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

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

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

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

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

This Award is concerned with three preliminary issues:

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 Is the appeal deemed withdrawn pursuant to Article R51 of the CAS Code on the basis that it was filed beyond by date permitted therein?

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

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

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

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

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

CAS 2018/A/5620 World Anti-Doping Agency (WADA) v. Hungarian National Anti-Doping Organization (HUNADO) & Darja Dmitrijevna Beklemiscseva

• Skating
• Doping (furosemide)
• Occurrence of an ADRV and standard sanction for a specified substance
• Burden and standard of proof regarding the non-significance of the fault
• No reduction of the standard sanction due to the lack of establishment of the origin of the prohibited substance

1. An Anti-Doping Rule Violation (ADRV) is established where it is undisputed that the athlete’s A Sample revealed the presence of a specified substance. According to Article 10.2 of the HUNADO Anti-Doping Regulation (ADR), the standard sanction for an ADRV involving a specified substance is 2 (two) years, unless the Anti-Doping Organization can establish that the ADRV was intentional.

2. Where the intentionality of the commission of the ADRV cannot be demonstrated, in order for the athlete to benefit from a lower sanction than the otherwise two years ineligibility, he or she must establish that he or she bears No Significant Fault or Negligence. It naturally follows that the athlete must also establish how the substance entered his or her body. The standard of proof is the balance of probabilities. This standard requires the athlete to convince the panel that the occurrence of the circumstances on which the athlete relies is more probable than their non-occurrence.

3. In order to establish the origin of a Prohibited Substance by the required balance of probability, an athlete must provide actual evidence as opposed to mere speculation. If the athlete’s explanation has virtually no evidentiary basis supporting it, the athlete has not met his or her burden of proof regarding the origin of the prohibited substance that entered his or her body.

On 22 January 2018 the Doping Committee of the Hungarian Anti-Doping Group (HUNADO) decided to impose a 7 month period of ineligibility on the Russian figure skater Darja Dmitrijevna Beklemiscseva after her sample tested positive for the prohibited substance Furosemide.

Hereafter in March 2018 the World Anti-Doping Agency (WADA) appealed the HUNADO Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a sanction of 2 years on the Athlete.

WADA contended that the Athlete had committed an anti-doping rule violation and that she failed to demonstrate that the violation was not intentional nor the origin of the prohibited substance. The Athlete had only provided an unspecific and unsubstantiated explanation with inconsistencies that was clearly insufficient to establish the origin of the Furosemide.

Further WADA asserted that the concentration Furosemide found in the Athlete's sample was not consistent with the Athlete's alleged ingestion of only a residual amount of Furosemide 2 days before the doping control.

Although duly invited both HUNADO and the Athlete failed to provide any submission or communication on this matter.

The Sole Arbitrator finds that it is undisputed that the presence of a prohibited substance has been established in the Athlete's sample and accordingly that she committed an anti-doping rule violation. Considering the Athlete's explanation the Sole Arbitrator deems that the she has not met her burden of proof how the Furosemide had entered her system nor grounds for a reduced sanction.

Therefore the Court of Arbitration for Sport decides on 13 August 2018 that:

1. The appeal filed on 12 March 2018 by the World Anti-Doping Agency against the Decision rendered by the Doping Committee of the Hungarian National Anti-Doping Organization on 22 January 2018 is upheld.
2. The decision rendered by the Doping Committee of the Hungarian National Anti-Doping Organization on 22 January 2018 is set aside.
3. Ms Darja Dmitrijevna Beklemiscseva is suspended for a period of two (2) years, starting from 1 December 2017.
4. All competitive results earned by Ms Darja Dmitrijevna Beklemiscseva during the period between 25 October 2017 and 30 November 2017 are disqualified, with all resulting consequences (including forfeiture of any titles, awards, medals, profits, prizes, and appearance money).
5. (…).
6. (…).
7. All further and other requests for relief are dismissed.

CAS 2018/A/5651 Georgios Kostakis v. Hellenic National Council for Combating Doping (ESKAN)

• Paralympic athletics
• Doping (Selective Androgen Receptors Modulator - SARMS)
• Departure from testing procedures in case of partial sample
• Burden and standard of proof for causality between departure and positive finding
• Burden and standard of proof for absence of intent
• Burden of proof for source of prohibited substance

1. Provided the Doping Control Form contains a box entitled ‘Partial Sample’, this box must be completed by the Doping Control Officer whenever a partial sample is obtained during the sampling process. Failure to tick the box results in errors and violations during sample collection process which constitute a departure from the International Standard for Testing and Investigation (ISTI).

