CAS 2021/A/7839 World Anti-Doping Agency (WADA) v. International Canoe Federation (ICF) & Nikolay Lipkin

• Canoeing (kayak)
• Doping (Trenbolone/Metenolone/Oxandrolone)
• Use of a prohibited substance
• Standard of proof
• Methods of proof
• Circumstantial evidence
• Aggravating circumstances
• Reduction of the period of disqualification in the interests of fairness

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1. It is made clear by Article 2.2.1 of the ICF 2009 Anti-Doping Regulations (ADR) that, because it is every athlete’s duty to ensure that no prohibited substance enters his or her body, it is not necessary to show that any use on the part of an athlete was intentional or knowing, or that an athlete was at fault in some way or that he or she failed to take due care (i.e., was negligent).

2. The standard of proof of comfortable satisfaction is greater than a mere balance of probability, but less than proof beyond a reasonable doubt. The more serious the allegation, the more cogent the supporting evidence must be in order for the allegation to be found proven. However, contrary to what is often asserted, the standard itself does not change; it is the required cogency of the evidence that changes on the basis that the more serious the allegations (a) the less likely that the alleged fact or event has occurred and (b) the more serious the consequences. The standard of proof remains to the comfortable satisfaction of the Panel bearing in mind the seriousness of the allegations.

3. As a general rule, facts relating to anti-doping rule violations (ADRV) may (i.e., it is permissible) be established by “any reliable means”. This rule gives greater leeway to anti-doping organisations to prove violations, so long as they can comfortably satisfy a tribunal that the means of proof is reliable. As a result, it is not even necessary that a violation be proven by a scientific test itself. Instead, a violation may be proved through admissions, testimony of witnesses, or other documentation evidencing a violation. This rule is not a requirement that the evidence adduced be “reliable evidence”. Rather, it is a rule as to the method or manner or form in which the facts that are necessary to sustain an allegation of an ADRV may be established, and the rule provides (in a non-exhaustive list) a number of examples of means of establishing facts which are characterised as “reliable”.

4. In case there is no direct but only circumstantial evidence, the adjudicatory body must assess the evidence separately and together and must have regard to what is sometimes called “the cumulative weight” of the evidence. It is in the nature of circumstantial evidence that single items of evidence may each be capable of an innocent explanation but, taken together, establish guilt beyond reasonable doubt. There may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion, but the whole taken together, may create a strong conclusion of guilt.

5. There are aggravating circumstances if an athlete participated in a doping plan or scheme to commit anti-doping rule violations and also engaged in deceptive or obstructing conduct to avoid the detection of an anti-doping rule violation.

6. Article 10.8 of the ICF 2009 ADR provides that all competitive results achieved by the athlete from the date that a positive sample was collected or other ADRV was committed through to the start of the period of ineligibility is to be disqualified with all of the resulting consequences as there set forth – unless fairness requires otherwise. Indeed in certain exceptional circumstances, the strict application of the disqualification rule can produce an unjust result. In particular, this may be the case when the potential disqualification period covers a very long term, which is normally the case when the facts leading to the ADRV took place long before the adjudicating proceedings started which usually occurs when they are opened as a result of the re-testing of a sample or of the uncover of a sophisticated doping scheme. In addition, in this type of cases it may be difficult to prove that the athlete at stake used prohibited substances or methods during such a long period of time.

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In 2016, Professor Richard McLaren issued two reports about systemic doping in Russia. These reports identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered.

Hereafter in January 2019 the World Anti-Doping Agency (WADA) recovered the internal database of the Moscow Laboratory (LIMS). Following investigation of allegations of organized doping practices, and in particular of the LIMS, WADA provided international federations with investigation reports on the athletes implicated in these organized doping practices.

These investigation reports revealed that the prohibited substances Metenolone, Oxandrolone and Trenbolone had been established in the 2 samples of the Athlete Nikolay Lipkin. These samples were provided by the Athlete in June 2014 and thereupon deliberately reported as negative by the Moscow laboratory.

However the ICF concluded that there was insufficient direct evidence that the Athlete had committed an anti-doping rule violation and decided on 11 March 2021 not to bring forward this case.

Hereafter in March 2021 the World Anti-Doping Agency (WADA) appealed the ICF decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a period of ineligibility on the Athlete from 2 to 4 years.

