Anna Harkowska v. Polish Anti-Doping Agency (POLADA)

At a glance

Parties

Anna Harkowska (Poland) v. Polish Anti-Doping Agency (POLADA)

Case no.

CAS 2022/A/8700

Forum and rules

Court of Arbitration for Sport, appeals procedure under the CAS Code; seat Lausanne, Switzerland

Treaty

None. CAS jurisdiction was argued under the POLADA Anti-Doping Rules (Article 13.2) and the World Anti-Doping Code

Tribunal

Prof. Stefano Bastianon (Sole Arbitrator)

Sector

Cycling; doping (meldonium)

Outcome

CAS declined jurisdiction and did not entertain the appeal (award of 24 April 2023).

Amount

No monetary claims. The athlete challenged a four-year period of ineligibility.

The dispute

Anna Harkowska is a Polish cyclist who competes at national level. An out-of-competition test on 15 January 2021 was positive for meldonium. The POLADA Disciplinary Panel of First Instance found violations of Articles 2.1 and 2.2 of the POLADA Anti-Doping Rules and imposed a four-year period of ineligibility. The Disciplinary Panel of Second Instance dismissed her appeal. She then appealed to CAS. She asked CAS to annul the decisions on the ground that the POLADA panels lacked competence over her or, in the alternative, to eliminate or reduce the sanction for no fault or no significant fault, pleading sabotage or unknowing ingestion. POLADA objected to CAS jurisdiction. It argued that under Article 13.2.3.2 of its rules only WADA, the IOC, the IPC and the relevant international federation may appeal second-instance decisions in national-level cases to CAS. The athlete answered that she was named among the persons entitled to appeal, and that denying her access to CAS would breach Article 6.1 of the European Convention on Human Rights (ECHR).

Key holdings

1. No specific arbitration agreement existed between the parties. CAS could therefore have jurisdiction only if the POLADA Anti-Doping Rules expressly provided for an appeal to CAS. ¶¶ 34–37
2. The case is governed by the POLADA Anti-Doping Rules 2021. The athlete's references to the earlier rules, and to the 14 January 2022 resolution of the Council of the Court of Arbitration for Sport at the Polish Olympic Committee, are irrelevant and cannot create CAS jurisdiction. ¶ 39
3. For national-level athletes not involved in international events, the POLADA rules provide for an appeal to the national Second Instance Disciplinary Panel, which Article 13.2.2 of the World Anti-Doping Code allows. Article 13.2.3.2 names the athlete only as a party entitled to appeal first-instance decisions. Its second paragraph gives a right of appeal to CAS only to WADA, the IOC, the IPC and the international federation; reading it otherwise would leave that paragraph without effect (the principle 'ut res magis valeat quam pereat'). There is therefore no CAS arbitration clause for such athletes. ¶¶ 50–60
4. The two-instance system is consistent with Article 6.1 ECHR, because the Second Instance Disciplinary Panel must be operationally and institutionally independent. The athlete had not contested the panel's independence or her right to be heard. Nothing on file triggered the fallback right of appeal to CAS in Article 13.2.2 of the World Anti-Doping Code. ¶¶ 65–71
5. The asymmetry that lets only WADA and certain other bodies appeal to CAS does not breach equality of arms. A national-level athlete and WADA are not in comparable positions: WADA's role is to ensure uniform application of the anti-doping rules and to correct 'home-town' decisions. ¶¶ 72–77
6. CAS has no jurisdiction, the appeal is not entertained, and all other issues are moot. The parts of the published operative section dealing with costs are redacted. ¶ 78; operative part

Procedural history

1. 15 January 2021Out-of-competition doping control; adverse analytical finding for meldonium. POLADA provisionally suspended the athlete on 28 January 2021.
2. 16 August 2021POLADA Disciplinary Panel of First Instance imposed a four-year period of ineligibility starting on 28 January 2021.
3. 21 December 2021Disciplinary Panel of Second Instance dismissed the athlete's appeal; its reasoned decision followed on 9 February 2022.
4. 2 March 2022Statement of Appeal filed with CAS. On 29 March 2022 POLADA objected to CAS jurisdiction. (The operative part of the award refers to the appeal as filed on 29 March 2022.)
5. April 2022The parties agreed to bifurcate the proceedings so that jurisdiction would be decided first. The ICAS Legal Aid Commission issued its order on the athlete's legal aid request, notified on 4 May 2022.
6. 9 June 2022Panel constituted, with Prof. Stefano Bastianon as Sole Arbitrator.
7. 24 April 2023Award: CAS declines jurisdiction, decided on the written submissions without a hearing.

Tribunal, counsel and experts

Decided by

• Stefano Bastianon Sole arbitrator, Court of Arbitration for Sport — appointed by the institution

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Keywords

• CAS jurisdiction
• doping
• meldonium
• cycling
• POLADA Anti-Doping Rules
• national-level athlete
• World Anti-Doping Code Article 13.2.2
• right of appeal
• Article 6.1 ECHR
• fair trial
• equality of arms
• WADA right of appeal
• Second Instance Disciplinary Panel
• Article R47 CAS Code
• bifurcation
• four-year ineligibility
• sabotage

Summary generated with AI from the published documents — refer to the award for the authoritative text.