CAS 2018/A/5592 Olga Kazankevich v. Russian Anti-Doping Agency (RUSADA)
- Para-powerlifting
- Doping (oxandrolone and metabolite)
- Proof of lack of intent in absence of establishment of source
- Burden of proof for absence of intent
- Burden of proof for source of prohibited substance
1. Until the entry into force of the 2015 edition of the World Anti-Doping Code (WADC) it was the athlete’s burden of proof to establish that the violation was unintentional and thus to establish how the relevant prohibited substance entered into his/her body; with the consequence that in case the athlete failed to establish the source of the prohibited substance, the anti-doping rule violation shall be deemed intentional and sanctioned accordingly. Following the entry into force of the 2015 WADC, and given that in contrast to the definitions to the WADC of “No Fault or Negligence” or “No Significant Fault or Negligence”, where proof of the source of the prohibited substance is required, no such requirement is found in the article addressing “intent”, or the definitions for establishment of absence of intent, a certain number of CAS panels have accepted that – in yet very exceptional cases – an athlete might be able to succeed in demonstrating lack of intent even where he/she cannot establish the source of the prohibited substance.
2. The burden of proof with respect to intent lies with the athlete, who has the duty to establish, on a balance of probability, that the anti-doping rule violation was not intentional; i.e. the athlete has the burden of convincing the CAS panel that the occurrence of the circumstances on which he/she relies is more probable than their non-occurrence.
3. In order to establish the source of the prohibited substance it is not sufficient for the athlete to protest innocence and to suggest that the substance must have entered his/her body inadvertently from some contaminated food or water. Rather, the athlete must adduce concrete and credible evidence to demonstrate that a particular supplement, medication or other product taken contained the substance in question. The mere presentation of invoices or bills as evidence for the purchase of contaminated foods cannot fulfil the athlete’s burden of proof that the food was indeed the source of the contamination.
On 22 November 2017 the RUSADA Disciplinary Anti-Doping Committee decided to impose a 4 year period of ineligibility on the para powerlifter after her sample tested positive for the prohibited substance Oxandrolone.
The Anti-Doping Committee established that:
a) the Athlete was unable to establish how the prohibited substance entered her system,
b) she failed to establish that Elevite Prenatal or Indinol was at the origin of her positive findings and
c) she obviously did not take “all possible precaution measures in order to prevent the prohibited substance into her body”.
Hereafter in February 2018 the Parathlete appealed the decision with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel for a reduced sanction because the anti-doping rule violation was not intentional. The Athlete argued that she was tested before without issues and assumed that she consumed the prohibited substance unintentionally throught contaminated food or water.
RUSADA contended that the Athlete failed to meet her burden of proving how Oxandrolone entered her body. RUSADA can accept that it is not necessary to establish the route of ingestion of the prohibited substance in order to demonstrate that the anti-doping rule violation was not intentional. However it deemed that proof is still required, and the evidence must be such that the unintentional use is more probable than the intentional use.
The Sole Arbitrator finds that the presence of a prohibited substance has been established in the Athlete's sample and accordingly that she committed an anti-doping rule violation.
Further the Sole Arbitrator concludes that the establishment of the source of the prohibited substance in an athlete's sample is not mandatory in order to prove absence of intent.
The Sole Arbitrator holds that the Athlete did not supply any actual evidence, which could explain how the unintentional ingestion of Oxandrolone may have occurred. In this case, the Athlete’s suggestion that her water or food must have been contaminated with Oxandrolone is nothing more than speculation, unsupported by any evidence of any kind. Such bare speculation is not nearly sufficient for the Athlete’s burden of establishing that the anti-doping rule violation was unintentional.
As a result, the Sole Arbitrator finds that there are no exceptional circumstances in the present case, which show on the balance of probability that the anti-doping rule violation was not intentional. Accordingly, the Sole Arbitrator considers that the Athlete must therefore be sanctioned with a four-year period of ineligibility.
Therefore the Court of Arbitration for Sport decides on 15 October 2018:
1.) The appeal filed by Mrs Olga Kazankevich against the decision issued on 22 November 2017 by the Disciplinary Anti-Doping Committee of the RUSADA is dismissed.
2.) The decision issued on 22 November 2017 by the Disciplinary Anti-Doping Committee of the RUSADA is confirmed.
(…)
5.) All other motions or prayers for relief are dismissed.
