News 9th June 2020

Provisional suspension of Salwa Eid Naser was not mandatory

Salwa Eid Naser was not provisionally suspended before the Doha 2019 World Championships, where she won Gold in the 400m, as she hadn’t been charged with an anti-doping rule violation (ADRV) and provisional suspensions for ‘whereabouts’ failures are not mandatory under the World Anti-Doping Code. For any athlete who reports an adverse analytical finding (AAF – or ‘positive test’), for a non-specified substance*, a provisional suspension is mandatory. But the Bahraini didn’t report an AAF. She was under an ongoing investigation for three whereabouts failures at the time of Doha 2019, where she ran the third fastest time in history.

Under the Code, athletes who are selected to be part of a Registered Testing Pool (RTP) are required to file a location where they will be available for testing for one hour in every 24 (other than overnight location), three months in advance (although locations can later be amended). If the athlete makes a mistake in their filings, a ‘filing failure’ is recorded. If doping control officers (DCOs) arrive at the stated location and the athlete isn’t present, a ‘missed test’ is recorded. Any combination of three ‘filing failures’ or ‘missed tests’ in 12 months is considered an anti-doping rule violation (ADRV), which carries a two year sanction.

Article 7.9.1 of the Code specifies that in cases where an athlete reports an AAF (or ‘tests positive’) for a non-specified substance, a provisional suspension is mandatory. Three whereabouts filing failures or missed tests during 12 months is considered an ADRV under Article 2.4 of the Code. But it isn’t an AAF, as an athlete hasn’t ‘tested positive’. Article 7.9.2 of the Code mandates that for AAFs involving specified substances – or ADRVs other than an AAF, such as a whereabouts ADRV – provisional suspension is optional. 

Article 7.6 of the Code outlines that an anti-doping organisation should review filing failures and missed tests as specified in the International Standard for Testing and Investigations (ISTI), and once satisfied that a violation of Article 2.4 of the Code has occurred, it must notify the athlete about its charge. The Athletics Integrity Unit (AIU) of World Athletics has confirmed that is what it was doing, which is why Eid Naser was not provisionally suspended. She wasn’t charged with an ADRV until January 2020, so couldn’t have been provisionally suspended anyway.

The reasons why an athlete is not provisionally suspended until they are charged with a ‘whereabouts’ ADRV is because the process involved is incredibly detailed and complicated. Annex I of the ISTI contains 13 pages outlining the steps that must be taken to assert that a whereabouts ADRV has taken place. Further detail is provided in the eight pages of Annex B of the International Standard for Results Management (ISRM). The prosecuting body must check that:

• An athlete has been notified that they have been included in an RTP, the steps that they must take as a result and the consequences if they don’t take them;
• That notice was given of previous filing failures or missed tests (three are required to constitute an ADRV);
• That the athlete’s failure to comply was negligent;
• That in the case of a missed test, the Doping Control Officer (DCO) took reasonable steps to locate the athlete;
• Any unsuccessful test reports have been received from the DCO;
• The athlete had been notified of any whereabouts failures or missed tests within 14 days and has been given a chance to respond (acceptable explanations are contained within the WADA Results Management, Hearings and Decisions Guidelines;
• That they have been advised that further filing failures and missed tests may result in an ADRV;
• Proceedings against an athlete for a whereabouts ADRV must start within 30 days after the World Anti-Doping Agency (WADA) has been informed about a third filing failure / missed test.
• The burden is on the prosecuting anti-doping authority to prove all filing failures / missed tests to the ‘comfortable satisfaction’ of the hearing panel.

There are still questions around Eid Naser’s case. The AIU statement reveals that it didn’t decide to suspend her until January this year. In an Instagram Live video, since been deleted but quoted by NBC, Eid Naser claimed that her case involved three missed tests during the season before the 2019 World Championships. Questions can therefore be asked about whether the AIU complied with its requirement to bring proceedings against her within 30 days after WADA was informed about her third missed test. Presumably it did, otherwise it wouldn’t have brought the case forward. 

It would appear that a fourth whereabouts failure, also in January 2020, was coincidental. The AIU has said that it will not comment further at this stage.

* For a more detailed explanation on the rules regarding provisional suspensions for specified and non-specified substances, click here.

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