In March 2016 the International Biathlon Union (IBU) has reported anti-doping rule violation against the Russian Athlete Eduard Latypov after his sample - provided on 14 February 2016 - tested positive for the prohibited substance Meldonium. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and waived his right to be heard for the IBU Anti-Doping Hearing Panel (ADHP).

The Athlete accepted the test results and explained that he had used Mildronate (Meldonium) prescribed by a therapist in October and November 2015. He stopped using his medication in November 2015 because the substance would be included on the WADA 2016 Prohibited List. He argued that the concentration Meldonium found in his sample was far below the WADA threshold.

On 2 May 2016 the proceedings were suspended in order to take into account an announced WADA study while the provisional suspension was lifted. Also in April and June 2016 WADA issued two notices on Meldonium concerning cases where athletes claim that the substance was used before 1 January 2016. Considering these WADA Notices the IBU contended that the Athlete has committed an anti-doping rule violation and because of No Fault that no period of ineligiblility shall be imposed.

The ADHP concludes that the presence of the prohibited substance in the Athlete’s sample establish that he committed an anti-doping rule violation under the Rules in conjuction with the 2016 Prohibited List. The ADHP considers that the time of the administration of Meldonium - whether before or on or after 1 January 2016 - is irrelevant in this respect. The time of the administration may, however, have an impact on the determination of the sanction and the ADHP considers in this respect the WADA Meldonium Notice issued in June 2016. The Panel accepts that exceptional circumstances were present and that there is no evidence that he used Meldonium on or after 1 January 2016 for establishing No Fault.

Therefore ADHP decides on 7 September 2016 that the Athlete has committed an anti-doping rule violation. Because the Athlete bears No Fault no period of ineligibility is imposed. The Athlete’s competitive results obtained between 14 February and 8 March 2016 are disqualified.

In March 2016 the International Biathlon Union (IBU) has reported anti-doping rule violation against the Romanian Athlete Eva Tofalvi after her sample - provided on 8 March 2016 - tested positive for the prohibited substance Meldonium. After notification a provisional suspension was ordered. The Athlete filed a statement in her defence and waived her right to be heard for the IBU Anti-Doping Hearing Panel (ADHP).

The Athlete accepted the test results and submitted that he had used Mildronate (Meldonium) prescripted by her cardiologist Between September and December 2015 and not in 2016 after the substance was included on the WADA 2016 Prohibited List.

In April and June 2016 WADA issued two notices on Meldonium concerning cases where athletes claim that the substance was used before 1 January 2016. Considering these WADA Notices the IBU contended that the Athlete has committed an anti-doping rule violation and because of No Fault that no period of ineligiblility shall be imposed.

The ADHP concludes that the presence of the prohibited substance in the Athlete’s sample establish that she committed an anti-doping rule violation under the Rules in conjuction with the 2016 Prohibited List. The ADHP considers that the time of the administration of Meldonium - whether before or on or after 1 January 2016 - is irrelevant in this respect. The time of the administration may, however, have an impact on the determination of the sanction and the ADHP considers in this respect the WADA Meldonium Notice issued in June 2016. The Panel accepts that exceptional circumstances were present and that there is no evidence that she used Meldonium on or after 1 January 2016 for establishing No Fault.

Therefore ADHP decides on 7 September 2016 that the Athlete has committed an anti-doping rule violation. Because the Athlete bears No Fault no period of ineligibility is imposed. The Athlete’s competitive results obtained between 8 March and 29 March 2016 are disqualified.

In February 2016 the International Biathlon Union (IBU) has reported anti-doping rule violation against the Ukrainian Athlete after his sample - provided on 23 January 2016 - tested positive for the prohibited substance Meldonium. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the IBU Anti-Doping Hearing Panel (ADHP).

The Athlete accepted the test results and explained that he had used Mildronate (Meldonium) without prescription for his heart problems in October en November 2015 and not in 2016 after the substance was included on the WADA 2016 Prohibited List.

The IBU has serious doubt about the alleged medical justification for the use of Meldonium by the Athlete and requested the ADHP to impose a sanction of 4 years. The IBU tend to acknowledge exceptional circumstances due to Meldonium was newly introduced to the Prohibited List, that the excretion from the body took longer than the information mentioned on the medication leaflet and that the Athlete believed to have acted in accordance with the Rules.

