‘What was the motivation?’

Dr Emir Crowne, the legal representative for reigning 400m world champion Salwa Eid Naser, has questioned whether the Court of Arbitration for Sport (CAS) was improperly motivated to sanction his client with a two-year ban after allowing a recharacterisation of her anti-doping charge earlier this week.

This, he says, sets what he describes as a dangerous precedent, and makes him concerned about what it may mean for other athletes like her. It has also led to him reiterating his stance on what he says is an urgent need for a Caribbean Court for Sport.

Eid Naser, a Nigerian-born Bahraini athlete, was initially charged with a whereabouts violation for missing three drug tests within a 12-month calendar period, although they were spread over more than one year. She was initially cleared of the charge on a technicality, but CAS, based in Switzerland, overturned this decision and issued her with a two-year ban on Wednesday, after allowing the World Anti Doping Agency (WADA) to recharacterise her charge from a missed test to a filing failure. A filing failure means that an athlete did not properly file current and accurate whereabouts information for drug testing. It is understood that one panel member was against the decision.

Crowne says that a Caribbean Court for Sport would ensure that regional athletes do not find themselves in a similar situation.

“With a ruling like this, one wonders if the CAS is indeed fit for purpose,” Crowne told The Gleaner. “Why did a majority of the panel see fit to use this case — one involving a young, black, Nigerian woman no less — to give WADA the fundamentally unfair and sweeping power to recharacterise charges on appeal? Especially when the panel already found the doping control officer acted reasonably in the circumstances and therefore satisfied the elements of a missed test. There was therefore no need whatsoever to consider whether WADA could recharacterise the missed test as a filing failure. It smacks of imperialism and overreach. It is time that the Caribbean (and other regions throughout the world) consider adopting their own regional sports courts. Regional courts are better suited to dealing with the lived experiences of athletes, and, quite frankly, might be less inclined to make such implicitly suspect rulings. Just as we in the Caribbean have slowly moved away from the Privy Council as being our arbiters of justice, so too must the region when it comes to sporting matters in my considered view.”

WADA STEPPING IN

WADA was not party to the first hearing, as that took place between Eid Naser and her representatives, World Athletics, and the Athletics Integrity Unit. However, it (WADA) stepped in for the second hearing before CAS.

The Gleaner obtained a report of the proceedings and found that CAS acknowledged that a recharacterisation broke precedent set by previous hearings but sought to justify the decision.

“The Panel is of the view that the present case and, in general, cases in which WADA is involved for the first time at the CAS stage are fundamentally different from those mentioned above and, considered WADA’s role, the latter has the power to recharacterise on appeal before the CAS a charge that was brought by another anti-doping organisation at first instance level,” CAS said.

“The Panel is of the opinion that the only reason that could prevent WADA from recharacterising a charge (and the Panel from entertaining the said argument) would be that such recharacterisation could in some way prejudice the rights of the charged individual,” it said in the report.

“Indeed fairness demands that a person charged with a new ADRV (anti-doping rule violation) be given a chance to properly mount a defence against it. Inevitably, such potential prejudice must be evaluated on a case-by-case basis, in order to ensure that such person’s right to be heard and to present his or her case is fully respected.”

Eid Naser will miss the Tokyo Olympics later this month, but retains her World Championship title won in Doha, Qatar in 2019.

rachid.parchment@gleanerjm.com