CAS 2019_A_6180 WADA vs USADA & Ryan Hudson - Settlement 

Related case:

CAS 2019_A_6180 WADA vs USADA & Ryan Hudson - Preliminary Award
March 10, 2020

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Previously in December 2016 the American weightlifter Ryan Hudson was sanctioned with a 4 year period of ineligibility after he tested positive in 2015 for the prohibited substance Stanozolol. 

In July 2017 the United States Anti-Doping Agency (USADA) reported an new anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance Dehydrochlormethyltestosterone (DHCMT).

USADA deemed on 27 November 2018 that there where grounds for the imposition of a sanction of 4 years for the Athlete’s second anti-doping rule violation instead of the otherwise applicable 8 year period of ineligibility. 

Hereafter in March 2019 the World Anti-Doping Agency (WADA) appealed the USADA Decision with the Court of Arbitration for Sport (CAS).

In this case the Sole Arbitrator on 10 March 2020 already settled preliminairy issues between WADA and USADA and ruled that the Court of Arbitration for Sport has jurisdiction over the present Appeal.

During the proceedings the Parties reached a settlement and requested the CAS Sole Arbitrator to ratify the Settlement Agreement into a Consent Award.

The Parties agreed as follows:

• The Acceptance of Sanction form signed by the Athlete and USADA on 27 November 2018 shall be set aside;
• The Athlete is sanctioned with an 8 year period of ineligibility, starting on 27 November 2018; and
• USADA shall bear the arbitration costs for the CAS Appeal.

The Sole Arbitrator, having reviewed the text of the Settlement Agreement and the evidence on file, finds no reason to object to or to disapprove of the terms of the Settlement Agreement and is satisfied that the agreement constitutes a bona fide
settlement of the dispute of which he was seized.

Therefore the Court of Arbitration for Sport decides on 23 October 2020 that:

1.) The Settlement Agreement submitted to the CAS Court Office by the Parties on 4 June 2020 is hereby ratified by the CAS with the consent of the Parties and its relevant terms
are incorporated into this arbitral A ward.

2.) Each Party is hereby ordered to perform the obligations and duties as per the Settlement Agreement referred to above.

3.) The arbitral procedure CAS 2019/A/6180 World Anti-Doping Agency v. United States Anti-Doping Agency & Ryan Hudson is terminated and deleted from the CAS roll.

4.) In accordance with the Settlement Agreement, the arbitration costs, to be determined and served to the Parties by the CAS Court Office, shall be borne by the United States Anti-Doping Agency.

5.) The United States Anti-Doping Agency shall pay to the World Anti-Doping Agency the amount of CHF 9,000 (nine thousand Swiss Francs) as a contribution to the costs and
expenses the latter incurred in connection with the present proceedings. Ryan Hudson shall bear his own costs and expenses incurred in these proceedings.

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

CAS 2020/ADD/11 International Olympic Committee (IOC) v. Vladimir Nikolov

• Volleyball
• Doping (methyltestosterone)
• Jurisdiction of the CAS Anti-Doping Division
• Mitigating circumstances influencing on the consequences of an Anti-Doping Rule Violation
• Individual sanction in relation to team’s sport
  
  

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1. According to Article A2 of the CAS Anti-Doping Division (ADD) Rules, CAS ADD shall be the first-instance authority to conduct proceedings and issue decisions when an alleged anti-doping rule violation has been filed with it and for imposition of any sanctions resulting from a finding that an anti-doping rule violation has occurred. CAS ADD has jurisdiction to rule as a first-instance authority on behalf of any sports entity which has formally delegated its powers to CAS ADD to conduct anti-doping proceedings and impose applicable sanctions. CAS ADD shall also have jurisdiction in case of alleged doping violations linked with any re-analysis of samples.

2. Mitigating circumstances, such as lack of intent, lack of knowledge, possibility of consumption of supplements containing the Prohibited Substance and the small quantity of the substance detected, even if proven, are irrelevant to establish whether an Anti-Doping Rule Violation (ADRV) was committed. An athlete’s fault or negligence are elements taken into consideration in determining the consequences of an ADRV.

3. In case of a team’s sport, there are no “athlete’s results” but only team results. However, on the basis of art. 8.1 of the IOC Anti-Doping Rules, the Olympic Diploma and pin an athlete was awarded as a consequence of his/her participation to the relevant Olympic Games can be ordered to be returned to the IOC as a result of his/her ADRV.

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Mr Vladimir Nikolo is a Bulgarina volleyball player at the London 2012 Olympic Games. 

In 2018, the International Olympic Committee (IOC) decided to perform further analyses on certain samples collected during the 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2012. 

In January 2020 the International Testing Agency (ITA), on behalf of the IOC, reported an anti-doping rule violation against the Athlete after his 2012 A and B samples tested positive for the prohibited substance Methyltestosterone. 

Hereafter in August 2020 the International Olympic Committee (IOC) filed a request for Arbitration with the Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD) as first-instance authority. The Sole Arbitrator renders a decision without a hearing based on the Parties' written submissions. 

The Athlete accepted the test result, admitted the violation and denied intentional use. He was tested before without issues and could not explain how the substance had entered his system. He assumed that a contaminated supplement might have been the source of the positive test since only a very low concentration of the substance was found in his samples. 

The IOC contended that the presence of the prohibited substance had been established in the Athlete's sample and accordingly that he had committed an anti-doping rule violation. 

