CAS 2021/ADD/21 International Weightlifting Federation (IWF) v. Nijat Rahimov

• Weightlifting
• Doping (urine substitution)
• Liability of the athletes for the actions of their close entourage
• Burden of proof and duty to substantiate
• Assessment of the evidence in case of limitations of such evidence
• Proof by any reliable means
• Speculative inferences

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1. The World Anti-Doping Code (WADC) and the anti-doping regulations replicating the WADC treat the athletes as being responsible for the actions of their close entourage. The coach of an athlete or the head coach of the national team to which the athlete belongs are not third parties entirely unconnected with the athlete, and in respect of whom the athlete has no knowledge or control; they are part of the close entourage of the athlete.

2. According to the general rules and principles of law, facts pleaded have to be proved by those who plead them, whether it be proof establishing those facts on the one hand, or proof to exclude those facts as being established on the other. In order to fulfil its burden of proof, a party must provide the deciding body with all relevant evidence that it holds, and, with reference thereto, convince the deciding body that the facts it pleads are true, accurate, and produce the consequences which the party alleges. The CAS Code provides for an essentially adversarial system of arbitral justice, rather than an inquisitorial one. Hence, if a party wishes to establish some facts (or alternatively to contradict some facts) and persuade the deciding body, it must actively substantiate its allegations with convincing evidence.

3. A sports body 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 sports body 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 CAS panel’s assessment of the evidence must respect those limitations. In particular, it must not be premised on unrealistic expectations concerning the evidence that the sports body is able to obtain from reluctant or evasive witnesses and other sources. A sports body may properly invite the CAS panel to draw inferences from the established facts that seek to fill in gaps in the direct evidence. The CAS panel may accede to that invitation where it considers that the established facts reasonably support the drawing of the inferences. So long as the CAS panel is comfortably satisfied about the underlying factual basis for an inference that an athlete has committed a particular anti-doping rule violation (ADRV), it may conclude that the sports body has established an ADRV notwithstanding that it is not possible to reach that conclusion by direct evidence alone.

4. Any reliable means includes, but is not limited to witness evidence, documentary evidence, and conclusions drawn from analytical information other than providing the actual presence of a prohibited substance.

5. If not based on direct evidence, inferences used to draw other inferences are speculative and cannot be used to establish an ADRV to the appropriate standard of proof of comfortable satisfaction, bearing in mind the seriousness of the allegation that is made.

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Mr. Nijat Rahimov is a 27-year-old elite weightlifter. He competed for Kazakhstan and previously represented Azerbaijan. In November 2013 the International Weightlifting Federation (IWF) sanctioned the Athlete for 2 years after he tested positive for 2 prohibited substances.

In September 2019 WADA instigated an investigation known as “Operation Arrow” into the existence of urine substitution at the time of sample collection in the sport of Weightlifting.
As part of that investigation, negative samples provided by weightlifting athletes since 1 January 2012 were, where available, subjected to DNA testing to discover whether any of the negative samples supposedly provided by a particular athlete were in fact provided by another person, as indicated by differences in the DNA between the various samples attributed to that athlete.

As a result of the WADA investigations the International Testing Agency (ITA), on behalf of the IWF, reported an anti-doping rule violation against the Athlete for the use of a prohibited method.

After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD).

The IWF contended that there was sufficient evidence that the Athlete was involved in the prohibited method of urine substitution. Both the ADRV of use of a prohibited method and that of use of a prohibited substance flow from whether that evidence is substantiated or not.

The Athlete argued that there had been departures from the testing standards on the occasions of the alleged urine substitution. He also asserted that there was lack of knowledge or constructive knowledge of, or involvement in, any substantiated urine substitution.

The Sole Arbitrator addressed in this case the following issues:

• Urine substitution;
• The Athlete's implication in urine substitution;
• The Athlete's knowledge of the urine substitution;
• The Athlete’s connection with, facilitation of and constructive knowledge of the urine substitution;
• Departure from the Testing Standards; and
• Use of prohibited substances.

Following assessment of these issues the Sole Arbitrator concludes that the Athlete is responsible for 4 urine substitutions which constitute the ADRVs of Use of a Prohibited Method and to be treated as a single ADRV. Conversely the Sole Arbitrator finds that the assertion of an ADRV of Use of a Prohibited Substance has not been established.

Therefore the Court of Arbitration for Sport decides on 22 March 2022 that:

1. The request for arbitration filed by the International Weightlifting Federation on 29 April 2021 against Mr. Nijat Rahimov is upheld.
2. Mr Nijat Rahimov is found to have committed an Anti-Doping Rule Violation of Use of a Prohibited Method pursuant to Article 2.2 of the IWF Anti-Doping Rules.
3. Mr Nijat Rahimov is sanctioned with a period of ineligibility of eight (8) years.
4. The period of ineligibility shall commence from 18 January 2021 which is the date when the provisional suspension imposed on Mr Nijat Rahimov started to run.
5. All competitive results of Mr Nijat Rahimov from and including 15 March 2016 to and including 18 January 2021 are disqualified with all consequences, including forfeiture of any medals, points and prizes.
6. The award is pronounced without costs, except for the ADD Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by the International Weightlifting Federation, which is retained by the ADD.
7. (…).
8. All other motions or prayers for relief are dismissed.

