CAS 2013/A/3050 World Anti-Doping Agency (WADA) v. Andrey Krylov & Fédération Internationale de Gymnastique (FIG)
Gymnastics (tumbling)
Doping (methylhexaneamine; 4-phenylpiracetam)
Elimination or reduction of the period of ineligibility
Absence of intent to enhance sport performance
Negligence
Mitigating factors
Determination of the exact period of ineligibility
1. In order to benefit from the reduction or elimination of the sanction for specified substances, the athlete has to provide corroborating evidence, in addition to his or her word, which establish the absence of intent to enhance sport performance or mask the use of a performance enhancing substance. Such evidence has to be provided “to the comfortable satisfaction” of the hearing body, i.e. to a level greater than the mere balance of probabilities, but lower than proof beyond a reasonable doubt. For non-specified substances, on the other hand, the athlete has to establish, by balance of probabilities, that he bears No Significant Fault or Negligence, i.e. that his or her fault or negligence, when viewed in the totality of the circumstances, was not significant in relationship to the anti-doping rule violation. As a common condition for specified and non-specified substances, the athlete has to establish how the prohibited substance entered his or her body. Such evidence has to be given by the athlete by balance of probabilities, that is to say, that the occurrence of the circumstance on which it relies is more probable than its non-occurrence.
2. In connection with proving the absence of intent to enhance sport performance, (i) the evidentiary standard is higher than the mere balance of probabilities; (ii) the “corroborating evidence” cannot be limited to the athlete’s words, and (iii) no ex post evaluations of the effect of the prohibited substance on the sporting performance are allowed.
3. An athlete is highly negligent when failing to consult a doctor, or even make any kind of control, before the use of a product he has bought. He is also negligent when using a product for a purpose for which it was not prescribed.
4. Ignorance of the anti-doping provisions, lack of precedents or unsupportive attitude and lack of involvement of the national federation in the discipline in which the athlete competes are not mitigating factors that can justify the application of a reduced sanction.
5. Any period of provisional suspension is to be credited against the total period of ineligibility imposed. Also, any period of suspension imposed and already served on the basis of a previous disciplinary decision, even if subsequently set aside, is to be credited.
The Fédération Internationale de Gymnastique (FIG) has reported an anti-doping rule violation against Andrey Krylov (the Athlete) after his sample tested positive for the prohibited substances methylhexaneamine (dimethylpentylamine) and 4-phenylpiracetam (carphedon).
The FIG notified the Athlete and ordered a provisional suspension. The Athlete filed a statement in his defence and was heard for the FIG Disciplinary Commission.
The Athlete stated before competition he had purchased and used Phenotropik and Geranium essential oil. He did not research the ingredients of the medication in detail before using it and did not consult his sport doctor or sport coach.
On 8 November 2012 The FIG Disciplinary Commission decided to impose a 1 year period of ineligibility on the Athlete and to cancel the results achieved at the competition.
Hereafter in January 2013 WADA appealed the FIG decision with CAS.
After hearing the positions of the parties, the CAS Panel finds that the explanations offered in the FIG decision, and/or mentioned in the Athlete’s statement in the FIG disciplinary proceedings, to justify the application of a sanction lower than the standard one are irrelevant and cannot be accepted. In the same way the Panel cannot accept the additional indications offered by FIG to the Panel.
Therefore the Court of Arbitration for Sport decides on 10 June 2013 that:
1.) The appeal filed by the World Anti-Doping Agency (WADA) on 7 January 2013 against the decision taken by the Disciplinary Commission of the Fédération Internationale de Gymnastique (FIG) on 8 November 2012 is upheld.
2.) The decision taken by the Disciplinary Commission of the Fédération Internationale de Gymnastique (FIG) on 8 November 2012 is set aside.
3.) A suspension of 2 (two) years is imposed on Mr Andrey Krylov commencing on the date of this award, with credit given for any period of suspension at that time already served.
4.) All individual competitive results obtained by Mr Audrey Krylov from 8 September 2012 through the commencement of the period of ineligibility shall be disqualified with all resulting consequences, including forfeiture of any medals, points and prizes.
5.) This award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by the World Anti-Doping Agency (WADA), which is retained by the CAS,
6.) Mr Andrey Krylov and the Fédération Internationale de Gymnastique (FIG) are ordered to pay an amount of CHF 2,000 (two thousand Swiss Francs) each to the World Anti-Doping Agency (WADA) as a contribution towards the costs, legal fees and other expenses, it has sustained in connection with these arbitration proceedings.
7.) All other prayers for relief are dismissed.
