CAS 2018/O/5754 Sergey Fedorovtsev v. Russian Anti-Doping Agency (RUSADA), World Anti-Doping Agency (WADA) & Fédération Internationale des Sociétés d’Avirons (FISA)
Related case:
Swiss Federal Court 4A_422_2019 Sergey Fedorovtsev vs RUSADA, WADA & FISA
April 21, 2020
- Rowing
- Doping (trimetazidine)
- Establishment of absence of intent in case of failure to establish source of prohibited substance
- Prerequisites to disprove intent
- Challenge of a B sample analysis completed in absence of the athlete
1. The establishment of the source of the prohibited substance in an athlete’s sample is not a sine qua non of proof of absence of intent. Indeed, the provisions of the Anti-Doping Rules concerning “intent” do not refer to any need to establish source, in direct contrast to Article 10.5 Russian Anti-Doping rules, combined with the definitions of “No Fault or Negligence” and “No Significant Fault or Negligence”, which expressly and specifically require establishment of source. However, in order to prove, by a balance of probability, that he did not engage in a conduct which he knew constituted an anti-doping rule violation or knew that there was a significant risk that said conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk, an athlete cannot simply assert his lack of intent without giving any convincing explanations to justify such assertion. Rather, to prove the same without proof of source is exceptional. An athlete, even though not bound to prove the source of the prohibited substance, has to show, on the basis of the objective circumstances of the anti-doping rule violation and his behaviour that specific circumstances exist disproving his intent to dope.
2. In order to disprove intent, an athlete cannot merely speculate as to the possible existence of a number of conceivable explanations for the adverse analytical finding (“AAF”) and then further speculate as to which appears the most likely of those possibilities to conclude that such possibility excludes intent: a protestation of innocence, the lack of sporting incentive to dope, or mere speculation by an athlete as to what may have happened does not satisfy the required standard of proof (balance of probability) and the mere allegation of a possible occurrence of a fact cannot amount to a demonstration that fact did actually occur. Instead, an athlete has a stringent obligation to offer persuasive evidence that the explanation he offers for an AAF is more likely than not to be correct, by providing specific, objective and persuasive evidence of his submissions.
3. An athlete who allowed the B sample analysis to proceed in his absence, cannot, following completion of the B sample analysis, belatedly challenge the analytical process and claim that his rights have been breached.
In June 2016 an anti-doping rule violation was reported against the Russian rower Sergey Fedorvtsev after his A and B samples tested positive for the prohibited substance Trimetazidine. After notification a provisional suspension was ordered. Here the opening and analysis of the Athlete’s B-sample in the Lausanne Laboratory occurred in the presence of the Athlete and 2 representatives.
In May 2018 the case was referred to the Court of Arbitration for Sport (CAS) for a first instance hearing panel.
The Athlete denied the intentional use of the substance and asserted that the positive test results reported by the Lausanne Laboratory cannot be taken as a basis to establish that he committed the antidoping rule violation. Should the existence of an antidoping rule violation be established, this should be considered “not intentional” and the sanction should not exceed a period of ineligibility of two years.
He asserted that the B sample results must be discarded because his fundamental right to attend the B sample opening and analysis was breached, or in the alternative that the reason of the positive test would be the ingestion of a contaminated product.
Both RUSADA and WADA requested the Panel to find that the Athlete committed an antidoping rule violation and that such violation was “intentional”, and therefore to impose on the Athlete a sanction of 4 years of ineligibility and to disqualify all the Athlete’s results following the doping test of 17 May 2016.
RUSADA and WADA contended that the Athlete failed to explain how the prohibited substance entered his system nor the origin of the Substance. They refuted in detail the issues raised by the Athlete effecting the establishment of an anti-doping rule violation. WADA considered these issues as attempts made by the Athlete to invalidate the positive test result or to mitigate its consequences.
Based on the evidence in this case the Panel dismiss the Athlete’s contentions and it confirms that the A and B sample analyses show the presence of a prohibited substance while there is no basis to disregard such analytical results. The Panel finds that the Athlete has not discharged the burden which lies upon him to establish by a balance of probability non-intentional use of a prohibited substance.
Therefore the Court of Arbitration for Sport decides on 26 June 2019 that:
1.) Mr Sergey Fedorovtsev is responsible for the antidoping rule violation contemplated by Article 2.1(c) [“Presence of a Prohibited Substance or its Metabolites or Markers in a Athlete’s sample”] of the Russian antidoping rules, including the Anti-Doping rules approved by the order No 947 of the Ministry of Sport of the Russian Federation of 9 August 2016.
2.) Mr Sergey Fedorovtsev is declared ineligible for a period of four (4) years from 16 June 2016, the date of his provisional suspension. All competitive results obtained by Mr Sergey Fedorovtsev between 17 May 2016 and 16 June 2016 are disqualified, with all of the resulting consequences, including forfeiture of any medals, points and prizes.
(…)
5.) All other motions or prayers for relief are dismissed.
