Related case:

UCI-ADT 2020 UCI Raúl Alarcón García
March 8, 2021

On 8 March 2021 the UCI Anti-Doping Tribunal decided to impose a fine and a 4 year period of ineligibility on the Spanish cyclist Raúl Alarcón García due to the abnormal values in his Athlete’s Biological Passport (ABP).

In First Instance the Sole Arbitrator concluded that the Athlete failed to establish a departure from the ISL, the ISTI or any other applicable Rule. Furthermore there was no departure that could reasonably have caused the Adverse Analytical Finding, nor did the Athlete set forth any other potential legal basis on which his arguments may rely.

Hereafter in April 2021 the Athlete appealed the UCI-ADT Decision with the Court of Arbitration for Sport (CAS) and requested the Panel to annul the Appealed Decision.

The Athlete denied the violation and raised a number of issues regarding:

• the lack of independence of the UCI-ADT;
• the burden and standards of proof;
• the refusal to translate the ABP documentation package;
• the departures of the ISL;
• the departures of the ISTI;
• the reliability of the ABP data.

The UCI contended that the Athlete's ABP profile displays clear abnormalities and that none of the Athlete's explanations or attempts to establish that there are no such abnormalities are convincing.

In this case the Panel considered all the facts, allegations, legal arguments and evidence submitted by the Parties:

• It first recalls the specific context and debates over the finding of an ADRV based on abnormalities identified in an ABP and the applicable burden of proof.
• It then sets out the burden and standard of proof applicable in determining whether departures from certain applicable standards in sample collection, preservation and analyses are performed.
• The Panel goes through said alleged departures to determine whether they have been characterized, and, if so, whether they had an impact over the finding of an ADRV;
• before determining the justifications of the abnormalities debated between the Parties; and
• determining the corresponding sanction.

The Panel concludes that the Athlete failed to provide credible explanations for the abnormalities in his ABP, but that such failure cannot automatically induce that an ADRV has been committed.

Ultimately the Panel is comfortably satisfied that the cause for the abnormalities is most certainly the use of a Prohibited Method, i.e. blood transfer. The Panel considers that the Athlete's profile shows a high possibility of blood manipulations. The timing of which reinforces this conclusion, as these abnormalities coincided with the Volta a Portugal 2015, 2017 and 2018.

Therefore the Court of Arbitration for Sport decides on 28 January 2022 that:

1. The appeal filed by Mr. Raúl Alarcón García on 6 April 2021 against the decision rendered by the UCI Anti-Doping Tribunal dated 8 March 2021 is rejected.
2. The decision rendered by the UCI Anti-Doping Tribunal dated 8 March 2021 is confirmed.
3. The award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Mr. Raúl Alarcón García, which is retained by the Court of Arbitration for Sport.
4. Mr. Raúl Alarcón García is ordered to pay CHF 2,500 (two thousand and five hundred Swiss Francs) as a contribution towards the legal fees and other expense incurred by the UCI in connection with this procedure.
5. All other or further requests or motions for relief are dismissed.

CAS 2021/ADD/23 World Triathlon v. Elena Danilova

• Triathlon
• Doping (trimetazidine)
• Definition of Use under World Triathlon rules
• Standard of proof to characterize an ADRV for Use
• “Reliable means” of evidence
• Beginning and duration of the period of ineligibility and fairness exception

1. In accordance with article 2.2.2 of the World Triathlon Anti-Doping Rules (WTADR), the mere fact an athlete used a prohibited substance or prohibited method is per se sufficient.

2. World Triathlon has the burden of establishing that an anti-doping rule violation (ADRV) has occurred. The standard of proof shall be whether World Triathlon has established an ADRV to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made. The gravity of the particular alleged wrongdoing is relevant to the application of the comfortable satisfaction standard in any given case .The standard of proof itself is not a variable one. The standard remains constant, but inherent within that immutable standard is a requirement that the more serious the allegation, the more cogent the supporting evidence must be in order for the allegation to be found proven.

