CAS 2018/A/5913 Sabina Ashirbayeva v. International Gymnastics Federation (FIG)

• Gymnastics (rhythmic)
• Doping (furosemide, hydrochlorothiazide, chlorothiazide)
• Athletes’ duty of care to avoid ingestion of prohibited substances
• Communication of an athlete’s admission to the competent sanctioning body
• Difference between a plea for mercy and a plea in mitigation

1. An athlete’s duty to take care to avoid an ingestion of prohibited substances axiomatically arises before ingestion, not after it. A breach of that duty cannot be cured by a prompt repentance and avoidance of repetition to which an appellant testifies.

2. While the applicable anti-doping rules do not expressly read that an athlete’s admission, to have any legal relevance, must be communicated to the relevant governing body as opposed to some unrelated third party, no contrary conclusion can be reached. It is an athlete’s duty to ensure that any such admission is communicated to it.

3. A plea for mercy invites a decision outside the relevant rules whereas a plea in mitigation invites a decision within them.

On 6 August 2018 the Disciplinary Committee of the International Gymnastics Federation (FIG) decided to impose a 2 year period of ineligibility on the Kazakh Athlete Sabina Ashirbayeva for multiple anti-doping rule violations. Following notification in June 2018 the Athlete failed to respond to the charges, nor participated in the proceedings.

In this case the Athlete's 4 separate samples tested positive for prohibited substances:

• Furosemide in April 2017;
• Hydrochlorothiazide and Clorothiazide in April 2017
• Hydrochlorothiazide in June 2017;
• Furosemide in June 2017.

Hereafter in August 2018 the Athlete appealed the FIG Decision with the Court of Arbitration for Sport (CAS). She requested the Panel to set aside the Appealed Decision and plead for a reduced sanction.

The Athlete admitted the violation and denied the intentional use of the substances. She explained that these substances had been used as prescribed medication to relieve swelling in connenction with her disease.

She asserted that in June 2017 she had filed a voluntary early admission of her violations. She alleged that thereupon the sports officials failed to inform the FIG or WADA about this early admission.

The FIG accepted that the Athlete's violations were not intentional and to be considered as one single first violation. Further the FIG contended that the Athlete failed to establish that she had communicated a prompt admission.

Following assessment of the evidence and the Athlete's conduct in this case the Sole Arbitrator determines that:

• The Athlete's violation was not intentional;
• The Athlete already had received a reduced sanction of 2 years;
• She failed to establish that she bears No Significant Fault or Negligence;
• It was the Athlete's duty to ensure that any early admission was communicated to the FIG.
• The Athlete's plea for mercy invites a decision outside the relevant rules whereas a plea in mitigation invites a decision within them.

Therefore the Court of Arbitration for Sport decides on 6 March 2019 that:

1.) The appeal filed by Mrs Sabina Ashirbayeva (“the Appellant”) on 14th August 2018 against the decision rendered by Disciplinary Committee of the International Gymnastics Federation on 6th August 2018 is dismissed.

2.) The decision rendered by Disciplinary Committee of the International Gymnastics Federation on 6th August 2018 in the case related to Mrs Sabina Ashirbayeva is confirmed and upheld.

3.) (…).

4.) (…).

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

Related case:

SDRCC 2021 CCES vs Constantinos Papanikolaou
May 19, 2023

In December 2021 the Canadian Centre for Ethics in Sport (CCES) reported anti-doping rule violations against the Athletes Dimitrios and his brother Constantinos after their A and B samples - collected in October 2021 - tested positive for the prohibited substance LGD-4033 (Ligandrol).

Following notification a provisional suspension was ordered. With delays in the proceedings the CCES agreed in September 2022 to lift the provisional suspension at the request of the Athletes.

Hereafter in November 2022 the CCES reported new anti-doping rule violations against these Athletes after their A and B samples - collected in October 2022 - again tested positive for the substance LGD-4033.