CAS 2021/ADD/14 International Biathlon Union (IBU) v. Ekaterina Glazyrina

• Biathlon
• Doping (metenolone)
• CAS jurisdiction
• CAS ADD jurisdiction pursuant to Article A2 CAS ADD Rules and parties’ due process rights
• Authority and independence of the CAS ADD
• CAS ADD and disciplinary committees of sports governing bodies
• Provisional measures and Provisional Suspension
• Provisional Suspension during investigation
• Request for lifting of Provisional Suspension and athlete conduct
• Standard of proof of comfortable satisfaction
• Proportionality of sanctions

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1. Jurisdiction, by its definition, is the official power to deliver legal decisions and judgements. A valid arbitration agreement is the basis of arbitration procedures and jurisdiction of the arbitral tribunal in general and the legal basis for the jurisdiction and procedure before the CAS. Since the seat of the CAS is in Lausanne, Switzerland, Swiss arbitration law is the lex arbitri for proceedings governed by the CAS and the Swiss Federal Statute on Private International Law (“PILA”) and its Chapter 12 applies. For the arbitration agreement to be valid, pursuant to Article 178 of the PILA, it must be made in writing by telegram, telex, telecopier or any other means of communication which permits it to be evidenced by a text. According to the PILA, the written form of the arbitration agreement is required for the jurisdiction of arbitral tribunals with seat in Switzerland.

2. According to Article A2 of the CAS ADD Rules, the CAS ADD has jurisdiction to rule as a first-instance authority on behalf of any sports entity which has formally delegated its powers to the CAS ADD to conduct anti-doping proceedings and impose applicable sanctions. In order for the CAS ADD to be responsible for first-instance adjudication of alleged anti-doping rule violations, including any sanctions, arising under the respective sports entity’s Anti-Doping Rules, a sports entity is required to sign an agreement with the CAS in accordance with Article A2 CAS ADD Rules. The consequence of the agreement between the CAS and the sports entity is the formal delegation of adjudicatory powers for the determination of Anti-Doping Rule violations (ADRVs) and the resulting sanctions to the CAS ADD in accordance with Article A2 CAS ADD Rules. Arguments related to the due process rights which should be safeguarded in an arbitration procedure governed by the CAS ADD Rules concern the quality of the procedure, but do not affect the jurisdiction of the CAS ADD.

3. Given that the CAS ADD is generally authorized by the delegation of a sports entity, it follows that in order to evaluate the constitution and the composition of the CAS ADD and the rights the parties can exercise, the CAS ADD constitution and its composition should be compared to the former first instance authority.

4. While the disciplinary committees of sports governing bodies, acting as first instance authority, are usually part of the institutional framework of the sports governing body, the CAS ADD, acting on authorization by a sports entity, is not. Therefore, by the delegation of powers to the CAS ADD, the ruling body in doping related matters becomes completely institutionally independent from the parties, in particular the sports governing body. Furthermore, both the number of persons sitting on the first instance disciplinary panels of sport’s governing bodies as well as the number of CAS ADD arbitrators are typically limited, and there is a closed number of persons. Generally, the disciplinary committees of sports governing bodies consist of members who are not appointed by the parties. Similarily, the persons who are able to sit on the respective appointed panels are typically not appointed by the parties. For those reasons, the disciplinary committees of sports governing bodies are usually not considered arbitral tribunals but integral part of the sport’s governing body. Accordingly, when delegating authority to the CAS ADD to rule as the first instance authority, and thereby allowing the parties the possibility to choose arbitrators in the first instance case, the parties’ rights, compared to the former situation, when such right was not granted, is typically broadened. Furthermore, the parties can appoint their arbitrator twice, first from the CAS ADD List from 24 proposed persons and once again, in the event of an appeal against the CAS ADD decision, from more than 400 persons from the CAS arbitrators List.

5. Any request for provisional measures needs to meet three relevant criteria: (i) the party seeking such relief would suffer irreparable harm if the relief was not granted, (ii) that party has a likelihood of success on the merits, and (iii) the interests of that party outweigh those of the other party. All three requirements (irreparable harm, likelihood of success on the merits, and balance of interests) are cumulative and the standard of proof to be met is the balance of probabilities. The mere fact that a professional athlete is prevented from competing in sports events is not enough to justify a stay of a Provisional Suspension imposed on the athlete on the basis of irreparable harm. Likewise, any alleged possible financial losses do not constitute irreparable harm, since such losses may be compensated at any time.

6. A provisional suspension during the investigation and the adjudication procedure is appropriate to protect the interests of the other competitors. This is especially true in cases where the athlete is suspected of having committed further ADRVs against the background of other violations for which he has already served a sanction.

7. The procedural conduct of an athlete, who first contests the provisional suspension imposed on her almost 8 months after already serving the provisional suspension period and in the context of a submission for which the athlete had requested – without addressing the issue of her ongoing provisional suspension – an extension of the deadline by 80 days, does not support the athlete’s argument that the provisional suspension imposed on her is unfair.

8. The standard of comfortable satisfaction is greater than a mere balance of probability but less than proof beyond reasonable doubt, and must take into account all circumstances of the case. Those circumstances include the paramount importance of fighting corruption of any kind in sport and also considering the nature and restricted powers of the investigation authorities of the governing bodies of sport as compared to national formal interrogation authorities. In applying this standard, a CAS panel is expressly required to bear in mind the seriousness of the allegation which is made. Put differently, the comfortable satisfaction standard is a kind of sliding scale, based on the allegations at stake: the more serious the allegation and its consequences, the higher certainty (level of proof) the panel would require to be “comfortably satisfied”.

9. Sanctions in general must comply with the proportionality requirement of being appropriate, necessary and demonstrate a reasonable balance between the objective pursued and the means used to achieve it, but it also has to be kept in mind that harsher sanctions are warranted in case of serious infringements, structural non-compliance with the various obligations and in case of recidivism. Furthermore, disciplinary measures serve different functions: the punitive function serves to punish the offender; the preventive function prevents re-offending and restorative function helps to undo the harm inflicted by the offence.

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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.