3. In accordance with article 3.2 WTADR, unlike an ADRV for “presence”, the commission of an ADRV for Use may be proven by any number of means, so long as they are “reliable”. The term “any reliable means” within the meaning of Article 3.2 WTADR (which mirrors Article 3.2 of the WADC) is not supposed to be limited. Article 2.2. of the WADC provides inter alia that Use “may be established based upon reliable analytical data”.

4. The purpose of the retroactive effect of the disqualification of competitive results, is tied to the integrity of sporting competition with a view to rectifying the record books for the sport and turning the dial back as it were as if the cheating had not occurred. It should be taken into account that, in certain exceptional circumstances, the strict application of the disqualification rule can produce an unjust result. In particular, this may be the case when the potential disqualification period covers a very long term. CAS panels have frequently applied the fairness exception and let results remain partly in force when the potential disqualification period extends over many years and there is no evidence that the athlete has committed ADRVs over the whole period from the ADRV to the commencement of the provisional suspension or the ineligibility period. To find out, whether a sanction is excessive, CAS panels must review the type and scope of the proved rule-violation, the individual circumstances of the case, and the overall effect of the sanction on the offender. CAS panels have a broad discretion when making that assessment.

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 May 2020 World Triathlon (WT) reported an anti-doping rule violation against the Athlete Elena Danilova for the use of the prohibited substance Trimetazidine in June 2014, August 2014 and in June 2015.

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

The Athlete denied the violations and disputed the reliability of the filed evidence in this case provided by WADA, Professor McLaren and Dr Rodchenkov. Further she provided a number of possible explanations as to the findings of Trimetazidine in her samples.

The Sole Arbitrator assessed and addressed the following issues:

• Did the Moscow Laboratory conduct its sample analysis in accordance with the International Standard for Laboratories (ISL)?
• Is the data within the 2015 LIMS Database reliable evidence with regard to the Athlete?
• Was the Athlete part of the Protection Scheme as promulgated by the Moscow Laboratory and RUSADA?
• Was there Trimetazidine in the Athlete’s Samples?
• If the 2015 LIMS Database is reliable with regard to the Athlete, has an ADRV for Use been established to the comfortable satisfaction of the Sole Arbitrator?

The Athlete has consistently denied Use of Trimetazidine and/or involvement in the Disappearing positive methodology (DPM) or of the Russian Protection Scheme. The Sole Arbitrator deems that she has provided no credible account for the Trimetazidine that was found to be in each of her Samples.

Furthermore the Athlete raised a series of possible alternative sources for the evidence of Trimetazidine in her Samples such as her medical use of Meldonium and the unreliability of the 2015 LIMS Database from which the digital evidence of the Trimetazidine arises.

Following consideration the Sole Arbitrator determines that the Athlete provided only suggestions and unsubstantiated claims without corresponding evidence that could demonstrate that the Use of Trimetazidine by her was not intentional. Consequently the Athlete is subject to a 4 year period of ineligibility.

Finally the Sole Arbitrator finds that fairness and proportionality requires that the Athlete's results are only disqualified over a period of time of 4 years, i.e. the same duration as the period of inelgibility, starting from the date of Sampe 3.

Therefore the Court of Arbitration for Sport decides on 17 January 2022 that:

1.) Ms Elena Danilova is found guilty of an anti-doping rule violation in accordance with Article 2.2 of the 2015 World Triathlon ADR Rules between 2014 and June 2015 for the Use of the Prohibited Substance trimetazidine.

2.) Ms Elena Danilova is sanctioned with a 4-year period of ineligibility commencing on the date of this Award.

3.) The period of ineligibility shall commence from 26 May 2021 which is the date when the provisional suspension imposed on Ms Elena Danilova started to run.

4.) All competitive results obtained by Ms Elena Danilova from 6 June 2015 to 5 June 2019 with all resulting consequences (including forfeiture of any medals, points and prizes) are disqualified.

5.) (…).

6.) (…).

