Inadvertent Doping and the Shayna Jack Decisions: a Search for Coherence in the Court Of Arbitration For Sport

The Court of Arbitration for Sport (CAS) is responsible for determining a number of anti-doping cases on an annual basis. Over the past five years, differently composed arbitral panels at the CAS have dealt with athletes who claimed to have inadvertently doped. The phrase inadvertent doping is colloquially used where an athlete neither deliberately nor negligently ingests a prohibited substance, but returns an adverse analytical finding for a prohibited substance. The Shayna Jack case involved a unique set of circumstances that provided an excellent test case for the CAS to bring coherence to a series of decisions that appeared to conflict in principle. The unfortunate consequence for Shayna Jack was that she was ineligible to compete for Australia in the 2020 Tokyo Olympic Games. The upside for future professional athletes is that the Jack arbitrations (first instance and appeal) have provided clarity as to the probity and weight of different pieces of evidence that may be used by an athlete when attempting to establish a non-intentional anti-doping rule violation pursuant to the World Anti-Doping Code (and its derivatives)