Shayna Jack:- Will her case prove Australia's hypocrisy?

[Aeglos]

Update: Sport Integrity Australia has appealed the ban

Sport Integrity Australia lodge appeal in Shayna Jack case | Sport Integrity Australia

After careful consideration of the legal issues in Shayna Jack v Swimming Australia and Sport Integrity Australia, Sport Integrity Australia lodged a statement of appeal on Monday 7 December in the Court of Arbitration for Sport (CAS) Appeal Division.

www.sportintegrity.gov.au

Key issue: Length of ban is being appealed. SIA want the full penalty.

what a nothing “press release”
may have had a name changed but SIA appear the same dogs ASADA were

 

[Tim Evans Beard]

Update: WADA has also appealed the length of ban.

FINA and Swimming Australia still have time to appeal.

Key points: It is not a combined appeal and will be heard on two seperate dockets. Neither administrative body have released details of the appeal.

Opinion: It looks like both appealing bodies are looking at the application of penalty. There has been no challenge by any party that Jack returned a positive result, nor the source of the substance. I think the appealing parties will be looking at athlete responsibilities to ensure 'clean' supplements, not 'unwitting ingestion'. This is an important appeal as there is usually a window where supplements with prohibited substances are on the shelves with no detection. The short window allows knowledgeable athletes and coaches to ingest prohibited substances and claim 'non-intentional' ingestion if caught. I think she'll get the 4 years and FINA and Swimming Australia should also appeal.

 

[Aussie in exile]

If it was up to me the first time they got caught using illegal drugs they would get a 4 year ban the 2nd time a life ban from ALL SPORTS at all levels.
Also as well i would reduce government funding for any sport that did next to nothing about drug abuse

 

[yaco55]

Update: WADA has also appealed the length of ban.

FINA and Swimming Australia still have time to appeal.

Key points: It is not a combined appeal and will be heard on two seperate dockets. Neither administrative body have released details of the appeal.

Opinion: It looks like both appealing bodies are looking at the application of penalty. There has been no challenge by any party that Jack returned a positive result, nor the source of the substance. I think the appealing parties will be looking at athlete responsibilities to ensure 'clean' supplements, not 'unwitting ingestion'. This is an important appeal as there is usually a window where supplements with prohibited substances are on the shelves with no detection. The short window allows knowledgeable athletes and coaches to ingest prohibited substances and claim 'non-intentional' ingestion if caught. I think she'll get the 4 years and FINA and Swimming Australia should also appeal.

Your line about 'non-intentional use of substances makes little sense seeing Jack got a two year penalty. Now if it was a mickey mouse penalty of less than 12 months then you go for it. We must remember the four year penalty is imposed when the athlete is proven to have wilfully cheated, there is no contrition and no mitigation.

 

[Buzzasto DaSilva]

Your line about 'non-intentional use of substances makes little sense seeing Jack got a two year penalty. Now if it was a mickey mouse penalty of less than 12 months then you go for it. We must remember the four year penalty is imposed when the athlete is proven to have wilfully cheated, there is no contrition and no mitigation.

There must be evidence to suggest she did wilfully cheat.

 

[Aeglos]

There must be evidence to suggest she did wilfully cheat.

then why not say they’re appealing the finding rather than the length of suspension?

 

[Tim Evans Beard]

Your line about 'non-intentional use of substances makes little sense seeing Jack got a two year penalty. Now if it was a mickey mouse penalty of less than 12 months then you go for it. We must remember the four year penalty is imposed when the athlete is proven to have wilfully cheated, there is no contrition and no mitigation.

This is misinformation. The 4 year penalty is for use of a prohibited substance - no ‘intention’ is considered. The penalty may be reduced, but the default is 4 years - as applied initially in this case prior to the Jack appeal.

4 years is the penalty. This is what ‘we must remember’.

 

[Tim Evans Beard]

There must be evidence to suggest she did wilfully cheat.

No - there must be evidence of use of a prohibited substance. The intention is not considered.

 

[Tim Evans Beard]

then why not say they’re appealing the finding rather than the length of suspension?

They are appealing the application of penalty - they are not appealing the finding. The finding is Jack returned a positive result indicating use of a prohibited substance. They are appealing application of penalty length.

 

[Aeglos]

This is misinformation. The 4 year penalty is for use of a prohibited substance - no ‘intention’ is considered. The penalty may be reduced, but the default is 4 years - as applied initially in this case prior to the Jack appeal.

4 years is the penalty. This is what ‘we must remember’.

???
the WADA code itself states the maximum penalty for not at fault/unintentional doping is 2 years.
so unless they’re appealing the finding they’re contradicting themselves by appealing the duration of the suspension.

 

[Tim Evans Beard]

???
the WADA code itself states the maximum penalty for not at fault/unintentional doping is 2 years.
so unless they’re appealing the finding they’re contradicting themselves by appealing the duration of the suspension.

Again - Jack is guilty of the offence. The penalty for the offence is 4 years. It may be reduced if the offence was non-intentional. The appeal is that the application of the penalty should be 4 years. The appeal is that the reduction does not apply as the athlete did not take reasonable measures to ensure the athlete was not breaching the Code.

The offence stands. Jack is a cheat. The difference in application of penalty between two and four years is for the same offence.