WADA contended that the evidence in relation to the Athlete's samples clearly showed that the Athlete committed an anti-doping rule violation and that the decision by the ICF not to move forward with this matter was manifestly wrong.

There was no pleaded challenge to the manner in which the ICF conducted itself in coming to its decision, only that its decision was wrong. The appeal was therefore conducted by the Parties as an inquiry into whether the evidence was sufficient to establish, to the applicable standard of proof, that the Athlete had committed an anti-doping rule violation and not as to whether the ICF had met its investigation obligations under its anti-doping rules and related international standards.

Following assessment of all of the evidence provided by the Parties, the Panel concludes as follows:

• There was a systemic cover-up and manipulation of the doping control process within Russia in the manner described by Prof. McLaren in the McLaren Reports, commonly referred to as the Russian doping scheme.
• The Moscow Laboratory performed initial testing procedures (ITP) on the Samples, the results of which showed the (presumptive) presence of the anabolic steroids Trenbolone, Metenolone and Oxandrolone.
• Each of these substances is a prohibited substance.
• In furtherance of the Russian doping scheme, and in order to protect the Athlete from the consequences of positive test results, the Moscow Laboratory did not go on to conduct the confirmation procedure to confirm the presence and/or concentration and/or origin of these substances but, instead, falsely recorded the analytical results of the Samples in the ADAMS as negative.
• In relation therefore to the ADRV allegations in this matter, the Panel concludes that, upon taking the evidence as a whole and assessing its cumulative weight, the Panel is comfortably satisfied that, on or about 5 June 2014 and on or about 19 June 2014, the Athlete used prohibited substances (namely, Trenbolone, Oxandrolone and Metenolone) in violation of Article 2.2(b) of the ICF 2009 ADR.

Therefore the The Court of Arbitration for Sport decides on 9 June 2022 that:

1.) The appeal filed by of the World Anti-Doping Agency on 9 June 2021 against the International Canoe Federation and Mr Nikolay Lipkin with respect to the decision rendered on 11 March 2021 by the International Canoe Federation is upheld.

2.) The decision rendered on 11 March 2021 by the International Canoe Federation in the matter of Mr Nikolay Lipkin is set aside.

3.) Mr Nikolay Lipkin is found to have committed an anti-doping rule violation under Article 2.2 of the International Canoe Federation’s 2009 Anti-Doping Rules.

4. Mr Nikolay Lipkin is sanctioned with a period of ineligibility of four (4) years starting from the date of this Award, subject to any period of provisional suspension already served.

5.) All competitive results achieved by Mr Nikolay Lipkin from 5 June 2014 through to and including 31 December 2016 are disqualified with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points and prize and appearance money.

6.) (…).

7.) (…).

8.) All other or further requests for relief are hereby dismissed.

CAS 2021/A/7838 World Anti-Doping Agency (WADA) v. International Canoe Federation (ICF) & Aleksandr Dyachenko

Related case:

CAS OG_2016_19 Natalia Podolskaya & Alexander Dyachenko vs ICF
August 8, 2016

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• Canoeing (kayak)
• Doping (trenbolone/metenolone)
• Use of a prohibited substance
• Standard of proof
• Methods of proof
• Circumstantial evidence
• Aggravating circumstances
• Reduction of the period of disqualification in the interests of fairness

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1. It is made clear by Article 2.2.1 of the ICF 2009 Anti-Doping Regulations (ADR) that, because it is every athlete’s duty to ensure that no prohibited substance enters his or her body, it is not necessary to show that any use on the part of an athlete was intentional or knowing, or that an athlete was at fault in some way or that he or she failed to take due care (i.e., was negligent).

2. The standard of proof of comfortable satisfaction is greater than a mere balance of probability, but less than proof beyond a reasonable doubt. The more serious the allegation, the more cogent the supporting evidence must be in order for the allegation to be found proven. However, contrary to what is often asserted, the standard itself does not change; it is the required cogency of the evidence that changes on the basis that the more serious the allegations (a) the less likely that the alleged fact or event has occurred and (b) the more serious the consequences. The standard of proof remains to the comfortable satisfaction of the Panel bearing in mind the seriousness of the allegations.

