CAS 2017/A/4944 Yulia Naumova v. International Military Sports Council (CISM) & World Anti-Doping Agency (WADA)
Related case:
CISM 2016 CISM vs Iulia Naumova
November 30, 2016
Military Penthatlon
Doping (bromantan)
Balance of probabilities
Duty to establish the source of the prohibited substance and intent
1. The standard of balance of probabilities requires the athlete to convince the adjudicating body that the occurrence of the circumstances on which the athlete relies is more probable than their non-occurrence.
2. To establish the origin of the prohibited substance it is not sufficient for an athlete merely to protest his/her innocence and suggest that the substance must have entered his/her body inadvertently from some supplement, medicine or other product which the athlete was taking at the relevant time. Rather, an athlete must adduce concrete evidence to demonstrate that a particular supplement, medication or other product that the athlete took contained the substance in question. In order to establish the origin of a prohibited substance by the required balance of probability, an athlete must provide actual evidence as opposed to mere speculation. If the athlete’s explanations have been found to have virtually no evidentiary basis supporting them, the athlete has not met his/her burden of proof, and the anti-doping rule violation must be deemed to be intentional.
On 30 November 2016 the International Military Sports Council (CISM) decided to impose a 4 year period of ineligibility on the Russian Pentathlon Athlete Iulia Naumova after her A and B samples tested positive for the prohibited substance Bromantan.
Hereafter in January 2017 the Athlete appealed the CISM decision with the Court of Arbitation for Sport (CAS). The Athlete explained that she had used prescribed medication with Bromantan as ingredient in April 2016 to enhance her immunity during the flu period. She stated that this medication was used out-of-competition and in a context unrelated to sport performance before she was tested 4 months later in August 2016.
CISM and WADA contended that the Athlete failed to establish that the violation was not intentional; she failed to demonstrate that she used the prescribed medication; she didn't mention the medication on the Doping Control Form; nor did she apply for a TUE. Further they argued that the concentration of Bromantan found in the Athlete’s samples, provided in August 2016, was not consistent with the use of the medication in April 2016.
The Panel did not accept the Athlete’s statement and finds that the she failed to prove on the balance of probability that the medication was in fact prescribed. Her assertion about the presence of the medication after 4 months was unsubstantiated and she failed to mention her medication on the Doping Control Form. The Panel holds that there was no evidence of the existence of a flu epidemic in April 2016 in St-Petersburg when she used the alleged medication.
Accordingly the Panel concludes that the Athlete has not met her burden of proof and the anti-doping violation must be deemed to be intentional.
Therefore the Court of Arbitration for Sport decides on 25 August 2017:
1.) The appeal filed on 6 January 2017 by Ms Yulia Naumova against the decision rendered by the CISM Disciplinary Commission on 30 November 2016 is dismissed.
2.) The decision rendered by the CISM Disciplinary Commission on 30 November 2016 is confirmed.
3.) The Award is pronounced without costs, except for the CAS Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Ms Yulia Naumova, which is retained by the CAS.
4.) The Appellant shall pay an amount of CHF 3,000 (three thousand Swiss francs) to the International Military Sports Council as contribution to its legal costs and other expenses that it has incurred in these arbitration proceedings.
5.) All further and other requests for relief are dismissed.
