Roman Balandin v. Russian Anti-Doping Agency (RUSADA)

II. FACTUAL BACKGROUND

3. Below is a summary of the relevant facts and allegations based on the parties’ written submissions, pleadings and evidence adduced. Additional facts and allegations found in the parties’ written 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 it he considers necessary to explain its his reasoning.

4. The Player started his professional career with the Club at the end of the 2014/15 sporting season.

5. In autumn 2016 the Player consumed Mildronate, medication available over-the-counter in Russia which contains the prohibited substance meldonium. The circumstances surrounding his consumption of the product, including his intent for doing so, are disputed and summarized below together with the parties’ respective arguments.

6. On 21 April 2017, the Player was the subject of a doping control. On 19 May 2017, the “A” sample analysis showed an Adverse Analytical Finding for the presence of meldonium. He was suspended by RUSADA the same day.

7. The Player waived his right to a “B” sample analysis and did not contest that the Adverse Analytical Finding constitutes an Anti-Doping Rule Violation (“ADRV”).

8. He requested a hearing before the RUSADA Disciplinary Anti-Doping Committee (“DADC”), prior to which he submitted a witness statement alleging an ADRV by the Club team doctor, whom he alleges gave him permission to consume the Mildronate. He did so under the “substantial assistance” provision of the Anti-Doping Rules approved by the order of the Ministry of Sport of the Russian Federation of 9 August 2016 No. 947 (the “ADR”), seeking to mitigate an expected sanction.

9. On 28 June 2018, the DADC imposed a period of ineligibility of four years on the Player by way of its Decision No. 97/2018 date 28 June 2018 (the “Appealed Decision”). The reasoned decision was received by the Player on 26 March 2019.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

10. On 16 April 2019, the Appellant filed its Statement of Appeal against the Respondent with respect to the Appealed Decision in accordance with Article R47 of the Code of Sports-related Arbitration (the “Code”). In his Statement of Appeal, the Appellant requested that this procedure be referred to a Sole Arbitrator.

11. On 18 April 2019, the CAS Court Office confirmed receipt of the Statement of Appeal and invited the Respondent to submit its views concerning the appointment of a Sole Arbitrator.

12. On 19 April 2019, the Respondent agreed that the case be submitted to a Sole Arbitrator.

13. On 26 April 2019, the Appellant filed his Appeal Brief, pursuant to Article R51 of the Code.

14. On 30 April 2019, the CAS Court Office notified the parties that the Deputy President of the CAS Appeals Arbitration Division had appointed Mr Alexander McLin, Attorney-at-Law in Geneva, Switzerland, as Sole Arbitrator.

15. On 30 May 2019, the Respondent filed its Answer pursuant to R55 of the Code.

16. On 21 and 24 June 2019, the Appellant and Respondent, respectively, signed and returned the Order of Procedure.

17. A hearing was held on 25 June 2019 at the CAS Court Office in Lausanne.

18. The Sole Arbitrator was assisted by Mr Brent Nowicki, Managing Counsel to the CAS. The Appellant was represented by Mr Mikhail Prokopets and Mrs Maria Tokmakova. The Respondent was present at the hearing and represented by Mr Graham Arthur, assisted by Mrs Alexandra Jurema, interpreter.

19. The following individuals provided testimony at the hearing:

a. For the Appellant:

- Mr Roman Balandin, Appellant (via video link) ;

- Mr Sergey Demidyuk, witness (via video link);

- Mr Vladimir Rodionov, witness (via video link).

b. For the Respondent:

- Dr Vladimir Syrchikov (via video link).

20. At the outset of the hearing, the parties confirmed that they had no objection to the Sole Arbitrator deciding this appeal. At the conclusion of the hearing, the parties confirmed that their right to be heard had been fully respected. A summary of the parties’ arguments and evidence presented at the hearing is set out below.

IV. SUBMISSIONS OF THE PARTIES

21. The Appellant’s submissions, in essence, may be summarized as follows:

- Given that the commission of an ADRV by the Player is uncontested, the issues in this case are (1) whether the ADRV falls within the definition of “intentional” per the ADR, and, if not, (2) whether a fault-related reduction to the period of ineligibility imposed on the Athlete can be made.

- The Player’s ADRV was not intentional within the meaning of the ADR. The term is defined in Article 10.2.3 of the ADR as follows:

“Athletes who cheat. The term, therefore, requires that the Athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant

risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk”.

- The rule should be applied in keeping with previous cases which interpreted the rule, in particular that of the ITF Independent Tribunal in ITF and Maria Sharapova dated 6 June 2016 (the “Sharapova case”), which reasoned as follows:

“68. It is clear from the wording of article 10.2.3 that whether conduct is intentional is to be judged on the actual knowledge of the player, not on the basis of what she ought to have known or understood. It is accepted by the ITF that her belief was that Mildronate was not a Prohibited Substance. On that basis of belief she did not know she was running a risk in taking Mildronate. She understood that the Prohibited List might from time to time be amended but she did not know or believe that it had been changed to make Mildronate a Prohibited Substance.

