CAS anti-doping Division (OG PyeongChang) AD 18/003 World Curling Federation (WCF) v. Aleksandr Krushelnickii
CAS OG_AD_2018_03 IOC vs Aleksandr Krushelnitckii - Partial Award
February 22, 2018
- Doping (meldonium)
- Burden and standard of proof
- Admissibility of polygraph test results and expert opinion in relation to such results
- Principles applicable to the source of the prohibited substance
- Establishment of the source of the prohibited substance as proof of absence of intent
1. According to Article 3.1 of the WCF Anti-Doping Rules (ADR), WCF shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether WCF has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made. The standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where these anti-doping rules place the burden of proof upon the athlete alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified acts or circumstances, the standard of proof shall be by a balance of probability.
2. Where there is no challenge to the conduct of a polygraph test or the expertise of the tester, the evidence should be admitted and taken into account knowing that it rises no higher than adding some force to the athlete’s declaration of innocence but not supplanting the need to carefully consider all other evidence in the case in determining whether the burden of proof has been discharged.
3. It is for an athlete to establish the source of the prohibited substance, not for the anti-doping organization to prove an alternative source to that contended for by the athlete. An athlete has to do so on the balance of probabilities. Evidence establishing that a scenario is possible is not enough to establish the origin of the prohibited substance. An athlete must do so with evidence, not speculation. It is insufficient for an athlete to deny deliberate ingestion of a prohibited substance and, accordingly, to assert that there must be an innocent explanation for its presence in his system. If there are two competing explanations for the presence of the prohibited substance, the rejection of one does not oblige (though it may permit) the hearing body to opt for the other. The conclusion that the other is not proven is always available to the hearing body. In such a situation there are three choices, not just two, for the hearing body.
4. Establishment of the source of the prohibited substance in a sample is not mandated in order to prove an absence of intent. However, the likelihood of finding lack of intent in the absence of proof of source would be extremely rare, and if an athlete cannot prove source it leaves the narrowest of corridors through which the athlete must pass to discharge the burden which lies upon him.
5. The threshold for establishing sabotage as the reason for an ADRV is very high. Any proposed sabotage theory must be supported by reliable and credible evidence, not speculation or assertions of absence of motive. It is insufficient for an athlete to simply raise a hypothesis of sabotage without corroborating evidence and then to simply declare that sabotage is the only possible explanation.
Mr Aleksandr Krushelnitckii is a Russian Athlete competing in the Curling events at the 2018 PyeongChang Olympic Winter Games.
On 18 February 2018 the International Olympic Committee (IOC) reported an anti-doping rule violation against the Athlete after his A and B samples - provided on 12 and 13 February 2018 - tested positive for the prohibited susbstance Meldonium.
Following notification the Athlete accepted the test results and requested to be heard for the CAS Anti-Doping Division Panel (CAS ADD). The World Curling Federation (WCF) requested the Panel to order a provisional suspension beyond the period of the Games.
In a Partial Award the CAS ADD decided on 22 February 2018 to exclude the Athlete from the 2018 PyeongChang Olympic Winter Games and to disqualify his obtained results in the Mixed Doubles Curling event at the Olympic Winter Games.
Hereafter the WCF requested the Sole Arbitrator to impose a 4 year period of ineligibility on the Athlete for committing an anti-doping rule violation. The Athlete denied the intentional use of the substance and requested for a reduced sanction.
Supported by expert witnesses the Athlete argued that the only possible explanation for the presence of Meldonium in his urine samples is that the Meldonium was somehow added into his food or drink after he arrived in the Olympic Village, without his knowledge or involvement. So likely he was the victim of sabotage and should not be suspended at all in accordance with Article 10.4 of the WCF ADR.
In this procedure the Sole Arbitrator addressed the following issues:
- As it has been established that an ADRV has occurred under Article 2.1 WCF ADR, has the Athlete established that the ADRV was not intentional under Article 10.2.1.1?
- Has the athlete established that he bears no fault or negligence under Article 10.4 WCF ADR?
- Has the Athlete established that he bears no significant fault or negligence under Article 10.5.1 WCF ADR?
- Has the athlete established that the mandatory period of ineligibility of four years should be reduced by reason of Prompt Admission under article 10.6.3, or by reason of the principle of proportionality?
- What is the quantum of any sanction that should be imposed?
- What is the commencement date of any period of ineligibility pursuant to Article 10.11 WCF ADR?
The Sole Arbitrator concludes:
- The Athlete has not established that the ADRV was not intentional under Article 10.2.1 WCF ADR.
- The Athlete has not established the source of the Prohibited Substance and is not entitled to elimination or reduction of the period of ineligibility under Article 10.4 or Article 10.5 WCF ADR.
- The Athlete has not established an entitlement to reduction of a period of ineligibility under Article 10.6.3 WCF ADR.
- The Athlete has not established that there should be any reduction in a period of ineligibility on the basis of the proportionality principle.
Therefore the CAS Anti-doping Division decides on 3 December 2018:
1.) The application of the World Curling Federation is granted and therefore, Mr Aleksandr Krushelnickii is sanctioned with a period of ineligibility of four years commencing on the date of his voluntary provisional suspension (i.e. 12 February 2018).
2.) The present award is rendered free of charge.
4.) All other or further motions or prayers for relief are dismissed.