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

CAS 2021/ADD/32 International Olympic Committee (IOC) v. Askhat Dilmukhamedov

• Wrestling
• Doping (methasterone, oxymetholone)
• Jurisdiction of the CAS ADD
• Applicable law
• Establishment of the presence of a prohibited substance in the athlete’s sample

1. Pursuant to Article A2 and Article 8.2 of the CAS ADD Arbitration Rules, the CAS ADD is the first-instance authority that has jurisdiction to conduct proceedings and issue decisions when an alleged Anti-Doping Rule Violation (ADRV) has been filed with it. The CAS ADD Arbitration Rules provide, inter alia, that if any of the parties has been duly called and fails to appear at the hearing, the CAS ADD panel may nevertheless proceed with the hearing and deliver an award.

2. Pursuant to Article 8.1 of the CAS ADD Arbitration Rules, the CAS ADD is required to conduct proceedings and to issue decisions as per the CAS ADD Arbitration Rules.

3. Sufficient proof of an ADRV under Article 2.1.2 of the IOC Anti-Doping Rules applicable to the Games of the XXXII Olympiad Tokyo 2020 (ADR), is established by the presence of a prohibited substance or its metabolites in the athlete’s A-Sample when the athlete’s B-Sample analysis confirms the presence of the prohibited substance found in the A-Sample or when the athlete waives his right to request the opening and the analysis of the B-sample and confirm that he would not challenge the commission of the ADRV.

In July 2021 the International Testing Agency (ITA), on behalf of the International Olympic Committee (IOC), reported an anti-doping rule violation against the Kazakh wrestler Askhat Dilmukhamedov after his sample tested positive for the prohibited substances Methasterone and Oxandrolone.

Following notification the Athlete admitted the violation, waived his right for a hearing and signed a written Acceptance of Consequences Agreement.

Hereafter in August 2021 the Athlete's case was referred to the CAS Anti-Doping Division (CAS ADD) for a Sole Arbitrator first instance procedure. Thereupon the Athlete failed to respond and a Decision was rendered based on the written submissions of the Parties.

The Sole Arbitrator finds that the presence of prohibited substances has been established in the Athlete's sample and accordingly that he committed an anti-doping rule violation.

Further the Sole Arbitrator determines that the Athlete had admitted the violations, waived his right for a hearing and signed the Acceptance of Consequences.

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

1.) The request for arbitration filed on 26 August 2021 by the International Olympic Committee is upheld.

2.) Mr. Askhat Dilmukhamedov 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.) All individual results obtained by Mr. Askhat Dilmukhamedov on the occasion of the Olympic Games Tokyo 2020 shall be disqualified, with the resulting forfeiture of any and all medals, diplomas, points or prizes.

4.) United World Wrestling is requested to consider any further action within its own jurisdiction and pursuant to its own Rules including determining any period of ineligibility.

5.) (…).

6.) (…).

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

CAS 2021/ADD/25 United World Wrestling (UWW) v. Angus Patrick Arthur

• Wrestling
• Doping (dehydrochloromethyltestosterone (DHCMT))
• Delay of notification of ADRV and athlete’s defence rights
• Responsibility to clearly designate respondent(s)

1. Amongst others in light of the long limitation period provided by the WADA Code between the date of an alleged anti-doping rule violation (ADRV) and an action being commenced, delayed notification of an ADRV does not hinder an athlete’s defence rights. Also, a delay in the performance of e.g. sample analysis caused by unforeseeable circumstances (e.g. closure of laboratory due to pandemic as well as other measures taken to address the pandemic) may constitute an excusable delay.

2. Under Article A13 of the CAS ADD Rules, a claimant is responsible to clearly designate “the name and full address of the Respondent(s)” in the Request for Arbitration. Such provision is in line with Article 221 (1) of the Swiss Code of Civil Procedure which requires a claimant to specify the parties to the proceedings in its Request for Arbitration or Statement of Claim. A CAS panel may not impose any sanctions or similar on an entity that has not been duly designated as party to the proceedings.