2. In case an athlete succeeds in establishing a departure from the testing procedures it is further to the athlete to prove, on the balance of probability, that the departure could have reasonably caused the prohibited substance found in his or her sample. In this context, the athlete must adduce cogent evidence of supporting facts that prove that it is more likely than not that the departure was the cause of the adverse analytical finding.

3. The burden of proof with respect to intent lies with the athlete, who has the duty to establish, on the balance of probability, that the anti-doping rule violation was not intentional; i.e. the athlete must convince the Panel that the occurrence of the circumstances on which he/she relies is more probable than their non-occurrence.

4. In order to establish the source of the prohibited substance it is not sufficient for the athlete to protest innocence and to suggest that the substance must have entered his/her body inadvertently from some contaminated food or water. Rather, the athlete must adduce concrete and credible evidence to demonstrate that a particular supplement, medication or other product taken contained the substance in question.

On 14 February 2017 the Board of Directors of the Hellenic National Council for Combating Doping (ESKAN) decided to impose a 4 year period of ineligibility on the parathlete Georgios Kostakis after he tested positive for the prohibited substance LGD-4033 (Ligandrol).

Hereafter the Athlete's appeal with the Supreme Council of Dispute Resolution in Sport (ASEAD) was dismissed and in March 2018 the Athlete appealed the ESKAN decision with the Court of Arbitration for Sport (CAS).

The Athlete denied the intentional use of the substance and argued that he was tested before without issues. He assumed that a contaminated product was the source of the substance whereas ESKAN had denied any support for analysis of his food supplements in question.

He asserted that his Due Process Rights were violated and disputed the validity of the test result because of the errors and departures of the ISTI that had occurred during the sample collection. Further he claimed that the substance LGD-4033 was not included in the WADA 2016 Prohibited List.

The Sole Arbitrator considers that any possible infringement of the Athlete’s due process rights committed by ESKAN are hereby cured and thus insignificant for this procedure.

The Arbitrator observes that the substance LGD-4033 was included on the WADA 2016 Prohibited List and finds that ESKAN has established that a prohibited substance was present in the Athlete's sample.

Based on the evidence in this case the Sole Arbitrator finds that the Athlete has demonstrated on a balance of probabilities that there were indeed errors and violations committed to the collection of the Athlete's partial sample that led to a departue of the ISTI. Nevertheless the Arbitrator concludes that the Athlete has not demonstrated on the balance of probabilites that the departure of the ISTI could have reasonably led to the positive test result.

Further the Sole Arbitrator holds that the Athlete failed to establish that the violation was not intentional and he rejects the Athlete's assertion that the sanction of 4 years was unlawful, harsh, unreasonable and disproportionate.

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

1.) The appeal filed on 28 March 2018 by Mr. Georgios Kostakis against the 14 February 2017 Decision of the Hellenic National Council for Combating Doping is dismissed.

2.) The decision rendered by the Hellenic National Council for Combating Doping on 14 February 2017 is confirmed.

(…)

5.) All further and other requests for relief are dismissed.

CAS 2019/A/6109 Dayana Dimitrova v. International Weightlifting Federation (IWF)

• Weightlifting
• Doping (furosemide)
• Validity of a decision rendered by the competent IWF Anti-
• Doping Administrator
• IWF’s right to test an athlete irrespective of his/her suspension
• Sanction applicable to a second anti-doping rule violation

1. There is no reason for a decision to be declared invalid where such decision has been taken by the competent IWF Anti-Doping Administrator in accordance with the IWF Anti-Doping Program (ADP).

2. Furosemide is prohibited at all times. Therefore it does not matter whether the athlete was in or out of competition when the sample was collected. Under the IWF ADP there is a right in the IWF to test an athlete irrespective of his/her suspension, i.e. the athlete is subject to in- and out-of-competition testing at all relevant times. The IWF has express authority to test athletes competing in IWF events, and there can be no dispute that athletes are subject to that regime when they enter IWF events, whether that entry is appropriate or not. In fact, they consent to that jurisdiction as a condition of entry under the IWF rules. To consider otherwise would mean that potentially any athlete who is provisionally suspended for having committed a prior ADRV, and violates the terms of that suspension by competing, could benefit with impunity for any ADRV committed at such a competition. This would result, in essence, in an anti-doping rules pause with respect to that athlete. Opening the door to such a possibility shall be rejected.

