CAS anti-doping Division (OG PyeongChang) AD 18/003 World Curling Federation (WCF) v. Aleksandr Krushelnickii

Related case:

CAS OG_AD_2018_03 IOC vs Aleksandr Krushelnitckii - Partial Award
February 22, 2018

• Curling
• Doping (meldonium)
• Burden and standard of proof
• Admissibility of polygraph test results and expert opinion in relation to such results
• Principles applicable to the source of the prohibited substance
• Establishment of the source of the prohibited substance as proof of absence of intent
• Sabotage

1. According to Article 3.1 of the WCF Anti-Doping Rules (ADR), WCF shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether WCF has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made. The standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where these anti-doping rules place the burden of proof upon the athlete alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified acts or circumstances, the standard of proof shall be by a balance of probability.

2. Where there is no challenge to the conduct of a polygraph test or the expertise of the tester, the evidence should be admitted and taken into account knowing that it rises no higher than adding some force to the athlete’s declaration of innocence but not supplanting the need to carefully consider all other evidence in the case in determining whether the burden of proof has been discharged.

3. It is for an athlete to establish the source of the prohibited substance, not for the anti-doping organization to prove an alternative source to that contended for by the athlete. An athlete has to do so on the balance of probabilities. Evidence establishing that a scenario is possible is not enough to establish the origin of the prohibited substance. An athlete must do so with evidence, not speculation. It is insufficient for an athlete to deny deliberate ingestion of a prohibited substance and, accordingly, to assert that there must be an innocent explanation for its presence in his system. If there are two competing explanations for the presence of the prohibited substance, the rejection of one does not oblige (though it may permit) the hearing body to opt for the other. The conclusion that the other is not proven is always available to the hearing body. In such a situation there are three choices, not just two, for the hearing body.

4. Establishment of the source of the prohibited substance in a sample is not mandated in order to prove an absence of intent. However, the likelihood of finding lack of intent in the absence of proof of source would be extremely rare, and if an athlete cannot prove source it leaves the narrowest of corridors through which the athlete must pass to discharge the burden which lies upon him.

5. The threshold for establishing sabotage as the reason for an ADRV is very high. Any proposed sabotage theory must be supported by reliable and credible evidence, not speculation or assertions of absence of motive. It is insufficient for an athlete to simply raise a hypothesis of sabotage without corroborating evidence and then to simply declare that sabotage is the only possible explanation.

Mr Aleksandr Krushelnitckii is a Russian Athlete competing in the Curling events at the 2018 PyeongChang Olympic Winter Games.

On 18 February 2018 the International Olympic Committee (IOC) reported an anti-doping rule violation against the Athlete after his A and B samples - provided on 12 and 13 February 2018 - tested positive for the prohibited susbstance Meldonium.

Following notification the Athlete accepted the test results and requested to be heard for the CAS Anti-Doping Division Panel (CAS ADD). The World Curling Federation (WCF) requested the Panel to order a provisional suspension beyond the period of the Games.

In a Partial Award the CAS ADD decided on 22 February 2018 to exclude the Athlete from the 2018 PyeongChang Olympic Winter Games and to disqualify his obtained results in the Mixed Doubles Curling event at the Olympic Winter Games.

Hereafter the WCF requested the Sole Arbitrator to impose a 4 year period of ineligibility on the Athlete for committing an anti-doping rule violation. The Athlete denied the intentional use of the substance and requested for a reduced sanction. 

Supported by expert witnesses the Athlete argued that the only possible explanation for the presence of Meldonium in his urine samples is that the Meldonium was somehow added into his food or drink after he arrived in the Olympic Village, without his knowledge or involvement. So likely he was the victim of sabotage and should not be suspended at all in accordance with Article 10.4 of the WCF ADR.

In this procedure the Sole Arbitrator addressed the following issues:

• As it has been established that an ADRV has occurred under Article 2.1 WCF ADR, has the Athlete established that the ADRV was not intentional under Article 10.2.1.1?
• Has the athlete established that he bears no fault or negligence under Article 10.4 WCF ADR?
• Has the Athlete established that he bears no significant fault or negligence under Article 10.5.1 WCF ADR?
• Has the athlete established that the mandatory period of ineligibility of four years should be reduced by reason of Prompt Admission under article 10.6.3, or by reason of the principle of proportionality?
• What is the quantum of any sanction that should be imposed?
• What is the commencement date of any period of ineligibility pursuant to Article 10.11 WCF ADR?

