CAS 2017/A/5112 Arsan Arashov v. International Tennis Federation (ITF)
Related case:
ITF 2016 ITF vs Arsan Arashov
April 10, 2017
Tennis
Doping (meldonium)
Strict liability under art. 2.1 TADP
Invalidation of an AAF based on a departure from the doping control procedure
Mechanism of proof by an athlete of his/her absence of intent to commit an ADRV
Reduction of a sanction based on proportionality
1. The rule set forth in art. 2.1 of the Tennis Anti-Doping Programme (TADP) is a strict liability offence. The question of how the Prohibited Substance entered one athlete’s sample is not relevant to the commission of an anti-doping rule violation (ADRV) and the question of one athlete’s lack of intent, fault, negligence or knowledge is irrelevant to a charge that an ADRV has been committed. Under such strict liability regime, an ADRV is established where there is an Adverse Analytical Finding (AAF) in respect of one athlete’s A sample and the analysis of said player’s B sample confirms the presence of the Prohibited Substance found in the A sample.
2. An athlete seeking to have an AAF invalidated on the basis of a departure from the International Standards for Laboratories, other International Standard, or other anti-doping rule or policy set out in the World Anti‐Doping Code (WADA Code) or the TADP must establish that there was a departure from a mandatory requirement and that it could reasonably have caused the AAF. Deviations from applicable standards do not per se invalidate an AAF. One athlete must satisfy both requirements in order to have the burden of proof shifted to the counter-party.
3. An athlete seeking to discharge the presumption of intent does not necessarily have to show exactly how the Prohibited Substance entered his sample. However, if unsuccessful, it will be very difficult for the athlete to discharge the presumption of intent, as the factual basis on which an adjudicating body can base such a conclusion will be absent. This has been recognised by CAS considering the question of No (Significant) Fault or Negligence under previous versions of the WADA Code where proof of the source of the Prohibited Substance was not a strict requirement. There may be circumstances in which an adjudicating body can be satisfied that the ADRV was unintentional, despite the source of the Prohibited Substance not being established, where it finds, for example, the testimony of the athlete credible, that such evidence is corroborated by experts and other relevant individuals, and where the scenario submitted by the athlete appears to be the most plausible.
4. That proportionality may require a reduction of a sentence below the stipulated minimum is recognised under Swiss law and is a widely generally accepted principle of sports law. The cases which necessitate the exercise of this flexibility are rare. Only in the event that the outcome would violate the principle of proportionality such that it would constitute a breach of public policy should a tribunal depart from the clear wording of a text.
On 10 April 2017 the ITF Anti-Doping Tribunal decided to impose a 2 year period of ineligibility on the minor Kazakh player Arsan Arashov after his A and B samples tested positive for the prohibited substance Meldonium.
The Tribunal was unable to accept the Athlete’s evidence and assertions and concludes that he committed the anti-doping rule violation. Notwithstanding the Athlete’s firm denials, the Tribunal ruled that he did in fact ingest Meldonium prior to the sample collection, he failed to assist the Tribunal with helpful and accurate evidence and failed to establish that the violation was not intentional.
Hereafter in April 2017 the Athlete appealed the ITF decision of 10 April 2017 with the Court of Arbitration for Sport (CAS).
The Athlete argued that he did not knowingly ingested Meldonium and that departures occurred of the ISTI and ISL. He assumed that Meldonium was present in the water that he consumed in the waiting area of the Doping Control Station or in the sample collection kit. The ITF contested that the Athlete's hypotheses are ''pure speculation" and that the most likely explanation for the presence of Meldonium in the Athlete's sample is that he “actively ingested” it.
The Panel considered the Athlete’s arguments and allegations and finds that nothing provided by the Athlete displaces the presumption that the Anti-Doping Rule Violation was intentional.
Due to the Athlete had not rebutted the presumption of intent he therefore could neither benefit from any reduction in the period of ineligibility on the basis of No Fault or Negligence or No Significant Fault or Negligence. Though the Athlete is a Minor, that alone cannot justify a reduction on the basis of proportonality.
Therefore the Court of Arbitration for Sport decides on 21 November 2017 that:
1.) The Appeal filed on 19 May 2017 by Mr. Arsan Arashov against the decision rendered by the International Tennis Federation Independent Anti-Doping Tribunal on 10 April 2017 is dismissed.
2.) The decision rendered by the International Tennis Federation Independent Anti Doping Tribunal on 10 April 2017 is confirmed.
3.) This award is pronounced without costs, except for the Court Office fee of one thousand Swiss Francs (CHF 1,000), which was paid by Mr. Arsan Arshov and is retained by the CAS.
4.) Each party shall bear its own legal and other costs.
5.) All other motions or prayers for relief are dismissed.