In June 2020 the International Testing Agency (ITA), on behalf of United World Wrestling (UWF), reported an anti-doping rule violation against the Jamaican wrestler Angus Patrick Arthur after his sample tested positive for the prohibited substance Dehydrochlormethyltestosterone.

Following notification a provisional suspension was ordered and the case was referred to the CAS Anti-Doping Division (CAS ADD) for a Sole Arbitrator first instance procedure. A Decision was rendered based on the written submissions of the Parties.

The Athlete denied taking any, been supplied or advised to take any performing enhancing substances. He asserted that none of the nutritional substances he used at the time of the sample collection contained banned substances.

Further the Athlete complained that the passage of time between the date of sample collection (8 March 2020) and the reporting of the AAF (18 June 2020) prevented him from conducting his own investigation into the cause of the AAF.

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

The Arbitrator determines that the Athlete failed to present evidence about his attempts to investigate possible sources of contamination of his nutritional substances or other reasons he would have tested positive. As a result the Athlete failed to establish the source of the prohibited substance, nor that the violation was not intentional.

Although the Covid-19 pandemic caused a delay in the testing of the sample the Arbitrator finds that this delay was not substantial. Delays in the proceedings were deemed to be attributed to the Athlete.

Therefore the Court of Arbitration for Sport decides on 25 November 2021 that:

1.) The request for arbitration filed by United World Wrestling on 16 July 2021 against Angus Patrick Arthur is partially upheld.

2.) Angus Patrick Arthur committed an anti-doping rule violation in accordance with the United World Wrestling Anti-Doping Rules.

3.) Angus Patrick Arthur is sanctioned with a period of ineligibility of four (4) years.

4.) The period of ineligibility shall commence on 18 June 2020, which is the start date of the provisional suspension imposed on Angus Patrick Arthur.

5.) All competitive results obtained by Angus Patrick Arthur from the date of sample collection (8 March 2020) until 18 June 2020 are disqualified with all resulting consequences. The Athlete is ordered to return his gold medal and, if applicable, forfeit any other medals, points and prizes.

(…)

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

CAS 2020/A/7294 Aleksandr Shustov v. World Athletics & Russian Athletics Federation (RusAF)

Related case:

CAS 2019_O_6156 IAAF vs RusAF & Aleksandr Shustov
June 5, 2020

On 16 July 2016, Professor Richard McLaren (the Independent Person or the IP) issued a first report on the allegations of systemic doping in Russia. Some of the key findings of the First IP Report were that:

1. the Moscow Laboratory operated, for the protection of doped Russian athletes, within a state-dictated failsafe system, described in the First IP Report as the disappearing positive methodology (DPM) and
2. the Ministry of Sport of the Russian Federation directed, controlled, and oversaw the manipulation of athletes' analytical results or sample swapping, with the active participation and assistance of the Russian Federal Security Service, the Center of Sports Preparation of National Teams of Russia, and both Moscow and Sochi Laboratories.

On 9 December 2016, the IP elaborated on the First IP Report and released a second report on the doping allegations in Russia, together with the First IP Report. The Second IP Report confirmed the key findings of the First IP Report and described in detail the DPM and the Washout Testing.

Within the context of the Second IP Report, the IP identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered. The IP made publicly available on the IP Evidence Disclosure Package (EDP) website the evidence of the involvement of the Identified Athletes. According to the IP and the IAAF, the evidence on the EDP was retrieved from the hard-drive of Dr Rodchenkov and, after the metadata of all the documents was examined, the documents were determined to have been made contemporaneously to the events.

Mr. Aleksandr Shustov is a Russian high jumper competing in the Moscow 2013 IAAF World Championships.

In November 2017 the International Association of Athletics Federations (IAAF) - now: World Athletics - reported an anti-doping rule violation against the Russian Athlete based on the findings of the First and Second IP Report and the disclosed evidence.

