Alexei Lovchev v. International Weightlifting Federation (IWF)

V. JURISDICTION

28. Article R47 of the Code provides as follows:

“An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of that body”.

29. The Appellant relies on Article 13.2.1. IWF ADP as conferring jurisdiction on CAS. The jurisdiction of CAS is not contested by the IWF and is confirmed by the signature of the Order of Procedure.

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VI. ADMISSIBILITY

30. Article R49 of the Code provides as follows:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sportsrelated body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against”.

31. As appears from above, the Appellant’s statement of appeal was filed within 21 days of the Decision. Admissibility is not contested by the IWF.

VII. APPLICABLE LAW

32. Article R58 of the Code provides as follows:

“The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

33. The applicable regulations within the meaning of the above provision are the IWF ADP and the WADC 2015 as well as, with respect to the conduct of the analysis, the International Standard for Laboratories, 2015 (ISL) as well as the WADA Technical Documents TD2015IDCR and TD2015MRPL. Since the IWF that has issued the challenged decision is a Swiss Association, Swiss Law applies subsidiarily.

VIII. PROCEDURAL ISSUES

34. As respected the Appellant’s request for interim relief, the Panel (i) declined to birfurcate the proceedings, (ii) declined to order a fresh analysis of the B sample, (iii) did make the order for disclosure requested. The reasons for decisions (i) and (ii) are sufficiently set out in paras 36 and 37 below. The reason for decision (iii) is the Panel’s recognition that the documents requested were at least potentially germane to the way in which the Appellant sought to advance his case and that their disclosure by the laboratory would not be oppressive or otherwise impracticable.

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IX. MERITS

1. The Issue

35. There is, underlying the debate between the parties, a single (but decisive) question. Have the IWF proved to the standard of comfortable satisfaction pursuant to Article 2.1 IWF ADP that the substance found in the Appellant’s urine was Ipamorelin (or its metabolites) as distinct from some other (non-prohibited) substance? (“The Issue”).

36. There is no dispute that (i) the samples tested were the Appellant’s; (ii) Ipamorelin is a prohibited substance according to the WADA Prohibited List (S2, Peptide hormones, growth factors, related substances and mimetics); (iii) the presence of Ipamorelin entailed the conclusion that the Appellant committed an anti-doping rule violation (“ADRV”); no free standing point arises as to the sanction imposed – the four year ban is compliant with article 10.2.1 IWF ADP given that the ADRV does not involve a specified substance, and the Appellant has not discharged the burden on him of showing that the ADRV was not intentional (Article 10.2.1 IWF ADP).

2. No further Analysis needed

37. The Panel observes that the main thrust of the Appellant’s argument, here and below, is that the Issue could and should be resolved one way or another by a further analysis bearing on the detected substance’s ion structure.

38. In the Panel’s view, beguiling though that argument is, there can be no basis for requiring such further analysis (even assuming such to be permissible under the applicable regulations) unless the Appellant can cast sufficient doubt on the Montreal Laboratory’s conclusions, and if indeed he can do so, he would not need it. Even if such further analysis might indeed resolve the Issue and free the Panel from its duty to consider the complex evidence before it and the complex arguments addressed to it, the Panel is not tempted to open this Pandora’s box. This is all the more true considering that – contrary to the proposition of the Appellant – no claim for reanalysis or further analysis arises from Article 6.5 WADC (or IWF ADP) or any other rule. Furthermore, it is disputed whether or not the analysis proposed by the Appellant is more reliable (see letter from Prof. Thevis dated 27 June 2016). In any event it is not a validated method available for Ipamorelin.

3. The various explanations forwarded by the Appellant for the AAF

39. The Panel notes that the Appellant appears to have sought various and inconsistent explanations for the AAF reported by the Montreal Laboratory, initially suggesting that Ipamorelin might have been present in one of the supplements or medications that he duly declared in his doping control form (see his e-mail to IWF of 28 February 2016). However after

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all such items were tested and found Ipamorelin-free, this line of argument was (rightly) abandoned.

40. The Appellant next sought to argue that the A and B samples analyses were themselves inconsistent, that the former, but not the latter, disclosed metabolites of Ipamorelin (see his letter to IWF of 24 March 2016). The Panel, after study of the analytical data, could find no such inconsistency; it was Ipamorelin and not its metabolites that were detected in both samples.

41. The Appellant then sought ingeniously to turn the argument on its head and to contend that the absence of such metabolites was itself a source of reasonable doubt. The short answer to that contention, in the Panel’s view, is that Article 2.1 of the IWF ADP makes the presence of prohibited substance per se an ADRV, there is no added requirement for metabolites.

