[KRISTIAN JENSEN v. WORLD RUGBY]

[ANTI-DOPING - RUGBY - EVIDENCE - SOURCE]

Mr. JENSEN is an Australian rugby player.

On 28 November 2021, Mr. JENSEN was subject to an Out-of-Competition doping control in Dubai (UAE), in the context of the HSBC World Rugby Sevens Series. In this respect, he submitted his urine A-Sample for analysis before the Laboratoire Suisse d’Analyse du Dopage in Lausanne, Switzerland (the “Laboratory”). The latter resulted in an Adverse Analytical Finding (“AAF”) for “LGD-4033 metabolite trifluoro-1-hydroxyethylmethoxypyrrolidinyl-2-trifluoromethyl-benzonitrile” (or “Ligandrol”) a Non-Specified Substance in the “Other Anabolic Agents” section of the WADA 2021 Prohibited List (the “Prohibited List”), which is prohibited at all times.

On 22 December 2021, World Rugby notified the AAF to Mr. JENSEN and informed him that : it could represent a potential Anti-Doping Rule Violation (“ADRV”) pursuant to Regulations 21.2.1 and 21.2.2 of the World Rugby Anti-Doping Rules (“WRR”) ; Mr. JENSEN may submit a request for the B Sample analysis ; and Mr. JENSEN was provisionally suspended as of 22 December 2021.

On 19 January 2022, Mr. JENSEN’s B-Sample analysis was made, confirming the presence of the Ligandrol metabolite.

On 14 February 2022, Mr. JENSEN provided preliminary written submissions to World Rugby, admitting the AAF. According to Mr. JENSEN, the source of the Prohibited Substance is likely to be the blender which he regularly shared with his housemate, potentially contaminated by a RAD-140 Selective Androgen Receptor Modulator (“SARM”) in a supplement used by his housemate  sourced from China, and other SARMs such as Ligandrol. His second theory involved the “exposure to numerous unfamiliar environments” that had the potential to cause the contamination and therefore the AAF.

On 1 April 2022, World Rugby sent Mr. JENSEN a Notice of Charge. Mr. JENSEN was formally charged with the commission of an ADRV pursuant to Regulations 21.2.1 and 21.2.2 of the WRR, and a proposed period of Ineligibility for four (4) years. 

On 21 April 2022, Mr. JENSEN requested that a hearing be held before the Judicial Committee.  

On 31 August and 1 September 2022, a hearing of Mr. JENSEN’s case was held.

On 20 December 2022, the Judicial Committee unanimously found that Mr. JENSEN had violated Regulations 21.2.1 and 21.2.2 of the WRR.

Having accepted the commission of the ADRV, Mr. JENSEN had failed to establish that the ADRV was not intentional.  Mr. JENSEN was thus subject to a sanction of a four-year period of Ineligibility minus the period already served under the provisional suspension : from 22 December 2021 to 21 December 2025.  

The Judicial Committee deemed that Mr. JENSEN’s blender theory was unlikely and that his second theory was speculative, absent any substantial evidence.

On 10 January 2023, Mr. JENSEN filed a Statement of Appeal with the Court of Arbitration for Sport (“CAS”) against World Rugby seeking to set aside the Judicial Committee’s decision of 20 December 2022.

Mr. JENSEN does not dispute the AAF and the commission of the ADRV - only the consequences arising from it.

Mr. JENSEN claimed that the Judicial Committee failed to approach the evidence to the “science” setting aside the possibility that the ingestion of Ligandrol was not intentional. He further claimed that the Judicial Committee failed to establish any performance-enhancing benefit of Ligandrol which results from regular, ongoing use of the substance to enhance muscle tissue build-up. He claims that "his ADRV was not intentional, that he bore No Fault or Negligence or in the alternative that he acted without Significant Fault or Negligence and that in the further alternative, the sanction imposed is to be reduced to a maximum of 12 months based on the principle of proportionality. (...) The Panel must examine, based on the totality of the scientific evidence before it, whether, on the balance of probabilities, the suggested contamination theory is plausible. It requires a legal, holistic and common-sense approach. Assuming the suggested contamination theory is plausible, the Panel can then consider other credibility factors to reinforce or detract from the plausibility of said theory."

World Rugby maintained its position that Mr. JENSEN failed to prove any unintentional doping. World Rugby highlighted the fact that there was neither any evidence of the blender’s existence nor that relating to the housemate's purchase of the SARMs. No investigation had or could have been made. It argues that there is no proven basis on which Mr. JENSEN may seek a fault-based reduction in the period of Ineligibility.

On 18 July 2023, a hearing was held by video-conference.  

On 4 December 2023, the CAS  dismissed the appeal filed by Mr. JENSEN and confirmed the  World Rugby Independent Judicial Committee’s decision of 20 December 2022 (CAS 2023/A/9377).

As per Regulation 21.10.2 of the WRR, the period of Ineligibility is four (4) years where the ADRV does not involve a Specified Substance, unless it can be established that the antidoping rule violation was not intentional (Regulation 21.10.2.1.1 of the WRR) and that the ADRV was unintentional, in which case the period of ineligibility would be two (2) years (Regulation 21.10.2.2 of the WRR).

(i) The term "Intentional" means “Players or other Persons who engage in conduct which they knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk" (Regulation 21.10.2.3 of the WRR); and

(ii) “[w]hile it is theoretically possible for a Player or other Person to establish that the anti-doping rule violation was not intentional without showing how the Prohibited Substance entered one’s system, it is highly unlikely that in a doping case under Regulation 21.2.1 a Player will be successful in proving that the Player acted unintentionally without establishing the source of the Prohibited Substance” (Footnote 39 of the WRR).

The applicable standard period of Ineligibility shall be four (4) years, subject to elimination on the basis of a showing of :

(i) No Fault or Negligence (Regulation 21.10.5 WRR) : “No Fault or Negligence: The Player or other Person's establishing that he did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he had Used or been administered the Prohibited Substance or Prohibited Method or otherwise violated an anti-doping rule. Except in the case of a Protected Person or Recreational Player, for any violation of Regulation 21.2.1, the Player must also establish how the Prohibited Substance entered his system.”; or

(ii) a reduction based on No Significant Fault or Negligence (Regulation 21.10.6 WRR): “No Significant Fault or Negligence: The Player or other Person's establishing that any Fault or negligence, when viewed in the totality of the circumstances and taking into account the criteria for No Fault or Negligence, was not significant in relationship to the anti-doping rule violation. Except in the case of a Protected Person or Recreational Player, for any violation of Regulation 21.2.1, the Player must also establish how the Prohibited Substance entered the Player’s system.”