After deliberations between the parties the case was referred to the Court of Arbitration for Sport (CAS) in February 2019 for a Sole Arbitrator first instance hearing panel (CAS 2019/O/6156).

The Sole Arbitrator concluded that the Athlete is present in the Moscow Washout Schedules in respect of the 5 samples listed as belonging to the Athlete. Here the Athlete’s presence in the Moscow Washout Schedules are strong indication that the Athlete used the prohibited substances Methandrostenolone (Metandienone) and Methasterone in 2013 as corroborated by the evidence.

Accordingly the Sole Arbitrator decided on 5 June 2020 to impose a 4 year period of ineligibility on the Athlete including disqualification of his results from 8 July 2013 until 7 July 2017.

in July 2020 the Athlete appealed the CAS First Instance Decision of 5 June 2020 (CAS 2019/O/6156) with the CAS Appeal Arbitration Division. He requested the Panel to annul the Appealed Decision and not to impose a period of ineligibility, or in the alternative to impose a reduced sanction.

The Athlete denied the use of prohibited substances and disputed the reliability of the filed evidence in this case provided by the World Athletics (IAAF), Professor McLaren and Dr Rodchenkov. Sustained by expert witnesses, he pointed to various inconsistencies in this evidence.

World Athletics contended that the Athlete (like all the other athletes on the Moscow Washout Schedules) manifestly used multiple prohibited substances in the lead-up to the Moscow World Championships. In addition, the Athlete was subject to a sophisticated protection scheme, involving washout testing to avoid detection at the event, as well as urine swapping when it ultimately transpired that his sample was positive.

Further World Athletics asserted that the Sole Arbitrator was absolutely correct to find that the Athlete had committed anti-doping rule violations and to impose a four-year period of ineligibility on him.

Despite being duly invited to do so, RusAF did not participate in the present appeal arbitration proceedings. It did not file any written briefs or prayers for relief and did not attend the hearing.

The Panel assessed the following isues in this case:

1. Did the Athlete violate Rule 32.2(b) IAAF Rules?

• The credibility of Dr Rodchenkov' s testimony
• The authenticity and reliability of the Moscow Washout Schedules
• The authenticity and reliability of the email dated 2 August 2013 related to the official 31 July 2013 sample
• Evidence of the official Sample 5 collected at the Moscow World Championships being swapped
  
  • Marks and scratches
  • Specific gravity
  • Conclusion with respect to swapping of Sample 5
• Overall conclusion with respect to the alleged violation of Rule 32.2(b) IAAF Rules

2. What are the consequences of a violation of Rule 32.2(b) IAAF Rules?

The Panel finds that the evidential strands presented by World Athletics, taken individually, is sufficiently reliable. Taken together, the evidence is particularly forceful because the several individual pieces of (indirect) evidence mutually support each other and thereby make the overall body of evidence against the Athlete stronger.

All the evidence, particularly when taken together, leads the Panel to the clear conclusion that it is satisfied to its comfortable satisfaction that the Athlete used prohibited substances, more specifically Methasterone, Oxandrolone and Methandrostenolone in the period between 8 July and 17 August 2013 in the lead-up to the Moscow World Championships, thereby violating Rule 32.2(b) IAAF Rules.

Therefore the Court of Arbitration for Sport decides on 23 November 2021:

1. The appeal filed on 20 July 2020 by Aleksandr Shustov against the decision issued on 5 June 2020 by the Court of Arbitration for Sport is dismissed.
2. The decision issued on 5 June 2020 by the Court of Arbitration for Sport is confirmed.
3. The costs of the arbitration, to be determined and served on the Parties by the CAS Court Office, shall be borne by Aleksandr Shustov.
4. The Athlete shall bear his own costs and pay a contribution in the amount of CHF 2,000 (two thousand Swiss Francs) towards World Athletics' legal fees and other expenses
   incurred in connection with the present appeal arbitration proceedings.
5. All other and further claims or prayers for relief are dismissed.

