World Anti-Doping Agency (WADA) v. Polish Anti-Doping Agency (POLADA), Jakub Krzewina

At a glance

Parties

World Anti-Doping Agency (WADA) v. Polish Anti-Doping Agency (POLADA) and Jakub Krzewina

Case no.

CAS 2021/A/8459

Forum and rules

Court of Arbitration for Sport, appeal procedure (Articles R47 et seq. of the CAS Code)

Treaty

None. The case was decided under the POLADA Anti-Doping Rules (2020 and 2021), the WADA ISTI 2020 and the WADA ISRM 2021

Tribunal

Annett Rombach (Sole Arbitrator)

Sector

Athletics (track and field); doping (whereabouts failures)

Outcome

Appeal partially upheld (17 October 2022). The Athlete committed an Article 2.4 whereabouts violation and was given 15 months' ineligibility. His results were not disqualified.

Amount

No monetary amounts. Sanction: 15 months' ineligibility, with credit for the provisional suspension served from 23 April 2021 to 24 May 2021.

The dispute

Jakub Krzewina is a Polish 400m and 4x400m runner who has been in POLADA's Registered Testing Pool since 2016. POLADA charged him with a whereabouts violation under Article 2.4 of the POLADA Anti-Doping Rules for three failures within 12 months: - a missed test on 4 September 2020, when he was in hospital for surgery; - a filing failure for the first quarter of 2021, which he filed only on 13 January 2021; - a second missed test on 30 March 2021, when he was at a training camp in Karpacz. The POLADA First Instance Panel dismissed the charge. The Second Instance Panel dismissed POLADA's appeal on 26 August 2021. Its main reason was that POLADA had wrongly told the Athlete, in letters of 8 January and 8 February 2021, that the filing failure was his first whereabouts failure. WADA appealed to CAS. POLADA filed no Answer but stated that it supported the appeal. The Athlete argued that he had not been negligent, pointing to surgery-related stress, COVID-19, depression and problems with the ADAMS app. He also argued that POLADA had departed from the international standards in four ways: notice by e-mail only, two different filing deadlines, late notification, and the wrong count of failures.

Key holdings

1. First missed test upheld. The Athlete did not rebut the presumption of negligence: the surgery was planned, and nothing objectively prevented him from updating ADAMS. The medical witnesses did not show he was mentally unable to do so. Whether the doping control officer could have tested him in hospital is irrelevant. ¶¶ 79–84
2. Formal notice is required only when an athlete is first included in the Registered Testing Pool (Article I.2.1 ISTI). Later reminders are voluntary, so sending them by e-mail was not a departure. The two conflicting deadlines and the notice sent after the 14-day limit did not invalidate the filing failure: the Athlete missed both deadlines, had not read the e-mail, and was given a chance to explain. ¶¶ 94–110
3. Read correctly, the Polish letters called the filing failure the Athlete's first whereabouts failure, which was wrong. A NADO that chooses to give information must give correct information. But under Article 3.2.3(iv) of the POLADA rules, the athlete must first show that the error could reasonably have caused the violation in his own case; an abstract possibility is not enough. The Athlete had testified that he knew it was his second failure, so the burden never shifted to POLADA. The Second Instance Panel erred on this point. ¶¶ 111–123
4. Second missed test upheld. The alleged app problems, the confusion over calendar dates and his poor health after COVID-19 were unproven and would not rebut the presumption of negligence. The Athlete therefore committed the Article 2.4 violation. ¶¶ 124–128
5. Sanction under Article 10.3.2: 15 months' ineligibility. The failures arose from events planned in advance and from carelessness. The mitigating factors were that there was no sign he tried to evade testing, his clean record, his lack of anti-doping education, his difficult personal situation, and POLADA's wrong notice of the number of failures. ¶¶ 132–136
6. Fairness required that the Athlete's results from 30 March 2021 not be disqualified (Article 10.10), because there was no suggestion they were affected by doping. ¶ 138

Procedural history

1. 23 April 2021POLADA charges the Athlete with an Article 2.4 violation and provisionally suspends him.
2. 24 May 2021The POLADA First Instance Panel dismisses the charge. Its reasons follow on 14 July 2021.
3. 26 August 2021The POLADA Second Instance Panel dismisses POLADA's appeal. Its reasons follow on 12 October 2021.
4. 17 November 2021WADA files its Statement of Appeal with CAS.
5. 22 December 2021Sole Arbitrator appointed. The President of the Appeals Division had earlier decided on a sole arbitrator and on English as the language of the proceedings.
6. 11 March 2022Hearing held by videoconference.
7. 17 October 2022Award: appeal partially upheld and 15 months' ineligibility imposed.

Tribunal, counsel and experts

Decided by

• Annett Rombach Sole arbitrator, Court of Arbitration for Sport — appointed by the institution

For the claimant

Adam Taylor · Ross Wenzel

For the respondent

POLADA · Lukasz Klimczyk

Experts

Jaroslaw Krzywanski (respondent) · Malgorzata Szewczyk-Nowak (respondent)

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Keywords

• whereabouts failure
• missed test
• filing failure
• Registered Testing Pool
• ADAMS
• presumption of negligence
• ISTI 2020
• ISRM 2021
• POLADA Anti-Doping Rules Article 2.4
• burden of proof
• reasonable causation
• departure from International Standards
• principle of reliance
• misleading notification
• period of ineligibility
• disqualification of results
• fairness exception
• athletics

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