CAS 2021/A/8056 Olga Pestova v. Russian Anti-Doping Agency (RUSADA)
- Rugby
- Doping (methylhexaneamine)
- Conditions for the reduction of the standard sanction on the basis of “No Significant Fault or Negligence”
- Level of care expected from the athlete for a finding of “No Significant Fault or Negligence”
- Categories and levels of fault
1. According to the applicable regulations, in order for the standard sanction for a violation involving a specified substance and a non-intentional anti-doping rule violation to be reduced on the basis of “No Significant Fault or Negligence”, the athlete must, on a balance of probabilities, firstly establish how the prohibited substance entered his/her system (the so-called “route of ingestion”). This is the “threshold” condition established by the anti-doping rules to allow “access” to a finding of “No Significant Fault or Negligence”. Secondly, s/he must establish the facts and circumstances that are relevant to his/her fault and, on that basis, why the standard sanction should be reduced. A period of ineligibility can be reduced based on “No Significant Fault or Negligence” only in cases where the circumstances justifying a deviation from the duty of exercising the “utmost caution” are truly exceptional, and not in the vast majority of cases.
2. The “bar” should not be set too high for a finding of “No Significant Fault or Negligence”. In other words, a claim of “No Significant Fault or Negligence” is (by definition) consistent with the existence of some degree of fault and cannot be excluded simply because the athlete left some “stones unturned”. An athlete can always read the label of the product used or make internet searches to ascertain its ingredients, cross-check the ingredients so identified against the Prohibited List or consult with the relevant sporting or anti-doping organizations, consult appropriate experts in anti-doping matters and, eventually, not take the product. However, an athlete cannot reasonably be expected to follow all such steps in every and all circumstances. To find otherwise would render the “No Significant Fault or Negligence” provision in the World Anti-Doping Code (WADC) and translated into the applicable regulations meaningless.
3. Until the 2015 version of the WADC, anti-doping rules allowed a distinction between three degrees of fault or negligence. The 2015 version of the WADC significantly differs from the previous scheme for the consideration of the specificities of individual cases. As a result, the time span of 24 months which is still available now covers only two instead of three categories of fault: 1) normal degree of fault: over 12 months and up to 24 months with a standard normal degree leading to an 18-month period of ineligibility; and 2) light degree of fault: 0-12 months with a standard light degree leading to a 6-month period of ineligibility. In order to determine into which category of fault a particular case might fall, it is helpful to consider both “objective” and “subjective” levels of fault. The objective level of fault points to “what standard of care could have been expected from a reasonable person in the athlete’s situation”, while the subjective level looks to “what could have been expected from that particular athlete, in the light of his/her particular capacities”. Therefore, the objective element should be foremost in determining into which of the relevant categories a particular case falls; the subjective element can then be used to move a particular athlete up or down within that category. All in all, however, there might be some overlap within those elements.
In October 2020 the Russian Anti-Doping Agency (RUSADA) reported an anti-doping rule violatin against the rugby player Olga Pestova after her sample tested positive for the prohibited substance Methylhexaneamine (1,3-dimethylamylamine).
Consequently on 19 May 2021 the RUSADA Disciplinary Anti-Doping Committee (DADC) decided to impose a 1 year period of ineligibility on the Athlete. The DADC accepted that the violation was not intentional and considered that at the material time the Athlete suffered from a head injury that effected her physical and psychological condition.
Hereafter in June 2021 the Athlete appealed the DADC decision with the Court of Arbitration for Sport (CAS). She requested the Panel to set aside the Appealed Decision and to eliminate or reduce the imposed sanction.
The Athlete admitted the violation and denied the intentional use of the substance. She explained that she suffered from a head injury a week before the match and the sample collection.
After her injury she did not receive a proper examination and she continued to train while she experienced acute headache, nausea and dizziness. Feeling sick and disoriented she consumed a Melior sport drink purchased in a sport nutrition shop.
She asserted that she did check the ingredients of this drink and only after further research into this product it appeared that this Melior drink was a counterfeit product of Russian origin. She acknowledged that she did not inform the team's managagement about her medical condition because she feared not to be selected for the next match.
The Athlete argued that her cognitive disorder caused by concussion is of particular relevance to assess whether she could adequately evaluate the information and make decisions when she bought and consumed the Melior sport drink.
RUSADA accepted that the Athlete's violation was not intentional and that the Melior sport drink was the possible source of the prohibited substance in her sample. Yet it does not accept that the Athlete has demonstrated that her judgement or decision-making capacity was, in any event, impaired by her head injury.
The Sole Arbitrator finds that it is undisputed between the Parties that the Athlete has committed an anti-doping rule violation and has demonstrated how the substance had entered her system.
Following assessment of the Athlete's conduct impaired by her head injury the Sole Arbitrator deems that there is no justification for a further reduction of the imposed sanction.
Therefore the Court of Arbitration for Sport decides on 23 May 2022 that:
1. The appeal filed by Ms Olga Pestova with the Court of Arbitration for Sport against the decision issued on 13 May 2021 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is dismissed.
2. The decision issued on 13 May 2021 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is confirmed.
3. (…).
4. (…).
5. All other prayers for relief are dismissed.
