Heiki Nabi v. Estonian Center for Integrity in Sports

II. FACTUAL BACKGROUND — A. Background facts

3. Below is a summary of the relevant facts and allegations based on the parties’ written submissions, pleadings and evidence adduced at the hearing. 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 below. While the Panel has considered all the facts, evidence, allegations and legal arguments submitted by the Parties in the present proceedings, it refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning.

4. On 6 January 2021, the Athlete underwent an Out-of-Competition doping test in Tallinn, Estonia.

5. On 7 February 2021, the Respondent informed the Athlete that the analysis of his sample returned an adverse analytical finding (“AAF”) for Letrozole, a Prohibited Substance under Section S4 of the 2021 World Anti-Doping Agency (“WADA”) Prohibited List. More specifically, Letrozole is classified as a Section S4 Hormonal and Metabolic modulator, the use of which is prohibited both In-Competition and Out-of-Competition in Wrestling. Because

the Prohibited List has classified it as a Section S4.1 Aromatase Inhibitor, for the purposes of the sanctioning regime applicable under the Estonian Anti-Doping Rules (“EADR”), Letrozole is considered a Specified Substance.

6. In the same 7 February 2021 Notice, the Respondent informed the Athlete that his positive anti-doping test could violate Article 2.1 of the EADR, imposed a provisional suspension and offered him a myriad of procedural rights including the right to exercise his right to the analysis of his B sample, which the Appellant did.

7. On 8 April 2021, the Athlete’s B-sample was analyzed and it confirmed the presence of Letrozole, thereby establishing the commission of an anti-doping rule violation (“ADRV”) for “presence” pursuant to Article 2.1.2 EADR.

8. On 14 May 2021, the Appellant filed a request for a Provisional Hearing to try to lift his Provisional Suspension.

9. On 18 May 2021, the ESTCIS Disciplinary Board (“ESTCIS DB”) lifted the Athlete’s Provisional Suspension with immediate effect pending the outcome of the hearing.

10. A first instance hearing was held before the ESTCIS DB on 18 June 2021.

B. The First Instance Decision

11. On 27 June 2021, the ESTCIS DB issued the operative part of its decision and imposed a two-year period of ineligibility period on the Athlete:

“Pursuant to Article 10.2.2 of the Code, Heiki Nabi (ik 38506060258) will be banned from competing for two years from 18.06.2021, the last day of the ban is 19.03.2023.

To cancel all competition results of Heiki Nabi from 06.01.2021” (translation provided by the Appellant).

12. On 1 July 2021, the ESTCIS DB issued its reasoned decision (the “Appealed Decision”) In finding against the Athlete, the ESTCIS DB inter alia held that:

• Contaminated food supplements or medical products as well as sabotage could be ruled out as the possible sources of Letrozole.

• It was “very unlikely that letrozole entered the athlete’s system through contaminated meat products. Letrozole has not been authorized by the European Medicines Agency as a veterinary medicinal product, and its use in veterinary or on animals in other way has not been established”.

• Contrary to the Athlete’s arguments based on preliminary scientific studies investigating the use of Letrozole in the promotion of ovulation in young cattle, it is “unreasonable that an animal about to be slaughtered would need ovulation promotion; on the other hand, it is unlikely that

an animal receiving letrozole for this purpose will accumulate the amount of letrozole in the muscles or liver in such quantity, that it would be evident after consumption of this meat after pregnancy (approximately 9 months).The possibility that a cow treated with letrozole did not become pregnant and was therefore slaughtered is exceedingly small and exceptional considering the circumstances. No known case has been identified during the hearing in which the athlete’s adverse analytical finding was due to the consumption of letrozole-contaminated meat”.

• The evidence on file contradicted the Athlete’s explanation that he had eaten contaminated bovine liver on 4 January 2021, since “in the hair analysis, letrozole had the highest content in the hair segment corresponding to December 2020 (i.e. before the alleged liver consumption) but not in the segment corresponding to January 2021 (or in later segments)”. The alternative explanation that Letrozole had entered the Athlete’s system through another person’s saliva, sweat or exposed surfaces, was to be rejected on the basis that “[n]o known case has been identified […] in which the athlete’s adverse analytical finding could have resulted in exposure to letrozole in such manner. There is also no reference to any scientific study suggesting that letrozole may enter the body in this way”.