42. Apart from claiming that it would be irrational for weightlifter to use Ipamorelin (because of the detrimental effects to the ligaments when taking regularly), his own denials of ever having consciously taken Ipamorelin (which carries limited weight since the offence which he was found by the IWF panel to have committed is one of strict liability) and of a hitherto unblemished doping record (which cannot trump laboratory evidence of a first time blemish) the Appellant relied on the testimony of three experts.

(i) No Departures from the ISL

43. Dr Faber provided the Panel with what was in effect a lecture on probability theory. The Panel had to draw its conclusions on the material before it by reference to uncontroversial principles as to standard and burden of proof and therefore with due respect to Dr Faber’s expertise, did not find his evidence useful.

44. Dr Kopylov sought to establish that the Montreal Laboratory had confused Ipamorelin with another benign substance. The Panel will consider the detail of his testimony which was at odds with that of Prof. Ayotte separately hereafter, but notes that it was severely compromised by the evidence of Dr de Boer who could put his case no higher than that both substances (prohibited and permitted) were shown to be present in the Appellant’s samples. However that of itself, if correct, would require the Panel to dismiss the appeal. As one of its members pithily observed during the course of Dr de Boer’s evidence, if gin were a prohibited substance, it would not avail someone charged with drinking gin to say that he had taken tonic with it.

45. The very variety of the discrepant assaults on the Montreal Laboratory findings did not encourage confidence in the Appellant’s case. Prima facie the simplest explanation was the most obvious one. The identification criteria for Ipamorelin as set out in TD2015IDCR were fulfilled as Dr de Boer readily accepted; not only was there no such departure from them such as to cast doubt on the findings – there was no departure at all. It was therefore presumptively Ipamorelin that was detected.

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46. The Appellant, however, sought to undermine this presumptive conclusion in a number of ways in arguing with the support of, inter alios, Dr Kopylov of the Institute of Biodemedical Chemistry in Moscow (“IBCM”) arguing as follows:

(ii) Measurement of Uncertainty

47. It was argued on the side of the Appellant that the concentration of Ipamorelin found in the Appellant’s A and B samples, i.e. 1 ng/mL would be close to the limit of detection (“LOD”) of the Montreal Laboratory, and hence lead to a false-positive result (see para. 37, 107-117 of the appeal brief) which is why the Appellant requested further information regarding the measurement of uncertainty (“MU”).

48. The Panel notes that Ipamorelin is not a threshold substance; therefore (irrespective of the concentration of the substance) the sample can be returned positive by the laboratory. Additionally as to MU, such data is not relevant for non-threshold substances, see the evidence of (a) Prof. Mario Thevis of the Cologne Laboratory that the term uncertainty is used in relevant WADA documents exclusively in the context of threshold substances; (b) Prof. Ayotte, who also explained that MU was not relevant for Ipamorelin and sought the opinion of the Dr Osquel Barraso, WADA Deputy Director Science, who stated as follows:

“The estimation of the uncertainty of the measurement procedure is only applicable to quantitative confirmation procedures for determination of Threshold Substances, as established in the ISL and the technical document on decision limits (TD DL).

For qualitative determinations of Non-threshold substances, MU estimations are not applicable. The Laboratory must demonstrate the identity of the analyte and, when possible, the laboratory should make an estimation of the concentration, with no qualification about the precision (ie certainty) of this determination”.

49. Insofar as Dr Faber argued that the MU forms part of a proper validation also for qualitative assays, the Panel notes that this amounts to a challenge of the analytical method that requires observance of specific procedural rules (see Article 3.2.1 WADC/IWW ADP), which are not fulfilled in the case at hand.

(iii) WADA Technical Document TD2015MRPL and LOD

50. It is undisputed that for non-threshold substances such as Ipamorelin the laboratory has to comply with WADA Technical Documents TD2015MRPL, which addresses the minimum required performance level (“MRPL”) for detection and identification of such substances.

51. As to this, the Montreal Laboratory fully complied with TD2015MRPL and all the requirements for detection and identification of Ipamorelin were met (see the report of 22 June 2016 of Prof.

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Ayotte) noting that the estimated limit of detection for Ipamorelin was 0.1 ng/mL. This figure was contested by the Appellant in an unsubstantiated manner. In light of the concentration of Ipamorelin found in the Athlete’s samples and of the LOD, a false-positive is excluded.

52. In short, while the concentration of Ipamorelin found in the Appellant’s samples was low; all the criteria provided for under TD2015IDCR and TD2015MRPL are met, entitling, indeed obliging the Montreal Laboratory to report an AAF.

