CAS 2017/A/5427 Ilvir Khuzin v. International Olympic Committee (IOC)
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Bobsleigh
Doping (use of a prohibited substance or method; tampering with doping control; cover-up of and complicity in the commission of an ADRV)
Standard of proof in general
Standard of proof with regard to the alleged doping scheme
Means of proof
Liability of the athlete in case of substitution of the content of his/her sample
Elevated urinary sodium concentrations
Use of a prohibited method
Use of a prohibited substance
Tampering with any part of doping control
Administration of a prohibited method or substance to an athlete
Cover-up of or complicity in the commission of an ADRV
Consequences to the team of the disqualification of a team member’s individual results
Appropriate length of the Olympic ineligibility
Two reports commissioned by WADA, published by Prof. Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample.
As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. At the same time the IOC Schmid Commission started their investigations to establish the facts on the basis of documented, independent and impartial evidence.
All the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated. The findings in the IP Reports were considered in detail and both Commissions conclude that samples of urine collected from Russian Athletes were tampered with in Sochi in a systematic manner and as part of an organized scheme. The Commissions further conclude that it was not possible that the athletes were not fully implicated. They were also the main beneficiaries of the scheme.
The IOC Commissions find that Prof. McLaren’s findings are not only based on the evidence provided by Dr Rodchenkov in his interviews, but on a wealth of other corroborating evidence, including other witnesses, the forensic examination of the sample bottles, the evidence showing abnormal salt results and the additional elements coming from DNA analysis. The corroborating evidence considered by Prof. McLaren included further objective elements, such as e-mails confirming that athletes were protected through different methods.
Ilvir Khuzin is a Russian Athlete competing in the Men's Bobsleigh Event at the Sochi 2014 Olympic Winter Games. In October 2017 the IOC Disciplinary Commission has reported multiple anti-doping rule violations against the Athlete for tampering, conspiracy and use of prohibited substances.
Consequently the IOC Disciplinary Commission decided on 20 December 2017 to declare Ilvir Khuzin ineligible to be accredited in any capacity for all editions of the Games of the Olympiad and the Olympic Winter Games subsequent to the Sochi Olympic Winter Games. Further the Commission disqualified the Athlete and his Team from the events at the 2014 Sochi Olympic Winter Games including forfeiture of any medal, diploma, medallist pin, points and prizes.
In December 2017 the Athlete Ilvir Khuzin appealed the IOC decision with the Court of Arbitration for Sport (CAS). A total of 42 cases were filed with CAS by Russian athletes (the Sochi Appellants) against the decisions taken by the IOC Disciplinary Commission in relation to the 2014 Sochi Olympic Winter Games.
The Athlete and other Sochi Appellants submitted that the IOC Disciplinary Commission fundamentally erred in its application of the relevant legal framework to the facts of the Sochi Appellants’ cases. In particular, rather than seeking to determine whether the specific requirements set out in the relevant provisions of the WADC have been made out in individual cases, the IOC Commission took a generic and “broad brush approach” to its assessment of the evidence. It proceeded from a foregone conclusion and applied assumptions and circular inferential reasoning to reach its ultimate conclusion that the Sochi Appellants were each guilty of ADRVs. The Sochi Appellants disputed the reliability of the filed evidence provided by the IOC, Prof. McLaren and Dr. Rodchenko and pointed to various inconsistencies in this evidence.
The IOC, in its written submissions, provided a detailed description of the doping and cover-up scheme that allegedly operated in Russia from 2011 to 2015.
The IOC contended that the McLaren Reports and the Schmid Report both identified the Disappearing Positive Methodology as the origin of the institutionalised doping and cover-up scheme while Dr. Rodchenkov identified the main aspects to the Disappearing Positive Methodology in his affidavits.
With regard to the Athlete’s implication in this scheme, the IOC asserted that:
- All eight athletes participating in the Russian Men’s Bobsleigh Teams had samples from the Sochi Games with direct evidence of tampering; out of 15 samples: (a) 10 had multiple T marks; and (b) five had abnormal sodium content.
- In addition, there was direct evidence of tampering (in the form of multiple T marks) of samples provided by two members of the Russian Women’s Bobsleigh Team.
