21 October 2020

WADA may consider appeal against Decision to clear Eid Naser

Witold Bańka, President of the World Anti-Doping Agency (WADA), has indicated that the agency may consider an appeal against a Sport Resolutions Decision to clear Salwa Eid Naser of two anti-doping rule violations (ADRVs) based on ‘whereabouts’ violations. Under Article 13.1.3 of the World Anti-Doping Code, WADA has a right to appeal any anti-doping Decision to the Court of Arbitration for Sport (CAS).

On 14 October, the Sport Resolutions Panel dismissed (PDF below) two anti-doping rule violations (ADRVs) based on four alleged ‘whereabouts’ failures asserted by the Athletics Integrity Unit (AIU) of World Athletics. The Panel disagreed that a test attempt on 12 April 2019 constituted a ‘Missed Test’, and therefore Eid Naser hadn’t committed three ‘whereabouts’ failures in 12 months. Under the Code, any combination of three missed tests and/or filing failures within 12 months by an athlete who is part of a Registered Testing Pool (RTP) is considered an ADRV.

Under the Code, athletes who are part of a domestic or international testing pool are required to provide quarterly ‘whereabouts’ information indicating where they will be living, training and competing, so that they can be located for testing. As 400m World Champion, Eid Naser was also a member of the World Athletics RTP, so was also required to provide a location where she would be available for testing for one hour in every 24. Such information is filed through WADA’s Anti-Doping Administration and Management System (ADAMS), and athletes are required to keep it up to date after filing.

Where a test attempt is made at an athlete’s overnight address and the athlete is not available, this is considered to be a ‘Filing Failure’. Where an athlete is not available for testing at the location specified in their one hour slot, this is considered a ‘Missed Test’. 

The AIU charged Eid Naser with:

• The First ADRV, comprising: a Filing Failure concerning a 16 March 2019 test attempt (backdated to 1 January 2019); a Missed Test dated 12 March 2019; and a Missed Test dated 12 April 2019.
• The Second ADRV, comprising: a Missed Test dated 12 March 2019; a Missed Test dated 12 April 2019; and a Missed Test dated 24 January 2020. 

Eid Naser’s Technical Manager had put the wrong address on her whereabouts filings…

The Sport Resolutions Panel held that despite not having the correct address or an updated telephone number on her whereabouts filings, the 12 April 2019 attempt didn’t constitute a Missed Test. This is because although the DCO found the correct address he knocked on the wrong door, and the athlete proved that she was in her apartment.

The DCO knocked on a door containing gas canisters…

‘This does not fulfil the requirements of Article I.4.3c of the ISTI [International Standard for Testing & Investigations] and the alleged April 12, 2020, Missed Test cannot be confirmed against the Athlete’, reads the Decision. Article I.4.3c mandates that a Missed Test can only be asserted against an athlete if the DCO does ‘what is reasonable in the circumstances’ to locate the athlete. This specifies that telephoning the athlete is not a requirement, and that WADA’s Guidelines for Implementing an Effective Testing Program has further guidance on what might be considered ‘reasonable in the circumstances’.

The Sport Resolutions Panel on what the DCO should have done…

This document outlines that ‘the only truly universal guideline is that the DCO should use his/her common sense […] If the specified location is the Athlete’s house or other place of residence, the DCO should ring any entry bell and knock on the door as soon as he/she arrives.’ The Sport Resolutions Panel found that the DCO didn’t do this. ‘He should have opened the door to Building 954 and knocked on the door of flat 11 inside the building’, it outlined, pointing out that ‘the door of Building 954 was always open’.

The Panel contended that had the DCO done the above, he would have found Eid Naser ‘at the time and location indicated on her whereabouts’. It is possible to argue against this, as Eid Naser’s Technical Manager had put Building 964 on her whereabouts filing, rather than Building 954, and the correct address was only found through the DCO’s ingenuity.

Because the Code requires three whereabouts failures in 12 months to constitute an ADRV, this blew apart the AIU’s alleged ADRVs. As the 16 March 2019 Filing Failure is backdated to 12 January, without the 12 April 2019 Missed Test, Eid Naser has only committed two whereabouts failures in 12 months.


Salwa Eid Naser struggled to submit whereabouts information…

Under the Code, athletes are responsible for ensuring that their ‘whereabouts’ information is correct and up to date. Eid Naser’s whereabouts information wasn’t correct or up to date, but whether she can be held responsible for this is blurred, as she was assigned a Technical Manager after her failure to submit her whereabouts information or log in.

The problems with using third parties…

The 24 January 2020 Missed Test illustrates the problems that such an arrangement can cause. Eid Naser was assigned Tahar Righi as her Technical Manager by the Bahrain Athletics Association (BAA). Her whereabouts information for 24 January listed the Transcorp Hilton in Abuja as her 6-7am one hour timeslot. However her flight from Abuja to Lagos was cancelled, and she arrived via overground transportation late on 23 January, checking in to the Lagos Continental Hotel. She telephoned Righi at 2:25am to ask him to update her whereabouts, but he was unwell and asleep. 

Hence she wasn’t at the Transcorp Hilton on 24 January. Hence the Missed Test, which was accepted by the Sport Resolutions Panel. Quite simply, Eid Naser was in a different city to that which her whereabouts filings had indicated.

It is easy to state that Eid Naser has been let off on a technicality. But as her case shows, the whereabouts rules and guidance that the Sport Resolutions Panel were following are technical in nature. They have to be, because they are designed to target athletes who are attempting to avoid testing. Eid Naser was available for testing on 12 April 2019 and 24 January 2020, and it is arguably the whereabouts system that has failed her.

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