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International Arbitration Forum

Jovan Lekić v. Anti-Doping Control Agency of Bosnia and Herzegovina (ADA BH)

Case summary

At a glance

Parties
Jovan Lekić (swimmer, Bosnia and Herzegovina) v. Bosnia and Herzegovina Anti-Doping Control Agency (ADA BH)
Case no.
CAS 2021/A/8449
Forum and rules
Court of Arbitration for Sport, appeal procedure (CAS Code Articles R47 ff.); WADC 2021 and BiH Anti-Doping Rules
Tribunal
James Drake QC (Sole Arbitrator)
Sector
Sport – aquatics (swimming); doping (higenamine)
Outcome
Appeal upheld (11 August 2022). The two-year ineligibility was reduced to six months for No Significant Fault or Negligence, with credit for time served.
Amount
No monetary award. Sanction: 6 months' ineligibility from 26 October 2021, replacing 2 years; results from 26 June 2021 disqualified.

The dispute

Jovan Lekić, a 17-year-old swimmer with the 22 April Club in Banja Luka, tested positive for higenamine after a race at the 10th International Swimming Meeting in Banja Luka on 26 June 2021. Higenamine is a beta-2 agonist that is prohibited at all times. On 26 October 2021 the ADA BH Hearing Panel imposed two years' ineligibility. It found that he had not shown how the substance entered his body. The athlete accepted the violation but argued that the substance came from a contaminated supplement, ALLMAX Impact Igniter (lot A165700720). His coach had bought it online and had it checked by a sports-medicine doctor; its label did not list higenamine. He sought a reduced sanction of 4–8 months under WADC Articles 10.6.1.1 and 10.6.1.2. ADA BH argued that a reasonable internet search would have revealed higenamine, that the product bought probably listed higenamine on its label, and that the route of ingestion had not been proven.

Key holdings

  1. Under Article R57 of the CAS Code the Sole Arbitrator has full power to review the sanction de novo. He is not bound by the first-instance findings, however well reasoned they are. ¶¶ 73–74
  2. Members of the panel that issued the challenged decision may not appear as witnesses in the appeal. The chair of the Hearing Panel was excluded. Dr Jovanović was allowed to give only expert medical evidence on the characteristics of higenamine. ¶ 79
  3. Higenamine is listed in Class S3 and is a specified substance, so Article 10.6.1.1 is available. ¶ 93
  4. The product used was lot A165700720, whose label did not list higenamine. A reasonable internet search does not have to be exhaustive: it is enough to rely on the manufacturer's website, which did not disclose higenamine. The product was therefore a Contaminated Product. ¶¶ 97–102
  5. The athlete proved on the balance of probabilities that the higenamine entered his system from the ALLMAX Impact Igniter he took about 30 minutes before the race. ¶¶ 107, 112–113
  6. The athlete bore No Significant Fault or Negligence. Several facts weighed in his favour: his youth, his minimal anti-doping education, his reliance on his coach's system of checks by an experienced anti-doping doctor, and his reading of the label. Not searching beyond the manufacturer's website did not make his fault significant, and requiring a prior laboratory test would ask too much. ¶¶ 116–120
  7. Using the CAS 2013/A/3327 & 3335 scale as a guide, his fault was 'light'. The Sole Arbitrator imposed six months' ineligibility from 26 October 2021, the mid-point of the 4–8 month range, with credit for the suspension served. All results from 26 June 2021 are disqualified. ¶¶ 122–127; operative part

Procedural history

  1. 26 June 2021In-competition test in Banja Luka returns positive for higenamine. A second test in Rome on 10 July 2021 is also positive, but only the Banja Luka test is charged.
  2. 22 July 2021ADA BH issues 'The Announcement' notifying the violation and imposing a provisional suspension.
  3. 26 October 2021ADA BH Hearing Panel decision, after a hearing on 19 October 2021: two years' ineligibility.
  4. 15 November 2021Statement of Appeal filed with CAS.
  5. 31 March 2022James Drake QC appointed Sole Arbitrator.
  6. 11 and 13 May 2022Remote hearing held via Webex.
  7. 11 August 2022Award: appeal upheld and sanction reduced to six months.

Tribunal, counsel and experts

Decided by
  • James Drake Sole arbitrator, Court of Arbitration for Sport — appointed by the institution
For the claimant
Matthew Kaiser
For the respondent
Anti-Doping Control Agency of Bosnia and Herzegovina
Experts
Paul Scott (claimant) · Predrag Jovanović (respondent)

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Keywords

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

Case ID
CAS 2021/A/8449
Claimant
Jovan Lekić
Respondent
Anti-Doping Control Agency of Bosnia and Herzegovina (ADA BH)
Documents

Procedure: Appeal
Sport: Aquatics
Matter: Doping
Outcome: Upheld
Panel: James Drake
Source: Court of Arbitration for Sport case database.