CAS 2016_A_4458 Lisa Christina Nemec vs CITAD & IAAF

CAS 2016/A/4458 Lisa Christina Nemec v. Croatian Institute for Toxicology and Anti-Doping (CITA) & International Association of Athletics Federations (IAAF)

  • Athletics (long distance)
  • Doping (recombinant EPO)
  • CITA Anti-Doping rules with regard to burden and standard of proof
  • Irrelevance of the absence of an assistant doping control officer during the sample taking procedure
  • Burden of proof regarding departures from any other
  • International Standard than the ISL
  • Polygraph examination

1. According to art. 3.1 CITA Anti-Doping Rules (CITA ADR), CITA has the burden of establishing that an Anti-Doping Rule Violation (ADRV) occurred. The standard of proof shall be whether CITA has established an ADRV to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation that is made. The standard of proof in such cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. The burden of proof is upon one athlete alleged to have committed an ADRV to rebut the presumption or establish specified facts or circumstances. In this regard, the standard of proof shall be by a balance of probability.

2. According to art. 2.2 of the World Anti-Doping Agency’s Urine Sample Collection Guidelines, which expands upon the International Standard for Testing and Investigations, “one lead/senior [Doping Control Officer] oversees the Sample Collection Session, ensuring that each Sample is properly collected, identified and sealed, and that all Samples have been properly stored and dispatched in accordance to the relevant analytical guidelines”. Consequently, the presence of any further (assistant) doping control officers or chaperones is only an addition to the standard required by the applicable rules.

3. According to art. 3.2.3 of the CITA ADR and art. 33.3(c) of the IAAF Competition Rules, departures from any other International Standard than the International Standard for Laboratories or other anti-doping rule or policy set out in the respectively mentioned rules which did not cause an Adverse Analytical Finding or other anti-doping rule violation shall not invalidate such evidence or results. If the athlete establish a departure from another International Standard or other anti-doping rule or policy which could reasonably have caused an anti-doping rule violation based on an Adverse Analytical Finding or other anti-doping rule violation, then the respectively mentioned entities shall have the burden of establishing that such departure did not cause the Adverse Analytical Finding or the factual basis for the anti-doping rule violation.

4. Whether or not polygraph tests are admissible evidence in arbitration proceedings is disputed. In any case, there needs to be at least evidence produced as to the reliability of the polygraph test. In particular, the expert who conducted the polygraph test needs to be presented for expert testimony, i.e. for cross-examination and questioning by the CAS panel. Otherwise, the polygraph test is simply part of a party’s submissions contested by the other party and must be weighted as such by the CAS panel.



On 1 February 2016 the Disciplinary Panel of the Croatian Institute for Toxicology and Anti-Doping (CITA) decided to impose a 4 year period of ineligibility on the Croatian Athlete Lisa Christina Nemec after her A and B samples tested positive for the prohibited substance recombinant human erythropoietin (rhEPO).

Hereafter the Athlete appealed the decision of the CITA Disciplinary Panel with the Court of Arbitrarion for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to annul the imposed sanction. 

She asserted that the Doping Control Officer (DCO) had sabotaged the Athlete’s sample by injecting rhEPO during the out-of-competition doping test in her apartment in October 2015. Also the Athlete claimed that departures occurred of the ISTI during the out-of-competition doping test.

Both CITA and the IAAF rejected the hypothesis of sabotage and contended that the samples collected in 2012 in 2013 in the Athlete’s Biological Passport profile were suspicious and reason to conduct doping tests for rhEPO. They argued that no departures of the ISTI caused her positive test result and the analysis of the Athlete’s sample in the Laboratory was valid.

The Panel finds that the Athlete did not produce evidence that the DCO spiked the Athlete’s samples and determindes that there was no departure of the WADA International Standards.
In conclusion, the Panel finds that when assessing the evidence in relation to the planning of the test, the practical difficulties encountered when spiking samples with rhEPO, whether the samples were left unattended by the Athlete and whether the testimony of the DCO is credible it appears more likely than not that the Athlete committed an Anti-Doping Rule Violation compared to the scenario that the samples were spiked by the DCO.

Therefore the Court of Arbitration for Sport decides on 27 April 2017 that:

1.) The appeal filed by Ms Lisa Christina Nemec on 18 February 2016 is dismissed.

2.) The decision rendered by the Disciplinary Panel of the Croatian Institute for Toxicology and Anti-Doping (CITA) on 1 February 2016 is upheld.

3.) The costs of the arbitration, to be determined by the CAS Court Office, shall be borne by Ms Lisa Christina Nemec.

4.) Ms Lisa Christina Nemec is ordered to pay CHF 1,000.00 (one thousand Swiss Francs) to the Croatian Institute for Toxicology and Anti-Doping (CITA) and a further CHF 1,000.00 (one thousand Swiss Francs) to the International Association of Athletics Federations (IAAF) as a contribution towards their legal fees and expenses. Ms Lisa Christina Nemec shall bear her own legal fees and expenses.

5.) All other motions or prayers for relief are dismissed.

Original document

Parameters

Legal Source
CAS Appeal Awards
Date
27 April 2017
Arbitrator
Benz, Jeffrey G.
Haas, Ulrich
Manninen, Markus
Original Source
Court of Arbitration for Sport (CAS)
Country
Croatia
Language
English
ADRV
Adverse Analytical Finding / presence
Legal Terms
Burdens and standards of proof
Case law / jurisprudence
Circumstantial evidence
International Standard for Testing and Investigations (ISTI)
Rules & regulations International Sports Federations
Rules & regulations National Sports Organisations & National Anti-Doping Organisations
WADA Code, Guidelines, Protocols, Rules & Regulations
Sport/IFs
Athletics (WA) - World Athletics
Other organisations
Antidoping Hrvatskog zavoda za javno zdravstvo (HZjZ-a) - Anti-Doping Division Croatian Institute of Public Health (CIPH Anti-Doping)
Hrvatski zavod za toksikologiju i antidoping (Antidoping HZTA) - Croatian Institute for Toxicology and Anti-Doping (CITA)
International Association of Athletics Federations (IAAF)
Laboratories
Seibersdorf, Austria: Seibersdorf Labor GmbH Doping Control Laboratory
Analytical aspects
B sample analysis
DNA analysis
Reliability of the testing method / testing result
Doping classes
S2. Peptide Hormones, Growth Factors
Substances
Erythropoietin (EPO)
Various
Athlete Biological Passport (ABP)
Doping control
Polygraph examination
Sample collection procedure
Spiking / sabotage
Document type
Pdf file
Date generated
11 May 2017
Date of last modification
5 July 2023
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  • Education
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  • Statistics
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  • Language
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  • ADRV
  • Legal Terms
  • Sport/IFs
  • Other organisations
  • Laboratories
  • Analytical aspects
  • Doping classes
  • Substances
  • Medical terms
  • Various
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  • Document category
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