CAS 2014/A/3488 World Anti-Doping Agency (WADA) v. Juha Lallukka
- Cross-country skiing
- Doping (human growth hormone – hGH)
- Admissibility of new documents
- Role of a judging panel faced with a conflict of expert evidence
- Lack of evidence regarding external factors apt to lead to a false positive
- Inapplicability of the principle of non-retroactivity to evidence
- Absence of aggravating factor leading to a higher sanction
- Starting date for disqualification
1. If new documents filed by a party were only made available to that party after the final deadline for the submission of its appeal brief, are at the core of essential questions raised in these proceedings and no objection was made by the other party to their production as new evidence, they must be admitted on record based on Article R56 of the Code, as the circumstances were exceptional and the documents were of relevance for the issue of the present decision.
2. It is not the function of a judging panel to step into the shoes of scientific experts, or to seek to repeat the exercises carried out by those experts. Any Tribunal faced with a conflict of expert evidence must approach the evidence with care and with an awareness as to its lack of scientific expertise in the area under examination. Bearing in mind the prescribed provisions as to burden and standard of proof, the role of a judging panel in applying the applicable standards as an appellate body is to determine whether the experts’ evaluations are soundly based on the facts, and whether the experts consequent appreciation of the conclusion be derived from those facts is equally sound. In carrying out this task the judging panel is bound to form a view as to which of possibly competing expert views it considers to be more persuasive.
3. If an athlete has not submitted any evidence indicating that his/her ratios values could have been affected by individual circumstances (such as extensive exercise, stress, altitude, age, personal biological profile, etc.), nor has offered any explanation regarding the difference between his/her ratio values at two different dates, the athlete is not in a position to prove according to the standard of comfortable satisfaction that external factors may have had an impact on his/her ratio values, which could have led to a false positive.
4. Decision limits are not rules as such, in the sense of defining what an anti-doping violation is. They are described as “Guidelines”, and they merely constitute figures upon which reliance may be placed by means of evidence to determine whether an anti-doping violation has or has not occurred in application of the rules. Accordingly, reliance on these guidelines may not be said to amount to a retroactive application of legal rule, as the rule against retroactivity does not apply to evidentiary matters.
5. The submission according to which the administration of exogenous hGH constitutes an aggravating factor has no foundation in the applicable anti-doping rules, which do not differentiate between various forms of first offence or suggest that doping with hGH attracts ratione materiae a higher sanction than the presence of another prohibited substance. It is the circumstances of the offence, not the offence itself which may aggravate.
6. Fairness requires that an athlete’s results should not be disqualified, including his event medals, his points and prizes, if any, that were obtained in respect to a period during which he was allowed to compete
On 19 June 2013 the FINADA Supervisory Board ruled that the Athlete Juha Lallukka had not committed an anti-doping rule violation following a challenged positive test for the prohibited substance Human Growth hormone (hGH). After an appeal filed by FINADA the Finnish Sports Arbitration Board decided on 5 December to uphold this Decision.
Hereafter the World Anti-Doping Agency (WADA) appealed the Decision of 5 December with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a sanction on the Athlete between 2 and 4 years.
WADA contended that the Athlete’s values recorded in September 2011 were so high that they constitute overwhelming evidence of administration of exogenous hGH, irrespective of whether the decision limits as set in WADA’s Guidelines are reliable or not.
Further WADA asserted that two independent statistical studies had established:
a) that the decision limits as set by the 2014 hGH Guidelines are reliable; and
b) that the Athlete’s assay ratios measured in the A- and B-samples 441131 can only be explained by the use of exogenous hGH.
The main issues to be resolved by the Panel in deciding this dispute are the following:
- A.) Has an anti-doping rule violation been committed?
- B.) If an anti-doping rule violation has been committed, what is the sanction?
Following assessment of the evidence the Panel is comfortably satisfied that the analytical values of assay ratios relating to the Athlete’s samples reveal the presence of recombinant hGH. The Athlete has not advanced and established any valid reason for the Panel to find differently.
Furthermore, it is undisputed that exogenous hGH is a non-specified substance included in the category S2(a) on the 2011 WADA Prohibited List. Exogenous hGH is prohibited both in- and outside of competition.
Consequently and in conclusion, the Panel considers that an anti-doping rule violation occurred. The Panel considers it appropriate to declare that the Athlete ineligible for a period of two years.
Therefore the Court of Arbitration for Sport decides on 20 November 2014 that:
1.) The appeal filed by WADA against the decision issued on 5 December 2013 by the Finnish Sports Arbitration Board is partially upheld.
2.) The decision issued on 5 December 2013 by the Finnish Sports Arbitration Board is annulled.
3.) Mr Juha Lallukka is found guilty of an anti-doping rule violation and is declared ineligible for a period of two years running from the notification of the present award. The period of provisional ineligibility of 602 days served by Mr Juha Lallukka between 27 October 2011 and 19 June 2013 is credited against the total period of ineligibility to be served.
4.) Mr Juha Lallukka’s results, including his event medals, his points and prizes, obtained through the commencement of his period of provisional ineligibility (27 October 2011) and in the period from 19 June 2013 to the date of the notification of the present award are not forfeited.
5.) (…)
6.) (…)
7.) All other motions or prayers for relief are dismissed.
