CAS 2018/O/5754 Sergey Fedorovtsev v. Russian Anti-Doping Agency (RUSADA), World Anti-Doping Agency (WADA) & Fédération Internationale des Sociétés d’Avirons (FISA)

• Rowing
  
• Doping (trimetazidine)
  
• Establishment of absence of intent in case of failure to establish source of prohibited substance
  
• Prerequisites to disprove intent
  
• Challenge of a B sample analysis completed in absence of the athlete

1. The establishment of the source of the prohibited substance in an athlete’s sample is not a sine qua non of proof of absence of intent. Indeed, the provisions of the Anti-Doping Rules concerning “intent” do not refer to any need to establish source, in direct contrast to Article 10.5 Russian Anti-Doping rules, combined with the definitions of “No Fault or Negligence” and “No Significant Fault or Negligence”, which expressly and specifically require establishment of source. However, in order to prove, by a balance of probability, that he did not engage in a conduct which he knew constituted an anti-doping rule violation or knew that there was a significant risk that said conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk, an athlete cannot simply assert his lack of intent without giving any convincing explanations to justify such assertion. Rather, to prove the same without proof of source is exceptional. An athlete, even though not bound to prove the source of the prohibited substance, has to show, on the basis of the objective circumstances of the anti-doping rule violation and his behaviour that specific circumstances exist disproving his intent to dope.

2. In order to disprove intent, an athlete cannot merely speculate as to the possible existence of a number of conceivable explanations for the adverse analytical finding (“AAF”) and then further speculate as to which appears the most likely of those possibilities to conclude that such possibility excludes intent: a protestation of innocence, the lack of sporting incentive to dope, or mere speculation by an athlete as to what may have happened does not satisfy the required standard of proof (balance of probability) and the mere allegation of a possible occurrence of a fact cannot amount to a demonstration that fact did actually occur. Instead, an athlete has a stringent obligation to offer persuasive evidence that the explanation he offers for an AAF is more likely than not to be correct, by providing specific, objective and persuasive evidence of his submissions.

3. An athlete who allowed the B sample analysis to proceed in his absence, cannot, following completion of the B sample analysis, belatedly challenge the analytical process and claim that his rights have been breached.

In June 2016 an anti-doping rule violation was reported against the Russian rower Sergey Fedorvtsev after his A and B samples tested positive for the prohibited substance Trimetazidine. After notification a provisional suspension was ordered. Here the opening and analysis of the Athlete’s B-sample in the Lausanne Laboratory occurred in the presence of the Athlete and 2 representatives. 

In May 2018 the case was referred to the Court of Arbitration for Sport (CAS) for a first instance hearing panel. 

The Athlete denied the intentional use of the substance and asserted that the positive test results reported by the Lausanne Laboratory cannot be taken as a basis to establish that he committed the antidoping rule violation. Should the existence of an antidoping rule violation be established, this should be considered “not intentional” and the sanction should not exceed a period of ineligibility of two years.

He asserted that the B sample results must be discarded because his fundamental right to attend the B sample opening and analysis was breached, or in the alternative that the reason of the positive test would be the ingestion of a contaminated product. 

Both RUSADA and WADA requested the Panel to find that the Athlete committed an antidoping rule violation and that such violation was “intentional”, and therefore to impose on the Athlete a sanction of 4 years of ineligibility and to disqualify all the Athlete’s results following the doping test of 17 May 2016.

RUSADA and WADA contended that the Athlete failed to explain how the prohibited substance entered his system nor the origin of the Substance. They refuted in detail the issues raised by the Athlete effecting the establishment of an anti-doping rule violation. WADA considered these issues as attempts made by the Athlete to invalidate the positive test result or to mitigate its consequences. 

Based on the evidence in this case the Panel dismiss the Athlete’s contentions and it confirms that the A and B sample analyses show the presence of a prohibited substance while there is no basis to disregard such analytical results. The Panel finds that the Athlete has not discharged the burden which lies upon him to establish by a balance of probability non-intentional use of a prohibited substance. 

