On 15 November 2019 the Disciplinary Commission of the Panam Sports Organisation (PASO) concluded that the cyclist Njisane Phillip from Trinidad and Tobago had committed an anti-doping rule violation after his A and B samples tested positive for the prohibited substance Cannabis in a concentation above the WADA threshold (193ng/mL).

Consequently the PASO Disciplinary Commission decided to disqualify the results and medals of the Athlete and his team of Trinidad & Tobago during the Lima 2019 Pan American Games. 

Hereafter in November 2019 the Athlete appealed the PASO decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the PASO decision of 15 November 2019 and to order that the gold and silver medals won by the Athlete to remain with him. 

The Athlete argued that PASO’s breach of applicable procedural rules and regulations regarding the following aspects of its results management, disciplinary process and public reporting regarding his violation are so egregious that the Panel should invalidate the Disciplinary Commission Decision in its entirety and restore his cycling competition results in the 2019 Panam Games and medals won:

1. composition of its Doping Review Panel;
2. structure and contents of the Disciplinary Commission Decision; and
3. breach of confidentiality by public reporting of its decision to disqualify the Athlete’s competition results before final resolution of this appeal procedure.

The Athlete admitted the violation and did not dispute that it automatically leads to disqualification of the obtained results. He asserted that there is no evidence that he had used Cannabis to enhance his performance or that it positively impacted his performance. Fairness requires that a lesser penalty would be imposed without consequences for the other athletes in the cycling team of Trinidad & Tobago. 

The Panel finds that no material procedural defects occurred in connection with the structure or contents of the Disciplinary Commission Decision nor the composition of the Doping Review Panel. It recognizes that any procedural defects in either internal process alleged by the Athlete regarding his anti-doping rule violation will be effectively remedied by its de novo review in accordance with Article R57 of the CAS Code. 

The Panel deem that PASO indeed violated the confidentiality requirements as stipulated in the PASO ADR and the ISPPI by public dislosing the Athlete's anti-doping rule violation and disqualification of results after his appeal was filed with CAS in November 2019 and pending before the Panel.

While the PASO’s actions in prematurely reporting the Athlete’s disqualification for his admitted anti-doping rule violation were erroneous, they cannot be remedied by invalidating the entire anti-doping rule violation. 

The Panel concludes that under the applicable Rules the PASO Disciplinary Commission appropriately disqualified the Athlete’s individual results and the Trinidad & Tobago cycling team’s results in the 1 August 2019 team sprint cycling competition as result of the committed anti-doping rule violation. 

Therefore the Court of Arbitration for Sport decides on 8 July 2020 that: 

1.) The appeal filed by Mr. Njisane Phillip on 28 November 2019 against the decision rendered by the Panam Sports Disciplinary Commission on 15 November 2019 is dismissed.

2.) The Award is pronounced without costs, except for the Court Office fee of CHF 1000 (one thousand Swiss Francs) paid by the Appellant, which is retained by the CAS.

3.) (…).

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

CAS 2017/A/5444 Olga Zaytseva v. International Olympic Committee (IOC)

Related cases:

IOC 2017 IOC vs Olga Zaytseva - Decision
December 22, 2017

IOC 2017 IOC vs Olga Zaytseva - Operative Part
November 27, 2017

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• Biathlon
• Doping (use of a prohibited substance or method; tampering with doping control; cover-up of and complicity in the commission of an ADRV)
• Connection between use or attempted use of a prohibited method and tampering or attempted tampering with any part of doping control
• Standard of proof to be met by anti-doping organizations
• Consideration to be given of the restricted powers of the investigation authorities of the IOC
• Underlying factual basis for an inference that an athlete has committed a particular ADRV
• Standard of proof with regard to an athlete’s alleged participation to an alleged doping scheme
• Interpretation of Article 2.8. of the 2009 WADC
• Interpretation of Article 9.1 of the IOC ADR
• Justification for the imposition of a sanction of lifetime ineligibility

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1. According to art. 2.2. of the World Anti-Doping Code (WADC, in its 2009 edition), the use or attempted use of a prohibited method constitutes an Anti-Doping Rule Violation (ADRV). In this respect, the 2014 World Anti-Doping Agency (WADA) Prohibited List sets forth in point M2.1 (prohibited methods) the prohibition of tampering or attempting to tamper, in order to alter the integrity and validity of samples collected during doping control. These include but are not limited to urine substitution. Art. 2.5 WADC, for its part, states that tampering or attempted tampering with any part of doping control constitutes an ADRV. More precisely, art. 2.5 WADC prohibits conduct which subverts the doping control process, but which would not otherwise be included in the definition of prohibited methods. Accordingly, the alleged swapping of urine samples has first to be examined under the framework of the specific rule of art. 2.2. WADC, rather than by reference to the more general rule of art. 2.5 WADC. Art. 2.5 WADC is only applicable insofar as it relates to acts that are not already included within the definition of prohibited methods under art. 2.2 WADC.

2. The standard of proof established in art. 3.1 WADC shall be whether an Anti-Doping Organization has established an ADRV to the comfortable satisfaction of a hearing panel bearing in mind the seriousness of the allegation which is made. The standard of comfortable satisfaction is a kind of sliding scale: the more serious the allegation and its consequences, the higher certainty (level of proof) a panel would require to be comfortably satisfied. The test of comfortable satisfaction must consider the circumstances of the case.

3. Taking into account all relevant circumstances of a case includes inter alia to consider the nature and restricted powers of the investigation authorities of the governing bodies of sport as compared to national formal interrogation authorities. In casu, consideration needs to be given to the fact that the IOC 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 IOC 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 evidence that it is able to present necessarily reflects these inherent limitations in its investigatory powers. Assessment of the evidence must respect those limitations. In particular, it must not be premised on unrealistic expectations concerning the evidence that the IOC is able to obtain from reluctant or evasive witnesses and other source.