The Sole Arbitrator concludes that there is sufficient proof that the Athlete committed an anti-doping rule violation. Any mitigating circumstanced invoked by the Athlete in his defence, even if proven, are not relevant to establish whether an anti-doping rule violation was committed.

The Sole Arbitrator deems that the Athlete may have an opportunity to explain the circumstances at a later stage of the prosecution of the anti-doping rule violation. 

Therefore the Court of Arbitration for Sport decides on 15 October 2020 that:

1. The request for arbitration filed by the International Olympic Committee on 28 August 2020 against Mr. Vladimir Nikolov is upheld.
2. Mr. Vladimir Nikolov committed an anti-doping rule violation in accordance with the International Olympic Committee’s Anti-Doping Rules applicable to the XXX Olympiad, London 2012.
3. Mr. Vladimir Nikolov shall return the Olympic diploma and pin he received on the occasion of the XXX Olympiad, London 2012.
4. (…).
5. (…).
6. All other motions or prayers for relief are dismissed.

CAS 2019/A/6465 World Anti-Doping Agency (WADA) v. International Skating Union (ISU) & Vitali Mikhailov

Related case:

ISU 2019 ISU vs Vitali Mikhailov
August 12, 2019

In April 2019 the International Skating Union (ISU) had reported an anti-doping rule violation against the Belarussian Athlete Vitali Mikhailov after his sample tested positive for the prohibited substance Higenamine.

After notification the Athlete admitted the violation, denied the intentional use of the substance and explained that he had purchased in Canada a pre-workout supplement in a sports nutrition store. He mentioned the use of this supplement on the Doping Control Form and acknowledged that he was unaware that this supplement contained a prohibited substance.

The ISU Disciplinary Commission considered this case and concluded that a value of 7 ng/mL of Higenamine should not have been reported as an Adverse Analytical Finding. Accordingly no weight can be given to a sanction flowing from it. Therefore the ISU Disciplinary Commission decided on 12 August 2019 to dismiss the case against the Athlete.

Hereafter the World Anti-Doing Agency (WADA) appealed the ISU Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the ISU Decision of 12 August 2019 and to impose a 2 year period of ineligibility on the Athlete. WADA accepts that the violation was not intentional but contended that the Athlete acted negligently due to he failed to check his supplement before using.

Further WADA contended that since a positive test for Higenamine has been reported by the Montreal Lab, the presence of a prohibited substance constitutes an anti-doping rule violation regardless of the fact that the presence of the substance is below the reporting limit of 10 ng/mL as foreseen in the WADA TD2018MRPL.

The ISU and the Athlete requested the Panel to uphold the findings in first instance of the ISU Disciplinary Commission:

• that the reporting limit for Higenamine established by Rule 4.0 of the WADA TD 2018MRPL is mandatory;
• that it was in violation of this rule to report the presence of Higenamine of 7 ng/mL in the Athlete's body as adverse analytical finding; and
• that therefore the Skater has to be acquitted of the charge to have violated the ISU Anti-Doping Rules and the Appeal dismissed.

The Panel holds that this case centers around one legal question, which is whether the Athlete could be sanctioned for an ADRV when the Prohibited Substance was reported by the Laboratory at levels which are below reporting levels foreseen under Rule 4.0 of the WADA TD2018MRPL.

Considering the arguments of the Parties the Panel concludes that the presence of Higenamine in the Athlete's sample is sufficient for the finding of an anti-doping rule violation under the ISU ADR. Further the Panel concludes that the concentration level of Higenamine in the Athlete's urine was an irrelevant factor to determine the anti-doping rule violation.

The Panel holds that an anti-doping rule violation under the ISU ADR could also be demonstrated since the Athlete had admitted having ingested a Prohibited Substance. Here the Panel considers that the Athlete indeed had admitted the use of a food supplement but not that he had committed an anti-doping rule violation. The matter of a Timely Admission was not raised by the Parties during the procedure.

The Panel finds that it was undisputed that the violation was not intentional but it deems that there are no grounds for No Significant Fault or Negligence since the Athlete failed to researcht his supplement before using it.

Therefore The Court of Arbitration for Sports decides on 30 September 2020 that:

1. The Appeal filed by WADA against the International Skating Union on 19 September 2019 against the decision rendered on 12 August 2019 by the Disciplinary Commission of the International Skating Union is upheld.
2. The decision rendered on 12 August 2019 by the Disciplinary Commission of the International Skating Union is set aside.
3. Vitali Mikhailov is found to have committed an anti-doping rule violation.
4. Vitali Mikhailov is sanctioned with a two-year period of ineligibility starting on the date of this Award.
5. All competitive results obtained by Mr. Vitali Mikhailov on 2 March 2019 and any other results achieved at the 2019 ISU World Allround Speed Skating Championships in Calgary, Canada, are disqualified, with all of the resulting consequences, including forfeiture of any medals, points and prizes.
6. The Award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss francs) paid by WADA, which is retained by the Court of Arbitration for Sports.
7. ISU is ordered to contribute CHF 3,000 to WADA's legal fees and costs.
8. All further motions and requests for relief are dismissed.

