CAS 2017/A/5209 Clara Victoria Patrugan v. Romanian National Anti-Doping Agency

• Canoe
• Doping (prohibited method; meldonium)
• Arbitration agreement
• Arbitration agreement conferring jurisdiction to CAS based on a private act incorporating normative statutory act
• Athlete Support Personnel

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1. An arbitration agreement conferring jurisdiction to the CAS must be based on a private act between the relevant parties. Such act can either derive from a specific contract or express agreement, or otherwise from membership or other affiliation with a (private) sports organization or sports governing body and reference to an arbitration clause provided in the statutes or regulations of that sports federation. By contrast, a judicial body whose competence is based on a statutory provision enacted by the legislator (only) does not qualify as a court of arbitration under Swiss law, but rather as a special court established by statutory law.

2. In case a sports federation, in its statutes or regulations, expresses its commitment to respect and follow the national anti-doping provisions, the respective national provisions are to be understood as incorporated into, or to be applied under the statutes and regulations of the sports federation. If furthermore the respective national anti-doping provisions recognize the CAS as the highest adjudicatory body, an individual affiliated to the sports federation and therefore bound by the latter’s rules and regulations may be considered to have concluded, with the respective federation, an arbitration agreement conferring jurisdiction to the CAS. Specifically, the arbitration agreement conferring jurisdiction to the CAS is based on a private act attributable to the parties (i.e. the statutes or regulations of the sports federation) which incorporates the normative statutory act (i.e. the national anti-doping rules recognizing the CAS as the highest adjudicatory body).

3. A medical doctor who, in official correspondence denotes himself “Medical doctor Kayak – Canoe Olympic Pool” and who furthermore renders himself to training camps of athletes affiliated with a national federation in order to perform treatments to the athletes falls into the category of “Athlete Support Personnel” under Appendix 1 to the World Anti-Doping Code (and the respective identic national anti-doping rules), given that he treated and assisted athletes participating in, or preparing for, sports competitions pursuant to said rule. In order to qualify as Athlete Support Personnel it is irrelevant whether the individual in question holds a specific degree (e.g. sports medicine) or similar. Furthermore, by participating in the activities of the national federation and those of its athletes, the medical doctor consented to the statutes and regulations of the national federation; provided those statutes and regulations foresee the possibility of arbitration of anti-doping rule violations, the consent expressed by means of participation also includes that possibility of arbitration.

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On 27 July 2016 the Hearing Commission of the Romanian National Anti-Doping Commission (ANAD) decided to impose a lifetime period of ineligibility on the medical doctor Clara Victoria Patrugan for the treatment of athletes with ozone-therapy. Also ANAD prosecuted the doctor for her failure to report the use of Meldonium when she became aware that some athletes were using this prohibited substance.

Hereafter the doctor appealed, yet the ANAD Appeal Commission confirmed on 3 April 2017 the sanction whereas on 27 November 2017 the Bucharest Court of Appeal concluded that it had no competence to hear the appeal.

Meanwhile in June 2017 the doctor had also appealed the ANAD Appeal Decision of 3 April 2017 with the Court of Arbitration for Sport (CAS). The Athlete questioned the jurisdiction of CAS, but alternatively, she requested the Panel to annul the Appealed Decision.

The doctor denied she committed anti-doping rule violations because she does not qualify as Athlete Support Personnel under the Rules. She admitted that she applied ozone-therapy to athletes and withheld certain information regarding the use of Meldonium by athletes.

She argued that she applied the ozone-therapy only as physician specialized in family medicine and that she was unaware that this was forbidden for athletes. Further she argued that in December 2015 the use of the substance Meldonium by the athletes was still allowed.

The Sole Arbitrator establishes that Ms Petrugan worked as medical doctor for the Olympic kayak-canoe team and the Romanian Kayak and Canoe Federation (RKCF). This undoubtedly qualifies her as Athlete Support Personnel and that she has standing to be sued by ANAD.

The Arbitrator holds that it is undisputed that the doctor applied ozone-therapy to athletes and as a medical doctor supporting athletes she should have known that this treatment offered by her was a prohibited method under the Rules.

The Arbitrator establishes that at the relevant time the doctor had conducted research and that she was aware that athletes could still be tested positive for Meldonium once its ban had come into force. Conversely the doctor failed in her duty to inform the RKCF and ANAD in order to act properly thereafter.

With this information RKCF and ANAD could submitt the athletes for target testing and warn athletes that the use of Meldonium was prohibited as from 1 January 2016. This could have possibly have prevented the athletes from any furher use of the substance whereas later in spring 2016 a number of kayak athletes tested positive for the use of Meldonium.

The Sole Arbitrator deems that the doctor committed a considerable offence and regards that only 9 athletes had received 10 ozone-therapy treatments. There was also no evidence that the doctor was involved into a large anti-doping conspiracy or scheme that justifies the imposition of a lifetime ban.