3. An athlete who admitted to having taken a product containing Furosemide, i.e. a Specified Substance prohibited at all times, “in regard to” her “menstrual problems” did so intentionally. The fact to have taken said product despite already having been sanctioned for a positive sample due to the same substance, demonstrates tremendous disregard of her duty to avoid ingesting prohibited substances. Accordingly, the athlete committed her second ADRV and should be declared ineligible for a period of eight (8) years.

In March 2017, in May 2017 and in November 2018 3 seperate anti-doping rule violations (ADRVs) were reported against the Bulgarian weightlifter Dayana Dimitrova after her samples tested positive for the prohibited substance Furosemide. The samples were collected on 20 March 2017 (1st ADRV); 5 April 2017 (2nd ADRV; and on 20 October 2018 (3rd ADRV).

The Athlete already served a sanction of 6 months for the committed first ADRV until 20 September 2017. Meanwhile a provisional suspension was ordered due to the reported second ADRV committed on 20 March 2017. Yet the Athlete not only committed a 3rd ADRV on 20 October 2018, she also breached the provisional suspension ordered for the reported second ADRV committed on 20 March 2017.

Consequently on 26 November 2018 the IWF Legal Council decided:

• to impose a 2 year period of ineligibility on the Athlete for the ADRVs committed on 20 March 2017 and 5 April 2017;
• to impose an 8 year period of ineligibility on the Athlete for the committed ADRV committed on 20 October 2018.

Hereafter in January 2019 the Athlete appealed the IWF decision of 26 November 2018 with the Court of Arbitration for Sport (CAS) and requested the Panel to annul the Appealed Decision.

The Athlete disputed the competence of the IWF because the Appealed Decision was rendered by the invalid IWF Anti-Doping Administrator. Further she argued that the positive test of 20 October 2018 must be considered as a second ADRV despite the Athlete was provisionally suspended at that time.

The Panel establishes that the Appealed Decision was valid and had been rendered by the competent IWF Anti-Doping Administrator. The Athlete's ADRVs committed on 20 March and 5 April 2017 must be considered a single first ADRV.

The Panel holds that the Athlete was provisionally suspended on 2 May 2017 and that it was never lifted despite the failure of the IWF to timely act on the reported anti-doping rule violation of 5 april 2017 and the obvious lack of communication between te anti-doping organisations involved.

The Panel deems that the Athlete had admitted the use of the Furosemide and did so intentionally as treatment for her condition whereas she already had been sanctioned for using this prohibited substance.

Accordingly the Panel concludes that the Athlete had committed a second ADRV and it upholds the Appealed Decision for the imposition of an 8 year period of ineligibility, starting on the date of the sample collection, i.e. on 20 October 2018.

Therefore The Court of Arbitration for Sport decides on 18 July 2019 that:

1. The appeal filed on 21 January 2019 by Ms Dayana Dimitrova against the decision rendered by the IWF Anti-Doping Administrator on 28 December 2018 is dismissed.
2. The decision rendered by the IWF Anti-Doping Administrator on 28 December 2018 is confirmed.
3. (…).
4. (…).
5. All other motions or prayers for relief are dismissed.

CAS 2019/A/6530 Jeffrey Brown v. USADA
CAS 2019/A/6531 Alberto Salazar v. USADA

Related cases:

• AAA 2017 No. 01 17 0003 6197 USADA vs Jeffrey Brown
  September 30, 2019
• AAA 2017 No. 01 17 0004 0880 USADA vs Alberto Salazar
  September 30, 2019

Dr. Jeffrey Brown is a physician and a consultant from 2009-2012 for the Nike Oregon Project (NOP), the NOP Athletes and Mr. Alberto Salazar.

Mr. Alberto Salazar is an American track coach and former world-class long-distance runner and the head coach of the NOP in Portland, Oregon.

In March 2017 USADA alleged that Dr. Brown was generally involved in the prescription of Testosterone by Dr. Brown to Mr. Salazar; and Dr. Brown’s was involvement in a Testosterone experiment conducted at the NOP facilities in June and July, 2009 (the Testosterone Experiment). Dr. Brown was involved in the administration of L-carnitine infusions in 2011 and 2012; and actions taken by Dr. Brown and his counsel in connection with the investigation and adjudication of the foregoing claims.