3. As a general rule, facts relating to anti-doping rule violations (ADRV) may (i.e., it is permissible) be established by “any reliable means”. This rule gives greater leeway to anti-doping organisations to prove violations, so long as they can comfortably satisfy a tribunal that the means of proof is reliable. As a result, it is not even necessary that a violation be proven by a scientific test itself. Instead, a violation may be proved through admissions, testimony of witnesses, or other documentation evidencing a violation. This rule is not a requirement that the evidence adduced be “reliable evidence”. Rather, it is a rule as to the method or manner or form in which the facts that are necessary to sustain an allegation of an ADRV may be established, and the rule provides (in a non-exhaustive list) a number of examples of means of establishing facts which are characterised as “reliable”.

4. In case there is no direct but only circumstantial evidence, the adjudicatory body must assess the evidence separately and together and must have regard to what is sometimes called “the cumulative weight” of the evidence. It is in the nature of circumstantial evidence that single items of evidence may each be capable of an innocent explanation but, taken together, establish guilt beyond reasonable doubt. There may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion, but the whole taken together, may create a strong conclusion of guilt.

5. There are aggravating circumstances if an athlete participated in a doping plan or scheme to commit anti-doping rule violations and also engaged in deceptive or obstructing conduct to avoid the detection of an anti-doping rule violation.

6. Article 10.8 of the ICF 2009 ADR provides that all competitive results achieved by the athlete from the date that a positive sample was collected or other ADRV was committed through to the start of the period of ineligibility is to be disqualified with all of the resulting consequences as there set forth – unless fairness requires otherwise. Indeed in certain exceptional circumstances, the strict application of the disqualification rule can produce an unjust result. In particular, this may be the case when the potential disqualification period covers a very long term, which is normally the case when the facts leading to the ADRV took place long before the adjudicating proceedings started which usually occurs when they are opened as a result of the re-testing of a sample or of the uncover of a sophisticated doping scheme. In addition, in this type of cases it may be difficult to prove that the athlete at stake used prohibited substances or methods during such a long period of time.

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In 2016, Professor Richard McLaren issued two reports about systemic doping in Russia. These reports identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered.

Hereafter in January 2019 the World Anti-Doping Agency (WADA) recovered the internal database of the Moscow Laboratory (LIMS). Following investigation of allegations of organized doping practices, and in particular of the LIMS, WADA provided international federations with investigation reports on the athletes implicated in these organized doping practices.

These investigation reports revealed that the prohibited substances Metenolone and Trenbolone had been established in the 2 samples of the Athlete Alesandr Dyachenko. These samples were provided by the Athlete in 2014 and thereupon deliberately reported as negative by the Moscow laboratory.

However the ICF concluded that there was insufficient direct evidence that the Athlete had committed an anti-doping rule violation and decided on 11 March 2021 not to bring forward this case.

Hereafter in March 2021 the World Anti-Doping Agency (WADA) appealed the ICF decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a period of ineligibility on the Athlete from 2 to 4 years.

WADA contended that the evidence in relation to the Athlete's samples clearly showed that the Athlete committed an anti-doping rule violation and that the decision by the ICF not to move forward with this matter was manifestly wrong.

The Athlete denied that he had committed an anti-doping rule violation and argued that the appeal should be dismissed and the Appealed Decision should be confirmed. Further he disputed the reliability of the filed evidence in this case provided by WADA, Professor McLaren and Dr Rodchenkov.

There was no pleaded challenge to the manner in which the ICF conducted itself in coming to its decision, only that its decision was wrong. The appeal was therefore conducted by the Parties as an inquiry into whether the evidence was sufficient to establish, to the applicable standard of proof, that the Athlete had committed an anti-doping rule violation and not as to whether the ICF had met its investigation obligations under its anti-doping rules and related international standards.

Following assessment of all of the evidence provided by the Parties, the Panel concludes as follows:

