CAS 2017/A/5357 World Anti-Doping Agency (WADA) & Fédération Internationale de Basketball (FIBA) v. Hellenic National Council for Combating Doping (ESKAN) & Olga Chatzinikolaou
- Doping (cocaine metabolites)
- Standard of proof to rebut the intentional committing of an anti-doping rule violation
- Balance of probability and source of prohibited substance
1. The standard of proof by which an athlete can rebut the presumption of having intentionally committed an anti-doping rule violation or establish specific facts or circumstances is on the balance of probability.
2. The standard of proof of “balance of probability” has to be understood in the way that in case a CAS panel is offered several alternative explanations for the ingestion of the prohibited substance but it is satisfied that one of them is more likely than not to have occurred, the athlete has met the required standard of proof regarding the means of ingestion of the prohibited substance. It remains irrelevant that there may also be other possibilities of ingestion, as long as they are considered by the panel to be less likely to have occurred. In other words, for the panel to be satisfied that a means of ingestion is demonstrated on a balance of probability simply means, in percentage terms, that it is satisfied that there is a 51% chance of it having occurred. The athlete thus only needs to show that one specific way of ingestion is marginally more likely than not to have occurred.
In April 2017 the Hellenic National Council for Combating Doping (ESKAN) has reported an anti-doping rule violation against the basketball player Olga Chatzinikolaou after her A and B samples tested positive for the prohibited substance Cocaine.
Nevertheless the ESKAN Disciplinary Committee accepted the Athlete's explanation that there had been passive inhalation of Cocaine out-of-competition at an afternoon dinner more than 12 hours prior to the game and the Doping Control. Accordinghly the Disciplinary Committee decided on 17 July 2017 not to impose a sanction on the Athlete.
Hereafter in October 2017 the World Anti-Doping Agency (WADA) and the International Basketball Federation (FIBA) appealed the ESKAN Decision with the Court of Arbitration for Sport (CAS).
Furthermore the Athlete's samples were transferred from the Athens Lab to the Lausanne Lab. Reanalysis of these samples revealed that the found concentration of Cocaine was not consistent with her alleged passive inhalation of Cocaine more than 12 hours prior to the game.
WADA and FIBA requested the Panel to set aside the Appealed Decision and to impose a sanction of 4 years. They contended that the Athlete had the burden to demonstrate with corroboration evidence that the violation was not intentional and to prove how the Cocaine had entered her system.
The Athlete denied the intentional use of the substance and requested for a reduced sanction. She asserted that the violation occurred out-of-competition and unrelated to sport performance.
The Sole Arbitrator determines that it was undisputed that the presence of of prohibited substance had been established in the Athlete's samples and accordingly that she committed an anti-doping rule violation.
Following assessment of the evidence the Sole Arbitrator deems finds that the Athlete failed to establish, on a balance of probabilities, her lack of intent nor the source of the Cocaine and the metabolites found in her system.
Therefore the Court of Arbitration for Sport decides on 31 May 2018 that:
1.) The appeal filed on 3 October 2017 by the World Anti-Doping Agency with the Court of Arbitration for Sport against the decision of the Hellenic National Council for Combatting Doping (ESKAN) dated 17 July 2017 is admissible.
2.) The decision of the Hellenic National Council for Combatting Doping (ESKAN) dated 17 July 2017 is set aside.
3.) Ms Olga Chatzinikolaou committed an anti-doping rule violation according to Article 3.1 of the Greek law n° 4373.
4.) Ms Olga Chatzinikolaou is sanctioned with a four (4) year period of ineligibility, starting on 31 May 2018. The period of provisional suspension served by Ms Olga Chatzinikolaou between 13 April 2017 and 17 July 2017, shall be credited against the four-year period of ineligibility to be served.
7.) All other motions or requests for relief are dismissed.