Also in March 2017 USADA alleged that Mr. Alberto Salazar was involved in the infusions/injections of L-carnite administered to the Athlete Steve Magness and NOP athletes; possession and use of Testosterone gel and tampering together with his attorneys during the investigation and arbitration. During the proceedings USADA did not pursue the Administration or Attempted Administration of Testosterone for personal use.

On 30 September 2019 the Tribunal of the American Arbitration Association (AAA) decided to impose a 4 year period of ineligibility on Dr. Jeffey Brown and Mr. Salazar for committing multiple anti-doping rule violations:

Dr. Jeffrey Brown:

• Complicity in trafficking of Testosterone
• Administration of a prohibited method
• Tampering of records

Mr. Alberto Salazar:

• Trafficking of Testosterone
• Administration of a prohibited method
• Tampering

Hereafter in October 2019 both Dr. Jeffrey Brown and Mr. Alberto Salazar appealed the AAA Decisions with the Court of Arbitration for Sport (CAS) and requested for a consolidated procedure.

Dr. Jeffrey Brown and Mr. Salazar challenged the Appealed Decisions and denied they had committed any anti-doping rule violations.

USADA contended regarding Dr. Brown that:

• Dr. Brown’s prescriptions of Testosterone to Mr. Salazar were not medically justified and his involvement in the Testosterone Experiment amounted to an ADRV.
• Dr. Brown committed an ADRV in administering a prohibited method to Mr. Magness and committed ADRVs of administration or attempted administration in respect of NOP athletes.
• Dr. Brown inappropriately altered Mr. Magness and NOP athletes’ patient records, elicited false testimony from witnesses and was involved in establishing a false narrative to mislead USADA into believing that NOP athletes received their L-carnitine administrations via syringes rather than infusion bags.

USADA contended regarding Mr. Salazar that:

• Mr. Salazar’s possession of Testosterone was not medically justified and his application of Testosterone (a prohibited substance) to his sons in the Testosterone Experiment amounted to an ADRV;
• Mr. Salazar committed an ADRV of administration, attempted administration or complicity in Dr. Brown’s administration of a prohibited method to Mr. Magness and committed ADRVs of administration or attempted administration in respect of NOP athletes;
• Mr. Salazar committed ADRVs of tampering through a range of conduct, including giving false testimony during depositions held in relation to USADA’s anti-doping investigation, eliciting false testimony from witnesses and establishing a false narrative to mislead USADA into believing that NOP athletes received their L-carnitine administrations via syringes rather than infusion bags.

After assessment of all of the submissions and evidence presented throughout the cours of the proceedings the Panel dismissed specific charges against Mr. Salazar and Dr. Brown due to USADA had not established that they had contravened Articles of the WADC regarding Trafficking, Complicity, Possession, Administration and Tampering .

Nevertheless the Panel made the following findings:

• Dr. Brown contravened Article 2.8 of the 2009 WADC (Complicity) by assisting, encouraging, aiding, abetting or otherwise engaging in complicity in relation to Mr. Salazar’s possession of testosterone in furtherance of the Testosterone Experiment.

• Dr. Brown contravened Article 2.7 of the 2009 WADC (Trafficking) by sending or delivering Testosterone to Mr. Salazar in relation to the Testosterone Experiment, either by delivering Testosterone to Mr. Salazar (i) for use in the Testosterone Experiment; or (ii) to replenish Testosterone used by Mr. Salazar in the Testosterone Experiment.

• Dr. Brown contravened Article 2.8 of the 2009 WADC (Administration) by administering a Prohibited Method to Mr. Magness on in November 2011.

• Dr. Brown contravened Article 2.5 of the 2009 WADC (Tampering) with respect to the issue of L-carnitine infusions/syringes.

• Mr. Salazar contravened Article 2.6.2 of the 2009 WADC (Possession) by possessing Testosterone in furtherance of the Testosterone Experiment.

• Mr. Salazar contravened Article 2.8 of the 2009 WADC (Administration by complicity) by assisting, encouraging and otherwise being complicit in Dr. Brown’s administration of a Prohibited Method to Mr. Magness in November 2011.

• Mr. Salazar contravened Article 2.5 of the 2009 WADC (Tampering) with respect to the issue of L-carnitine infusions/syringes.

