World Anti-Doping Agency (WADA), Fédération Internationale de Basketball (FIBA) v. Hellenic National Council for Combating Doping (ESKAN), Olga Chatzinikolaou

II. FACTUAL BACKGROUND

5. Below is a summary of the relevant facts and allegations based on the parties’ written and oral submissions, pleadings and evidence adduced. Additional facts and allegations found in the parties’ submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, he refers in his Award only to the submissions and evidence he considers necessary to explain his reasoning.

6. On 26 March 2017, the Athlete played in the 4th game of the Women’s Greek Basketball Cup Final with her club. The game started at 17h00. After the game, around 19h00, the Athlete was requested to undergo an in-competition anti-doping control. The doping control started around

7. The Athlete’s urine A Sample was analyzed in the Athens WADA-accredited laboratory (the “Athens Laboratory”) and was found to contain cocaine metabolites. Further to the Athlete’s request, the B Sample was also analyzed. The B Sample confirmed the findings of the A Sample. The approximate concentrations of the relevant metabolites in both samples were 270 ng/mL benzylecgonine (“BZE”) and 400 ng/mL for methylecgonine (“EME”).

8. Cocaine is a stimulant prohibited under section S6 of the WADA Prohibited List 2017. It is prohibited in-competition only and is a non-specified substance in the sense of the WADA Prohibited List.

9. On 13 April 2017, the Athlete was provisionally suspended by ESKAN.

10. Following the hearing held by the ESKAN’s Primary Disciplinary Committee, said Disciplinary Committee, decided, on 17 July 2017, that the Athlete bore no responsibility for the substance found in her sample and that, consequently, she should not be submitted to any sanction (the “Appealed Decision”). As is apparent from the Appealed Decision, that the Disciplinary Committee, in view of the concentrations of BZE and EME found in the sample, accepted the Athlete’s explanation that the positive finding came from a passive inhalation of cocaine at an afternoon dinner more than 12 hours prior to the game preceding the anti-doping control and thus out-of-competition.

11. On 12 September 2017, WADA received copy of the Appealed Decision through FIBA.

12. On 28 October 2017, the samples were transferred, upon request of WADA, from the Athens Laboratory to the Lausanne WADA accredited laboratory (the “Lausanne Laboratory”) for further analyzing. On 1 November 2017, the Lausanne Laboratory informed WADA that the Athlete’s sample contained the cocaine parent compound in an estimated concentration of 10 ng/ml, BZE in an estimated concentration of 120 ng/ml and EME in an estimated concentration of 800 ng/ml.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

13. On 3 October 2017, WADA filed its statement of appeal in accordance with Articles R47 of the Code of Sports-related Arbitration (the “Code”), against ESKAN and Ms Chatzinikolaou (together “the Respondents”), requesting that the Appealed Decision be set aside and the Athlete sanctioned with a four year period of ineligibility. In its statement of appeal, WADA nominated Mr Alexander McLin as arbitrator.

14. By letter dated 13 October 2017, the CAS Court Office acknowledged receipt of the statement of appeal and informed the Respondents, inter alia, that according to Article R53 of the Code, they should nominate an arbitrator within ten (10) days of receipt of the said letter.

15. On 16 October 2017, FIBA filed a request for intervention.

16. On 19 October 2017, the CAS Court Office, pursuant to Article R41.3 of the Code invited the parties to express their position on FIBA’s request for intervention.

17. On 26 October 2017, WADA informed the CAS that it had no objections to FIBA’s request for intervention. The Respondents did not object to FIBA’s request for intervention in the given deadline.

18. On 7 November 2017, the Second Respondent acknowledged receipt of the CAS Court letter from 3 November 2017 and noted that she has not been informed by ESKAN or WADA that her sample would be transferred from the Athens Laboratory to the Lausanne Laboratory. Further, she requested to be given the full documentation package from the Lausanne Laboratory. Finally, she pointed out that the results from the Athens Laboratory and the Lausanne Laboratory seemed to differ although both Laboratories are officially accredited by WADA.