Therefore the Court of Arbitration for Sport decides on 28 June 2018 that:

1.) The appeal filed by Ms Clara Victoria Patrugan against the decision rendered on 3 April 2017 by the Appeal Commission of the Romanian National Anti-Doping Agency is partially upheld.

2.) The decision rendered on 3 April 2017 by the Appeal Commission of the Romanian National Anti-Doping Agency is amended as follows as far as the period of ineligibility is concerned:

Ms Clara Victoria Patrugan shall be ineligible for a period of 6 (six) years to participate in any competition or activity authorized or organized by a signatory of the WADC, to act in any capacity within a sport body of a signatory of the WADC, to enter any contract relationship with or to act as volunteer for a signatory of the WADC. The period of ineligibility shall be deemed to have started on 3 April 2017.

(…)

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

CAS 2019/A/6249 Roman Balandin v. Association Russian Anti-Doping Agency (RUSADA)

• Basketball
• Doping (meldonium)

Criteria for the determination of the intentionality of an ADRV
CAS panels have to conduct fact-based and case-specific analyses. In the case of a young professional player not contesting the anti-doping rule violation (ADRV), the following elements can be relied upon in order to determine intent: relative experience level (with the sport and the relevant anti-doping rules), general anti-doping education (or lack thereof), level of awareness of previous cases involving the same prohibited substance, motivation to consume the product containing the prohibited substance, circumstances surrounding the player’s visit to his team’s doctor and the accounts of the various participants and witnesses, consistency of the player’s explanations with the levels of prohibited substance found in his system.

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On 28 June 2018 the RUSADA Disciplinary Anti-Doping Committee (DADC) decided to impose a 4 year period of ineligibility on the Russian basketball player Roman Balandin after his sample tested positive for the prohibited substance Meldonium. 

Hereafter in April 2019 the Athlete appealed the DADC decision with the Court of Arbitration for Sport.

The Athlete requested the Panel to set aside the DADC decision of 28 June 2018 and to impose a reduced sanction on the basis of No Significant Fault or Negligence. 

The Athlete denied the intentional use of the substance, argued that he is very young and lacked any formal anti-doping education. He acknowledged that his behavior was careless but not intentional nor significantly negligent.

He explained that he had used the Meldonium as an over-the-counter product. It was recommended by their team doctor and he further had confirmed that he could take this product. Only later the Athlete became aware that the product was prohibited in sports he stopped using it. The team doctor later admitted his fault in allowing the Athlete to use the meldonium which ultimately led to his dismissal from the basketball club. 

The Sole Arbitrator finds that the Athlete very narrowly, by a balance of probabilities, has met his burden of proving that his violation was not intentional. However the Sole Arbitrator deems that the Athlete’s level of fault is significant and considerable. Consequently that there are no grounds to further reduce the period of ineligibility. 

Therefore the Court of Arbitration for Sport decides on 13 September 2019 that:

1.) The appeal filed by Roman Balandin on 16 April 2019 against the decision issued by the RUSADA Disciplinary Anti-Doping Committee on 28 June 2018 is partially upheld.

2.) The decision issued by the RUSADA Disciplinary Anti-Doping Committee on 28 June 2018 is set aside.

3.) Mr Roman Balandin is sanctioned with a two-year period of ineligibility commencing as from the date of his provisional suspension (i.e.19 May 2017).

4.) (…).

5.) (…).

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

CAS 2019/A/6587 Badminton World Federation v. Kate Jessica Foo Kune

In 2017 the Badminton World Federation (BWF) launched an investigation against the official of the Mauritius Badminton Association (MBA) Mr. Raj Gaya and established that he had diverted funds intended for the MBA into his personal bank account.

Consequently the BWF Ethics Hearing Panel decided on 21 November 2018 to impose a fine and a lifetime ban from performing any function in badminton. In this ethics case the Mauritian badminton player Kate Jessica Foo Kune and another key withness assisted the BWF in their investigation and testified against Mr. Gaya. 

In June 2019 the BWF reported an anti-doping rule violation against the Athlete Kate Foo Kune after her A and B samples tested positive for the prohibited substance 1-androstenedione. On 21 October 2019 the BWF Doping Hearing Panel deemed that the Athlete had committed an anti-doping rule violation but decided not to impose a period of ineligibility on the Athlete due to no fault or negligence.

Here the Doping Hearing Panel determined that the Athlete more likely than not had demonstrated that she had consumed water that was deliberately spiked with the prohibited substance and victim of malicious sabotage by the MBA. 

Hereafter in November 2019 the BWF appealed the decision of its Doping Hearing Panel with the Court of Arbitration for Sport. The BWF requested the Panel to set aside the Decision of 21 October 2019 and to impose a 2 year period of ineligibility on the Athlete. 

