30 Sep 2020
CAS 2019/A/6465 World Anti-Doping Agency (WADA) v. International Skating Union (ISU) & Vitali Mikhailov
ISU 2019 ISU vs Vitali Mikhailov
August 12, 2019
In April 2019 the International Skating Union (ISU) had reported an anti-doping rule violation against the Belarussian Athlete Vitali Mikhailov after his sample tested positive for the prohibited substance Higenamine.
After notification the Athlete admitted the violation, denied the intentional use of the substance and explained that he had purchased in Canada a pre-workout supplement in a sports nutrition store. He mentioned the use of this supplement on the Doping Control Form and acknowledged that he was unaware that this supplement contained a prohibited substance.
The ISU Disciplinary Commission considered this case and concluded that a value of 7 ng/mL of Higenamine should not have been reported as an Adverse Analytical Finding. Accordingly no weight can be given to a sanction flowing from it. Therefore the ISU Disciplinary Commission decided on 12 August 2019 to dismiss the case against the Athlete.
Hereafter the World Anti-Doing Agency (WADA) appealed the ISU Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the ISU Decision of 12 August 2019 and to impose a 2 year period of ineligibility on the Athlete. WADA accepts that the violation was not intentional but contended that the Athlete acted negligently due to he failed to check his supplement before using.
Further WADA contended that since a positive test for Higenamine has been reported by the Montreal Lab, the presence of a prohibited substance constitutes an anti-doping rule violation regardless of the fact that the presence of the substance is below the reporting limit of 10 ng/mL as foreseen in the WADA TD2018MRPL.
The ISU and the Athlete requested the Panel to uphold the findings in first instance of the ISU Disciplinary Commission:
- that the reporting limit for Higenamine established by Rule 4.0 of the WADA TD 2018MRPL is mandatory;
- that it was in violation of this rule to report the presence of Higenamine of 7 ng/mL in the Athlete's body as adverse analytical finding; and
- that therefore the Skater has to be acquitted of the charge to have violated the ISU Anti-Doping Rules and the Appeal dismissed.
The Panel holds that this case centers around one legal question, which is whether the Athlete could be sanctioned for an ADRV when the Prohibited Substance was reported by the Laboratory at levels which are below reporting levels foreseen under Rule 4.0 of the WADA TD2018MRPL.
Considering the arguments of the Parties the Panel concludes that the presence of Higenamine in the Athlete's sample is sufficient for the finding of an anti-doping rule violation under the ISU ADR. Further the Panel concludes that the concentration level of Higenamine in the Athlete's urine was an irrelevant factor to determine the anti-doping rule violation.
The Panel holds that an anti-doping rule violation under the ISU ADR could also be demonstrated since the Athlete had admitted having ingested a Prohibited Substance. Here the Panel considers that the Athlete indeed had admitted the use of a food supplement but not that he had committed an anti-doping rule violation. The matter of a Timely Admission was not raised by the Parties during the procedure.
The Panel finds that it was undisputed that the violation was not intentional but it deems that there are no grounds for No Significant Fault or Negligence since the Athlete failed to researcht his supplement before using it.
Therefore The Court of Arbitration for Sports decides on 30 September 2020 that:
- The Appeal filed by WADA against the International Skating Union on 19 September 2019 against the decision rendered on 12 August 2019 by the Disciplinary Commission of the International Skating Union is upheld.
- The decision rendered on 12 August 2019 by the Disciplinary Commission of the International Skating Union is set aside.
- Vitali Mikhailov is found to have committed an anti-doping rule violation.
- Vitali Mikhailov is sanctioned with a two-year period of ineligibility starting on the date of this Award.
- All competitive results obtained by Mr. Vitali Mikhailov on 2 March 2019 and any other results achieved at the 2019 ISU World Allround Speed Skating Championships in Calgary, Canada, are disqualified, with all of the resulting consequences, including forfeiture of any medals, points and prizes.
- The Award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss francs) paid by WADA, which is retained by the Court of Arbitration for Sports.
- ISU is ordered to contribute CHF 3,000 to WADA's legal fees and costs.
- All further motions and requests for relief are dismissed.