CAS 2011/A/2337 Marius Ilas v. World Karate Organization (WKO)
Karate
Doping (human chorionic gonadotropin - hCG)
Stay of execution of a disciplinary decision
Mission of the CAS Panel under Article R57 of the CAS Code
Presence of hCG of endogenous origin in the athlete’s sample
1. A WADA’s statement that the athlete’s case “might not be a case of doping” can be a sufficient reason to stay the execution of a contested decision related to the suspension of an athlete.
2. The mission of a CAS panel under Article R57 CAS Code is to make an independent determination as to whether the parties’ contentions are inherently correct rather than only to assess the correctness of the appealed decision.
3. WADA’s criterion for an Adverse Analytical Finding of hCG in urine of a male athlete stands at densities greater than 5mlU/ml. The athlete whose sample is greater than the aforementioned limit has to demonstrate that the high density of hCG in the sample was due to a physiological or pathological condition and is therefore of endogenous origin. The unchallenged opinions of experts in the field of hCG that such is the case, confirmed by a WADA accredited laboratory, constitute sufficient evidence in this respect.
On 27 December 2010 the World Karate Organization (WKO) decided to impose a 2 year period of ineligibility on the Romanian karate Athlete Marius Ilas after his sample tested positive for the prohibited substance Human chorionic gonadotrophin (hCG).
Hereafter in January 2011 the Athlete appealed the WKO decision with the Court of Arbitration for Sport (CAS).
In this case the WKO was informed in January 2011 by the Romanian Karate Federation that the Athlete had shown high levels of hCC on the occasion of a doping control in 2005 as indication of the beginning of the development of cancer in the testicles and not as indication of an Anti-Doping Rule Violation. Recommended by the World Anti-Doping Agency (WADA) the WKO ordered an international-recognized expert, Prof. Stenman, to conduct further hCG tests on the Athlete to establish that this might not be a doping case. Because of these tests CAS ordered on 31 March 2011 a stay of the execution of the WKO Decision.
After analysis of the Athlete’s blood and urine samples the expert reported in September 2011 that they did not contain hCG, only endogenous hCG. Thus no evidence for illicit use of hCG injections and WADA recommended to acquit the Athlete of any doping charges.
In November 2011 WKO approved the continuation of the suspension of the ban imposed on the Athlete. The WKO questioned the findings of the expert and contended that the Athlete failed to demonstrate that the hCG detected in the sample was of endogenous origin while the Athlete had the burden of proof to demonstrate that the hCG was of endogenous origin.
The Athlete denied the use of any prohibited substance and asserted that the hCG detected in the A Sample is of endogenous origin. He argued that in a similar situation in 2005 the Danish Anti-Doping Agency had accepted that the positive test was not the result of an Anti-Doping Rule Violation. Further he maintained that he previously requested the WKO to investigate the origin of the detected hCG and that the filed evidence in this case confirmed the endogenous origin of the hCG in his A Sample.
The Panel finds that the concentration of hCG in the Athlete’s Sample was of endogenous origin. This conclusion is in particular based on the expert opinion of Prof. Stenman, an expert on the field of hCG, who was requested, upon WADA’s suggestion, to examine the Athlete’s case. Accordingly the Panel finds that the concentration of hCG in the Sample was due to a physiological or pathological condition and therefore of endogenous origin. Hence, the Panel finds that the Athlete did not violate Article 2.1 of the WKO Anti-Doping Code 2009.
Therefore the Court of Arbitration for Sport decides on 23 March 2012 that:
1.) The appeal filed on 14 January 2011 by Mr. Marius Ilas against the decisions issued on 27 December 2010 by the Respondent is upheld.
2.) The decision issued on 27 December 2010 by the Respondent is set aside.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.
