CAS 2016/A/4708 Belarus Canoe Association (BCA) & Belarusian Senior Men’s Canoe and Kayak team members v. International Canoe Federation (ICF)
The members of the Belarusian senior men’s kayak team:
- Mr. Raman Piatrushenka,
- Mr. Vitaliy Bialko,
- Mr. Aleh Yurenia,
- Mr. Pavel Miadzvedzeu,
- Mr. Vadzim Makhneu,
- Mr. Taras Valko,
- Mr. Aliaksandr Liapeshka,
- Mr. Andrei Tsarykovich,
- Mr. Ihar Baicheuski,
- Mr. Ivan Tsuranau,
- Mr. Dzmitry Khilchanka,
- Mr. Spartak Bazhkou,
- Mr. Mikita Borykau,
- Mr. Stanislau Daineka,
- Mr. Dzimtry Tratsiakou.
The members of the Belarusian senior men’s canoe team:
- Mr. Aliaksandr Bahdanovich,
- Mr. Andrei Bahdanovich,
- Mr. Dzianis Harazha,
- Mr. Dzmitry Rabchanka,
- Mr. Dzmitry Vaitsishkin,
- Mr. Artsem Kozyr,
- Mr. Maksim Piatrou,
- Mr. Hleb Saladukha,
- Mr. Dzianis Makhlai,
- Mr. Aliaksandr Vauchetski),
The Belarussian coaches:
- Mr. Uladzimir Shantarovich,
- Mr. Mikalai Banko,
- Mr. Ihar Radomski,
- Mr. Henadzi Halitski.
The Belarussian medical staff of these male teams:
- Mrs. Elena Kallaur,
- Mr. Aliaksei Roik.
- Canoe
- Doping (meldonium)
- Definition of “suspension” and “exclusion” in ICF Statutes
- Distribution of powers within the ICF with regard to decisions in anti-doping matters
- Meldonium taken before 1 January 2016
- Possession of Prohibited Substances by a coach and
- Therapeutic Use Exemption (“TUE”)
- Necessity of legal basis for sanctions
1. Absent any particular explanation in the ICF Statutes and bylaws, the term “suspension” must be understood to have the meaning generally used by many international sports federations. In such understanding “suspension” means that use of all membership rights by the respective National Federation or individual shall be prohibited for a certain period of time. “Exclusion”, as follows directly from the text of Article 42 (c) ICF Statutes, is restricted to particular rights, the participation at international competitions and ICF Competitions.
2. Before the ICF Executive Committee can take any additional disciplinary action under Article 12.3 ICF Anti-doping Rules (“ICF ADR”), the ICF Doping Control Panel has to first render a decision establishing a violation or failure by athletes or other persons affiliated with the National Federation in question fulfilling the requirements of Article 12.3 ICF ADR together with one of its Sub-Articles. In this respect it is not sufficient for the ICF to argue that the mere presence of a Prohibited Substance in an athlete’s body constitutes an anti-doping rule violation: to follow such argumentation would reverse one of the essential achievements of the WADA Code, namely the establishment of independent judicial bodies as replacement of political bodies to decide on anti-doping rule violations. Specifically, it would empty the competence of the ICF Doping Control Panel, circumventing the system of distribution of powers laid down by the ICF Statutes and the ICF ADR; put differently it would prejudge the decisions of the ICF Doping Control Panel and assign to this panel the role of merely executing decisions already taken by the ICF Executive Committee through own decisions; lastly it would deprive the individual person concerned of all procedural guarantees laid down by the WADA Code, implemented by the ICF in the ICF ADR.
3. The 2016 WADA Prohibited List (which entered into force on 1 January 2016) for the first time included meldonium as a prohibited substance. According to the WADA notice on meldonium concerning cases where athletes claim that the substance was taken before 1 January 2016, for samples taken on or after 1 March 2016 and showing a urinary concentration of meldonium below 1000 ng/ml, in the absence of other evidence of use of meldonium on or after 1 January 2016, a finding of no fault could be made. Accordingly, in order to establish a positive finding for meldonium for such a sample, an anti-doping organisation is obliged to demonstrate to the hearing panel’s comfortable satisfaction that the meldonium entered the body of the athlete in question after 1 January 2016.
4. Neither the WADA Code nor the ICF ADR contain an obligation for a Therapeutic Use Exemption for coaches. Therefore, a coach who is found in the possession of a Prohibited Substance but who establish to the hearing panel on a balance of probability that the Prohibited Substance was in his possession for personal medical reasons does not violate Article 2.6.2 ICF ADR prohibiting possession of a Prohibited Substance.