• The Athlete did not establish the source of Letrozole to the required standard of proof and was to be sanctioned with a two-year period of ineligibility.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

13. On 5 July 2021, the Athlete filed a request for urgent provisional measures with the Court of Arbitration for Sport (“CAS”) requesting a stay of execution of the Appealed Decision. The Athlete requested that the stay of execution be granted ex parte due to the utmost urgency of the case (e.g. he wished to compete at the 2022 Tokyo Summer Olympic Games for which he has earned a quota spot). The Athlete submitted the following prayers for relief:

“1. The execution of the decision of the Estonian Center for Integrity in Sports Disciplinary Board of 27 June 2021 shall be stayed at least until the CAS’s final decision on the present case;

Alternatively: The execution of the decision of the Estonian Center for Integrity in Sports Disciplinary Board of 27 June 2021 shall be stayed at least until the conclusion of the Games of the XXXII Olympiad in Tokyo (8 August 2021);

2. The stay of execution shall be ordered ex parte;

3. The Respondent shall be ordered to pay all costs and fees relating to these proceedings, including, but not limited to, the entire costs for the Applicant’s lawyers, witnesses and experts, which the Applicant reserves the right to produce in due course” (emphasis in original).

14. Also on 5 July 2021, the CAS Court Office acknowledged receipt of the Athlete’s request for a stay of execution of the Appealed Decision and initiated an appeals arbitration procedure under the reference CAS 2021/A/8125 Heiki Nabi v. Estonian Center for Integrity in Sports.

15. On the same day, the President of the CAS Appeals Arbitration Division (the “Division President”) held that, since the Appellant requested a decision to be rendered by 11 July 2021, i.e. six days later, this was not a situation of “utmost urgency” within the meaning of Article R37(4) of the Code of Sports-related Arbitration (the “Code”). Accordingly, the Division President decided not to entertain the Applicant’s request for ex parte provisional measures and granted the ESTCIS a short deadline to file its position on the request for a stay of execution.

16. On 8 July 2021, the ESTCIS filed its Answer to the request for a stay of execution, requesting that the Applicant’s application be dismissed.

17. On 9 July 2021, the Division President communicated to the Parties the operative part of the Order on the request for a stay issued by rejecting the Appellant’s application.

18. On 21 July 2021, in accordance with Articles R47 and R48 of the Code, the Appellant filed his Statement of Appeal.

19. On 10 August 2021, the Appellant filed a submission with the CAS Court Office to the effect that, pursuant to Article R65.1 of the Code, he did not or should not have to pay any arbitration costs or advances on costs.

20. On 16 August 2021, the Division President issued her reasoned Order on the request for a stay.

21. On 7 September 2021, the CAS Court Office informed the Parties that the Panel appointed to hear and decide the matter was constituted as follows:

President: Prof. Stefano Bastianon, Attorney at Law, Busto Arsizio, Italy Arbitrators: Mr. Benoît Pasquier, Attorney at Law, Zurich, Switzerland Ms. Janie Soublière, Attorney at Law, Montréal, Canada

22. On 13 September 2021, after having been granted extensions, the Appellant filed his Appeal Brief in accordance with Article R51 of the Code.

23. On 8 November 2021, after having been granted extensions, the Respondent filed its Answer in accordance with Article R55 of the Code.

24. On 19 November 2021, the Panel ruled that Article R65.1 of the Code did not apply in the present case with the grounds of its ruling to be exposed in the final Award.