Therefore Court of Arbitration for Sport decides on 15 September 2021 that:

1. Dr. Jeffrey Brown committed the following anti-doping rule violations:

• a.) Complicity (2009 WADC Article 2.8) in Mr. Alberto Salazar’s possession of Testosterone in furtherance of the Testosterone Experiment;
• b.) Trafficking (2009 WADC Article 2.7) of Testosterone to Mr. Alberto Salazar in relation to the Testosterone Experiment;
• c.) Administration (2009 WADC Article 2.8) of a Prohibited Method, being an infusion in excess of the permitted volume, to Mr. Steve Magness;
• d.) Tampering (2009 WADC Article 2.5) with the Doping Control Process with respect to the issue of L-carnitine infusions/syringes.

2. The appeal filed by Dr. Jeffrey Brown on 21 October 2019 and the “cross-appeal” filed by USADA on 29 April 2021 are otherwise dismissed and the period of ineligibility imposed by the Brown AAA Panel, being a period of ineligibility of four years, is upheld.

3. Mr. Alberto Salazar committed the following anti-doping rule violations:

• a.) Possession (2009 WADC Article 2.6) of Testosterone in furtherance of the Testosterone Experiment;
• b.) Complicity (2009 WADC Article 2.8) in Dr. Jeffrey Brown’s Administration of a Prohibited Method to Mr. Steve Magness;
• c.) Tampering (2009 WADC Article 2.5) with the Doping Control Process with respect to the issue of L-carnitine infusions/syringes.

4. The appeal filed by Mr. Alberto Salazar on 21 October 2019 and the “cross-appeal” filed by USADA on 29 April 2021 are otherwise dismissed and the period of ineligibility imposed by the Salazar AAA Panel, being a period of ineligibility of four years, is upheld.

5. (…).
6. (…).
7. All other prayers for relief in the appeals and cross-appeals are dismissed.

CAS 2021/O/7668 World Athletics v. Danil Lysenko

Related cases:

• World Athletics 2019 WA vs Alexander Parkin
  February 16, 2021
• World Athletics 2019 WA vs Artur Karamyan & Dmitry Shlyakhtin
  February 8, 2021
• World Athletics 2019 WA vs Elena Ikonnikova (1)
  March 6, 2020
• World Athletics 2019 WA vs Elena Ikonnikova (2)
  February 16, 2021
• World Athletics 2019 WA vs Elena Orlova (1)
  August 21, 2020
• World Athletics 2019 WA vs Elena Orlova (2)
  February 16, 2021

In August 2018 the Athletics Integrity Unit (AIU) of World Athletics has reported an anti-doping rule violation of Tampering against the Russian high jumper Danil Lysenko after the AIU had opened an investigation against the Athlete regarding his Whereabouts Failures.

With the assistance of the Russian Anti-Doping Agency (RUSADA) the AIU discovered that the Athlete had forged medical documents to the AIU. It also concluded that RusAF officials had been involved in the provision of false explanations and forged documents to the AIU in order to explain whereabouts failures by the Athlete. 

As a result in November 2019 the AIU issued charges against Mr Dmitry Shlyakhtin (RusAF President), Mr Artum Karamyan (RusAF Board Member), and several other RusAF officials for committing multiple anti-doping rule violations: 

• Tampering or Attempted Tampering
• Complicity
• Refusal or failure to report an Anti-Doping Rule Violation
• Refusal or failure to cooperate with investigations.

All those charged by the AIU have been sanctioned and their decisions are now final and binding.

In a separate proceeding, the athlete’s coach, Evgeniy Zagorulko, admitted to violations of Tampering and Complicity in connection with the AIU’s investigation into the Lysenko whereabouts case and accepted a 4-year period of ineligibility under the applicable rules. The coach provided Substantial Assistance to the AIU in connection with the charges against Shlyakhtin and Karamyan.

The AIU referred the case against the Athlete Danil Lysenko to the Court of Arbitration for Sport (CAS) for a first instance hearing panel. 

The CAS Panel concludes that the Athlete had committed multiple breaches of the Anti-Doping rules including whereabouts failures and tampering with the results management process.

The CAS Panel deems that 2 years of the 6 year period of ineligibility should be suspended on account of the Substantial Assistance that the athlete provided to the AIU in bringing charges against former RusAF officials, Dmitry Shlyakhtin and Artur Karamyan.

