• CAS 2016/A/4803 Ekaterina Gnidenko v. International Olympic Committee (IOC) & Union Cycliste Internationale (UCI)
• CAS 2016/A/4804 Maria Abakumova v. IOC
• CAS 2017/A/4983 Tatyana Lebedeva v. IOC & World Anti-Doping Agency (WADA)

Related cases:

• IOC 2016 IOC vs Ekaterina Gnidenko
  September 7, 2016
• IOC 2016 IOC vs Maria Abakumova
  September 5, 2016
• IOC vs Tatiana Lebedeva
  January 25, 2017
  
  

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• Cycling & Athletics
• Doping (dehydrochloromethyltestosterone (DHCMT) metabolites; Turinabol (oral))
• Burden of proof for anti-doping rule violation and Article 3.2.1 WADC
• Version of procedural rules applicable in case of anti-doping rule violations
• Principles guiding an analysis for a prohibited endogenous substance and scientific validity of such procedure
• Filters for considering expert evidence

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1. Ordinarily, the relevant anti-doping organisation has the burden of establishing, to the comfortable satisfaction of the judging body, that an anti-doping rule violation has occurred; that burden includes satisfying the judging body of the scientific validity of the analytical methods adopted by the testing laboratory. However, Article 3.2.1 of the 2015 World Anti-Doping Code (WADC) reverses that burden of proof concerning the scientific validity of the analytical methods employed by the laboratories by stipulating that “analytical methods or decision limits approved by WADA after consultation with the relevant scientific community and which have been the subject of peer review are presumed to be scientifically valid”.

2. In line with the general rule that it is the version of procedural rules existing at the time proceedings are commenced that is applicable, the 2015 WADC applies to anti-doping proceedings commenced as of the date of their entry into force; this is irrespective of the fact that the relevant anti-doping rule violation occurred prior to the introduction of Article 3.2.1 into the 2015 WADC.

3. There are established principles that guide a confirmatory analysis for a prohibited endogenous substance. For the purposes of an anti-doping rule violation, a sample taken from an athlete will only be found to contain a specific prohibited substance if, when compared to a reference sample or the like of the prohibited substance in question, there is an identity or very near identity in the two samples between:

• (a) at least two ion transitions;
• (b) the abundances of the diagnostic ions; and
• (c) the retention times for the particular substance.

Such testing method or procedure is “scientifically valid”, as used in Article 3.2.1 of the 2015 WADC, even if it does not identify the correct substance 100 times out of 100, if another substance (even another prohibited substance) could possibly be the source of a positive finding for the specific prohibited substance identified, or if there is one false positive out of a million. Absolute infallibility of a testing procedure is not required.

4. When considering expert evidence, the following filters shall be applied:

• (a) the expert’s duty is not to represent the interests of the party calling him or her, but rather to express his or her views honestly and as fully as necessary for the purpose of a case; an expert should provide independent, impartial assistance to the judging body and should not be an advocate for any party;
• (b) the judging body cannot completely disregard any expert evidence which is otherwise admissible or before it; rather, it must pay regard to the content of the expert evidence, but it is not bound by it, or required to blindly follow it;
• (c) the expert opinion should be comprehensible and lead to conclusions that are rationally based, with reasoning explained; the process of inference that leads to conclusions must be stated or revealed in a way that enables conclusions to be tested and a judgment made about their reliability;
• (d) in order to prevent deception or mistake and to allow the possibility of effective response, there must be a demonstrable objective procedure for reaching the expert opinion so that qualified persons can either duplicate the result or criticise the means by which it was reached, drawing their own conclusions from the underlying facts;
• (e) the value of expert evidence depends upon the authority, experience and qualifications of the expert and, above all, upon the extent to which his or her evidence carries conviction; and
• (f) in cases where experts differ, the judging body will apply logic and common sense in deciding which view is to be preferred, or which parts of the evidence are to be accepted.

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• Ms. Ekaterina Gnidenko is a Russian Athlete competing in the Cycling Track Keirin Event and the Track Sprint Event at the London 2012 Olympic Games.
  
  
• Ms. Maria Abakumova is a Russian Athlete competing in the javelin throw event at the Beijng 2008 Olympic Games.
  
  
• Ms. Tatiana Lebedeva is a Russian Athlete competing in the Women’s triple jump athletics event in the Beijing 2008 Olympic Games.

In 2016, the IOC decided to perform further analyses on certain samples collected during the 2008 and 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available at that time.

In May 2016 and in July 2016 the International Olympic Committee reported anti-doping rule violations against these three Athletes after their samples had tested positive for the prohibited substance Dehydrochlormthyltestosterone (Turinabol).

