CAS 2016/A/4643 Maria Sharapova v. International Tennis Federation (ITF)

Related case:
ITF 2016 ITF vs Maria Sharapova
June 6, 2016

Tennis
Doping (meldonium)
CAS jurisprudence as guidance to future panels in doping-related cases
No Significant Fault and deviation from the duty of exercising the “utmost caution”
Parties’ agreement to follow the approach that athletes are permitted to delegate elements of their anti-doping obligations
Athlete’s personal duty to ensure that no prohibited substance enters his/her body and delegation of activities ensuring regulatory compliance
Length of the sanction imposed based on the degree of fault

1. The issue whether an athlete’s fault or negligence is “significant” has been much discussed in the CAS jurisprudence, and chiefly so with respect to the various editions of the WADC. Even if all the CAS cases offer guidance to a panel, all those cases are very “fact specific” and no doctrine of binding precedent applies to the CAS jurisprudence. Indeed, the Tennis Anti-Doping Programme (TADP) itself, while defining the conditions for the finding of No Significant Fault (NSF), stresses the importance to establish it “in view of the totality of the circumstances”, and therefore paying crucial attention to their specificities.

2. A period of ineligibility can be reduced based on NSF only in cases where the circumstances justifying a deviation from the duty of exercising the “utmost caution” are truly exceptional, and not in the vast majority of cases. However, the “bar” should not be set too high for a finding of NSF. In other words, a claim of NSF is (by definition) consistent with the existence of some degree of fault and cannot be excluded simply because the athlete left some “stones unturned”. As a result, a deviation from the duty of exercising the “utmost caution” does not imply per se that the athlete’s negligence was “significant”; the requirements for the reduction of the sanction under Article 10.5.2 of the TADP can be met also in such circumstances.

3. The parties may agree to follow the approach that athletes are permitted to delegate elements of their anti-doping obligations. In this case, if an anti-doping rule violation occurs, the objective fact of the third party’s misdeed is imputed to the athlete, but the sanction remains commensurate with the athlete’s personal fault or negligence in his/her selection and oversight of such third party or, alternatively, for his/her own negligence in not having checked or controlled the ingestion of the prohibited substance. In other words, the fault to be assessed is not that which is made by the delegate, but the fault made by the athlete in his/her choice.

4. Even though, under the TADP, it is the athlete’s personal duty to ensure that no prohibited substance enters his/her body and it is the responsibility of each player to be familiar with the most current edition of the Prohibited List, nothing prevents a high-level athlete focused on demanding sporting activities all over the world, from delegating activities aimed at ensuring regulatory compliance and more specifically that no anti-doping rule violation is committed.

5. The measure of the sanction to be imposed depends on the degree of fault. Even if an athlete is found to be reasonable in selecting a company to assist him/her in meeting his/her anti-doping obligations, failure to monitor or supervise such company and failure to disclose the use of the prohibited substance on her anti-doping control forms exclude the minimum degree of fault falling within NSF.

On 6 June 2016 the ITF Independent Tribunal decided to impose a 2 year period of ineliglibility on the Athlete Maria Sharapova after she tested positive for the prohibited substance Meldonium due to her negligence with the prescribed medication she used without a TUE.

Hereafter in June 2016 the Athlete appealed the ITF decision with the Court of Arbitration for Sport (CAS). The Athlete requested that the Panel find that she bears no significant fault or negligence for the violation and, on such basis, that the period of ineligibility be reduced. The ITF requested the Panel to confirm the Decisionof of 6 June 2016 rendered by the ITF Tribunal.

Considering the circumstances the Panel concludes that the Athlete’s claim of no significant fault or negligence can be accepted and finds that a sanction of 15 months is appropriate given her degree of fault.

Therefore on 30 September 2016 the Court of Arbitration for Sport decides that:

1.) The appeal filed on 9 June 2016 by Ms Maria Sharapova against the decision rendered by the Independent Tribunal of the International Tennis Federation on 6 June 2016 is partially upheld.
2.) The decision rendered by the Independent Tribunal of the International Tennis Federation on 6 June 2016 is set aside.
3.) Ms. Maria Sharapova is suspended for a period of fifteen (15) months commencing 26 January 2016.
4.) Ms. Maria Sharapova’s individual results obtained at the Australian Open on 26 January 2016, including any WTA ranking points and prize money, are disqualified.
5.) The present arbitration procedure shall be free, except for the CAS Court Office fee of CHF 1,000 (one thousand Swiss francs), which has already been paid by Ms Maria Sharapova and is retained by the CAS.
6.) The parties shall bear their own expenses sustained in connection with these arbitration proceedings.
7.) All other motions or prayers for relief are dismissed.