69. The ITF argument conflates the two elements of the test prescribed by the second limb of article 10.2.3. The first element is based on knowledge, the second on manifest disregard of the known risk. The second element may involve considering what steps the player took or ought to have taken, but the first element depends on the actual knowledge of the player”.

- The Player, having lived in rural environments most of his life was isolated and unaware of meldonium and its status as a prohibited substance. Like any ordinary person, he did not consider that commonplace medication that is neither an anabolic agent nor a stimulant could be considered as doping.

- In the autumn of 2016, the Player and his teammate Artyom Limonov, who had a cold, went to a pharmacy seeking medicine for Mr Limonov and vitamins in order to help fight colds and stay healthy during the season. At the pharmacy, they saw an advertisement for Mildronate (a supplement containing meldonium), which was recommended in order to help the body overcome fatigue. The two decided to buy it given that the whole team had taken it previously on the recommendation of the club’s doctor, though they had stopped doing so approximately in early 2016.

- Before purchasing and starting to use Mildronate, they checked with the team doctor, Vladimir Syrchikov, who confirmed that they could take it. The Player then consumed two capsules per day for a few days. Mr Limonov then learned from his father that meldonium was prohibited in sports, after which both athletes ceased taking the substance.

- After both Mr Limonov and Mr Balandin tested positive to meldonium, Dr Syrchikov had a conversation with the Club’s president, Vladimir Rodionov, in which he admitted his fault in allowing the two athletes to use meldonium. This ultimately led to his dismissal from the Club.

- The Player lacked any formal anti-doping education. As a result, it was difficult for him to conceive that a substance that he and his teammates had used previously could become prohibited all of a sudden.

- Regarding the second element of “intention” (manifest disregard of the risk to commit an ADRV), the Player took the most efficient means of determining whether or not he could consume the substance: he consulted with the team doctor. Lacking formal anti-doping education, he was unaware of the need to double-check the information he received from him.

- The Player accepts that his behavior was careless and negligent, though not significantly so, and most definitely not intentional. This is supported by the fact that as soon as he learned that meldonium was prohibited, he immediately stopped taking it.

- In light of the lack of intent, the maximum sanction for the Athlete’s ADRV is two years of ineligibility.

- Regarding the reduction of the Player’s sanction for fault-related reasons, while he admits that he did not use “utmost caution” and therefore cannot seek a reduction under the “No Fault or Negligence” rationale of Article 10.4 ADR, he considers his level of fault not to have been significant within the meaning of Article 10.5.2 ADR, which provides as follows:

“If an Athlete or other Person establishes in an individual case where Article 10.5.1 is not applicable, that he or she bears No Significant Fault or Negligence, then, subject to further reduction or elimination as provided in Article 10.6, the otherwise applicable period of ineligibility may be reduced based on the Athlete or other Person’s degree of Fault, but the reduced period of Ineligibility may not be less than one-half of the period of Ineligibility otherwise applicable”.

- “No Significant Fault or Negligence” is defined in the ADR as:

“The Athlete or other Person’s establishing that his or her Fault or negligence which viewed in the totality of the circumstances and taking into account the criteria for no Fault or Negligence, was not significant in relationship to the anti-doping rule violation. Except in the case of a Minor, for any violation of Article 2.1, the Athlete must also establish how the Prohibited Substance entered his or her system”.

- According to CAS jurisprudence, the threshold for establishing No Significant Fault (“NSF”) “must not be set excessively high”, as it would otherwise be impossible for a hearing panel to determine an appropriate period of ineligibility within a wide range of sanctions for an ADRV (CAS 2005/A/847). “CAS jurisprudence has found that the threshold of NSF is met if the athlete observes the clear and obvious precautions which any human being would take in the specific set of circumstances” (CAS 2016/A/4416). A finding of NSF must be established “in view of the totality of the circumstances”; “the ‘bar’ should not be set too high for a finding of NSF. In other words, a claim of NSF is (by definition) consistent with the existence of some degree of fault and cannot be excluded simply because the athlete left some ‘stones unturned’. As a result, a deviation from

the duty of exercising ‘utmost caution’ does not imply per se that the athlete’s negligence was ‘significant’”

- While the Player “left some stones unturned” given that he did not personally cross-check the ingredients of Mildronate against the WADA Prohibited List, he acted in keeping with the standard of care that could be expected of a reasonable person by consulting the team doctor for professional advice. According to CAS 2016/A/4643, it is permissible for an athlete to delegate elements of his or her anti-doping compliance obligations. In such circumstances, the athlete’s degree of fault to be assessed is that attributable to his or her choice of delegate and extent (or failure) of supervision thereof.