As a result in September 2020 the International Biathlon Union  (IBU) reported an anti-doping rule violation against the Athlete Ekaterina Glazyrina for the use of the prohibited substances Enobosarm (ostarine), Metenolone and Oxandrolone in March and September 2013.

Previously on 24 April 2018 the IBU Anti-Doping Hearing Panel had already imposed a sanction of 2 years on the Athlete based on the findings of the McLaren Reports for "use" of a prohibited substance.

In January 2021 the Athlete's case was referred to the CAS Anti-Doping Division (CAS ADD) for a Sole Arbitrator first instance procedure.

The IBU contended that it had already been established that the Athlete was a protected Athlete, i.e. an athlete who benefitted from the Disappearing Positive Methodology, which means that her samples were among those whose entries in the LIMS had been deleted.

The IBU asserted that the LIMS 2015 Data revealed that the Athlete's samples, collected in March 2013 and in September 2013, showed the presence of Enobosarm (ostarine), Metenolone and Oxandrolone.

The Athlete denied that she had committed an anti-doping rule violation and argued that CAS ADD lacks jurisdiction, impartiality and independence. Further she disputed the reliability of the filed evidence in this case provided by WADA, Professor McLaren and Dr Rodchenkov.

The Sole Arbitrator assessed and addressed the evidence provided by the Parties and determines that:

• CAS ADD has jurisdiction to hear and adjudicate the present matter.
• The Athlete's request for lifting the provisional suspension is dismissed.
• The evidence submitted to the file is reliable and the use of Metenolone has been proven.
• The Athlete has committed the anti-doping rule violation for use of a prohibited substance.
• Both violations shall be considered as one single violation.
• There are aggravating circumstances and proportionality requirements regarding the additional sanction.
• The Athlete had already served a sanction of 2 years and a supplemental sanction of 1 year shall be imposed.

Therefore the Court of Arbitration for Sport decides on 21 March 2022 that:

1.) The Request for Arbitration filed by the Biathlon Integrity Union (BIU) on behalf of the International Biathlon Union (IBU) on 12 January 2021 against Ms. Ekaterina Glazyrina is partially upheld.

2.) Mrs. Ekaterina Glazyrina committed an Anti-Doping Rule Violation in accordance with Article 2.2 of the IBU ADR 2012.

3.) Ms. Ekaterina Glazyrina is sanctioned with a period of ineligibility of one (1) year.

4.) The period of ineligibility shall commence on 23 September 2020, which is the starting date of the provisional suspension imposed on Ms Ekaterina Glazyrina.

5.) All competitive results obtained by Ms. Ekaterina Glazyrina’s between 19 September 2013 and 18 December 2013 shall be disqualified, with all of the consequences including forfeiture of any medals, points and prizes.

6.) (…).

7.) (…).

8.) All other and further prayers or requests for relief are dismissed.

CAS 2021/A/7768 Bauyrzhan Islamkhan v. Asian Football Confederation (AFC) & Al Ain FC

• Football
• Doping (methylhexanamine)
• Balance of probability standard
• Lack of cooperation of club and laboratory standards during the COVID-outbreak
• Wide variety of potentially contaminated products and medical team
• Disciplinary proceedings against other teammates
• Evidentiary value and relevance of polygraph tests

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1. The balance of probability standard requires the indicted player to prove that his hypothesis is more probable than other explanations, and/or at least 51% likely to have occurred. He must establish that the alleged chain of events is more likely than not to have happened, by submitting actual and/or scientific evidence, not just possible scenarios and mere speculation.

2. The player who faces difficulties in proving “negative facts” can legitimately expect that his former club, which he accuses of supplying him with contaminated products, will cooperate in the investigation and, failing that, can theoretically prevail himself of its adverse attitude during the assessment of the evidence. However, he cannot go so far as to invoke a reallocation of the burden of proof, which would place him in an overly favourable position, nor can he summon the club as a defending party subject to sanctions, in the absence of a legal or regulatory basis in this sense. Moreover, he cannot hide behind the so-called tardiness of the dealing of his sample by the laboratory in charge of the test, when the delay is justified by the sanitary situation related to the COVID-19 outbreak and in line with the special standards adopted for this purpose.

3. The player who merely suspects the many supplements that he consumed through his former’s club medical team, without pointing out a specific product or clarifying the grey areas surrounding various products provided by other stakeholders, fails to demonstrate the source of his antidoping rule violation on the balance of probabilities or at all. He cannot either shift his responsibility to his team doctor or nutritionist, after ingesting all sorts of nutriments without checking their content and labelling, in violation of his obligation to ensure that no prohibited substances enter his body.

4. Allegations according to which former teammates are subject to disciplinary proceedings or have even been sanctioned for doping carry little weight, if they are not supported by clear documentation or the testimony of those players. The lack of
evidence in this respect, as well as the absence of any other witnesses called to the hearing, make any in-depth discussion thereto unnecessary.

5. Polygraph tests are usually considered by courts as inadmissible or mere statements. They may have very limited probative value in specific instances, in particular when supported by other strong evidence or filmed. Their relevance is further limited when they reveal a score which is considered uncertain in relation to crucial questions and/or are based on a series of incomplete questions.

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On 23 December 2020 the Disciplinary and Ethics Committee of the Asian Football Confederation (AFC) decided to impose a 2 year period of ineligibility on the Kazakh football player Bauyrzhan Islamkhan after he tested positive for the prohibited substance Methylhexaneamine (1,3-dimethylamylamine, 1,3 DMAA).

In this matter the AFC accepted that the violation was not intentional although the Athlete could not demonstrate how the prohibited substance had entered his system.

Hereafter in March 2021 the Athlete appealed the AFC decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to eliminate or reduce the imposed sanction.