The BWF accepted that the Athlete’s violation was not intentional but contended that she failed to establish the origin of the prohibited substance. She didn’t demonstrate on the balance of probabilities how the prohibited substance had entered her system nor how an ill-intentioned individual could have deliberately spiked her food or drink with this prohibited substance. 

The BWF argued that it is willing to accept any new evidence, and that it is open to re-evaluate its position regarding such new evidence, that would allow the Athlete to demonstrate that sabotage took place, or any other mitigating circmumstances. 

The Athlete explained why an accidental contamination of her supplements or her food and water consumed during the Championships in Nigeria was not possible. Instead she submitted that the positive test resulted by way of the malicious sabotage by the MBA or Mr. Gaya, or an associate of either. In particular, she asserted that her team backpack had been left out-of-sight several times during the Championships in Nigeria and that the most likely explanation for the positive test is that her water was intentionally spiked without her knowing during this period. 

The Panel regards that the Parties in this case did not dispute that the Athlete’s anti-doping rule violation was unintentional. It also finds that it is not absolutely necessary for the Athlete to show the origin of the prohibited substance to establish absence of intent.

Nevertheless the Panel deems that the Athlete didn’t provide sufficient evidence that supports her assertion while the scientific analysis of an independent expert witness underminded the allegation of sabotage.

The Panel concludes that the Athlete failed to establish on a balance of probabilities how the prohibited substance entered her system. Consequently andy plea of no (significant) fault or negligence must be rejected. 

Therefore the Court of Arbitration for Sport decides on 15 December 2020 that:

1.) The appeal filed by the Badminton World Federation against the decision rendered by the BWF Doping Hearing Panel on 21 October 2019, is upheld.

2.) The decision issued by the Badminton World Federation Doping Hearing Panel on 21 October 2019, is partially set aside.

• Ms. Kate Jessica Foo Kune has violated Article 2.1 of the BWF Anti-Doping Regulations and committed an anti-doping rule violation.
• Ms. Kate Jessica Foo Kune is suspended for two (2) years as from the date of this decision in accordance with Article 10.1 of the BWF Anti-Doping Regulations, with credit given for any period of ineligibility already served.
• The results obtained by Ms. Foo Kune during the All African Championships on 28 April 2019 shall automatically be disqualified, pursuant to Article 9 of the BWF Anti-Doping Regulations.

3.) The present arbitration procedure shall be free of charge, except for the CAS Court Office Fee of CHF 1,000 (one thousand Swiss francs), which has already been paid by the Badminton World Federation 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.

CAS 2021/ADD/23 World Triathlon v. Elena Danilova

• Triathlon
• Doping (trimetazidine)
• Definition of Use under World Triathlon rules
• Standard of proof to characterize an ADRV for Use
• “Reliable means” of evidence
• Beginning and duration of the period of ineligibility and fairness exception

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1. In accordance with article 2.2.2 of the World Triathlon Anti-Doping Rules (WTADR), the mere fact an athlete used a prohibited substance or prohibited method is per se sufficient.

2. World Triathlon has the burden of establishing that an anti-doping rule violation (ADRV) has occurred. The standard of proof shall be whether World Triathlon has established an ADRV to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made. The gravity of the particular alleged wrongdoing is relevant to the application of the comfortable satisfaction standard in any given case .The standard of proof itself is not a variable one. The standard remains constant, but inherent within that immutable standard is a requirement that the more serious the allegation, the more cogent the supporting evidence must be in order for the allegation to be found proven.

3. In accordance with article 3.2 WTADR, unlike an ADRV for “presence”, the commission of an ADRV for Use may be proven by any number of means, so long as they are “reliable”. The term “any reliable means” within the meaning of Article 3.2 WTADR (which mirrors Article 3.2 of the WADC) is not supposed to be limited. Article 2.2. of the WADC provides inter alia that Use “may be established based upon reliable analytical data”.

4. The purpose of the retroactive effect of the disqualification of competitive results, is tied to the integrity of sporting competition with a view to rectifying the record books for the sport and turning the dial back as it were as if the cheating had not occurred. It should be taken into account that, in certain exceptional circumstances, the strict application of the disqualification rule can produce an unjust result. In particular, this may be the case when the potential disqualification period covers a very long term. CAS panels have frequently applied the fairness exception and let results remain partly in force when the potential disqualification period extends over many years and there is no evidence that the athlete has committed ADRVs over the whole period from the ADRV to the commencement of the provisional suspension or the ineligibility period. To find out, whether a sanction is excessive, CAS panels must review the type and scope of the proved rule-violation, the individual circumstances of the case, and the overall effect of the sanction on the offender. CAS panels have a broad discretion when making that assessment.

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

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

As a result in May 2020 World Triathlon (WT) reported an anti-doping rule violation against the Athlete Elena Danilova for the use of the prohibited substance Trimetazidine in June 2014, August 2014 and in June 2015.

Thereupon in June 2021 the Athlete's case was referred to the CAS Anti-Doping Division (CAS ADD) for a Sole Arbitrator first instance procedure.