19. On 10 November 2017, the CAS Court Office acknowledged receipt of the Second Respondent’s wish to appoint Mr Sofoklis Pilavios as arbitrator, which was however submitted out of time, and invited WADA and the First Respondent to express their position on such nomination.

20. By letter dated 16 November 2017, the CAS Court Office acknowledged receipt of WADA’s Appeal Brief, filed on 13 November 2017 within the extended time-limit, and invited the Respondents, pursuant to Article R55 of the Code, to file their answer should be filed within twenty (20) days upon receipt of the said letter.

21. The same day, the CAS Court Office invited the Respondents to express, until 22 November 2017, their position on WADA’s request of 15 November 2017 for the appointment of a sole arbitrator in the present matter.

22. On 23 November 2017, the CAS Court Office informed the parties that given the silence of the Respondents on the subject, the President of the CAS Appeals Arbitration Division would, in application of Article R50 of the Code, decide whether or not to appoint a sole arbitrator in the present matter.

23. On 1 December 2017, the CAS Court Office acknowledged receipt of the Second Respondent’s requests for a two (2) week extension of the deadline to file her answer as well as for further analysis of her sample by a third Laboratory and invited WADA to express its position on said requests.

24. WADA having agreed to the extension of the deadline to file the answer, the two (2) week extension for the filing of the Second Respondent’s answer has been granted by the CAS Court Office on 5 December 2017. WADA however pointed out, in an e-mail of 12 December 2017, that it considered a further analysis of the sample in a third WADA accredited Laboratory to be neither necessary nor helpful.

25. On 29 December 2017, the CAS Court Office acknowledged receipt of the Second Respondent’s answer, filed on 21 December 2017, and informed the parties that pursuant to Article R54 of the Code, Mr Jacques Radoux, référendaire at the European Court of Justice, Luxembourg, had been appointed as Sole Arbitrator in the present matter and that unless the parties agree or the Sole Arbitrator orders otherwise on the basis of exceptional circumstances, Article R56 of the Code provides that the parties shall not be authorized to supplement or amend their requests or their argument, to produce new exhibits, or to specify further evidence on which they intend to rely, after the submission of the appeal brief and the answer.

26. On 16 January 2018 and after due consultation with the parties, the CAS Court Office advised the parties that the Sole Arbitrator had taken the following decisions and issued the following procedural directions:

“- In view of Article R41.3 and R41.4 of the CAS Code, of Articles 14.2.1 and 14.2.3 of the Greek Law No 4373, which contains an arbitration agreement that is binding for FIBA, FIBA’s reasoned request for intervention, which was filed within the 10-day time limit prescribed by Article R41.3, is accepted;

- FIBA is thus allowed to intervene in the current appeal procedure to the extent that its intervention relates to WADA’s requests for relief and grounds of appeal;

- A copy of the CAS file, to date, is enclosed for FIBA’s intention which is granted with the opportunity to submit a brief within 10 days from receipt of the present letter by DHL;

- The Respondents will then be granted a ten day time-limit to answer to FIBA’s brief;

- Pursuant to Article R57 of the CAS Code and in view of the CAS file, the Sole Arbitrator has decided to hold a hearing in this case;

[…]

- The Sole Arbitrator will decide on the Second Respondent’s request to have her sample tested by a third accredited WADA laboratory after the hearing”.

27. Following some further correspondence, the CAS Court Office informed the parties that the hearing would be held on 23 March 2018 at the CAS Court Office.

28. By letter dated 8 February 2018, the CAS Court Office acknowledged receipt of the brief filed by FIBA, within its extended time-limit to do so, and invited the Respondents to file their answer to FIBA’s brief.

29. On 23 February 2018 and within the applicable time-limit, the Second Respondent filed her answer to FIBA’s brief.

30. On 1 March 2018, the Second Respondent requested a postponement of the hearing on the grounds that she was to compete in the Final-Four Basketball Women’s Cup that would be held from 23 to 25 March 2018 in Athens.