Consequently the IOC Disciplinary Commission decided in  September 2017 and in July 2018 that these Athletes had committed an anti-doping rule violation. Accordingly they were disqualified from the events in which they had participated at the 2008 and 2012 Olympic Games including disqualification of their obtained results.

Hereafter in September 2016 and in February 2017 the Athletes appealed these IOC decisions with the Court of Arbitration for Sport (CAS). Because of the near identity of the issues the parties agreed to consolidate their appeals and procedures.

The Athletes challenged the reliability of the testing methodology initially theorised in 2012 and applied by the Cologne and Lausanne laboratories to establish the presence of the long-term metabolites of Turinabol in the Athletes' stored samples.

In this matter the parties' expert witnesses addressed the following topics:

(a) The method for detection of the M3 metabolite;
(b) The synthesis of M3 and validation against urinary reference material; and
(c) Other chemicals impersonating M3 metabolite and potential for false positives.

After assessment of the expert evidence the Panel is comfortably satisfied that the Athletes have not discharged their burden of proving that the testing methods adopted by the laboratories, which led to the positive findings against each of them, were not scientifically valid in accordance with the standard required to be applied in these proceedings.

Therefore the Court of Arbitration for Sport decides on 25 July 2018 that:

In CAS 2016/A/4803:

1.) The Appeal filed by Ms Gnidenko on 28 September 2016 against the decision of the IOC Disciplinary Commission rendered on 7 September 2016 is dismissed.

2.) The decision of the IOC Disciplinary Commission dated 7 September 2016 is confirmed.

(…)

5.) All further requests for relief are dismissed.

In CAS 2016/A/4804:

1.) The Appeal filed by Ms Maria Abakumova on 28 September 2016 against the decision of the IOC Disciplinary Committee rendered on 7 September 2016 is dismissed.

2.) The decision of the IOC Disciplinary Committee rendered on 7 September 2016 is confirmed.

(…)

5.) All further requests for relief are dismissed.

In CAS 2017/A/4983:

1.) The Appeal filed by Ms Tatyana Lebedeva on 14 February 2017 against the decision of the IOC Disciplinary Committee rendered on 25 January 2017 is dismissed.

2.) The decision of the IOC Disciplinary Committee rendered on 25 January 2017 is confirmed.

(…)

5.) All further requests for relief are dismissed.

CAS 2022/A/9141 Mariano Tammaro v. International Tennis Federation (ITF)

Related case:

ITF 2022 ITF vs Mariano Tammaro
August 25, 2022

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In November 2021 the International Tennis Federation (ITF) reported an anti-doping rule violation against the Italian tennis player Mariano Tammaro after his A and B samples tested positive for the prohibited substance Clostebol. Consequently the ITF Independent Tribunal decided on 25 August 2022 to impose a 2 year period of ineligibility on the Athlete.

In first instance the Panel accepted that the Athlete had demonstrated the source of the prohibited substance and that the violation was not intentional. Considering the circumstances in this case the Panel deemed that there were no grounds for No Significant Fault or Negligence.

Hereafter in September 2022 both the Athlete and the ITF appealed the ITF decision with the Court of Arbitration for Sport (CAS). Following assessment of the case the CAS Panel rendered an operational award.

Therefore the Court of Arbitration for Sport decides on 2 March 2023 that:

1.) The appeal filed by Mr. Mariano Tammaro on 12 September 2022 against the decision rendered on 25 August 2022 by the Independent Tribunal of the International Tennis Federation (ITF) is partially upheld.

2.) The decision rendered on 25 August 2022 by the Independent Tribunal of the International Tennis Federation  ITF) is partially set aside. The 3rd bullet point of paragraph 109 of the decision of the Independent Tribunal of the International Tennis Federation (ITF) is set aside and replaced with the following:

Mr. Mariano Tammaro is declared Ineligible and barred from participating in any Competition, Event or other activity or funding in accordance with the Tennis Anti-Doping Programme for a period of fifteen (15) months commencing on 30 November 2021.

3.) This arbitral Award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss francs) paid by Mr. Mariano Tammaro, which is retained by the CAS.

4.) Each Party shall bear their own legal fees incurred in connection with this arbitration.

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

• CAS 2022/A/9031 Stephane Houdet v. International Tennis Federation
• CAS 2022/A/9137 International Tennis Federation v. Stephane Houdet

Related case:

ITF 2022 ITF vs Stéphane Houdet
June 30, 2022

In October 2021 the International Tennis Federation (ITF) reported an anti-doping rule violation against the French wheelchair tennis player Stéphane Houdet for his whereabouts filing failures and 3 missed tests within a 12 month period. Consequently the ITF decided on 30 June 2022 to impose a 15 month period of ineligibility on the Athlete.

In first instance the Panel deemed that the Athlete had acted with a degree of fault in his obligation to be present and available for testing. Bij contrast the Panel concluded that the DCO did what was reasonable in the circumstances to locate the Athlete.

