• CAS 2016/A/4803 Ekaterina Gnidenko v. International Olympic Committee (IOC) & Union Cycliste Internationale (UCI)
• CAS 2016/A/4804 Maria Abakumova v. IOC
• CAS 2017/A/4983 Tatyana Lebedeva v. IOC & World Anti-Doping Agency (WADA)

Related cases:

• IOC 2016 IOC vs Ekaterina Gnidenko
  September 7, 2016
• IOC 2016 IOC vs Maria Abakumova
  September 5, 2016
• IOC vs Tatiana Lebedeva
  January 25, 2017
  
  

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• Cycling & Athletics
• Doping (dehydrochloromethyltestosterone (DHCMT) metabolites; Turinabol (oral))
• Burden of proof for anti-doping rule violation and Article 3.2.1 WADC
• Version of procedural rules applicable in case of anti-doping rule violations
• Principles guiding an analysis for a prohibited endogenous substance and scientific validity of such procedure
• Filters for considering expert evidence

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1. Ordinarily, the relevant anti-doping organisation has the burden of establishing, to the comfortable satisfaction of the judging body, that an anti-doping rule violation has occurred; that burden includes satisfying the judging body of the scientific validity of the analytical methods adopted by the testing laboratory. However, Article 3.2.1 of the 2015 World Anti-Doping Code (WADC) reverses that burden of proof concerning the scientific validity of the analytical methods employed by the laboratories by stipulating that “analytical methods or decision limits approved by WADA after consultation with the relevant scientific community and which have been the subject of peer review are presumed to be scientifically valid”.

2. In line with the general rule that it is the version of procedural rules existing at the time proceedings are commenced that is applicable, the 2015 WADC applies to anti-doping proceedings commenced as of the date of their entry into force; this is irrespective of the fact that the relevant anti-doping rule violation occurred prior to the introduction of Article 3.2.1 into the 2015 WADC.

3. There are established principles that guide a confirmatory analysis for a prohibited endogenous substance. For the purposes of an anti-doping rule violation, a sample taken from an athlete will only be found to contain a specific prohibited substance if, when compared to a reference sample or the like of the prohibited substance in question, there is an identity or very near identity in the two samples between:

• (a) at least two ion transitions;
• (b) the abundances of the diagnostic ions; and
• (c) the retention times for the particular substance.

Such testing method or procedure is “scientifically valid”, as used in Article 3.2.1 of the 2015 WADC, even if it does not identify the correct substance 100 times out of 100, if another substance (even another prohibited substance) could possibly be the source of a positive finding for the specific prohibited substance identified, or if there is one false positive out of a million. Absolute infallibility of a testing procedure is not required.

4. When considering expert evidence, the following filters shall be applied:

• (a) the expert’s duty is not to represent the interests of the party calling him or her, but rather to express his or her views honestly and as fully as necessary for the purpose of a case; an expert should provide independent, impartial assistance to the judging body and should not be an advocate for any party;
• (b) the judging body cannot completely disregard any expert evidence which is otherwise admissible or before it; rather, it must pay regard to the content of the expert evidence, but it is not bound by it, or required to blindly follow it;
• (c) the expert opinion should be comprehensible and lead to conclusions that are rationally based, with reasoning explained; the process of inference that leads to conclusions must be stated or revealed in a way that enables conclusions to be tested and a judgment made about their reliability;
• (d) in order to prevent deception or mistake and to allow the possibility of effective response, there must be a demonstrable objective procedure for reaching the expert opinion so that qualified persons can either duplicate the result or criticise the means by which it was reached, drawing their own conclusions from the underlying facts;
• (e) the value of expert evidence depends upon the authority, experience and qualifications of the expert and, above all, upon the extent to which his or her evidence carries conviction; and
• (f) in cases where experts differ, the judging body will apply logic and common sense in deciding which view is to be preferred, or which parts of the evidence are to be accepted.

