CAS 2016/A/4840 International Skating Union (ISU) v. Alexandra Malkova, Russian Skating Union (RSU) & Russian Anti-Doping Agency (RUSADA)
Skating (short track speed skating)
Doping (tuaminoheptane)
Consumption out-of-competition of substance prohibited in-competition only
Assessment of the level of fault
Principle of equal treatment
Threshold for review by CAS panel of sanction imposed in first instance
1. The taking out-of-competition of a substance prohibited in-competition only does not constitute itself doping or illicit behaviour. The violation is not the ingestion of the substance, but the participation in competition while the substance (or its metabolites) is still in the athlete’s body. The illicit behaviour lies in the fact that the athlete returned to competition too early, or at least earlier than when the substance taken out of competition had cleared his/her system for drug testing purposes in competition.
2. As regards the level of fault by the athlete it has to be taken into account that requiring from an athlete in such cases not to ingest the substance at all would lead to enlarging the list of substances prohibited at all times to include the substances contained in the in-competition list. It follows from this that if the substance forbidden in-competition only is taken out-of-competition, the range of sanctions applicable to the athlete is from a reprimand to 16 months (because, in principle, no significant fault can be attributed to the athlete). However, exceptions to this general rule have to be made in cases where an athlete could easily have made the link between the intake of the substance and the risks being run, e.g. where the product is a medicine designed for a therapeutic purpose. This is because in this scenario, a particular danger arises that calls for a higher duty of care, as medicines are known to have prohibited substances in them.
3. Whereas the principle of equal treatment is not a circumstance envisaged in the definition of No Significant Fault as a circumstance to be taken into account in the assessment of its degree and the appropriate sanction consequent upon it, the principle and rationale for it is generally accepted as part of the lex ludica.
4. When reviewing the sanction imposed by a tribunal of first instance the sanction imposed has to be “grossly disproportionate” for a CAS panel to substitute it by a new sanction rather than for it to show deference to the expertise of the body from whom an appeal is brought. The threshold for review is the same whether the sanction imposed by the tribunal of first instance is too high or too low.
On 29 July 2016 the Russian Anti-Doping Agency (RUSADA) decided to impose a 3 month period of ineligibility on the short track speed skater Alexandra Malkova (18) after her sample tested positive for the prohibited substance Tuaminoheptane. The decision was adopted by the Russian Skating Union (RSU) on 7 September 2016.
In this case the Athlete admitted the violation and explained that she had used prescribed medication Rinofluimucil in the out-of-competition period as treatment for her actute sinusitis and without intention to enhance het performance. The Athlete knew that the substance in her medication was on the prohibited list and she stopped using this medication 2 weeks before the competition.
In October 2016 the International Skating Union (ISU) appealed the decisions of RUSADA and RSU with the Court of Arbitration for Sport (CAS). The ISU argued that the Athlete failed to establish No Significant Fault or Negligence and that the imposed sanction was disproportionately low.
RUSADA contended that the imposed sanction was proportional and the prescribed medication was used out-of-competition while the Athlete had used this medication before and never tested positive.
She is a young Athlete; lacked the anti-doping education provided to the national team; and could not be expected to know the precise excretion time of the prohibited substance.
The Panel accepts the arguments in favour of the young Athlete and considers that there are grounds to reduce the standard sanction of 2 years. The Panel holds that RUSADA’s justification to impose a sanction of 3 months for the inadvertent use of the Tuaminoheptane should not be taken for the future as providing appropriate guidance in similar cases.
Therefore the Court of Arbitration for Sport decides on 6 November 2017:
1.) The appeal filed by the International Skating Union on 28 October 2016 against the decision rendered by RUSADA on 29 July 2016 and the decision rendered by the Executive Committee of the Russian Skating Union on 7 September 2016, is upheld.
2.) The decision rendered by RUSADA on 29 July 2016 and the decision rendered by the Executive Committee of the Russian Skating Union on 7 September 2016, are set aside.
3.) Ms Malkova is sanctioned by 20 months ineligibility with effect from 26 April 2016.
4.) All competitive results obtained by Ms Malkova between 17 March 2016 and the beginning of her period of ineligibility shall be disqualified, with all of the consequences including forfeiture of any medals, points and prizes.
5.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne by RUSADA and RSU.
6.) RUSADA and RSU are ordered to pay each to ISU an amount of CHF 2,500 (two thousand five hundred Swiss francs) as a contribution towards its legal fees and other expenses incurred in connection with these arbitration proceedings. Otherwise each party shall bear its own costs and other expenses incurred in connection with this arbitration.
7.) All other motions or prayers for relief are dismissed.
