Does the Shayna Jack CAS Appeal decision give hope to innocent athletes in contamination cases?
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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- Tags: Anti-Doping | Athletics | CAS | Dispute Resolution | Integrity | Regulation | Sport Integrity Australia | Swimming | WADA | WADC
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Written by
Tom Sprange KC
Tom Sprange KC 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 is a Special Counsel in the Corporate team at Dentons. With a lifetime experience in professional sport, Tim is highly respected for his accomplished position as a leading sports lawyer. Prior to practising law, Tim played professional sport for a period of ten years in Australia and France. Upon retirement, he completed his law degree and an MBA. He provides specialised legal advice in governance, contract, consumer law, intellectual property, anti-doping rules and legislation, sport arbitration and historical abuse investigations. Tim has advised LIV golf on sponsorship and jurisdictional matters, IMG, Octagon on agency matters, player associations on doping and integrity matters, numerous professional athletes in anti-doping, team selection disputes and misconduct hearings, commercial and intellectual property matters. He has appeared at arbitration hearings at the CAS, World Rugby, World Aquatics, various professional rugby tribunals, professional football hearings and numerous Olympic sports tribunal hearings.
Tim has written and taught sports law course at leading Australian universities and Loughborough University, London. He has presented internationally on his professional expertise in sports law to universities in the UK, USA, Norway, Hong Kong and New Zealand. Tim is currently completing his PhD with his study examining private equity investment in sport.
Liam Petch
Liam Petch is an Associate in King & Spalding’s Trial and Global Disputes practice in London. Liam trained with the firm, qualifying in 2022. Liam’s practice involves commercial and investment treaty arbitrations under leading institutional rules and English High Court litigation. His work covers a broad range of disputes across jurisdictions and sectors, including financial services, construction, energy, pharma, media and sports.