CAS 2017/A/5444 Olga Zaytseva v. International Olympic Committee (IOC)

Related cases:

IOC 2017 IOC vs Olga Zaytseva - Decision
December 22, 2017

IOC 2017 IOC vs Olga Zaytseva - Operative Part
November 27, 2017

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• Biathlon
• Doping (use of a prohibited substance or method; tampering with doping control; cover-up of and complicity in the commission of an ADRV)
• Connection between use or attempted use of a prohibited method and tampering or attempted tampering with any part of doping control
• Standard of proof to be met by anti-doping organizations
• Consideration to be given of the restricted powers of the investigation authorities of the IOC
• Underlying factual basis for an inference that an athlete has committed a particular ADRV
• Standard of proof with regard to an athlete’s alleged participation to an alleged doping scheme
• Interpretation of Article 2.8. of the 2009 WADC
• Interpretation of Article 9.1 of the IOC ADR
• Justification for the imposition of a sanction of lifetime ineligibility

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1. According to art. 2.2. of the World Anti-Doping Code (WADC, in its 2009 edition), the use or attempted use of a prohibited method constitutes an Anti-Doping Rule Violation (ADRV). In this respect, the 2014 World Anti-Doping Agency (WADA) Prohibited List sets forth in point M2.1 (prohibited methods) the prohibition of tampering or attempting to tamper, in order to alter the integrity and validity of samples collected during doping control. These include but are not limited to urine substitution. Art. 2.5 WADC, for its part, states that tampering or attempted tampering with any part of doping control constitutes an ADRV. More precisely, art. 2.5 WADC prohibits conduct which subverts the doping control process, but which would not otherwise be included in the definition of prohibited methods. Accordingly, the alleged swapping of urine samples has first to be examined under the framework of the specific rule of art. 2.2. WADC, rather than by reference to the more general rule of art. 2.5 WADC. Art. 2.5 WADC is only applicable insofar as it relates to acts that are not already included within the definition of prohibited methods under art. 2.2 WADC.

2. The standard of proof established in art. 3.1 WADC shall be whether an Anti-Doping Organization has established an ADRV to the comfortable satisfaction of a hearing panel bearing in mind the seriousness of the allegation which is made. The standard of comfortable satisfaction is a kind of sliding scale: the more serious the allegation and its consequences, the higher certainty (level of proof) a panel would require to be comfortably satisfied. The test of comfortable satisfaction must consider the circumstances of the case.

3. Taking into account all relevant circumstances of a case includes inter alia to consider the nature and restricted powers of the investigation authorities of the governing bodies of sport as compared to national formal interrogation authorities. In casu, consideration needs to be given to the fact that the IOC is not a national or international law enforcement agency. Its investigatory powers are substantially more limited than the powers available to such bodies. Since the IOC cannot compel the provision of documents or testimony, it must place greater reliance on the consensual provision of information and evidence and on evidence that is already in the public domain. The evidence that it is able to present necessarily reflects these inherent limitations in its investigatory powers. Assessment of the evidence must respect those limitations. In particular, it must not be premised on unrealistic expectations concerning the evidence that the IOC is able to obtain from reluctant or evasive witnesses and other source.

4. In view of the nature of the alleged doping scheme presented in casu and the IOC’s limited investigatory powers, the IOC may properly invite a CAS panel to draw inferences from the established facts that seek to fill in gaps in the direct evidence. The panel may accede to that invitation where it considers that the established facts reasonably support the drawing of the inferences. So long as a panel is comfortably satisfied about the underlying factual basis for an inference that an athlete has committed a particular ADRV, it may conclude that the IOC has established an ADRV notwithstanding that it is not possible to reach that conclusion by direct evidence alone.

5. In a case of an athlete accused, inter alia, of participating in a conspiracy of unprecedented magnitude and sophistication, it is insufficient for the IOC merely to establish the existence of an overarching doping scheme to the comfortable satisfaction of a panel. Instead, given that, in order to be liable for conspiracy a person must have knowledge of the existence of that conspiracy and of its object, the IOC must go further and establish that the individual athlete knowingly engaged in particular conduct that involved the commission of a specific and identifiable ADRV. In other words, a panel must be comfortably satisfied that said individual athlete personally committed a specific violation of a specific provision of the WADC.

7. The first part of art. 2.8 WADC only covers the (attempted) administrations attributable to a third party rather than by an athlete himself/herself, unless it is alleged that an athlete has administered or attempted to administer a prohibited method or substance to another athlete. A precondition for the application of the second part of art. 2.8 WADC is the existence of an ADRV under art. 2.1 to 2.7 WADC committed by another person than the one charged with a violation of art. 2.8 WADC.

8. Art. 9.1 para. 3 IOC Anti-Doping Rules (ADR) has to be interpreted as referring to the rules of the relevant international federation only with respect to “other disciplinary action”, while “disqualification” remains the full responsibility of the IOC. This interpretation of art. 9.1 para. 3 of the IOC ADR is also supported by the allocation of responsibility and jurisdiction between the IOC and the international federation with respect to Olympic Games.

9. A sanction equivalent to a lifetime period of ineligibility can only be considered justified where the seriousness of the offence was most extraordinary.

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Two reports commissioned by WADA, published by Prof. Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample.

As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. At the same time the IOC Schmid Commission started their investigations to establish the facts on the basis of documented, independent and impartial evidence.

All the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated. The findings in the IP Reports were considered in detail and both Commissions conclude that samples or urine collected from Russian Athletes were tampered with in Sochi in a systematic manner and as part of an organized scheme. The Commissions further conclude that it was not possible that the athletes were not fully implicated. They were also the main beneficiaries of the scheme.