Hereafter in July 2022 the Athlete, and in September 2022 the ITF, appealed the Decision of 30 June 2022 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. By contrast ITF requested the Panel to impose a 2 year period of ineligibility on the Athlete.

The Sole Arbitrator assessed the circumstances regarding the 3 missed tests and addressed the issues raised by the Parties in these matters. The Sole Arbitrator establishes that the incidents of 2 January 2021, 26 July 2021 and 21 September 2021 amounted in 3 missed tests.

The Sole Arbitrator finds that the Athlete's degree of fault in respect of the whereabouts filing of 2 January 2021 warrants a reduction of the period of ineligibility. In respect to the 26 July 2021 missed test the Athlete had admitted his negligence.

The Sole Arbitrator deemed that the Athlete's degree of fault in respect to the missed test on 27 September 2021 does not warrant a further reduction of the sanction. Further the Arbitrator agrees that there had been delays in the proceedings not attributed to the Athlete.

Therefore the Court of Arbitration for Sport decides on 2 March 2023 that:

1.) The appeal filed by Stéphane Houdet on 14 July 2022 against the decision issued on 30 June 2022 by the ITF Independent Tribunal is admissible and is upheld in part.

2.) The appeal filed by the International Tennis Federation on 12 September 2022 against the decision issued on 30 June 2022 by the ITF Independent Tribunal is admissible and is upheld in part.

3.) The decision issued on 30 June 2022 by the ITF Independent Tribunal is set aside.

4.) Mr Houdet is found to have committed an ADRV under Article 2.4 of the 2021 TADP as a result of three Missed Tests on (i) 2 January 2021, (ii) 26 July 2021, and (iii) 27 September 2021.

5.) Mr Houdet is sanctioned with a period of ineligibility of 14 months.

6.) The period of ineligibility is deemed to have started on 27 December 2021 and concludes upon notification of this Award.

7.) Mr Houdet's results from 27 December 2021 to the date of this Award (and any medals, titles, ranking points and prize money won by virtue of those results) are disqualified.

8.) Mr Houdet's results from 27 September 2021 to the commencement of his period of ineligibility on 27 December 2021 (and any medals, titles, ranking points and prize money won by virtue of those results) shall not be retroactively disqualified.

9.) The award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by each of Mr Houdet in respect of his appeal and the International Tennis Federation in respect of its appeal, which is retained by the CAS.

10.) Each party shall bear its own costs and other expenses incurred in connection with this arbitration.

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

CAS 2021/A/8056 Olga Pestova v. Russian Anti-Doping Agency (RUSADA)

• Rugby
• Doping (methylhexaneamine)
• Conditions for the reduction of the standard sanction on the basis of “No Significant Fault or Negligence”
• Level of care expected from the athlete for a finding of “No Significant Fault or Negligence”
• Categories and levels of fault

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1. According to the applicable regulations, in order for the standard sanction for a violation involving a specified substance and a non-intentional anti-doping rule violation to be reduced on the basis of “No Significant Fault or Negligence”, the athlete must, on a balance of probabilities, firstly establish how the prohibited substance entered his/her system (the so-called “route of ingestion”). This is the “threshold” condition established by the anti-doping rules to allow “access” to a finding of “No Significant Fault or Negligence”. Secondly, s/he must establish the facts and circumstances that are relevant to his/her fault and, on that basis, why the standard sanction should be reduced. A period of ineligibility can be reduced based on “No Significant Fault or Negligence” only in cases where the circumstances justifying a deviation from the duty of exercising the “utmost caution” are truly exceptional, and not in the vast majority of cases.

2. The “bar” should not be set too high for a finding of “No Significant Fault or Negligence”. In other words, a claim of “No Significant Fault or Negligence” is (by definition) consistent with the existence of some degree of fault and cannot be excluded simply because the athlete left some “stones unturned”. An athlete can always read the label of the product used or make internet searches to ascertain its ingredients, cross-check the ingredients so identified against the Prohibited List or consult with the relevant sporting or anti-doping organizations, consult appropriate experts in anti-doping matters and, eventually, not take the product. However, an athlete cannot reasonably be expected to follow all such steps in every and all circumstances. To find otherwise would render the “No Significant Fault or Negligence” provision in the World Anti-Doping Code (WADC) and translated into the applicable regulations meaningless.