The Athlete admitted the violation and asserted that there are three possible sources for his violation: the products provided by his national team; his own supplements; and the products provided by his Al Ain FC. In support he even produced a polygraph test to prove his innocence.

The Athlete requested the Panel to hold Al Ain FC liable for his violation and to sanction it because he considered contamination of the Club’s products the most probable scenario. He believed that he could not reasonably have known or suspected, even with the utmost caution, that any of the Club's products could contain a prohibited substance.

The Athlete stated the Club did not cooperate by providing the product samples for months, finally anonymously conducted its own testing, and never confirmed or proved that the samples tested were the right ones; therefore, the Athlete could not adduce the usually expected direct evidence.

The Club Al Ain FC requested the Panel to reject that Athlete's appeal and denied CAS has jurisdiction. The Club asserted that it has no standing to be sued in this matter, nor that it is liable for the Athlete's violation.

The Club argued that the Athlete failed to demonstrate how he prohibited substance had entered his system. Further the Club holds that the testing of the Club's products in the Doha Laboratory was valid while these products did not contain the prohibited substance.

Preliminairy the Panel settled some issues and determines that the Club itself has no standing to be sued. Also the Panel dismissed the admissibility and evidentiary value of the polygraph test provided by the Athlete.

In this case the Panel assessed and addressed the following issues:

• What is the applicable standard of proof?
• Has the Player established how the substance entered his system?
• If so, what is the degree of negligence and fault attributable to the Player?
• What are the consequences thereof?

The Panel determines that:

• there is no reason to depart from the usual burden and standard of proof;
• the Athlete has failed to demonstrate the source of the prohibited substance;
• there are no grounds to claim a reduction of the period of inelgibility;
• the Athlete's reliance on his team doctors is generally not sufficient to claim a reduction of the sanction.

Therefore on 16 March 2022 the Court of Arbitration for Sport decides that:

1.) The CAS has jurisdiction to hear the appeal filed by Mr Bauyrzhan Islamkhan against the decision of the AFC Disciplinary and Ethics Committee of 23 December 2020.

2.) The appeal filed by Mr Bauyrzhan Islamkhan against the decision of the AFC Disciplinary and Ethics Committee of 23 December 2020 is dismissed.

3.) The decision of the AFC Disciplinary and Ethics Committee of 23 December 2020 is confirmed.

4.) (…).

5.) (…).

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

CAS 2021/ADD/31 International Weightlifting Federation (IWF) v. Ahmed Al-Hussein, Salwan Jasim Alaifuri & Safaa Rashid Al-Jumaili

• Weightlifting
• Doping (higenamine)
• Consolidation
• Establishment of the presence of a prohibited substance
• Relevance of the level of the substance detected
• Presumptive period of ineligibility for the non-intentional presence of a specified substance
• Athlete’s duty of care
• No fault
• No significant fault or negligence, assessment of the athletes’ individual fault under the rules

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1. On the basis of Article 14.6 of the CAS ADD Rules, it is appropriate, both legally and practically, to consolidate the procedures if (i) the parties are in agreement upon the consolidation of the procedures on one side and in silence on the other; and (ii) having regard to the case put forward by the athletes, the circumstances of each Adverse Analytical Finding (AAF) involve significant common issues of fact and law.

2. The evidence i.e. the positive tests, establishes to the required standard of comfortable satisfaction that the athletes committed a violation of Article 2.1 of the IWF Anti-Doping Rules (ADR) because the substance detected in the samples provided by the athletes is higenamine which was at the time when the samples were taken a prohibited substance under S3 Beta-Agonist of the Prohibited List 2020 and the testing procedures and results reported have not been challenged by the athletes.

3. There is no level of the substance detected in the athlete’s sample beneath which an AAF cannot be reported. Any detected level amounts to a violation.

4. Where it is accepted that the conduct of the athletes was not intentional as provided by Article 10.2.3 IWF ADR, the presumptive period of ineligibility for a violation of Article 2.1 IWF ADR involving a specified substance such as higenamine as a first violation is two years under Article 10.2.2. The potential application of any defence to eliminate or reduce this period of ineligibility involves considering the fault of the athlete in the circumstances of the violation.

5. The IWF ADR, like all anti-doping rules which implement the World Anti-Doping Code, impose a personal duty of care on athletes to avoid committing violations by ingesting prohibited substances. Athletes who compete at international level are generally expected to show a high degree of care in complying with their anti-doping obligations; they are expected to be aware of the rules and the care which must be taken to avoid committing doping violations. The degree of fault of an athlete in relation to a breach of the rules has to be considered in the context of this expected standard of care.

6. The defence of no-fault provides for the elimination of the period of ineligibility in exceptional circumstances. This defence can only apply where an athlete can establish that he could not have known or suspected even with the exercise of utmost caution that he had used a prohibited substance or violated an anti-doping rule.

7. To reduce the period of ineligibility from two years for a violation under Article 2.1, an athlete has first to establish that his fault or negligence in connection with the violation is not “significant”. Determining fault involves considering the degree of risk that should have been perceived by the athlete in the particular circumstances in which the violation was committed and the level of care that should have been exercised in relation to the perceived level of risk. The personal characteristics of the athlete and any disability are relevant to the consideration of fault because they may explain why the athlete has not met the expected standard of behaviour in the circumstances. Such characteristics may lessen the degree of fault present in a breach of the rules. What matters is the conduct of the athlete and what he did to avoid taking the supplement with the prohibited substance in it. Despite the awareness of the anti-doping regime and their general obligations under it, the lack of education and access to information about supplements should be taken into account.

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In April 2020 the International Testing Agency, on behalf of the International Weightlifting Federation (IWF), reported anti-doping rule violations against the Iraqi weightlifters Ahmed Al-Hussein, Salwan Jasim Alaifuri & Safaa Rashid Al-Jumaili.

