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Does the Shayna Jack CAS Appeal decision give hope to innocent athletes in contamination cases?

Swimming
Tuesday, 14 December 2021 By Tom Sprange QC, Tim Fuller, Liam Petch

Perhaps the most devastating and destructive allegation that can be made against a professional athlete is of being a cheat, and a drugs cheat at that. In June 2019, Shayna Jack found herself in this very situation, having to defend herself against doping allegations after undergoing a routine out-of-competition doping control test during an Australian Swimming Team camp. Ms. Jack, a member of Australia’s internationally-elite relay teams and then set to compete at the 2019 World Championships, returned a positive result for an Adverse Analytical Finding for a metabolite of ligandrol[1] – a substance prohibited under the 2019 World Anti-Doping Code (WADC) Prohibited List.

In its much-anticipated recent Award[2] on appeal by WADA and Sport Integrity Australia (SIA) (the Final Award), the three-member Court of Arbitration for Sport (CAS) Panel held that allegations levied against Ms. Jack for having a “manifest disregard” (Para 23) of the anti-doping rules made “no sense”. Despite being unable to prove how the prohibited substance had entered her body, on the balance of probabilities, it was more likely that she came into contact with ligandrol innocently rather than intentionally or by acting in a “recklessly oblivious” manner to the risk of contamination in the course of her activities.

The Final Award applies a commonsense approach to anti-doping rules that are otherwise inflexible and applied to athletes generally, on a one-size fits all basis under a theory of strict liability.  This article examines the decision, looking at:

Paragraph references in brackets throughout the article are to the Final Award.

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Written by

Tom Sprange QC

Tom Sprange QC

Tom Sprange QC is a Partner at King & Spalding, providing advocacy and strategic advice in significant, high-value and complex disputes. A partner in the Trial and Global Disputes practice, Tom acts in a wide range of disputes under local, private and public international law. 

Tim Fuller

Tim Fuller

Tim is a Special Counsel in the Corporate Advisory team at Gadens. With extensive experience in corporate and commercial with a sports law focus, he regularly advises professional athletes, clubs, governing bodies, athlete associations and corporate sponsors. Tim is well-versed and practised in matters involving contract, agency, intellectual property, anti-doping policy and rule disputes.

Liam Petch

Liam Petch

Liam Petch is a Trainee Solicitor at King & Spalding

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