CAS 2018/A/5651 Georgios Kostakis v. Hellenic National Council for Combating Doping (ESKAN)
- Paralympic athletics
- Doping (Selective Androgen Receptors Modulator - SARMS)
- Departure from testing procedures in case of partial sample
- Burden and standard of proof for causality between departure and positive finding
- Burden and standard of proof for absence of intent
- Burden of proof for source of prohibited substance
1. Provided the Doping Control Form contains a box entitled ‘Partial Sample’, this box must be completed by the Doping Control Officer whenever a partial sample is obtained during the sampling process. Failure to tick the box results in errors and violations during sample collection process which constitute a departure from the International Standard for Testing and Investigation (ISTI).
2. In case an athlete succeeds in establishing a departure from the testing procedures it is further to the athlete to prove, on the balance of probability, that the departure could have reasonably caused the prohibited substance found in his or her sample. In this context, the athlete must adduce cogent evidence of supporting facts that prove that it is more likely than not that the departure was the cause of the adverse analytical finding.
3. The burden of proof with respect to intent lies with the athlete, who has the duty to establish, on the balance of probability, that the anti-doping rule violation was not intentional; i.e. the athlete must convince the Panel that the occurrence of the circumstances on which he/she relies is more probable than their non-occurrence.
4. 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.
On 14 February 2017 the Board of Directors of the Hellenic National Council for Combating Doping (ESKAN) decided to impose a 4 year period of ineligibility on the parathlete Georgios Kostakis after he tested positive for the prohibited substance LGD-4033 (Ligandrol).
Hereafter the Athlete's appeal with the Supreme Council of Dispute Resolution in Sport (ASEAD) was dismissed and in March 2018 the Athlete appealed the ESKAN decision with the Court of Arbitration for Sport (CAS).
The Athlete denied the intentional use of the substance and argued that he was tested before without issues. He assumed that a contaminated product was the source of the substance whereas ESKAN had denied any support for analysis of his food supplements in question.
He asserted that his Due Process Rights were violated and disputed the validity of the test result because of the errors and departures of the ISTI that had occurred during the sample collection. Further he claimed that the substance LGD-4033 was not included in the WADA 2016 Prohibited List.
The Sole Arbitrator considers that any possible infringement of the Athlete’s due process rights committed by ESKAN are hereby cured and thus insignificant for this procedure.
The Arbitrator observes that the substance LGD-4033 was included on the WADA 2016 Prohibited List and finds that ESKAN has established that a prohibited substance was present in the Athlete's sample.
Based on the evidence in this case the Sole Arbitrator finds that the Athlete has demonstrated on a balance of probabilities that there were indeed errors and violations committed to the collection of the Athlete's partial sample that led to a departue of the ISTI. Nevertheless the Arbitrator concludes that the Athlete has not demonstrated on the balance of probabilites that the departure of the ISTI could have reasonably led to the positive test result.
Further the Sole Arbitrator holds that the Athlete failed to establish that the violation was not intentional and he rejects the Athlete's assertion that the sanction of 4 years was unlawful, harsh, unreasonable and disproportionate.
Therefore the Court of Arbitration for Sport decides on 31 October 2018 that:
1.) The appeal filed on 28 March 2018 by Mr. Georgios Kostakis against the 14 February 2017 Decision of the Hellenic National Council for Combating Doping is dismissed.
2.) The decision rendered by the Hellenic National Council for Combating Doping on 14 February 2017 is confirmed.
(…)
5.) All further and other requests for relief are dismissed.
