92. On 25 November 2018, i.e. two days before the hearing in New York, the Appellant filed documents pertaining to the "World Rugby case", which included expert evidence of Professor David Cowen ("the Third Expert Report"). At the hearing the Panel decided that - in the interest of it being fully infmmed on a critical point it will admit such evidence into the file. However, it also acknowledged that the Respondent would not be able to respond to this evidence at the hearing. In order to grant the Respondent the right to be heard adequately, it was allowed to respond to the evidence submitted by the Appellant in its PHB. Whenever the Appellant sought to refer to the Cowan evidence contained in the "World Rugby case" during the hearing, the Panel made it clear that the parties should deal with such evidence in its totality in their PHB.
93. In its PHB, the Respondent submitted a new Expert Report of Professor Cowan. The Appellant objects to the new Expert Report and argues that "it was never contemplated that a party would be able to introduce a new expert report, from an expert ·who had not previously been designated." The Appellant also states that his right to be heard is curtailed, since he "has no opportunity to cross-examine him or confront his assumptions and conclusions." The Respondent invited the Panel to reject the Appellant's application to remove the new Expert report of Professor Cowan from the file. According to the Respondent it was the Appellant who chose to introduce the Third Expert Report at the very last minute, thus depriving the Respondent to address the new evidence at the hearing. When the Panel decided to deal with the outstanding issue of the Third Expe1i Report in the PHB, there was no suggestion according to the Respondent - that the ITF would not be allowed to contact Professor Cowan to seek clarification on his Third Expert Report.
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94. In its letter dated 26 March 2019, the Panel decided to admit the new Expert Report from Professor Cowan and explained that the PHB became necessary, because the Appellant filed the new documents pertaining to the World Rugby case at the very last minute, depriving the Respondent to respond to this new evidence at the hearing. The Panel nevertheless admitted the new evidence on file in the paramount interest of justice. In order to respect the Respondent's right to be heard, however, it allowed the Respondent to address the Appellant's new evidence in the PHB. This was made clear at the outset and at the end of the hearing. No restrictions were imposed by the Panel.
That this included the possibility of the Respondent to contact Professor Cowan in order to seek clarifications of his Third Expert Report was specifically envisaged at the hearing. The Appellant stated that he would only object to the Respondent contacting Professor Cowan, ifhe had also access to him. In response to this the Respondent stated that it was not objecting to the Appellant having access to Professor Cowan. There is no evidence on file that the Appellant tried to contact Professor Cowan or that the latter refused to speak to the Appellant. It simply appears that the Appellant did not make any attempts to contact Professor Cowan.
95. The Appellant claims that his right to be heard has been violated because he did not have the opportunity to cross-examine Professor Cowan. The Panel observes that there is no inalienable right under the Code for a party to cross-examine an expert. The Panel is only called upon to ensure that the parties' right to be heard are guaranteed. This, however, can be done also through other means than by cross-examination, e.g. by an additional round of written submission (here PHB). This is all the more true considering that the Appellant's new evidence was admitted under the condition that it be dealt with in the PHB. The Appellant was therefore sufficiently granted the possibility to respond to the new Expert Report in his PBH-Reply Brief.
96. The Panel further finds that the new Expert Report of Professor Cowan is directly related and linked to his Third Expert Report that was submitted prior to the hearing by the Appellant. The Appellant introduced the new Expert Report related to the World Rugby case arguing, in particular, that the mathematical model applied therein backed the alleged long excretion window of the M4 metabolite allegedly observed with the Athlete. In the new Expert Report, the ITF asked Professor Cowan to apply the mathematical model used in the World Rugby case to the analytical data in this case.
The Panel does not find that this exercise was beyond the scope of the leave granted to the Respondent at the hearing. The Panel also observes that in any case, the new Expert Report of Professor Cowan was not material to the outcome of this case.
VIII. APPLICABLE LAW
97. Article R58 of the Code provides as follows:
The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.
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98. Par. 1.11 of the Introduction to the TADP 2017 provides as follows:
"Any player who enters or participates in a Covered Event or who has an ATP or WTA ranking ... in the 2017 calendar year ... in automatically bound by and required to comply with all the provisions of this Programme ... "
99. The Czech Republic Futures Tournament, in which the Athlete competed just before the doping control, is a Covered Event according to par. 1. 10 of the Introduction.
100. According to par. 1.6.1 of the Introduction, the TADP 2017 applies to all cases where the alleged ADRV occurred after its entry into force, i.e. 1 January 2017.
101. Both parties expressly rely on the TADP and the W ADC, and various CAS jurisprudence interpreting these rules. Moreover, the application of those rules, which were applied by the Independent Tribunal in the Appealed Decision, was not contested by the parties. The Panel, therefore, will apply the TADP and W ADC to merits of this appeal.
VIII. SCOPE OF THE PANEL'S REVIEW
102. According to Article R57 of the Code,
"the Panel shall have full power to review the facts and the law. It may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance . ... "
103. This Panel, therefore, has full power to examine de nova the Athlete's actions, and the evidence before it, in order to verify whether the Athlete's ADRV is grounded or not.
Such exercise is linked to the appellate structure of CAS proceedings.
IX. MERITS
104. The main questions that the Panel needs to answer in this appeal are:
A. Was the Athlete bound by the TADP at the relevant time?
B.
if
the aforementioned question is answered in the affirmative, did the Athlete commit anADRV?C.
lf
the aforementioned question is answered in the affirmative, are there any procedural reasons that prevent this Panel from finding that an ADRV has been committed?D.
lf
the aforementioned question is answered in the negative, could the Athlete establish that he did not act intenionally?E. What are the consequences of the finding under paragraph D, supra?
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