World Anti-Doping Agency (WADA) v. Polish Anti-Doping Agency (POLADA), Natalia Maliszewska

At a glance

Parties

World Anti-Doping Agency (WADA) v. Polish Anti-Doping Agency (POLADA) and Natalia Maliszewska

Case no.

CAS 2023/A/9423

Forum and rules

Court of Arbitration for Sport, appeal arbitration (CAS Code, 2023 edition, Articles R47 et seq.)

Treaty

POLADA Anti-Doping Rules; WADA Code; ISTI 2021 and ISRM 2021

Tribunal

Annett Rombach (Sole Arbitrator)

Sector

Sport: short track speed skating (doping, whereabouts)

Outcome

WADA's appeal upheld (5 September 2023). The POLADA Disciplinary Panel decision was set aside, and the Athlete was found to have committed a Missed Test on 19 November 2022.

Amount

The published award leaves out the costs rulings (operative ¶¶ 5–6).

The dispute

Natalia Maliszewska is a Polish short track speed skater in POLADA's Registered Testing Pool. Filing failures had already been recorded against her on 12 January 2022 and 14 November 2022. For 19 November 2022 her whereabouts filing named her home in Bialystok, 7–8 am, as her 60-minute slot. Her training was moved at short notice to 6:30–8:00 am at an ice rink 1.9 km away, and she did not update ADAMS. The Doping Control Officer could not find her at home during the slot. The Athlete called back at about 8:00 am and was tested at home at about 8:10 am; the samples were negative. POLADA recorded a Missed Test, which would be her third whereabouts failure in twelve months. The POLADA Disciplinary Panel set that decision aside: it found she had not been negligent and that a test taken shortly after the slot was allowed under ISTI Articles 4.8.6.3 and 4.8.8.5. WADA appealed to CAS, with POLADA's support. The Athlete argued that the delay was minor, that the test was carried out at the registered place with the DCO's agreement, and that the sample was clean.

Key holdings

1. CAS has jurisdiction under Article 13.2.1 of the POLADA ADR and Annex B.3.2 g) of the ISRM, because the Athlete is an international-level athlete. WADA's appeal, filed on 7 February 2023 within 21 days of receiving the complete file on 17 January 2023, is admissible. ¶¶ 58–64
2. "Negligent behaviour" under ISRM Article B.2.4 e) is not the same as "fault" under the WADA Code. It has its ordinary meaning: a failure to observe the duty of care expected of a reasonable athlete in a similar situation, judged against the athlete's whereabouts obligations and the facts known to her. ¶ 87
3. The Athlete did not rebut the presumption of negligence. Her explanations at the hearing were contradictory. She knew she had two failures on record. She deliberately left her filing unchanged although an update takes only a few minutes. Her training ended at 8 am, exactly when the slot expired, and she did not monitor her phone during training. ¶¶ 88–90
4. Being tested 10 minutes after the slot did not cure the failure. Article 4.8.6.3 of the ISTI only allows testing outside the slot; it does not dilute the duty to be available during it. Under Article 4.8.8.5 c), an athlete "will" be liable for a Missed Test even if a sample is collected later that day. The provision leaves no discretion to take account of exceptional circumstances. ¶¶ 92–93
5. Whereabouts failures cannot be undone by later clean samples. Two features soften the system's harshness: an ADRV requires three failures within twelve months, and Article 10.3.2 allows the period of ineligibility to be reduced to one year. ¶ 94
6. The decision of 14 December 2022 is set aside. The Athlete committed a Missed Test on 19 November 2022, and POLADA must record it. Operative part, ¶¶ 1–4

Procedural history

1. 12 January 2022POLADA records the Athlete's first filing failure.
2. 14 November 2022POLADA records her second filing failure.
3. 19 November 2022Unsuccessful attempt to test her during the 7–8 am slot. She is tested at home at about 8:10 am.
4. 30 November 2022POLADA decides to record a Missed Test.
5. 14 December 2022After the Athlete's request for administrative review, the POLADA Disciplinary Panel acquits her of the Missed Test.
6. 7 February 2023WADA files its Statement of Appeal with CAS.
7. 16 May 2023Hearing held by videoconference.
8. 5 September 2023Award: appeal upheld and the Missed Test recorded.

Tribunal, counsel and experts

Decided by

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

For the claimant

WADA (in-house) · Nicolas Zbinden

For the respondent

POLADA · Lukasz Klimczyk

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Keywords

• whereabouts failure
• missed test
• filing failure
• 60-minute time slot
• ADAMS
• presumption of negligence
• ISTI Article 4.8.8.5
• ISRM Annex B.2.4
• Registered Testing Pool
• short track speed skating
• WADA Code Article 2.4
• POLADA
• Poland
• negligent behaviour
• strict liability
• doping

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