The Athlete denied the violations and disputed the reliability of the filed evidence in this case provided by WADA, Professor McLaren and Dr Rodchenkov. Further she provided a number of possible explanations as to the findings of Trimetazidine in her samples.

The Sole Arbitrator assessed and addressed the following issues:

• Did the Moscow Laboratory conduct its sample analysis in accordance with the International Standard for Laboratories (ISL)?
• Is the data within the 2015 LIMS Database reliable evidence with regard to the Athlete?
• Was the Athlete part of the Protection Scheme as promulgated by the Moscow Laboratory and RUSADA?
• Was there Trimetazidine in the Athlete’s Samples?
• If the 2015 LIMS Database is reliable with regard to the Athlete, has an ADRV for Use been established to the comfortable satisfaction of the Sole Arbitrator?

The Athlete has consistently denied Use of Trimetazidine and/or involvement in the Disappearing positive methodology (DPM) or of the Russian Protection Scheme. The Sole Arbitrator deems that she has provided no credible account for the Trimetazidine that was found to be in each of her Samples.

Furthermore the Athlete raised a series of possible alternative sources for the evidence of Trimetazidine in her Samples such as her medical use of Meldonium and the unreliability of the 2015 LIMS Database from which the digital evidence of the Trimetazidine arises.

Following consideration the Sole Arbitrator determines that the Athlete provided only suggestions and unsubstantiated claims without corresponding evidence that could demonstrate that the Use of Trimetazidine by her was not intentional. Consequently the Athlete is subject to a 4 year period of ineligibility.

Finally the Sole Arbitrator finds that fairness and proportionality requires that the Athlete's results are only disqualified over a period of time of 4 years, i.e. the same duration as the period of inelgibility, starting from the date of Sampe 3.

Therefore the Court of Arbitration for Sport decides on 17 January 2022 that:

1.) Ms Elena Danilova is found guilty of an anti-doping rule violation in accordance with Article 2.2 of the 2015 World Triathlon ADR Rules between 2014 and June 2015 for the Use of the Prohibited Substance trimetazidine.

2.) Ms Elena Danilova is sanctioned with a 4-year period of ineligibility commencing on the date of this Award.

3.) The period of ineligibility shall commence from 26 May 2021 which is the date when the provisional suspension imposed on Ms Elena Danilova started to run.

4.) All competitive results obtained by Ms Elena Danilova from 6 June 2015 to 5 June 2019 with all resulting consequences (including forfeiture of any medals, points and prizes) are disqualified.

5.) (…).

6.) (…).

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

• CAS 2023/A/9451 Association Russian Anti-Doping Agency (RUSADA) v Ms Kamila Valieva
• CAS 2023/A/9455 International Skating Union (ISU) v Ms Kamila Valieva and The Russian Doping Agency
• CAS 2023/A/9456 World Anti-Doping Agency (WADA) v Russian Anti-Doping Agency (RUSADA) and Ms Kamila Valieva

Related cases:

• CAS OG_2022_08 IOC, WADA, ISU vs RUSADA, Kamila Valieva & ROC
  February 17, 2022
• CAS OG_2022_11 United States Figure Skating Team vs IOC
  March 30, 2022
  
  

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In February 2022 the Russian Anti-Doping Agency (RUSADA) reported an anti-doping rule violation against the Russian figure skater Kamila Valieva (15) after her sample, collected on 25 December 2021, tested positive for the prohibited substance Trimetazidine.

After notification a provisional suspension was ordered on 8 Februay 2022 and consequently the Athlete was prohibited from participation in the 2022 Beijing Olympic Games.

Yet, the RUSADA Disciplinary Anti-Doping Committee (DADC) decided on 9 February 2022 to lift the Athlete's provisional suspension as it deemed that under the Russian ADR and the WADC 2021 the minor Athlete is a Protected Person.

The DADC accepted the explanation and evidence that the prohibited substance entered the Athlete's system through the use of a contaminated product, i.e. the medication used by her grandfather.

Hereafter on 11 and 12 February the IOC, WADA and ISU appealed the DADC Decision of 9 February with the CAS Ad Hoc Division at the Beijing 2022 Olympic Games.

Nevertheless the CAS Ad Hoc Division dismissed the appeals and decides on 17 February 2022 that the Appealed Provisional Suspension regarding the Athlete should remain lifted.

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On 24 January 2023 the RUSADA DADC rendered its final decision and concluded that the Athlete had acted with No Fault or Negligence and without the application of a period of ineligibility. The DADC disqualified her results at the Russian 2021 National Championships, but not her results at the Beijing 2022 Olympic Games.

Hereafter in February 2023 RUSADA, ISU and WADA appealed the DADC decision with the Court of Arbitration for Sport (CAS).