The Sole Arbitrator concludes:

• The Athlete has not established that the ADRV was not intentional under Article 10.2.1 WCF ADR.
• The Athlete has not established the source of the Prohibited Substance and is not entitled to elimination or reduction of the period of ineligibility under Article 10.4 or Article 10.5 WCF ADR.
• The Athlete has not established an entitlement to reduction of a period of ineligibility under Article 10.6.3 WCF ADR.
• The Athlete has not established that there should be any reduction in a period of ineligibility on the basis of the proportionality principle.

Therefore the CAS Anti-doping Division decides on 3 December 2018:

1.) The application of the World Curling Federation is granted and therefore, Mr Aleksandr Krushelnickii is sanctioned with a period of ineligibility of four years commencing on the date of his voluntary provisional suspension (i.e. 12 February 2018).

2.) The present award is rendered free of charge.

3.) (…).

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

CAS anti-doping Division (OG Rio) AD 16/009 & 013 International Olympic Committee (IOC) v. Qian Chen

• Modern Pentathlon
• Doping (hydrochlorothiazide)
• Automatic disqualification based on Art. 9 IOC ADR
• Proportionality of the disqualification

1. Art. 9 of the IOC Anti-Doping Rules (ADR) clearly states that an anti-doping rule violation in connection with an in-competition test automatically leads to disqualification of the result obtained in the competition in question. No flexibility is provided at all. The automatic disqualification pursuant to this article is nothing but the objective consequence of an objective fact, i.e. the adverse analytical finding. It is an application of a condition of ineligibility retroactively assessed. The aforementioned condition implies that the athlete cannot validly and legitimately compete in a competition of an individual sport during the Olympic Games if a prohibited substance is present in his or her body irrespective of whether the source of that presence can in anyway be linked to a fault or negligence of the athlete and/or irrespective of any effect that substance may have had on his or her performance or not.

2. Within the framework of Art. 9 IOC ADR, and as part of the anti-doping system and the need of the fight against doping in sports, the issue of proportionality has already been taken into account. Indeed, within this system the possibility exists that an athlete who bears no fault or negligence, nor she or he had a known intention to enhance the sportive performance will be automatically disqualified for an established anti-doping rule violation in connection with an in-competition test. However, it is not a question of culpability, but a consequence of circumstances in which an athlete did not meet the equal standards applicable to all the participants in the competition. The mere participation of the athlete in a competition while a prohibited substance was present in his or her body by itself establishes a situation of non-equality between him or her and the other participants in the competition, regardless of the question of culpability or intention.

Ms. Qian Chen is a Chinese Athlete competing in the Women’s Modern Pentathlon event at the 2016 Rio Olympic Games.

On 20 August 2016 and on 30 September 2016 the International Olympic Committee (IOC) reported 2 anti-doping rule violations against the Athlete after her A and B samples - provided on 17 August and on 19 August 2016 - tested positive for the prohibited substance Hydrochlorothiazide. Following notification the IOC filed an application with the CAS Anti-Doping Division and both cases were consolidated.

The Athlete accepted the test results, denied the intentional use of the substance and requested to uphold her results at the Games. She demonstrated with reports issued by two Chinese Labs that contaminated fruit sugar tablets were the source of the positive tests.

The IOC requested the Sole Arbitrator to exclude the Athlete from the 2016 Rio Olympic Games and to disqualify her results because of the 2 anti-doping rule violation she had committed. Further the IOC contended that the findings in the Chinese Lab reports were erroneous.

The Sole Arbitrator finds that the presence of a prohibited substance has been established in the Athlete's samples and accordingly that she committed an anti-doping rule violation. Under the IOC ADR disqualification of the Athlete's results is an automatic consequence of an anti-doping rule violation.

The Sole Arbitrator finds that the submissions of the Athlete in respect of the possible source and the possible explanation for the existence of the prohibited substance in her body are irrelevant to the case at hand, however will be examined thoroughly and dealt with by her International Federation in the process of the result management in terms of sanctions beyond the Games.

Therefore the Sole Arbitrator decides on 6 April 2017:

1.) The application CAS AD 16/09 is deemed withdrawn.

2.) The application CAS AD 16/13 is granted.

3.) The Athlete is found to have committed an anti-doping rule violation pursuant to Article 2.1 of the IOC ADR.

4.) The results obtained by the Athlete in the Women’s Modern Pentathlon event at the Olympic Games Rio 2016, in which she finished 4th, are disqualified with all consequences, including forfeiture of her Olympic diploma.

5.) The Athlete is ordered to return her diploma.

6.) The Union Internationale de Pentathlon Moderne is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.

