5th March 2019

Athletes successful in reducing sanction could recover non-legal costs

The Sports Dispute Resolution Centre of Canada (SDRCC) has rejected an appeal from the Canadian Centre for Ethics in Sport (CCES) against a ruling that required it to cover C$1,000 (€661.50) in witness costs, paid by a University athlete in order to obtain a reduced doping sanction. If followed by other arbitration bodies, the decision could mean that athletes are entitled to reimbursement of non-legal costs, if they are successful in reducing a doping sanction. 

The CCES had initially sought a four year ban against Karla Godinez, a wrestling athlete who is studying at the University of Fraser Valley. She was able to reduce this to one year, after she paid the costs of calling expert witnesses recommended by her defence (Dr. Emir Crowne and Ms. Amanda Fowler). She was able to prove her adverse analytical finding (AAF) for SARM LGD-4033 was due to supplement contamination. 

The potential importance of the case to future anti-doping decisions is underlined by the presence of the World Anti-Doping Agency (WADA) as an observer. Its importance is again underlined by the fact that the CCES pursued its appeal (PDF below), despite being informed by Godinez that she would not be receiving the C$1,000 costs, as she had been reimbursed by her University.

Godinez was sanctioned with a one year ban in September last year, after returning an AAF for SARM LGD-4033. In the initial 6 September decision (PDF below), the CCES relied on evidence from Dr. Christiane Ayotte of the INRS Doping Control Laboratory and Kevin Bean of the CCES in support of its assertion that Godinez should be subject to a four year ban. Its argument was that Godinez had failed to prove how the substance had entered her system, and that she was aware of the dangers of supplement use through education she had received from the CCES.

Godinez argued that her AAF, which she accepted, was due to her consumption of Prime Nutrition’s Intra-MD Mountain Dog supplement, which did not feature SARM LGD-4033 on its list of ingredients, and she alleged was contaminated. Paul Scott of KorvaLabs detected SARM LGD-4033 in other batches of the supplement, and Dr. Charles Wong of the Massachusetts Institute of Technology compared the amount found in the supplement to a ‘speck of dust’.

Interestingly, INRS did not detect SARM LGD-4033 in the original 1.5kg container used by Godinez, which it received from the CCES and contained 10 remaining grams. However, after receiving notification of KorvaLabs tests, ‘Dr. Ayotte then tested the remaining powder at the same concentration level tested by KorvaLabs and the sample was found to contain 2ng/g of LGD-4033 along with two other prohibited substances, SARM S-22 and Ibutamoren’.

The SDRCC found that the athlete didn’t knowingly take the prohibited substance, and had showed how it had entered her system. This entitled her to reduce her sanction from four to two years. It also found that she qualified for a further reduction to one year for ‘no significant fault or negligence’, but it could not find that the athlete was not at fault, which would have eliminated her sanction.

The CCES appealed the SDRCC’s decision (represented by Luisa Ritacca and Stephen Aylward of Stockwoods LLP), arguing that it should not be liable for Godinez’s costs, as they are the consequences of an ADRV. It argued that the SDRCC decision risked setting a precedent, guiding arbitrators in future cases where athletes have incurred expense in reducing a doping sanction.

It argued that the conditions outlined in subsection 6.22(c) of the Canadian Sport Dispute Resolution Code (CSDRC) had not been met. ‘The Panel shall determine whether there is to be any award of costs and the extent of any such award’, this reads. ‘When making its determination, the Panel shall take into account the outcome of the proceedings, the conduct of the Parties and their respective financial resources, intent, settlement offers and each Party’s willingness in attempting to resolve the dispute prior to or during Arbitration. Success in an Arbitration does not mean that the Party is entitled to be awarded costs.’

The SDRCC Arbitrator disagreed with the basis of the CCES appeal, arguing that arbitrators are not bound by the legal principle of stare decisis, and therefore the decision requiring CCES to pay costs could not set a precedent. The Arbitrator also argued that the point is moot, since Godinez has forfeited her right to claim costs, as they have been covered by her University.

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