3. Until the 2015 version of the WADC, anti-doping rules allowed a distinction between three degrees of fault or negligence. The 2015 version of the WADC significantly differs from the previous scheme for the consideration of the specificities of individual cases. As a result, the time span of 24 months which is still available now covers only two instead of three categories of fault: 1) normal degree of fault: over 12 months and up to 24 months with a standard normal degree leading to an 18-month period of ineligibility; and 2) light degree of fault: 0-12 months with a standard light degree leading to a 6-month period of ineligibility. In order to determine into which category of fault a particular case might fall, it is helpful to consider both “objective” and “subjective” levels of fault. The objective level of fault points to “what standard of care could have been expected from a reasonable person in the athlete’s situation”, while the subjective level looks to “what could have been expected from that particular athlete, in the light of his/her particular capacities”. Therefore, the objective element should be foremost in determining into which of the relevant categories a particular case falls; the subjective element can then be used to move a particular athlete up or down within that category. All in all, however, there might be some overlap within those elements.

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In October 2020 the Russian Anti-Doping Agency (RUSADA) reported an anti-doping rule violatin against the rugby player Olga Pestova after her sample tested positive for the prohibited substance Methylhexaneamine (1,3-dimethylamylamine).

Consequently on 19 May 2021 the RUSADA Disciplinary Anti-Doping Committee (DADC) decided to impose a 1 year period of ineligibility on the Athlete. The DADC accepted that the violation was not intentional and considered that at the material time the Athlete suffered from a head injury that effected her physical and psychological condition.

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

The Athlete admitted the violation and denied the intentional use of the substance. She explained that she suffered from a head injury a week before the match and the sample collection.

After her injury she did not receive a proper examination and she continued to train while she experienced acute headache, nausea and dizziness. Feeling sick and disoriented she consumed a Melior sport drink purchased in a sport nutrition shop.

She asserted that she did check the ingredients of this drink and only after further research into this product it appeared that this Melior drink was a counterfeit product of Russian origin. She acknowledged that she did not inform the team's managagement about her medical condition because she feared not to be selected for the next match.

The Athlete argued that her cognitive disorder caused by concussion is of particular relevance to assess whether she could adequately evaluate the information and make decisions when she bought and consumed the Melior sport drink.

RUSADA accepted that the Athlete's violation was not intentional and that the Melior sport drink was the possible source of the prohibited substance in her sample. Yet it does not accept that the Athlete has demonstrated that her judgement or decision-making capacity was, in any event, impaired by her head injury.

The Sole Arbitrator finds that it is undisputed between the Parties that the Athlete has committed an anti-doping rule violation and has demonstrated how the substance had entered her system.

Following assessment of the Athlete's conduct impaired by her head injury the Sole Arbitrator deems that there is no justification for a further reduction of the imposed sanction.

Therefore the Court of Arbitration for Sport decides on 23 May 2022 that:

1. The appeal filed by Ms Olga Pestova with the Court of Arbitration for Sport against the decision issued on 13 May 2021 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is dismissed.

2. The decision issued on 13 May 2021 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is confirmed.

3. (…).

4. (…).

5. All other prayers for relief are dismissed.

CAS 2021/A/7840 World Anti-Doping Agency (WADA) v. International Canoe Federation (ICF) & Aleksandra Dupik

• Canoeing
• Doping (furosemide)
• Use of a prohibited substance
• Standard of proof
• Methods of proof
• Circumstantial evidence
• Reduction of the period of disqualification in the interests of fairness

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1. It is made clear by Article 2.2.1 of the ICF 2009 Anti-Doping Regulations (ADR) that, because it is every athlete’s duty to ensure that no prohibited substance enters his or her body, it is not necessary to show that any use on the part of an athlete was intentional or knowing, or that an athlete was at fault in some way or that he or she failed to take due care (i.e., was negligent).

2. The standard of proof of comfortable satisfaction is greater than a mere balance of probability, but less than proof beyond a reasonable doubt. The more serious the allegation, the more cogent the supporting evidence must be in order for the allegation to be found proven. However, contrary to what is often asserted, the standard itself does not change; it is the required cogency of the evidence that changes on the basis that the more serious the allegations (a) the less likely that the alleged fact or event has occurred and (b) the more serious the consequences. The standard of proof remains to the comfortable satisfaction of the Panel bearing in mind the seriousness of the allegations.

3. As a general rule, facts relating to anti-doping rule violations (ADRV) may (i.e., it is permissible) be established by “any reliable means”. This rule gives greater leeway to anti-doping organisations to prove violations, so long as they can comfortably satisfy a tribunal that the means of proof is reliable. As a result, it is not even necessary that a violation be proven by a scientific test itself. Instead, a violation may be proved through admissions, testimony of witnesses, or other documentation evidencing a violation. This rule is not a requirement that the evidence adduced be “reliable evidence”. Rather, it is a rule as to the method or manner or form in which the facts that are necessary to sustain an allegation of an ADRV may be established, and the rule provides (in a non-exhaustive list) a number of examples of means of establishing facts which are characterised as “reliable”.

