CAS 2021/A/7768 Bauyrzhan Islamkhan v. Asian Football Confederation (AFC) & Al Ain FC
- Football
- Doping (methylhexanamine)
- Balance of probability standard
- Lack of cooperation of club and laboratory standards during the COVID-outbreak
- Wide variety of potentially contaminated products and medical team
- Disciplinary proceedings against other teammates
- Evidentiary value and relevance of polygraph tests
1. The balance of probability standard requires the indicted player to prove that his hypothesis is more probable than other explanations, and/or at least 51% likely to have occurred. He must establish that the alleged chain of events is more likely than not to have happened, by submitting actual and/or scientific evidence, not just possible scenarios and mere speculation.
2. The player who faces difficulties in proving “negative facts” can legitimately expect that his former club, which he accuses of supplying him with contaminated products, will cooperate in the investigation and, failing that, can theoretically prevail himself of its adverse attitude during the assessment of the evidence. However, he cannot go so far as to invoke a reallocation of the burden of proof, which would place him in an overly favourable position, nor can he summon the club as a defending party subject to sanctions, in the absence of a legal or regulatory basis in this sense. Moreover, he cannot hide behind the so-called tardiness of the dealing of his sample by the laboratory in charge of the test, when the delay is justified by the sanitary situation related to the COVID-19 outbreak and in line with the special standards adopted for this purpose.
3. The player who merely suspects the many supplements that he consumed through his former’s club medical team, without pointing out a specific product or clarifying the grey areas surrounding various products provided by other stakeholders, fails to demonstrate the source of his antidoping rule violation on the balance of probabilities or at all. He cannot either shift his responsibility to his team doctor or nutritionist, after ingesting all sorts of nutriments without checking their content and labelling, in violation of his obligation to ensure that no prohibited substances enter his body.
4. Allegations according to which former teammates are subject to disciplinary proceedings or have even been sanctioned for doping carry little weight, if they are not supported by clear documentation or the testimony of those players. The lack of
evidence in this respect, as well as the absence of any other witnesses called to the hearing, make any in-depth discussion thereto unnecessary.
5. Polygraph tests are usually considered by courts as inadmissible or mere statements. They may have very limited probative value in specific instances, in particular when supported by other strong evidence or filmed. Their relevance is further limited when they reveal a score which is considered uncertain in relation to crucial questions and/or are based on a series of incomplete questions.
On 23 December 2020 the Disciplinary and Ethics Committee of the Asian Football Confederation (AFC) decided to impose a 2 year period of ineligibility on the Kazakh football player Bauyrzhan Islamkhan after he tested positive for the prohibited substance Methylhexaneamine (1,3-dimethylamylamine, 1,3 DMAA).
In this matter the AFC accepted that the violation was not intentional although the Athlete could not demonstrate how the prohibited substance had entered his system.
Hereafter in March 2021 the Athlete appealed the AFC decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to eliminate or reduce the imposed sanction.
The Athlete admitted the violation and asserted that there are three possible sources for his violation: the products provided by his national team; his own supplements; and the products provided by his Al Ain FC. In support he even produced a polygraph test to prove his innocence.
The Athlete requested the Panel to hold Al Ain FC liable for his violation and to sanction it because he considered contamination of the Club’s products the most probable scenario. He believed that he could not reasonably have known or suspected, even with the utmost caution, that any of the Club's products could contain a prohibited substance.
The Athlete stated the Club did not cooperate by providing the product samples for months, finally anonymously conducted its own testing, and never confirmed or proved that the samples tested were the right ones; therefore, the Athlete could not adduce the usually expected direct evidence.
The Club Al Ain FC requested the Panel to reject that Athlete's appeal and denied CAS has jurisdiction. The Club asserted that it has no standing to be sued in this matter, nor that it is liable for the Athlete's violation.
The Club argued that the Athlete failed to demonstrate how he prohibited substance had entered his system. Further the Club holds that the testing of the Club's products in the Doha Laboratory was valid while these products did not contain the prohibited substance.
Preliminairy the Panel settled some issues and determines that the Club itself has no standing to be sued. Also the Panel dismissed the admissibility and evidentiary value of the polygraph test provided by the Athlete.
In this case the Panel assessed and addressed the following issues:
- What is the applicable standard of proof?
- Has the Player established how the substance entered his system?
- If so, what is the degree of negligence and fault attributable to the Player?
- What are the consequences thereof?
The Panel determines that:
- there is no reason to depart from the usual burden and standard of proof;
- the Athlete has failed to demonstrate the source of the prohibited substance;
- there are no grounds to claim a reduction of the period of inelgibility;
- the Athlete's reliance on his team doctors is generally not sufficient to claim a reduction of the sanction.
Therefore on 16 March 2022 the Court of Arbitration for Sport decides that:
1.) The CAS has jurisdiction to hear the appeal filed by Mr Bauyrzhan Islamkhan against the decision of the AFC Disciplinary and Ethics Committee of 23 December 2020.
2.) The appeal filed by Mr Bauyrzhan Islamkhan against the decision of the AFC Disciplinary and Ethics Committee of 23 December 2020 is dismissed.
3.) The decision of the AFC Disciplinary and Ethics Committee of 23 December 2020 is confirmed.
4.) (…).
5.) (…).
6.) All other motions or prayers for relief are dismissed.