CAS 2020/A/7247 Guillermo Bertola v. Fédération Internationale de Natation (FINA)

Related case:

FINA 2020 FINA vs Guillermo Bertola
June 17, 2020

• Aquatics (swimming)
• Doping (blood doping)
• Right of a CAS panel to issue a consent award and purpose of it
• Duty of the CAS panel to verify the bona fide of the settlement agreemen

1. In accordance with Article R56 para. 2, second sentence, of the CAS Code, a CAS panel is expressly allowed to issue an award embodying the terms of a settlement if all parties to the dispute agree. The panel’s endorsement of the settlement agreement and incorporation in an award serves the obvious purpose of rendering it easier for the parties to enforce the settlement agreement.

2. As any settlement “may” be embodied in an award, it is up to the CAS panel to verify the bona fide of the settlement agreement, so that the consent award mechanism is not manipulated by the parties as an instrument of fraud, and to acknowledge that the settlement terms are not contrary to public policy principles or mandatory rules.

In December 2019 FINA reported an anti-doping rule violation against the Argentine swimmer Guillermo Bertola after an ITA Expert Panel concluded that the Athlete’s hematological profile “highly likely” showed that he had used a prohibited substance or a prohibited method.

Consequently the FINA Doping Panel decided on 17 June 2020 to impose a 4 year period of ineligibility on the Athlete. The FINA Panel concluded that the Athlete failed to demonstrate that he had acted not intentionally when he accepted a blood transfusion from his mother. He also failed to establish grounds for a reduced sanction. 

Hereafter in July 2020 the Athlete appealed the FINA Decision with the Court of Arbitration for Sport (CAS) and thereupon in September 2020 the Parties in this case reached a Settlement Agreement. They requested the Panel to endorse this Settlement Agreement and to render a Consent Award.

The Parties agreed that the sanction of 4 years stands, yet the commencement of the period of ineligibility is backdated by 15 months based on the Athlete's timely admission. Following assessment the Panel deemed that this is a bona fide settlement of the dispute brought to its attention.

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

1.) The Settlement Agreement submitted to the CAS Court Office by the Parties on 30 October 2020 is hereby ratified by the CAS with the consent of the Parties and its relevant terms are incorporated into this arbitral award.

2.) The terms of the Settlement Agreement modify Items 6.2 and 6.3 of the decision of the Anti-Doping Panel of the Fédération Internationale de Natation of 17 June 2020.

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

(…)

6.) All other motions 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.

CAS 2017/A/5357 World Anti-Doping Agency (WADA) & Fédération Internationale de Basketball (FIBA) v. Hellenic National Council for Combating Doping (ESKAN) & Olga Chatzinikolaou

• Basketball
• Doping (cocaine metabolites)
• Standard of proof to rebut the intentional committing of an anti-doping rule violation
• Balance of probability and source of prohibited substance

1. The standard of proof by which an athlete can rebut the presumption of having intentionally committed an anti-doping rule violation or establish specific facts or circumstances is on the balance of probability.

2. The standard of proof of “balance of probability” has to be understood in the way that in case a CAS panel is offered several alternative explanations for the ingestion of the prohibited substance but it is satisfied that one of them is more likely than not to have occurred, the athlete has met the required standard of proof regarding the means of ingestion of the prohibited substance. It remains irrelevant that there may also be other possibilities of ingestion, as long as they are considered by the panel to be less likely to have occurred. In other words, for the panel to be satisfied that a means of ingestion is demonstrated on a balance of probability simply means, in percentage terms, that it is satisfied that there is a 51% chance of it having occurred. The athlete thus only needs to show that one specific way of ingestion is marginally more likely than not to have occurred.

In April 2017 the Hellenic National Council for Combating Doping (ESKAN) has reported an anti-doping rule violation against the basketball player Olga Chatzinikolaou after her A and B samples tested positive for the prohibited substance Cocaine.

Nevertheless the ESKAN Disciplinary Committee accepted the Athlete's explanation that there had been passive inhalation of Cocaine out-of-competition at an afternoon dinner more than 12 hours prior to the game and the Doping Control. Accordinghly the Disciplinary Committee decided on 17 July 2017 not to impose a sanction on the Athlete.

Hereafter in October 2017 the World Anti-Doping Agency (WADA) and the International Basketball Federation (FIBA) appealed the ESKAN Decision with the Court of Arbitration for Sport (CAS).

Furthermore the Athlete's samples were transferred from the Athens Lab to the Lausanne Lab. Reanalysis of these samples revealed that the found concentration of Cocaine was not consistent with her alleged passive inhalation of Cocaine more than 12 hours prior to the game.