Therefore the Court of Arbitration for Sport decides on 26 June 2019 that: 

1.) Mr Sergey Fedorovtsev is responsible for the antidoping rule violation contemplated by Article 2.1(c) [“Presence of a Prohibited Substance or its Metabolites or Markers in a Athlete’s sample”] of the Russian antidoping rules, including the Anti-Doping rules approved by the order No 947 of the Ministry of Sport of the Russian Federation of 9 August 2016.

2.) Mr Sergey Fedorovtsev is declared ineligible for a period of four (4) years from 16 June 2016, the date of his provisional suspension. All competitive results obtained by Mr Sergey Fedorovtsev between 17 May 2016 and 16 June 2016 are disqualified, with all of the resulting consequences, including forfeiture of any medals, points and prizes.

(…)

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

CAS 2019/A/6226 World Anti-Doping Agency (WADA) v. Spanish Anti-Doping Agency (Spanish Agency for Health Protection in Sport) & Ibai Salas Zorrozua

• Cycling
• Doping (Athlete’s Biological Passport (ABP))
• CAS Jurisdiction
• Denial of an evidentiary request for failure to satisfy the relevancy requirement
• Standing to be sued
• Lis pendens
• Athlete Biological Passport as a reliable and accepted means of evidence in establishing an ADRV
• Legality and predictability of the sanction

1. Article R47 of the CAS Code explicitly provides that, in the context of sport, consent to arbitrate can be based on an arbitration clause contained in the applicable regulations. An arbitration clause may be incorporated and accepted by reference; it does not have to be fully incorporated in the applicable rules or regulations. The applicable rules or regulations – here the Organic Law of Spain No. 3/2013 of 20 June “On the protection of the health of sportspeople and the fight against doping in sport activities” as modified by the Royal Decree-Law 3/2017 of 17 February “to adapt to the changes introduced in the 2015 WADC” (the Spanish ADA) – do contain a CAS arbitration clause which incorporates by reference the arbitration clause contained in the World Anti-Doping Code (WADC). In this respect, Article 40.6 of the Spanish ADA grants WADA the right to appeal “Tribunal Administrativo del Deporte” (TAD) decisions to the CAS and Article 13.2.3 WADC clearly states that in cases where a decision is taken by a national-level appeal body (such as the TAD), WADA has the right to appeal to the CAS. The athlete consented to Article 40.6 of the Spanish ADA and the incorporated Article 13.2.3 WADC when he applied for and obtained a license to compete at national level. The asymmetric nature of Article 40.6 of the Spanish ADA does not invalidate the arbitration clause or preclude WADA from bringing an appeal to the CAS as it has a right to do so under that provision and the incorporated Article 13.2.3 WADC, to which the athlete has consented. Moreover, there is a clear justification for granting WADA a right to appeal decisions of a national-level appeal body i.e. to give WADA the avenue to ensure that WADC signatories are properly and uniformly enforcing the WADC. The CAS does also have jurisdiction rationae personae over the national anti-doping organization (NADO) which did not issue the appealed decision but did issue a decision imposing sanctions on the athlete for committing an anti-doping rule violation (ADRV) and subsequently participated as a party in the national appeal proceeding before the TAD. Furthermore, the NADO, as a signatory to the WADC, is bound by the arbitration clause contained in Article 13.2.3 WADC, which was incorporated to the Spanish ADA by reference through its Article 40.6 and clearly grants to WADA the right to appeal to the CAS against a decision of the TAD stemming from an underlying NADO decision. Finally, the CAS’ jurisdiction is unaffected by the parties’ position on the merits.

2. Pursuant to Article R44.3 of the CAS Code, a party requesting the production of documents must show that said documents are (i) likely to exist and to be relevant; and (ii) in the custody of the other party. An Adaptive Model (and its underlying software) is only a statistical model which triggers alerts identifying abnormal profiles that warrant further attention and review; it does not in itself constitute evidence of doping. Therefore, the relevancy requirement of Article R44.3 of the CAS Code is not satisfied.