31. On 6 March 2018, the CAS Court Office informed the parties that as the parties had all been duly consulted, as the date of the hearing had been fixed for the Second Respondent’s convenience in spite of FIBA’s difficulty to make itself available that date and as the hearing date was determined at a moment in time on which the date of the Final’ Four-Basketball Women’s Cup was very likely to have been known, the hearing would be held on 23 March 2018 except if all parties agreed otherwise.

32. On 8 March 2018, the CAS Court Office informed the parties that, as not all parties had agreed to the said request, the hearing would be held as planned on 23 March 2018 and notified the order of procedure to the parties.

33. On 9 March 2018, WADA signed and returned the order of procedure in this arbitration procedure. FIBA signed the order of procedure on 13 March 2018. The First Respondent signed the order of procedure on 14 March 2018. The Second Respondent signed the order of procedure on 15 March 2018.

34. On 23 March 2018, a hearing took place at the CAS Court Office. The Sole Arbitrator was assisted by Mrs Pauline Pellaux, Counsel to the CAS, and joined by the following participants:

For WADA: Mr Ross Wenzel and Mr Nicolas Zbinden (counsel) (in person) Dr Irene Mazzoni (expert) (by phone) Dr Tiia Kuuranne (expert) (in person)

For FIBA: Ms Nathalie St. Cyr Clarke (FIBA Legal Affairs Manager) (in person)

For the Second Respondent: Ms Olga Chatzinikolaou (Second Respondent) (in person) Mr Ioannis Marakakis (counsel) (in person) Ms Vasiliki Moschoviti (counsel) (in person Mr Konstantinos Andreou (expert) (in person)

35. At the beginning of the hearing, the parties confirmed that they had no objection to the constitution of the Panel. After having testified and before leaving the hearing, the Athlete was given the opportunity to explain her view to the Sole Arbitrator. At the hearing, the counsel of the Athlete requested to be allowed to submit two affidavits as evidence. WADA not having agreed to the production of this new evidence, the Sole Arbitrator, in absence of any exceptional circumstances having prevented the Second Respondent from producing this evidence at an earlier stage of the procedure, rejected said request according to Article R56 of the Code.

36. At the conclusion of the hearing, the parties confirmed that their right to be heard had been fully respected.

IV. SUBMISSIONS OF THE PARTIES — A. WADA’s submissions

37. WADA’s submissions, in essence, may be summarized as follows:

• The Appealed Decision was rendered in application of the Greek law n° 4373/2016 (the “law n° 4373”). Thus the law n° 4373 is applicable to the present appeal.

• In the present case it is not contested that the analyses of the Athlete’s A and B samples revealed the presence of metabolites of cocaine and that the Athlete has breached Article 3.1 of the law n° 4373 by committing an ADRV.

• According to Article 11.2.1.1 of the law n° 4373, the period of ineligibility shall be four (4) years where the anti-doping rule violation (“ADRV”) does not involve a specified substance, unless the athlete can establish that the ADRV has not been intentional. As the athlete bears the burden of establishing that the ADRV was not intentional, CAS panels have held that, except for extremely rare cases, the athlete must establish how the substance entered his or her body. The present case does not fall within the category of the extremely rare cases in which the origin of the substance does not have to be established to prove that the ADRV was not intentional.

• The Athlete is required to prove the origin of the prohibited substance on the “balance of probability”. The balance of probability standard entails that the Athlete has the burden of convincing the Panel that the occurrence of the circumstances on which she relies is more probable than their non-occurrence. Thus, the Athlete must adduce concrete and actual evidence of the specific circumstances in which the unintentional ingestion of the prohibited substance would have occurred and bring analytical prove that the explanation of origin brought forward could have caused the positive findings in the relevant concentrations.