WADA and FIBA requested the Panel to set aside the Appealed Decision and to impose a sanction of 4 years. They contended that the Athlete had the burden to demonstrate with corroboration evidence that the violation was not intentional and to prove how the Cocaine had entered her system.

The Athlete denied the intentional use of the substance and requested for a reduced sanction. She asserted that the violation occurred out-of-competition and unrelated to sport performance.

The Sole Arbitrator determines that it was undisputed that the presence of of prohibited substance had been established in the Athlete's samples and accordingly that she committed an anti-doping rule violation.

Following assessment of the evidence the Sole Arbitrator deems finds that the Athlete failed to establish, on a balance of probabilities, her lack of intent nor the source of the Cocaine and the metabolites found in her system.

Therefore the Court of Arbitration for Sport decides on 31 May 2018 that:

1.) The appeal filed on 3 October 2017 by the World Anti-Doping Agency with the Court of Arbitration for Sport against the decision of the Hellenic National Council for Combatting Doping (ESKAN) dated 17 July 2017 is admissible.

2.) The decision of the Hellenic National Council for Combatting Doping (ESKAN) dated 17 July 2017 is set aside.

3.) Ms Olga Chatzinikolaou committed an anti-doping rule violation according to Article 3.1 of the Greek law n° 4373.

4.) Ms Olga Chatzinikolaou is sanctioned with a four (4) year period of ineligibility, starting on 31 May 2018. The period of provisional suspension served by Ms Olga Chatzinikolaou between 13 April 2017 and 17 July 2017, shall be credited against the four-year period of ineligibility to be served.

(…)

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

CAS 2016/A/4596 Fédération Internationale de Football Association (FIFA) v. Saudi Arabian Olympic Committee (SAOC) & Saudi Arabian Anti-Doping Committee (SAADC) & Mohammed Mohammed Noor Adam Hawsawi

• Football
• Doping (Amfetamine)
• Admissibility of new arguments presented after the hearing
• Obligation to report the concentration of a non-threshold substance
• Differing concentrations of the prohibited substance in the A and B samples
• Intent
• Out-of-competition ingestion
• Context unrelated to sport performance
• Effect of a partly respected provisional suspension on the period of ineligibility

1. Arguments that were not contained in the answer and do not appear to have been advanced in any of the proceedings before the first instance body but were submitted for the first time after the conclusion of the CAS hearing in a document which the CAS panel in charge directed should be strictly limited to responding to the arguments and expert evidence adduced at that hearing are late and inadmissible.

2. For a non-threshold substance, it is the mere presence of the substance in an athlete’s body rather than the amount or concentration of the substance, that constitutes an anti-doping violation. There is nothing in the WADA International Standard for Laboratories (ISL) or the WADA Code that requires a laboratory to specify the concentration of a non-threshold substance in an A-sample or B-sample as a precondition to recording an adverse analytical finding. Article 6 (2) and (3) of the FIFA Anti-Doping Regulations also makes it clear that, in the case of a non-specified substance such as Amfetamine, it is the mere presence of the substance in a player’s bodily sample that establishes an anti-doping violation.

3. The analysis of a B-sample is intended to confirm the presence of a prohibited substance. However this does not mean that it is either intended or expected to yield identical values as the A-sample. The WADA ISL makes clear that, in the case of a non-threshold substance, the laboratory method for analysing the B-sample is not aimed at having identical results or at gaining information on the background or quantification, but only at confirming the presence of the prohibited substance. In other terms, the ISL only requires the identification in the B-sample of the same prohibited substance that was found in the A-sample, and it does not require the chromatograms or the quantities or the ‘background noises’ to be exactly the same.

4. An athlete who is aware that the substance s/he is consuming has powerful pharmacological properties but takes no steps to verify the origin or content of the substance, purchases it from unknown vendors in unlabelled packages, with no indication of the ingredients or origin must know or have known that there is a significant risk that his/her consumption of the substance involves a significant risk of anti-doping violation.

5. It is extremely difficult, if not impossible, to infer the date of ingestion from the level of concentration in a sample without also knowing the size of the dose and further information about the individual’s metabolic rate. Therefore, the mere fact that the concentration of a substance in a sample is relatively low does not establish that it was ingested out of competition.

6. The ingestion of a prohibited substance such as Amfetamine with a view to alleviate chronic joint pain is not “unrelated to sport performance”. Professional footballers are regularly required to engage in high impact, high intensity cardiovascular exercise which places considerable physical demands upon the individual’s body and joints. The effect of a chronic joint condition is likely to be at its most acute – and to have the greatest inhibiting impact – during such periods of intense physical activity. Against this backdrop, the deliberate use of a powerful artificial stimulant to reduce or remove chronic joint pain is likely to have a significant and non-incidental effect on sport performance. Accordingly, the consumption of the substance cannot be characterised as being “unrelated to sport performance”.