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• Ms. Ekaterina Gnidenko is a Russian Athlete competing in the Cycling Track Keirin Event and the Track Sprint Event at the London 2012 Olympic Games.
  
  
• Ms. Maria Abakumova is a Russian Athlete competing in the javelin throw event at the Beijng 2008 Olympic Games.
  
  
• Ms. Tatiana Lebedeva is a Russian Athlete competing in the Women’s triple jump athletics event in the Beijing 2008 Olympic Games.

In 2016, the IOC decided to perform further analyses on certain samples collected during the 2008 and 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available at that time.

In May 2016 and in July 2016 the International Olympic Committee reported anti-doping rule violations against these three Athletes after their samples had tested positive for the prohibited substance Dehydrochlormthyltestosterone (Turinabol).

Consequently the IOC Disciplinary Commission decided in  September 2017 and in July 2018 that these Athletes had committed an anti-doping rule violation. Accordingly they were disqualified from the events in which they had participated at the 2008 and 2012 Olympic Games including disqualification of their obtained results.

Hereafter in September 2016 and in February 2017 the Athletes appealed these IOC decisions with the Court of Arbitration for Sport (CAS). Because of the near identity of the issues the parties agreed to consolidate their appeals and procedures.

The Athletes challenged the reliability of the testing methodology initially theorised in 2012 and applied by the Cologne and Lausanne laboratories to establish the presence of the long-term metabolites of Turinabol in the Athletes' stored samples.

In this matter the parties' expert witnesses addressed the following topics:

(a) The method for detection of the M3 metabolite;
(b) The synthesis of M3 and validation against urinary reference material; and
(c) Other chemicals impersonating M3 metabolite and potential for false positives.

After assessment of the expert evidence the Panel is comfortably satisfied that the Athletes have not discharged their burden of proving that the testing methods adopted by the laboratories, which led to the positive findings against each of them, were not scientifically valid in accordance with the standard required to be applied in these proceedings.

Therefore the Court of Arbitration for Sport decides on 25 July 2018 that:

In CAS 2016/A/4803:

1.) The Appeal filed by Ms Gnidenko on 28 September 2016 against the decision of the IOC Disciplinary Commission rendered on 7 September 2016 is dismissed.

2.) The decision of the IOC Disciplinary Commission dated 7 September 2016 is confirmed.

(…)

5.) All further requests for relief are dismissed.

In CAS 2016/A/4804:

1.) The Appeal filed by Ms Maria Abakumova on 28 September 2016 against the decision of the IOC Disciplinary Committee rendered on 7 September 2016 is dismissed.

2.) The decision of the IOC Disciplinary Committee rendered on 7 September 2016 is confirmed.

(…)

5.) All further requests for relief are dismissed.

In CAS 2017/A/4983:

1.) The Appeal filed by Ms Tatyana Lebedeva on 14 February 2017 against the decision of the IOC Disciplinary Committee rendered on 25 January 2017 is dismissed.

2.) The decision of the IOC Disciplinary Committee rendered on 25 January 2017 is confirmed.

(…)

5.) All further requests for relief are dismissed.

In November 2022 the India National Anti-Doping Agency (INADA) has reported an anti-doping rule violation against the Athlete Ritesh Arjun Ethape for his refusal or failure to submit to sample collection.

The Doping Control Officer (DCO) reported that the Athlete was duly notified about the sample collection. However the Athlete refused to sign the Notification From and ran away from the venue.

Following notification a provisional suspension was ordered and the Athlete was heard for the Anti-Doping Disciplinary Panel of India (ADDPI).

The Athlete denied that he had acted intentionally and he requested the Panel to reject the charges against him. He confirmed that after he had been notified by the DCO about the sample collection.

He alleged that he had received a phone call that his mother had a stroke. Because of this medical immergency he immediately had left the venue.

The Panel establishes that the Athlete had evaded the sample collection without a compelling justification after the notification. Without any corroborating evidence the Panel dismisses his explanation for his evasion.