- Accordingly, it had been established that “the members of the Russian National Bobsleigh Team were directly implicated in the scheme”.
- The Athlete’s samples from two doping control tests carried out at the Sochi Games showed strong evidence of tampering: T marks on the sample bottles and the urine in these bottles had an abnormal level of sodium, which indicated that the sample gravity was adjusted through the addition of salt.
- In respect of urinary sodium concentrations, the urine in the sample bottles in question contained levels of sodium beyond the range of renal physiological capacity and was per se conclusive evidence of tampering.
- The Athlete’s implication in the doping scheme was also demonstrated by the evidence of Dr. Rodchenkov.
Having thoroughly considered the submissions of the Parties, the written evidence as well as the oral evidence and testimonies provided at the six-day hearing, the Panel finds that the Athlete committed ADRVs in the form of the use of a prohibited method, i.e. urine substitution, pursuant to Article 2.2 of the WADC in connection with M2.1 of the 2014 WADA Prohibited List, and in the form of use of a prohibited substance under Article 2.2 of the WADC. The Panel was unable to find the commission of either an ADRV in the form of tampering with doping control in accordance with Article 2.5 of the WADC or an ADRV in the form of cover-up of or complicity in an ADRV under Article 2.8 of the WADC.
In reaching these conclusions, the Panel wishes to underscore what it has not decided in this appeal. The Panel has not made a ruling on whether and to what extent the alleged doping scheme during the Sochi Games existed and how it operated even though it recognizes that there is significant evidence that it was in place and worked. Moreover, the Panel did not consider it possible to conclude that the mere existence of a general doping and cover-up scheme, even if established, would inexorably lead to a conclusion that the Athlete committed the ADRVs alleged by the IOC.
What the Panel, in the appeal of an individual Athlete against the findings of various ADRVs by inference from the alleged doping and cover-up scheme, did decide is simply that for all of the reasons set out in this award, the evidence presented before the Panel only justified the conclusion to the comfortable satisfaction of the Panel that the Athlete individually committed ADRVs in violation of Article 2.2 of the WADC.
Based on the finding of two individual ADRVs committed by the Athlete, the Panel concludes that the imposition of a lifetime ineligibility to participate in whatever capacity in Olympic Winter Games as well as in Games of the Olympiad is not appropriate in relation to the seriousness of the individual ADRVs and, therefore, declares the Athlete ineligible to participate in any capacity for the next edition of the Olympic Winter Games, i.e. the Winter Games in PyeongChang 2018.
Therefore the Court of Arbitration for Sport decides on 23 July 2018 that:
1.) The Appeal filed by Ilvir Khuzin on 1 December 2017 against the Decision of the International Olympic Committee Disciplinary Commission dated 29 November 2017 (and confirmed by the reasoned decision on 20 December 2017) is partially upheld.
2.) Paragraph I(a) of the Decision rendered by the International Olympic Committee Disciplinary Commission dated 29 November 2017 (and confirmed by the reasoned decision on 20 December 2017) is modified as follows:
I. The Athlete, Ilvir KHUZIN:
a) is found to have committed an anti-doping rule violation pursuant to the International Olympic Committee Anti-Doping Rules applicable to the XXII Olympic Winter Games in Sochi, Russia, in connection with the World Anti-Doping Code.
3.) Paragraph IV of the Decision rendered by the International Olympic Committee Disciplinary Commission dated 29 November 2017 (and confirmed by the reasoned decision on 20 December 2017) is annulled and replaced as follows:
IV. Ilvir KHUZIN is declared ineligible to be accredited in any capacity for the next edition of the Olympic Winter Games subsequent to the Sochi Olympic Winter Games (i.e. PyeongChang 2018).
4.) All other rulings contained in the Decision rendered by the International Olympic Committee Disciplinary Commission dated 29 November 2017 (and confirmed by the reasoned decision on 20 December 2017) are maintained.
5.) This Award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Ilvir Khuzin, which is retained by the CAS.
6.) Each party shall bear their own costs and other expenses incurred in connection with this arbitration.
7.) All other motions or prayers for relief are dismissed.
