Australian Swimmer Shayna Jack Returns

Court of Arbitration for Sport dismisses World Anti-Doping Agency and Sport Integrity Australia appeal.

On 26 June 2019, Shayna Jack (Jack) underwent an out-of-competition doping control test. The test sample returned a positive result for a metabolite of Ligandrol. Ligandrol is a Non-Specified Substance and is prohibited both in and out of competition under Class S1.2 of the 2019 World Anti-Doping Code (the Code). On 12 July 2019, Swimming Australia imposed a mandatory provisional suspension in accordance with Article 7.9.1 of the Swimming Australia Limited Anti-Doping Policy 2015 (the Policy). On 7 November 2019, the Anti-Doping Rule Violation Panel[1] of Swimming Australia determined that Jack had possibly committed an Anti-Doping Rule Violation[2] (ADRV). Upon final consideration of the ADRV, a four-year period of ineligibility was imposed under article 10.2 of the Policy, commencing on the date of the provisional suspension.

Jack challenged the determination of imposing a four-year period of ineligibility through the Court of Arbitration for Sport (CAS). Jack submitted that although she was unable to demonstrate how the Prohibited Substance entered her system, the ADRV was not intentional and did not occur due to her recklessness. Consequently, she sought a finding of no significant fault or negligence under clause 10.5 of the Policy. In order to invoke this clause, Jack needed to demonstrate that the ADRV was not intentional and did not occur due to her recklessness. Based on such a finding, Jack sought the period of ineligibility be reduced to two years under clause 10.2 of the Policy.

The Sole Arbitrator found, on the balance of probabilities, that Jack did not intentionally or recklessly ingest the prohibited substance and considered that she had discharged her onus of proving that the ADRV was not intentional. Consequently, a reduced ineligibility period of two years was imposed.

Both the World Anti-Doping Authority and Sports Integrity Australia (SIA) appealed the decision, primarily seeking to reinstate the four-year period of ineligibility. SIA CEO, David Sharpe, said the decision to appeal was based on the need for clarity and consistency in the application of the Code.

A three-member panel of the CAS (the Panel) heard the case de novo[3] and ultimately upheld the sole arbitrator’s decision for different reasons. The Panel found that the sole arbitrator’s reasoning was not in accordance with the Policy and to WADA and SIA’s credit, created a lack of uniformity in the Policy’s application.

The Panel analysed Jack’s case through the lens of the Jarrion Lawson[4] (Lawson) meat contamination case. In Lawson, the CAS panel analysed the relevant evidence by beginning with the science, considering the totality of the evidence through the prism of common sense which then may be bolstered by the athlete’s credibility.

In Jack’s case, the science was important but not decisive given the absence of the origin of the prohibited substance. The science did not point towards an intentional violation and presented contamination as an option. The totality of the evidence supported Jack’s assertion that the violation was unintentional. Common sense suggested that Jack did not intentionally ingest the prohibited substance and Jack’s credibility served to bolster the impression of her lack of intention.

Jack was never found to be guilty of cheating. Instead, she was subject to a period of ineligibility that led to her missing out on the opportunity to compete in the Tokyo Olympics. The period of ineligibility was reduced to two years because Jack was able to prove, on the balance of probabilities, that she did not intentionally or recklessly consume the prohibited substance. The final CAS decision provides clarity in the application of the Policy.

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By Matt Krog.

[1] Established under section 40 of the Australian Sports Anti-Doping Authority Act 2006 (Cth). [2] Article 2 of the World Anti-Doping Code 2015.

[3] This required the Panel to examine the record to appraise the evidence and determine whether, in its own view, the Sole Arbitrator’s decision was justified. [4] The CAS Panel found it more likely than not that the origin of the prohibited substance was contaminated beef consumed in a restaurant the day before the test.


Related page source links:

World Anti-Doping Code Swimming Australia Football Queensland


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