The Panel considers that the Athlete was an experienced sportsman that had been tested before without issues. Finally the Panel deems that he acted intentionally.

Therefore the Panel decides on 17 April 2023 to impose a 4 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 23 November 2022.

In November 2022 the India National Anti-Doping Agency (INADA) has reported an anti-doping rule violation against the kabaddi player Shivam Chaudhary after his sample tested positive for the prohibited substance Metandienone.

Following notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Anti-Doping Disciplinary Panel of India (ADDPI).
The Athlete denied the intentional use of the substance and could not explain the source of the prohibited substance.

The Panel finds that the presence of a prohibited substance has been established in the Athelte's sample and accordingly that he committed an anti-doping rule violation.
The Panel deems that the Athlete failed to demonstrate that the violation was not intentional, nor how the substance had entered his system.

Therefore the Panel decides on 8 April 2023 to impose a 4 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 30 November 2022.

In November 2022 the India National Anti-Doping Agency (INADA) has reported an anti-doping rule violation against the football player Viknesh after his sample tested positive for the prohibited substance Terbutaline.

Following notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Anti-Doping Disciplinary Panel of India (ADDPI).

The Athlete denied the intentional use of the substance and explained with evidence that he only had used the medications prescribed by his doctor. Further Investigations showed that one prescribed medication contained the substance Terbutaline.

The Panel finds that the presence of a prohibited substance has been established in the Athlete's sample and accordingly that he committed an anti-doping rule violation.
In view of the evidence the Panel determines that the Athlete's prescribed medication was probably the source of the postive test result.

The Panel deems that the Athlete's violation was not intentional and that he had demonstrated how the subsance had entered his system. Further the Panel considers that he had failed to check his medication, nor had mentioned these on the Doping Control Form.

Therefore the Panel decides on 5 April 2023 to impose a 2 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 12 November 2022.

In October 2022 the India National Anti-Doping Agency (INADA) has reported an anti-doping rule violation against the judoka Jibanlata Laishram Devi after her A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

Following notification a provisional suspension was ordered. The Athlete filed a statement in her defence and she was heard for the Anti-Doping Disciplinary Panel of India (ADDPI).

The Athlete denied the intentional use of the substance and could not explain how the substance had entered her system. She suggested that the prescribed medication, supplements or food she prior had used might be the source of the prohibited substance.

The Panel finds that the presence of a prohibited substance has been established in her samples and accordingly that she committed an anti-doping rule violation.

The Panel deems that the Athlete failed to demonstrate that the violation was not intentional, nor how the substance had entered her system. The Panel concludes that she had acted ignorant and negligently.

Therefore the Panel decides on 28 March 2023 to impose a 4 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 6 October 2022.

In July 2022 the India National Anti-Doping Agency (INADA) has reported an anti-doping rule violation against the Athlete Vinit after his sample tested positive for the prohibited substance Metandienone.

Following notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Anti-Doping Disciplinary Panel of India (ADDPI).

The Athlete denied the intentional use of the substance and assumed that a contaminated supplement was the source of the positive test result. However analysis of his supplements in the New Delhi Laboratory did not reveal any prohibited substances.

The Athlete did not accept the test report from the New Delhi Laboratory and produced a test report from another laboratory showing the presence of contaminants in his supplements.

The Panel finds that the presence of a prohibited substance has been established in the Athlete's sample and accordingly that he committed an anti-doping rule violation.

Regarding the Athlete's supplements the Panel considered only the test report from the New Delhi Laboratory and not the Athlete's alternative test report. The Panel deems that the Athlete failed to demonstrate that the violation was not intentional, nor that he had acted carefully with his supplements.

Therefore the Panel decides on 3 April 2023 to impose a 4 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 7 July 2022.

In September 2022 the India National Anti-Doping Agency (INADA) has reported an anti-doping rule violation against the powerlifter Kamaldeep after his sample tested positive for the prohibited substances Drostanolone and Trenbolone.