CAS 2016/A/4708 Belarus Canoe Association (BCA) & Belarusian Senior Men’s Canoe and Kayak team members v. International Canoe Federation (ICF)

The members of the Belarusian senior men’s kayak team:
- Mr. Raman Piatrushenka,
- Mr. Vitaliy Bialko,
- Mr. Aleh Yurenia,
- Mr. Pavel Miadzvedzeu,
- Mr. Vadzim Makhneu,
- Mr. Taras Valko,
- Mr. Aliaksandr Liapeshka,
- Mr. Andrei Tsarykovich,
- Mr. Ihar Baicheuski,
- Mr. Ivan Tsuranau,
- Mr. Dzmitry Khilchanka,
- Mr. Spartak Bazhkou,
- Mr. Mikita Borykau,
- Mr. Stanislau Daineka,
- Mr. Dzimtry Tratsiakou.

The members of the Belarusian senior men’s canoe team:
- Mr. Aliaksandr Bahdanovich,
- Mr. Andrei Bahdanovich,
- Mr. Dzianis Harazha,
- Mr. Dzmitry Rabchanka,
- Mr. Dzmitry Vaitsishkin,
- Mr. Artsem Kozyr,
- Mr. Maksim Piatrou,
- Mr. Hleb Saladukha,
- Mr. Dzianis Makhlai,
- Mr. Aliaksandr Vauchetski),

The Belarussian coaches:
- Mr. Uladzimir Shantarovich,
- Mr. Mikalai Banko,
- Mr. Ihar Radomski,
- Mr. Henadzi Halitski.

The Belarussian medical staff of these male teams:
- Mrs. Elena Kallaur,
- Mr. Aliaksei Roik.

• Canoe
• Doping (meldonium)
• Definition of “suspension” and “exclusion” in ICF Statutes
• Distribution of powers within the ICF with regard to decisions in anti-doping matters
• Meldonium taken before 1 January 2016
• Possession of Prohibited Substances by a coach and
• Therapeutic Use Exemption (“TUE”)
• Necessity of legal basis for sanctions

1. Absent any particular explanation in the ICF Statutes and bylaws, the term “suspension” must be understood to have the meaning generally used by many international sports federations. In such understanding “suspension” means that use of all membership rights by the respective National Federation or individual shall be prohibited for a certain period of time. “Exclusion”, as follows directly from the text of Article 42 (c) ICF Statutes, is restricted to particular rights, the participation at international competitions and ICF Competitions.

2. Before the ICF Executive Committee can take any additional disciplinary action under Article 12.3 ICF Anti-doping Rules (“ICF ADR”), the ICF Doping Control Panel has to first render a decision establishing a violation or failure by athletes or other persons affiliated with the National Federation in question fulfilling the requirements of Article 12.3 ICF ADR together with one of its Sub-Articles. In this respect it is not sufficient for the ICF to argue that the mere presence of a Prohibited Substance in an athlete’s body constitutes an anti-doping rule violation: to follow such argumentation would reverse one of the essential achievements of the WADA Code, namely the establishment of independent judicial bodies as replacement of political bodies to decide on anti-doping rule violations. Specifically, it would empty the competence of the ICF Doping Control Panel, circumventing the system of distribution of powers laid down by the ICF Statutes and the ICF ADR; put differently it would prejudge the decisions of the ICF Doping Control Panel and assign to this panel the role of merely executing decisions already taken by the ICF Executive Committee through own decisions; lastly it would deprive the individual person concerned of all procedural guarantees laid down by the WADA Code, implemented by the ICF in the ICF ADR.

3. The 2016 WADA Prohibited List (which entered into force on 1 January 2016) for the first time included meldonium as a prohibited substance. According to the WADA notice on meldonium concerning cases where athletes claim that the substance was taken before 1 January 2016, for samples taken on or after 1 March 2016 and showing a urinary concentration of meldonium below 1000 ng/ml, in the absence of other evidence of use of meldonium on or after 1 January 2016, a finding of no fault could be made. Accordingly, in order to establish a positive finding for meldonium for such a sample, an anti-doping organisation is obliged to demonstrate to the hearing panel’s comfortable satisfaction that the meldonium entered the body of the athlete in question after 1 January 2016.

4. Neither the WADA Code nor the ICF ADR contain an obligation for a Therapeutic Use Exemption for coaches. Therefore, a coach who is found in the possession of a Prohibited Substance but who establish to the hearing panel on a balance of probability that the Prohibited Substance was in his possession for personal medical reasons does not violate Article 2.6.2 ICF ADR prohibiting possession of a Prohibited Substance.

5. It is too late to only at a hearing in front of CAS introduce arguments related to a legal basis on which the imposition of sanctions are allowed if those arguments have not been referred to in the appealed decision. Put differently, issuing a decision first and thereafter searching for a possible legal basis does not confirm to the principle of legality.

On 12 April 2016, French Police and Customs raided the rooms and personal belongings of the male Belarusian canoe athletes at the training camp in Le Temple-sur-Lot (France). They confiscated various substances, medication, material and medical equipment, including meldonium, needles and other equipment for transfusions, Actovegin and iron supplements. The meldonium (16 capsules of Mildronate) were found in the room of Mr. Henadzi Halitski, the coach of the Belarusian women’s kayak team.