25. On 6 December 2021, the Appellant and the Respondent signed the Order of Procedure.

26. On 11 May 2022, a hearing was held in Lausanne, Switzerland. The Panel was assisted by Ms. Delphine Deschenaux-Rochat, CAS Counsel, and joined by the following individuals:

For the Appellant

• Mr. Heiki Nabi, Athlete (in person)

• Mr. Paul Keres, counsel (in person)

• Dr. Rafael Braegger, counsel (in person)

• Mr. Aleksander Muru, counsel (in person)

• Ms. Ene Leigri, witness (by video-conference)

• Mr. Levi Earl, witness (by video-conference)

• Dr. Douwe De Boer, expert witness (in person)

• Prof. Pascal Kintz, expert witness (in person)

• Dr. Mihkel Mardna, expert witness (by video-conference)

• Dr. Keith R. Ashcroft, expert witness (by video-conference)

• Ms. Tiiu Soomer, translator (by video-conference)

For the Respondent

• Mr. Henn Vallimäe, Executive Director of the Respondent (in person)

• Ms. Ingeri Luik-Tamme, counsel (in person)

• Dr. Stephan Netzle, counsel (in person)

• Dr. Detlef Thieme, expert witness (in person)

27. At the outset of the hearing the Parties confirmed that that they had no objections concerning the proceedings so far and in particular the jurisdiction of CAS to decide on the matter, the composition of the Panel, and the hearing timetable.

28. During the hearing, the Parties were given a full opportunity to present their case, submit their argument and submissions, and answer the questions posed by the Panel. The Parties and the Panel had the opportunity to examine and cross-examine the witnesses, who were informed by the Panel to tell the truth subject to sanction of perjury under Swiss law.

29. After the Parties’ final arguments, the Parties’ counsels confirmed that they were satisfied with the hearing, the way in which the procedure has been conducted and that their right to be heard was fully respected.

30. Before closing the hearing, the Panel invited the Parties to file within ten days written submissions on their respective costs incurred in these proceedings.

IV. SUMMARY OF THE PARTIES’ SUBMISSIONS — A. The Appellant

31. The Appellant first argues that even if he is unable to establish the source of the prohibited substance, he can be found to have no fault or negligence or no significant fault or negligence for the ADRV. Inter alia he submits that:

• The requirement to establish source is neither part of the actual provisions of Article 10.5 EADR or Article 10.6 EADR nor of the related comments (unlike, e.g., Article 10.2.1.1 EADR) but of the Definitions section only;

• If an athlete is able to rule out intentional doping as well as reasonably conceivable sources attributable to fault or negligence, then only scenarios involving no fault or negligence remain;

• Restricting the No Fault or Negligence and the No Significant Fault or Negligence pleas to cases where the source of the prohibited substance could conclusively be established is an impossible obligation to fulfil. According to the generally accepted legal principle, “no one is obliged beyond wat he is able to do”. In other words, legal obligations that are impossible to fulfil are void (“ultra posse nemo obligatur”);

• The Supreme Court of Estonia has held from the principle of good faith that the burden of proof is reversed in cases where the probability of an occurrence of circumstances has been substantiated. This is particularly so in cases where there is no objective possibility for one party to produce evidence.

32. The Athlete submits that the evidence he has compiled and tendered shows not only that it is impossible that he intentionally ingested any Letrozole, but also that he undertook everything that is reasonably possible to identify its source upon being confronted with the AAF:

• He underwent polygraph testing (Dr. Ashcroft);

• He had his medication and food supplements analyzed by a specialized laboratory in order to detect possible contamination (Prof. Kintz);

• He enquired with the restaurant where he ate (Argentina);

• He enquired with the producer of the meat he ate at that restaurant (Biovela);

• He enquired with his sparring partners about their potential use of Letrozole (Estonian wrestlers);

• He enquired with the gym where he trained (Sparta Sports Club);

• He enquired with the University of Tartu about conducting water quality analyses.

33. Further to all his research and efforts, the Athlete brings forward four possible ways in which Letrozole would have accidentally entered his system and which he finds are all possible.

34. The first scenario is the consumption of contaminated turkey of French origin which the Appellant ate on Christmas Eve 2020. He submits that Letrozole, as many other human drugs, has been found to be useful in the treatment of certain conditions in animal husbandry. In poultry farming, for example, a study has found that Letrozole is effective in significantly decreasing egg production and that it is possible that the turkey he ate on Christmas Eve 2020 could have contained Letrozole.

35. The second scenario is the Appellant’s consumption of contaminated bovine liver of Lithuanian origin which the Appellant ate in December 2020 and on 4 January 2021, i.e. two days before the doping control in question. Relying on the “Contador test” (CAS 2011/A/2384), which was also applied in CAS 2019/A/6443 & 6593, the Appellant submits that meat contamination is a plausible explanation for the finding of Letrozole in his sample.