7. If an athlete only respected some but not all of a provisional suspension, s/he is not entitled to receive credit for any period of the provisional suspension. An athlete’s obligation to respect a provisional suspension in order to receive credit for that period of ineligibility applies to the provisional suspension as a whole and not merely to a portion of it. It is incumbent upon the athlete, as the subject of a provisional suspension, to abide by the terms of the suspension and to exercise due care and responsibility in ascertaining what sporting activities and events fall within its scope.

In November 2015 the Saudi Arabian Anti Doping Committee (SAADC) has reported an anti-doping rule violation against the football player Mohammed Mohammed Noor Adam Hawsawi after his A and B samples tested posititive for the prohibited substance Amfetamine.

Consequently on 28 February 2016 the SAOC Hearing Panel decided to impose a 4 year period of ineligibility on the Athlete, starting on the date of the decision. Following the Athlete's appeal on 17 April 2016 the SAOC Appeal Panel decided to annul the sanction of 4 years. Instead the Appeal Panel imposed only a period of ineligibility for the time already served by the Athlete until the date of the Appeal Decision.

Hereafter the International Football Federation (FIFA) appealed the SAOC Appeal Panel Decision with the Court of Arbitration for Sport (CAS). FIFA requested the Panel to set aside the SAOC Appeal Panel Decision and to impose a 4 year period of ineligibility on the Athlete.

The Athlete denied that he had committed an anti-doping rule violation nor that he had acted intentionally. He requested the Panel to impose no period of ineligiblity or alternatively only a reduced sanction with credit for the time already served.

Also the Athlete disputed the validity of the test results and argued that the Lausanne Lab failed to specify the concentration of Amfetamine in his B-sample. He asserted that the Lab misidentified the presence of Amfetamine due to incorrect parameters were used during chemical analysis of a urine sample. Instead the Lab didn't identifiy the presence of the non-prohibited substance β-Methylphenethylamine in his samples.

Following assessment of the evidence the Panel concludes that:

• the Laboratory carried out the tests of the Athlete’s A-sample and B-sample in accordance with the WADA ISL and did not mistakenly identify a non-prohibited substance as Amfetamine; and
• the Laboratory was not required to specify the concentration of Amfetamine in the Player’s B-sample, which was irrelevant to the question whether he had committed an anti-doping violation.

In view of the Athlete's conduct the Panel concludes that the Athlete's anti-doping rule violation was intentional whereas there are a number of facts that substantially undermined the credibility of the Athlete's version of events.

The Panel deems that the Athlete failed to demonstrate that the substance was used out-of-competition and in a context unrelated to sport performance. Furthermore the Panel considers that the Athlete had participated in two matches during the period of his provisional suspension.

Therefore the Court of Arbitration for Sport decides on 1 March 2017 that:

1. The appeal filed by the Fédération Internationale de Football Association on 9 May 2016 is upheld.
2. The decision rendered by the Appeal Panel of the Saudi Arabian Olympic Association dated 17 April 2016 is set aside.
3. Mohammed Mohammed Noor Adam Hawsawi is suspended for a period of four (4) years as from 15 December 2016, with credit given for any period of suspension already served.
4. (…).
5. (…).
6. All other motions or prayers for relief are dismissed.

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

Related case:

World Athletics 2021 WA vs Chijindu Ujah
September 29, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. A sports body is not a national or international law enforcement agency. Its investigatory powers are substantially more limited than the powers available to such bodies. Since the sports body cannot compel the provision of documents or testimony, it must place greater reliance on the consensual provision of information and evidence, and on evidence that is already in the public domain. The CAS panel’s assessment of the evidence must respect those limitations. In particular, it must not be premised on unrealistic expectations concerning the evidence that the sports body is able to obtain from reluctant or evasive witnesses and other sources. A sports body may properly invite the CAS panel to draw inferences from the established facts that seek to fill in gaps in the direct evidence. The CAS panel may accede to that invitation where it considers that the established facts reasonably support the drawing of the inferences. So long as the CAS panel is comfortably satisfied about the underlying factual basis for an inference that an athlete has committed a particular anti-doping rule violation (ADRV), it may conclude that the sports body has established an ADRV notwithstanding that it is not possible to reach that conclusion by direct evidence alone.

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

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

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

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

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

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

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

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

The Sole Arbitrator addressed in this case the following issues:

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

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

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

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