3. A party has standing to be sued (“légitimation passive”) only if it has some stake in the dispute because something is sought against it. A NADO has standing to be sued if it was affected by the appealed decision, in that the appealed decision overturned its own findings that the athlete had committed an ADRV, and the appeal involves an essential interest of the NADO (in particular, its disciplinary powers) and its resulting award will be enforceable and have a binding effect towards both respondents. The fact that the Spanish NADO does not dispute WADA’s position on the merits, or cannot respond for the TAD nor assume the appealed decision as its own is irrelevant to the issue of whether or not it is affected by the appeal.

4. According to Article 186.1bis of the Swiss Federal Act on Private International Law (PILA), there is lis pendens if three cumulative conditions are met: (i) a proceeding at a State court or another arbitral tribunal and the CAS arbitration are between the same parties and concern the same matter; (ii) said other proceeding is “already pending” before the CAS arbitration started; and (iii) the party claiming lis pendens proves the existence of “serious reasons” requiring the stay of the CAS proceedings. Absent the “already pending” requirement, there is no lis pendens within the meaning of Article 186.1bis PILA.

5. According to Article 3.2 WADC, an ADRV can be proved by any “reliable means”, including by the use of an ABP. It is undisputed that the ABP profile is a method of proving blood doping and not an ADRV in and of itself under the WADC. However, an ABP profile is a reliable and accepted means of evidence in establishing an ADRV. As such, if, in interpreting abnormal values in an ABP and any other evidence from a quantitative and qualitative standpoint, a panel is convinced that the abnormal values were caused by a “doping scenario”, an ADRV can thereby be properly established, even without establishing a specific reason for the blood manipulation. The inference drawn from abnormal blood values is enhanced where the ascertainment of such values occurred at a time when the athlete could benefit from blood doping (i.e., if the levels coincide with the athlete’s racing schedule). A request for an athlete to provide an alternative explanation to the abnormal values in his or her ABP does not create a presumption of guilt nor a shift in the burden of proof; the burden continually remains on the anti-doping agency pursuant to Article 3.1 WADC to prove that the abnormal values in the ABP were caused by a “doping scenario” as opposed to any of the hypothesis put forward by the athlete. This is in full keeping with the legal principle of the presumption of innocence. Indeed, if an athlete submits explanations for abnormal results, it is the anti-doping agency’s burden to establish that those explanations do not rebut the high likelihood of an ADRV established through the assessment of the ABP.

6. For a sanction to be imposed, a sports regulation must prescribe the misconduct with which the subject is charged, i.e., nulla poena sine lege (principle of legality), and the rule must be clear and precise, i.e., nulla poena sine lege clara (principle of predictability). Under the applicable regulations, the utilization, use or consumption of prohibited substances and methods including blood doping is a serious offense sanctionable with a period of ineligibility. This is a sufficiently clear, precise and unambiguous rule that provides a sufficient legal basis to find an ADRV and sanction the athlete. It is unnecessary to establish the exact type of blood doping to find an ADRV and sanction an athlete. The fact that the ABP can only show that there has been blood manipulation but not the exact type of blood doping practice does not violate the principle of legality or any other fundamental principle.

The Spanish Agency for the Protection of Health in Sport (AEPSAD) reported an anti-doping rule violation against the cyclist Ibai Salas Zorrozua after an Expert Panel concluded unanimously in February 2018 in their Joint Expert Report that the Athlete’s hematological profile “highly likely” showed that he used a prohibited substance or a prohibited method: the use of EPO or Blood doping. 

This conclusion of the Expert Panel was based on assessment of blood samples, collected in the period from 25 January 2017 until 3 August 2017 reported in the Athlete’s Biological Passport (ABP).