4. In view of the nature of the alleged doping scheme presented in casu and the IOC’s limited investigatory powers, the IOC may properly invite a CAS panel to draw inferences from the established facts that seek to fill in gaps in the direct evidence. The panel may accede to that invitation where it considers that the established facts reasonably support the drawing of the inferences. So long as a panel is comfortably satisfied about the underlying factual basis for an inference that an athlete has committed a particular ADRV, it may conclude that the IOC has established an ADRV notwithstanding that it is not possible to reach that conclusion by direct evidence alone.

5. In a case of an athlete accused, inter alia, of participating in a conspiracy of unprecedented magnitude and sophistication, it is insufficient for the IOC merely to establish the existence of an overarching doping scheme to the comfortable satisfaction of a panel. Instead, given that, in order to be liable for conspiracy a person must have knowledge of the existence of that conspiracy and of its object, the IOC must go further and establish that the individual athlete knowingly engaged in particular conduct that involved the commission of a specific and identifiable ADRV. In other words, a panel must be comfortably satisfied that said individual athlete personally committed a specific violation of a specific provision of the WADC.

7. The first part of art. 2.8 WADC only covers the (attempted) administrations attributable to a third party rather than by an athlete himself/herself, unless it is alleged that an athlete has administered or attempted to administer a prohibited method or substance to another athlete. A precondition for the application of the second part of art. 2.8 WADC is the existence of an ADRV under art. 2.1 to 2.7 WADC committed by another person than the one charged with a violation of art. 2.8 WADC.

8. Art. 9.1 para. 3 IOC Anti-Doping Rules (ADR) has to be interpreted as referring to the rules of the relevant international federation only with respect to “other disciplinary action”, while “disqualification” remains the full responsibility of the IOC. This interpretation of art. 9.1 para. 3 of the IOC ADR is also supported by the allocation of responsibility and jurisdiction between the IOC and the international federation with respect to Olympic Games.

9. A sanction equivalent to a lifetime period of ineligibility can only be considered justified where the seriousness of the offence was most extraordinary.

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Two reports commissioned by WADA, published by Prof. Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample.

As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. At the same time the IOC Schmid Commission started their investigations to establish the facts on the basis of documented, independent and impartial evidence.

All the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated. The findings in the IP Reports were considered in detail and both Commissions conclude that samples or urine collected from Russian Athletes were tampered with in Sochi in a systematic manner and as part of an organized scheme. The Commissions further conclude that it was not possible that the athletes were not fully implicated. They were also the main beneficiaries of the scheme.

The IOC Commissions find that Prof. McLaren’s findings are not only based on the evidence provided by Dr Rodchenkov in his interviews, but on a wealth of other corroborating evidence, including other witnesses, the forensic examination of the sample bottles, the evidence showing abnormal salt results and the additional elements coming from DNA analysis. The corroborating evidence considered by Prof. McLaren included further objective elements, such as e-mails confirming that athletes were protected through different methods.

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Olga Zaytseva is a Russian Athlete competing in the Women's Biathlon Events at the Sochi 2014 Olympic Winter Games.
In October 2017 the IOC Disciplinary Commission has reported multiple anti-doping rule violations against the Athlete for tampering, conspiracy and use of prohibited substances. 

Consequently the IOC Disciplinary Commission decided on 22 December 2017 to declare Olga Zaytseva ineligible to be accredited in any capacity for all editions of the Games of the Olympiad and the Olympic Winter Games subsequent to the Sochi Olympic Winter Games.

Further the Commission disqualified the Athlete and her team from the events at the 2014 Sochi Olympic Winter Games including forfeiture of any medal, diploma, medallist pin, points and prizes. 

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In December 2017 the Athlete Olga Zaytseva appealed the IOC decision with the Court of Arbitration for Sport (CAS). In January 2018 the appeals of the Athlete Olga Zaytseva together with the appeals of the Athletes Olga Vilukhina (CAS 2017/A/5434 and Yana Romanova (CAS 2017/A/5435) were stayed until reasoned awards were issued by the CAS in the cases: 

• CAS 2017_A_5379 Alexander Legkov vs IOC
• CAS 2017_A_5380 Evgeniy Belov vs IOC
• CAS 2017_A_5422 Aleksandr Zubkov vs IOC
• CAS 2017_A_5433 Maria Orlova vs IOC
• CAS 2017_A_5436 Maxim Vylegzhanin vs IOC
• CAS 2017_A_5441 Alexander Rumyantsev vs IOC
• CAS 2017_A_5445 Yulia Chekaleva vs IOC
• CAS 2017_A_5446 Anastasia Dotsenko vs IOC

After the rendering of these reasonded decisions the CAS proceedings of the Athletes Olga Zaytseva, Olga Vilukhina and Yana Romanova  were resumed in December 2018. 

The Athlete disputed the reliability of the filed evidence provided by the IOC, Prof. McLaren and Dr. Rodchenko and pointed to various inconsistencies in this evidence. She argued that the IOC did not only failed to provide any credible evidence on her supposed involvement in the so-called organised doping scheme or of her being aware of any doping scheme supposedly tailored to protect her, but did not even establish that she ever used a prohibited substance. The IOC merely relies on a speculation which is not admissible when the issues at stake are so serious and carry severe consequences for the Athlete. 

The IOC contended that the Athlete had personally committed various anti-doping rule violations, namely: 

• using a prohibited substance, i.e. the Duchess Cocktail, and using a prohibited method, i.e. urine substitution;
• tampering with any part of the doping control; and
• cover-up of and complicity in the commission of an ADRV.

The IOC, in its written submissions, provided a detailed description of the doping and cover-up scheme that allegedly operated in Russia from 2011 to 2015.