Therefore the Court of Arbitration for Sport (CAS) decides on 21 May 2021 that:

1. The request for arbitration filed by World Athletics against Mr Danil Lysenko on 1 February 2021 is partially upheld.
2. Mr Danil Lysenko is found to have committed (i) a first anti-doping rule violation pursuant to Article 2.4 (Whereabouts Failures) of the 2018 IAAF Anti-Doping Rules; and (ii) a second anti-doping rule violation pursuant to Article 2.5 (Tampering and/or Attempted Tampering) of the 2018 and 2019 IAAF Anti-Doping Rules.
3. Mr Danil Lysenko is subject to a two (2) year period of ineligibility with respect to the first anti-doping rule violation (Article 2.4) and a four ( 4) year period of ineligibility
   with respect to the second anti-doping rule violation (Article 2.5).
4. The total period of ineligibility with respect to the first and second anti-doping rule violations is six ( 6) years, starting as of the date of this Award, with credit given for the
   ineligibility period already served by Mr Danil Lysenko (i.e. from 3 August 2018).
5. The total period of ineligibility to be served by Mr Danil Lysenko shall be suspended for a period of twenty-four (24) months in consideration of the Substantial Assistance
   provided by Mr Lysenko to the Athletics Integrity Unit, pursuant to Article 10.7.1 of the Anti-Doping Rules of the World Athletics in force from 1 January 2021.
6. All competitive results of Mr Danil Lysenko as from 1 July 2018 until 2 August 2018 are disqualified, with all resulting consequences (including forfeiture of medals, titles,
   ranking points and prize and appearance money).
7. The costs of the arbitration, to be determined and served to the Parties by the CAS Court Office, shall be borne in their entirety by World Athletics.
8. World Athletics and Mr Danil Lysenko shall bear their own legal costs.
9. All other motions or prayers for relief are dismissed.

CAS 2021/A/7983 Brianna McNeal v. World Athletics (WA) & CAS 2021/A/8059 WA v. Brianna McNeal

Related case:

World Athletics 2021 WA vs Brianna McNeal
April 21, 2021

• Athletics (hurdles)
• Doping (tampering with any part of the doping control)
• Applicable law and lex mitior
• Assessment of the evidence
• Conduct to be considered tampering
• Sanction for a tampering ADRV as a first offence and exceptional circumstances
• Degree of fault
• Applicable sanction to multiple violations
• Application of the principle of proportionality

1. An exception to the principle of application of the law at the time of the facts exists if lex mitior doctrine applies. The principle of lex mitior occupies a central place in sports law. There is no discretion on the application of the lex mitior principle once it is found that the case appropriately falls within its scope. Lex mitior principle is relevant and applicable when and if the new rules (i) provide for a reduced sanction; and/or (ii) redefine the disciplinary offense. The 2021 WA Anti-Doping Rules (ADR) that enshrines the lex mitior principle offers more favourable terms to athletes with respect to the imposition of sanctions for violations of tampering offences. Equally, the new rules afford considerably greater flexibility in connection with the consequences to be drawn from a finding of multiple anti-doping rule violations.

2. The “evaluation of the evidence” concept refers to the judicial process of weighing/assessing the evidence on the record (appréciation des preuves). Under Swiss arbitration law, the deciding body is free in its evaluation of the evidence (libre appréciation des preuves). This principle is expressly recalled by Article 9(1) of the IBA Rules of Evidence. The assessment of the evidence contributes significantly to the decision-making. CAS panels need to have strong evidence that certain facts occurred in a given manner and the evidence also has to satisfy CAS panels in the same sense. The relevant circumstances of the case assessed individually and/or combined, commonly known as the context, are major elements to reach this conclusion.

3. It is not necessary for a Doping Control Process to be actually subverted, in order for a tampering offence to exist (violation of Rule 2.5 2021 WA ADR). It suffices, for that purpose, that the conduct in question could, in theory, subvert the said process. The commission of a tampering offence always requires satisfactory proof that the offender intended to subvert the investigation, even if the latter was unaware that he was violating an anti-doping provision. In the specific context of the rules, intent does not need to be direct in the sense that subverting the doping control process was the sole and only driving motive behind the athlete’s actions. Rather, it is sufficient for there to be intent that the athlete recognises the consequences of his or her actions and accepts that such consequences have the potential to subvert the process. A violation of Rule 2.5 2021 WA ADR cannot be established merely by reference to the examples included in the rule. Therefore, a finding that the offence has actually been committed must include consideration of the subjective aspects of the case. In this respect, the alteration by an athlete of the dates of medical notes issued by a clinic that is intended to explain a missed test cannot only be considered to be falsification of a document under WA ADR, but also to a conduct that tends to/is capable of subverting the Doping Control Process.