RUSADA, ISU and WADA contended that the Athlete had committed an anti-doping rule violation despite that she is a Protected Person. Accordingly they requested the Panel to set aside the Appealed Decision and to impose an appropriate sanction on the Athlete based on her degree of Fault.

The Athlete accepted the test results and argued that she is a Protected Person. Further she objected the CAS jurisdiction in this case.

She asserted that the violation was not intentional and that she acted with utmost caution to keep clean. She was unaware that her grandfather was using a prohibited substance as a heart medication, thus she was unaware of the potentional risk of a contamination.

In this case the Panel assessed and addressed the evidence and issues raised by the Parties:

• CAS jurisdiction
• The anti-doping rule violation
• The sanctions
• Protected person
• Burdens and standards of proof
• Trimetazidine

Ultimately the Panel concludes:

• The Athlete failed to establish, on the balance of probabilities, that she did not commit the violation intentionally.
• Under the Russian ADR it is not open to the Panel to consider grounds for a reduced sanction.
• There had been substantial delays in the analytical process and in the results managment, which was not attributed to the Athlete.
• The Athlete is a honest, straightforward and credible witness.
• She certainly is not a cheat, nor that she cheated at the Russian 2021 National Championships, nor at the Beijing 2022 Olympic Games (or at any other time).

Therefore the Court of Arbitration for Sport decides on 29 January 2024 that:

1. The Appeal filed on 14 February 2023 by the Russian Anti-Doping Agency against the decision of the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency No. 9/2023 rendered on 24 January 2023 is upheld.
2. The Appeal filed on 20 February 2023 by the International Skating Union against the decision of the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency No. 9/2023 rendered on 24 January 2023 is upheld.
3. The Appeal filed on 21 February 2023 by the World Anti-Doping Agency against the decision of the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency No. 9/2023 rendered on 24 January 2023 is partially upheld.
4. The decision of the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency No. 9/2023 rendered on 24 January 2023 is set aside.
5. Ms Kamila Valieva is found to have committed an anti-doping rule violation under Clause 4.1 of the All-Russian Anti-Doping Rules of 24 June 2021.
6. A period of four (4) years ineligibility is imposed on Ms Kamila Valieva, starting on 25 December 2021. Any period of provisional suspension served by Ms Kamila Valieva shall be credited against the period of ineligibility imposed.
7. All competitive results of Ms Kamila Valieva from 25 December 2021 are disqualified, with all the resulting consequences (including forfeiture of any titles, awards, medals, profits, prizes, and appearance money).
8. (…)
9. (…).
10. (…).
11. (…).
12. (…).
13. (…)
14. All other motions or prayers for relief are dismissed.

, to sanction the Athlete for 4 years

The Athlete in her defence argued that:

• The source of the inadvertent contamination has been established by the DADC after careful analysis, in connection with her interacton with her grandfather, who regularly takes the medicine Trimetazidine.
• The DADC correctly had acknowledged that the Athlete is a Protected Person due to her age;
• The DADC accepted that the Athlete would not have any competitive advantages by consuming the Trimetazidine based on the medical experts' testimonies.
• Under the Rules the conditions are met in order to lift the Provisional Suspension.

RUSADA contended that the analysis in the Stockholm Lab was delayed due to pandemic-related staff shortages and is confident that the Athlete will be able to complete her submission with respect of evidenc in the proceedings before CAS whereas she has a lesser burden of proof as a Protected Person.

The ROC asserted that in the present case concrete evidence showing the source of the contamination is not required (as the Athlete is a Protected Person) and are not available (due to the undue delay in the reporting of the adverse analytical finding by the Anti-Doping Laboratory). As a result the Panel must rely on circumstantial evidence and decide to confirm the Appealed Decision if the scenario submitted by the Athlete with regard to contamination with the Prohibited Substance is more likely that the different scenario of a voluntary ingestion.

The CAS Ad Hoc Panel holds that it is uncontested that the Athlete is clearly a Protected Person under the Russian ADR and that the WADC 2021 intends to give special treatment to the Protected Persons like the Athlete.

The Panel finds that in cases involving Protected Persons, their Provisional Suspensions should be evaluated as optional Provisional Suspensions under WADC 2021 Article 7.4.2 and its progeny.

The Panel determines that the Athlete was entitled to benefit from being subject to an optional Provisional Suspension as a Protected Person and that, under the facts and circumstances, the option not to impose a Provisional Suspension should have been exercised so that she would not be prevented to compete in the Games.

Further the Panel considers in this case:

• the length of time it took for the laboratory to submit its report of an AAF involving the Athlete;
• the timing of that relative to the conduct of the Women’s Single Skating event at the Games;
• the difficulty to be faced in the Athlete not being able in
  the current situation, right in the middle of the Games, to muster proof to support her defence of the ADRV being asserted against her;
• the relatively low level of the prohibited substance found
  in her sample;
• the fact that she has tested negative in multiple tests before;
• after the test in question the case she has attempted to muster on contamination whether in a product or through domestic contamination, and the likely low level of sanction
  she will face if found to have committed an ADRV.