Following notification a provisional suspension was ordered. The Athlete failed to respond nor did he attend the hearing of the Anti-Doping Disciplinary Panel of India (ADDPI).

The Panel finds that the presence of prohibited substances has been established in the Athlete's sample and accordingly that he committed an anti-doping rule violation.

Without the Athlete's response the Panel deems that he failed to demonstate that the violation was not intentional, nor how the substances had entered his system.

Therefore the Panel decides on 14 March 2023 to impose a 4 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 20 September 2022.

In November 2022 the India National Anti-Doping Agency (INADA) has reported an anti-doping rule violation against the weightlifter Sanjita Chanu after her A and B samples tested positive for the prohibited substance Drostanolone.

Following notification a provisional suspension was ordered. The Athlete filed a statement in her defence and she was heard for the Anti-Doping Disciplinary Panel of India (ADDPI).

The Athlete denied the intentional use of the substance and argued that she was tested before without issues and while she checked the food and supplements she ingested.

The Panel finds that the presence of a prohibited substance has been established in the Athlete's samples and accordingly that she committed an anti-doping rule violation.

The Panel deems that the Athlete failed to demonstrate with corroborating evidence that the violation was not intentional, nor how the substance had entered her system. The Panel concludes that the Athlete had intentionally used the substance to enhance sport performance.

Therefore the Panel decides on 31 March 2023 to impose a 4 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 12 November 2022.

In July 2022 the United States Anti-Doping Agency (USADA) reported an anti-doping rule violation against the Athlete Inika McPherson after her A and B samples tested positive for the prohibited substance Furosemide.

Following notification a provisional suspension was ordered. The Athlete filed a statement in her defence and she was heard for the American Arbitration Association Commercial Arbitration Tribunal.

The Athlete admitted the violation and denied the intentional use of the substance. She argued that she acted with No Significant Fault or Negligence and requested for a reduced sanction.

She explained that at the material time she suffered from a heel injury and had used prescribed as well as over-the counter anti-inflammatory medications. In June 2022 she was still under treatment for her injury and she used over-the-counter ibuprofen because she ran out of her prescribed medication.

The Athlete testified that in June 2022 she visited the grandmother of her close friend. Because she had pain from her injury she asked for an anti-inflammatory and she received one pill from the grandmother.

However the Athlete was unaware that the grandmother had a prescription for the use of Furosemide. Also the grandmother was suffering from dementia and she had confused her anti-inflammatory pills with a different medication.

USADA accepted that the Athlete's violation was not intentional. Yet, it contended that the Athlete failed to demonstrate No Significant Fault or Negligence.

Following assessment of the evidence and the circumstances the Sole Arbitrator concludes that the Athlete's violation was not intentional. She had demonstrated how the prohibited substance had entered her system and established on a balance of probabilities No Significant Fault or Negligence.

Therefore the AAA Tribunal decides on 12 April 2023 to impose a 16 month period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 22 July 2022.

In October 2022 the South African Institute for Drugfree Sport (SAIDS) has reported an anti-doping rule violation against the Athlete Bafana Dube after his sample tested positive for the prohibited substance 5-Methylhexan-2-amine (1,4-dimethylpentylamine, 1,4-dimethylamylamine, 1,4-DMAA).

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

The Athlete accepted the test result and denied the intentional use of the substance. He could not explain the source of the positive test and stated that he checked the labels of the supplements he purchased.

The Panel finds that the presence of a prohibited substance has been established in the Athlete's sample and accordingly that he committed an anti-doping rule violation.

In view of the Athlete's conduct the Panel deems that the Athlete had acted negligently as he failed to take reasonable standard of care as expected from a reasonable persion in the Athlete's situation.

Therefore the Hearing Panel decides on 29 March 2023 to impose a 2 year period of ineligibility on the Athlete, starting on the date of the provisional suspension,