Australian swimmer Shayna Jack in action during the heats of the Women's 200 metre Freestyle at the World Swimming Trials at the Brisbane Aquatic Centre in Brisbane, Tuesday, June 11, 2019. (AAP Image/Darren England) NO ARCHIVING, EDITORIAL USE ONLY
Australian swimmer Shayna Jack in action during the heats of the Women's 200 metre Freestyle at the World Swimming Trials at the Brisbane Aquatic Centre in Brisbane, Tuesday, June 11, 2019. (AAP Image/Darren England) NO ARCHIVING, EDITORIAL USE ONLY

Appeal against Jack ‘despicable unfairness’: judge

One of the country's most respected judges has described an appeal against Shayna Jack by two of the world's most powerful anti-doping bodies as "a despicable unfairness.''

NSW district court judge Paul Conlon has made the claims amid the revelation that Jack's advisors have contacted the legal team of an Italian swimmer who recently had his original four-year ban reduced to eight months due to the low-level amount found in his system.

Jack, who tested positive to "pharmacologically irrelevant" levels of the banned substance Ligandrol, was forced to withdraw from Australia's squad for the world swimming championships in 2019.

The 22-year-old said she did not know how the banned substance entered her body.

In halving her suspension from four years to two years, The Court of Arbitration for Sport (CAS) heard expert opinions that the amount was pharmacologically irrelevant, or not performance enhancing.

If Jack’s reduced sentence is overturned, the Australian swimmer could be at risk of expulsion from the upcoming Tokyo Olympics.
If Jack’s reduced sentence is overturned, the Australian swimmer could be at risk of expulsion from the upcoming Tokyo Olympics.

 

However, Sport Integrity Australia (SIA) and the World Anti-Doping Agency (WADA) are appealing the reduced sanction, leaving Jack at risk of the reinstatement of a four-year ban and expulsion from the upcoming Tokyo Olympics.

Conlon has taken a close interest in the matter after reading the judgment of sole arbitrator QC Alan Sullivan - and then learning that his judgment was going to be appealed by SIA and WADA.

Conlon has spent more than 30 years in the judicial system, becoming one of the most respected judges on the bench for his common sense approach to sentencing.

He's also experienced in dishing out sporting punishments, having acted as NRL Judiciary Chairman until 2014.

"What they're (SIA and WADA) saying is that even if the athlete is able to establish to the arbitrator that the substance was in their system otherwise than by of intentional use, they don't care because they still want to give you four years if you can't prove the origin of the substance and how it got in your system,'' Conlon said.

"If you look at the case of a person who is legitimately innocent of intentional use, in the great majority of cases that person will have absolutely no ability to know how the substance got in their system.

"They are in effect being asked to prove an impossibility.

"That in my view ranks as a despicable unfairness to the athlete.

"What seems to be lost by Sport Integrity Australia is that this athlete (Jack) has undergone a very significant punishment having missed the world titles and the possibility of an Olympic games.

"When SIA was brought into existence in early 2020 I remember a bit of fanfare about how things would be different. However, they are demonstrating all the shortcomings for which its forerunner ASADA became well known."

A date for SIA and WADA's appeal against Jack is yet to be confirmed.

However, the recent reduction of a four-year ban to eight months for Italian swimmer Alex di Giorgio has led Jack's advisors to commence dialogue with the 2012 and 2016 Olympic swimmer's legal team over the similarities in Jack's case.

Di Giorgio tested positive for the banned substance ostarina in September 2020, but the amount found in his blood was one nanogram per litre (. 001 micrograms per litre).
The court accepted, based on the small amount found, di Giorgio's defence of accidental ingestion.

There is an anticipation Italy's version of SIA will appeal the reduced sanction.

"But this is another example of how athletes, even after proving that the levels couldn't possibly be performance-enhancing and that was no intentional use, they are still pursued by authorities,'' Conlon said.

"Let's not forget Shayna was dealt a two-year suspension - when you consider all the factors in her case, it's still a significant penalty."

Originally published as Appeal against Jack 'despicable unfairness': judge



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