CAS 2021/A/8125 Heiki Nabi v. Estonian Center for Integrity in Sports
- Wrestling
- Doping (letrozole)
- Plausibility of meat contamination
- Plausibility of contamination by transfer of sweat and/or saliva from other athlete or from gym equipment
- Obligation to establish the specific source of the prohibited substance
- Balance of probability
- Reduction of the sanction based on the principle of proportionality
1. Athletes who have a clean record and do not have uncharacteristically poor competitive results before the violation (and thus avoid the possible inference that they had a motive to cheat) or uncharacteristically good results thereafter (which might be suggested to confirm cheating) will improve their prospects yet further if they can show an invoice from a restaurant indicating they were served meat which could be traced to a wholesale supplier known or suspected by regulatory authorities to feed steroids or other prohibited substances to its livestock.
2. A theory of letrozole contamination by transfer of sweat and/or saliva from other athlete or from gym equipment must be rejected as unlikely (i) without tangible scientific evidence to support this theory, and (ii) given the complexities of letrozole effectively passing through two bodily systems and two skin barriers, and (iii) the athlete’s inability to identify with any kind of certainty the individual who might have transmitted letrozole, and (iv) the fact the no other of the many athletes who train at the same gym and use the same equipment tested positive for letrozole.
3. Establishing the specific source of a prohibited substance is required when an athlete seeks to prove No Fault or Negligence or No Significant Fault or Negligence under the definitions of No Fault or Negligence and No Significant Fault or Negligence in the applicable anti-doping regulations. The “narrowest corridor” through which an athlete who has not been able to conclusively identify the specific source of the prohibited substance may pass to reach a finding of No (Significant) Fault or Negligence only applies to cases involving non-specified substances and only to allow athletes to pass from a four-year period of ineligibility to a two-year period of ineligibility, based on their lack of intention, in the event that in the face of extraordinary circumstances they are unable to establish the source of the adverse analytical finding.
4. The standard of proof of balance of probability requires that the occurrence of a scenario suggested by an athlete must be more likely than its non-occurrence, and not the most likely among competing scenarios.
5. The no fault or negligence and no significant fault or negligence exceptions to otherwise strict liability anti-doping rule are themselves embodiments of the principle of proportionality. Even an ‘uncomfortable feeling’ regarding a sanction mandated in the rules is not sufficient to involve the principle of proportionality where the applicable rules include a sanctioning regime which is proportionate and contains clear and concise mechanism which allows for a reduction of the applicable sanction.
In February 2021 the Estonian Center for Integrity in Sports (ESTCIS) reported an anti-doping rule violation against the Estonian wrestler after his A and B samples tested positive for the prohibited substance Letrozole.
Consequently the ESTCIS Disciplinary Board decided on 27 June 2021 to impose a 2 year period of ineligibility on the Athlete.
Hereafter in July 2021 the Athlete appealed the ESTCIS Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to annul or reduce the imposed sanction.
The Panel finds that the presence of a prohibited substance had been established in the Athlete's samples and accordingly that he committed an anti-doping rule violation. Undisputed for the Parties is that the Athlete's violation was not intentional.
The Panel assessed and addressed the following issues:
- a.) Has the Athlete established how Letrozole entered his system on a balance of probabilities?
- b.) Can the Athlete successfully rely on Article 10.5 EADR (No Fault or Negligence) or Article 10.6 EADR (No Significant Fault or Negligence) to benefit from a reduction in the mandated two-year period of ineligibility?
- c.) Should the two-year period of ineligibility be reduced based on the principle of proportionality?
Thereupon the Panel determines that none of the alternative theories the Athlete has brought forth are sufficiently scientifically probable to convince the Panel on a preponderance of the evidence that their occurrence is more likely that their non-occurrence. He thus fails to establish to source of Letrozole to the required standard of proof.
The Panel rejects all of the Athlete’s contentions that he need not establish the source of the Prohibited Substance in order to successfully rely upon and benefit from Articles 5 and 6 of the EADR. Because he failed to establish, on a balance of probabilities, how Letrozole entered his system, he cannot benefit from a reduction in his period of ineligibility on the basis of having No Fault or No Significant Fault for the ADRV.
The Panel has “an uncomfortable feeling” regarding the applicable period of ineligibility. Notwithstanding the same, relying on the above case law, the Panel stresses that this uncomfortable feeling is not sufficient to involve the principle of proportionality by reducing the sanction that has been ruled appropriate on the basis of facts and evidence before the Panel, and more conclusively on the basis of the applicable rules.
The Panel concludes:
- The finding of Letrozole in the Athlete’s sample is the result of incidental exposure.
- The source of the AAF has not been established on a balance of probabilities.
- None of the possible scenarios provided allow the Athlete to satisfy, on a balance of probabilities, his burden to establish the source of Letrozole detected in his urine sample.
- The Athlete is a credible witness and unfortunate victim of what has been determined to be inadvertent administration of trace amounts of Letrozole from an unknown source.
- He is paying a heavy price for incidental circumstances that may, or may not, have been outside of his control, and should not be branded as a cheater or a doper.
Therefore the Court of Arbitration for Sport decides on 20 October 2022 that:
1. The appeal filed by Mr. Heiki Nabi on 21 July 2021 against the decision issued by the Disciplinary Board of the Estonian Center for Integrity in Sports on 27 June 2021 is dismissed.
2. The decision issued by the Disciplinary Board of the Estonian Center for Integrity in Sports on 27 June 2021 is confirmed.
3. (…).
4. (…).
5. All other motions or prayers for relief are dismissed.