 

[Aeglos]

The appeal is that the reduction does not apply as the athlete did not take reasonable measures to ensure the athlete was not breaching the Code.

so what you‘re saying is the appeal is really about whether or not it was intentional as per my original comment?
because if the athlete is found to have unintentionally doped then the penalty, as per WADAs own words, cannot exceed 2 years.
ergo unless WADA are contending that Jack’s doping was intentional they cannot give her a longer suspension

 

[Tim Evans Beard]

so what you‘re saying is the appeal is really about whether or not it was intentional as per my original comment?
because if the athlete is found to have unintentionally doped then the penalty, as per WADAs own words, cannot exceed 2 years.
ergo unless WADA are contending that Jack’s doping was intentional they cannot give her a longer suspension

This is a good discussion and I am glad we are having it as it is a nuanced agreement. Albeit an important one.

No - that is not what I am saying, nor what I think the appeal is based on. I think the appeal will be based on application of penalty - WADA and SIA may not be contending any grounds intentionality, purely that the the offense draws a 4 year ban.

The appeal will be based on athlete responsibility not to cheat. As the appeal will go to a 3 person tribunal hearing the full case again, I think Jack will cop the 4 years. Again.

 

[Aeglos]

I think the appeal will be based on application of penalty - WADA and SIA may not be contending any grounds intentionality, purely that the the offense draws a 4 year ban.

The penalty, once FINA decided Jack didn't dope intentionally, could only be 2 years (and not 4) as per WADAs own guidelines (10.2.1.1 and 10.2.2 that I posted before).
I still don't see how WADA can claim that the application of penalty was inappropriate when it's exactly as it's written in their own words.
If they're chasing 4 years and don't want to completely contradict themselves they'd need to bring back into play the notion of Jack doping intentionally.
ie prohibited substance and non-intentional = 2 years vs prohibited substance and intentional = 4 years

 

[Tim Evans Beard]

The penalty, once FINA decided Jack didn't dope intentionally, could only be 2 years (and not 4) as per WADAs own guidelines (10.2.1.1 and 10.2.2 that I posted before).
I still don't see how WADA can claim that the application of penalty was inappropriate when it's exactly as it's written in their own words.
If they're chasing 4 years and don't want to completely contradict themselves they'd need to bring back into play the notion of Jack doping intentionally.
ie prohibited substance and non-intentional = 2 years vs prohibited substance and intentional = 4 years

Again, the penalty is 4 years. In this instance, Jack’s penalty is 4 reduced to 2 - not a straight 2. It is a reduction.

There is no foot shooting if the appeal is on the grounds I think it is. They are appealing that penalty is 4 years, not 2.

 

[yaco55]

This is misinformation. The 4 year penalty is for use of a prohibited substance - no ‘intention’ is considered. The penalty may be reduced, but the default is 4 years - as applied initially in this case prior to the Jack appeal.

4 years is the penalty. This is what ‘we must remember’.

Four years is when you provide no evidence to mitigate how the substance is in your body, so in effect you provide no evidence to show you had no iintention of cheating. USADA in recent years has experienced 26 cases of so called contaminated substances. Check to see how many got less than 4 years and how often WaDA or USADA appealed.

 

[Tim Evans Beard]

Four years is when you provide no evidence to mitigate how the substance is in your body, so in effect you provide no evidence to show you had no iintention of cheating. USADA in recent years has experienced 26 cases of so called contaminated substances. Check to see how many got less than 4 years and how often WaDA or USADA appealed.

USADA is not SIA.

The ’evidence’ provided by Jack for possible contamination:

1. Cross-contamination of a blender used by her boyfriend or brother - her brother is swimmer Mitchell Jack and her boyfriend is hockey player Joel Rintala. Both have not returned a positive result ...

2. Tainted supplement. Jack is sponsored by a supplement company untested by any clean athlete organization - the product she is promoting is an untested and unregulated performance product and is the product she is blaming ...

3. Ingestion while swimming at a public pool before an event. A pool shared by other athletes. No other positive tests were returned ...

This ‘evidence’ is not similar in anyway to the tainted supplement reduction whereby the athlete provides the canister of supplement - where the supplement has been tested and approved for use by athlete - and the supplement is found to be tainted. An unopened canister of the same batch is also tested. When an opened and unopened samples are shown to be contaminated, the ban may be reduced as no significant fault may be applied.

 

[Aeglos]

Jack’s penalty is 4 reduced to 2

On the basis that it was determined (rightly or wrongly) that she could not have reasonably known she would be consuming a product that contained Ligandrol.
Once this was determined the correct penalty (2 years) was applied as per WADA's own code.

Therefore if WADA are contending that the penalty of 2 years was insufficient, they must also contend that the finding of "no fault" (or however you want to word it) was incorrect otherwise they have no grounds on which to appeal.

 

[owen87]

Geez this page has been painful to read.

 

[Tim Evans Beard]

If this is too hard to get that is OK - at the end of the day it is essentially a new, full trial with a 3 person tribunal.

 

[yaco55]

USADA is not SIA.

The ’evidence’ provided by Jack for possible contamination:

1. Cross-contamination of a blender used by her boyfriend or brother - her brother is swimmer Mitchell Jack and her boyfriend is hockey player Joel Rintala. Both have not returned a positive result ...

2. Tainted supplement. Jack is sponsored by a supplement company untested by any clean athlete organization - the product she is promoting is an untested and unregulated performance product and is the product she is blaming ...

3. Ingestion while swimming at a public pool before an event. A pool shared by other athletes. No other positive tests were returned ...

This ‘evidence’ is not similar in anyway to the tainted supplement reduction whereby the athlete provides the canister of supplement - where the supplement has been tested and approved for use by athlete - and the supplement is found to be tainted. An unopened canister of the same batch is also tested. When an opened and unopened samples are shown to be contaminated, the ban may be reduced as no significant fault may be applied.

The USADA reference is relevant in that none of the sporting associations in the USA or in fact WADA appealed bans that were less than four years for what is termed 'the contaminated supplements' defence. And also read between the lines with my reference to USADA.