4. In case there is no direct but only circumstantial evidence, the adjudicatory body must assess the evidence separately and together and must have regard to what is sometimes called “the cumulative weight” of the evidence. It is in the nature of circumstantial evidence that single items of evidence may each be capable of an innocent explanation but, taken together, establish guilt beyond reasonable doubt. There may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion, but the whole taken together, may create a strong conclusion of guilt.

5. Article 10.8 of the ICF 2009 ADR provides that all competitive results achieved by the athlete from the date that a positive sample was collected or other ADRV was committed through to the start of the period of ineligibility is to be disqualified with all of the resulting consequences as there set forth – unless fairness requires otherwise. Indeed in certain exceptional circumstances, the strict application of the disqualification rule can produce an unjust result. In particular, this may be the case when the potential disqualification period covers a very long term, which is normally the case when the facts leading to the ADRV took place long before the adjudicating proceedings started which usually occurs when they are opened as a result of the re-testing of a sample or of the uncover of a sophisticated doping scheme. In addition, in this type of cases it may be difficult to prove that the athlete at stake used prohibited substances or methods during such a long period of time.

---

In 2016, Professor Richard McLaren issued two reports about systemic doping in Russia. These reports identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered.

Hereafter in January 2019 the World Anti-Doping Agency (WADA) recovered the internal database of the Moscow Laboratory (LIMS). Following investigation of allegations of organized doping practices, and in particular of the LIMS, WADA provided international federations with investigation reports on the athletes implicated in these organized doping practices.

These investigation reports revealed that the prohibited substances Furosemide had been established in the sample of the Athlete Aleksandra Dupik. This sample was provided by the Athlete in April 2014 and thereupon deliberately reported as negative by the Moscow laboratory.

However the ICF concluded that there was insufficient direct evidence that the Athlete had committed an anti-doping rule violation and decided on 11 March 2021 not to bring forward this case.

Hereafter in March 2021 the World Anti-Doping Agency (WADA) appealed the ICF decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a period of ineligibility on the Athlete from 2 to 4 years.

WADA contended that the evidence in relation to the Athlete's samples clearly showed that the Athlete committed an anti-doping rule violation and that the decision by the ICF not to move forward with this matter was manifestly wrong.

The Athlete denied that she had committed an anti-doping rule violation and argued that the appeal should be dismissed and the Appealed Decision should be confirmed. Further she disputed the reliability of the filed evidence in this case provided by WADA, Professor McLaren and Dr Rodchenkov.

There was no pleaded challenge to the manner in which the ICF conducted itself in coming to its decision, only that its decision was wrong. The appeal was therefore conducted by the Parties as an inquiry into whether the evidence was sufficient to establish, to the applicable standard of proof, that the Athlete had committed an anti-doping rule violation and not as to whether the ICF had met its investigation obligations under its anti-doping rules and related international standards.

Following assessment of all evidence provided by the Parties, the Panel concludes as follows:

• There was a systemic cover-up and manipulation of the doping control process within Russia in the manner described by Prof. McLaren in the McLaren Reports, commonly referred to as the Russian doping scheme.
• The Moscow Laboratory performed both initial testing procedures and confirmation procedures on the Sample, the results of which showed the presence of the diuretic, Furosemide.
• Furosemide is a prohibited substance.
• In furtherance of the Russian doping scheme, and in order to protect the Athlete from the consequences of the positive test result, the Moscow Laboratory recorded the analytical results of the Sample in ADAMS as negative.
• In relation therefore to the ADRV allegations in this matter, the Panel concludes that, upon taking the evidence as a whole and assessing its cumulative weight, the Panel is comfortably satisfied that, on or about 19 April 2014, the Athlete used a prohibited substance (namely, Furosemide) in violation of Article 2.2(b) of the 2009 ICF ADR.

Therefore the Court of Arbitration for Sport decides on 9 June 2022 that:

1.) The appeal filed by the World Anti-Doping Agency on 1 April 2021 against the International Canoe Federation and Ms Aleksandra Dupik with respect to the decision rendered by the International Canoe Federation on 11 March 2021 is upheld.

2.) The decision rendered on 11 March 2021 by the International Canoe Federation in the matter of Ms Aleksandra Dupik is set aside.

3.) Ms Aleksandra Dupik is found to have committed an anti-doping rule violation under Article 2.2 of the International Canoe Federation’s 2009 Anti-Doping Rules.

4.) Ms Aleksandra Dupik is sanctioned with a period of ineligibility of two (2) years starting from the date of this Award.

5.) All competitive results achieved by Ms Aleksandra Dupik from 19 April 2014 through to and including 31 December 2016 are disqualified with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points and prize and appearance money.

6.) (…).

7.) (…).