In July 2018 the Expert Panel confirmed their conclusion in a second Joint Expert Report and on 3 October 2018 AEPSAD decided to impose a fine and a 4 year period of ineligibility on the Athlete. 

However on 8 February 2019 the Administrative Court of Sport in Spain (TAD) decided to set aside the AEPSAD Decision and to annul the imposed sanction on the Athlete. Hereafter the World Anti-Doping Agency (WADA) had issues with AEPSAD and TAD about the release of the Athlete’s case file and finally appealed in March 2019 the TAD Decision with the the Court of Arbitration for Sport (CAS). The CAS Panel rendered a decision based on the written submissions of the parties. 

WADA requested the Panel to set aside the TAD Decision of 8 February 2019 and to impose a 4 year period of ineligibility on the Athlete. It contended that the Athlete’s ABP profile clearly showed multiple abnormalities as evidence that he committed an anti-doping rule violation.

WADA asserted that TAD erred in annulling the sanction on the ground that the ABP was not a reliable means of establishing an anti-doping rule violation. Whereas CAS jurisprudence already has accepted the validity of ABP as a reliable means of detecting blood doping. 

AEPSAD denied that it has standing to be sued and that it had to be addressed against TAD as body that issued the Appealed Decision. 

Based on CAS jurisprudence the Panel finds that AEPSAD does have standing to be sued and it is convinced that the ABP model is a reliable and valid means of establishing an anti-doping rule violation. The Athlete failed to demonstrate that there are serious reasons, invoking the principle of lis pendens in seeking to preclude the CAS Panel from proceedings with the present arbitration because WADA and the Athlete had filed appeals before the Spanish courts. 

Considering the evidence regarding the Athlete’s ABP the Panel deems that an anti-doping rule violation can be found on the basis of an analysis of Samples 1 to 6 only, and that no taking into account Samples 7 to 10 is neither arbitrary nor in violation of article 9.3 of the Spanish Consititution. 

In conclusion, the Panel taking following into account that:

1. the values detected in the Athlete’s ABP were highly abnormal and indicated a high probability of doping;
2. no contradictory evidence exists (i.e., that the Athlete has not provided any credible, physiological or pathological reason or condition to explain the abnormality in the ABP values); and
3. the timing of the detection relative to his competitions

The Panel is comfortably satisfied that the abnormal values were caused by a blood doping scenario. As a result, the Panel holds that the Athlete violated Article 22.1(b) of the Spanish ADA.   

Therefore the Court of Arbitration for Sport decides on 4 August 2020 that:

1.) The CAS has jurisdiction and the Appeal filed on 27 March 2020 by WADA against the Spanish Agency for Health Protection in Sport and Mr Ibai Salas Zorrozua is admissible.

2.) The appeal filed by WADA on 27 March 2019 against the Spanish Agency for Health Protection in Sport and Mr Ibai Salas Zorrozua is upheld.

3.) Mr Ibai Salas Zorrozua is guilty of an anti-doping rule violation.

4.) Mr Ibai Salas Zorrozua is sanctioned with a four-year (4) period of ineligibility starting on the date of this Award.

5.) All competitive results obtained by Mr Ibai Salas Zorrozua from the date of 25 January 2017 through to the commencement of his period of ineligibility shall be disqualified, with all of the resulting consequences, including the forfeiture of any medals, points, and prizes.

6.) (…).

7.) (…).

8.) All further or different motions or prayers for relief are dismissed.

CAS A1/2020 Shayna Jack v. Swimming Australia & Australian Sports Anti-Doping Authority

In July 2019 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the swimmer Shayna Jack after her sample tested positive for the prohibited substance LGD-4033 (Ligandrol). Consequently the Anti-Doping Rule Violation Panel decided on 19 December 2019 to impose a 4 year period of ineligibility on the Athlete. 

Hereafter in January 2020 the Athlete appealed the Decision of 19 December 2019 with the Oceania Registry Court of Arbitration for Sport (CAS). 