Following notification in November 2022 of these second anti-doping rule violations the provisional suspension was again imposed. The Athletes filed statements in their defence and were heard for the Tribuanl of the Sport Dispute Resolution Centre of Canada (SDRCC).

The Athletes admitted the violations and denied the intentional use of the substance. They asserted that their first violations were caused by a contaminated supplement Plantman Multivitamin they had used.

Furthermore the Athletes admitted their second anti-doping rule violations and denied the intentional use. They alleged that the second positive test was caused by residual presence of the substance after their use of the Plantman supplement a year before.

The CCES contended that the Athletes failed to demonstrate that their first anti-doping rule violations were caused by a contaminated product, nor that the admitted violations were not intentional. Alternatively, if the violations were not intentional the CCES deemed that the Athletes acted with significant fault and negligence.

In the matter of the second anti-doping rule violations the CCES rejected the Athletes' explanation about the presence of the subtance in their samples. The CCES contended that the Athletes failed to establish with corroborating evindence that their second violations were not intentional.

Following assessment of the evidence and the Parties' arguments the Arbitrator deems that:

• The Plantman supplement in question falls outside of the definition of a contaminated product because the prohibited substance found in the Plantman is disclosed in information available in a reasonable internet seach.
• The Athletes have demonstrated that their first violations were caused by their use of the Plantman Multivitamin.
• The Athletes failed to demonstrate that their first violations were not not intentional.
• The Athlete failed to produce any evidence to support their assertion that their second violations must have been caused by Plantman residue.
• The Athletes failed to demonstrate that their second violations were not intentional.
• There are a series of errors in judgement and actions taken by the Athletes whereas they disregarding all risks and warnings repeatedly regading supplement use.
• The unknown circumstances of the seconds violations counterbalance any reduction in sanction that might have been possible when making a determination on the entirety of the circumstances of the first violations.
• The Athletes' second anti-doping rule violations carry a period of ineligibility of 8 years.
• As the first anti-doping rule violations carry a period of ineligibility of 4 years, the total period of ineligibility applicable as a result of both anti-doping rule violations is 12 years.

Therefore the SDRCC Tribunal decides on 19 May 2023 that:

• The Athlete Dimitrios Papanikolaou has committed 2 anti-doping rule violations for the use and presence of LGD-4033 (Ligandrol).
• The Athlete Constantinos Papanikolaou has committed 2 anti-doping rule violations for the use and presence of LGD-4033 (Ligandrol).
• The applicable period of ineligiblity for these anti-doping rule violations is 12 years.
• The sanctions are to be served consecutively and terminate on February 25, 2034.
• The Athletes will receive credit for the two periods of provisional suspension already served.

Related case:

SDRCC 2021 CCES vs Dimitrios Papanikolaou
May 19, 2023

In December 2021 the Canadian Centre for Ethics in Sport (CCES) reported anti-doping rule violations against the Athletes Constantinos and his brother Dimitrios after their A and B samples - collected in October 2021 - tested positive for the prohibited substance LGD-4033 (Ligandrol).

Following notification a provisional suspension was ordered. With delays in the proceedings the CCES agreed in September 2022 to lift the provisional suspension at the request of the Athletes.

Hereafter in November 2022 the CCES reported new anti-doping rule violations against these Athletes after their A and B samples - collected in October 2022 - again tested positive for the substance LGD-4033.

Following notification in November 2022 of these second anti-doping rule violations the provisional suspension was again imposed. The Athletes filed statements in their defence and were heard for the Tribuanl of the Sport Dispute Resolution Centre of Canada (SDRCC).

The Athletes admitted the violations and denied the intentional use of the substance. They asserted that their first violations were caused by a contaminated supplement Plantman Multivitamin they had used.

Furthermore the Athletes admitted their second anti-doping rule violations and denied the intentional use. They alleged that the second positive test was caused by residual presence of the substance after their use of the Plantman supplement a year before.