• In the present case, the Athlete argued, on the basis of the statements from several experts (Prof. Tsatsakis, Dr Koutsafti and Dr Tsantiris), that the findings of the Athens Laboratory, i.e. the ratio between the concentrations of EME and BZE found in the sample as well as the fact that the parent compound of these two metabolites was not found, confirm that the Athlete unknowingly and passively inhaled cocaine more than fifteen (15) hours before the in-competition anti-doping test. However, on the basis of the findings of the Lausanne Laboratory, and more specifically the fact that the parent compound was found, the explanation of origin provided by the Athlete is contradicted by the statements of the experts she relied on in first instance. Indeed, first, according to Dr Koutsaftis and Mr Tsantiris, the parent compound can only be detected in the sample for a period of a maximum of 8 hours from the intake of cocaine. As a result, the results of the Lausanne laboratory would indicate a much more recent use of the prohibited substance than that alleged by the Athlete. Second, it is apparent from the concentrations of the metabolites found by the Lausanne Laboratory that the concentration of BZE is higher than that of EME. According to both of the Athlete’s experts, this indicates that the use took place within the previous 15 hours from sample collection. Third, the concentrations of the metabolites detected by the Lausanne Laboratory were even higher than the estimations of the Athens Laboratory concentrations and the latter, according to Dr Mazzoni, could not have resulted from a passive inhalation almost 24 hours before the doping control.

38. In its appeal brief, WADA requested the following relief:

1. The Appeal of WADA is admissible.

2. The decision of the First-Instance Disciplinary Committee of ESKAN dated 17 July 2017 in the matter Olga Chatzinikolaou is set aside.

3. Olga Chatzinikolaou has committed an anti-doping violation under art. 3.1 and/or 3.2 of the law n° 4373.

4. Olga Chatzinikolaou is sanctioned with a four-year period of ineligibility starting on the date on which the CAS award enters into force. Any period of provisional suspension or ineligibility effectively served by Olga Chatzinikolaou before the entry into force of the CAS award shall be credited against the total period of ineligibility to be served.

5. WADA is granted an award on costs.

39. At the hearing, WADA specified its request for relief under 5. in so far that only the First Respondent, i.e. the Hellenic National Council for Combating Doping (ESKAN), should bear the costs of the arbitration and should make a considerable contribution to the legal and other costs that WADA had to engage in the present procedure.

B. FIBA’s submissions

40. FIBA shares the conclusions presented by WADA in its Appeal Brief and supports its request for relief.

41. FIBA’s submissions can by summarized as follows:

• According to Article 4.1 of the law n° 4373, the burden of proof that an ADRV occurred is on WADA. Pursuant to Articles 11.2.1, 11.4, 11.5.1.2 and 11.5.2 of the law n° 4373, the athlete bears the burden of proving that the ADRV was not intentional, and that she bore no (significant) fault or negligence.

• In the present case, the fact that two metabolites of cocaine were present in the Athlete’s A and B samples is not contested. Thus the ADRV is established. The fact that the parent compound was or was not present in the samples is irrelevant. It is up to the Athlete to establish on the “balance of probabilities” that the occurrence of the circumstances on which the Athlete relies are more probable than its non-occurrence or more probable than other possible explanations for the ADRV.

• In order to establish that the intake of cocaine was not “intentional” in the sense of Article 11.2.3 of the law n° 4373, the Athlete has two options: first, it is sufficient to demonstrate on a balance of probabilities that the cocaine was (i) ingested out-of-competition and (ii) in a context unrelated to sport performance, knowing that these two requirements are distinct and cumulative. Second, even outside of these circumstances, the Athlete could establish that the ADRV was unintentional, e.g. by showing that even though the prohibited substance was taken in-competition, this happened unknowingly.

• FIBA considers that the out-of-competition intake has not been established, inter alia, in view of the fact that besides her own word, the Athlete has not furnished any direct evidence of her having been exposed to cocaine smoke on the night of 25 March 2017. In particular, the Athlete did not present any evidence for anyone having smoked cocaine at the afternoon dinner or of her attending said dinner. Further, the indirect evidence constituted by the expert reports is severely undermined by the findings of the Lausanne Laboratory as these findings render said reports insufficient for establishing, on a balance of probabilities, that the Athlete passively inhaled cocaine at a party around twenty-four (24) hours before the doping control. In these circumstances, FIBA considers that it can be left open whether the Athlete is in a position to establish that the cocaine was used in a context unrelated to sports performance.