The IOC contended that the McLaren Reports and the Schmid Report both identified the Disappearing Positive Methodology as the origin of the institutionalised doping and cover-up scheme while Dr. Rodchenkov identified the main aspects to the Disappearing Positive Methodology in his affidavits. 

With regard to the Athlete’s implication in this scheme, the IOC asserted that:

• The Athlete’s B sample bottles had multiple T marks and elevated sodium levels, i.e. evidence of tampering.
• The Athlete’s implication in the doping scheme was also demonstrated by the evidence of Dr. Rodchenkov. 

The IOC requested the Panel to confirm the existence of a generalised doping scheme in Russia before and during the Sochi Games, one which enabled the Athlete to participate in a doping-control free environment. Also th IOC requested the Panel, to find a link (even contextual) between the Athlete or one of her urine samples and the generalised doping scheme which is sufficient to allow it to conclude that the Athlete has committed one or more of the alleged ADRVs. 

Having considered the submissions of the Parties, the written evidence as well as the oral evidence and testimonies provided at the hearing the, in the present case, the Panel is comfortably satisfied that, the elevated sodium level found in the Athlete’s B sample constitutes reliable evidence to support the conclusion that the urine the Athlete provided was likely to have been deliberately swapped against clean urine that the Athlete had provided in advance to the Sochi Games.

Thus, the Panel finds to its comfortable satisfaction, on the basis of the evidence before it, that the Athlete committed an anti-doping rule violation for use of a prohibited substance and use of a prohibited method. However the Panel is not comfortably satisfied that the Athlete committed an anti-doping rule violation for tampering, neither for complicity.

Therefore the Court of Arbitration for Sport decides on 24 September 2018 that: 

1.) The appeal filed by Ms. Olga Zaytseva on 6 December 2017 against the decision of the International Olympic Committee Disciplinary Commission dated 1 December 2017 is partially upheld.

2.) Paragraph I (a) of the Decision rendered by the International Olympic Committee Disciplinary Commission dated 1 December 2017 is modified as follows:

I. The Athlete, Olga ZAYTSEVA :

a) is found to have committed an anti-doping rule violation pursuant to the International Olympic Committee Anti-Doping Rules applicable to the XXII Olympic Winter Games in Sochi, Russia, in connection with the World Anti-Doping Code.

3.) Paragraph V of the Decision rendered by the International Olympic Committee Disciplinary Commission dated 1 December 2017 is annulled and replaced as follows:

V. Olga ZAYTSEVA is declared ineligible to be accredited in any capacity for the next edition of the Olympic Winter Games subsequent to the Sochi Olympic Winter Games (i.e. PyeongChang 2018).

4.) All other rulings contained in the Decision rendered by the International Olympic Committee Disciplinary Commission dated 1 December 2017 are maintained.

5.) (…).

6.) (…).

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

CAS 2017/A/5435 Yana Romanova v. International Olympic Committee (IOC)

Related case:

IOC 2017 IOC vs Yana Romanova - Operative Part
November 27, 2017

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• Biathlon
• Doping (use of a prohibited substance or method; tampering with doping control; cover-up of and complicity in the commission of an Anti-Doping Rule Violation)
• Connection between use or attempted use of a prohibited method and tampering or attempted tampering with any part of doping control
• Standard of proof to be met by anti-doping organizations
• Consideration to be given of the restricted powers of the investigation authorities of the International Olympic Committee
• Underlying factual basis for an inference that an athlete has committed a particular Anti-Doping Rule Violation.
• Standard of proof with regard to an athlete’s alleged participation to an alleged doping scheme

---

1. According to art. 2.2. of the World Anti-Doping Code (edition 2009, WADC), the use or attempted use of a prohibited method constitutes an Anti-Doping Rule Violation (ADRV). In this respect, the 2014 World Anti-Doping Agency (WADA) Prohibited List sets forth in point M2.1 (prohibited methods) the prohibition of tampering or attempting to tamper, in order to alter the integrity and validity of samples collected during doping control. These include but are not limited to urine substitution. Art. 2.5 of the 2009 WADC, for its part, states that tampering or attempted tampering with any part of doping control constitutes an ADRV. More precisely, art. 2.5 WADC prohibits conduct which subverts the doping control process, but which would not otherwise be included in the definition of prohibited methods. Accordingly, the alleged swapping of urine samples has first to be examined under the framework of the specific rule of art. 2.2. WADC, rather than by reference to the more general rule of art. 2.5 WADC. Art. 2.5 WADC is only applicable insofar as it relates to acts that are not already included within the definition of prohibited methods under art. 2.2 WADC.

2. The standard of proof established in art. 3.1 of the 2009 WADC shall be whether an Anti-Doping Organization has established an ADRV to the comfortable satisfaction of a hearing panel bearing in mind the seriousness of the allegation which is made. The standard of comfortable satisfaction is a kind of sliding scale: the more serious the allegation and its consequences, the higher certainty (level of proof) a panel would require to be comfortably satisfied. The test of comfortable satisfaction must consider the circumstances of the case.

3. Taking into account all relevant circumstances of a case include inter alia to consider the nature and restricted powers of the investigation authorities of the governing bodies of sport as compared to national formal interrogation authorities. In casu, consideration needs to be given to the fact that the IOC 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 IOC 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 evidence that it is able to present necessarily reflects these inherent limitations in its investigatory powers. Assessment of the evidence must respect those limitations. In particular, it must not be premised on unrealistic expectations concerning the evidence that the IOC is able to obtain from reluctant or evasive witnesses and other source.

4. In view of the nature of the alleged doping scheme presented in casu and the IOC’s limited investigatory powers, the IOC may properly invite a CAS panel to draw inferences from the established facts that seek to fill in gaps in the direct evidence. A Panel may accede to that invitation where it considers that the established facts reasonably support the drawing of the inferences. So long as a panel is comfortably satisfied about the underlying factual basis for an inference that an athlete has committed a particular ADRV, it may conclude that the IOC has established an ADRV notwithstanding that it is not possible to reach that conclusion by direct evidence alone.