ITA reported that the presence of the prohibited substance Higenamine had been established in the A and B samples of these Athletes provided on 3 and 4 February 2020 and on 28 February 2020.

Following notification a provisional suspension was ordered and the Athletes filed statements in their defence. The Athletes did not accept the proposed sanctions and their consolidated cases were referred to the CAS Anti-Doping Division (CAS ADD) for a Sole Arbitrator first instance procedure.

The Athletes denied the intentional use of the substance and requested for a reduced sanction. They explained that they had used a new recommended supplement drink Impact Igniter while they were unaware that it contained Higenamine because they don't know English.

In view of the evidence the ITA accepted that the violations were not intentional and that the supplement drink was the source of the prohibited substance. The ITA requested to impose the following sanctions on the Athletes:

• 20 months on the Athlete Ahmed Al-Hussein for his first anti-doping rule violation;
• 40 months on the Athletes Safaa Rashid Al-Jumaili for his second anti-doping rule violation;
• 40 months on the Athlete Salwan Jasim Alaifuri for his second anti-doping rule violation.

The Sole Arbitrator finds that the presence of a prohibited substance has been established in the Athlete's samples and accordingly that they committed the anti-doping rule violations.

The Sole Arbitrator assessed the circumstances and the Athletes' conduct in these cases and rules that their violations were not intentional.

Furthermore the Sole Arbitrator considers that:

• the Athletes did not read or write English, nor Arbabic in one case;
• they lack a developed understanding about the significant risk with supplements sold over the counter at stores;
• they lack the kind of education and access to information about supplements available in some jurisdictions;
• the proposed sanctions are appropriate and properly reflect the Athletes' failures in this matter.
• there had been substantial delays in the proceedings not attributed to the Athletes.

Therefore the Court of Arbitration for Sport decides on 15 March 2022 that:

1.) The request for arbitration filed by the International Weightlifting Federation on 19 August 2021 against Mr. Ahmed Al-Hussein, Mr. Salwan Jasim Abbood Alaifuri and Mr. Safaa Rashid Al-Jumaili is upheld.

2.) Mr. Ahmed Al-Hussein, Mr. Salwan Jasim Abbood Alaifuri and Mr. Safaa Rashid Al-Jumaili are each found to have committed an Anti-Doping Rule Violation of Article 2.1 of the IWF Anti-Doping Policy.

3.) Mr. Ahmed Al-Hussein is sanctioned with a period of ineligibility of twenty (20) months. The period of ineligibility shall start from 28 February 2020 which is the date of collection of Mr. Ahmed Al-Hussein’s sample.

4.) Mr. Salwan Jasim Abbood Alaifuri is sanctioned with a period of ineligibility of forty (40) months. The period of ineligibility shall start from 4 February 2020 which is the date of collection of Mr. Salwan Jasim Abbood Alaifuri’s sample.

5.) Mr. Safaa Rashid Al-Jumaili is sanctioned with a period of ineligibility of forty (40) months. The period of ineligibility shall start from 3 February 2020 which is the date of collection of Mr. Safaa Rashid Al-Jumaili’s sample.

6.) All competitive results obtained by Mr. Ahmed Al-Hussein at the Western Asia Championship in Dubai, United Arab Emirates, with all resulting consequences (including forfeiture of any medals, points, and prizes) are disqualified.

7.) All competitive results obtained by Mr. Salwan Jasim Abbood Alaifuri and Mr. Safaa Rashid Al-Jumaili at the 5th International Fajr Cup in Rasht, Iran, with all resulting consequences (including forfeiture of any medals, points, and prizes) are disqualified.

8.) All competitive results obtained by Mr. Ahmed Al-Hussein, Mr. Salwan Jasim Abbood Alaifuri and Mr. Safaa Rashid Al-Jumaili from the date of sample collection until the date of their provisional suspension are disqualified with all resulting consequences (including forfeiture of any medals, points and prizes).

9.) (…).

10. (…).

11. All other motions or prayers for relief are dismissed.

CAS 2021/ADD/33 International Olympic Committee (IOC) v. Chijindu Ujah

Related case:

World Athletics 2021 WA vs Chijindu Ujah
September 29, 2022

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• Athletics (sprint)
• Doping (ostarine; SARMS S-23)
• Burden, standard and means of proof
• Consequences of the disqualification of an athlete’s results on the results of the relay team

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1. It is sufficient proof of an anti-doping rule violation (ADRV) under Article 2.1 of the IOC Anti-Doping Rules applicable to the Tokyo Olympics (ADR) inter alia if the presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample is confirmed by the presence in the Athlete’s B Sample of the same Prohibited Substance or its Metabolites or Markers. Article 3.1 of the ADR provides that the burden is upon the IOC to establish to the comfortable satisfaction of the Sole Arbitrator that an ADRV has occurred. Facts relating to an ADRV may be established by any reliable means in accordance with Article 3.2 ADR including by admissions.

2. The relay team falls outside of the definition of a “Team Sport” as defined in the ADR. However, where awards are given to teams in a sport which is not a Team Sport, Article 11.3 ADR provides that, in addition to any consequences imposed on the individual athlete(s) found to have committed the ADRV, the rules of the relevant International Federation determine the consequences of such ADRV on the team. According to Article 11.1 of the World Athletics Anti-Doping Rules 2021, the relay team is automatically disqualified from the Tokyo Olympics with all resulting consequences including forfeiture of any titles, awards, medals, points and prize money.

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In August 2021 the International Testing Agency (ITA), on behalf of the International Olympic Committee (IOC), has reported an anti-doping rule violation against the British Athlete Chijindu Ujah after his A and B samples tested positive for the prohibited substance Enobosarm (Ostarine).

