CAS 2017/A/4973 Chunhong Liu v. International Olympic Committee
(IOC)
Related case:
IOC 2016 IOC vs Chunhong Liu
January 10, 2017
Weightlifting
Doping (Growth Hormone Releasing Peptide (GHRP-2) and its metabolites; Sibutramine)
Prohibited Substances listed as part of a group
Burden of proof regarding sample analysis
Re-analysis of samples under Article 6.5 IOC ADR
Legality of period of time foreseen for re-analysis
1. Even without being expressly listed by name in the Prohibited List, a substance (e.g. Growth Hormone Releasing Peptide (GHRP-2)) may be covered by the respective list as belonging to a group of listed Prohibited Substances, e.g. “2. Growth Hormone (hGH)”. This is notwithstanding the fact that in a later version of the Prohibited List a more precise specification of the same group of Prohibited Substances, e.g. “GH-Releasing Peptides (GHRPs)”, is added and that version of the Prohibited List explicitly identifies certain substances as examples for the group in question.
2. Under the WADA Code (and the respective Anti-Doping Rules issued by the IOC for the 2008 Olympic Games (IOC ADR)) WADA-accredited laboratories are presumed to have conducted sample analysis and custodial procedures in accordance with the International Standard for Laboratories (ISL). The mere allegation by an athlete that departures of whatever kind might have occurred does not meet the standard of proof necessary under the WADA Code and the respective IOC ADR to rebut the above presumption.
3. It is the main function of the re-analysis of samples foreseen under Article 6.5 IOC ADR to search for Prohibited Substances, which were prohibited at the time of the sample collection, with improved analytical means at a later stage. Accordingly, the mere fact that only on the occasion of the re-analysis, but not on the occasion of the initial analysis, Prohibited Substances were detected, does not constitute a contradiction between the respective results which would justify to disregard the results of the re-analysis.
4. The limitation of 8 (eight) years provided for in Article 6.5 IOC ADR for the re-analysis of samples – which coincides with the 8-year statute of limitation set forth in Article 17 of the WADA Code 2003 – is not in violation of legal principles or Swiss public policy. The aim of having the option for re-analysis, i.e. to make use of the improvements of the analytical devices and methods, requires sufficient time which is needed for making new methods operational.
Ms. Chunhong Lia is a Chinese Athlete competing in the Women’s 69 kg weightlifting event at the Beijing 2008 Olympic Games.
In 2016, the IOC decided to perform further analyses on certain samples collected during the 2008 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2008.
In July 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after her 2008 A and B samples tested positive for the prohibited Growth Hormone Releasing Peptide substance Pralmorelin (GHRP-2) and the substance sibutramine.
The IOC Disciplinary Commission ruled that the Athlete has committed an anti-doping rule violation and decided on 10 January 2017 to disqualify the Athlete's results obtained to the Beijing 2008 Olympic Games and ordered her to return her silver medal, pins and diploma obtained thereat.
Hereafter in January 2017 the Athlete appealed the decision of the IOC Disciplinary Commission with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel to repeal the IOC decision of 10 January 2017 or to impose a less harsh disciplinary sanction.
The Athlete did not challenge the results of the analysis. She rather claimed that (1) the substance GHRP-2 was not listed on the applicable 2008 Prohibited List, (2) there had been no consideration of the inconsistency of the results found in two different laboratories, (3) the re-analysis after almost 8 years would be against principles of law, and (4) the applicable WADA Code did not provide for the re-analysis of samples.
The Sole Arbitrator concludes that the Athlete committed an anti-doping rule violation under Article 2.1 of the IOC ADR. The substance DHRP-2 was a prohibited substance pursuant to the applicable 2008 Prohibited List and the IOC has established to the comfortable satisfaction of the Sole Arbitrator that an ADRV had occurred.
The mere allegation that departures of whatever kind might have occurred does not meet the standard of proof necessary under Article 3.2.1 IOC ADR to rebut the presumption that WADA-accredited laboratories have conducted the sample analysis and custodial procedures in accordance with the ISL.
The Sole Arbitrator does not find any inconsistency or even contradiction between the analytical findings obtained in 2008 and 2016. Both findings are the results of the analytical instruments and methodologies available at the time, respectively.
The re-analysis of the Athlete’s sample which was conducted in July 2016 took place within the 8-year period from the sample collection on 13 August 2008, provided for in Article 6.5 IOC ADR. The period of 8 years coincides with the 8-year statute of limitation set forth in Article 17 of the WADA Code 2003.
Therefore the Court of Arbitration for Sport decides on 31 July 2017 that:
1.) The appeal filed by Ms. Chunhong Liu on 29 March 2017 against the decision rendered by the Disciplinary Commission of the IOC on 10 January 2017 is dismissed.
2.) The decision rendered by the Disciplinary Commission of the IOC on 10 January 2017 is confirmed.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.