Seventeen athletes from the Belarus canoe team underwent a doping control and urine samples were taken from them. Meldonium was found in five of these samples and the French Ministry of Justice opened a criminal case against the Belarussian team. Only one sample showed a concentration above the WADA threshold and the Belarus Canoe Association (BCA) suspended the athlete from any competition.

The BCA expressed to the International Canoe Federation (ICF) its intention to support doping free sport. The BCA argued that the import of certain medicines was only a violation of customs rules and explained with evidence that the use and possession of the medication was valid. It asserted that the seized Mildranat was prescribed and used by Henadzi Halitski the coach of the Belarus’ women’s team.

Considering the results of the French raid into the training camp the ICF Executive Committee concluded that there was enough evidence and proof to issue sanctions against the athletes, coaches and entourage of the Belarus delegation.

The ICF Executive Committee decided on 15 July 2016 to impose a 1 year period of ineligibility on the Senior Men’s Canoe and Kayak teams including coaches, medical staff and entourage for all international competitions. The starting date for this sanction would be 13 July 2016.

Hereafter in July 2016 the Appellants appealed the ICF decision of 15 July 2016 with the Court of Arbitation for Sport (CAS). The BCA argued that the ICF Executive Committee was not entitled to issue the Decision and it violated the relevant Rules and procedural rights of the Athletes.

The Panel finds that the ICF Decision of 15 July 2016 to the exclusion (ban) was not restricted to officials only and disregarding two further restrictions.
Having not been provided with evidence by the ICF to its comfortable satisfaction that the BCA Athletes took meldonium after 1 January 2016, the Panel holds that there was no anti-doping rule violation committed by the athletes as to meldonium.

Besides, the ICF Executive Committee erred in the Appealed Decision in holding that meldonium was in the possession of the Belarus contingent, which, thus, committed a violation of Article 2.6.2 ICF ADR. The coach Mr. Halitski could explain to the Panel on a balance of probability and even to its comfortable satisfaction that the meldonium was in his possession for personal medical reasons. Since there is no obligation for a Therapeutic Use Exemption for coaches in place under the WADA Code and the ICF ADR, the Panel finds that Article 2.6.2 ICF ADR has not been violated by such possession.

The ICF could not establish to the comfortable satisfaction of the Panel that the transfusion equipment and medication found at the raid of the BCA’s training camp in France, as far as disclosed to the Panel, served the aims of prohibited methods. Thus, the Panel finds that no violation of Article 2.6.2 ICF ADR took place. There was no possession of prohibited methods, regardless of the question whether Article 2.6.2 ICF ADR is clear and precise enough at all because it does not determine under which conditions and from when a person has possession of a prohibited method.

Since there were not four or more violations of the ICF ADR (other than violations involving Article 2.4) committed by Athletes or other Persons affiliated with the BCA within a 12-month period in testing conducted by the ICF or Anti-Doping Organisations other than the BCA or BCA’s National Anti-Doping Organisation, the Panel finds that Article 12.3 ICF ADR, read together with Sub-Article 12.3.1 could not be applied on the BCA, based on the established facts. As a result, the Appealed Decision of the ICF Executive Committee is set aside.

In conclusion, the Panel finds that the Appealed Decision is also set aside as premature because there were no previous decisions taken by the ICF Doping Control Panel on violations of the ICF ADR by Athletes or other Persons affiliated with the BCA.

Therefore the Court of Arbitration for Sport decides on 23 January 2017:

1.) The appeal filed by the Belarus Canoe Association and the Belarusian senior men’s canoe and kayak team members against the decision rendered on 15 July 2016 by the ICF Executive Committee is upheld.
2.) The decision of the Executive Committee of the International Canoe Federation rendered on 15 July 2016 is set aside.
3.) The present award is rendered without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss francs), which has already been paid by the Belarus Canoe Association and is retained by the Court of Arbitration for Sport.
4.) (…).
5.) All other motions or prayers for relief are dismissed.

CAS 2016/A/4716 Cole Henning v. South African Institute for Drug-Free Sport (SAIDS)

Related cases:

• SAIDS 2015_11 SAIDS vs Cole Henning
  February 8, 2016
• SAIDS 2015_11 Cole Henning vs SAIDS - Appeal
  July 8, 2016

• Mixed Martial Arts
• Doping (methylhexaneamine)
• Burden and standard of proof in respect of Specified Substances
• Identification of the origin of the prohibited substance as a prerequisite to negate intention
• Unavailability of the Special Assessment for an out-of-competition ADRV related to a specified substance
• Qualification of an intentional violation based on the reckless conduct of the athlete and on the circumstances

1. Where an anti-doping rule violation (ADRV) is in respect of Specified Substances, the burden rests with the anti-doping organisation (ADO) to establish that the violation was intentional. Although the WADA Code is silent on the precise standard of proof which the ADO must provide to establish that a violation was intentional, the practice is that the standard required by CAS panels would be the same “comfortable satisfaction” standard that ADO are held to establish in an ADRV, especially since “comfortable satisfaction” has been recognised in CAS awards as the general standard applicable in disciplinary matters, in order for the CAS panel to determine which sanctions or other results should follow.

