SR/179/2021 IN THE MATTER OF PROCEEDINGS BROUGHT UNDER THE ANTI-DOPING RULES OF WORLD ATHLETICS Before: Mr Jeffrey Benz (sole arbitrator) BETWEEN: World Athletics Anti-Doping Organisation and Fernanda Martins Respondent DECISION OF THE DISCIPLINARY TRIBUNAL The above-captioned matter came on for virtual hearing before the sole arbitrator, Jeffrey G. Benz (“the Arbitrator” or “the Panel”), on the Zoom platform on 21 July 2021 (“the Hearing”). After hearing the arguments, and considering the written and oral submissions, of the parties, represented by counsel, the Arbitrator finds and determines as follows: I. INTRODUCTION/THE PARTIES 1.1. This case is one about an athlete’s use of a contaminated supplement manufactured at a compounding pharmacy in Brazil on the direction of the doctor for the Athlete, and her resulting positive doping control for a Prohibited Substance. As counsel for the Athlete and counsel for World Athletics agreed on the source of the Prohibited Substance being the compounding laboratory, the only issue before the Arbitrator was determining the length of sanction. 1.2. The Athlete in this matter, Ms. Fernanda Martins (“the Athlete” or “Ms. Martins”), is an accomplished discus thrower from Brazil, who has competed internationally since 2006, including previously in the Pan American (where she won a medal) and Olympic Games. She was seeking to compete in the delayed Olympic Games in Tokyo in 2021, and had otherwise qualified but for the anti-doping issue presented herein. Ms. Martins was represented by Mr. Marcello Franklin, of Franklin Advogados, in Rio de Janeiro, Brazil. Mr. Franklin appeared remotely from Rio de Janeiro, Brazil. 1.3. World Athletics is the International Olympic Committee-recognised international sports federation for athletics worldwide. World Athletics was represented by Mr. Ross Wenzel, of Kellerhals Carrard, in Lausanne, Switzerland. Mr. Wenzel appeared remotely from Tokyo, Japan. 1.4. Both sides were very capably represented at the hearing by their counsel, and the Arbitrator was aided from their excellent presentations. 1.5. Collectively herein, Ms. Martins and World Athletics shall be referred to as “the Parties.” II. JURISDICTION 2.1. The applicable rules are the 2021 World Athletics Anti-Doping Rules (the “WA ADR 2021”). 2.2. The Athlete is an international athlete who has competed regularly in competitions organised by World Athletics, and is part of their Out-of-Competition testing program, and therefore, the WA ADR 2021 apply to the Athlete. 2.3. World Athletics has established a Disciplinary Tribunal to hear alleged Anti-Doping Rule Violations and other breaches of the WA ADR 2021 (Rules 1.3 and 8.2). 2.4. This matter has been referred to the Disciplinary Tribunal in accordance with Rule 8.5.5 of the WA ADR 2021. 2.5. World Athletics has, pursuant to Rule 4.1 of the World Athletics Disciplinary Tribunal Rules, determined that the Disciplinary Tribunal shall have a secretariat which is independent of World Athletics. Sport Resolutions acts as secretariat to the Disciplinary Tribunal. 2.6. No party had an objection to the composition of the Panel or to the exercise of jurisdiction here and both parties participated fully. 2.7. Accordingly, the Arbitrator finds that there is jurisdiction. III. FACTUAL BACKGROUND 3.1. Because the Parties agreed on the source of the Prohibited Substance, the relevant facts here are rather straightforward and simple. The Arbitrator discusses the relevant facts and allegations based on the Parties’ written submissions, pleadings and evidence adduced at the evidentiary hearing. Additional facts and allegations found in the Parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal analysis and discussion that follows. While the Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, the Arbitrator refers in his Award only to the submissions and evidence considered necessary to explain the Arbitrator’s reasoning. 3.2. Ms. Martins was tested Out-of-Competition at the Chula Vista Elite Athlete Training Center outside of San Diego, California, on 24 April 2021. Her sample returned a positive result for the substance “Ostarine SARM-S22”, albeit for relatively small amounts (9 pictograms per millilitre). This substance appears on the Prohibited Substances List disseminated from time to time by the World Anti-Doping Agency (“WADA”) as a category S1 anabolic agent. 3.3. The Parties agreed that the source of the Prohibited Substance was nutritional supplements prescribed by Ms. Martins’ physician and manufactured at a compounding pharmacy in Brazil. 