CAS 2019/A/6213 World Anti-Doping Agency (WADA) v. Czech Anti-Doping Committee (CADC) & Czech Swimming Federation (CSF) & Kateřina Kaškov
- Aquatics (swimming)
- Doping (metandienone)
- Sanction applicable to an ADRV involving a non-specified substance
- Burden of proof regarding the absence of intentionality of the violation
1. Article 10.2.1.1 CADC ADR provides the period of ineligibility shall be four (4) years where the anti-doping rule violation does not involve a specified substance unless the athlete can establish that the violation was not intentional.
2. The athlete bears the burden of establishing that the violation was not intentional. Lack of intention cannot be inferred from protestations of innocence (however credible), the lack of a demonstrable sporting incentive to dope, unsuccessful attempts by the athlete to discover the origin of the prohibited substance or the athlete’s clean record. The submissions, documents and evidence on behalf of the athlete must be persuasive that the occurrence of the circumstances which the athlete relies is more probable than their non-occurrence. It is not sufficient to suggest that the prohibited substance must have entered his/her body inadvertently from some supplements or other product. Concrete evidence should be adduced demonstrating that a particular supplement, medication or other product taken by the athlete, or that the specified product claimed to be taken, contained the substance in question. Absent any proof of purchase, information as to the specific type of supplement used, by whom it is produced, etc. and absent any disclosure of the food supplement on the doping control form, there is no element substantiating the athlete’s contention that s/he did use that product or that it was contaminated.
On 2 July 2018 the Disciplinary Committee of the Czech Swimming Federation (CSF) decided to impose a 2 year period of ineligibility on the swimmer Kateřina Kašková after her A and B samples tested positive for the prohibited substance Metandienone. When appealed the decision was upheld on 20 October 2018. Next the Czech Anti-Doping Committee (CADC) appealed the CSF decision before the Arbitration Committee of the Czech Olympic Committee. However in November 2018 the CADC withdrew its appeal and the appeal proceeding were terminated without any decision being taken.
Hereafter in March 2019 the World Anti-Doping Agency (WADA) appealed the CSF decision of 20 October 2018 with the Court of Arbitration for Sport (CAS).
WADA requested the Panel to set aside the CSF decision and to impose a 4 year period of ineligibility on the Athlete. Both the CSF and CADC requested the Panel to confirm the decisions issued by the CSF. The Athlete did not file any submission in her defence.
WADA contended that the presence of a prohibited substance had been established in her samples and accordingly that she committed an anti-doping rule violation. Futher the Athlete failed to demonstrate how the prohibited substance entered her system.
The Sole Arbitrator holds that the Athlete has not established that the violation was not intentional and, instead of two years she should be sanctioned with a four-year period of ineligibility.
Therefore the Court of Arbitration for Sport decides on 23 September 2019 that:
1.) The Appeal filed by the World Anti-Doping Agency on 21 March 2019 against the decision rendered by the Executive Committee of the Czech Swimming Federation on 20 October 2018 is upheld.
2.) The decision rendered on 20 October 2018 by the Executive Committee of Czech Swimming Federation is set aside.
3.) Ms Katerina Kašková is declared ineligible for a period of four years starting from the date of 7 December 2017.
4.) All competitive results obtained by Ms Katerina Kašková from and including 4 November 2017 shall be disqualified, with all resulting consequences (including forfeiture of medals, points and prizes).
5.) (…).
6.) (…).
7.) All other motions and prayers for relief are dismissed.