2. The identification of the substance consumed by the athlete as the cause of the ADRV is a pre-requisite to negate the intentional element of the ADO applicable rules, without which identification of the intention to “cheat” may be assumed.

3. An athlete does not qualify for the benefits of the special assessment provided by the ADO applicable rules (article 10.2.3 of the SAIDS Rules corresponding to article 10.2.3 of the WADA Code), enabling the athlete to invoke the rebuttable presumption that the ADRV was not intentional if the substance is a Specified Substance and the athlete can establish that the prohibited substance was used out-of-competition, because the ingesting of the product the day before competition (at best for the athlete) should be considered as in-competition ingesting especially where pursuant to the athlete’s evidence, the use of the product was to benefit his sporting performance i.e. was used for the purpose of his sport and not for an unrelated purpose, and because neither the athlete nor his counsel have raised or argued for the exclusion of “intentional” from the provisions of Article 10.2.3, either expressly or impliedly.

4. Carelessly ingesting a variety of supplements and products, without investigating whether any of them contained any Prohibited Substances, particularly at a time when he was aware that certain substances are banned, highlights an awareness on the part of the athlete that there existed a risk that this conduct might constitute or result in an ADRV, which risk he manifestly disregarded. These circumstances and evidence justify the conclusion that the athlete knowingly, negligently and/or recklessly engaged in conduct both by acts and/or omissions which truly represent a substantial and inexcusable breach of his duties under the applicable rules, thereby constituting the intention (to cheat).

On 8 February 2016 the South African Independent Doping Hearing Panel (IDHP) decided to impose a 4 year period of ineligibility on the mixed martial arts professional fighter Cole Henning after his sample tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).
The Athlete appealed the IDHP decision and on 2 July 2016 the Anti-Doping Appeal Committee of South Africa (ADACSA) decided to uphold the IDHP decision of 8 February 2016 and to dismiss the Athlete’s appeal.

Hereafter in July 2016 the Athlete appealed the ADACSA decision with the Court of Arbitration for Sport (CAS). The Athlete admitted the violation and stated that the positive test was the result of his use of the supplement TNT-Mercury Napalm containing the prohibited substance. The Athlete denied the intentional use of the prohibited substance and argued that there are grounds for No (Significant) Fault or Negligence.

The South African Institute for Drugfree Sport (SAIDS) contended that the Athlete acted with little concern about the risk for the supplements he took. He showed scant regard for his responsibility to establish what was and what was not prohibited, for checking whether substances he took contained Prohibited Substances and that he was reckless as to consequences.

Considering the Athletes conduct in this case the Sole Arbitrator finds that there exist many significant departures from the expected standard of care, including important breaches of duty on the part of the Athlete, none of which might be subject to a credible, relevant (non-doping) explanation, which could lead to a relatively low level of fault. To the contrary, the Sole Arbitrator finds the Athlete’s level of fault to be high enough to conclude that Athlete had the intention to cheat.

Therefore the Court of Arbitration for Sport decides on 9 March 2017 that:

1.) The appeal filed on 22 July 2016 by Mr. Cole Henning against the decision issued on 2 July 2016 by the Anti-Doping Appeal Committee of South Africa is dismissed.
2.) (…).
3.) (…).
4.) All other prayers and motions for relief are dismissed.

CAS 2016/A/4840 International Skating Union (ISU) v. Alexandra Malkova, Russian Skating Union (RSU) & Russian Anti-Doping Agency (RUSADA)

Skating (short track speed skating)
Doping (tuaminoheptane)
Consumption out-of-competition of substance prohibited in-competition only
Assessment of the level of fault
Principle of equal treatment
Threshold for review by CAS panel of sanction imposed in first instance

1. The taking out-of-competition of a substance prohibited in-competition only does not constitute itself doping or illicit behaviour. The violation is not the ingestion of the substance, but the participation in competition while the substance (or its metabolites) is still in the athlete’s body. The illicit behaviour lies in the fact that the athlete returned to competition too early, or at least earlier than when the substance taken out of competition had cleared his/her system for drug testing purposes in competition.

2. As regards the level of fault by the athlete it has to be taken into account that requiring from an athlete in such cases not to ingest the substance at all would lead to enlarging the list of substances prohibited at all times to include the substances contained in the in-competition list. It follows from this that if the substance forbidden in-competition only is taken out-of-competition, the range of sanctions applicable to the athlete is from a reprimand to 16 months (because, in principle, no significant fault can be attributed to the athlete). However, exceptions to this general rule have to be made in cases where an athlete could easily have made the link between the intake of the substance and the risks being run, e.g. where the product is a medicine designed for a therapeutic purpose. This is because in this scenario, a particular danger arises that calls for a higher duty of care, as medicines are known to have prohibited substances in them.