36. In this respect, the “Contador test” consists of the following steps, which he says apply here:

• a credible explanation of how the Prohibited Substance entered the athlete’s body, i.e. proof that meat was consumed during the relevant period and which meat specifically, and meat that was theoretically subject to possible contamination by Letrozole;

• the specific origins of the meat in question, i.e. origin and source of the meat and whether it was contaminated with Letrozole (on a balance of probabilities); and

• identification and elimination of all other possible sources, or at least a demonstration that each other possible source is less likely than meat contamination. Meat must be the only possible way of ingestion of the prohibited substance or more probable than any other explanation.

37. Relying on the evidence of Dr. De Boer and a scientific study according to which a “4-day letrozole-based protocol induced ovulation in a significantly greater proportion of animals and with significantly greater synchrony than the control treatment”, the Appellant argues that the meat contamination scenario is utterly possible and that the specific organs where one would expect to find exogenous compounds such as Letrozole would be the liver and kidneys, which the Athlete regularly eats.

38. The third scenario is the transfer of sweat and/or saliva from another wrestler sparring with the Appellant using Letrozole without the Appellant’s awareness.

39. The fourth scenario, related to the third scenario, is the use of contaminated gym equipment by the Appellant, i.e. equipment that was used by a Letrozole user who did not wipe the equipment clean before the Appellant used it.

40. He relies on the expert evidence of Dr. De Boer whose expert evidence is that Letrozole behaves very similarly to Phencyclidine and is thus excreted through saliva and sweat which, if ingested, could plausibly trigger an AAF. He argues that Wrestling is a contact sport, and it is certainly not beyond the realm of possibilities that from such contact (which is intense and lasts for minutes), the saliva or sweat of a doped athlete might enter a clean athlete’s system, resulting in (minimal) concentrations of the Letrozole metabolite and its parent compound being detected in analyses, as was the case in the Appellant’s hair and urine.

41. To support these scenarios, the Appellant relies on a study conducted by German sports investigative journalist Hajo Seppelt and his team, together with the renowned “Institut für Rechtsmedizin” (Institute for Forensic Medicine) of the university hospital in Cologne, Germany. Their experiment resulted in a video contribution titled “Geheimsache Doping: Schuldig – Wie Sportler ungewollt zu Dopern werden können” (“Secret affair doping: Guilty – How athletes can unintentionally become dopers”) which was aired on German public broadcaster ARD on 16 July 2021. In that experiment, twelve male individuals were administered a very low dose of anabolic steroids – hardly even visible to the human eye – together with a carrier substance. The steroids and carrier substance were applied once to their skin (on their neck, arm, or hand). In many cases, this resulted in AAFs for the same anabolic steroids to which these individuals had been exposed.

42. The Appellant also relies on the fact that a drug ring operating out of the Sparta gym had been discovered during the same time as his AAF. Evidence shows that Letrozole was found in the cache of drugs that had been allegedly pedalled out of the gym. The Appellant submits that he was at the Sparta Gym in December 2020 and in January 2021 and that there is a very real possibility that he might have been contaminated by the sweat or saliva or any of the many Gym members who were using various prohibited substances pedalled in the Gym, including Letrozole.

43. Finally, relying on the expert analyses of Dr. Keith Ashcroft, Dr. Douwe De Boer and Prof. Pascal Kintz the Appellant submits that intentional use of Letrozole can be ruled out. He concedes that contaminated medication and food supplements as the source of Letrozole can also be ruled out.

44. The Appellant concludes that his evidence and submission show that he:

• did not intentionally take Letrozole;

• has identified several plausible sources of Letrozole;

• has been able to rule out several other possible sources of Letrozole;

• undertook everything that is reasonably possible to identify the source of Letrozole.

45. Against this background, the Appellant argues that it is irrelevant that he has not been successful in conclusively identifying the exact source of Letrozole detected in his urine sample (i.e., how it entered his system/body) and that all the possible scenarios he has brought forward should be sufficient for a Panel to conclude that all there is left are no-fault-related scenarios (contaminated meat or contamination through sweat/saliva/aerosol etc.).