CAS 2021/A/7628 Fabián Hernando Puerta v. Union Ciclista Internacional (UCI)

Related case:

UCI-ADT 2020 UCI vs Fabian Hernando Puerta Zapata
December 16, 2020

On 16 December 2020 the UCI Anti-Doping Tribunal decided to impose a 4 year period of ineligibility on the Colombian Rider Fabian Hernando Puerta Zapata after his A and B samples tested positive for the prohibited substance Boldenone.

In First Instance the Athlete denied the intentional use of the substance and argued with expert opinions that his positive tests were the result of his consumption of Boldenone contaminated meat on the evening before the doping control. He asserted with evidence that Boldenone is widely used in farming of beef cattle in Columbia.

After consultation with external scientific experts the UCI rejected the Athlete's explanation because the concentration Boldenone found in his samples was not consistent with the alleged consumption of contaminated meat. Moreover the found concentration was consistent with the intentional injection of Boldenone 1-2 days before the test.

Herafter in January 2021 the Athlete appealed the UCI-ADT Decision with the Court of Arbitration for Sport (CAS).

The Athlete argued that the anti-doping rule violation for which he was sanctioned was not committed intentionally and, therefore, the Panel must set aside the Appealed Decision, reduce his sanction to a two-year period of ineligibility under Article 10.2 of the UCI ADR, and eliminate the mandatory costs imposed on him under Article 10.10.2 of the same.

Further the Athlete complained that the delays in the UCI investigation and proceeding were unacceptable and unfair. The UCI, on the other hand, sought to have the Appealed Decision upheld. The UCI contended that the Athlete has failed to prove on a balance of probability that the violation committed was not intentional.

Regarding the Athlete's procedural complaints the Panel finds that there is no indication that the UCI or the UCI Tribunal purposely delayed the investigation of final decision. Also no procedural violation occurred regarding UCI's consultation with WADA and the Panel observes that the UCI Single Judge considered and addressed explicitly or implicity in no little detail all of the Athlete's evidence and arguments.

In view of the evidence in this case the Panel finds that the presence of the prohibited substance Boldenone has been established in the Athlete's samples and accordingly that he committed an anti-doping rule violation.

The Panel holds that the Athlete only established that he ate meat on the night before the positive doping test and that there is a possibility that the AAF resulted from meat contamination. However, the Panel concludes that he has failed to:

• (i) sufficiently trace the origin of the meat;
• (ii) prove there is a systematic and significant Boldenone meat contamination problem in Antioquia or Colombia;
• (iii) prove that there is a probability that the AAF resulted from meat contamination; and
• (iv) rule out other routes of ingestion (in particular, the intentional oral intake of Boldenone, which in reality appears to the Panel to be the most probable scenario).

Under such circumstances and even considering the Athlete's clean history, the Panel finds that the he failed to establish on a balance of probability that the ADRV was not intentional for the purposes of 10.2 of the UCI ADR.

Therefore the Court of Arbitration for Sport decides on 10 November 2021:

1. The appeal filed by Fabian Hernando Puerta against the decision of the UCI AntiDoping Tribunal rendered on 16 December 2020 is dismissed.
2. The decision of the UCI Anti-Doping Tribunal rendered on 16 December 2020 is confirmed.
3. The award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Fabian Hernando Puerta, which is retained by the CAS.
4. Each Party shall bear its own legal fees and other expenses incurred in connection with this arbitration.
5. All other or further requests or motions submitted by the Parties are dismissed.

This appeal is a challenge by an athlete against a decision made by the World Athletics (WA) Council for and on behalf of World Athletics to make provision for the imposition of sanctions against member federations in the circumstances and on the conditions set forth in Rule 16 of the 2021 WA ADR.

In November 2016 the World Athletics (WA) Council suspended the Russian Athletics Federation (RusAF) as a member of World Athletics with immediate effect. The suspension arose from the matters set forth in the report prepared by the WADA Independent Commission established to investigate allegations of systemic doping practices within RusAF.

