CAS 2018/A/5654 Olha Zemliak v. Ukrainian Athletic Federation (UAF) & World Anti-Doping Agency (WADA)
CAS 2018/A/5655 Olesia Povh v. UAF & WADA
- Athletics (sprint)
- Doping (testosterone)
- De novo hearing
- Validity and reliability of the analytical method used as a mean of proof of the ADRV
- Disqualification of results
1. Under Article R57 of the CAS Code, the CAS has power to review the facts and the law. The scope of this power is basically unrestricted, meaning that CAS may re-hear the matter afresh, is not bound by the evidence or the factual and legal findings, and can consider new facts and new evidence adduced by the parties. The curing effect of the CAS appeal covers any deficiencies in the investigation and hearing, even fundamental procedural defects such as the denial of the right to be heard, justice, the failure to analyse important questions, or a lack of independence of the first-instance tribunal.
2. According to IAAF Rule 33.1(a), analytical methods or decision limits approved by WADA after consultation with the relevant scientific community and which have been the subject of peer review are deemed to be scientifically valid. The consequence in the athletes’ favour is that an analytical method not approved by WADA is not deemed scientifically valid. However it can nevertheless serve as a reliable means of proof as the results may still be proved as such. The fact that resulting procedural provisions in IAAF Rule 33.1(a) do not apply, i.e. the presumption of scientific validity, carries no inherent prejudice. Moreover, the fact that a method does not carry with it specific reference guidelines, and explanatory and protective documentation from athletes’ point of view, so as to regulate its use in ADRV procedures, does not mean that the athletes’ rights of defence are significantly prejudiced. Athletes are able and entitled to question the scientific evidence presented against them, to present their own evidence, and otherwise to challenge the results allegedly proved by use of the method.
3. Article 10.8 of the WADA Code specifically allows results subsequent to sample collection out of the relevant competition to stand “if justice requires”. This is a question to be considered primarily with regards to fairness as regards to the athlete in violation, but without regarding the effect on other athletes who have been or may feel “cheated” by the violation. There are cases where significant and prejudicial delay between testing and notification makes it unfair to disqualify all of the athlete’s results in the interim, for example where it is known that the athlete failed a test but he or she is allowed to compete for years (or in many events) before notification, at events where he or she was or may have been “clean”. It can also be considered just for WADA, in view of the delay between sample collection and notification to the athletes, to accept that the periods of ineligibility might commence as early as the date of sample collections if the athletes accept the disqualifications of their competitive results since then.
In 2016, the International Association of Athletics Federations (IAAF) decided to perform further analyses on certain samples, collected between August 2011 and March 2017, of the Ukrainian Athletes Olha Zemliak and Olesia Povh. These additional analyses were performed with the new developed UHPLC-MS/MS method.
Previously in August 2009 the Athlete Olha Zemliak was sanctioned for 2 years for using the prohibited substance 19-norandrosterone (Nandrolone).
In July 2017 anti-doping rule violations were reported against the two Ukrainian Athletes after theire samples - collected in 2016 - tested positive for the prohibited substance Testosterone.
Consequently on 2 February 2018 the Ukrainian Athletic Federation (UAF) decided to impose an 8 year period of ineligibility on the Athlete Olha Zemliak and a 4 year period of ineligibility on the Athlete Olesia Povh.
Hereafter in March 2018 both Athletes appealed the UAF decision with the Court of Arbitration for Sport (CAS). The Athletes requested the Panel to set aside the UAF decision of 2 February 2018 and for a review of the case de novo.
The Athletes argued that due to procedural irregularities their right for a fair hearing was violated by the disciplinary body. They also claimed that their samples were wrongly used for research since the analysis took place when the new UHPLC-MS/MS method was still in the research phase. Further they disputed the reliability of this method for testing Testosteone in blood serum.
WADA requested the Panel to dismiss the Athletes’ appeal and rejected the claim that the Athletes’ samples were not used for anti-doping purposes but rather for research. WADA contended that the new method was reliable and showed evidence of the use of the prohibited substance Testostereone to the standard of comfortable satisfaction.
The Sole Arbitrator holds that in a full appeal before CAS any violation of procedural rights at first instance can be cured such as the denial of the right to be heard, justice, the failure to analyse important questions, or a lack of independence of the first-instance tribunal.
The Sole Arbitrator establishes that the Athletes’ samples were not in a research phase when the analysis took place and he dismisses the claim that their samples were wrongly used for research. As for the reliability of the UHPLC-MS/MS method the Arbitrator concludes that there can be no doubt on the evidence that the method is scientifically valid.
Accordingly the Sole Arbitrator is more than comfortably satisfied that the Athletes committed the ADRVs on the basis that there is no explanation other than administration of exogenous testosterone (or precursor) for the values analysed by the UHPLC-MS/MS method in the Athletes' blood serum samples.
Therefore the Court of Arbitration for Sport decides on 29 March 2019 that:
1.) The appeals filed by Ms. Olha Zemliak and Ms. Olesia Povh against the Ukrainian Athletic Federation and the World Anti-Doping Agency against the decision of the Ukrainian Athletic Federation dated 2 February 2018 are partially upheld.
2.) In the case of the Ms. Zemliak (CAS 2018/A/5654) it is ordered that:
- (a) Ms. Zemliak has committed an anti-doping rule violation in accordance with IAAF Rule 33.2 (b).
- (b) Ms. Zemaliak is declared ineligible and excluded from all sporting competitions for 8 years as from 5 July 2016; and
- (c) all her results in sporting competitions as from 5 July 2016 through the commencement of her provisional suspension are disqualified, and all titles, awards, medals, and financial rewards are annulled and must be returned.
3.) In the case of Ms. Povh (CAS 2018/A/5655):
- (a) Ms. Povh has committed an anti-doping rule violation in accordance with IAAF Rule 33.2 (b9.
- (b) Ms. Povh is declared ineligible and excluded from all sporting competitions for 4 years from 15 June 2016; and
- (c) all her results in sporting competitions as from 15 June 2016 through the commencement of her provisional suspension are disqualified, and all titles, awards, medals, and financial rewards are annulled and must be returned.
4.) The costs of these appeals, to be determined and served to the parties by the CAS Court Office, shall be paid one-third (1/3rd) each as to Ms. Zemaliak, Ms. Povh, and the Ukrainian Athletics Federation.
5.) Ms. Zemaliak, Ms. Povh, and the Ukrainian Athletic Federation are ordered to pay CHF 1,500 (one thousand and five hundred Swiss Francs) each to the World Anti-Doping Agency as contribution towards its legal and other costs and expenses incurred in connection with the appeal.
6.) All and any other and further prayers and requests for relief are dismissed.