4. Under Rule 10.3.1 2021 WA ADR, a reduction of the 4 years period of ineligibility applicable for a first tampering offence in a range from 2 years to 4 years is possible if the athlete can establish exceptional circumstances depending on the athlete’s degree of fault. The specific meaning of “exceptional circumstances” is not defined in said rule. Yet, some examples of what can be considered to be “exceptional circumstances” are provided in the context of other rules. The interpretation of the expression “exceptional circumstances” must be restrictive so as only to include very unusual or abnormal situations. In this respect, the conduct of an athlete that without any doubt failed to prove that he did not intend to subvert the Doping Control Process, can nevertheless betray a certain level of psychological disturbance, which does not, however, alter the seriousness of his acts and the fact that he committed an anti-doping rule violation (ADRV). In this regard, psychological factors may amount to an abnormality that is “not within the bounds of normal conduct” and therefore to exceptional circumstances that justify that the penalty imposed on the athlete for the Tampering ADRV, when fixed on a first offence basis, varies according to the athlete’s degree of fault.

5. In order to determine into which category of fault – significant, normal or light – a particular case might fall, it is helpful to consider both the objective and the subjective level of fault. The objective element describes what standard of care could have been expected from a reasonable person in the athlete’s situation. The subjective element describes what could have been expected from that particular athlete, in light of his personal capacities. In this respect, an athlete who acted, in objective terms, with a “significant degree of fault” can, due to the existence of exceptional circumstances closely linked to the subjective aspects of the case, have his degree of fault reduced from a “significant degree of fault” to a “normal degree of fault”.

6. In the context of a second ADRV, the minimum level of the penalty to be imposed is the sum total of the period imposed for the athlete’s first ADRV and the period of ineligibility that would be imposed on the athlete for the second ADRV, on a first offence basis. The maximum limit is twice the period of ineligibility that would be imposed on the athlete for the second ADRV. The specific penalty applicable must be fixed within this range, by reference to all the circumstances and the athlete’s degree of fault with regard to the second offence.

7. The period of ineligibility sanction to be imposed on the athlete may not be further reduced under the principle of proportionality if the elements of such principle have already been dully considered in the context of the second ADRV as per the 2021 WADC. Moreover, only the most extreme and rare cases, where sanctions are clearly disproportionate and unfair, allow for an autonomous consideration of the principle of proportionality.

On 21 April 2021 the World Athletics Disciplinary Tribunal decided to impose a 5 year period of ineligibility on the Athlete for Tampering.

In this matter the AIU had established that the Athlete had provided false statements and in support had produced falisified documents in order to explain her missed test on 12 January 2020. When interviewed in August 2020 the Athlete admitted that she had altered documents.

In First Instance the Disciplinary Tribunal Panel regarded that the subjective elements of this case are very specific and exceptional. The Panel considered that the personal circumstances and trauma the Athlete was suffering at the time she committed her Tampering violation justify a reduction of her degree of Fault and reduction of the period of ineligibility for her second anti-doping rule violation.

Hereafter both the Athlete and World Athletics appealed the Decision of 21 April 2021 with the Court of Arbitratration for Sport (CAS).

After assessment of the case the CAS Panel dismissed the appeal filed by the Athlete Brianna McNeal and partially upheld the appeal filed by World Athletics. The Challenged Decision is confirmed, with one additional element.

Therefore the Court of Arbitration for Sport decides on 7 July 2021 that:

1. The appeal filed by Ms Brianna McNeal on 21 May 2021 against the decision of the World Athletics Disciplinary Tribunal dated 21 April 2021 is dismissed.
2. The appeal filed by World Athletics on 17 June 2021 against the decision of the World Athletics Disciplinary Tribunal dated 21 April 2021 is partially upheld.
3. The decision of the World Athletics Disciplinary Tribunal dated 21 April 2021 is confirmed in full, with the following additional item:
   
   

   "All competitive results obtained by Ms. Brianna McNeal between 13 February 2020 and 14 August 2020 shall be disqualified with all resulting consequences includingforfeiture of any medals, titles, points, prize money and prizes."
   
