CAS 2017/A/5392 Fédération Internationale de Natation (FINA) v. Georgia Anti-Doping Agency (GADA) & Eastern Europe RADO & Irakli Bolkvadze
Aquatics (swimming)
Doping (stanozolol)
Duty to establish the origin of the prohibited substance
Burden and standard of proof of the unintentional nature of the anti-doping rule violation
Applicability of the principle of proportionality under the WADA Code
1. To establish the origin of the prohibited substance, it is not sufficient for an athlete merely to make protestations of innocence and suggest that the prohibited substance may have entered his/her body inadvertently from supplement, medicine etc. Rather, an athlete must adduce concrete evidence to demonstrate that the particular supplement etc. that s/he took contained the substance in question.
2. An athlete might be able to demonstrate a lack of intent even where he/she cannot establish the origin of the prohibited substance, though such a situation may inevitably be extremely rare. Yet, where the origin of the prohibited substance has not been established by the athlete, the latter should demonstrate the existence of exceptional circumstances showing on the balance of probability that the anti-doping rule violation (ADRV) was not intentional to meet his burden of proof. Absent any exceptional circumstances, the ADRV must be deemed to be intentional.
3. The WADA Code has been drafted to reflect the principle of proportionality, according to which there must be a balance between the relevance of the breach committed and the sanction imposed. In other words, the principle of proportionality is “built into” the WADA Code therefore relieving the need for the appellate body to apply this principle.
On 12 Januari 2017 the Disciplinary Committee of the Georgia Anti-Doping Agency (GADA) and the Eastern Europe RADO decided to impose a 2 year period of ineligibility on the Athlete Irakli Bolkvadze after his A and B samples tested positive for the prohibited substance Stanozolol. This decision was uphold on 16 May 2017 by the Georgian and Eastern European Regional Anti-Doping Appeal Commission.
Hereafter in November the International Swimming Federation (FINA) appealed the Decision of 16 May 2017 with the Court of Arbitration for Sport (CAS).
FINA requested the Panel to set aside the Appealed Decision and to impose a 4 year period of ineligibility on the Athlete. It contended that the Athlete failed to demonstrate that the violation was not intentional nor how the substance entered his system.
The Athlete denied the intentional use of the substance and conducted an investigation to find the source of the substance through analysis of his supplements and his hair. He also raised the hypothesis that he was the victim of sabotage. He asserted that the procedure held by GADA was not in accordance with the rules and terms of GADA.
The Sole Arbitrator holds that any possible infringement of the Athlete’s due process rights by GADA is cured in this proceedings before CAS and thus is insignificant for this procedure.
It is undisputed that the Athlete’s samples showed the presence of a prohibited substance and accordingly that he committed an anti-doping rule violation. Even if the Athlete’s assertions were true the Solo Arbitrator considers that he failed to prove on the balance of probability how the prohibited substance entered his system nor the origin of the prohibited substance. He concludes that the anti-doping rule violation must be deemed to be intentional.
Therefore the Court of Arbitration for Sport decides on 11 June 2018 that:
1.) The appeal filed on 10 November 2017 by the Fédération Internationale de Natation against the 16 May 2017 Decision of the Georgian and Eastern European Regional Anti-Doping Appeal Commission is upheld.
2.) The decision rendered by the Georgian and Eastern European Regional Anti-Doping Appeal Commission on 16 May 2017 is set aside.
3.) Mr Irakli Bolkvadze is suspended for a period of four (4) years starting as from 26 July 2016.
4.) All competitive results earned Mr Irakli Bolkvadze as from 6 July 2016 are disqualified, with all resulting consequences (including forfeiture of any titles, awards, medals, profits, prizes, and appearance money).
5.) (…).
6.) (…).
7.) All further and other requests for relief are dismissed.