5. In a case of an athlete accused, inter alia, of participating in a conspiracy of unprecedented magnitude and sophistication, it is insufficient for the IOC merely to establish the existence of an overarching doping scheme to the comfortable satisfaction of a panel. Instead, given that, in order to be liable for conspiracy a person must have knowledge of the existence of that conspiracy and of its object, the IOC must go further and establish that the individual athlete knowingly engaged in particular conduct that involved the commission of a specific and identifiable ADRV. In other words, a panel must be comfortably satisfied that said individual athlete personally committed a specific violation of a specific provision of the 2009 WADC.

---

Two reports commissioned by WADA, published by Prof. Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample. 

As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. At the same time the IOC Schmid Commission started their investigations to establish the facts on the basis of documented, independent and impartial evidence. 

All the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated. The findings in the IP Reports were considered in detail and both Commissions conclude that samples or urine collected from Russian Athletes were tampered with in Sochi in a systematic manner and as part of an organized scheme. The Commissions further conclude that it was not possible that the athletes were not fully implicated. They were also the main beneficiaries of the scheme. 

The IOC Commissions find that Prof. McLaren’s findings are not only based on the evidence provided by Dr Rodchenkov in his interviews, but on a wealth of other corroborating evidence, including other witnesses, the forensic examination of the sample bottles, the evidence showing abnormal salt results and the additional elements coming from DNA analysis. The corroborating evidence considered by Prof. McLaren included further objective elements, such as e-mails confirming that athletes were protected through different methods.

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Yana Romanova is a Russian Athlete competing in the Women's Biathlon Events at the Sochi 2014 Olympic Winter Games. In December 2016 the IOC Disciplinary Commission has reported multiple anti-doping rule violations against the Athlete for tampering, conspiracy and use of prohibited substances. 

Consequently the IOC Disciplinary Commission decided on 27 November  2017 to declare Yana Romanova ineligible to be accredited in any capacity for all editions of the Games of the Olympiad and the Olympic Winter Games subsequent to the Sochi Olympic Winter Games. Further the Commission disqualified the Athlete and her team from the events at the 2014 Sochi Olympic Winter Games including forfeiture of any medal, diploma, medallist pin, points and prizes. 

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In December 2017 the Athlete Yana Romanova appealed the IOC decision with the Court of Arbitration for Sport (CAS). In January 2018 the appeals of the Athlete Yana Romanova together with the appeals of the Athletes Olga Vilukhina (CAS 2017/A/5434 and Olga Zaytseva (CAS 2017/A/5444) were stayed until reasoned awards were issued by the CAS in the cases: 

• CAS 2017_A_5379 Alexander Legkov vs IOC
• CAS 2017_A_5380 Evgeniy Belov vs IOC
• CAS 2017_A_5422 Aleksandr Zubkov vs IOC
• CAS 2017_A_5433 Maria Orlova vs IOC
• CAS 2017_A_5436 Maxim Vylegzhanin vs IOC
• CAS 2017_A_5441 Alexander Rumyantsev vs IOC
• CAS 2017_A_5445 Yulia Chekaleva vs IOC
• CAS 2017_A_5446 Anastasia Dotsenko vs IOC

After the rendering of these reasoned decisions the CAS proceedings of the Athletes Yana Romanova, Olga Vilukhina and Olga Zaytseva were resumed in December 2018. 

The Athlete disputed the reliability of the filed evidence provided by the IOC, Prof. McLaren and Dr. Rodchenko and pointed to various inconsistencies in this evidence. She argued that the IOC did not only fail to provide any credible evidence on her supposed involvement in the so-called organised doping scheme or of her being aware of any doping scheme supposedly tailored to protect her, but did not even establish that she ever used a prohibited substance. The IOC merely relies on a speculation which is not admissible when the issues at stake are so serious and carry severe consequences for the Athlete. 

The IOC contended that the Athlete had personally committed various anti-doping rule violations, namely: 

• using a prohibited substance, i.e. the Duchess Cocktail, and using a prohibited method, i.e. urine substitution;
• tampering with any part of the doping control; and
• cover-up of and complicity in the commission of an ADRV.

The IOC, in its written submissions, provided a detailed description of the doping and cover-up scheme that allegedly operated in Russia from 2011 to 2015.

The IOC contended that the McLaren Reports and the Schmid Report both identified the Disappearing Positive Methodology as the origin of the institutionalised doping and cover-up scheme while Dr. Rodchenkov identified the main aspects to the Disappearing Positive Methodology in his affidavits. 

With regard to the Athlete’s implication in this scheme, the IOC asserted that:

• The Athlete’s B sample bottle had multiple T marks, i.e. evidence of tampering.
• The Athlete’s implication in the doping scheme was also demonstrated by the evidence of Dr. Rodchenkov. 

The IOC requested the Panel to confirm the existence of a generalised doping scheme in Russia before and during the Sochi Games, one which enabled the Athlete to participate in a doping-control free environment. Also the IOC requested the Panel, to find a link (even contextual) between the Athlete or one of her urine samples and the generalised doping scheme which is sufficient to allow it to conclude that the Athlete has committed one or more of the alleged ADRVs. 

Having considered the submissions of the Parties, the written evidence as well as the oral evidence and testimonies provided at the hearing the Panel concludes that, in the present case, none of the acts alleged by the IOC has been established to the comfortable satisfaction of the Panel. The Panel further finds that the probative value of circumstantial evidence has its limits and that even when taken together and put into context, in the present case the different strands of factual and forensic evidence submitted by the IOC do not lead the Panel to be comfortably satisfied that the Athlete was personally and knowingly implicated in any of the alleged acts. 

