9 Jun 2022
CAS 2021/A/7840 World Anti-Doping Agency (WADA) v. International Canoe Federation (ICF) & Aleksandra Dupik
- Canoeing
- Doping (furosemide)
- Use of a prohibited substance
- Standard of proof
- Methods of proof
- Circumstantial evidence
- Reduction of the period of disqualification in the interests of fairness
1. It is made clear by Article 2.2.1 of the ICF 2009 Anti-Doping Regulations (ADR) that, because it is every athlete’s duty to ensure that no prohibited substance enters his or her body, it is not necessary to show that any use on the part of an athlete was intentional or knowing, or that an athlete was at fault in some way or that he or she failed to take due care (i.e., was negligent).
2. The standard of proof of comfortable satisfaction is greater than a mere balance of probability, but less than proof beyond a reasonable doubt. The more serious the allegation, the more cogent the supporting evidence must be in order for the allegation to be found proven. However, contrary to what is often asserted, the standard itself does not change; it is the required cogency of the evidence that changes on the basis that the more serious the allegations (a) the less likely that the alleged fact or event has occurred and (b) the more serious the consequences. The standard of proof remains to the comfortable satisfaction of the Panel bearing in mind the seriousness of the allegations.
3. As a general rule, facts relating to anti-doping rule violations (ADRV) may (i.e., it is permissible) be established by “any reliable means”. This rule gives greater leeway to anti-doping organisations to prove violations, so long as they can comfortably satisfy a tribunal that the means of proof is reliable. As a result, it is not even necessary that a violation be proven by a scientific test itself. Instead, a violation may be proved through admissions, testimony of witnesses, or other documentation evidencing a violation. This rule is not a requirement that the evidence adduced be “reliable evidence”. Rather, it is a rule as to the method or manner or form in which the facts that are necessary to sustain an allegation of an ADRV may be established, and the rule provides (in a non-exhaustive list) a number of examples of means of establishing facts which are characterised as “reliable”.
4. In case there is no direct but only circumstantial evidence, the adjudicatory body must assess the evidence separately and together and must have regard to what is sometimes called “the cumulative weight” of the evidence. It is in the nature of circumstantial evidence that single items of evidence may each be capable of an innocent explanation but, taken together, establish guilt beyond reasonable doubt. There may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion, but the whole taken together, may create a strong conclusion of guilt.
5. Article 10.8 of the ICF 2009 ADR provides that all competitive results achieved by the athlete from the date that a positive sample was collected or other ADRV was committed through to the start of the period of ineligibility is to be disqualified with all of the resulting consequences as there set forth – unless fairness requires otherwise. Indeed in certain exceptional circumstances, the strict application of the disqualification rule can produce an unjust result. In particular, this may be the case when the potential disqualification period covers a very long term, which is normally the case when the facts leading to the ADRV took place long before the adjudicating proceedings started which usually occurs when they are opened as a result of the re-testing of a sample or of the uncover of a sophisticated doping scheme. In addition, in this type of cases it may be difficult to prove that the athlete at stake used prohibited substances or methods during such a long period of time.
In 2016, Professor Richard McLaren issued two reports about systemic doping in Russia. These reports identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered.
Hereafter in January 2019 the World Anti-Doping Agency (WADA) recovered the internal database of the Moscow Laboratory (LIMS). Following investigation of allegations of organized doping practices, and in particular of the LIMS, WADA provided international federations with investigation reports on the athletes implicated in these organized doping practices.
These investigation reports revealed that the prohibited substances Furosemide had been established in the sample of the Athlete Aleksandra Dupik. This sample was provided by the Athlete in April 2014 and thereupon deliberately reported as negative by the Moscow laboratory.
However the ICF concluded that there was insufficient direct evidence that the Athlete had committed an anti-doping rule violation and decided on 11 March 2021 not to bring forward this case.
Hereafter in March 2021 the World Anti-Doping Agency (WADA) appealed the ICF decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a period of ineligibility on the Athlete from 2 to 4 years.
WADA contended that the evidence in relation to the Athlete's samples clearly showed that the Athlete committed an anti-doping rule violation and that the decision by the ICF not to move forward with this matter was manifestly wrong.
The Athlete denied that she had committed an anti-doping rule violation and argued that the appeal should be dismissed and the Appealed Decision should be confirmed. Further she disputed the reliability of the filed evidence in this case provided by WADA, Professor McLaren and Dr Rodchenkov.
There was no pleaded challenge to the manner in which the ICF conducted itself in coming to its decision, only that its decision was wrong. The appeal was therefore conducted by the Parties as an inquiry into whether the evidence was sufficient to establish, to the applicable standard of proof, that the Athlete had committed an anti-doping rule violation and not as to whether the ICF had met its investigation obligations under its anti-doping rules and related international standards.
Following assessment of all evidence provided by the Parties, the Panel concludes as follows:
- There was a systemic cover-up and manipulation of the doping control process within Russia in the manner described by Prof. McLaren in the McLaren Reports, commonly referred to as the Russian doping scheme.
- The Moscow Laboratory performed both initial testing procedures and confirmation procedures on the Sample, the results of which showed the presence of the diuretic, Furosemide.
- Furosemide is a prohibited substance.
- In furtherance of the Russian doping scheme, and in order to protect the Athlete from the consequences of the positive test result, the Moscow Laboratory recorded the analytical results of the Sample in ADAMS as negative.
- In relation therefore to the ADRV allegations in this matter, the Panel concludes that, upon taking the evidence as a whole and assessing its cumulative weight, the Panel is comfortably satisfied that, on or about 19 April 2014, the Athlete used a prohibited substance (namely, Furosemide) in violation of Article 2.2(b) of the 2009 ICF ADR.
Therefore the The Court of Arbitration for Sport decides on 9 June 2022 that:
1.) The appeal filed by the World Anti-Doping Agency on 1 April 2021 against the International Canoe Federation and Ms Aleksandra Dupik with respect to the decision rendered by the International Canoe Federation on 11 March 2021 is upheld.
2.) The decision rendered on 11 March 2021 by the International Canoe Federation in the matter of Ms Aleksandra Dupik is set aside.
3.) Ms Aleksandra Dupik is found to have committed an anti-doping rule violation under Article 2.2 of the International Canoe Federation’s 2009 Anti-Doping Rules.
4.) Ms Aleksandra Dupik is sanctioned with a period of ineligibility of two (2) years starting from the date of this Award.
5.) All competitive results achieved by Ms Aleksandra Dupik from 19 April 2014 through to and including 31 December 2016 are disqualified with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points and prize and appearance money.
6.) (…).
7.) (…).
8.) All other or further requests for relief are hereby dismissed.