The IOC Commissions find that Prof. McLaren’s findings are not only based on the evidence provided by Dr Rodchenkov in his interviews, but on a wealth of other corroborating evidence, including other witnesses, the forensic examination of the sample bottles, the evidence showing abnormal salt results and the additional elements coming from DNA analysis. The corroborating evidence considered by Prof. McLaren included further objective elements, such as e-mails confirming that athletes were protected through different methods.

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Olga Zaytseva is a Russian Athlete competing in the Women's Biathlon Events at the Sochi 2014 Olympic Winter Games.
In October 2017 the IOC Disciplinary Commission has reported multiple anti-doping rule violations against the Athlete for tampering, conspiracy and use of prohibited substances. 

Consequently the IOC Disciplinary Commission decided on 22 December 2017 to declare Olga Zaytseva ineligible to be accredited in any capacity for all editions of the Games of the Olympiad and the Olympic Winter Games subsequent to the Sochi Olympic Winter Games.

Further the Commission disqualified the Athlete and her team from the events at the 2014 Sochi Olympic Winter Games including forfeiture of any medal, diploma, medallist pin, points and prizes. 

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In December 2017 the Athlete Olga Zaytseva appealed the IOC decision with the Court of Arbitration for Sport (CAS). In January 2018 the appeals of the Athlete Olga Zaytseva together with the appeals of the Athletes Olga Vilukhina (CAS 2017/A/5434 and Yana Romanova (CAS 2017/A/5435) were stayed until reasoned awards were issued by the CAS in the cases: 

• CAS 2017_A_5379 Alexander Legkov vs IOC
• CAS 2017_A_5380 Evgeniy Belov vs IOC
• CAS 2017_A_5422 Aleksandr Zubkov vs IOC
• CAS 2017_A_5433 Maria Orlova vs IOC
• CAS 2017_A_5436 Maxim Vylegzhanin vs IOC
• CAS 2017_A_5441 Alexander Rumyantsev vs IOC
• CAS 2017_A_5445 Yulia Chekaleva vs IOC
• CAS 2017_A_5446 Anastasia Dotsenko vs IOC

After the rendering of these reasonded decisions the CAS proceedings of the Athletes Olga Zaytseva, Olga Vilukhina and Yana Romanova  were resumed in December 2018. 

The Athlete disputed the reliability of the filed evidence provided by the IOC, Prof. McLaren and Dr. Rodchenko and pointed to various inconsistencies in this evidence. She argued that the IOC did not only failed to provide any credible evidence on her supposed involvement in the so-called organised doping scheme or of her being aware of any doping scheme supposedly tailored to protect her, but did not even establish that she ever used a prohibited substance. The IOC merely relies on a speculation which is not admissible when the issues at stake are so serious and carry severe consequences for the Athlete. 

The IOC contended that the Athlete had personally committed various anti-doping rule violations, namely: 

• using a prohibited substance, i.e. the Duchess Cocktail, and using a prohibited method, i.e. urine substitution;
• tampering with any part of the doping control; and
• cover-up of and complicity in the commission of an ADRV.

The IOC, in its written submissions, provided a detailed description of the doping and cover-up scheme that allegedly operated in Russia from 2011 to 2015.

The IOC contended that the McLaren Reports and the Schmid Report both identified the Disappearing Positive Methodology as the origin of the institutionalised doping and cover-up scheme while Dr. Rodchenkov identified the main aspects to the Disappearing Positive Methodology in his affidavits. 

With regard to the Athlete’s implication in this scheme, the IOC asserted that:

• The Athlete’s B sample bottles had multiple T marks and elevated sodium levels, i.e. evidence of tampering.
• The Athlete’s implication in the doping scheme was also demonstrated by the evidence of Dr. Rodchenkov. 

The IOC requested the Panel to confirm the existence of a generalised doping scheme in Russia before and during the Sochi Games, one which enabled the Athlete to participate in a doping-control free environment. Also th IOC requested the Panel, to find a link (even contextual) between the Athlete or one of her urine samples and the generalised doping scheme which is sufficient to allow it to conclude that the Athlete has committed one or more of the alleged ADRVs. 

Having considered the submissions of the Parties, the written evidence as well as the oral evidence and testimonies provided at the hearing the, in the present case, the Panel is comfortably satisfied that, the elevated sodium level found in the Athlete’s B sample constitutes reliable evidence to support the conclusion that the urine the Athlete provided was likely to have been deliberately swapped against clean urine that the Athlete had provided in advance to the Sochi Games.

Thus, the Panel finds to its comfortable satisfaction, on the basis of the evidence before it, that the Athlete committed an anti-doping rule violation for use of a prohibited substance and use of a prohibited method. However the Panel is not comfortably satisfied that the Athlete committed an anti-doping rule violation for tampering, neither for complicity.

Therefore the Court of Arbitration for Sport decides on 24 September 2018 that: 

1.) The appeal filed by Ms. Olga Zaytseva on 6 December 2017 against the decision of the International Olympic Committee Disciplinary Commission dated 1 December 2017 is partially upheld.

2.) Paragraph I (a) of the Decision rendered by the International Olympic Committee Disciplinary Commission dated 1 December 2017 is modified as follows:

I. The Athlete, Olga ZAYTSEVA :

a) is found to have committed an anti-doping rule violation pursuant to the International Olympic Committee Anti-Doping Rules applicable to the XXII Olympic Winter Games in Sochi, Russia, in connection with the World Anti-Doping Code.