Accordingly, the Panel concludes that the Athlete’s appeal against the decision of the IOC DC rendered on 27 November 2017 shall be upheld and the appealed decision set aside. 

Therefore the Court of Arbitration for Sport decides on 24 September 2018 that: 

1.) The appeal filed by Ms. Yana Romanova on 1 December 2017 against the International Olympic Committee with respect to the decision of the International Olympic Committee Disciplinary Commission dated 27 November 2017 is upheld.

2.) The decision of the International Olympic Committee Disciplinary Commission dated 27 November 2017 is partially set aside, except for points II, III, V and VI.

3.) All results achieved by Ms. Yana Romanova upon the occasion of the XXII Olympic Winter Games in Sochi, Russia in individual events, are reinstated, with all resulting consequences.

4.) (…).

5.) (…).

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

CAS 2017/A/5434 Olga Vilukhina v. International Olympic Committee (IOC)

Related case:

IOC 2017 IOC vs Olga Vilukhina - Operative Part
November 27, 2017

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Two reports commissioned by WADA, published by Prof. Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample.

As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. At the same time the IOC Schmid Commission started their investigations to establish the facts on the basis of documented, independent and impartial evidence.

All the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated. The findings in the IP Reports were considered in detail and both Commissions conclude that samples or urine collected from Russian Athletes were tampered with in Sochi in a systematic manner and as part of an organized scheme. The Commissions further conclude that it was not possible that the athletes were not fully implicated. They were also the main beneficiaries of the scheme.

The IOC Commissions find that Prof. McLaren’s findings are not only based on the evidence provided by Dr Rodchenkov in his interviews, but on a wealth of other corroborating evidence, including other witnesses, the forensic examination of the sample bottles, the evidence showing abnormal salt results and the additional elements coming from DNA analysis. The corroborating evidence considered by Prof. McLaren included further objective elements, such as e-mails confirming that athletes were protected through different methods.

---

Olga Vilukhina is a Russian Athlete competing in the Women's Biathlon Events at the Sochi 2014 Olympic Winter Games. In December 2016 the IOC Disciplinary Commission has reported multiple anti-doping rule violations against the Athlete for tampering, conspiracy and use of prohibited substances. 

Consequently the IOC Disciplinary Commission decided on 27 November  2017 to declare Olga Vilukhina ineligible to be accredited in any capacity for all editions of the Games of the Olympiad and the Olympic Winter Games subsequent to the Sochi Olympic Winter Games. Further the Commission disqualified the Athlete and her team from the events at the 2014 Sochi Olympic Winter Games including forfeiture of any medal, diploma, medallist pin, points and prizes.

---

In December 2017 the Athlete Olga Vilukhina appealed the IOC decision with the Court of Arbitration for Sport (CAS). In January 2018 the appeals of the Athlete Olga Vilukhina together with the appeals of the Athletes Yana Romanova (CAS 2017/A/5435) and Olga Zaytseva (CAS 2017/A/5444) were stayed until reasoned awards were issued by the CAS in the cases:

• CAS 2017_A_5379 Alexander Legkov vs IOC
• CAS 2017_A_5380 Evgeniy Belov vs IOC
• CAS 2017_A_5422 Aleksandr Zubkov vs IOC
• CAS 2017_A_5433 Maria Orlova vs IOC
• CAS 2017_A_5436 Maxim Vylegzhanin vs IOC
• CAS 2017_A_5441 Alexander Rumyantsev vs IOC
• CAS 2017_A_5445 Yulia Chekaleva vs IOC
• CAS 2017_A_5446 Anastasia Dotsenko vs IOC

After the rendering of these reasonded decisions the CAS proceedings of the Athletes Olga Vilukhina, Yana Romanova and Olga Zaytseva were resumed in December 2018. 

The Athlete disputed the reliability of the filed evidence provided by the IOC, Prof. McLaren and Dr. Rodchenko and pointed to various inconsistencies in this evidence. She argued that the IOC did not only failed to provide any credible evidence on her supposed involvement in the so-called organised doping scheme or of her being aware of any doping scheme supposedly tailored to protect her, but did not even establish that she ever used a prohibited substance. The IOC merely relies on a speculation which is not admissible when the issues at stake are so serious and carry severe consequences for the Athlete. 

The IOC contended that the Athlete had personally committed various anti-doping rule violations, namely:

• using a prohibited substance, i.e. the Duchess Cocktail, and using a prohibited method, i.e. urine substitution;
• tampering with any part of the doping control; and
• cover-up of and complicity in the commission of an ADRV.

The IOC, in its written submissions, provided a detailed description of the doping and cover-up scheme that allegedly operated in Russia from 2011 to 2015.
The IOC contended that the McLaren Reports and the Schmid Report both identified the Disappearing Positive Methodology as the origin of the institutionalised doping and cover-up scheme while Dr. Rodchenkov identified the main aspects to the Disappearing Positive Methodology in his affidavits.

With regard to the Athlete’s implication in this scheme, the IOC asserted that:
- The Athlete’s B sample bottle had multiple T marks, i.e. evidence of tampering.
- The Athlete’s implication in the doping scheme was also demonstrated by the evidence of Dr. Rodchenkov. 

The IOC requested the Panel to confirm the existence of a generalised doping scheme in Russia before and during the Sochi Games, one which enabled the Athlete to participate in a doping-control free environment. Also th IOC requested the Panel, to find a link (even contextual) between the Athlete or one of her urine samples and the generalised doping scheme which is sufficient to allow it to conclude that the Athlete has committed one or more of the alleged ADRVs. 