In 2016, World Athletics introduced an Authorised Neutral Athlete programme (ANA) which, subject to various conditions, allowed Russian athletes to compete as neutrals in international competitions during the period of suspension of RusAF and pending reinstatement.

Between 2016 and 2020 RusAF was fined because of serious anti-doping violations, it had to pay the sums due and to submit a sufficient reinstatement plan. Consequently the WA Council refused to grant ANA status to any Russian athlete pending these matters and decided on 2 December 2020 that it would consider RusAF's progress at its meeting in March 2021.

Hereafter in January 2021 the Athlete appealed the WA Councils decision(s) with the Court of Arbitration for Sport (CAS). The Athlete sought a declaration that certain provisions of the 2021 WA ADR were invalid and unenforceable and that the WA Council's decision(s) to suspend the ANA programme was likewise invalid and unenforceable.

This Award is concerned with three preliminary issues:

1. Is CAS competent and the appeal admissible?
2. Does the Athlete have standing to bring this appeal?
3. Is the appeal deemed withdrawn pursuant to Article R51 of the CAS Code on the basis that it was filed beyond by date permitted therein?

The Panel finds that the matters, though no doubt worrisome for the Athlete, do not, as a matter of law, rise to the level of sufficient or tangible or concrete interests in order to confer on the Athlete standing to sue World Athletics in respect of decisions made by it in the formulation and publication of its ADR.

The Panel finds that the Athlete's interests are entirely abstract and in the absence of a direct (or even an indirect) application of the Contested Provisions against the Athlete by World Athletics, her interest in the provisions is too attenuated. The expressed interest on the part of the Athlete at this moment in time is indeed "purely theoretical" and cannot suffice to provide the required foundation for standing to sue.

In the result, it is the Panel's determination that the Athlete has no locus standi to bring this appeal and the appeal must be dismissed on this ground alone. The Panel does not therefore address the remaining matters.

Therefore the Court of Arbitration for Sport decides on 8 November 2021 that:

1. The appeal filed on 21 January 2021 by Ms Mariya Lasitskene against World Athletics is dismissed.
2. The costs of the arbitration, to be served on the Parties by the CAS Court Office by separate letter, shall be born entirely by Ms Mariya Lasitskene.
3. Ms Mariya Lasitskene is ordered to pay the World Athletics a total amount ofCHF 3,000 (three thousand Swiss Francs) as contribution towards the expenses incurred in connection with these arbitration proceedings.
4. All other and further claims or prayers for relief are dismissed.

• CAS 2020/A/7579 World Anti-Doping Agency (WADA) v. Swimming Australia (SA), Sport Integrity Australia (SIA) & Shayna Jack; and
• CAS 2020/A/7580 SIA v. Shayna Jack & SA

Related case:

CAS A1_2020 Shayna Jack vs Swimming Australia & ASADA
November 16, 2020

• Aquatics (swimming)
• Doping (ligandrol)
• Proof of lack of intent
• Standard of proof for a panel deciding on a reduction of ineligibility
• Indiscriminate effect of the rules
• Lack of intent
• Type of proof
• Assessment of the evidence

1. Athletes who have committed an anti-doping rule violation (ADRV) and seek to reduce the period of ineligibility under Article 10.2.1 of the World Anti-Doping Code (WADC) need to prove both that they did not intentionally use a prohibited substance and (on the assumption that the explanation given in Article 10.2.3 is binding) that they did not take the risk of using a substance which might lead to an ADRV.

2. In reaching a decision as to whether an appellant deserves a reduction of ineligibility, it is sufficient that a CAS panel base this conclusion on a simple balance of probability, because this is not a decision involving the imposition of disciplinary measure, but rather a reduction of its consequences.

3. The one-size-fits-all characteristics of the rule on reduction of ineligibility may tempt adjudicating bodies to make allowances for specific circumstances – such as the great difference from sport to sport of the likelihood of being able to compete at an elite international level of competition, and thus the different impact of the same period of ineligibility on athletes whose international competitiveness may be of greatly contrasting duration given the physical demands of their sport. But the time and place for making such allowances is when such rules are drafted (and amended), not in making individual decisions.

