CAS 2017/A/5099 Artur Taymazov v. International Olympic Committee (IOC)
Related cases:
IOC 2016 IOC vs Artur Taymazov (Beijing Olympiad)
March 31, 2017
IOC 2018 IOC vs Artur Taymazov (London Olympiad)
July 17, 2019
Wrestling
Doping (turinabol; stanozolol)
Automatic disqualification of results
Application of the principle nulla poena sine culpa
Burden of proof regarding fault or negligence
Proportionality of the sanction
Application of automatic disqualification of results in exceptional cases
1. Art. 8.1 of the IOC Anti-Doping Rules (ADR) provides for the so-called automatic disqualification of results following an in-competition positive doping control. Automatic disqualification of results of a competition in consequence of a positive in-competition test for a substance prohibited in that competition does not engage any consideration of fault or negligence or proportionality at all.
2. An anti-doping rule violation is in the language of the World Anti-Doping Code (WADC) a ‘violation’; and ‘automatic disqualification’ takes its place in a provision entitled ‘Sanctions’. Therefore, concepts relevant to crime and punishment are not entirely to be ignored to the detriment of the athlete. It is still incumbent on the relevant sports’ governing body to prove that a violation, as defined in the relevant regulations, has occurred and to place upon the athlete who has committed such violation only the prescribed consequences. Both the violation and its consequences are expressly and clearly provided for in the IOC ADR (and in the WADC, its source). There can be no departure from the presumption of innocence. The athlete is not presumed, but must be proven, to have committed an anti-doping rule violation. Therefore, there is no infringement of the principle nulla poena sine culpa.
3. Where the concepts of fault and negligence are material to the outcome of an appeal, the burden lies on the athlete to disprove their occurrence. Such burden cannot be discharged by reliance on a record of multiple clean tests or by the mere assertion by his or her counsel. At the very least an athlete must give evidence, preferably orally before the CAS panel, of the steps he or she took to discharge the “personal duty to ensure that no prohibited substance enters his or her body” (WADC Art 2.2.1). It is the athlete who holds the key cards where the cause as distinct from the correctness of the adverse analytical finding is in issue, since he (or she) either knows, or ought to know what he or she has ingested, and the sport’s governing body is unlikely to have either actual or constructive knowledge of this pivotal fact.
4. Disqualification is not only a proportionate penalty, but an inevitable one. Certain substances are prohibited under the WADC precisely because they are considered to have performance-enhancing properties. To allow an athlete to retain a medal in circumstances where such substances were present in his system would be unfair to his ‘clean’ competitors.
5. Art. 8.1 of the IOC ADR applies to all cases within its reach, whether admitted to be standard or said to be exceptional.
Mr Artur Taymazov is a Uzbek Athlete competing in the Men’s 96-120 kg Freestyle wrestling event at the Beijing 2008 Olympic Games.
In 2016, the International Olympic Committee (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. As a result in July 2016 the IOC reported an anti-doping rule violation against the Athlete after his 2008 A and B samples tested positive for the prohibited substances stanozolol and dehydrochlormethyltestosterone (turinabol).
The IOC Disciplinary Commission decided on 31 March 2017 that the Athlete committed an anti-doping rule violation and to disqualify his results including withdrawn of his gold medal and medallist pin.
Hereafter in April 2017 the Athlete appealed the IOC decision with the Court of Arbitration for Sport (CAS). The Athlete requested to set aside the IOC decision of 31 March 2017 and argued that he bears no Fault of Negligence in this case.
The IOC requested the Panel to dismiss the Athlete’s appeal and contended that the Athlete was sanctioned as a result of valid positive in-competition doping test. The automatic disqualification was proportional and the Athlete failed to establish that there was no Fault or Negligence in this case.
The Panel holds that the submissions of the Athlete, powerfully expressed though they were, were based on a fundamental misconception: that is to say, that automatic disqualification of results of a competition in consequence of a positive in-competition test for a substance prohibited in that competition engages any consideration of fault or negligence or proportionality at all. In the Panel’s view, that position is misconceived. All such considerations may be highly germane where periods of ineligibility (or other sanctions) are at stake, but this Panel is not concerned whether such sanctions are appropriate.
The Panel finds that there was contrary to the Athlete’s submission, no infringement of the principle nulla poena sine culpa (enshrined in Article 7, no punishment without law) rather than Article 6 (a fair trial) of the ECHR and indubitably a principle of the lex ludica. Both the violation and its consequences are expressly and clearly provided for in the IOC ADR (and in the WADC, its source). There can be no departure from the presumption of innocence. The IOC was obliged to establish the ADRV and did so. The Athlete was not presumed, but proven, to have committed an ADRV.
As to due process, the Athlete has accepted the re-test results and has not contended that the fact that the analysis was carried out in 2016 rather than in 2008 somehow and (if so, in what way) prevented him from challenging that analysis. As to whether, and to what extent, such delay would have prevented him from obtaining evidence which showed that the admitted presence of the prohibited substance in his sample was the result of circumstances for which he bore no or no significant responsibility (and therefore was guilty of no or no significant fault) the Panel need not consider.
Therefore the Court of Arbitration for Sport decides on 4 December 2017 that:
1.) The appeal filed by Mr. Artur Taymazov against the International Olympic Committee concerning the decision of the IOC Disciplinary Commission dated 31 March 2017 on 21 April 2017 is dismissed.
2.) The decision rendered by the IOC Disciplinary Commission on 31 March 2017 is upheld.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.