The CCES contended that the Athletes failed to demonstrate that their first anti-doping rule violations were caused by a contaminated product, nor that the admitted violations were not intentional. Alternatively, if the violations were not intentional the CCES deemed that the Athletes acted with significant fault and negligence.

In the matter of the second anti-doping rule violations the CCES rejected the Athletes' explanation about the presence of the subtance in their samples. The CCES contended that the Athletes failed to establish with corroborating evindence that their second violations were not intentional.

Following assessment of the evidence and the Parties' arguments the Arbitrator deems that:

• The Plantman supplement in question falls outside of the definition of a contaminated product because the prohibited substance found in the Plantman is disclosed in information available in a reasonable internet seach.
• The Athletes have demonstrated that their first violations were caused by their use of the Plantman Multivitamin.
• The Athletes failed to demonstrate that their first violations were not not intentional.
• The Athlete failed to produce any evidence to support their assertion that their second violations must have been caused by Plantman residue.
• The Athletes failed to demonstrate that their second violations were not intentional.
• There are a series of errors in judgement and actions taken by the Athletes whereas they disregarding all risks and warnings repeatedly regading supplement use.
• The unknown circumstances of the seconds violations counterbalance any reduction in sanction that might have been possible when making a determination on the entirety of the circumstances of the first violations.
• The Athletes' second anti-doping rule violations carry a period of ineligibility of 8 years.
• As the first anti-doping rule violations carry a period of ineligibility of 4 years, the total period of ineligibility applicable as a result of both anti-doping rule violations is 12 years.

Therefore the SDRCC Tribunal decides on 19 May 2023 that:

• The Athlete Constantinos Papanikolaou has committed 2 anti-doping rule violations for the use and presence of LGD-4033 (Ligandrol).
• The Athlete Dimitrios Papanikolaou has committed 2 anti-doping rule violations for the use and presence of LGD-4033 (Ligandrol).
• The applicable period of ineligiblity for these anti-doping rule violations is 12 years.
• The sanctions are to be served consecutively and terminate on February 25, 2034.
• The Athletes will receive credit for the two periods of provisional suspension already served.

In October 2022 the New Zealand Customs Service intercepted a package addressed to the cricket player Vaibhav Sharma. This package contained multiple prohibited substances:

• (a) Nadrol-50, oxymethalone 50mg, 15 bottles x 50 tablets;
• (b) Sustanon, sustanon 250mg, 5 x 10ml vials;
• (c) Tren-A-100, trenbolone acetate, 100mg/ml, 3 x 10ml vials;
• (d) Masteron, drostanolone propionate 100mg/ml, 2 x 10ml vials;
• (e) Deca-300, nandrolone decanoate, 300mg/ml, 6 x 10ml vials;
• (f) Cyp-300, testosterone cypionate, 300mg/ml, 3 x 10ml vials;
• (g) Test Depot, testosterone enanthate, 250mg/ml, 2 x 10 ml vials;
• (h) Cypionex, testosterone cypionate, 250mg/ml 5 x 10ml vials; and
• (i) Clen-40, clenbuterol, 40mcg, 15 bottles x 100 tablets.

Hereafter in April 2023 Drug Free Sport New Zealand reported 2 anti-doping rule violations against the Athlete for possession and attempted use of these prohibited substances.

Following notification the Athlete filed a statement in his defence and he was heard for the Sports Tribunal of New Zealand.

The Athlete denied the possession and the intentional use of the substances although he acknowledged that the package was addressed to him listing his name, address and phone number. He suggested and raised various possibilities as to other people being responsible for purchasing these prohibited substances.

In view of the evidence the Panel finds that DFSNZ has established to its comfortable satisfaction that the Athlete had purchased these substances and was therefore in possession of them. The Tribunal deems that the Athlete's explanations are totally implausible and quite fanciful.

The Tribunal is also comfortably satisfied that the Athlete attempted to use the prohibited substances. It seems implausible that he would purchase the substances if he did not intend to use them.