3.) Paragraph V of the Decision rendered by the International Olympic Committee Disciplinary Commission dated 1 December 2017 is annulled and replaced as follows:

V. Olga ZAYTSEVA is declared ineligible to be accredited in any capacity for the next edition of the Olympic Winter Games subsequent to the Sochi Olympic Winter Games (i.e. PyeongChang 2018).

4.) All other rulings contained in the Decision rendered by the International Olympic Committee Disciplinary Commission dated 1 December 2017 are maintained.

5.) (…).

6.) (…).

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

CAS 2017/A/5435 Yana Romanova v. International Olympic Committee (IOC)

Related case:

IOC 2017 IOC vs Yana Romanova - Operative Part
November 27, 2017

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• Biathlon
• Doping (use of a prohibited substance or method; tampering with doping control; cover-up of and complicity in the commission of an Anti-Doping Rule Violation)
• Connection between use or attempted use of a prohibited method and tampering or attempted tampering with any part of doping control
• Standard of proof to be met by anti-doping organizations
• Consideration to be given of the restricted powers of the investigation authorities of the International Olympic Committee
• Underlying factual basis for an inference that an athlete has committed a particular Anti-Doping Rule Violation.
• Standard of proof with regard to an athlete’s alleged participation to an alleged doping scheme

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1. According to art. 2.2. of the World Anti-Doping Code (edition 2009, WADC), the use or attempted use of a prohibited method constitutes an Anti-Doping Rule Violation (ADRV). In this respect, the 2014 World Anti-Doping Agency (WADA) Prohibited List sets forth in point M2.1 (prohibited methods) the prohibition of tampering or attempting to tamper, in order to alter the integrity and validity of samples collected during doping control. These include but are not limited to urine substitution. Art. 2.5 of the 2009 WADC, for its part, states that tampering or attempted tampering with any part of doping control constitutes an ADRV. More precisely, art. 2.5 WADC prohibits conduct which subverts the doping control process, but which would not otherwise be included in the definition of prohibited methods. Accordingly, the alleged swapping of urine samples has first to be examined under the framework of the specific rule of art. 2.2. WADC, rather than by reference to the more general rule of art. 2.5 WADC. Art. 2.5 WADC is only applicable insofar as it relates to acts that are not already included within the definition of prohibited methods under art. 2.2 WADC.

2. The standard of proof established in art. 3.1 of the 2009 WADC shall be whether an Anti-Doping Organization has established an ADRV to the comfortable satisfaction of a hearing panel bearing in mind the seriousness of the allegation which is made. The standard of comfortable satisfaction is a kind of sliding scale: the more serious the allegation and its consequences, the higher certainty (level of proof) a panel would require to be comfortably satisfied. The test of comfortable satisfaction must consider the circumstances of the case.

3. Taking into account all relevant circumstances of a case include inter alia to consider the nature and restricted powers of the investigation authorities of the governing bodies of sport as compared to national formal interrogation authorities. In casu, consideration needs to be given to the fact that the IOC is not a national or international law enforcement agency. Its investigatory powers are substantially more limited than the powers available to such bodies. Since the IOC cannot compel the provision of documents or testimony, it must place greater reliance on the consensual provision of information and evidence and on evidence that is already in the public domain. The evidence that it is able to present necessarily reflects these inherent limitations in its investigatory powers. Assessment of the evidence must respect those limitations. In particular, it must not be premised on unrealistic expectations concerning the evidence that the IOC is able to obtain from reluctant or evasive witnesses and other source.

4. In view of the nature of the alleged doping scheme presented in casu and the IOC’s limited investigatory powers, the IOC may properly invite a CAS panel to draw inferences from the established facts that seek to fill in gaps in the direct evidence. A Panel may accede to that invitation where it considers that the established facts reasonably support the drawing of the inferences. So long as a panel is comfortably satisfied about the underlying factual basis for an inference that an athlete has committed a particular ADRV, it may conclude that the IOC has established an ADRV notwithstanding that it is not possible to reach that conclusion by direct evidence alone.

5. In a case of an athlete accused, inter alia, of participating in a conspiracy of unprecedented magnitude and sophistication, it is insufficient for the IOC merely to establish the existence of an overarching doping scheme to the comfortable satisfaction of a panel. Instead, given that, in order to be liable for conspiracy a person must have knowledge of the existence of that conspiracy and of its object, the IOC must go further and establish that the individual athlete knowingly engaged in particular conduct that involved the commission of a specific and identifiable ADRV. In other words, a panel must be comfortably satisfied that said individual athlete personally committed a specific violation of a specific provision of the 2009 WADC.

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Two reports commissioned by WADA, published by Prof. Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample. 

As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. At the same time the IOC Schmid Commission started their investigations to establish the facts on the basis of documented, independent and impartial evidence. 

All the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated. The findings in the IP Reports were considered in detail and both Commissions conclude that samples or urine collected from Russian Athletes were tampered with in Sochi in a systematic manner and as part of an organized scheme. The Commissions further conclude that it was not possible that the athletes were not fully implicated. They were also the main beneficiaries of the scheme. 

The IOC Commissions find that Prof. McLaren’s findings are not only based on the evidence provided by Dr Rodchenkov in his interviews, but on a wealth of other corroborating evidence, including other witnesses, the forensic examination of the sample bottles, the evidence showing abnormal salt results and the additional elements coming from DNA analysis. The corroborating evidence considered by Prof. McLaren included further objective elements, such as e-mails confirming that athletes were protected through different methods.