Having considered the submissions of the Parties, the written evidence as well as the oral evidence and testimonies provided at the hearing the Panel concludes that, in the present case, none of the acts alleged by the IOC has been established to the comfortable satisfaction of the Panel. The Panel further finds that the probative value of circumstantial evidence has its limits and that even when taken together and put into context, in the present case the different strands of factual and forensic evidence submitted by the IOC do not lead the Panel to be comfortably satisfied that the Athlete was personally and knowingly implicated in any of the alleged acts. 

Accordingly, the Panel concludes that the Athlete’s appeal against the decision of the IOC DC rendered on 27 November 2017 shall be upheld and the appealed decision set aside. 

Therefore the Court of Arbitration for Sport decides on 24 September 2018 that: 

1.) The appeal filed by Ms. Olga Vilukhina on 1 December 2017 against the decision of the International Olympic Committee Disciplinary Commission dated 27 November 2017 is upheld.

2.) The decision of the International Olympic Committee Disciplinary Commission dated 27 November 2017 is partially set aside except for points II, III, IV, VI, VII and VIII.

3.) All results achieved by Ms. Olga Vilukhina upon the occasion of the XXII Olympic Winter Games in Sochi, Russia in individual events, are reinstated, with all resulting consequences.

4.) (…).

5.) (…).

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

CAS 2018/A/5619 World Anti-Doping Agency (WADA) v. United World Wrestling (UWW) & Anzor Boltukaev

Related case:

UWW 2017 UWW vs Anzor Boltukaev
February 2, 2018

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• Wrestling
• Doping (higenamine)
• Range of sanction applicable to an unintentional anti-doping rule violation involving a specified substance
• No reduction of the standard sanction in case of failure to establish the origin of the prohibited substance

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1. According to Article 10.2.2 of the UWW Anti-Doping Regulations (ADR), the sanction provided for a violation of Article 2.1 ADR committed by an athlete is a suspension for 2 years e.g. for an unintentional violation involving a specified substance. Such sanction, however, can be eliminated, if the athlete proves that he bears “no fault or negligence” (Article 10.4 of the ADR), or reduced, inter alia, if the athlete proves that the prohibited substance was ingested following the use of a contaminated product and that he bears “no significant fault or negligence” (Article 10.5.1 of the ADR): in this case the sanction would be, at a minimum, a reprimand and no period of ineligibility, and at a maximum, two years ineligibility, depending on the athlete’s degree of fault. The crucial point in both cases is the determination of the origin of the prohibited substance found in the athlete’s body. In fact, only in the event the athlete proves “how the Prohibited Substance entered his … system” can a fault-related reduction (or elimination) of the sanction be granted.

2. Mere speculation by an athlete as to what may have happened does not satisfy the required standard of proof (balance of probability). The mere allegation of a possible occurrence of a fact cannot amount to a demonstration that such fact did actually occur: unverified hypotheses are not sufficient. Instead, an athlete has a stringent requirement to offer persuasive evidence that the explanation s/he offers for an adverse analytical finding is more likely than not to be correct, by providing specific, objective and persuasive evidence of his/her submissions. In this respect, the consumption of coffee or of a nutritional supplement cannot by a balance of probability establish the origin of the prohibited substance especially where no specific nutritional supplement containing the prohibited substance was identified.

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On 2 February 2018 the UWW Anti-Doping Panel decided to impose a 10 month period of ineligibility on the Russian wrestler Anzor Boltukaev after he tested positive for the prohibited substance Higenamine. Here the UWW Panel accepted that the postive test was te result of contaminated nutritional supplements he had used. It concluded that the violation was not intentional and that he established No Significant Fault or Negligence.

Hereafter in March 2018 the World Anti-Doping Agency (WADA) appealed the UWW decision of 2 February 2019 with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the UWW decision and to impose a 2 year period of ineligibility on the Athlete.

WADA does not dispute that the violation was not intentional but contended that the Athlete failed to establish the origin of
the prohibited substance on the balance of probabilities, and therefore that a standard sanction of two years should be imposed.

The Athlete denied the intentional use of the substance, that he had established that the positive test was caused by the use of coffee or a contaminated supplement and that he bore no significant fault or negligence.

While the violation is deemed to be not intentional the Panel finds the Athlete's explanations not convincing. They appear to the Panel to amount to mere speculations and are unsupported by sufficient evidence.

As a result the Panel concludes that the Athlete failed to establish, by a balance of probability, that the consumption of coffee or of a nutritional supplement was the origin of the positive test.

Therefore the Court of Arbitration for Sport decides on 8 October 2018 that:

1.) The appeal filed by the World Anti-Doping Agency on 12 March 2018 against the decision rendered on 2 February 2018 by the Anti-Doping Panel of the United Wrestling Federation is upheld.

2.) The decision rendered on 2 February 2018 by the Anti-Doping Panel of the United Wrestling Federation is set aside.

3.) Mr Anzor Boltukaev is declared ineligible for a period of two years from the date of the present award, with credit given for the period of ineligibility already served between 6 June 2017 and 5 April 2018.

4.) All competitive results obtained by Mr Anzor Boltukaev between 3 May 2017, including the results of 3 May 2017, and 6 June 2017 are disqualified, with all of the resulting consequences, including forfeiture of any medals, points and prizes.

5.) The award is pronounced without costs, except for the Court Office fee of CHF 1,000 paid by the World Anti-Doping Agency which is retained by the CAS.

6.) Mr Anzor Boltukaev and the United Wrestling Federation shall pay to the World AntiDoping Agency an amount of CHF 1,000 ( one thousand Swiss Francs) each towards the legal costs and expenses incurred by the World Anti-Doping Agency in connection with the present proceedings.