Therefore the Sports Tribunal of New Zealand decides on 28 June 2023 to impose a 4 year period of ineligibility on the Athlete, starting backdated on 28 April 2023.

Related cases:

• SDT 2005_07 Touch New Zealand vs William Morunga
  August 2, 2005
• SDT 2006_13 Touch New Zealand vs William Morunga
  July 4, 2006

Mr. William Morunga is a Touch and Rugby player and prior santioned because of his use of the prohibited substance Cannabis:

• On 2 August 2005 the Sports Tribunal of New Zealand decided to impose on the Athlete a 2 month period of ineligibility, including a severe warning and a strong reprimand.
• On 4 July 2006 the Sports Tribunal of New Zealand decided to impose a 2 year period of ineligibility on the Athlete for his second anti-doping rule violation.
• On 14 September 2010 the Queensland Rugby League Drug Judiciary Tribunal decided to impose a lifetime ban on the Athlete for his third anti-doping rule violation.

Hereafter the Athlete requested Drug Free Sport New Zealand (DFSNZ) for reconsideration of the period of ineligibility the Sports Tribunal of New Zealand had imposed on the Athlete in 2005 and 2006. In this matter the Athlete invoked the principle of Lex Mitior and retroactive application of the current Rule regarding Substances of Abuse.

DFSNZ agrees that the principle of Lex Mitior allows reconsideration of the Athlete's sanction and the retroactive application of the new Rule regarding Substances of Abuse, used out-of-competition and unrelated to sport performance.

Following assessment of the case and the Athlete's conduct the Tribunal determines that the new Rule regarding Substances of Abuse is applicable whereas that the period of ineligibility has not expired because of the imposed lifetime ban in September 2010.

in view of the principle of Lex Mitior the Tribunal considers that there are grounds to reduce the previous imposed sanctions into a 1 month sanction with the Athlete following a substances of abuse treatment programme approved by DFSNZ.

Therefore the Sports Tribunal of New Zealand decides on 1 June 2023 that:

1) The first ADRV is sanctioned under Rule 10.2.4.1 and the period of ineligibility is reduced to one month;

2) The second ADRV is sanctioned under Rule 10.2.4.1 and the period of ineligibility is reduced to one month;

3) Rule 10.9.2 applies and neither the first ADRV nor second ADRV are to be considered a violation, and provisions regarding multiple violations do not apply.

In December 2022 the Athletics Integrity Unit (AIU) on behalf of World Athletics has reported an anti-doping rule violation against the Dominican Athlete Ana Lucia José Tima after her A and B samples tested positive for the prohibited substances Enobosarm (Ostarine) and GW501516.

Following notification a provisional suspension was ordered. The Athlete alleged that the medication she had used after knee surgery in 2021 was the source of the positive test. However the AIU determined in March 2023 that her medication did not contain banned substances.

Ultimately in March 2023 the Athlete acknowledged the purchase and use of products containing Enobosarm and GW501516. Thereupon in May 2023 the Athlete gave a timely admission, waived her right for a hearing and accepted the sanction proposed by the AIU.

Because the Athlete had signed and submitted the Admission of Anti-Doping Rule Violations and Acceptance of Consequences Form she received a 1 year reduction from the AIU.

Therefore the AIU decides on 4 July 2023 to impose a 3 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 12 December 2022.

Compliance Annual Report 2022 / World Anti-Doping Agency (WADA). - Montreal : WADA, 2023

The World Anti-Doping Agency (WADA) has published its 2022 Code Compliance Annual Report.

One of WADA’s primary roles as the global regulatory body for anti-doping in sport is to monitor effective implementation of the World Anti-Doping Code (Code) and its related International Standards (Standards) by more than 350 Anti-Doping Organizations, including National Anti-Doping Organizations, International Federations and Major Event Organizations.