3. Whereas the principle of equal treatment is not a circumstance envisaged in the definition of No Significant Fault as a circumstance to be taken into account in the assessment of its degree and the appropriate sanction consequent upon it, the principle and rationale for it is generally accepted as part of the lex ludica.

4. When reviewing the sanction imposed by a tribunal of first instance the sanction imposed has to be “grossly disproportionate” for a CAS panel to substitute it by a new sanction rather than for it to show deference to the expertise of the body from whom an appeal is brought. The threshold for review is the same whether the sanction imposed by the tribunal of first instance is too high or too low.

On 29 July 2016 the Russian Anti-Doping Agency (RUSADA) decided to impose a 3 month period of ineligibility on the short track speed skater Alexandra Malkova (18) after her sample tested positive for the prohibited substance Tuaminoheptane. The decision was adopted by the Russian Skating Union (RSU) on 7 September 2016.

In this case the Athlete admitted the violation and explained that she had used prescribed medication Rinofluimucil in the out-of-competition period as treatment for her actute sinusitis and without intention to enhance het performance. The Athlete knew that the substance in her medication was on the prohibited list and she stopped using this medication 2 weeks before the competition.

In October 2016 the International Skating Union (ISU) appealed the decisions of RUSADA and RSU with the Court of Arbitration for Sport (CAS). The ISU argued that the Athlete failed to establish No Significant Fault or Negligence and that the imposed sanction was disproportionately low.

RUSADA contended that the imposed sanction was proportional and the prescribed medication was used out-of-competition while the Athlete had used this medication before and never tested positive.
She is a young Athlete; lacked the anti-doping education provided to the national team; and could not be expected to know the precise excretion time of the prohibited substance.

The Panel accepts the arguments in favour of the young Athlete and considers that there are grounds to reduce the standard sanction of 2 years. The Panel holds that RUSADA’s justification to impose a sanction of 3 months for the inadvertent use of the Tuaminoheptane should not be taken for the future as providing appropriate guidance in similar cases.

Therefore the Court of Arbitration for Sport decides on 6 November 2017:

1.) The appeal filed by the International Skating Union on 28 October 2016 against the decision rendered by RUSADA on 29 July 2016 and the decision rendered by the Executive Committee of the Russian Skating Union on 7 September 2016, is upheld.
2.) The decision rendered by RUSADA on 29 July 2016 and the decision rendered by the Executive Committee of the Russian Skating Union on 7 September 2016, are set aside.
3.) Ms Malkova is sanctioned by 20 months ineligibility with effect from 26 April 2016.
4.) All competitive results obtained by Ms Malkova between 17 March 2016 and the beginning of her period of ineligibility shall be disqualified, with all of the consequences including forfeiture of any medals, points and prizes.
5.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne by RUSADA and RSU.
6.) RUSADA and RSU are ordered to pay each to ISU an amount of CHF 2,500 (two thousand five hundred Swiss francs) as a contribution towards its legal fees and other expenses incurred in connection with these arbitration proceedings. Otherwise each party shall bear its own costs and other expenses incurred in connection with this arbitration.
7.) All other motions or prayers for relief are dismissed.

CAS 2016/A/4889 Olga Abramova v. International Biathlon Union (IBU)

Related case:
IBU 2016 IBU vs Olga Abramova
November 14, 2016

Biathlon
Doping (meldonium)
Establishment of No Fault or Negligence
Athlete’s discharge that s/he exercised his/her utmost caution
Elimination of sanction

1. In order for an anti-doping rule violation by an athlete to be analysed as not having involved any Fault or Negligence on his/her part, said athlete needs to establish how the prohibited substance entered his/her system and that s/he did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that s/he had Used or been administered the Prohibited Substance or Prohibited Method or otherwise violated an anti-doping rule.

2. When analysing whether one athlete acted with utmost caution when using meldonium, the state of scientific knowledge about the excretion particularities of meldonium before 2016 and the athlete’s medical reasons for its prescription are to be taken into consideration.

3. According to art. 10.4. of the WADA Code, if an athlete establish in an individual case that he or she bears No Fault or Negligence, then the otherwise applicable period of ineligibility shall be eliminated. Additionally, pursuant to art. 10.7.3. of the WADA Code, an anti-doping rule violation for which an athlete has established No Fault or Negligence shall not be considered a prior violation for purposes of said article.

On 14 November 2016 the IBU Anti-Doping Hearing Panel (ADHP) decided to impose a 1 year period of ineligibility on the Ukrainian Athlete Olga Abramova after she tested positive for the prohibited substance Meldonium. The Athlete stated that she used the medication Meldonium prescribed by her doctor between November and December 2015 before the substance was included on the WADA 2016 Prohibited List.