(iv) Unknown Interfering Compound

53. Dr Kopylov further opined that the method used by the Montreal Laboratory was not selective enough, because it could not be excluded that a non-prohibited compound interfered with the analysis. According to Dr Kopylov a compound of beta-ecdysteron nutritional supplement interfered in the analyses “so that a putative metabolite of this nutritional supplement is likely to be confused with Iparorelin” the nutritional supplement being “Ekdisten”, which was disclosed by the Appellant in his doping control form.

54. In a first report dated 28 February 2016, IBCM submitted a theory according to which the interfering compound (a metabolite of a nutritional supplement) has a mass of 356.19 amu and presented the following composition: C22H28O4 (p. 98 in fine). As to this in a report dated 20 March 2016, Prof. Ayotte stressed that the molecular weight and the structure of Ipamorelin compared to the alleged interfering compound were different. The molecular mass of Ipamorelin is 711.38512 amu and the composition is: C38H49N9OS. For Prof. Ayotte, the suggestion that such a different compound (not containing any nitrogen atoms) might have produced results exactly coherent with Ipamorelin is not plausible.

55. In a Second Report dated 25 March 2016, IBCM admitted that their first theory was erroneous. IBCM now submitted that the mass of the interfering compound would be 355.1909356 amu and the composition would be C22H27O4. As to this as highlighted by Prof. Ayotte in a report of 30 June 2016: “There cannot be a correct chemical composition for a molecule composed of carbon, oxygen and hydrogen atoms like the one proposed, that would give an odd-number molecular mass (…)”. The revised proposition of IBCM is contrary to the so-called “nitrogen rule”, i.e. a basic rule in organic mass spectrometry.

56. Dr de Boer produced another report dated 20 May 2016 in which he opined that the allegedly interfering compound had a yet different composition: C23H33O3. In support of his thesis that Ipamorelin and the interfering compound would be similar, Dr de Boer compared two figures on the page 5 of his report (Figure 2A and Figure 2B) in an effort to show that the spectral data of Appellant’s urine (Figure 2A) presented similar features to the spectral data of the interfering compound (a metabolic compound of an edysteroid). Dr de Boer opined that the data are very similar because the Appellant’s urine contains an edysteroid, the original of which comes from the nutritional supplement Ekdisten which the Appellant had admittedly ingested.

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57. As to this, Dr de Boer made a critical mistake (which to his credit he acknowledged) in that he did not compare the alleged interfering compound with the Appellant’s sample, but rather with the positive Ipamorelin control sample used by the Laboratory, a negative blank urine sample spiked with Ipamorelin, i.e. provided by someone who did not ingest the supplement Ekdisten. Dr de Boer’s inadvertent error rather supports the findings of the Montreal Laboratory and excludes the possibility that the “interfering compound” would come from the supplement Ekdisten. In fact, the so-called “interfering compound” is observed in the blank urine (negative control), both in the Appellant’s sample and in the positive control. According to Prof. Ayotte, this “interfering compound” seems to be a urinary constituent and, more importantly, it does not interfere with the presence of Ipamorelin.

58. The Panel has already commented on the significance of Dr Boer’s retreat, confronted with his error, from the position taken in his report (see para 57 above). As to the debate which it witnessed between Dr Kopylov and Prof. Ayotte, the Panel is constrained to observe that the former had a clear agenda which was to find some way of exculpating the Appellant and while it does not accuse him of data manipulation, found him too ready to don the garb of an advocate rather than of that of an (objective) expert. The latter by contrast aptly noted that the Montreal Laboratory had no interest in inculpating sportsmen or women but only in ascertaining with the best analytical tools available to it, whether or not a doping offence had been committed.

59. Where the two witnesses were at odds the Panel preferred the evidence of Prof. Ayotte as being more authoritative compelling and dispassionate. It seemed to it that this somewhat volatile interfering compound was not shown by either of the two Appellant’s experts who sought to pronounce on the issue to have either the structure or the molecular mass of Ipamorelin such as could realistically have given rise to any confusion between such compound and the prohibited substance.

4. The Additional Analysis by the Montreal Laboratory

60. Because the Appellant was claiming that the Montreal Laboratory reported a false positive, the Montreal Laboratory decided to repeat the analysis on the QExactly Orbitra Instrument in the high resolution mode.

61. The Appellant protested that such further analysis conducted though it was in his interest would constitute a “blatant violation of both the WADA Code and of the ISL” and (notwithstanding that he himself was asking for further analysis). In any event the protest was ill-founded; the facts related to an ADRV may be established by “any reliable means” (Article 3.2 IWF ADP).

62. The results of this further analysis clearly showed the presence of Ipamorelin in the Athlete’s B Sample and the absence of interference. It added belt to already adequate braces.

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