• There was a systemic cover-up and manipulation of the doping control process within Russia in the manner described by Prof. McLaren in the McLaren Reports, commonly referred to as the Russian doping scheme.
• The Athlete was a protected athlete within the Russian doping scheme.
• The Moscow Laboratory performed initial testing procedures on the Samples, the results of which showed the (presumptive) presence of the anabolic steroids Epitrenbolone (a metabolite of Trenbolone) in Sample No.1 and Epitrenbolone and 16a-hydroxy-1-methyl-5a-androst-1-ene-3,17-dione (a metabolite of Metenolone) in Sample No.2.
• Each of these substances is a prohibited substance.
• In furtherance of the Russian doping scheme, and in order to protect the Athlete from the consequences of positive test results, the Moscow Laboratory did not go on to conduct the confirmation procedure to confirm the presence and/or concentration and/or origin of these substances but, instead, recorded the analytical results of the Samples in the Anti-Doping Administration & Management System (ADAMS) as negative.
• In relation therefore to the ADRV allegations in this matter, the Panel concludes that, upon taking the evidence as a whole and assessing its cumulative weight, the Panel is comfortably satisfied that, on or about 5 June 2014 and on or about 3 August 2014, the Athlete used prohibited substances (namely, Trenbolone and Metenolone) in violation of Article 2.2(b) of the ICF 2009 ADR.

Therefore the The Court of Arbitration for Sport decides on 9 June 2022 that:

1.) The appeal filed by the World Anti-Doping Agency on 1 April 2021 against the International Canoe Federation and Mr Aleksandr Dyachenko with respect to the decision rendered on 11 March 2021 by the International Canoe Federation is upheld.

2.) The decision rendered on 11 March 2021 by the International Canoe Federation in the matter of Mr Aleksandr Dyachenko is set aside.

3.) Mr Aleksandr Dyachenko is found to have committed an anti-doping rule violation under Article 2.2 of the International Canoe Federation’s 2009 Anti-Doping Rules.

4.) Mr Aleksandr Dyachenko is sanctioned with a period of ineligibility of four (4) years starting from the date of this Award, subject to any period of provisional suspension already served by Mr Aleksandr Dyachenko.

5.) All competitive results achieved by Mr Aleksandr Dyachenko from 5 June 2014 through to and including 31 December 2016 are disqualified with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points and prize and appearance money.

6.) (…).

7.) (…).

8.) All other or further requests for relief are hereby dismissed.

Related cases:

• UKAD 2017 UKAD vs Rangi Chase
  November 1, 2017
• UKAD 2021 UKAD vs Rangi Chase
  February 14, 2022

In October 2022 the United Kingdom Anti-Doping (UKAD) has reported an new anti-doping rule violation against the New Zealand rugby player Rangi Chase after his sample tested positive for the prohibited substance Cocaine.

Following notification the Athlete admitted the violation, waived his right for a hearing, accepted a provisional suspension and the sanction proposed by UKAD.

The Athlete acknowledged that he had used the substance out-of-competition and unrelated to sports performance prior to the match (within a social setting).

UKAD accepts that the Athlete’s violation was not intentional and considers that prevously he was also sanctioned in 2017 and in 2022 for his use of Cocaine. Despite these multiple violations UKAD deems that the applicable period of ineligibility shall be 3 months.

Therefore UKAD decides on 6 January 2023 to impose a 3 month period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 31 October 2022.

In October 2021 the International Tennis Federation (ITF) has reported an anti-doping rule violation against the Russian  tennis player Daria Mishina after her sample tested positive for the prohibited substance Testosterone.

After notification the Athlete gave a prompt admission, waived her right for a hearing, accepted a provisional suspension and the sanction proposed by the ITF.

The Athlete accepted the test result and denied the intentional use of the substance. She explained with evidence that she underwent treatment in a Clinic for her medical condition.

She asserted that in this Clinic the medical staff accidentally must have mixed up two treatments. She had to receive a Vitamin D injection whereas another patient had to receive a Testosterone intravenous infusion.

The ITF considered that the administered intravenous infusion in the Clinic is a prohibited method and invited the Athlete to apply for a retroactive TUE. However the ITF TUE Committee rejected this application in August 2022.

Consequently in in December 2020 the ITF formally reported two anti-doping rule violations against the Athlete for the presence of Testosterone and for the use of a prohibited method. In view of the evidence The ITF deems that the Athlete had not demonstrated that the violation was not intentional and considers that she gave an early admission and acceptance of sanction.

