CAS 2015/A/3977 World Anti-Doping Agency (WADA) v. Belarus Athletic Federation (BAF) & Vadim Devyatovskiy
Related cases:
- CAS 2009_A_1752 Vadim Devyatovskiy & Ivan Tsikhan v IOC
June 10, 2010 - IOC 2008 IOC vs Vadim Devyatovskiy
December 11, 2008
- Athletics (hammer throw)
- Doping (oxandrolone; methandienone)
- Admissibility of the appeal
- Right to attend and/or to be represented at the opening and analysis of the B sample
- Absence of proof of a “use violation” rule
1. There is no obligation foreseen in the applicable IAAF Rules for WADA to know or to make some inquiries about an appealed decision in order to preserve its own right to appeal. Furthermore, the fact that WADA might have discussed the athlete’s case before receiving the complete file does not initiate the 21-day time limit to file the appeal. According to the applicable regulations, this deadline starts running only after the reception of the complete file. Moreover, the fact that WADA received the complete file in a maximum of 13 days after it was aware of its existence cannot be regarded as incompatible with procedural fairness or in breach of any procedural rights of the athlete so as to require the abridgement of the appeal period provided by the rules. Finally, the fact that at some stage of the proceedings, WADA relied on a member of the IAAF to obtain evidence or information does not yet mean that it was acting as the agent of the international federation and does not prove that WADA was acting exclusively for the benefit of IAAF and hence committed somehow an abuse of process by filing its appeal within the regulatory deadline.
2. The generally recognised legal principle that a party may be present at the collection of evidence applies in the context of a confirmatory analysis and is respected only if the athlete is actually put in a position where he can effectively be present or represented by the person of his choosing at the B sample test. This right is fundamental and, if not respected, the B sample result must be disregarded. The fact that the athlete eventually agreed to be represented does not yet mean that he waived his right to be given a reasonable opportunity to be present or represented by the expert of his choosing at the B sample analysis. This very limited right arises from the obligation on the federation to observe the principles of a fair procedure and the right to be heard, as well as the right of proper defence. Given the seriousness of an allegation of doping, it is clear that strict requirements for proper respect of theses procedural principles must be applied. This is so, even if denial of that right is unlikely to affect the result of a B sample analysis.
3. While there may well be cases where analytical evidence which does not meet the criteria to support a “presence violation” can be an important ingredient in establishing a “use violation” case, there must be additional supporting evidence rather than mere speculation. In this respect, speculation regarding a doping conspiracy organised at the national level by the federation and/or that the athlete took part in it, if accepted, would not be sufficient to establish to the comfortable satisfaction of the panel a “use violation” on the part of the athlete.
Mr Vadim Devyatovskiy is a Belarussian Athlete competing in the Hammer Throw event at the 2005 Helsinki IAAF World Championships. He retired in 2012 and is currently President of the Belarus Athletic Federation (BAF).
Previously the Athlete was sanctioned after he tested positive at the 2000 Sydney Olympic Games. He again tested positive at the 2008 Beijing Olympic Games. Yet this case against the Athlete was annuled (CAS 2009/A/1752) due to departures of the ISL had been established.
In July 2012, the International Association of Athletics Federations (IAAF) decided to perform further analyses on certain samples collected during the 2005 IAAF World Championships. These additional analyses were performed with analytical methods which were not available in 2005.
In July 2012 the Lausanne Lab reported that the samples of 5 Belarussian athletes - including the Athlete Vadim Devyatovskiy - tested positive for prohibited substances. Consequently 4 Belarussian athletes have been sanctioned with various periods of ineligibility, running from a two year to a life ban.
Accordingly in July 2012 the IAAF reported an anti-doping rule violation against the Athlete after reanalysis of his 2005 A and B samples had revealed the presence of the prohibited substances Metandienone and Oxandrolone.
However on 23 September 2014 the BAF Disciplinary Commission deemed that no anti-doping rule violation had been established on the fact that the Athlete was not given opportunity to attend the opening and testing of his B1 sample in July 2012 and he was not given opportunity to be represented the opening and testing of his B1 sample by a representative of his choosing.
Hereafter in March 2015 the World Anti-Doping Agency (WADA) appealed the BAF decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose an 8 year period of ineligibility on the Athlete for his second anti-doping rule violation.
WADA contended that the presence of prohibited substances in the Athlete’s sample was established and confirmed by the analysis of by the B1 and B2 samples. The Athlete contended that the B samples result must be disregarded as he was not offered the right to attend and/or to be represented by the person of his choosing for the opening and testing of his B sample, in violation of Rule 37.7 of the 2012 IAAF ADR and of Article 5.2.4.3.2.6 of the 2012 ISL.
Given the totality of the circumstances, the Panel is comfortably satisfied that, on the evening of 30 July 2012, the Athlete accepted to be represented by Mr. Sergey Beliaev at the splitting of the B sample and analysis of the First Bottle in the Lausanne Lab.
However, the fact that the Athlete eventually agreed to be represented by Mr Sergey Beliaev does not yet mean that he waived his right to be given a reasonable opportunity to be present or represented by the expert of his choosing at the B Sample analysis.
In conclusion, the Panel finds that the Athlete was denied any reasonable opportunity to exercise his right to attend or to be represented at the opening and splitting of his B sample and analysis of his First Bottle. Such a right is fundamental and, if not respected, the B sample result must be disregarded.
In other words, WADA is unable to establish to the comfortable satisfaction of the Panel the presence of a prohibited substance or its metabolites or markers in the Athlete’s samples so as to found a finding of a “presence violation” under Rule 32.2(a) IAAF ADR.
Therefore the Court of Arbitration for Sport decides on 31 March 2016:
1.) The appeal filed on 11 March 2015 by WADA against the decision of the BAF Disciplinary Commission dated 23 September 2014 is dismissed.
2.) The decision of the BAF Disciplinary Commission dated 23 September 2014 is confirmed.
(…)
6.) All other or further requests and prayers of relief are dismissed.