After notification a provisional suspension was ordered by the IOC and by the Athletics Integrity Unit. The Athlete filed a statement in his defence and the case was settled by Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD) based on the Parties' written submissions.

The IOC contended that the presence of a prohibited substance has been established in the Athlete's samples and accordinghly that he committed an anti-doping rule violation. Consequently the IOC requested for the disqualification of the Athlete's results and its team members obtained at the 2021 Tokyo Olympic Games.

The Athlete accepted the test results and denied the intentional use of the substance. Following investigations he explained that a contaminated supplement was the source of the positive test results. Analysis of this supplement in question in a accredited laboratory revealed the presence of the prohibited substance, whereas it was not listed as ingredient on the product label.

The Sole Arbitrator concludes that the IOC has demonstrated to her comfortable satisfaction that the Athlete had committed an anti-doping rule violation. Consequently the Athlete's results and the results of his team mates are automatically disqualified.

Therefore the Court of Arbitration for Sport decides on 18 February 2022 that:

1. The request for arbitration filed on 8 September 2021 by the International Olympic Committee is upheld.
2. Mr Chijindu Ujah is found to have committed an Anti-Doping Rule Violation pursuant to Article 2.1 of the IOC Anti-Doping Rules applicable to the Games of the XXXII Olympiad Tokyo 2020.
3. Mr Chijindu Ujah is sanctioned with the disqualification of his results in the 4 x 100m sprint relay Final on 6 August 2021, and his results in the 100m sprint – together with the forfeiture of any medals, diplomas, points and prizes in accordance with Article 10.1 of the IOC Anti-Doping Rules for the Tokyo Olympic Games 2020.
4. The Great Britain men’s sprint relay team results in the 4 x 100m sprint relay Final on 6 August 2021 are disqualified together with the forfeiture of any medals, diplomas, points and prizes in accordance with Article 11.3 of the IOC Anti-Doping Rules for the Tokyo Olympic Games 2020.
5. World Athletics is requested to consider any further action within its own jurisdiction and pursuant to its own Rules including determining any period of ineligibility.
6. The award is pronounced without costs, except for the ADD Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by the International Olympic Committee, which is retained by the ADD.
7. (…).
8. All other motions or prayers for relief are dismissed.

CAS OG 22/08 - CAS OG 22/09 - CAS OG 22/10 International Olympic Committee (IOC), World Anti-Doping Agency (WADA) & International Skating Union (ISU) v. Russian Anti-Doping Agency (RUSADA), Kamila Valieva, Russian Olympic Committee (ROC)

• Skating (figure skating)
• Lifting of a provisional suspension imposed on an athlete for doping
• Jurisdiction ratione materiae of the CAS ad hoc Division
• Jurisdiction ratione temporis of the CAS ad hoc Division
• Protected Person
• Mandatory provisional suspension for Protected Persons
• Filling of a lacuna in the World Anti-Doping Code
• Treatment of provisional suspensions for Protected Persons as optional provisional suspensions
• Irreparable harm
• Delay in the process of samples

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1. The CAS ad hoc Division has jurisdiction over disputes envisaged under Article 61(2) of the Olympic Charter, i.e. dispute “arising on the occasion or in connection with the Olympic Games” which means that attention should be paid to the dispute and what the dispute is about. Therefore, even if an alleged anti-doping violation has not been committed on the occasion or in connection with the Olympic Games and the provisional suspension imposed as a result of the alleged anti-doping violation does not specifically target the Olympic Games, the dispute might nevertheless be directly connected with the Olympic Games if the dispute is about whether or not the decision to lift such provisional suspension should be confirmed and the outcome of the dispute is relevant for the athlete’s further participation in the Olympic Games.

2. If the decision which gave rise to the dispute was rendered during the period considered to be relevant under Article 1 of the CAS Ad Hoc Rules, the CAS ad hoc Division has jurisdiction ratione temporis over the dispute. In this respect, it is irrelevant whether the initial facts at the basis of the dispute may have arisen at a previous stage.

3. The World Anti-Doping Code (WADC) 2021 intends to treat Protected Persons differently than other Athletes or Persons in certain circumstances based on the understanding that, below a certain age or intellectual capacity, an Athlete or other Person may not possess the mental capacity to understand and appreciate the prohibitions against conduct contained in the Code.

4. The WADC does not provide an exemption to a mandatory Provisional Suspension for a non-specified substance used by a Protected Person even though the ultimate sanction range for the Protected Person is the same as for other categories of athletes who can avoid a mandatory Provisional Suspension. Put differently, a Protected Person is subject to the same ultimate sanction as other athletes who avoid a mandatory Provisional Suspension. But only Protected Persons can potentially receive a public reprimand and no period of ineligibility and yet be subject to a mandatory Provisional Suspension preventing them from competing for months while their case is being handled. This different and harsher treatment for Protected Persons is inconsistent with the oft-expressed intent of the Code drafters to make the Code apply more leniently and flexibly to Protected Persons in light of their age and inexperience, and their diminished responsibility for rule violations. Exempting older athletes from mandatory Provisional Suspensions in most instances in which they might ultimately be able to establish basis for a short sanction or reprimand but not exempting younger, legally incapable, and immature Protected Persons who might be entitled to a short sanction or reprimand appears clearly to be an unintended gap in the Code.

5. When CAS panels find a lacuna, or a gap, in the WADC, this has been the basis for a CAS panel to find a gap filling construct that would ameliorate an overly harsh or inconsistent outcome applying the overarching principle of justice and proportionality on which all systems of law, and the WADC itself, is based. This is an exercise in interpretation, not in rewriting rules or making policies that are better made by sporting bodies exercising proper governance.

