It was a bitter-sweet experience for a Nigerian athlete, Mr. Clement Krobakpo as The Court of Arbitration for Sport sitting in Lausanne, Switzerland upheld his four-year ban for doping, even as it backdated the commencement of the sanction.
In an award sighted by City Lawyer, the arbitral panel refused to disturb the finding of guilt by the sole arbitrator in a Notice of Charge brought by Badminton World Federation (BWF).
Krobakpo had suspended himself from further participation in the Africa Games held in Rabat, Morocco following an Adverse Analytical Finding (AAF) on a urine sample collected during the competition showing the presence of Clenbuterol, a banned substance.
Though the BWF had accepted that the presence of two specified substances had arisen from Krobakpo’s ingestion of “Freedom Juice” and “that the presence of these substances was unintentional,” the federation nonetheless levied a Notice of Charge against Krobakpo for violation of the WADA Clenbuterol Guidelines.
While the Sole Arbitrator who constituted the Court of Arbitration for Sports (CAS) Anti-Doping Division slammed a four-year ban on Krobakpo on 2nd January, 2021, the appellate arbitral court however held that Krobakpo could not suffer doubly for trial delays occasioned by the regulatory authorities.
In an appeal brought against the Badminton World Federation by Krobakpo and argued by senior lawyer, Mr. John Duru of Rose Chambers, Lagos, Nigeria, the appellant argued that because of the undue delay in processing his case within the BWF, he was entitled to as early a start date as possible (date of sample collection) under the BWF ADR.
Though the BWF argued that it was not responsible for the about 11-month delay, the arbitral panel noted that the BWF ADR “provide in its Article 10.13.1 that substantial delays not attributable to the athlete in the processing of his case permit the Panel to backdate the start of the period of Ineligibility to as early as sample collection.
“Put simply, athletes should not be subject to the risk of serious harm occasioned by anti-doping authorities’ failure to function effectively at a high level of performance.”
Quoting an early CAS panel “populated by esteemed arbitrators,” the arbitral panel said: “The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule-appliers must begin by being strict with themselves. Regulations that may affect the careers of dedicated athletes must be predictable.”
The arbitral panel therefore “conceded there was substantial delay in resolving this dispute that was not attributable to the Athlete.”
In resolving the issue in favour of Krobakpo, the panel held as follows: “As a result, the Panel is of the view that the period of Ineligibility should commence on the date of his sample collection. In other words, the Panel is of the view that the Appellant should receive a four-year period of Ineligibility commencing on the date of this Award, with credit for the time from the date of the commencement of his sample collection, 25 August 2019, to the present, resulting in a forward period of Ineligibility equal to the difference between 4 years and the time from 25 August 2019, until the date of this Award.”
The Court of Arbitration for Sport was constituted by Mr. Jeffrey Benz, admitted to practice in England and the United States, as President while Washington DC-based attorney, Dr. Ucheora Onwuamaegbu and China based lawyer, Dr. Shouzhi An acted as the arbitrators. Aside from Duru, BWF was represented by Thomas Delaye Fortin, its Head of Legal and Governance in Canada.