Therefore the ITF decides on 17 February 2023 to impose a 3 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 16 October 2021

iNADO Update (2023) 3 (6 March)
Institute of National Anti-Doping Organisations (iNADO)

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Contents:

Building a Supportive Community

• iNADO welcomes Morocco as a new Member
• Final Call for fundraising for the Ukraine NADO
• KADA Supporting Capacity Building in the Asian Region

Improving Practice Everywhere

• Women's Representation in Sports Institutions
• 2023 Annual iNADO Workshop
• Summary of Detection Methods from the Cologne and Lausanne Laboratories
• iNADO Webinar: with NADA Germany and SIA on Education

Speaking up for NADOs and RADOs Globally

• Summary of Testing Figures and Budget Changes
• Caribbean looking at Jamaica Model for Sports Development

Monthly Features

• Adriana Taboza, newly appointed National Secretary of Brazilian Doping Control Authority
• Women's Representation in Anti-Doping
• Li Zhiquan, new Director General of China Anti-Doping Agency
• iNADO's Cooperation with the Consultancy Agency OAKS coming to an end

iNADO Sponsors and Partners

• New at the Anti-Doping Knowledge Center

Report of the Independent Observers XXII Commonwealth Games  Birmingham 2022 / Independent Observer Team. - Montreal : World Anti-Doping Agency (WADA), 2023

Report of the Independent Observers XXIV Olympic Winter Games Beijing 2022 / Hitesh Patel. - Independent Observer Team. - Montreal : World Anti-Doping Agency (WADA), 2022

Report of the Independent Observers XXIV Paralympic Winter Games Beijing 2022 / Shafag Huseynli. - Independent Observer Team. - Montreal : World Anti-Doping Agency (WADA), 2022

In May 2022 United Kingdom Anti-Doping (UKAD) on behalf of the United Rugby Championship (URC) reported an anti-doping rule violation against the Australian rugby player Junior Laloifi after his sample tested positive for the prohibited substance Cocaine.

Following notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the National Anti-Doping Panel.

The Athlete gave a prompt admission and denied the intentional use of the substance. He explained that he had used Cocaine in a nightclub out-of-competition in the night between 4 and 5 March 2022.

UKAD did not accept the Athlete's explanation and contended with his expert witness that the found concentration in his sample was to high to be consistent with his alleged moment of ingestion of Cocaine. Furthermore UKAD asserted that the Athlete had changed his testimonies about the moment of use of Cocaine prior to the sample collection.

In this case the Panel had sufficient doubts about the credibility of the Athlete's statements about his moment of use of Cocaine. Instead it had to rely on evidence filed by UKAD, the Athlete's evidence and witness statements.

In view of the evidence the Panel establishes that the Athlete did not, and had almost had no conceivable opportunity to, ingest Cocaine between 11:59 pm on 5 March 2022 and the sample collection on 6 March 2022.

The Panel considers that at the material time the Athlete's life was disordered and involved heavy consumption of alcohol. The Panel deems that his ingestion of Cocaine was clearly related to his irresponsible conduct and mental state rather than preparation for the rugby match

Therefore the Panel decides on 6 January 2023 to impose a 3 month period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 31 may 20222. The Athlete already has served this suspension.

In July 2021 the Athletics Integrity Unit (AIU) on behalf of World Athletics reported an anti-doping rule violation against the Iraqi Athlete Danah Hussein after her A and B samples tested positive for the prohibited substances Stanozolol and Clenbuterol. Following notification a provisional suspension was ordered.

The Athlete could not explain the test result and stated that her Coach Karokh Salih Mohammed was responsible for her nutrition, supplements, medication and vitamins. She cooperated with the investigations and could provide evidence about the prohibited substances purchased and provided by the Coach.

Ultimately in June 2022 the Coach admitted that he had provided Stanozolol and Clenbuterol pills to the Athlete. He signed and submitted the Admission of Anti-Doping Rule Violations and Acceptance of Consequences Form and on 20 February 2023 he accepted a lifetime period of ineligiblity.

The AIU assesses the Athlete's conduct in this case and finds that she acted with indirect intent. The AIU determines that she had ignored several warning signs and nevertheless she chose to ingest these pills. Her reckless behaviour in this sense means that she is considered to have accepted that a positive test result might materialise.

Because the Athlete signed and submitted the Admission of Anti-Doping Rule Violations and Acceptance of Consequences Form in February 2023 she received a 1 year reduction from the AIU. She admitted the violation, waived her right for a hearing and accepted the sanction proposed by the AIU.

Furthermore the AIU acknowledged that the Athlete had provided substantial assistance about the serious violations committed by the Coach. Based on her substantial assistance the AIU grants a suspension of 6 months of the sanction.

Therefore the AIU decides on 20 February 2023 to impose a 2 year and 6 months period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e on 16 July 2021.