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Yana Romanova is a Russian Athlete competing in the Women's Biathlon Events at the Sochi 2014 Olympic Winter Games. In December 2016 the IOC Disciplinary Commission has reported multiple anti-doping rule violations against the Athlete for tampering, conspiracy and use of prohibited substances. 

Consequently the IOC Disciplinary Commission decided on 27 November  2017 to declare Yana Romanova ineligible to be accredited in any capacity for all editions of the Games of the Olympiad and the Olympic Winter Games subsequent to the Sochi Olympic Winter Games. Further the Commission disqualified the Athlete and her team from the events at the 2014 Sochi Olympic Winter Games including forfeiture of any medal, diploma, medallist pin, points and prizes. 

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In December 2017 the Athlete Yana Romanova appealed the IOC decision with the Court of Arbitration for Sport (CAS). In January 2018 the appeals of the Athlete Yana Romanova together with the appeals of the Athletes Olga Vilukhina (CAS 2017/A/5434 and Olga Zaytseva (CAS 2017/A/5444) were stayed until reasoned awards were issued by the CAS in the cases: 

• CAS 2017_A_5379 Alexander Legkov vs IOC
• CAS 2017_A_5380 Evgeniy Belov vs IOC
• CAS 2017_A_5422 Aleksandr Zubkov vs IOC
• CAS 2017_A_5433 Maria Orlova vs IOC
• CAS 2017_A_5436 Maxim Vylegzhanin vs IOC
• CAS 2017_A_5441 Alexander Rumyantsev vs IOC
• CAS 2017_A_5445 Yulia Chekaleva vs IOC
• CAS 2017_A_5446 Anastasia Dotsenko vs IOC

After the rendering of these reasoned decisions the CAS proceedings of the Athletes Yana Romanova, Olga Vilukhina and Olga Zaytseva were resumed in December 2018. 

The Athlete disputed the reliability of the filed evidence provided by the IOC, Prof. McLaren and Dr. Rodchenko and pointed to various inconsistencies in this evidence. She argued that the IOC did not only fail to provide any credible evidence on her supposed involvement in the so-called organised doping scheme or of her being aware of any doping scheme supposedly tailored to protect her, but did not even establish that she ever used a prohibited substance. The IOC merely relies on a speculation which is not admissible when the issues at stake are so serious and carry severe consequences for the Athlete. 

The IOC contended that the Athlete had personally committed various anti-doping rule violations, namely: 

• using a prohibited substance, i.e. the Duchess Cocktail, and using a prohibited method, i.e. urine substitution;
• tampering with any part of the doping control; and
• cover-up of and complicity in the commission of an ADRV.

The IOC, in its written submissions, provided a detailed description of the doping and cover-up scheme that allegedly operated in Russia from 2011 to 2015.

The IOC contended that the McLaren Reports and the Schmid Report both identified the Disappearing Positive Methodology as the origin of the institutionalised doping and cover-up scheme while Dr. Rodchenkov identified the main aspects to the Disappearing Positive Methodology in his affidavits. 

With regard to the Athlete’s implication in this scheme, the IOC asserted that:

• The Athlete’s B sample bottle had multiple T marks, i.e. evidence of tampering.
• The Athlete’s implication in the doping scheme was also demonstrated by the evidence of Dr. Rodchenkov. 

The IOC requested the Panel to confirm the existence of a generalised doping scheme in Russia before and during the Sochi Games, one which enabled the Athlete to participate in a doping-control free environment. Also the IOC requested the Panel, to find a link (even contextual) between the Athlete or one of her urine samples and the generalised doping scheme which is sufficient to allow it to conclude that the Athlete has committed one or more of the alleged ADRVs. 

Having considered the submissions of the Parties, the written evidence as well as the oral evidence and testimonies provided at the hearing the Panel concludes that, in the present case, none of the acts alleged by the IOC has been established to the comfortable satisfaction of the Panel. The Panel further finds that the probative value of circumstantial evidence has its limits and that even when taken together and put into context, in the present case the different strands of factual and forensic evidence submitted by the IOC do not lead the Panel to be comfortably satisfied that the Athlete was personally and knowingly implicated in any of the alleged acts. 

Accordingly, the Panel concludes that the Athlete’s appeal against the decision of the IOC DC rendered on 27 November 2017 shall be upheld and the appealed decision set aside. 

Therefore the Court of Arbitration for Sport decides on 24 September 2018 that: 

1.) The appeal filed by Ms. Yana Romanova on 1 December 2017 against the International Olympic Committee with respect to the decision of the International Olympic Committee Disciplinary Commission dated 27 November 2017 is upheld.

2.) The decision of the International Olympic Committee Disciplinary Commission dated 27 November 2017 is partially set aside, except for points II, III, V and VI.

3.) All results achieved by Ms. Yana Romanova upon the occasion of the XXII Olympic Winter Games in Sochi, Russia in individual events, are reinstated, with all resulting consequences.

4.) (…).

5.) (…).

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

CAS 2017/A/5434 Olga Vilukhina v. International Olympic Committee (IOC)

Related case:

IOC 2017 IOC vs Olga Vilukhina - Operative Part
November 27, 2017

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Two reports commissioned by WADA, published by Prof. Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample.

As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. At the same time the IOC Schmid Commission started their investigations to establish the facts on the basis of documented, independent and impartial evidence.

All the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated. The findings in the IP Reports were considered in detail and both Commissions conclude that samples or urine collected from Russian Athletes were tampered with in Sochi in a systematic manner and as part of an organized scheme. The Commissions further conclude that it was not possible that the athletes were not fully implicated. They were also the main beneficiaries of the scheme.

