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.

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 sample tested positive for the prohibited substances Stanozolol and Clenbuterol.

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.

The Coach acknowledged that he had provided these products to the Athlete and alleged that he was unaware they contained prohibited substances.

After further investigations the Coach admitted in June 2022 that he had provided Stanozolol and Clenbuterol pills to the Athlete in June 2021.

Consequently in November 2022 the AIU reported multiple anti-doping rule violations against the Coach for Possession, Trafficking, Administration and Complicitiy. Following notification the Coach admitted the violations, waived his right for a hearing and accepted a provisional suspension.

Finally in December 2022 the Coach signed and submitted the Admission of Anti-Doping Rule Violations and Acceptance of Consequences Form and accepted the sanction proposed by the AIU.

Therefore the AIU decides on 20 February 2023 to impose a lifetime period of ineligibility on the Coach, starting on the date of the provisional suspension, i.e on 16 November 2021.

In November 2022 the Athletics Integrity Unit (AIU) on behalf of World Athletics has reported an anti-doping rule violation against the Argentinian Athlete José Sanches after his sample tested positive for the prohibited substance Cocaine.

After notification, the Athlete admitted the violation, waived his right for a hearing, accepted a provisional suspension and the sanction proposed by the AIU. He signed and submitted the Admission of Anti-Doping Rule Violation and Acceptance of Consequences Form.

The Athlete explained with evidence that in September 2022 he had chewed coca leaves because of his mountain sickness. He also had used coca tea to treat an upset stomach caused by altitude sickness.

In view of the evidence the AIU accepts that the violation was not intentional and the result of the Athlete's use of coca leaves and coca tea out-of-competition and unrelated to sport perfomance.

Therefore the AIU decides on 17 February 2023 to impose a 3 month period of ineligibility on the Athlete starting, on the date of the provisional suspension, i.e. on 18 November 2022.

In June 2022 the International Tennis Integrity Agency (ITIA) on behalf of the International Tennis Federation (ITF) reported an anti-doping rule violation against the Brazilian tennis player Gilbert Klier Junior after his A and B samples tested positive for Selective androgen receptor modulators, i.e. SARM S-22.

After notification the Athlete gave a prompt admission, waived his right for a hearing, accepted a provisional suspension and the sanction proposed by the ITIA. He denied the intentional use of the substance and asserted that he acted with No Significant Fault or Negligence.

The Athlete believed that the prescribed supplement he had used was contaminated. Analysis in the Laboratory of the two bottles containing this compounding supplement confirmed the presence of SARM contaminants.

The Athlete argued that he mentioned this supplement on the Doping Contol Form and that he demonstrated with corroborating evidence that it came from a compounding pharmacy.

In view of the evidence the ITIA accepts that the violation was not intentional. Following assessment of the Athlete's conduct regarding this supplement the ITIA concludes that he acted with No Significant Fault or Negligence.

Therefore the ITIA decides on 19 January 2023 to impose a 1 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 9 June 2022.

In May 2022 United Kingdom Anti-Doping (UKAD) has reported an anti-doping rule violation against the rugby player Callum Marriott after his sample tested positive for the prohibited substances Enobosarm (Ostarine) and GW1516.

Following notification and charge the Athlete gave a prompt admission, waived his right for a hearing, accepted a provisional suspension and the sanction proposed by UKAD. Because the Athlete gave a timely admission of the anti-doping rule violation he received a 1 year reduction from UKAD.

Therefore on 10 January 2023 UKAD decides to impose a 3 year period of ineligibility on the Athlete, starting backdated on the date of the provisional suspension, i.e. on 4 May 2022.

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 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.

CAS 2019/A/6482 Gabriel da Silva Santos v. Fédération Internationale de Natation (FINA)

Related case:

FINA 2019 FINA vs Gabriel da Silva Santos
October 7, 2019

• Aquatics (swimming)
• Doping (clostebol)
• CAS panels’ adjudicatory role
• Basis for the analysis of an athlete’s claim of No Fault or Negligence
• Limits to athletes’ required endeavours to defeat doping
• Athletes’ anti-doping-related responsibility for their entourage

1. It is not up to CAS panels to engage in a review, or revision, of the rules applicable to a dispute, supplementing its views for that of the drafters of said regulations.

2. Panels confronted with a claim by an athlete of No Fault or Negligence must evaluate what this athlete knew or suspected and what s/he could reasonably have known or suspected, even with the exercise of utmost caution. In addition, panels must consider the degree of risk that should have been perceived by an athlete and the level of care and investigation exercised by an athlete in relation to what should have been the perceived level of risk as required by the definition of Fault.

