CAS 2018/A/5620 World Anti-Doping Agency (WADA) v. Hungarian National Anti-Doping Organization (HUNADO) & Darja Dmitrijevna Beklemiscseva
- Doping (furosemide)
- Occurrence of an ADRV and standard sanction for a specified substance
- Burden and standard of proof regarding the non-significance of the fault
- No reduction of the standard sanction due to the lack of establishment of the origin of the prohibited substance
1. An Anti-Doping Rule Violation (ADRV) is established where it is undisputed that the athlete’s A Sample revealed the presence of a specified substance. According to Article 10.2 of the HUNADO Anti-Doping Regulation (ADR), the standard sanction for an ADRV involving a specified substance is 2 (two) years, unless the Anti-Doping Organization can establish that the ADRV was intentional.
2. Where the intentionality of the commission of the ADRV cannot be demonstrated, in order for the athlete to benefit from a lower sanction than the otherwise two years ineligibility, he or she must establish that he or she bears No Significant Fault or Negligence. It naturally follows that the athlete must also establish how the substance entered his or her body. The standard of proof is the balance of probabilities. This standard requires the athlete to convince the panel that the occurrence of the circumstances on which the athlete relies is more probable than their non-occurrence.
3. In order to establish the origin of a Prohibited Substance by the required balance of probability, an athlete must provide actual evidence as opposed to mere speculation. If the athlete’s explanation has virtually no evidentiary basis supporting it, the athlete has not met his or her burden of proof regarding the origin of the prohibited substance that entered his or her body.
On 22 January 2018 the Doping Committee of the Hungarian Anti-Doping Group (HUNADO) decided to impose a 7 month period of ineligibility on the Russian figure skater Darja Dmitrijevna Beklemiscseva after her sample tested positive for the prohibited substance Furosemide.
Hereafter in March 2018 the World Anti-Doping Agency (WADA) appealed the HUNADO Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a sanction of 2 years on the Athlete.
WADA contended that the Athlete had committed an anti-doping rule violation and that she failed to demonstrate that the violation was not intentional nor the origin of the prohibited substance. The Athlete had only provided an unspecific and unsubstantiated explanation with inconsistencies that was clearly insufficient to establish the origin of the Furosemide.
Further WADA asserted that the concentration Furosemide found in the Athlete's sample was not consistent with the Athlete's alleged ingestion of only a residual amount of Furosemide 2 days before the doping control.
Although duly invited both HUNADO and the Athlete failed to provide any submission or communication on this matter.
The Sole Arbitrator finds that it is undisputed 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. Considering the Athlete's explanation the Sole Arbitrator deems that the she has not met her burden of proof how the Furosemide had entered her system nor grounds for a reduced sanction.
Therefore the Court of Arbitration for Sport decides on 13 August 2018 that:
- The appeal filed on 12 March 2018 by the World Anti-Doping Agency against the Decision rendered by the Doping Committee of the Hungarian National Anti-Doping Organization on 22 January 2018 is upheld.
- The decision rendered by the Doping Committee of the Hungarian National Anti-Doping Organization on 22 January 2018 is set aside.
- Ms Darja Dmitrijevna Beklemiscseva is suspended for a period of two (2) years, starting from 1 December 2017.
- All competitive results earned by Ms Darja Dmitrijevna Beklemiscseva during the period between 25 October 2017 and 30 November 2017 are disqualified, with all resulting consequences (including forfeiture of any titles, awards, medals, profits, prizes, and appearance money).
- All further and other requests for relief are dismissed.