• As the Athlete did not provide any other explanation for the adverse analytical finding than unintentional passive inhalation of cocaine, the Athlete would have to prove that her case is one of the rare cases in which, according to the CAS jurisprudence, lack of intent could be established without having to demonstrate how the substance entered the Athlete’s body. However, no such argumentation has been developed by the Second Respondent.

• The Athlete having failed in showing that the ADRV was unintentional, the ineligibility period should be four (4) years. However, given that the Athlete was suspended from 13 April 2017 until 17 July 2017, 95 days should be credited, on basis of Article 11.1.3.1 of the law n° 4373, against this period of ineligibility.

C. The Second Respondent’s submissions

42. The Second Respondent’s submissions may, in substance, be summarized as follows:

• The alleged finding of cocaine in the sample at a concentration of 10 ng/mL has at best to be considered as a “trace” and does not indicate a use of cocaine close to the time of the doping control. If the Athlete had used cocaine 30 minutes to 5 hours before the game, the concentration of the detected cocaine would have varied from 1.000 ng/ml up to 10.000 ng/ml. This important variation in concentration reflects the difference between a “recent use” and an exposure to the substance which may have taken place from a day up to a couple of weeks before the sample was taken. Thus, if the Athlete had used cocaine 30 minutes to 5 hours before the doping control, then, cocaine could have been detected in the urine. If the substance had already passed on to a second stage of elimination, then the concentration of the metabolites should and would have been at least ten times higher than the ones found and would range between 2.000 ng/mL to 4.000 ng/mL.

• In the present case, the concentration level of BZE was only 270 ng/mL and that of EME only 400 ng/mL demonstrating that the exposure to cocaine took place many hours before the doping control. As WADA did not provide factual evidence to rebut the findings and arguments relied upon in the Appealed Decision, it has to be concluded that the Athlete managed to establish beyond doubt that the ADRV was not intentional and did not come from an in-competition use of the substance.

• According to a written report of the Athlete’s expert, Mr Tsantiris, a certain number of requirements have to be met to ensure that the results of the sample testing are accurate. In this regard, the Athlete emphasizes, inter alia, that: the screening should take place within a time frame of ten (10) days after sample collection; it should be ensured that the samples do not contain mild residues and are within the normal pH-range (5-8); samples are recommended to only be frozen once; biological samples are considered to be compromised when kept under preservative conditions, stored in deep freezing and then reheated for examination; transferring a sample abroad does not allow to maintain the appropriate temperature (-20°C); there is a risk of tampering, dilution or alteration in vitro or in vivo and, as urine is a biological material, there is biological process of decomposition

that is enhanced by frequent changes in temperature of the sample; the Athens Laboratory did not detect the parent compound either because it was not present in the sample or because the sample only contained traces of it, the second of these two options being more probable as the concentrations of BZE and EME were low. As a result, the Second Respondent considers that it is proven beyond doubt that the sample testing which took place in the Lausanne Laboratory is faulty and unreliable.

• The Second Respondent further reiterates her arguments and explanations brought forward before the Disciplinary Committee, i.e. that she did not voluntarily or intentionally ingest cocaine but that she must have ingested that substance unknowingly by passively inhaling it at an afternoon dinner on 25 March 2017. Hence, the intake occurred out-of-competition and was unrelated to sport performance.

43. In her requests for relief the Second Respondent asks the Sole Arbitrator to:

1. Overrule the Appeal against the Appealed Decision enclosed as Exhibit 1, deeming it inadmissible and uphold the decision of the First-Instance Disciplinary Committee of ESKAN.

2. Set aside the Appeal Brief by virtue of the arguments that have been presented and conclude that the Second Respondent shall not incur any penalty.

3. In the hypothetical and improbable case that the Panel considers that the Player has committed an antidoping rule violation and shall be sanctioned, to determine a more accurate sanction in proportion with a rightful and appropriate interpretation of the facts in line with the arguments that have been presented, such as disciplinary measure of reprimand.

4. Condemn the Appellant to the payment of the whole CAS administration costs and Panel fees.

5. Fix a sum to be paid by the Appellant to the Second Respondent in order to cover its defence fees and costs in the amount of CHF 10.000.

44. While duly invited to do so, the First Respondent did not submit any Answer.