The Panel deems that athletes should not be subject to the risk of serious harm occasioned by anti-doping authorities’ failure to function effectively at a high level of performance and in a manner designed to protect the integrity of the operation of the Games. Accordingly the Panel finds that the Provisional Suspension should remain lifted.

Therefore the CAS Ad Hoc Division decides on 17 February 2022:

1. The Ad Hoc Division of the Court of Arbitration for Sport has jurisdiction to determine the Applications filed by the International Olympic Committee (IOC), World Anti-Doping Agency (WADA) and International Skating Union (ISU).
2. The Applications filed by the International Olympic Committee (IOC), World Anti-Doping Agency (WADA) and International Skating Union (ISU) are dismissed.

CAS OG 16/04 Yulia Efimova v. ROC, IOC & FINA

Related cases:
- CAS OG_2016_13 Anastasia Karabelshikova & Ivan Podshivalov vs FISA & IOC
August 4, 2016
- FINA 2014 FINA vs Yulia Efimova
May 12, 2014
- FINA 2014 FINA vs Yulia Efimova
November 3, 2014

On 12 May 2014 the FINA Doping Panel decided to impose a 16 month period of ineligibility on the Russian swimmer Yulia Efimova for committing an anti-doping rule violation.

On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the "McLaren Report") describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.

On 24 July 2016, the IOC Executive Board issued a decision (the "IOC Decision") concerning the participation of Russian athletes in the Rio Games. According to this decision the following was stated:

"2. Entry will be accepted by the IOC only if an athlete is able to provide evidence to the full satisfaction of his or her International Federation (IF) in relation to the following criteria:
[. . .]
The IFs should carry out an individual analysis of each athlete's anti-doping record, taking into account only reliable adequate international tests, and the specificities of the athlete's sport and its rules, in order to ensure a level playing field.
[. . .]
3. The ROC is not allowed to enter any athlete for the Olympic Games Rio 2016 who has ever been sanctioned for doping, even if he or she has served the sanction".

As a consequence of the IOC Decision the FINA Bureau finds on 25 July 2016 that 7 Russian swimmer were not eligible to compete at the Rio 2016 Olympic Games.

On 30 July 2016 the Athlete appealed the decision of the IOC with the CAS Ad Hoc Division in Rio de Janeiro. The Athletes requested the CAS Ad hoc Division Panel to set aside the IOC decision of 24 July 2016 and the ROC’s decision to exclude her of the entire list and to allow the her to participate in the Russian national team for the Rio 2016 Olympic Games. IOC and FINA requested the Panel to reject the appeal.

The Panel has no doubts at all that the IOC acted in good faith and with the best of intentions when issuing such decision. The IOC confirmed that the aim of these criteria was to give an opportunity to those Russian athletes who were not implicated in the State-organised scheme to participate in the Rio Games.

The Panel notes that the IOC Executive Board made it clear that its decision should be understood to recognise that, where it applied collective responsibility and removed the presumption of innocence, an athlete was entitled to be accorded the rules of natural justice and individual justice. Further, it clearly stated that "each affected athlete must be given the opportunity to rebut the applicability of collective responsibility in his or her individual case".

The Panel finds that the IOC Executive Board exercised its autonomous right to accord these personal rights by reason of its decision. Thus, it bound itself in that way. Points 2 and 3 then represented the implementation of the decision. Contrary to its own decision to accord natural justice to an individual athlete, and in accordance with the Olympic Charter, point 3 constitutes a denial of that personality right.
Accordingly, the IOC Executive Board's decision which, on the one hand, seeks to implement the IOC decision to provide an opportunity to a Russian athlete to rebut the presumption of guilt of participation in the State-sponsored doping scheme but, on the other hand, by point 3 denies that opportunity, is
unenforceable.

The Panel concludes that the Athlete’s application should be partially upheld in that point 3 of the IOC Executive Board's decision dated 24 July 2016 is unenforceable. As was also stated in GAS OG 16/13, the Panel supports the approach taken by the IOC in point 2.

Therefore the ad hoe Division of the Court of Arbitration for Sport decides on 5 August 2016

1.) The application filed by Ms Yulia Efimova on 30 July 2016 is partially upheld.
2.) Point 3 of the IOC Executive Board's Decision dated 24 July 2016 is unenforceable.
3.) All other prayers for relief are rejected.

