision should be set aside as having failed to apply the correct test to a decision to lift a mandatory provisional suspension imposed where a non-specified substance is detected in the Athlete's sample."
WA says the contaminated meat claim made by Wilson before the Swiss Disciplinary Chamber was an explanation "... so extremely unlikely that it is impossible to all practical intents and purposes."
The CAS AHD Panel agreed with WA, although they noted the Disciplinary Chamber was aware of the applicable burden of proof required to be met by the athlete that would "equate to the balance of probabilities". However, the Panel stated, "the test applied by the Disciplinary Chamber was whether the positive finding could have been caused by the consumption of contaminated beef and not whether it was likely or probable that this was the case."
The Panel said because of this, the Disciplinary Chamber made "... in effect, an error of law."
The CAS AHD Panel also considered whether or not a provisional suspension should be imposed on Wilson under the correct test.
Accordingly, the Panel reinstated the mandatory provisional suspension with immediate effect.
Athletics want 'level-playing field in Tokyo'
In its reaction to the CAS AHD decision, the Head of the Athletics Integrity Unit, Mr Brett Clothier, said in a statement the Integrity body "were not satisfied with the national-level decision to lift the mandatory provisional suspension on the athlete."
"Today's ruling by the CAS AHD is the right outcome and demonstrates a proper application of the rules," he added.
The matter will be remitted to the first-instance Disciplinary Chamber for a hearing about the merits of the case in due course.
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