ASADA contended that the Athlete failed to demonstrate how the prohibited substance entered her system and that there are nog grounds for a reduced sanction. It acknowledged that there was no evidence that the Athlete intentionally had used the substance to enhance performance nor was there evidence of long-term use of the substance. 

The Athlete accepted that she committed an anti-doping rule violation and denied the intentional use of the prohibited substance. She acknowledged that she did not know how the substance entered her system. She could only provide possible explantions: contaminated supplements; contamination through mixing supplements in a blender used by other persons; and contact or ingestion of the substance at training facilities she had visited. 

The Sole Arbitrator deems that the Athlete could not demonstrate how the prohibited substance entered her system but is willing to accept that the violation was not intentional.

Based on the Athlete’s evidence and presentation and the evidence and presentations of those who know her best, the Athlete presented to the Sole Arbitrator as a person who was inherently very unlikely to intentionally or recklessly ingest a Prohibited Substance. The history of testing is also consistent with the Athlete’s evidence of a lack of intention to cheat. Futher the found concentration of the prohibited substance in her sample was low and insufficient to enhance performance. 

Therefore the Court of Arbitration for Sport decides on 16 November 2020 that: 

1.) The appeal filed by Ms. Shayna Jack on 2 January 2020 is partly upheld.

2.) Ms. Shayna Jack has committed a violation of Article 2.1 the Swimming Australia Limited Anti-Doping Policy 2015 and as a result, is suspended for a period of two (2) years commencing as from the date of her provisional suspensions (i.e. 12 July 2019).

3.) (…).

4.) (…).

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

In January 2020 the Canadian Centre for Ethics in Sport (CCES) has reported an anti-doping rule violation against the the football player Mickael Badrea after his sample tested positive for the prohibited substance Dexamphetamine (d-amphetamine, dextroamphetamine).

After notification a provisional suspension was ordered. In the preliminary proceedings the Athlete explained that he had used medication from a friend to help him with his diagnosed ADHD hereafter. The Athlete requested for a Tribunal hearing and applied for a retroactive TUE.

In this case there were persistent delays in the proceedings attributed to the Athlete regarding the scheduled meetings, his TUE application and the submission of relevant medical evidence for this application.

Both CCES and SDRCC establised since July 2020 that the Athlete completely disengaged from the ongoing proceedings. He did not respond to the communcation from CCES nor SDRCC. His absence and total lack of participation persisted until the conclusion of this case.

The SDRCC decided to settle the case based on the written submissions of the parties and regards that no evidence or submission of any kind from the Athlete was received.

The Sole Arbitrator 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.

Previously the CCES had offered a 1 year period of ineligibility on the basis that the Athlete provided grounds for this reduced sanction. Since the Athlete completely disengaged for the current process the Sole Arbitrator concludes that the Athlete failed to establish with evidence or aguments that the violation was not intentional nor grounds for No Significant Fault or Negligence.

Therefore the SDRCC Doping Tribunal decides on 20 October 2020 to impose a 4 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 30 January 2020.

In May 2020 the South African Institute for Drug-Free Sport (SAIDS) has reported an anti-doping rule violation against the Athlete Tebogo Mamathu after her A and B samples tested positive for the prohibited substance Oxandrolone.

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

SAIDS considers that the Athlete gave a prompt admission and received ample anti-doping education. The Athlete tested her supplements for prohibited substances but she was unable to establish the source of the posititve test. Further it holds that already red flags were raised regarding the Athlete's Steroidal Passport.

Therefore SAIDS decides decides on 21 September 2020 to impose a 4 year period of ineligibility on the Athlete starting on the date of the sample collection, i.e. on 23 February 2020.

In May 2020 the South African Institute for Drugfree Sport (SAIDS) has reported an anti-doping rule violation against the minor Athlete (15) after his sample tested positive for the prohibited substances Enobosarm, LGD-4033 and RAD140. The minor Athlete filed a statement in his defence and he was heard for the SAIDS Disciplinary Panel.