- The Player, who was very young and lacked knowledge or an entourage, reasonably consulted the team doctor and relied on his advice. In addition, knowing that Mildronate had been prescribed to “nearly every player” at the Club in 2015 suggested the substance was “safe and harmless” in character.

- In light of this, the NSF reduction to the Player’s non-intentional ADRV should lead to a period of ineligibility in the range of 12 to 24 months per Articles 10.2.2 and 10.5.3 ADR. Applying the factors to assess degree of fault from CAS 2013/A/3327 and CAS 2013/A/3335 (the “Cilic case”), and CAS 2017/A/5110 (the “Johaug case”), and considering the Player’s lack of formal anti-doping education analogous to the situation in CAS 2012/A/3029 (the “West case”), the Player’s degree of fault should be considered as “normal” and leading to a sanction of no more than 16 to 20 months of ineligibility.

- The Appellant makes the following requests for relief:

“The Appellant hereby respectfully asks the Court of Arbitration for Sport to rule as follows:

1) The appeal filed by Mr. Roman Balandin is upheld;

2) The Appealed Decision no. 97/2018 issued on 28 June 2018 by the RUSADA Disciplinary Anti-Doping Committee is set aside;

3) Mr. Roman Balandin’s Anti-Doping Rule Violation is considered unintentional with the maximum sanction of 24 months of Ineligibility commencing on 19 May 2017;

4) Mr. Roman Balandin’s sanction is further reduced under the “No Significant Fault or Negligence” to a period of Ineligibility within the range of 16-20 months at the Panel’s discretion commencing on 19 May 2017;

5) RUSADA shall bear all costs incurred with the present procedure;

6) RUSADA shall pay to Mr. Roman Balandin a contribution towards his legal and other costs, in an amount to be determined at the discretion of the Panel”.

22. The Respondent’s submissions, in essence, may be summarized as follows:

- The Player has committed an Article 2.1 ADR ADRV, involving a Non-Specified Substance. The mandatory sanction for such a violation is a period of Ineligibility of four years, which the Player can avoid if he can demonstrate that his violation was not intentional. If he can demonstrate not only that his violation was unintentional but that in addition he acted with No Significant Fault, the period of Ineligibility can be reduced to no less than one year.

- The Player is unable to meet the burden of proving that he acted unintentionally.

- According to CAS jurisprudence, for intent to be established, it is sufficient that there be a situation in which an athlete’s conduct might constitute or result in an anti-doping rule violation and for the athlete to manifestly disregard that risk. There is no need to prove in addition to this that there was a separate and distinct intent to cheat on the field of play

- So as to demonstrate that the Player did not act intentionally, he must be able to demonstrate that he did not act in such a way as to create a significant risk of a violation occurring, or, in the event such a risk existed, did not “manifestly disregard” it. This means that the Player must explain the circumstances in which he came to ingest the Prohibited Substance and be able to establish that such circumstances fall outside the scope of the definition of “intentional”.

- In CAS 2016/A/4609 (the “Pereira case”), a CAS panel found that a football player who received a series of injections from his medical advisors should have known that there was a significant risk that his conduct might constitute and ADRV, and the fact that he did not even attempt to verify whether the medication contained any prohibited substances meant that he manifestly disregarded the risk.

- In CAS 2017/A/5139 (the “Da Costa case”), an athlete who attributed an ADRV to a testosterone gel that had been prescribed by his medical advisors did not succeed in meeting his burden of disproving intention, despite his limited educational background, cultural environment and intellectual capacities.

- The testimony given by the Player before the RUSADA DADC is inconsistent with that provided before CAS, in particular the alleged presence of Mr Demidyuk during the encounter with Dr Syrchikov, who was not previously mentioned by either the Player or Mr Limonov in their testimony before the DADC.

- Since RUSADA does not believe that the evidence is sufficient for the Player to prove that his conduct was unintentional, it does not believe that an analysis as to his degree of fault is necessary. However, in the event his conduct is found not to be intentional, the totality of the circumstances is such that it is clear that the Player knew there was a risk associated with his use of Mildronate, and that he significantly failed to manage this risk. Applying the jurisprudence from CAS 2016/A/4416 and the Cilic case, the circumstances called for a high degree of care, which the Player did not meet.

- The Respondent makes the following requests for relief:

“RUSADA says that —

(…).1 Mr Balandin has committed an Anti-Doping Rule Violation contrary to ADR Article 2.1;

(…).2 The Consequences to be applied in respect of the Anti-Doping Rule Violation are that a period of Ineligibility of four years be imposed;

(…).3 If it is found that Mr Balandin did not act intentionally, the Consequences to be applied in respect of the Anti-Doping Rule Violation are that a period of Ineligibility of two years be imposed;

(…).4 There are no grounds for reducing the period of Ineligibility to less than two years;

(…).5 The period of Ineligibility should commence on the date the Provisional Suspension was imposed;

(…).6 If a reduction of the period of Ineligibility of two years is deemed warranted pursuant to the ADR that this reduction should result in imposition of a period of not less than twenty months’ Ineligibility.