3. There are, and must be limits to which the anti-doping rules can extend in terms of imposing obligations on athletes. There are circumstances where it is not reasonable, nor can there have been any way for an athlete to have appreciated any degree of risk of testing positive. It is an unreasonable and impractical expectation to obligate an athlete to endeavor to survey the ailments of family members and the use by family members of various substances when visiting them in their home for a short stay.

4. A brother an athlete does not live with, and to whom the athlete does not assign any responsibility or participation in fulfilling his/her anti-doping obligations, is not a member of the athlete’s entourage for whose actions the athlete bears anti-doping-related responsibility.

On 7 October 2019 the FINA Doping Panel decided to impose a 12 month period of ineligibility on the Athlete after he tested positive for the prohibited substance Clostebol.

In first instance the Panel accepted on the balance of probabilities the Athlete’s explanation that cross contamination had caused the positive test result. The Panel deemed that the violation was not intentional and that the Athlete had established No Significant Fault or Negligence with a low degree of fault.

Hereafter in September 2019 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose no sanction or ineligibility period on him or alternatively a more reduced sanction.

FINA requested the Panel to uphold the Appealed Decision and contended that the FINA Anti-Doping Panel already had imposed the lowest possible sanction based on No Significant Fault or Negligence.

The Panel assessed and addressed whether the Athlete bore any fault or negligence, and, if so, he should receive the benefit of the contaminated products rule. If not applicable then what was his level of fault so that a determination of a reduction, if any, in his period of ineligibility could be computed.

The Panel rejects the Athlete's argument that Specified Substances and non-Specified Substances positive tests to be treated identically on fairness grounds. However in view of the circumstances the Panel deems that this case is truly unique and determines unanimously that the Athlete has established No Fault of Negligence.

Therefore the Court of Arbitration for Sport decides on 14 February 2020 that:

1.) The appeal filed by Mr Gabriel da Silva Santos against the Fédération Internationale de Natation with respect to the decision rendered by the FINA Doping Panel on 19 July 2019 (rectified on 22 July 2019) is upheld.

2.) The decision rendered by the FINA Doping Panel on 19 July 2019 (rectified on 22 July 2019) is set aside.

3.) Mr Gabriel da Silva Santos is found to have committed an Anti-Doping Rule Violation but bears no fault or negligence and no period of ineligibility shall be imposed on him.

4.) (…).

5.) (…).

6.) All other motions or prayers for relief are dismissed.

CAS 2019/A/6210 & 6277 Yang Gao v. Olympic Council of Asia (OCA)

• Athletics (shot put)
• Doping (betamethasone)
• Procedural flaws warranting annulation of the challenged decision (de novo hearing)
• ADRV based on the presence of a prohibited substance in-competition
• Interpretation of the Prohibited List
• Entitlement of the athlete to a retroactive TUE

1. From a Swiss perspective, there is no uniform standard of independence with respect to adjudicatory bodies of associations. In particular, the majority of legal literature applies a lesser standard with regard to independence for association tribunals compared to state courts or arbitral tribunals. Furthermore, even if the members of an association tribunal were not sufficiently independent, such a procedural flaw may be healed in a proceeding before the CAS. According to Article R57 para. 1 of the CAS Code, the Panel has the full power to review the facts and the law. In principle, the de novo proceeding before the CAS cures any purported (procedural) violations that occurred in prior proceedings. There may be exceptions to this rule in case of exceptional circumstances. However, in any case, i.e. even if 2 members of the association’s disciplinary body were not sufficiently independent, such violation cannot be qualified as an irreparable breach of the applicable procedural standards. If the appellant has the opportunity to extensively present his/her case before the CAS, where all of his/her fundamental procedural rights are fully respected, any procedural flaw before the association’s disciplinary body fades to the periphery and is herewith cured.

2. It clearly follows from the applicable anti-doping regulations (ADR) that for an anti-doping rule violations (ADRV) based on presence of a Prohibited Substance it is irrelevant when the substance was administered. Instead, it suffices that the Prohibited Substance is still present in the athlete’s system in-competition.