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

• CAS 2019/A/6443 Canadian Centre for Ethics in Sport (CCES) v. Dominika Jamnicky
• CAS 2019/A/6593 Dominika Jamnicky v. Canadian Centre for Ethics in Sport (CCES)

Related cases:

• SDRCC 2018 CCES vs Dominika Jamnicky & Triathlon Canada - Final Award
  August 16, 2019
• SDRCC 2018 CCES vs Dominika Jamnicky & Triathlon Canada - Partial Award
  May 31, 2019

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In May 2018 the Canadian Centre for Ethics in Sport (CCES) has reported an anti-doping rule violation against the Triathlon Athlete Dominika Jamnicky after her sample tested positive for the prohibited substance Clostebol allegedly as a result of her use of a contaminated product. 

In two Awards rendered by the SDRCC Doping Tribunal on 31 May 2019 and on 16 August 2019 the Arbitrator deemed that the Athlete failed to establish the source of the anti-doping rule violation. However she determinded that the violation was not intentional and although she committed an anti-doping rule violation only a reprimand was imposed on the Athlete. 

Hereafter in September 2019 the CCES and the Athlete in October 2019 appealed the SDRCC decision of 16 August 2019 with the Court of Arbitration for Sport (CAS).

The CCES requested the Panel to set aside the SDRCC decision and to impose a 2 year period of ineligibility on the Athlete. It did not dispute that the violation was not intentional but contended that there were no grounds to impose a reduced sanction based on the principle of proportionality.

CCES contended that the Athlete’s evidence in support of her Meat Contamination theory clearly was insufficient to meet te required standard of proof. It regarded it extremely unlikely that the positive test was the result of contaminated meat in Australia or Canada. She failed to investigate her theory of meat contamination nor did she identify all possible sources of Clostebol. 

The Athlete requested the Panel to dismiss the CCES appeal and to set aside the SDRCC Decision of 6 August 2019. She asserted that the source of the positive test was contamined meat; she bears No Fault; alternative she bears No Significant Fault; or the imposition of a reprimand should be confirmed. She testified that she was in Australia and in Canada in April 2018 and there she had consumed a number of animal food products that possible illegally was treated with Clostebol.

Supported by expert witnesses and with circumstancial evidence the Athlete demonstrated that Clostebol is a well-known and effective growth promoter for animal food products while the monitoring authorities for domestic and imported livestock products in both Australia and Canada do not test for Clostebol, creating incentives for producers who might wish to enhance production without fear of being caught.

She excluded the possibility of supplement contamination since she was tested before without issues and she handled and checked with utmost care her supplements before using. 

The Panel considers that the Athlete had accepted the test result and that the CCES had accepted that the violation was not intentional. After having more closely examined the entirety of the evidence in respect of the Meat Contamination, and when combined with other inferences made, the Panel is unanimously of the view that the Meat Contamination is the only reasonably possible and credible explanation for the Athlete’s positive test and is more likely than not to have occurred. 

In reaching this conclusion the Panel deems that it applied the rules and standards that govern triers of fact in assessing circumstantial evidence. In weighing both the inferences to be drawn and the weight of all of the inferences when balanced together, it is satisfied that their conclusion meets the standard of being logical "in light of human experience and common sense".

The Panel holds that the Athlete has established on a balance of probability how Clostebol entered her system, that she bears No Fault in relation to her anti-doping rule violation and that the otherwise applicable 2 year sanction is eliminated. 

Therefore the Court of Arbitration for Sport decides on 9 July 2020 that: 

1.) The (a) appeal filed by the Canadian Centre for Ethics in Sport against Ms. Dominika Jamnicky and (b) cross-appeal filed by Ms. Dominika Jamnicky against the Canadian Centre for Ethics in Sport concerning the decision rendered by the doping tribunal of the Sport Dispute Resolution Centre of Canada on 16 August 2019 are partially upheld.

2.) The decision dated 16 August 2019 by the doping tribunal constituted and administered by the Sport Dispute Resolution Centre of Canada on 16 August 2019 is set aside.

3.) Ms. Dominika Jamnicky is found to have committed an Anti-Doping Rule Violation but bears no fault or negligence and no period of ineligibility shall be imposed on her.

4.) All other prayers for relief in the Appeal and the Cross-Appeal are denied.

5.) (…).

6.) (…).

CAS 2020/A/7041 Nigina Tukhtaeva & Igor Obraztsov v. Russian Athletics Federation

On 27 June 2019 RUSADA imposed a 2 year period of ineligibility on the Athlete Nigina Tukhtaeva for the use of the prohibited substance Methylhexaneamine (dimethylpentylamine) from 8 February 2019 until 7 February 2021

On 23 July 2019 RUSADA imposed a 12 month period of ineligibility on the Athlete Igor Obraztsov for the use of the substance Ligandrol (LGD-4033) from 29 April 2019 until 28 April 2020.

On 2 April 2020 Russian Athletics Federation (RusAF) approved new Eligibility Criteria fo Russian track-and-field athletes willing to join national teams of participate in sporting events. According to the Eligibility Criteria, athletes sanctioned for anti-doping rule violations after 18 November 2015 were not eligibile for Russian track-and-field national teams and other sporting events.

Hereafter in April 2020 both Athletes appealed the RusAF Eligibility Criteria with the Court of Arbitration for Sport (CAS).
The Athletes requested the Sole Arbitrator to temporary suspension of the Eligibility Critera by RusAF and to cancel and/or amend the Criteria.

The Athletes argued that the Eligibility Criteria cause a double sanction for the same offense, which conflicts with the principle of ne bis in idem. The Criteria contain inconsistencies and RusAF as a suspended member of the IAAF under the Rules it does not have the authority to impose anti-doping sanctions independently.

RusAF did not file an answer or otherwise defend the allegation brought against it by the Athletes.

The Sole Arbitrator establishes that the Athletes have an interest in their appeal. Further the Sole Arbitrator concludes that the Eligibility Criteria would cause a double sanction while the Criteria are not in compliance with the ADR, WADA Code and IAAF Rules.

Consequently the Sole Arbitrator deems that the Eligibility Criteria will cause double sanctions for the Athletes and they are to that extent invalid and unenforceable in the case at hand.