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

CAS 2021/A/7839 World Anti-Doping Agency (WADA) v. International Canoe Federation (ICF) & Nikolay Lipkin

• Canoeing (kayak)
• Doping (Trenbolone/Metenolone/Oxandrolone)
• Use of a prohibited substance
• Standard of proof
• Methods of proof
• Circumstantial evidence
• Aggravating circumstances
• Reduction of the period of disqualification in the interests of fairness

---

1. It is made clear by Article 2.2.1 of the ICF 2009 Anti-Doping Regulations (ADR) that, because it is every athlete’s duty to ensure that no prohibited substance enters his or her body, it is not necessary to show that any use on the part of an athlete was intentional or knowing, or that an athlete was at fault in some way or that he or she failed to take due care (i.e., was negligent).

2. The standard of proof of comfortable satisfaction is greater than a mere balance of probability, but less than proof beyond a reasonable doubt. The more serious the allegation, the more cogent the supporting evidence must be in order for the allegation to be found proven. However, contrary to what is often asserted, the standard itself does not change; it is the required cogency of the evidence that changes on the basis that the more serious the allegations (a) the less likely that the alleged fact or event has occurred and (b) the more serious the consequences. The standard of proof remains to the comfortable satisfaction of the Panel bearing in mind the seriousness of the allegations.

3. As a general rule, facts relating to anti-doping rule violations (ADRV) may (i.e., it is permissible) be established by “any reliable means”. This rule gives greater leeway to anti-doping organisations to prove violations, so long as they can comfortably satisfy a tribunal that the means of proof is reliable. As a result, it is not even necessary that a violation be proven by a scientific test itself. Instead, a violation may be proved through admissions, testimony of witnesses, or other documentation evidencing a violation. This rule is not a requirement that the evidence adduced be “reliable evidence”. Rather, it is a rule as to the method or manner or form in which the facts that are necessary to sustain an allegation of an ADRV may be established, and the rule provides (in a non-exhaustive list) a number of examples of means of establishing facts which are characterised as “reliable”.

4. In case there is no direct but only circumstantial evidence, the adjudicatory body must assess the evidence separately and together and must have regard to what is sometimes called “the cumulative weight” of the evidence. It is in the nature of circumstantial evidence that single items of evidence may each be capable of an innocent explanation but, taken together, establish guilt beyond reasonable doubt. There may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion, but the whole taken together, may create a strong conclusion of guilt.

5. There are aggravating circumstances if an athlete participated in a doping plan or scheme to commit anti-doping rule violations and also engaged in deceptive or obstructing conduct to avoid the detection of an anti-doping rule violation.

6. Article 10.8 of the ICF 2009 ADR provides that all competitive results achieved by the athlete from the date that a positive sample was collected or other ADRV was committed through to the start of the period of ineligibility is to be disqualified with all of the resulting consequences as there set forth – unless fairness requires otherwise. Indeed in certain exceptional circumstances, the strict application of the disqualification rule can produce an unjust result. In particular, this may be the case when the potential disqualification period covers a very long term, which is normally the case when the facts leading to the ADRV took place long before the adjudicating proceedings started which usually occurs when they are opened as a result of the re-testing of a sample or of the uncover of a sophisticated doping scheme. In addition, in this type of cases it may be difficult to prove that the athlete at stake used prohibited substances or methods during such a long period of time.

---

In 2016, Professor Richard McLaren issued two reports about systemic doping in Russia. These reports identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered.

Hereafter in January 2019 the World Anti-Doping Agency (WADA) recovered the internal database of the Moscow Laboratory (LIMS). Following investigation of allegations of organized doping practices, and in particular of the LIMS, WADA provided international federations with investigation reports on the athletes implicated in these organized doping practices.

These investigation reports revealed that the prohibited substances Metenolone, Oxandrolone and Trenbolone had been established in the 2 samples of the Athlete Nikolay Lipkin. These samples were provided by the Athlete in June 2014 and thereupon deliberately reported as negative by the Moscow laboratory.

However the ICF concluded that there was insufficient direct evidence that the Athlete had committed an anti-doping rule violation and decided on 11 March 2021 not to bring forward this case.

Hereafter in March 2021 the World Anti-Doping Agency (WADA) appealed the ICF decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a period of ineligibility on the Athlete from 2 to 4 years.

WADA contended that the evidence in relation to the Athlete's samples clearly showed that the Athlete committed an anti-doping rule violation and that the decision by the ICF not to move forward with this matter was manifestly wrong.

There was no pleaded challenge to the manner in which the ICF conducted itself in coming to its decision, only that its decision was wrong. The appeal was therefore conducted by the Parties as an inquiry into whether the evidence was sufficient to establish, to the applicable standard of proof, that the Athlete had committed an anti-doping rule violation and not as to whether the ICF had met its investigation obligations under its anti-doping rules and related international standards.