In particular, the purpose of the Report is to:

• Clearly outline the achievements and challenges of WADA’s Code Compliance Monitoring Program, measuring objectives against key performance indicators through quantitative and qualitative analysis;
• Detail the interpretation and implications of the findings, trends and lessons learned over time for Code Signatory Organizations, enhancing their compliance maturity as defined in the Compliance Strategy; and
• Identify opportunities for continual improvement, forming the foundation for the following year’s Compliance Annual Plan. This cycle is repeated annually as WADA seeks to develop compliance maturity through improvement of its own compliance activities and the global anti-doping system.

Some of the key findings of the Report include:

• The 2022 CCQ was WADA’s primary compliance activity. Some significant improvements and progress were identified when comparisons are made for the same Code Signatories from their 2017 CCQ. This is even more notable in light of their being more requirements placed on Signatories in 2022. 
• WADA continued to support Code Signatories in amending their anti-doping rules and/or legislation even though there was no requirement to do so as all Signatories, by early 2022, had compliant rules and/or legislation. WADA received and reviewed 286 sets of rules and legislation, which represents a 40% increase when compared to a similar year e.g. 2019.  
• Although compliance procedures reduced in comparison to 2021 (which was a unique year due to the backlog of cases resulting from the COVID-19 pandemic with 52 procedures opened) they remained high at 39. A high number of compliance procedures suggests that compliance maturity is still being established in the system
• Testing continued to generate the most non-conformities in 2022. The availability of verifiable data through WADA’s Anti-Doping Administration Management System (ADAMS) reports and monitoring tools contributes to the high number of non-conformities
• Education generated the second highest number of non-conformities, replacing results management, following the first global assessment of the implementation of the new International Standard for Education introduced in January 2021.
• Resources within WADA and Code Signatories were an ongoing challenge in 2022. Within WADA, adjustments have been made to the roll out of CCQs to Code Signatories to ensure WADA’s review and feedback can be provided in a timely manner to enable Signatories to implement their corrective actions. 24% of Tier 1 and Tier 2 Signatories completing the CCQ have either self-reported a lack of resources or it was identified through the assessment of their programs that insufficient resources were in place to meet the requirements of the 2021 Code.

In April 2023 the Canadian Centre for Ethics in Sport (CCES) has reported an anti-doping rule violation against the weightlifter Navid Zanganeh after his sample tested positive for the prohibited substance Oxandrolone. Following notification a provisional suspension was ordered without response of the Athlete.

The Athlete failed to dispute the violation within the timelines specified in the CADP and the Notice of Charge, including a deadline to respond and request a hearing that was extended by the CCES on its own accord. As a result, the ADRV, the period of Ineligibility, plus all other applicable Consequences were thereby confirmed by way of a deemed waiver.

Therefore the CCES decides on 7 July 2023 to impose a 4 year period of inelgibility on the Athlete, starting on the date of the provisional suspension, i.e. on 4 July 2023.

On 14 December 2022 the United Arab Emirates NADA Doping Hearing Panel decided to impose a 4 year period of ineligibility on the football player Mohammad Sebil Seed Obaid for committing an anti-doping rule violation.

Hereafter the case was notifed to FIFA in order to worldwide extend the imposed sanction. Following assessment of the case documentation the Chairperson of the FIFA Disciplinary Committee deemed that the conditions for worldwide extension have been met.

Therefore on 9 February 2023 the FIFA Disciplinary Committee decides to worldwide extend the 4 year period of ineligibility imposed on the Athlete, starting from 14 December 2022.

On 23 December 2022 the Azerbaijan National Anti-Doping Disciplinary Committee decided to impose a 2 year period of ineligibility on the football player Mahmud Mammadov for committing an anti-doping rule violation.

Hereafter the case was notifed to FIFA in order to worldwide extend the imposed sanction. Following assessment of the case documentation the Chairperson of the FIFA Disciplinary Committee deemed that the conditions for worldwide extension have been met.

Therefore on 9 February 2023 the FIFA Disciplinary Committee decides to worldwide extend the 2 year period of ineligibility imposed on the Athlete, starting from 28 June 2022.