(…) RUSADA respectfully requests that costs be awarded to RUSADA in accordance with Rule 64.4 and Rule 64.5 of the Code of Sports-related Arbitration (in force from 1 January 2017)”.

V. THE HEARING

23. At the hearing, the following evidence was given:

24. Mr Balandin explained how he had gone to the pharmacy with Artyom Limonov because he had asked him to, and that Mr Limonov had seen the ad for Mildronate. Mr Limonov asked Mr Balandin if he had used it before, and Mr Balandin responded that he had, “a long time ago”, that the drug did not really feel like it had done anything but that it had been recommended by the Club. Given the cost of the drug, Mr Limonov said that they probably needed to check with the team doctor to see if they could take it. They did this, and after he “said yes”, they returned to the pharmacy to buy it. Mr Balandin recalled that Mildronate had last been given to him by the Club in August 2015. When asked why this had stopped, he explained that sometimes the Club didn’t have enough money, and he imagined that this was the reason they were no longer being supplied with Mildronate. When asked why he consumed the drug if he believed it did not have any effect, he responded that he consumed the drug “like vitamins” and that he believed it to be useful to stay healthy. He claimed not to have any knowledge of the Sharapova case as he was not interested it the matter. He also mentioned that he was not familiar with the ADR,

though he generally knew that one was not supposed to use anabolic steroids. No one had made him familiar with the ADR, even when he signed his contract with the Club. When asked why he believed that Dr Syrchikov had agreed to let him and Mr Limonov use Mildronate, he responded that Dr Syrchikov probably thought that he would not be tested. He mentioned that when he had spoken to Dr Syrchikov prior to the instant proceedings, he had told him that he was not angry at him, but asked him to tell the truth. When asked whether he had asked Dr Sychikov for an explanation, after he and Mr Limonov had found out from the latter’s father that meldonium was prohibited, Mr Balandin stated that they went back to him and that Dr Syrchikov had made them understand that they were not at risk of being tested.

25. Mr Demidyuk explained that he had been present when Messrs Balandin and Limonov had first asked Dr Syrchikov about whether they could use Mildronate, as he was taping his knee in the same room prior to practice. He heard that the doctor answered “yes, take it, why not?”, and did not say more as all of the players were hurrying to get to practice. When asked whether anyone had told him about the ADR and/or the Prohibited List, Mr Demidyuk responded that yes, he had been told, but he was not interested in what they meant until after Mr Balandin and Mr Limonov received their (positive) test results. He explained that he came forward and offered to act as a witness as he had been present and believed it was unjust for Mr Balandin and Mr Limonov to “suffer” when it was not their fault. He also mentioned that it was not unusual for Dr Syrchikov to be asked about the use of substances.

26. Mr Rodionov explained that he had been President of the Club since the 1980s and was now its owner. He considered that Dr Syrchikov had been negligent in not telling Mr Balandin and Mr Limonov not to use Mildronate. He believed that as Dr Syrchikov had previously been working in a hospital as a nurse, that he was unfamiliar with the ADR and should have done more to inform himself and others. No seminars had been conducted within the Club on this issue. Mr Rodionov considered that it was Dr Syrchikov’s responsibility to educate athletes about the ADR, and that it was “80% his fault” that Mr Balandin was facing a four-year ban. He said that while Dr Syrchikov had probably denied that he had permitted the Player to use Mildronate, that he was nevertheless aware that they had consumed it and had failed to stop them from doing so. He denied having asked Dr Syrchikov to change his testimony so that the players would not have to face sanctions. He did state that he had a conversation with Dr Syrchikov in which he asked him to “confess and tell the truth” as it was “(80% his responsibility)”. He mentioned that the outcome would have been different in the “A team”, where athletes make enough money to have an entourage to advise them, however “youths know nothing”.

27. Dr Syrchikov explained that he informed athletes of the content of the ADR, and that before each season they would sign a declaration that they were aware of the ADR. He confirmed that he remembered that Mildronate became prohibited on 1 January 2016, and that players had been given Mildronate by the Club prior to this date. He said that information about the Prohibited List had been communicated to the whole team at the beginning of the season. He mentioned that he had informed the team that they were not supposed to use Mildronate immediately when he found out it would be banned, about two months before it was included on the Prohibited List, as he had been surprised about this. He informed the players that they could look up prohibited substances on the WADA website. Regarding the conversation with Artyom Limonov, he had told him that if he took the substance and he would be tested, he

would be banned. He believed that the player thought he would not be tested. He recalls that there were other players listening.