Following assessment of all of the evidence provided by the Parties, the Panel concludes as follows:

• There was a systemic cover-up and manipulation of the doping control process within Russia in the manner described by Prof. McLaren in the McLaren Reports, commonly referred to as the Russian doping scheme.
• The Moscow Laboratory performed initial testing procedures (ITP) on the Samples, the results of which showed the (presumptive) presence of the anabolic steroids Trenbolone, Metenolone and Oxandrolone.
• Each of these substances is a prohibited substance.
• In furtherance of the Russian doping scheme, and in order to protect the Athlete from the consequences of positive test results, the Moscow Laboratory did not go on to conduct the confirmation procedure to confirm the presence and/or concentration and/or origin of these substances but, instead, falsely recorded the analytical results of the Samples in the ADAMS as negative.
• In relation therefore to the ADRV allegations in this matter, the Panel concludes that, upon taking the evidence as a whole and assessing its cumulative weight, the Panel is comfortably satisfied that, on or about 5 June 2014 and on or about 19 June 2014, the Athlete used prohibited substances (namely, Trenbolone, Oxandrolone and Metenolone) in violation of Article 2.2(b) of the ICF 2009 ADR.

Therefore the Court of Arbitration for Sport decides on 9 June 2022 that:

1.) The appeal filed by of the World Anti-Doping Agency on 9 June 2021 against the International Canoe Federation and Mr Nikolay Lipkin with respect to the decision rendered on 11 March 2021 by the International Canoe Federation is upheld.

2.) The decision rendered on 11 March 2021 by the International Canoe Federation in the matter of Mr Nikolay Lipkin is set aside.

3.) Mr Nikolay Lipkin is found to have committed an anti-doping rule violation under Article 2.2 of the International Canoe Federation’s 2009 Anti-Doping Rules.

4. Mr Nikolay Lipkin is sanctioned with a period of ineligibility of four (4) years starting from the date of this Award, subject to any period of provisional suspension already served.

5.) All competitive results achieved by Mr Nikolay Lipkin from 5 June 2014 through to and including 31 December 2016 are disqualified with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points and prize and appearance money.

6.) (…).

7.) (…).

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

CAS 2021/A/7838 World Anti-Doping Agency (WADA) v. International Canoe Federation (ICF) & Aleksandr Dyachenko

Related case:

CAS OG_2016_19 Natalia Podolskaya & Alexander Dyachenko vs ICF
August 8, 2016

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• Canoeing (kayak)
• Doping (trenbolone/metenolone)
• Use of a prohibited substance
• Standard of proof
• Methods of proof
• Circumstantial evidence
• Aggravating circumstances
• Reduction of the period of disqualification in the interests of fairness

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1. It is made clear by Article 2.2.1 of the ICF 2009 Anti-Doping Regulations (ADR) that, because it is every athlete’s duty to ensure that no prohibited substance enters his or her body, it is not necessary to show that any use on the part of an athlete was intentional or knowing, or that an athlete was at fault in some way or that he or she failed to take due care (i.e., was negligent).

2. The standard of proof of comfortable satisfaction is greater than a mere balance of probability, but less than proof beyond a reasonable doubt. The more serious the allegation, the more cogent the supporting evidence must be in order for the allegation to be found proven. However, contrary to what is often asserted, the standard itself does not change; it is the required cogency of the evidence that changes on the basis that the more serious the allegations (a) the less likely that the alleged fact or event has occurred and (b) the more serious the consequences. The standard of proof remains to the comfortable satisfaction of the Panel bearing in mind the seriousness of the allegations.

3. As a general rule, facts relating to anti-doping rule violations (ADRV) may (i.e., it is permissible) be established by “any reliable means”. This rule gives greater leeway to anti-doping organisations to prove violations, so long as they can comfortably satisfy a tribunal that the means of proof is reliable. As a result, it is not even necessary that a violation be proven by a scientific test itself. Instead, a violation may be proved through admissions, testimony of witnesses, or other documentation evidencing a violation. This rule is not a requirement that the evidence adduced be “reliable evidence”. Rather, it is a rule as to the method or manner or form in which the facts that are necessary to sustain an allegation of an ADRV may be established, and the rule provides (in a non-exhaustive list) a number of examples of means of establishing facts which are characterised as “reliable”.

4. In case there is no direct but only circumstantial evidence, the adjudicatory body must assess the evidence separately and together and must have regard to what is sometimes called “the cumulative weight” of the evidence. It is in the nature of circumstantial evidence that single items of evidence may each be capable of an innocent explanation but, taken together, establish guilt beyond reasonable doubt. There may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion, but the whole taken together, may create a strong conclusion of guilt.