3. Under Section S9 of the Prohibited List all glucocorticoids are prohibited when administered by intramuscular routes. The term “intramuscular” might appear clear and unambiguous at the outset i.e. injections of glucocorticoids into the muscle. Yet, to decide an important question related to the interpretation of the Prohibited List solely based on evidence submitted by one of the parties to the proceedings is not easy. Indeed, there could be a serious issue with regard to the principle of legal certainty in relation to Section S9 of the Prohibited List, should the term “intramuscular” injection be interpreted contrary to the ordinary meaning attached to such technical term by the relevant professional community. The question should be left open if – provided the route of administration was prohibited – the athlete was entitled to a Therapeutic Use Exemption (TUE).

4. The presence of a Prohibited Substance shall not be considered an ADRV if it is consistent with the provisions of a TUE granted in accordance with the International Standard for Therapeutic Use Exemptions (ISTUE). Under Article 4.1 ISTUE, 4 conditions are to be met for granting a retroactive TUE, namely (a) the Prohibited Substance is needed to treat an acute or chronic medical condition, (b) the therapeutic Use of the Prohibited Substance is highly unlikely to produce any enhancement of performance, (c) there is no reasonable therapeutic alternative, (d) the necessity for the use of the Prohibited Substance is not a consequence of the prior use of a prohibited substance or method. The administration of Glucocorticoids, a non-threshold substance is not prohibited out-of-competition. Thus, an athlete is permitted to treat an acute medical condition with Glucocorticoids out-of-competition. In addition, retroactive TUEs want to ensure that there is immediate treatment available to an athlete in situations where a prospective TUE cannot be granted in due time and there is a danger that a medical condition turns chronic further damaging the athlete’s health. The purpose of retroactive TUEs is to reasonably balance between the protection of the athlete’s health and the athlete’s responsibilities under the anti-doping program.

On 2 March 2019 the Disciplinary Commission of the Olympic Council of Asia (OCA DC) decided to disqualify the Athlete's results after she tested positive for the prohibited substance Betamethasone. Thereupon on 1 May 2019 the OCA decided  to dismiss the Athlete's application for a retroactive TUE.

Hereafter in March 2019 and in May 2019 the Athlete appealed both OCA decisions with the Court of Arbitration for Sport (CAS). The Parties agreed to consolidate both appeals and procedures.

The Athlete requested the Panel to set aside the Appealed Decisions of 2 March 2019 and 5 June 2019 and to deem that she had not committed an anti-doping rule violation. She denied the intentional use of the substance and accepted the test results.

She explained that the substance was used as prescribed medication as valid treatment for her acute medical condition and administered by her doctor out-of-competition. The medication was mentioned on the Doping Control Form and reported by her doctor to the OCA Medical Committee.

Further the Athlete alleged that procedural flaws occurred in the proceeding before the OCA DC due to two members of the Panel were not impartial and independent.

The OCA requested the Panel to dismiss the Athlete's appeal and denied that any procedural flaws had occurred in the proceedings before the OCA DC. The OCA contended that the Athlete used the Betamethasone in-competition and the injection was a prohibited route of administration.

Further the OCA contended that the found concentration in the Athlete's samples is of no relevance. Moreover in accordance with the Rules there are no grounds to grant a retroactive TUE.

The Panel assessed and addressed the following issues:

• 1.) Should the Decision be annulled for procedural flaws?
• 2.) Did the Athlete commit an ADRV?
• 3.) In case the aforementioned question (2) is answered positively, are the criteria for granting a retroactive TUE fulfilled?

The Panel determined that the members of the OCA DC were sufficiently independent whereas any procedural flaw may be healed in a proceedings before the CAS. The Panel finds that the substance was present in the Athlete's system in-competition while it is irrelevant when the substance was administered.

The Panel has serous doubts whether the term intramuscular in Section S9 of the Prohibited List covers the route of administration in question here. In view of the evidence the Panel concludes there was no reasonable therapeutic alternative for the administration of Betamethasone by the Athlete's doctor.

Consequently the Panel deems that the Athlete had not committed an anti-doping rule violation and the Athlete's appeals against both OCA Decisions must be upheld.

Therefore the Court of Arbitration for Sport decides on 20 February 2020 that:

1.) The appeals filed by Ms Yang Gao on 25 March 2019 and 13 May 2019 are upheld.

2.) The decision of the TUE Sub-Commission of the Olympic Council of Asia dated 1 May 2019 is set aside. Ms Yang Gao is granted a retroactive Therapeutic Use Exemption for the local injection of glucocorticoids administered to her on 24 August 2018. Consequently, the decision of the Disciplinary Committee of the Olympic Council of Asia dated 2 March 2019 is set aside.

3.) (…).

4.) (…).

5.) (…).

6.) All other and further motions or prayers for relief are dismissed.