Additionally, the decision provides a clear methodology when determining whether an Anti-Doping Rule Violation (ADRV) is intentional or reckless under Article 10.2 of the World Anti-Doping Code (WADC) or the multitude of anti-doping policies that replicate WADC provisions.

The original decision in Jack

In the original award of Jack (CAS A1/2020), handed down on 16 November 2020, the sole arbitrator, Mr Alan Sullivan QC, decided that Ms Jack had not intentionally consumed the prohibited substance, Ligandrol, under Article 10.2.1.1 of the Swimming Australia Limited Anti-Doping Policy 2015 (which replicates the relevant WADC provisions).

This reduced her ban from training and competing to two years under Article 10.2.2, replacing the automatic four-year ban initially imposed.

In reaching his conclusion, Mr Sullivan QC relied on Ms Jack’s testimony, significant positive character evidence, considerable investigation of possible sources, and the scientific evidence provided.

He ultimately determined, on the balance of probabilities, that the evidence demonstrated that Ms Jack did not intend to cheat.

The appeal

WADA and SIA lodged appeals to the original award on 7 December 2020.

A hearing was held via video link on 28 and 29 June 2021 before the CAS panel, consisting of Professor Jan Paulsson, The Honourable Michael Beloff M.A. QC, and Professor Richard H. McLaren O.C.

Reasoning of the Award

Concerns and jurisprudence

After dealing with some preliminary matters, the award discussed the meaning of “intentional” in the context of anti-doping. The use of “intentional” in the WADC is predominantly guided by Article 10.2.3, which in part states that it is intended to identify athletes who “engage in conduct which they knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk”.

This informed the panel’s approach to this case: they required Ms Jack to demonstrate, on the balance of probabilities, the absence of intent or recklessness.

The panel then proceeded to address a number of concerns, some of which are particularly relevant.

First, at [99], they confirmed that speculation about the source of the prohibited substance is insufficient to absolve the athlete and highlighted the risk that speculation “may be dressed up in the raiments of abstract terms that in reality amount to nothing more than conjecture”.

This led them to raise further questions about whether a particular source must be identified, or whether it must simply be likely that the substance came from some possible unknown source, as well as the extent to which the athlete’s credibility can be relied upon.

The panel then engaged in an exploration of the evolution of relevant CAS decisions, addressing some of these concerns, and ascertaining what reasoning from previous decisions ought to be applied.

Especially notable is their analysis of Lawson (CAS 2019/A/6313) and reference to the reasoning in that decision, which ultimately concluded that Lawson’s consumption was not intentional despite his suggested contamination pathway of meat consumption not being concretely proven.

Merits and the panel’s approach

The panel dismissed Mr Sullivan QC’s reasoning in the original decision in Jack on the basis that he had relied too heavily on “speculations, declarations of a clear conscience, and character references” in exculpating Ms Jack.

However, the panel upheld his ultimate conclusion: as the appeal was heard de novo, the panel was able to apply its own reasoning and methodology to confirm Ms Jack’s lack of intent, and additionally, lack of recklessness.

In general terms, the panel restated the method from Lawson and found that it was the correct approach to determining an absence of intent or recklessness. According to the panel at [157], one must “assess the evidence in a manner that:

(i) begins with the science and then

(ii) considers the totality of the evidence

(iii) through the prism of common sense, possibly

(iv) ‘bolstered’ by the athlete’s credibility”.

The panel decided that this process, set out in a clearer format than in Lawson, is the most conformant with the WADC, and does not find “comfort in the cynical view that occasional harm done to an innocent athlete is acceptable collateral damage.”

In applying this process to Ms Jack’s circumstances, the panel found that an analysis of the science did not suggest intentional doping and left open the possibility of contamination from an unknown source.

A lack of intent was supported by the totality of the evidence, with the panel taking into consideration Ms Jack’s swimming results and schedule around the time of the positive test, her doping education, and the low level of Ligandrol present, concluding that common sense indicated that it was improbable for Ms Jack to have intentionally ingested the substance.

Finally, this conclusion was further strengthened by Ms Jack’s extensive evidence as to her credibility as an athlete and her sincerity as an individual.

Although the panel found unanimously that Ms Jack’s ingestion was not intentional, they were split 2-1 in favour of finding that, on the basis of the evidence provided, she was not recklessly oblivious to the rules and the risk of contamination in the course of her activities.

Conclusion

By finding in favour of Ms Jack, the panel demonstrates that the anti-doping system does not disregard the potential harm of inculpating athletes who happen to be in the wrong place at the wrong time.

The decision should offer hope to athletes in similar circumstances that the fight for fairness in regard to the anti-doping regime is worthwhile, and justifies Ms Jack’s persistence in such a drawn-out battle to clear her name.

It is hoped that the introduction of a clearer process in assessing intention in this area of anti-doping will encourage faster, fairer, and more consistent decisions in the future.

Tim Fuller is a special counsel and Stuart Moss is a law clerk at Gadens. Both are based in Brisbane.

This article is the second in the Jack saga, a pair of articles discussing intentional doping and the proceedings of Shayna Jack before the Court of Arbitration for Sport. For further background on the original arbitral award and the appeal process, please see The Jack saga: the future of decisions on intentional doping and a substandard process.