Hereafter in December 2016 the Athlete appealed the ADHP decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the decision of 14 November and to be cleared from any involvement in any anti-doping scandals in spite of the fact that she already had served the imposed 1 year period of ineligibility.

The Athlete argued that the administration of Meldonium before 1 January 2016 does not constitute an anti-doping rule violation and the concentration of Meldonium in her sample is acceptable. She asserted that WADA approved a transition period during which traces of Meldonium in the Athlete’s body are acceptable by establishing persmissible urinary concentrations during different periods after 1 January 2016. Also WADA made an exception to the Prohibited List by creating legitimate expectations.

The Panel finds that the available evidence in this case indicates that it was more likely than not that the Athlete did not take Meldonium on or after 1 January 2016. In view of scientific uncertainties, the Panel accepts the Athlete's assertion that she did not use Meldonium on or after 1 January 2016 and that a concentration of Meldonium of 7.3μg/ml is consistent with her administration of the substance before the Prohibited List entered into force, i.e. before 1 January 2016.

The Panel accepts that the Meldonium was administered because of medical reasons and not in order to enhance her sports performance. The Panel holds that the lack of scientific knowledge on the excretion particularities of Meldonium confirms that she could not reasonably have known or suspected that Meldonium could be detected in her blood after 1 January 2016. Further the Panel is comfortably satisfied that the Athlete fulfilled her obligation to ensure that Meldonium did not enter her body after 1 January 2016.

The Panel concludes that the Athlete has established the two components necessary for finding No Fault or Negligence, by establishing how the prohibited substance entered her system and by discharging her duty of utmost caution to ensure that the prohibited substance would not be detected in her body after the Prohibited List came to force.

Therefore the Court of Arbitration for Sport decides on 18 April 2017 that:

1.) The appeal filed on December 5, 2016 by Ms Olga Abramova against the decision rendered by the International Biathlon Union Anti-Doping Hearing Panel on November 14, 2015 is partially upheld.
2.) The decision rendered by the International Biathlon Union Anti-Doping Hearing Panel on November 14, 2015 is set aside.
3.) Ms Olga Abramova's results obtained between January 10, 2016 and February 3, 2016, are disqualified.
4.) Ms Olga Abramova's contribution of EUR 2000 towards the IBU's costs is cancelled.
5.) The present arbitration procedure shall be free, except for the Court Office fee of CHF 1,000 ( one thousand Swiss francs), which has already been paid by Ms Olga Abramova and is retained by the Court of Arbitration for Sport.
6.) The Parties shall bear their own costs.
7.) All other motions or prayers for relief are dismissed.

CAS 2017/A/4927 Misha Aloyan v. International Olympic Committee (IOC)

Related case:
CAS OG_AD_2016_11 IOC vs Misha Aloian
December 8, 2016

Boxing
Doping (tuaminoheptane)
Interpretation of the statutes and rules of a sport association
Discretion with regard to automatic disqualification of results
Withdrawal of medals

1. Under Swiss law, the interpretation of the statutes and rules of a sport association has to be rather objective and should always start with the wording of the rule, which falls to be interpreted. The adjudicating body will have to consider the meaning of the rule, looking at the language used, and the appropriate grammar and syntax. In its search, the adjudicating body will have further to identify the intentions (objectively construed) of the association which drafted the rule, and such body may also take account of any relevant historical background which illuminates its derivation, as well as the entire regulatory context in which the particular rule is located.

2. The wording of Article 9 of the IOC Anti-Doping Rules (ADR) leaves no room for any form of discretion to verify whether a finding of an anti-doping rule violation should not trigger the “Automatic Disqualification of Individual Results”: it refers to the “automatic” disqualification of results and does not mention any way to avoid such “automatic” consequence of an anti-doping rule violation. Automatic meaning “following necessarily”, what follows “necessarily” is not by definition subject to any discretional evaluation or flexibility. This conclusion is supported by the entire regulatory context in which Article 9 of the IOC ADR operates. Indeed, the “Automatic Disqualification of Individual Results” appears to be nothing else than an objective consequence of an objective fact, i.e. of the finding of an anti-doping rule violation, and an effect of a retroactive assessment of a condition of ineligibility: no athlete using a prohibited substance (unless authorized on the basis of a valid TUE) can compete; if an athlete is later found having competed while a prohibited substance was in his/her body, his/her individual results are disqualified. The disqualification is not a sanction, but only the reinstatement of an objective condition, which explains why its application is “automatic”. On the other hand, the other consequences deriving from the finding of an anti-doping rule violation have the character of a sanction, and therefore engage consideration of the athlete’s fault, which falls to be assessed by the adjudicating body according to the rules.

