CAS 2009/A/1752 Vadim Devyatovskiy v/ IOC
CAS 2009/A/1753 Ivan Tsikhan v/ IOC
CAS 2009/A/1752 Vadim Devyatovskiy v. International Olympic Committee (IOC) & CAS 2009/A/1753 Ivan Tsikhan v. IOC
Related cases:
- IOC 2008 IOC vs Ivan Tsikhan
December 11, 2008 - 2008 IOC vs Vadim Devyatovskiy
December 11, 2008 - IOC 2012 IOC vs Ivan Tsikhan
December 5, 2012 - CAS 2015_A_3977 WADA vs Belarus Athletic Federation & Vadim Devyatovskiy
March 31, 2016
- Athletics (hammer throw)
- Doping (testosterone)
- Substantial change regarding the allocation of the burden of proof in the IOC ADR 2008
- Resolution of conflicts on the basis of the tempus regit actum and contra preferentem principles
- Interruption of the automated testing procedure and transparency of the testing process
- Refusal to disclose validation studies and consequences on the burden of proof of the athletes
- Strict observation of the mandatory safeguards and strict liability for doping offences
1. The allocation of the burden of proof and the standard of proof to be applied have essential significance in doping cases. In its adoption of the IOC ADR 2008, the IOC chose to deviate from the language of Art. 3.2.1 of the WADC 2003. It amended the language of previously governing Art. 3.2.1 in order to reverse the burden of proof from the IOC to the athlete to show that the departure from the ISL could have reasonably caused the Adverse Analytical Finding. Accordingly, in addition to being charged with the burden of showing that a departure from the ISL has occurred as required under the WADC 2003, the athlete is now forced to bear the burden of proof to establish that the departure had not only occurred, but also that it had reasonably caused the Adverse Analytical Finding. This is a substantial change from the burden of proving the mere fact of a departure from the ISL.
2. The WADC 2003 and the IOC ADR 2008 do not foresee how the conflict in the contradictory wording of their provisions is to be resolved. The doctrine that an accused party can be tried and sanctioned only under the laws which governed at the time the offending act was committed, the exception being the principle of lex mitior, is a fundamental principle of law which is accepted by the majority of national jurisdictions, including Switzerland. Contradictions in the applicable rules must be interpreted contra proferentem, i.e., to the detriment of the promulgator of the conflicting or contradictory provision. This view is supported by international judicial practice.
3. The purpose of the relevant procedural safeguards set down in the ISL and the Technical Documents is (1) to heighten caution and care in the movements of the analysts while conducting the analysis and (2) to provide the athlete the documentary basis upon which he can ensure the correctness and accuracy of the testing procedure. If a Technical Document provides that, with regard to aliquots, the Laboratory Internal Chain of Custody should record all movement from preparation through analysis, the interruption of the automated testing procedure of the instrument for the purpose of manually exchanging aliquot fractions in a given slot of the auto-sampler constitutes a “movement” which needs to be recorded in the appropriate document. This directive is obviously intended to provide a procedural safeguard ensuring the accountability and control of the run. By “cutting and pasting”, by manually re-constructing the original Sequence List in such a manner that its deviation from the original would not be noticed, the laboratory analyst violates a fundamental safeguard which ensures transparency to the testing process and its authenticity.
4. Although a laboratory must be given certain discretion in the disclosure of its validation studies required for accreditation by WADA, in case where the athletes have focused their request for information upon a specific item of reference and the laboratory chose not to furnish the specific information requested, it cannot place the athletes at a procedural disadvantage in bearing their burden of proof, where the evidence requested is critical to their defence and the laboratory remains in exclusive control of its disclosure.
5. Doping is an offence which requires the application of strict rules. If an athlete is to be sanctioned solely on the basis of the provable presence of a prohibited substance in his body, it is his or her fundamental right to know that the Testing Authority, including the WADA-accredited laboratory working with it, has strictly observed the mandatory safeguards. Strict application of the rules is the quid pro quo for the imposition of a regime of strict liability for doping offenses.
The Belarussian Athletes Vadim Devyatovskiy and Ivan Tsikhan participated in the Men’s Hammer Throw Competition at the Beijing 2008 Olympic Games.
In August 2008 the IOC reported anti-doping rule violations against these two Athletes after their A and B samples tested positive for the prohibited substance Testosterone, with a T/E ration above the WADA threshold.
Consequently the IOC decided on 11 December 2008 to disqualify the two Athletes and their results obtained at the Men's Hammer Throw event.
Hereafter in December 2008 both Athletes appealed the IOC decisions with the Court of Arbitration for Sport (CAS). They requested the Panel to set aside the Appealed Decisions and to reverse the disqualification of their results.
The Athlete's alleged that the IOC Disciplinary Commission was wrong to hold that the IOC had established to the requisite standard of comfortable satisfaction under the IOC ADR 2008 that there was the presence of Testosterone in each Athlete’s body (a) at a T/E ratio threshold above 4.1; and (b) with GC/C/IRMS results demonstrating exogenous origin.
The IOC contended that the Laboratory’s analyses are clear and an endogenous production of Testosterone can be excluded. It has been shown that the Testosterone found in the bodily samples of the Athletes was of exogenous origin as the T/E ratios were more or less twice as high as the authorized threshold.
Further the IOC asserted that the Athletes failed to provide plausible explanations for the adverse analytical findings. They focus on some alleged departures from the ISLs and raise technical issues in a desperate attempt to show that the analyses performed by the WADA-accredited Laboratory in Beijing are not valid and that technical failures could have caused the adverse analytical findings.
Following assessment of the evidence and the issues raised by the parties the Panel established violations of the Laboratory's documentation and reporting requirements of ISL 5.2.6.1 and 5.2.6.3 in conjunction with WADA Technical Document TD2003LCOC, in addition to a violation of the “Different Analysts” rule set out in ISL 4.3.4.3.2.2.
The Panel deems that the transparency of the test analysis is denied to the Athletes. Verification of the test results is not possible. In the case at hand, transparency and verification of the testing process represent fundamental rights of the athlete.
In the view of the Panel these violations of the ISL of which, independently of each other, justifies the annulment of the test results. However the Panel wishes to emphasize that its decision should not be interpreted as an exoneration of the Athletes.
The Panel is not declaring that the Athletes did not, prior to the competition, administer exogenous Testosterone. The Panel is merely concluding that the IOC has not been able to prove, to the comfortable satisfaction of the Panel, diligent adherence to the rules set out in the International Standard for Laboratories and the relevant Technical Documents.
Therefore the Court of Arbitration for Sport decides on 10 June 2010:
1.) The appeals filed by Vadim Devyatovskiy and Ivan Tsikhan are upheld.
2.) The Decisions of the IOC Disciplinary Commission dated 11 December 2008 regarding the Athletes Vadim Devyatovskiy and Ivan Tsikhan are set aside.
3.) The medals and diplomas awarded to the Appellants are to be returned to them.
4.) All other motions or prayers for relief are dismissed.