   

4. This Award is pronounced without costs, except for the CAS Court Office of CHF 1 '000 (one thousand swiss francs) paid by Ms Brianna McNeal and World Athletics which is retained by the CAS.
5. Each Party shall bear its own legal and other costs incmTed in connection with these arbitration proceedings.
6. All other motions or prayers for relief are dismissed.

CAS 2021/O/7977 World Athletics (WA) v. Shelby Houlihan

• Athletics (middle-distance)
• Doping (nandrolone/19-norandrosterone (19-NA))
• Prerogative of a laboratory
• Burden of proof of a lack of intention to commit an Anti-
• Doping Rule Violation (ADRV)
• Rebuttal of the presumption that an ADRV is intentional through hair analysis and polygraph testing
  
  

1. Irrespective of whether or not an athlete invoked the ingestion of boar offal as a possible explanation for an adverse analytical finding, it is a laboratory’s prerogative to interpret whether a gas chromatography/carbon/isotope-ration mass spectrometry (GC/C/IRMS) analysis is “not consistent with the exogenous production of the parent compound” or “inconclusive” in light of the Technical Document (TD) 2021NA.

2. According to art. 10.2.1 of the edition 2020 of the World Athletics Anti-Doping Rules (WA ADR), the burden of proof that the ADRV was not intentional is on the athlete. Unlike for “no fault” or “no significant fault”, the WA ADR does not provide that the athlete must show how the substance entered her system in order to claim that the ADRV was not intentional.

3. Neither the positive result of a hair analysis nor of a polygraph test are sufficient for an athlete to rebut the presumption that his/her ADRV was intentional.

In January 2021 the Athletics Integrity Unit (AIU) for World Athletics reported an anti-doping rule violation against the American Athlete Shelby Houlihan after her A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

After notification a provisional suspension was ordered. In May 2021 the case was referred to the Court of Arbitration for Sport (CAS) for a first instance hearing panel. Previously the Athlete's request to lift the imposed provisional suspension was rejected by the AIU as by CAS.

The Athlete denied the intentional use of the substance and  argued that the 19-norandrosterone entered her body by eating a burrito from a food truck containing pork offal and that the burrito was the only possible source of the 19-norandrosterone in the Sample.

The Athlete disputed the test results and asserted, supported by an expert witness, that the analytical results of the Montreal Lab should haven been reported as an Atypical Finding. Further she argued that TD2021NA applies since this document was approved and published and because of the application of the principle of lex mitior.

The Panel establishes that the TD2021NA is applicable in this matter and a majority of the Panel finds that the Athlete failed to demonstrate that the Adverse Analytical Finding (AAF) was not properly reported pursuant to the ISL, neither that the anti-doping rule violation was not properly managed, asserted and notified pursuant to the ISRM.

Following assessment of the evidence the Panel:

• finds it possible but unlikely that the Athlete’s burrito contained boar offal;
• finds it possible but unlikely that the ingestion of boar offal would have resulted in the urinary concentration of 19-norandrosterone found in the Athlete’s A and B samples;
• finds it possible but not probable that the ingestion of boar offal would have resulted in the Athlete’s reported urinary concentration of 19-NA or her carbon isotope ratio of -23‰;
• finds that neither the hair analysis nor the polygraph results are sufficient for the Athlete to satisfy her burden of proving that the anti-doping rule violation was not intentional.

Finally the Panel concludes that the Athlete has not satisfied her burden of proof on the balance of probabilities that the anti-doping rule violation was unintentional, and that the violation must be deemed intentional.

Therefore the Court of Arbitration for Sport decides on 27 August 2021 that:

1. The request for arbitration filed by World Athletics on 18 May 2021 against Shelby Houlihan is upheld.
2. Shelby Houlihan is found to have committed an anti-doping rule violation pursuant to Rule 2.1 and Rule 2.2 of the World Athletics Anti-Doping Rules.
3. Shelby Houlihan is subject to a period of ineligibility of four (4) years starting on 14 January 2021.
4. All competitive results obtained by Shelby Houlihan from 15 December 2020 through to 14 January 2021 are disqualified, including forfeiture of any titles, awards, medals, points and prize and appearance money obtained during this period.
5. (…).
6. (…).
7. All other motions or requests for relief are dismissed.
8. The present decision is confidential, unless the President of the CAS Ordinary Arbitration Division decides that it should be made public.