6. In cases involving Protected Persons, Provisional Suspensions should be evaluated as optional Provisional Suspensions under the WADC 2021 and its progeny.

7. While it is not in itself sufficient that an athlete is prevented from competing in sports events to justify a stay in itself, given the finite and brief career of most athletes, a suspension (subsequently found to be unjustified) can cause irreparable harm, especially when it bars the athlete from participating in a major sports event.

8. While athletes are held to a high standard in meeting their anti-doping obligations, at the same time, the anti-doping authorities are subject to mere recommendations on time deadlines that are designed to protect athletes from late- or inconveniently-arising claims. The flexibility of the recommendations and guidelines applicable to WADA-accredited labs contrasts with the stringency of the rules on Provisional Suspensions. Although all athletes’ samples are anonymous, it should be possible for anti-doping laboratories and authorities to handle anti-doping tests in a swift manner when the samples are collected at significant pre-events that may constitute selection events for the Olympic Games.

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In February 2022 the Russian Anti-Doping Agency (RUSADA) has reported an anti-doping rule violation against the Russian figure skater Kamila Valieva (15) after her sample, collected on 25 December 2021, tested positive for the prohibited substance Trimetazidine.

After notification a provisional suspension was ordered on 8 Februay 2022 and consequently the Athlete was prohibited from participation in the 2022 Beijing Olympic Games.

Yet the RUSADA Disciplinary Anti-Doping Committee (DADC) decided on 9 February 2022 to lift the Athlete's provisional suspension as it established that under the Russian ADR and the WADC 2021 the minor Athlete is a Protected Person.

The DADC accepted the explanation and evidence that the prohibited substance entered the Athlete's system through the use of a contaminated product, i.e. the medication used by her grandfather.

Hereafter on 11 and 12 February the IOC, WADA and ISU appealed the DADC Decision of 9 February with the CAS Ad Hoc Division at the Beijing Olympic Games. IOC, WADA and ISU requested the Ad Hoc Panel to set aside the Appealed Decision and to re-instate the Provisional Suspension imposed by RUSADA on 8 February 2022.

The Athlete in her defence argued that:

• The source of the inadvertent contamination has been established by the DADC after careful analysis, in connection with her interacton with her grandfather, who regularly takes the medicine Trimetazidine.
• The DADC correctly had acknowledged that the Athlete is a Protected Person due to her age;
• The DADC accepted that the Athlete would not have any competitive advantages by consuming the Trimetazidine based on the medical experts' testimonies.
• Under the Rules the conditions are met in order to lift the Provisional Suspension.

RUSADA contended that the analysis in the Stockholm Lab was delayed due to pandemic-related staff shortages and is confident that the Athlete will be able to complete her submission with respect of evidenc in the proceedings before CAS whereas she has a lesser burden of proof as a Protected Person.

The ROC asserted that in the present case concrete evidence showing the source of the contamination is not required (as the Athlete is a Protected Person) and are not available (due to the undue delay in the reporting of the adverse analytical finding by the Anti-Doping Laboratory). As a result the Panel must rely on circumstantial evidence and decide to confirm the Appealed Decision if the scenario submitted by the Athlete with regard to contamination with the Prohibited Substance is more likely that the different scenario of a voluntary ingestion.

The CAS Ad Hoc Panel holds that it is uncontested that the Athlete is clearly a Protected Person under the Russian ADR and that the WADC 2021 intends to give special treatment to the Protected Persons like the Athlete.

The Panel finds that in cases involving Protected Persons, their Provisional Suspensions should be evaluated as optional Provisional Suspensions under WADC 2021 Article 7.4.2 and its progeny.

The Panel determines that the Athlete was entitled to benefit from being subject to an optional Provisional Suspension as a Protected Person and that, under the facts and circumstances, the option not to impose a Provisional Suspension should have been exercised so that she would not be prevented to compete in the Games.

Further the Panel considers in this case:

• the length of time it took for the laboratory to submit its report of an AAF involving the Athlete;
• the timing of that relative to the conduct of the Women’s Single Skating event at the Games;
• the difficulty to be faced in the Athlete not being able in
  the current situation, right in the middle of the Games, to muster proof to support her defence of the ADRV being asserted against her;
• the relatively low level of the prohibited substance found
  in her sample;
• the fact that she has tested negative in multiple tests before;
• after the test in question the case she has attempted to muster on contamination whether in a product or through domestic contamination, and the likely low level of sanction
  she will face if found to have committed an ADRV.

The Panel deems that athletes should not be subject to the risk of serious harm occasioned by anti-doping authorities’ failure to function effectively at a high level of performance and in a manner designed to protect the integrity of the operation of the Games. Accordingly the Panel finds that the Provisional Suspension should remain lifted.

Therefore the CAS Ad Hoc Division decides on 17 February 2022:

1. The Ad Hoc Division of the Court of Arbitration for Sport has jurisdiction to determine the Applications filed by the International Olympic Committee (IOC), World Anti-Doping Agency (WADA) and International Skating Union (ISU).
2. The Applications filed by the International Olympic Committee (IOC), World Anti-Doping Agency (WADA) and International Skating Union (ISU) are dismissed.

CAS 2022/ADD/43 (OG) International Olympic Committee (IOC) & Fédération Internationale de Ski (FIS) v. Hossein Saveh Shemshaki, partial award

Related case:

CAS 2022_ADD_43 FIS vs Hossein Saveh Shemshaki - Final Award
January 5, 2023

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• Skiing (alpine skiing)
• Doping (dehydrochlormethyltestosterone)
• Proof of the anti-doping rule violation

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Sufficient proof of an anti-doping rule violation under Article 2.1.2 of the IOC Anti-doping Regulations is notably established by the presence of a Prohibited Substance or its metabolites in an athlete’s A-Sample when the athlete’s B-Sample analysis confirms the presence of the Prohibited Substance found in the A-Sample.