4. The establishment of the source of the prohibited substance in an athlete’s sample is not mandated in order to prove an absence of intent. In other words, it is possible to prove – albeit with much difficulty – innocent exposure to prohibited substance in the absence of a credible identification of its source. However, as certitude with respect to the source of contamination decreases, so the athlete’s chances of prevailing depend on a counterbalancing increase of the implausibility of bad motive and negligence. The doping hypothesis must no longer (on a balance of probability) make sense in all the circumstances, and the charge of recklessness must (on a balance of probability) be overcome. This can be proved by any means. Identification of the source is often important (but not in and of itself sufficient), but it is not indispensable.

5. Speculations, declarations of a clear conscience, and character references are not sufficient proof. It is an unacceptable paradox to posit that the effect of the apparent unavailability of objective and probative evidence is to give an athlete the same benefit as if s/he had found and presented it. However, if uncorroborated speculation is said not to avail an accused athlete; it should not in fairness avail the accuser either.

6. Assessing evidence in a manner that (i) begins with the science and then (ii) considers the totality of the evidence (iii) through the prism of common sense, possibly (iv) “bolstered” by the athlete’s credibility, is a process that appears to be legitimate as a way of achieving its intended effect of enforcing the rules without finding comfort in the cynical view that occasional harm done to an innocent athlete is acceptable collateral damage.

On 16 November 2020 the Oceania Registry Court of Arbitration for Sport (CAS) decided to impose a 2 year period of ineligibility on the Australian swimmer Shayna Jack after she tested positive for the prohibited substance LGD-4033 (Ligandrol).

In this first instance case the Sole Arbitrator deemed that the Athlete could not demonstrate how the prohibited substance had entered her system but he was willing to accept that the violation was not intentional.

Hereafter the World Anti-Doping Agency (WADA) and Sport Integrity Australia (SIA) appealed this Decision with the Court of Arbitration for Sport (CAS) Appeals Division. They requested the Panel to set aside the Appealed Decision and to impose a 4 year period of ineligibility on the Athlete.

WADA and SIA challenged the Appealed Decision on the grounds that while the Sole Arbitrator acknowledged that in order to reduce the period of ineligibility from 4 years to 2 years the Athlete had the burden to demonstrate that the ADRV was not intentional.

WADA and SIA contended that the Sole Arbitrator erred in relying excessively on the Athlete’s credibility to conclude that she had met that burden and in too readily accepting an absence of intent.

The Panel finds that the Appealed Decision, for all its admirable qualities of discernment and exposition, is not in accordance with the Policy and with what the Panel perceives as consistent strands of leading decisions which contribute to the uniformity of application which is desirable in the international community of elite sports.

The Panel nevertheless upholds the ultimate holding of that Decision in favour of the Athlete, on what it deems to be the balance of probability. It is a close call made with considerable hesitation, indeed by a majority decision with respect to the decisive issue of recklessness under the fact of this case, but close calls must be made, and it favors her for the reasons set forth below.

Therefore the Court of Arbitration for Sport decides on 16 September 2021 that:

1. The appeal filed by Sport Integrity Australia on 7 December 2021 against Ms Shayna Jack and Swimming Australia Limited concerning the Award rendered in the procedure CAS A1/2020 on 16 November 2020 is dismissed.
2. The appeal filed by the World Anti-Doping Agency on 7 December 2021 against Sport Integrity Australia, Swimming Australia and Ms Shayna Jack concerning the Award rendered in the procedure CAS A1/2020 on 16 November 2020 is dismissed.
3. The Athlete’s Period of Ineligibility of two years, commencing on 12 July 2019, determined in the Award CAS A1/2020 on 16 November 2020, is confirmed for the reasons set out in the present Award.
4. (…).
5. (…).
6. (…).
7. All other motions or prayers for relief are dismissed.