3. It is not possible to allow an athlete to keep a silver medal (and all related honours) on the basis of the argument that the medal was secured following his/her victory in the Semi-final, and therefore that the disqualification of his/her result at the Final would not entail the withdrawal of the medal already won. Medals are awarded only after a competition has been concluded so that disqualification from the Final carries with it as a necessary concomitant loss of any medal which would otherwise have been awarded as a result of victory in the Semi-final.

Mr. Misha Aloian is a Russian Athlete competing in the Men’s -52kg boxing event at the Rio 2016 Olympic Games.

On 7 September 2016 the IOC has reported an anti-doping rule violation against the Athlete after his sample tested positive for the prohibited substance tuaminoheptane. As a result the CAS Anti-Doping Division Panel (CAS ADD) decided on 8 December 2016 to disqualify the Athlete’s results obtained at the Rio 2016 Olympic Games including forfeiture of any medal, diploma, medallist pin, points and prizes.

Hereafter in December 2016 the Athlete appealed the CAS ADD Panel decision with the Court of Arbitration for Sport (CAS).
The Athlete admitted the anti-doping violation and that he had duly demonstrated how the prohibited substance entered into his system, not enhancing his sporting performance at all. The Athlete asserted that in this appeal the Panel has to determine whether the automatic disqualification of the result obtained by the Athlete was proportionate or disproportionate in the unique circumstances of the specific case.

The Panel concludes that Article 9 of the IOC ADR leaves no room for any form of discretion to verify whether a finding of an anti-doping rule violation should not trigger the “Automatic Disqualification of Individual Results”. As a result, there is no need to consider the Second Issue, and more specifically whether the Athlete’s situation is such as to avoid the triggering of the mentioned “Automatic Disqualification of Individual Results”.

Therefore the Court of Arbitration for Sport decides on 16 June 2017 that:

1.) The appeal filed on 29 December 2016 by Mr Misha Aloyan against the award rendered on 8 December 2016 by the Sole Arbitrator of the CAS Anti-Doping Division for the Rio 2016 Olympic Games is dismissed.
(…)
4.) All other motions or prayers for relief are dismissed.

CAS 2017/A/4954 World Antidoping Agency (WADA) v. Belarus Taekwondo Federation (BTF) & Arman-Marshall Silla

On 23 November 2016 the Disciplinary Committee of the Belarus Taekwondo Federation (BTF) decided not to impose any period of ineligibility on the Athlete Arman-Marshall Silla after his samples tested positive for the prohibited substance Meldonium.
Here the BTF Disciplinary Committee considered that there was a hostile environment and fierce competition between the members of the National Taekwondo Team with personal animosity between two coaches and the Athlete’s coach leading to the Athlete’s unintentional use of the substance.

Hereafter in January 2017 the World Anti-Doping Agency (WADA) appealed the Belarus decisions with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the BTF decision of 23 November 2016 and to impose a 4 year period of ineligibility on the Athlete.

WADA argued that the Athlete failed to establish that the violation was not intentional nor did he establish how the prohibited substance entered his system. Further, WADA disputed the State Security Committee’s decision to close their investigation in January 2017 while an expert report published thereafter by the (not WADA-accredited) Minsk Lab contained unsubstantiated assertions.

The Athlete accepted the test results and argued that the violation was not intentional and the result of his use of a contaminated supplement as confirmed in the expert report of the Minsk Lab.
The Athlete asserted that he investigated how the substance entered his system; he filed a police report and filed a request for an expert opinion. Also the Athlete presented the results of a polygraph examination that shows that he and his coach told the truth.

In order to establish No Significant Fault the Sole Arbitrator finds that there were many inconsistencies in the Athlete’s statements and he failed to produce credible evidence that indicates exactly how the supplement in question was used. The Sole Arbitrator notes that much of the evidence was filed very late in the proceedings and holds that a polygraph test is inadmissible as evidence. The mentioned hostile environment and the animosity within the National Taekwondo Team give little weight in assessing the Athlete’s degree of fault.

Therefore the Court of Arbitration for Sport decides on 20 July 2017 that:

1.) The appeal filed on January 17, 2017 by World Anti-Doping Agency against the decision rendered by the Disciplinary Committee of the Belarus Taekwondo Federation on November 23, 2016 in the matter of Arman-Marshall Silla is upheld.
2.) The decision rendered by the Disciplinary Committee of the Belarus Taekwondo Federation on November 23, 2016 in the matter of Mr Annan-Marshall Silla is set aside.
3.) Mr Alman-Marshall Silla is sanctioned with a four-year (4) period of ineligibility starting on the date on which this CAS award enters into force. Any period of provisional suspension or ineligibility effectively served by Mr Arman-Marshall Silla before the entry into force of this CAS award shall be credited against the total period of ineligibility to be served.
4.) All competitive results obtained by Mr Annan-Marshall Silla from and including July 13, 2016 until August 11, 2016, are disqualified.
5.) The costs of the present arbitration, to be determined and served to the parties by the CAS Court Office, are to be jointly and severally borne by the Belarus Taekwondo Federation and Mr Arman-Marshall Silla.
6.) The parties shall bear their own costs.
7.) All other motions or prayers for relief are dismissed.