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On 9 February 2022 the International Testing Agency (ITA), on behalf of the International Olympic Committee (IOC), reported an anti-doping rule violation against the Iranian Athlete Hossein Saveh Shemshaki after his A and B samples tested positive for the prohibited substance Dehydrochlormethyltestosterone.

Following notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the CAS Anti-Doping Division Olympic Games Beijing 2022 (CAS ADD).

The Athlete accepted the test results and denied the intentional use of the substance. He requested to dismiss the case and to declare him eligible to participate into Beijing 2022 Olympic Games.

The Sole Arbitrator finds that the presence of a prohibited substance had been established in the Athlete's samples and accordingly that he committed an anti-doping rule violation.

Therefore on 15 February 2022 the Sole Arbitrator issues the following decision:

1.) Mr Hossein Saveh Shemshaki is found to have committed an anti-doping rule violation pursuant to Article 2.1 of the IOC Anti-Doping Rules applicable to the Games of the XXIV Olympiad Beijing 2022.

2.) Mr Hossein Saveh Shemshaki is declared ineligible to compete in all competitions in which he has not yet participated at the Olympic Games Beijing 2022.

3.) Mr Hossein Saveh Shemshaki is excluded from the Olympic Games Beijing 2022 and his accreditation for the Olympic Games Beijing is withdrawn.

4.) Mr Hossein Saveh Shemshaki is ordered to leave the Olympic Village within the next 24 hours from the notification of the present Partial Arbitral Award.

5.) With the issuance of this Partial Arbitral Award, the IOC’s participation in this proceeding is hereby terminated.

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

CAS 2020/A/7510 Daniel Kinyua Wanjiru v. World Athletics

Related case:

World Athletics 2020 WA vs Daniel Kinyua Wanjiru
October 8, 2020

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In April 2020 the Athletics Integrity Unit (AIU) of the IAAF (now: World Athletics) reported an anti-doping rule violation against the Kenyan Athlete Daniel Kinyua Wanjiru after an AIU Expert Panel concluded unanimously in September 2019 in their Joint Expert Opinion 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. 

After notification the Athlete submitted several explanations and objections to the AIU about the circumstances surrounding the collected samples. However after consideration the Expert Panel rejected the Athlete’s explanations and objections in their 2nd (March 2020), 3rd (June 2020) and 4th (August 2020) joint report. A provisional suspension was ordered and the Athlete was heard for the World Athletics Disciplinary Tribunal. 

Based on the formidable scientific evidence the Disciplinary Tribunal Panel was comfortably satisfied that the AIU has discharged its burden that blood manipulation is the irresistible explanation for the abnormal HB and OFF-score values in sample 14 in the Athlete’s ABP. The Panel deemed that the AIU and the Expert Panel established that the presented doping scenario caused the abnormalities in the Athlete’s ABP and that the Athlete committed an anti-doping rule violation.

Consequently the Disciplinary Tribunal decided on 8 October 2020 to impose a 4 year period of ineligibility on the Athlete starting on the date of the provisional suspension.

Hereafter in November 2020 the Athlete appealed the Decision with the Court of Arbitration for Sport (CAS).

World Athletics relied on the Joint Expert Reports submitted by the Expert Panel and the subsequent opinions they have provided in addition to their testimony during the hearing; it contended that there is no pathological or physiological explanation for the HGB value in Sample 14.

The principal abnormality in the Athlete’s passport – the extraordinarily high HGB value of 19.4 g/dL in Sample 14 – is a concentration so high that it would according to Prof. d’Onofrio represent a serious danger to the Athlete’s health, including the risk of thrombosis.

The Athlete’s case had evolved considerably as time has passed and he has consulted different experts who have considered the likelihood of there being innocent explanations for the adverse passport finding.

The Athlete submited that this case is about one single suspect HGB value in sample 14 and that one suspect ABP value is in itself insufficient to prove an anti-doping rule violation.

The Athlete argued that World Athletics must put the value in sample 14 in some context and present a credible doping scenario; and the case against him must be dismissed if World Athletics fails to do so even if the Panel was to find the Athlete’s explanation of inadequate mixing unlikely.

the Panel finds that the ABP is a reliable means that may assist in establishing an anti-doping rule violation, and although not definitive, it is highly convincing when supported by Joint Expert Reports such as those presented in this case.

The Panel finds that WA and the experts have provided plausible scenarios, consistent with scientific literature, which support the finding that the Athlete did transfuse himself, most likely on 7 or 8 March 2019.

In sum, considering (i) the values detected in Sample 14 of the Athlete’s ABP were highly abnormal and indicated a high probability of doping; (ii) the absence of any indication of improper handling of the Sample or failures to follow the laboratory protocol and (iii) the absence of contradictory evidence (i.e. that the Athlete has not provided any objective, physiological or pathological reason or condition to explain the abnormality in the ABP values); the Panel is comfortably satisfied that the abnormal ABP values were caused by a transfusion.

Therefore the Court of Arbitration for Sport decides on 1 February 2022 that:

1. The appeal filed by Mr Daniel Kinyua Wanjiru on 9 November 2020 against the decision rendered by the World Athletics Disciplinary Tribunal on 8 October 2020 is dismissed.
2. This Award is made without costs, except for the Court Office fee of CHF 1,000 paid by Mr Daniel Kinyua Wanjiru, which is retained by CAS.
3. Mr Daniel Kinyua Wanjiru is ordered to pay World Athletics a contribution of CHF 2,000 (two thousand Swiss Francs) towards its legal fees and other expenses incurred in connection with these proceedings.
4. All other and further applications for relief are dismissed.