3.4. The only legal issue to be determined is the length of sanction. The facts pertinent to that analysis will be discussed below. IV. PROCEDURAL HISTORY 4.1. On 07 July 2021, Ms. Martins was notified by the Athletics Integrity Unit (“AIU”) that she had tested positive for this substance. She was provisionally suspended from that date. 4.2. On 09 July 2021, this matter was referred to the Disciplinary Tribunal. The Panel was appointed on 13 July 2021. No objections were received to the appointment of the Panel upon the disclosure of the declarations of independence. The procedural calendar was set as follows: 4.3. The evidentiary hearing was held using the Zoom platform on 21 July 2021. Counsel for both sides attended, as did Ms. Martins, and the Panel. Ms. Martins’ witness, Dr. Nave, also attended for his testimony, as did the Portuguese-English interpreter hired by Ms. Martins. 4.4. At the conclusion of the hearing, no party raised an objection as to their right to be heard and equal treatment in the hearing. 4.5. The Arbitrator issued an operative award on 23 July 2021. 4.6. This reasoned award followed in due course and in accordance with the relevant rules. V. THE LEGAL FRAMEWORK 5.1. The relevant provisions of the WA ADR 2021 are as follows: “2.1 Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample 2.1.1 It is each Athlete’s personal duty to ensure that no Prohibited Substance enters their body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary to demonstrate intent, Fault, Negligence or knowing Use on the Athlete’s part in order to establish a Rule 2.1 anti-doping rule violation. 2.1.2 Sufficient proof of an anti-doping rule violation under Rule 2.1 is established by any of the following: (i) the presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample where the Athlete waives analysis of the B Sample and the B Sample is not analysed; (ii) where the analysis of the Athlete’s B Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the Athlete’s A Sample; or (iii) where the Athlete’s A or B Sample is split into two parts and the analysis of the confirmation part of the split Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the first part of the split Sample or the Athlete waives analysis of the confirmation part of the split Sample. 2.1.3 Excepting those substances for which a Decision Limit is specifically identified in the Prohibited List or a Technical Document, the presence of any reported quantity of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample will constitute an anti-doping rule violation. * * * 2.2 Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method 2.2.1 It is the Athlete’s personal duty to ensure that no Prohibited Substance enters their body and that no Prohibited Method is Used. Accordingly, it is not necessary to demonstrate intent, Fault, Negligence or knowing Use on the Athlete’s part in order to establish an anti-doping rule violation for Use of a Prohibited Substance or a Prohibited Method. [Comment to Rule 2.2: It has always been the case that Use or Attempted Use of a Prohibited Substance or Prohibited Method may be established by any reliable means. As noted in the Comment to Rule 3.2, unlike the proof required to establish an anti-doping rule violation under Rule 2.1, Use or Attempted Use may also be established by other reliable means such as admissions by the Athlete, witness statements, documentary evidence, conclusions drawn from longitudinal profiling, including data collected as part of the Athlete Biological Passport, or other analytical information that does not otherwise satisfy all the requirements to establish the presence of a Prohibited Substance under Rule 2.1. For example, Use may be established based upon reliable analytical data from the analysis of an A Sample (without confirmation from an analysis of a B Sample) or from the analysis of a B Sample alone where the Anti- Doping Organisation provides a satisfactory explanation for the lack of confirmation in the other Sample.] 2.2.2 The success or failure of the Use of a Prohibited Substance or Prohibited Method is not material. It is sufficient that the Prohibited Substance or Prohibited Method was Used or Attempted to be Used for an anti-doping rule violation to be committed. [Comment to Rule 2.2.2: Demonstrating the Attempted Use of a Prohibited Substance or a Prohibited Method requires proof of intent on the Athlete’s part. The fact that intent may be required to prove Attempted Use does not undermine the strict liability principle established for violations of Rule 2.1 and violations of Rule 2.2 in respect of Use of a Prohibited Substance or Prohibited Method.