CAS 2017/A/5112 Arsan Arashov v. International Tennis Federation (ITF)

Related case:
ITF 2016 ITF vs Arsan Arashov
April 10, 2017

Tennis
Doping (meldonium)
Strict liability under art. 2.1 TADP
Invalidation of an AAF based on a departure from the doping control procedure
Mechanism of proof by an athlete of his/her absence of intent to commit an ADRV
Reduction of a sanction based on proportionality

1. The rule set forth in art. 2.1 of the Tennis Anti-Doping Programme (TADP) is a strict liability offence. The question of how the Prohibited Substance entered one athlete’s sample is not relevant to the commission of an anti-doping rule violation (ADRV) and the question of one athlete’s lack of intent, fault, negligence or knowledge is irrelevant to a charge that an ADRV has been committed. Under such strict liability regime, an ADRV is established where there is an Adverse Analytical Finding (AAF) in respect of one athlete’s A sample and the analysis of said player’s B sample confirms the presence of the Prohibited Substance found in the A sample.

2. An athlete seeking to have an AAF invalidated on the basis of a departure from the International Standards for Laboratories, other International Standard, or other anti-doping rule or policy set out in the World Anti‐Doping Code (WADA Code) or the TADP must establish that there was a departure from a mandatory requirement and that it could reasonably have caused the AAF. Deviations from applicable standards do not per se invalidate an AAF. One athlete must satisfy both requirements in order to have the burden of proof shifted to the counter-party.

3. An athlete seeking to discharge the presumption of intent does not necessarily have to show exactly how the Prohibited Substance entered his sample. However, if unsuccessful, it will be very difficult for the athlete to discharge the presumption of intent, as the factual basis on which an adjudicating body can base such a conclusion will be absent. This has been recognised by CAS considering the question of No (Significant) Fault or Negligence under previous versions of the WADA Code where proof of the source of the Prohibited Substance was not a strict requirement. There may be circumstances in which an adjudicating body can be satisfied that the ADRV was unintentional, despite the source of the Prohibited Substance not being established, where it finds, for example, the testimony of the athlete credible, that such evidence is corroborated by experts and other relevant individuals, and where the scenario submitted by the athlete appears to be the most plausible.

4. That proportionality may require a reduction of a sentence below the stipulated minimum is recognised under Swiss law and is a widely generally accepted principle of sports law. The cases which necessitate the exercise of this flexibility are rare. Only in the event that the outcome would violate the principle of proportionality such that it would constitute a breach of public policy should a tribunal depart from the clear wording of a text.

On 10 April 2017 the ITF Anti-Doping Tribunal decided to impose a 2 year period of ineligibility on the minor Kazakh player Arsan Arashov after his A and B samples tested positive for the prohibited substance Meldonium.

The Tribunal was unable to accept the Athlete’s evidence and assertions and concludes that he committed the anti-doping rule violation. Notwithstanding the Athlete’s firm denials, the Tribunal ruled that he did in fact ingest Meldonium prior to the sample collection, he failed to assist the Tribunal with helpful and accurate evidence and failed to establish that the violation was not intentional.

Hereafter in April 2017 the Athlete appealed the ITF decision of 10 April 2017 with the Court of Arbitration for Sport (CAS).

The Athlete argued that he did not knowingly ingested Meldonium and that departures occurred of the ISTI and ISL. He assumed that Meldonium was present in the water that he consumed in the waiting area of the Doping Control Station or in the sample collection kit. The ITF contested that the Athlete's hypotheses are ''pure speculation" and that the most likely explanation for the presence of Meldonium in the Athlete's sample is that he “actively ingested” it.

The Panel considered the Athlete’s arguments and allegations and finds that nothing provided by the Athlete displaces the presumption that the Anti-Doping Rule Violation was intentional.
Due to the Athlete had not rebutted the presumption of intent he therefore could neither benefit from any reduction in the period of ineligibility on the basis of No Fault or Negligence or No Significant Fault or Negligence. Though the Athlete is a Minor, that alone cannot justify a reduction on the basis of proportonality.

Therefore the Court of Arbitration for Sport decides on 21 November 2017 that:

1.) The Appeal filed on 19 May 2017 by Mr. Arsan Arashov against the decision rendered by the International Tennis Federation Independent Anti-Doping Tribunal on 10 April 2017 is dismissed.
2.) The decision rendered by the International Tennis Federation Independent Anti Doping Tribunal on 10 April 2017 is confirmed.
3.) This award is pronounced without costs, except for the Court Office fee of one thousand Swiss Francs (CHF 1,000), which was paid by Mr. Arsan Arshov and is retained by the CAS.
4.) Each party shall bear its own legal and other costs.
5.) All other motions or prayers for relief are dismissed.