Therefore the Court of Arbitration for Sport decides on 5 August 2020 that:

1.) The appeal filed on 26 April 2020 by Ms. Nigina Tukhtaeva and Mr. Igor Obraztsov against the Russian Athletics Federation with respect to the decision of the Presidium of RUSAF rendered on 2 April 2020 is upheld.

2.) The decision of the Presidium of RUSAF rendered on 2 April 2020 is declared invalid and unenforceable insofar as the eligibility criteria would apply to Ms. Nigina Tukhtaeva and Mr. Igor Obraztsov.

3.) [ ... ]

4.) [ ... ]

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

CAS 2019/A/6319 Maria Guadalupe Gonzalez Romero v. IAAF

CAS 2019/A/6319 María Guadalupe González Romero v. International Association of Athletics Federations (IAAF)

Related cases:

• IAAF 2018 IAAF vs María Guadalupe González Romero
  May 9, 2019
• World Athletics 2020 WA vs Maria Guadalupe González Romero
  July 30, 2021
• CAS 2021_A_8311 María Guadalupe González Romero vs IAAF
  December 29, 2023
  
  

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• Athletics (race-walking)
• Doping (epitrenbolone)
• Consequences of signing a DCF
• Lack of conflict of interest in a situation where the DCO and the chaperone are married
• Invalidation of an AAF and balance of interest
• Evidence of lack of intent

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1. By signing a Doping Control Form, an athlete is estopped from claiming violation of the International Standard for Testing and Investigations (ISTI) at a later stage, short of evidence of manipulation of the records, or fraud, or any similar fact.

2. As long as they both are independent from the athlete, a Doping Control Officer and a chaperone have no specific interest in the outcome of the sample collection and there is no conflict of interest nor any risk of conflict of interest established arising solely from the fact that they are married.

3. Only significant departures from the ISTI, such as the violation of the athlete’s right to attend the opening and analysis of his/her B-sample, warrant invalidation of an adverse analytical finding (AAF) for procedural irregularity. There must be an appropriate balance between the rights of the athletes to have their samples collected and tested in accordance with the mandatory testing standards, and the legitimate interest in preventing athletes from escaping punishment for doping violations on the basis of inconsequential or minor technical infractions of the ISTI.

4. In order to demonstrate that the anti-doping rule violation was not intentional, the athlete must demonstrate how the substance entered his/her body, on the basis of the “balance of probability” standard. Mere allegation that the AAF was the result of the ingestion of contaminated meat is insufficient. The athlete must provide actual evidence as opposed to mere speculation.

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On 9 May 2019 the IAAF Disciplinary Tribunal decided to impose a 4 year period of ineligibility on the Mexican Athlete María Guadalupe González Romero after her A and B samples tested positive for the prohibited substance Trenbolone.

In First Instance the Sole Arbitrator deemed that the explanation together with the evidence produced by the Athlete were not convincing, contradicting and not reliable. Consequently her explanation was rejected for lack of credibility due to she failed to establish that her violation was not intentional. 

Hereafter in June 2019 the Athlete appealed the IAAF decision with the Court of Arbitration for Sport (CAS). The Athlete requested to set aside the IAAF decision and to impose a reduced sanction on the basis of No Fault or Negligence or No Significant Fault or Negligence. 

The Athlete denied the intentional use of Trenbolone and asserted that her consumption of Mexican contaminated meat was the source of the positive test. In addition the Athlete claimed that during the sample collection in question irregularities occurred that would invalidate the test results.

The Athlete admitted freely before the Panel, and in her Appeal Brief, that she had not told the truth at the hearing in first instance before the IAAF Disciplinary Tribunal, that her evidence had been falsified, and that documents and evidence were fabricated. The Appellant apologised for her conduct and for what she had said and done before the IAAF Disciplinary Tribunal, but said that she was following advice of her then-legal team. 

The IAAF contended the Athlete’s assertions regarding the alleged departures of the ISTI lacks any credibility since she produced contradictory set of facts regarding her consumption of contaminated meat. The Athlete failed to establish that the violation was not intentional nor how the prohibited substance entered her system. 

The Panel dismissed the Athlete’s claim regarding the alleged departures of the ISTI since it is not convinced by the Athlete's submission that any irregularity, be it ever so minor, should invalidate a positive test result. Neither that the alleged procedural irregularities (which the Panel does not accept) in the present matter are so fundamental that they should invalidate the positive test result. 

Because the Athlete acknowledged that she gave false evidence and that fabricated evidence and documents were produced at the first instance she now relies on a polygraph test, commonly known as "lie detector test", that she had taken prior to this hearing. In this case the Panel does not accept that such test is reliable to establish the truthfulness of the Athlete's latest version of the facts. Even if such a test were admissible, the Panel is of the view that in this case it would not assist the Athlete to overcome the requisite burden of proof to establish how the Trenbolone was in her body. 

The Panel finds that the Athlete did not demonstrate, on the balance of probabilities, how the substance entered her body nor otherwise demonstrate that she acted unintentionally. As a result, the conclusion must be that the Anit-Doping Rule Violation was intentional. 

Therefore the Court of Arbitration for Sport decides on 2 July 2020 that: 

1.) The appeal of Maria Guadalupe Gonzalez Romero is dismissed.

2.) The decision rendered by the International Association of Athletics Federations Disciplinary Tribunal on 9 May 2019 is confirmed.

3.) The award is pronounced without costs, except for the Court Office fee of CHF 1,000 ( one thousand Swiss Francs) paid by the Appellant, which is retained by the Court of Arbitration for Sport.

4.) Maria Guadalupe Gonzalez Romero shall pay to the International Association of Athletics Federations a contribution in the amount of CHF 2,000 toward its legal fees and expenses incurred in connection with the present proceedings.

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