CAS OG 22/08 - CAS OG 22/09 - CAS OG 22/10 International Olympic Committee (IOC), World Anti-Doping Agency (WADA) & International Skating Union (ISU) v. Russian Anti-Doping Agency (RUSADA), Kamila Valieva, Russian Olympic Committee (ROC)

• Skating (figure skating)
• Lifting of a provisional suspension imposed on an athlete for doping
• Jurisdiction ratione materiae of the CAS ad hoc Division
• Jurisdiction ratione temporis of the CAS ad hoc Division
• Protected Person
• Mandatory provisional suspension for Protected Persons
• Filling of a lacuna in the World Anti-Doping Code
• Treatment of provisional suspensions for Protected Persons as optional provisional suspensions
• Irreparable harm
• Delay in the process of samples

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1. The CAS ad hoc Division has jurisdiction over disputes envisaged under Article 61(2) of the Olympic Charter, i.e. dispute “arising on the occasion or in connection with the Olympic Games” which means that attention should be paid to the dispute and what the dispute is about. Therefore, even if an alleged anti-doping violation has not been committed on the occasion or in connection with the Olympic Games and the provisional suspension imposed as a result of the alleged anti-doping violation does not specifically target the Olympic Games, the dispute might nevertheless be directly connected with the Olympic Games if the dispute is about whether or not the decision to lift such provisional suspension should be confirmed and the outcome of the dispute is relevant for the athlete’s further participation in the Olympic Games.

2. If the decision which gave rise to the dispute was rendered during the period considered to be relevant under Article 1 of the CAS Ad Hoc Rules, the CAS ad hoc Division has jurisdiction ratione temporis over the dispute. In this respect, it is irrelevant whether the initial facts at the basis of the dispute may have arisen at a previous stage.

3. The World Anti-Doping Code (WADC) 2021 intends to treat Protected Persons differently than other Athletes or Persons in certain circumstances based on the understanding that, below a certain age or intellectual capacity, an Athlete or other Person may not possess the mental capacity to understand and appreciate the prohibitions against conduct contained in the Code.

4. The WADC does not provide an exemption to a mandatory Provisional Suspension for a non-specified substance used by a Protected Person even though the ultimate sanction range for the Protected Person is the same as for other categories of athletes who can avoid a mandatory Provisional Suspension. Put differently, a Protected Person is subject to the same ultimate sanction as other athletes who avoid a mandatory Provisional Suspension. But only Protected Persons can potentially receive a public reprimand and no period of ineligibility and yet be subject to a mandatory Provisional Suspension preventing them from competing for months while their case is being handled. This different and harsher treatment for Protected Persons is inconsistent with the oft-expressed intent of the Code drafters to make the Code apply more leniently and flexibly to Protected Persons in light of their age and inexperience, and their diminished responsibility for rule violations. Exempting older athletes from mandatory Provisional Suspensions in most instances in which they might ultimately be able to establish basis for a short sanction or reprimand but not exempting younger, legally incapable, and immature Protected Persons who might be entitled to a short sanction or reprimand appears clearly to be an unintended gap in the Code.

5. When CAS panels find a lacuna, or a gap, in the WADC, this has been the basis for a CAS panel to find a gap filling construct that would ameliorate an overly harsh or inconsistent outcome applying the overarching principle of justice and proportionality on which all systems of law, and the WADC itself, is based. This is an exercise in interpretation, not in rewriting rules or making policies that are better made by sporting bodies exercising proper governance.

6. In cases involving Protected Persons, Provisional Suspensions should be evaluated as optional Provisional Suspensions under the WADC 2021 and its progeny.

7. While it is not in itself sufficient that an athlete is prevented from competing in sports events to justify a stay in itself, given the finite and brief career of most athletes, a suspension (subsequently found to be unjustified) can cause irreparable harm, especially when it bars the athlete from participating in a major sports event.

8. While athletes are held to a high standard in meeting their anti-doping obligations, at the same time, the anti-doping authorities are subject to mere recommendations on time deadlines that are designed to protect athletes from late- or inconveniently-arising claims. The flexibility of the recommendations and guidelines applicable to WADA-accredited labs contrasts with the stringency of the rules on Provisional Suspensions. Although all athletes’ samples are anonymous, it should be possible for anti-doping laboratories and authorities to handle anti-doping tests in a swift manner when the samples are collected at significant pre-events that may constitute selection events for the Olympic Games.

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In February 2022 the Russian Anti-Doping Agency (RUSADA) has reported an anti-doping rule violation against the Russian figure skater Kamila Valieva (15) after her sample, collected on 25 December 2021, tested positive for the prohibited substance Trimetazidine.

After notification a provisional suspension was ordered on 8 Februay 2022 and consequently the Athlete was prohibited from participation in the 2022 Beijing Olympic Games.

Yet the RUSADA Disciplinary Anti-Doping Committee (DADC) decided on 9 February 2022 to lift the Athlete's provisional suspension as it established that under the Russian ADR and the WADC 2021 the minor Athlete is a Protected Person.

The DADC accepted the explanation and evidence that the prohibited substance entered the Athlete's system through the use of a contaminated product, i.e. the medication used by her grandfather.