5. There are aggravating circumstances if an athlete participated in a doping plan or scheme to commit anti-doping rule violations and also engaged in deceptive or obstructing conduct to avoid the detection of an anti-doping rule violation.

6. Article 10.8 of the ICF 2009 ADR provides that all competitive results achieved by the athlete from the date that a positive sample was collected or other ADRV was committed through to the start of the period of ineligibility is to be disqualified with all of the resulting consequences as there set forth – unless fairness requires otherwise. Indeed in certain exceptional circumstances, the strict application of the disqualification rule can produce an unjust result. In particular, this may be the case when the potential disqualification period covers a very long term, which is normally the case when the facts leading to the ADRV took place long before the adjudicating proceedings started which usually occurs when they are opened as a result of the re-testing of a sample or of the uncover of a sophisticated doping scheme. In addition, in this type of cases it may be difficult to prove that the athlete at stake used prohibited substances or methods during such a long period of time.

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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.

These investigation reports revealed that the prohibited substances Metenolone and Trenbolone had been established in the 2 samples of the Athlete Alesandr Dyachenko. These samples were provided by the Athlete in 2014 and thereupon deliberately reported as negative by the Moscow laboratory.

However the ICF concluded that there was insufficient direct evidence that the Athlete had committed an anti-doping rule violation and decided on 11 March 2021 not to bring forward this case.

Hereafter in March 2021 the World Anti-Doping Agency (WADA) appealed the ICF decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a period of ineligibility on the Athlete from 2 to 4 years.

WADA contended that the evidence in relation to the Athlete's samples clearly showed that the Athlete committed an anti-doping rule violation and that the decision by the ICF not to move forward with this matter was manifestly wrong.

The Athlete denied that he had committed an anti-doping rule violation and argued that the appeal should be dismissed and the Appealed Decision should be confirmed. Further he disputed the reliability of the filed evidence in this case provided by WADA, Professor McLaren and Dr Rodchenkov.

There was no pleaded challenge to the manner in which the ICF conducted itself in coming to its decision, only that its decision was wrong. The appeal was therefore conducted by the Parties as an inquiry into whether the evidence was sufficient to establish, to the applicable standard of proof, that the Athlete had committed an anti-doping rule violation and not as to whether the ICF had met its investigation obligations under its anti-doping rules and related international standards.

Following assessment of all of the evidence provided by the Parties, the Panel concludes as follows:

• There was a systemic cover-up and manipulation of the doping control process within Russia in the manner described by Prof. McLaren in the McLaren Reports, commonly referred to as the Russian doping scheme.
• The Athlete was a protected athlete within the Russian doping scheme.
• The Moscow Laboratory performed initial testing procedures on the Samples, the results of which showed the (presumptive) presence of the anabolic steroids Epitrenbolone (a metabolite of Trenbolone) in Sample No.1 and Epitrenbolone and 16a-hydroxy-1-methyl-5a-androst-1-ene-3,17-dione (a metabolite of Metenolone) in Sample No.2.
• Each of these substances is a prohibited substance.
• In furtherance of the Russian doping scheme, and in order to protect the Athlete from the consequences of positive test results, the Moscow Laboratory did not go on to conduct the confirmation procedure to confirm the presence and/or concentration and/or origin of these substances but, instead, recorded the analytical results of the Samples in the Anti-Doping Administration & Management System (ADAMS) as negative.
• In relation therefore to the ADRV allegations in this matter, the Panel concludes that, upon taking the evidence as a whole and assessing its cumulative weight, the Panel is comfortably satisfied that, on or about 5 June 2014 and on or about 3 August 2014, the Athlete used prohibited substances (namely, Trenbolone and Metenolone) in violation of Article 2.2(b) of the ICF 2009 ADR.

Therefore the Court of Arbitration for Sport decides on 9 June 2022 that:

1.) The appeal filed by the World Anti-Doping Agency on 1 April 2021 against the International Canoe Federation and Mr Aleksandr Dyachenko with respect to the decision rendered on 11 March 2021 by the International Canoe Federation is upheld.

2.) The decision rendered on 11 March 2021 by the International Canoe Federation in the matter of Mr Aleksandr Dyachenko is set aside.

3.) Mr Aleksandr Dyachenko is found to have committed an anti-doping rule violation under Article 2.2 of the International Canoe Federation’s 2009 Anti-Doping Rules.

4.) Mr Aleksandr Dyachenko is sanctioned with a period of ineligibility of four (4) years starting from the date of this Award, subject to any period of provisional suspension already served by Mr Aleksandr Dyachenko.

5.) All competitive results achieved by Mr Aleksandr Dyachenko from 5 June 2014 through to and including 31 December 2016 are disqualified with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points and prize and appearance money.

6.) (…).

7.) (…).

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

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.