CAS 2017/A/5178 Tomasz Zieliński v. International Weightlifting Federation (IWF)
Related case:
CAS OG_AD_2016_02 IOC vs Tomasz Zielinski
August 12, 2016
Weightlifting
Doping (19-Norandrosterone)
Balance of probability
No necessity to establish source in order to establish lack of intent
1. The IWF Anti-Doping Policy places the burden of proof upon the athlete that s/he did not act intentionally. Furthermore, according to Article. 3.1 of the IWF ADP the athlete has to either rebut a presumption or establish specified facts or circumstances “by a balance of probability”, which means that the circumstances established by the athlete have to be “more likely than not”.
2. Whilst the route of the ingestion of a prohibited substance is an important fact in order to establish whether or not an athlete acted intentionally, it is not a mandatory condition to prove lack of intent on the part of the athlete.
Mr. Tomasz Zielinski is a Polish Athlete competing in the weightlifting event at the Rio 2016 Olympic Games.
In August 2016 the IOC reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).
As a result the CAS Anti-Doping Division Panel decided on 12 August 2016 to declared the Athlete ineligible to compete at the Olympic Games Rio 2016 and to withdrawn his Accreditation.
In September 2016 the IWF confirmed the Athlete’s provisional suspension and the case was referred to the IWF for results management. Consequently on 15 May 2017 the IWF Hearing Panel decided to impose a 4 year period of ineligibility on the Athlete. Here the IWF did not accept the Athlete’s explanations and evidence and concluded that he had failed to prove that the violation was not intentional or that the sanction was not proportionate.
Hereafter in June 2017 the Athlete appealed the IWF decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the IWF Decision and for a reduced sanction.
The Athlete denied the intentional use of the substance, asserted that it was caused by a contaminated product or the result of a sabotage and that he bears No Significant Fault or Negligence. He argued that the vitamin B12 ampoules he used were contaminated and submitted the report of a laboratory that shows that one of the ampoules contained the prohibited substance.
The Panel finds the Athlete’s testimony highly contradictory. He changed his story several times after being confronted with inconsistencies. Besides at the hearing the Athlete supplemented his arguments and stated that if the positive test did not stem from a contaminated product he must have been the victim of a sabotage. The Panel is not prepared to accept this theory. It finds that it is speculative, unsubstantiated and unconvincing.
In the case at hand the Athlete has failed to establish how the Prohibited Substance entered his system. However, this does not exempt the Panel from examining all the other facts advanced by the Athlete whether or not he acted intentionally. Consequently, the Panel has considered and weighed all arguments on file to determine whether in its view the Athlete acted with intent. Nevertheless the Athlete’s other arguments do not convince the Panel on a balance of probability that the Athlete did not dope intentionally.
Taking into account the written and oral submissions of the Parties the Panel cannot conclude otherwise than that the Athlete committed the ADRV intentionally. The Athlete could not establish on a balance of probability any reasons to reduce the normally applicable period of ineligibility.
Therefore the Court of Arbitration for Sport decides on 15 March 2018:
1.) The appeal filed on 5 June 2017 by Mr Tomasz Zieliński against the decision issued on 15 May 2017 by the IWF Hearing Panel is dismissed.
2.) The decision issued on 15 May 2017 by the IWF Hearing Panel is confirmed.
(…)
5.) All other motions and prayers for relief are dismissed.