5. It is too late to only at a hearing in front of CAS introduce arguments related to a legal basis on which the imposition of sanctions are allowed if those arguments have not been referred to in the appealed decision. Put differently, issuing a decision first and thereafter searching for a possible legal basis does not confirm to the principle of legality.
On 12 April 2016, French Police and Customs raided the rooms and personal belongings of the male Belarusian canoe athletes at the training camp in Le Temple-sur-Lot (France). They confiscated various substances, medication, material and medical equipment, including meldonium, needles and other equipment for transfusions, Actovegin and iron supplements. The meldonium (16 capsules of Mildronate) were found in the room of Mr. Henadzi Halitski, the coach of the Belarusian women’s kayak team.
Seventeen athletes from the Belarus canoe team underwent a doping control and urine samples were taken from them. Meldonium was found in five of these samples and the French Ministry of Justice opened a criminal case against the Belarussian team. Only one sample showed a concentration above the WADA threshold and the Belarus Canoe Association (BCA) suspended the athlete from any competition.
The BCA expressed to the International Canoe Federation (ICF) its intention to support doping free sport. The BCA argued that the import of certain medicines was only a violation of customs rules and explained with evidence that the use and possession of the medication was valid. It asserted that the seized Mildranat was prescribed and used by Henadzi Halitski the coach of the Belarus’ women’s team.
Considering the results of the French raid into the training camp the ICF Executive Committee concluded that there was enough evidence and proof to issue sanctions against the athletes, coaches and entourage of the Belarus delegation.
The ICF Executive Committee decided on 15 July 2016 to impose a 1 year period of ineligibility on the Senior Men’s Canoe and Kayak teams including coaches, medical staff and entourage for all international competitions. The starting date for this sanction would be 13 July 2016.
Hereafter in July 2016 the Appellants appealed the ICF decision of 15 July 2016 with the Court of Arbitation for Sport (CAS). The BCA argued that the ICF Executive Committee was not entitled to issue the Decision and it violated the relevant Rules and procedural rights of the Athletes.
The Panel finds that the ICF Decision of 15 July 2016 to the exclusion (ban) was not restricted to officials only and disregarding two further restrictions.
Having not been provided with evidence by the ICF to its comfortable satisfaction that the BCA Athletes took meldonium after 1 January 2016, the Panel holds that there was no anti-doping rule violation committed by the athletes as to meldonium.
Besides, the ICF Executive Committee erred in the Appealed Decision in holding that meldonium was in the possession of the Belarus contingent, which, thus, committed a violation of Article 2.6.2 ICF ADR. The coach Mr. Halitski could explain to the Panel on a balance of probability and even to its comfortable satisfaction that the meldonium was in his possession for personal medical reasons. Since there is no obligation for a Therapeutic Use Exemption for coaches in place under the WADA Code and the ICF ADR, the Panel finds that Article 2.6.2 ICF ADR has not been violated by such possession.
The ICF could not establish to the comfortable satisfaction of the Panel that the transfusion equipment and medication found at the raid of the BCA’s training camp in France, as far as disclosed to the Panel, served the aims of prohibited methods. Thus, the Panel finds that no violation of Article 2.6.2 ICF ADR took place. There was no possession of prohibited methods, regardless of the question whether Article 2.6.2 ICF ADR is clear and precise enough at all because it does not determine under which conditions and from when a person has possession of a prohibited method.
Since there were not four or more violations of the ICF ADR (other than violations involving Article 2.4) committed by Athletes or other Persons affiliated with the BCA within a 12-month period in testing conducted by the ICF or Anti-Doping Organisations other than the BCA or BCA’s National Anti-Doping Organisation, the Panel finds that Article 12.3 ICF ADR, read together with Sub-Article 12.3.1 could not be applied on the BCA, based on the established facts. As a result, the Appealed Decision of the ICF Executive Committee is set aside.
In conclusion, the Panel finds that the Appealed Decision is also set aside as premature because there were no previous decisions taken by the ICF Doping Control Panel on violations of the ICF ADR by Athletes or other Persons affiliated with the BCA.
Therefore the Court of Arbitration for Sport decides on 23 January 2017:
1.) The appeal filed by the Belarus Canoe Association and the Belarusian senior men’s canoe and kayak team members against the decision rendered on 15 July 2016 by the ICF Executive Committee is upheld.
2.) The decision of the Executive Committee of the International Canoe Federation rendered on 15 July 2016 is set aside.
3.) The present award is rendered without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss francs), which has already been paid by the Belarus Canoe Association and is retained by the Court of Arbitration for Sport.
4.) (…).
5.) All other motions or prayers for relief are dismissed.