On 4 April 2016 the proceedings were suspended until an expert opinion was rendered which should also take into account an announced WADA study while the provisional suspension was lifted on 18 April 2016. Also in April and June 2016 WADA issued two notices on Meldonium concerning cases where athletes claim that the substance was used before 1 January 2016.

The ADHP concludes that the presence of the prohibited substance in the Athlete’s sample establish that he committed an anti-doping rule violation under the Rules in conjuction with the 2016 Prohibited List. The ADHP considers that the time of the administration of Meldonium - whether before or on or after 1 January 2016 - is irrelevant in this respect. The time of the administration may, however, have an impact on the determination of the sanction and the ADHP considers in this respect the WADA Meldonium Notice issued in June 2016. The Panel accepts that exceptional circumstances were present and that there is no evidence that he used Meldonium on or after 1 January 2016 for establishing No Fault.

Therefore ADHP decides on 7 September 2016 that the Athlete has committed an anti-doping rule violation. Because the Athlete bears No Fault no period of ineligibility is imposed. The Athlete’s competitive results obtained between 23 January and 16 February 2016 are disqualified.

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.

Related case:
CAS 2016_A_4889 Olga Abramova vs IBU
April 18, 2017

In February 2016 the International Biathlon Union (IBU) has reported anti-doping rule violation against the Ukrainian Athlete after her sample - provided on 10 January 2016 - tested positive for the prohibited substance Meldonium. After notification a provisional suspension was ordered. The Athlete filed a statement in her defence and she was heard for the IBU Anti-Doping Hearing Panel (ADHP).

The Athlete explained that she had used Mildronate (Meldonium) as prescribed medication in November and December 2015 before the substance was included on the WADA 2016 Prohibited List. The Mildronate was used as treatment for her bronchial asthma and dysmetablolic myocardiopathy.

At the request of the IBU the proceedings were suspended on 4 April 2016 until an expert opinion was rendered which should also take into account an announced WADA study while the provisional suspension remained in place. Also in April and June 2016 WADA issued two notices on Meldonium concerning cases where athletes claim that the substance was used before 1 January 2016.

In September 2016 the ADHP resumed the proceedings due to the results of the WADA studies and new information on Meldonium were not to be expected in the foreseeable future.
In October 2016 the requested expert opinion was delivered. In November 2016 the ADHP requested the expert to adapt the conclusions of his opinions on the assumption that 10 December 2015 was the date of the last administration of Meldonium.

The ADHP concludes that the presence of the prohibited substance in the Athlete’s sample establish that she committed an anti-doping rule violation under the Rules in conjuction with the 2016 Prohibited List. The ADHP condiders that the time of the administration of Meldonium - whether before or on or after 1 January 2016 - is irrelevant in this respect. The time of the administration may, however, have an impact on the determination of the sanction. The Panel accepts that exceptional circumstances were present and that her degree of negligence was not significant.

Therefore the ADHP decides on 14 November 2016 to impose a 1 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 4 February 2016.

Prohibited List January 2018 : The World Anti-Doping Code International Standard / World Anti-Doping Agency (WADA). - Montreal : WADA, 2017.

- The official text of the Prohibited List shall be maintained by WADA and shall be published in English and French. In the event of any conflict between the English and French versions, the English version shall prevail.
- This List shall come into effect on 1 January 2018

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.

iNADO Update (2017) 89 (23 November)
Institute of National Anti-Doping Organisations (iNADO)

Contents:

- iNADO Athlete and Leader Symposium (Oct. 30-31 in Switzerland)
- SAVE the DATE - iNADO Workshop 2018 and WADA ADO Symposium
- Results of Survey by Top Athletes on Anti-Doping in Switzerland
- SAVE the DATE - Anti-Doping Seminar in Sofia, Bulgaria (Jan 24-25)
- Update: Sanctions from IOC Disciplinary Commission incl. Sochi 2014
- Collaboration in the Development of an E-Learning Platform - NADA Germany & the German Sports Institute
- Conditions to Participate for Russian Athletes in PyeongChang Paralympic Winter Games
- New at the Anti-Doping Knowledge Center

Correction 24 November 2017:

The article “Conditions to Participate for Russian Athletes in PyeongChang Paralympic Winter Games” contained following mistake: It states that “the LIM will allow Russian Athletes to compete as "neutrals" in in Snow Sports of the PyeongChang 2018 Winter Paralympic Games”. However, the IPC GB’s decision only allow Russian athletes to compete at “qualification games”, not the Paralympic Games. Text is further corrected further in the pdf-file.