The IOC Commissions find that Prof. McLaren’s findings are not only based on the evidence provided by Dr Rodchenkov in his interviews, but on a wealth of other corroborating evidence, including other witnesses, the forensic examination of the sample bottles, the evidence showing abnormal salt results and the additional elements coming from DNA analysis. The corroborating evidence considered by Prof. McLaren included further objective elements, such as e-mails confirming that athletes were protected through different methods.

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Olga Vilukhina is a Russian Athlete competing in the Women's Biathlon Events at the Sochi 2014 Olympic Winter Games. In December 2016 the IOC Disciplinary Commission has reported multiple anti-doping rule violations against the Athlete for tampering, conspiracy and use of prohibited substances. 

Consequently the IOC Disciplinary Commission decided on 27 November  2017 to declare Olga Vilukhina ineligible to be accredited in any capacity for all editions of the Games of the Olympiad and the Olympic Winter Games subsequent to the Sochi Olympic Winter Games. Further the Commission disqualified the Athlete and her team from the events at the 2014 Sochi Olympic Winter Games including forfeiture of any medal, diploma, medallist pin, points and prizes.

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In December 2017 the Athlete Olga Vilukhina appealed the IOC decision with the Court of Arbitration for Sport (CAS). In January 2018 the appeals of the Athlete Olga Vilukhina together with the appeals of the Athletes Yana Romanova (CAS 2017/A/5435) and Olga Zaytseva (CAS 2017/A/5444) were stayed until reasoned awards were issued by the CAS in the cases:

• CAS 2017_A_5379 Alexander Legkov vs IOC
• CAS 2017_A_5380 Evgeniy Belov vs IOC
• CAS 2017_A_5422 Aleksandr Zubkov vs IOC
• CAS 2017_A_5433 Maria Orlova vs IOC
• CAS 2017_A_5436 Maxim Vylegzhanin vs IOC
• CAS 2017_A_5441 Alexander Rumyantsev vs IOC
• CAS 2017_A_5445 Yulia Chekaleva vs IOC
• CAS 2017_A_5446 Anastasia Dotsenko vs IOC

After the rendering of these reasonded decisions the CAS proceedings of the Athletes Olga Vilukhina, Yana Romanova and Olga Zaytseva were resumed in December 2018. 

The Athlete disputed the reliability of the filed evidence provided by the IOC, Prof. McLaren and Dr. Rodchenko and pointed to various inconsistencies in this evidence. She argued that the IOC did not only failed to provide any credible evidence on her supposed involvement in the so-called organised doping scheme or of her being aware of any doping scheme supposedly tailored to protect her, but did not even establish that she ever used a prohibited substance. The IOC merely relies on a speculation which is not admissible when the issues at stake are so serious and carry severe consequences for the Athlete. 

The IOC contended that the Athlete had personally committed various anti-doping rule violations, namely:

• using a prohibited substance, i.e. the Duchess Cocktail, and using a prohibited method, i.e. urine substitution;
• tampering with any part of the doping control; and
• cover-up of and complicity in the commission of an ADRV.

The IOC, in its written submissions, provided a detailed description of the doping and cover-up scheme that allegedly operated in Russia from 2011 to 2015.
The IOC contended that the McLaren Reports and the Schmid Report both identified the Disappearing Positive Methodology as the origin of the institutionalised doping and cover-up scheme while Dr. Rodchenkov identified the main aspects to the Disappearing Positive Methodology in his affidavits.

With regard to the Athlete’s implication in this scheme, the IOC asserted that:
- The Athlete’s B sample bottle had multiple T marks, i.e. evidence of tampering.
- The Athlete’s implication in the doping scheme was also demonstrated by the evidence of Dr. Rodchenkov. 

The IOC requested the Panel to confirm the existence of a generalised doping scheme in Russia before and during the Sochi Games, one which enabled the Athlete to participate in a doping-control free environment. Also th IOC requested the Panel, to find a link (even contextual) between the Athlete or one of her urine samples and the generalised doping scheme which is sufficient to allow it to conclude that the Athlete has committed one or more of the alleged ADRVs. 

Having considered the submissions of the Parties, the written evidence as well as the oral evidence and testimonies provided at the hearing the Panel concludes that, in the present case, none of the acts alleged by the IOC has been established to the comfortable satisfaction of the Panel. The Panel further finds that the probative value of circumstantial evidence has its limits and that even when taken together and put into context, in the present case the different strands of factual and forensic evidence submitted by the IOC do not lead the Panel to be comfortably satisfied that the Athlete was personally and knowingly implicated in any of the alleged acts. 

Accordingly, the Panel concludes that the Athlete’s appeal against the decision of the IOC DC rendered on 27 November 2017 shall be upheld and the appealed decision set aside. 

Therefore the Court of Arbitration for Sport decides on 24 September 2018 that: 

1.) The appeal filed by Ms. Olga Vilukhina on 1 December 2017 against the decision of the International Olympic Committee Disciplinary Commission dated 27 November 2017 is upheld.

2.) The decision of the International Olympic Committee Disciplinary Commission dated 27 November 2017 is partially set aside except for points II, III, IV, VI, VII and VIII.

3.) All results achieved by Ms. Olga Vilukhina upon the occasion of the XXII Olympic Winter Games in Sochi, Russia in individual events, are reinstated, with all resulting consequences.