Hereafter on 11 and 12 February the IOC, WADA and ISU appealed the DADC Decision of 9 February with the CAS Ad Hoc Division at the Beijing Olympic Games. IOC, WADA and ISU requested the Ad Hoc Panel to set aside the Appealed Decision and to re-instate the Provisional Suspension imposed by RUSADA on 8 February 2022.

The Athlete in her defence argued that:

• The source of the inadvertent contamination has been established by the DADC after careful analysis, in connection with her interacton with her grandfather, who regularly takes the medicine Trimetazidine.
• The DADC correctly had acknowledged that the Athlete is a Protected Person due to her age;
• The DADC accepted that the Athlete would not have any competitive advantages by consuming the Trimetazidine based on the medical experts' testimonies.
• Under the Rules the conditions are met in order to lift the Provisional Suspension.

RUSADA contended that the analysis in the Stockholm Lab was delayed due to pandemic-related staff shortages and is confident that the Athlete will be able to complete her submission with respect of evidenc in the proceedings before CAS whereas she has a lesser burden of proof as a Protected Person.

The ROC asserted that in the present case concrete evidence showing the source of the contamination is not required (as the Athlete is a Protected Person) and are not available (due to the undue delay in the reporting of the adverse analytical finding by the Anti-Doping Laboratory). As a result the Panel must rely on circumstantial evidence and decide to confirm the Appealed Decision if the scenario submitted by the Athlete with regard to contamination with the Prohibited Substance is more likely that the different scenario of a voluntary ingestion.

The CAS Ad Hoc Panel holds that it is uncontested that the Athlete is clearly a Protected Person under the Russian ADR and that the WADC 2021 intends to give special treatment to the Protected Persons like the Athlete.

The Panel finds that in cases involving Protected Persons, their Provisional Suspensions should be evaluated as optional Provisional Suspensions under WADC 2021 Article 7.4.2 and its progeny.

The Panel determines that the Athlete was entitled to benefit from being subject to an optional Provisional Suspension as a Protected Person and that, under the facts and circumstances, the option not to impose a Provisional Suspension should have been exercised so that she would not be prevented to compete in the Games.

Further the Panel considers in this case:

• the length of time it took for the laboratory to submit its report of an AAF involving the Athlete;
• the timing of that relative to the conduct of the Women’s Single Skating event at the Games;
• the difficulty to be faced in the Athlete not being able in
  the current situation, right in the middle of the Games, to muster proof to support her defence of the ADRV being asserted against her;
• the relatively low level of the prohibited substance found
  in her sample;
• the fact that she has tested negative in multiple tests before;
• after the test in question the case she has attempted to muster on contamination whether in a product or through domestic contamination, and the likely low level of sanction
  she will face if found to have committed an ADRV.

The Panel deems that athletes should not be subject to the risk of serious harm occasioned by anti-doping authorities’ failure to function effectively at a high level of performance and in a manner designed to protect the integrity of the operation of the Games. Accordingly the Panel finds that the Provisional Suspension should remain lifted.

Therefore the CAS Ad Hoc Division decides on 17 February 2022:

1. The Ad Hoc Division of the Court of Arbitration for Sport has jurisdiction to determine the Applications filed by the International Olympic Committee (IOC), World Anti-Doping Agency (WADA) and International Skating Union (ISU).
2. The Applications filed by the International Olympic Committee (IOC), World Anti-Doping Agency (WADA) and International Skating Union (ISU) are dismissed.

CAS AD 16/11 International Olympic Committee v. Misha Aloian

Related case:
CAS 2017_A_4927 Misha Aloyan vs IOC
June 16, 2017

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. After notification the Athlete filed a statement in his defence and he was heard for the CAS Anti-Doping Division in November 2016.

The Athlete argued that he bears no fault or negligence and that the amount of substance found in his body did not have a performance enhancing effect. The Athlete asserted that he had used the medication Rhinofluimucil out-of-competition on the advice of his team doctor and that the was advised inaccurately by his doctor.

On the balance of probability the Sole Arbitrator accepts the Athlete’s explanation that he used for his chronic disease a medication containing a prohibited substance on the advice of his team doctor.
However the Sole Arbitrator rules that the Athlete failed in his personal duty to ensure that no prohibited substance enerters his body.

Therefore the CAS Anti-Doping Division Sole Arbitrator decides on 8 December 2016:

1.) The Athlete is found to have committed an anti-doping rule violation pursuant to Article 2.1 of the IOC ADR.
2.) The results obtained by the Athlete in the Men’s -52kg boxing event at the Olympic Games Rio 2016, in which he finished 2nd and for which he was awarded a Silver medal, are disqualified with all consequences, including forfeiture of the medal, Olympic diploma and medallist pin.
3.) The Athlete is ordered to return the medal, the diploma and the medallist pin.
4.) The International Boxing Association is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The Russian Olympic Committee is requested to ensure full implementation of this decision and secure the return to the IOC, as soon as possible, of the medal, the medallist pin and the diploma awarded in connection with the Men’s -52kg boxing event.