CAS 2017/A/5317 Aleksei Medvedev v. Russian Anti-Doping Agency (RUSADA)
Cycling
Doping (furosemide)
Applicable sanction for an ADRV regarding a specified substance
Exclusion of No Fault or Negligence for lack of fulfilment of the athlete’s duty of diligence after the violation
Determination of the applicable sanction in view of the athlete’s non-significant fault after the violation
1. An athlete commits an Anti-Doping Rule Violation (ADRV) in the sense of Article 2.1 of the applicable Rules where the analysis of his or her A-sample reveals an Adverse Analytical Finding (AAF) for the presence of furosemide, a specified substance. For an ADRV under Article 2.1, Article 10.2.1 of the applicable Rules provides for a standard sanction of a four-year period of ineligibility where the ADRV involves a Specified Substance and is intentional. If Article 10. 2. 1 does not apply, the period of ineligibility shall be two years, subject to any further reduction based on No Fault or Negligence or No Significant Fault or Negligence.
2. A finding of No Fault applies only in truly exceptional cases. In order to have acted with No Fault, the athlete must have exercised “utmost caution” in avoiding doping. The athlete’s fault is measured against the fundamental duty which he or she owes under the WADC to avoid ingesting any prohibited substance. In this respect, athletes must always bear personal responsibility and the failure of a doctor does not exempt an athlete from personal responsibility. Even if the athlete has little education and knowledge of anti-doping, including TUEs, it is his/her duty as a professional athlete subject to the applicable Rules to ensure that she/he does his/her best to avoid and mitigate any violation. The mitigation duty applies in particular to the continuing presence in the athlete’s body of a prohibited substance where the violation was established by an out-of-competition test two days after an unknowing ingestion of a specified substance during an emergency treatment for a concussion. At that time, the athlete could and should have taken appropriate steps to mitigate against that ingestion. Absent the fulfilment of his or her duty to mitigate, the athlete’s conduct does not warrant a finding of No Fault.
3. The evaluation of the level of fault or negligence relevant for determining the period of ineligibility for a violation depends on all the circumstances. The fact that the fault or negligence relating to the violation comes after rather than before the violation, may and usually will be an important component of that evaluation of blame and harm for, in and from the violation. In this respect, an athlete could and should have fulfilled his/her duty to mitigate once she/he became aware of said ingestion by disclosing the accidental ingestion. To regard negligence or fault after a violation of this sort as irrelevant to the violation would be contrary to the fundamental purpose of the applicable Rules. Whether or not the fault or negligence is a prior cause of the violation is not the only question – subsequent conduct may be as closely related to the compliance/violation equation, taking into account the scheme and objectives of the Rules as a whole. The starting point in a case of this nature of the ADRV is the ingestion of a single pill of furosemide by the athlete at the direction of an emergency room doctor while the athlete was in an uncontroverted, mentally incapacitated state. Under these circumstances, and not taking away from the athlete’s duty to mitigate such inadvertent ingestion, the athlete’s fault or negligence cannot be considered as “significant” and the period of ineligibility should be reduced from the mandated two years under Article 10.5.1.1 of the Rules.
On 22 August 2017 the Rusada Anti-Doping Disciplinary Committee (RDADC) decided to impose a 2 year period of ineligibility on the Russian Rider Aleksei Medvedev after he tested positive for the prohibited substance Furosemide. Here the Athlete was injured in May 2017 in Russia as a result of a road accident and he underwent treatment in the general hospital in Izhevsk where a Furosemide pill was administered.
Hereafter in September 2017 the Athlete appealed the RDADC decision with the Court of Arbitration for Sport (CAS).
The Athlete denied that the violation was intentional or that he acted negligently and that he bore nor relevant or significant fault or negligence. He asserted that he was unaware during medical treatment in the hospital that the trauma doctor administered or prescribed Furosemide. Also afterwards he argued that he was not negligent in failing, when he recoverd from the concussion, to make inquiries as to his treatment, report the matter to his team and/of apply for a retrospective TUE.
Rusada accepted that the violation was not intentional but also contended that the Athlete acted with signifificant fault or negligence since he failed in insuring that any medical treatment did not violate the Rules.
The Sole Arbitrator is not satisfied that the Athlete did not bear some fault or negligence relating to the ADRV. He has some skepticism surrounding both the Athlete’s treatment with the furosemide pill while in the hospital and the Athlete’s actions following notification of his ADRV on 19 June 2017. Such skepticism creates doubt in the Sole Arbitrator’s mind that the Athlete used “utmost caution” to avoid the ADRV. While the Sole Arbitrator accepts that the Athlete had little education and knowledge of anti-doping, including TUEs, it was his duty as a professional athlete subject to the Rules to ensure that he did his best to avoid and mitigate any violation, including the continuing presence in his body of a prohibited substance.
Considering the circumstances in this case the Sole Arbitrator deems that the Athlete’s fault or negligence in the present case was not “significant” and the period of ineligibility should be reduced from the mandated two years under Article 10.5.1.1 of the Rules.
Therefore the Court of Arbitration for Sport decides on 15 December 2017 that:
1.) The appeal filed by Aleksei Medvedev against RUSADA concerning the decision of the RUSADA Anti-Doping Disciplinary Committee dated 22 August 2017 is upheld.
2.) The decision of the RUSADA Anti-Doping Disciplinary Committee dated 22 August 2017 is set aside.
3.) Aleksei Medvedev is suspended for a period of six (6) months commencing on 19 June 2017.
4.) (…).
5.) (…).
6.) Any and all other and further requests for relief are dismissed.