4.) (…).

5.) (…).

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

CAS 2020/A/6892 Andrew Starykowicz v. United States Anti-Doping Agency

Related case:

WTC 2019 WTC vs Andrew Starykowicz
November 25, 2020

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In October 2019 the American triathlon Athlete Andrew Starkowics suffered from an acute respiratory infection with bronchoconstriction. He underwent medical treatment and used several prescribed medication including the prohibited substances Methylprednisolone (Medrol), Glucocorticoids and Vilanterol (Breo).

The Athlete applied for a TUE for the use of Medrol and Breo and on 8 November 2019 the USADA TUE Committee granted the use of Medrol.

Previously on 2 November 2019 that Athlete had participated in a triathlon and was subjected to sample collection. In December 2019 the World Triathlon Corporation reported an anti-doping rule violation against the Athlete after he tested positive for the substance Vilanterol. After notification a provisional suspension was ordered.

At the time of the notification the Athlete had no TUE for Vilanterol due to his applications for Breo had been repeatedly denied by the USADA TUE Committee and finally by the WADA Therapeutic Use Exemption Committee. Both Committees deemed that suitable permitted alternatives were available but were not prescribed by his pulmonologist.

Hereafter in March 2020 the Athlete appealed with the Court of Arbitrarion for Sport (CAS). The Athlete challenged USADA's rejection of his TUE applications for Breo. He requested the Panel to set aside the decision of the USADA TUE Committee and to grant the use of the medication Breo from 25 October 2019.

The Athlete underlined that his case does not concern the commission of an anti-doping rule violation, but concerns the denial of a TUE for the medication Breo prescribed by his pulmonologist for a severe illness.

He asserted that the only question in this case is whether he could have treated his medical condition with another non-performance-enhancing beta-2 agonist that was not prohibited by WADA. The Athlete argued that he is entitled to such TUE since all conditions prescribed by the relevant rules have been satisfied.

USADA requested the Panel to dismiss the Athlete's appeal because the Athlete was unable to establish the decisions of both the USADA TUEC and WADA TUEC to deny his application for a TUE for Breo (Vilanterol) were without basis.

The Sole Arbitrator, having considered the experts' submissions, finds that other medication were not unreasonable alternatives in terms of therapeutic indications and effects, consistent with the anti-doping rules, to the use of Breo. The Sole Arbitrator concludes that the Athlete failed to demonstrate that the existing alternative therapies suggested by USADA were not reasonable.

Therefore the Court of Arbitration for Sport decides on 5 August 2020 that:

1.) The appeal filed by Mr Andrew Starykowicz against the United States AntiDoping Agency with the Court of Arbitration for Sport on 27 March 2020 is dismissed.
2.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne by Mr Andrew Starykowicz.
3.) Mr Andrew Starykowicz and the United States Anti-Doping Agency shall each bear their own legal and other expenses.
4.) All other motions or prayers for relief are dismissed.

CAS 2020/A/7041 Nigina Tukhtaeva & Igor Obraztsov v. Russian Athletics Federation

On 27 June 2019 RUSADA imposed a 2 year period of ineligibility on the Athlete Nigina Tukhtaeva for the use of the prohibited substance Methylhexaneamine (dimethylpentylamine) from 8 February 2019 until 7 February 2021

On 23 July 2019 RUSADA imposed a 12 month period of ineligibility on the Athlete Igor Obraztsov for the use of the substance Ligandrol (LGD-4033) from 29 April 2019 until 28 April 2020.

On 2 April 2020 Russian Athletics Federation (RusAF) approved new Eligibility Criteria fo Russian track-and-field athletes willing to join national teams of participate in sporting events. According to the Eligibility Criteria, athletes sanctioned for anti-doping rule violations after 18 November 2015 were not eligibile for Russian track-and-field national teams and other sporting events.

Hereafter in April 2020 both Athletes appealed the RusAF Eligibility Criteria with the Court of Arbitration for Sport (CAS).
The Athletes requested the Sole Arbitrator to temporary suspension of the Eligibility Critera by RusAF and to cancel and/or amend the Criteria.

The Athletes argued that the Eligibility Criteria cause a double sanction for the same offense, which conflicts with the principle of ne bis in idem. The Criteria contain inconsistencies and RusAF as a suspended member of the IAAF under the Rules it does not have the authority to impose anti-doping sanctions independently.

RusAF did not file an answer or otherwise defend the allegation brought against it by the Athletes.

The Sole Arbitrator establishes that the Athletes have an interest in their appeal. Further the Sole Arbitrator concludes that the Eligibility Criteria would cause a double sanction while the Criteria are not in compliance with the ADR, WADA Code and IAAF Rules.

Consequently the Sole Arbitrator deems that the Eligibility Criteria will cause double sanctions for the Athletes and they are to that extent invalid and unenforceable in the case at hand.

Therefore the Court of Arbitration for Sport decides on 5 August 2020 that:

1.) The appeal filed on 26 April 2020 by Ms. Nigina Tukhtaeva and Mr. Igor Obraztsov against the Russian Athletics Federation with respect to the decision of the Presidium of RUSAF rendered on 2 April 2020 is upheld.

2.) The decision of the Presidium of RUSAF rendered on 2 April 2020 is declared invalid and unenforceable insofar as the eligibility criteria would apply to Ms. Nigina Tukhtaeva and Mr. Igor Obraztsov.

3.) [ ... ]

4.) [ ... ]

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