The Athlete admitted the violation, he disputed SAIDS jurisdiction to conduct Doping Control at his High School and claimed that his rights as a Minor had been violated.

The Panel establish that SAIDS has jurisdiction, that the sample collection at het High School was valid and that the minor Athlete's rights were not infringed. The Athlete failed to demonstrate that the violation was not intentional nor how the substances entered his system. He provided no evidence that showed that contaminated supplements were the source of the positive test.

The Panel finds that the presence of 3 prohibited substances in the system of the 15 year old Athlete is alarming. It assums that the Minor had been assisted by an adult and recommends further investigation in this matter. Finally the Panel considers that there were delays in the proceedings not attributed to the Athlete.

Therefore the SAIDS Disciplinary Panel decides on 6 november 2020 to impose a 4 year period of ineligibility on the Athlete starting on the date of the sample collection, i.e. on 26 February 2020.

In December 2019 the South African Institute for Drug-Free Sport (SAIDS) has reported an anti-doping rule violation against the rugby player Ngoni Chidoma after his A and B samples tested positive for the prohibited substance Testosterone.

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

SAIDS deems that this is the Athlete's second violation and that he failed to establish how the prohibited substance entered his system. Further it considers that there were delays in the proceedings not attributed to the Athlete

Therefore SAIDS decides on 7 July 2019 to impose an 8 year period of ineligibility on the Athlete starting on the date of the sample collection, i.e. on 17 August 2019.

In September 2019 the South African Institute for Drug-Free Sport (SAIDS) has reported an anti-doping rule violation against the rugby player Siminikwe Gege a after his sample tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

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

SAIDS finds that the Athlete acted negligently and established how the substance entered his system. It considered that he gave a prompt admission, that he is a minor and had not received anti-doping education.

Therefore SAIDS decides on 12 February 2020 to impose a 3 year and 9 month period of ineligibility on the Athlete starting on the date of provisional suspension, i.e. on 20 September 2019.

In April 2019 the South African Institute for Drug-Free Sport (SAIDS) has reported an anti-doping rule violation against the rugby player Mhlanhla Mlondobozi after his sample tested positive for the prohibited substance Methyltestosterone.

After notification the Athlete waived his right for a hearing, accepted the test result, accepted a provisional suspension and the sanction proposed by SAIDS.

SAIDS finds that the Athlete failed to establish that the violation was not intentional nor could he demonstrate that contaminated supplements were the source of the positive test.

Therefore SAIDS decides on 1 August 2019 to impose a 4 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 25 April 2019.

Related cases:

• SARU 2011 SARU vs Mahlatse Chiliboy Ralepelle & Bjorn Basson
  January 27, 2011
• World Rugby 2014 WR vs Mahlatse Chiliboy Ralepelle
  June 16, 2015

The South African Institute for Drugfree Sport (SAIDS) has reported an anti-doping rule violation against the rugby player Mahlatse Chiliboy Rapelle after his A and B samples tested positive for the prohibited substance Zeranol. After notification the Athlete filed a statement in his defence and he was heard for the SAIDS Disciplinary Panel.

This is the Athlete's 3rd anti-doping violation. His first postitive test in 2010 resulted in a No Fault or Negligence Decision and was settled with a reprimand. His 2014 positive test was considered a first anti-doping rule violation and a sanction of two years was imposed.

The Athlete denied the intentional use of the prohibited substance but could not explain how it entered his system. SAIDS requested the Panel to impose an 8 year period of ineligibility on the Athlete for his third anti-doping rule violations.

The Panel establish that under the Rules this is the Athlete's second anti-doping rule violation and that he failed to demonstrate that the violation was not intentional nor how the prohibited substance entered his system. Further the Panel considered that there were delays in the proceedings not attributed to the Athlete.

Therefore the SAIDS Disciplinary Panel decides on 25 June 2020 to impose an 8 year period of ineligibility on the Athlete starting on the date of the sample collection, i.e. on 17 January 2019.