SH claims:
B. The Respondent’s Submissions
42. The Respondent’s submissions on the merits may be summarized as follows:
- The applicable version of the TD is the TD2021NA, published on 21 December 2020,
since lex mitior applies for analytical and reporting requirements.
- Further to the A-Sample analysis, and the Athlete’s invocation of boar offal as a
possible source of the AAF, the laboratory should have reported the sample as an
Atypical Finding rather than an AAF. Had the laboratory been notified of and
considered the invoked boar offal explanation, it would have taken the same into
consideration when conducting the analysis of the B-Sample in accordance with the
applicable TD governing the analysis and reporting of nandrolone and other 19-
norsteroids:
o First, to account that the consumption of boar offal could cause a false positive
for 19-NA, the TD2019NA requires the Laboratory to demonstrate that the 19-
NA is not from the consumption of boar offal when it has been invoked by the
Athlete as the source. While this burden existed under the TD2019NA, the
TD2021NA clarifies precisely when a laboratory is required to demonstrate that
the 19-NA is not from the consumption of boar offal. Specifically, it is when
three elements are present: i) the athlete invokes the boar offal as the
endogenous source; ii) the athlete’s estimated concentration of excreted 19-NA
between -15 ‰ and -25 ‰, which is the accepted delta-delta value range for
boars.
o Second, the Athlete invoked boar offal as a source of the 19-NA prior to her BSample analysis, and therefore the Laboratory was required to demonstrate that
the 19-NA detected in her urine was not from the consumption of boar offal
before it could report an AAF. The TD2021NA mandates the Laboratory to
perform a pharmacokinetics study to establish the origin of the 19-NA detected
in the Athlete’s urine. Yet no pharmacokinetics study was ever done.
o Third, the Athlete’s urinary markers were precisely in the range contemplated
by the TD for boar offal consumption. Her estimated concentrations of excreted
19-NA were in the low ng/mL range (≤10 ng/mL) for both her A-Sample (6.9
ng/mL) and B-Sample (7.8 ng/mL) and her delta-delta values were between -
15 ‰ and -25 ‰ for both her A-Sample (-23.1 ‰ ng/mL) and B-Sample (-23.0
‰).
- Contrary to the strictures of the TD, the Laboratory wrongly confirmed that the urinary
19-NA was of exogenous origin solely based on the unreliable GC/C/IRMS result
without conducting subsequent testing or other pharmacokinetics analyses.
- Rather than reporting the Athlete’s B-Sample as either an Atypical Finding or a No
Prohibited Substance Detected, as was required under the TD further to the Athlete’s
invocation of boar offal as a possible source of the 19-NA, the AIU and the Laboratory
reported her B-Sample as an AAF. Such decision is of enormous legal consequence
since an Atypical Finding cannot form the basis for the Notice of Charge asserting that
an athlete has committed an ADRV.
- In light of these failures to comply with the requirements of the TD, the AIU has no
foundation for the case brought against the Athlete. In fact, there is no way for the AIU
to prove to the Panel’s comfortable satisfaction that the Athlete has committed an
ADRV, since the 19-NA detected in her sample should have been found to be of
endogenous origin.
- Further, the Athlete had a hair sample test performed by the toxicologist Dr Kintz,
which showed no trace of synthetic nandrolone or 19-NA. The Athlete also
successfully passed a polygraph examination conducted by former US CounterIntelligence agent, Dr Fritz. The latter concluded that the Athlete was not lying when
responding with “no” to the following questions: (i) “Did you at any time knowingly
ingest Nandrolone?”; and (ii) “Did you intentionally ingest the drug Nandrolone?”
- The Athlete engaged Dr Strahm, a former certified scientist at the WADA-accredited
laboratory in Stockholm to conduct an independent review of the results of the analysis.
Dr Strahm confirmed that the results of the Athlete’s 15 December 2020 urine sample
“show all the evidence of boar meat or offal consumption the day prior to when the
urine test was performed”.
- Prof Anne Hope Jahren, a paleobiologist at the University of Oslo, confirmed that “a
pork-meat meal, be it standardly derived from muscle tissue or non-standardly derived
from offal, may not only possibly to exhibit a carbon value between -21 and -25, but is
indeed likely to do so”.
- In conclusion, the AAF was wrongly reported solely on the basis of GC/C/IRMS
results, which are insufficient to report an AAF under the TD2019NA / TD2021NA
given the Athlete’s urinary markers and the estimated concentration of 19-NA detected
that was below 15ng/mL and because the Laboratory did not perform a
pharmacokinetic study to confirm that the 19-NA had not been endogenously produced
as a result of the Athlete’s inadvertent consumption of boar offal.
- The Athlete’s case is a false positive caused by boar offal and to find otherwise would
result in a miscarriage of justice because the Athlete is not a cheater, as evidenced by
her own testimony, that of all the character witnesses she has brought forward, and the
fact that there is no doping scenario that could explain this one-time presence of 19-
NA in her urine sample.