46. Although the Appellant ultimately seeks a finding of No Fault, he does alternatively argue that, should the Panel deem that he has established the source of Letrozole, the No Significant Fault Provisions of the EADR should apply and that an assessment of his degree of fault should place him at the lower end of the spectrum of Article 10.6.1.1 of the EADR.

47. In any event, he argues that under the circumstances, the sanction he has already served is disproportionate to his infraction and that he has already been punished enough.

48. Lastly, in his written and oral submissions, the Appellant argues that the present case should be governed by Article 65.2 of the Code according to which appeals against decisions which are exclusively of a disciplinary nature and which are rendered by international federations or sports-body “shall be free” (the so-called “No Costs Rule”).

49. The Appellant recognizes that in the present case the Appealed Decision was not issued by an international federation. However, the Appellant argues that:

(a) the second sentence of Article 65.1 of the Code states: “It is not applicable to appeals against decisions related to sanctions imposed as a consequence of a dispute of an economic nature”. Accordingly, Article 65.1 of the Code does not state that it would not apply to appeals against decisions rendered by a national federation or a sports-body;

(b) the present case is exclusively of a disciplinary nature;

(c) the Appellant is an international-level athlete pursuant to Article 13.2.1 EADR;

(d) the Appellant can exclusively appeal the Appealed Decision to CAS pursuant to Article 13.2.1 EADR.

50. The Appellant argues that the present proceedings should be free of charge in order to avoid any unequal, discriminatory and arbitrary treatment of his case as an international-level athlete appealing a disciplinary decision issued by an national anti-doping organisation (as opposed to a international federation).

51. The Appellant’s requests for relief are as follows:

“1. The decision of the Estonian Center for Integrity in Sports Disciplinary Board of 27 June 2021 shall be set aside.

2. It shall be held that the Appellant bears No Fault or Negligence for the Anti-Doping Rule Violation and no sanctions, in particular no period of ineligibility, shall be imposed on him.

Alternatively: It shall be held that the Appellant bears No Significant Fault or Negligence for the Anti- Doping Rule Violation and no sanctions, in particular no period of ineligibility, shall be imposed on him.

Alternatively: It shall be held that the Appellant bears No Fault or Negligence for the Anti-Doping Rule Violation and a maximum sanction of a period of ineligibility of three months shall be imposed on him.

3. The Respondent shall be ordered to pay all costs and fees relating to these proceedings, including, but not limited to, the entire costs for the Appellant’s lawyers, witnesses and experts, which the Appellant reserves the right to produce in due course”.

B. The Respondent

52. The Respondent submits that it is a daring and wrong proposition for the Appellant to argue that a lack of intention must automatically lead to the acceptance that contamination of food, or equipment, or by physical contact with a competitor are the only possible explanations left to explain the presence of Letrozole in his sample. Lack of evidence of intent does not equate to lack of fault and there remains a statutory obligation for an athlete to establish the source of a prohibited substance detected in his or her urine sample in order to benefit from any reduction in sanction under the EADR.

53. Article 10.2.2 EADR is a rule of evidence and takes into account that the ADRV related to a Specified Substance “might have been” due to contamination. It cannot be read from this provision that the source was or must have been contamination or that intentional use must be excluded (although in this case it has been by virtue of the Respondent not establishing the intentional element of the ADRV). Pursuant to Article 10.2.1 EADR, lack of evidence of intent simply leads to a lower standard sanction, namely a two (2) year period of ineligibility as a starting point instead of the presumptive four (4) year period of ineligibility applicable for all international ADRVs.

54. The Respondent flatly rejects all of the Appellants arguments and submits that he cannot rewrite the law. Pursuant to the express definition of No Significant Fault or Negligence in the EADR, it is he who bears the burden of establishing the source of Letrozole in his sample and has failed to do so. As a result, he cannot avail himself of the No Fault and No Significant Fault provisions of the EADR.

55. The Respondent rejects all the expert evidence adduced by the Appellant.

56. In rejecting the Polygraph test, the Respondent argues as follows:

• First, it is the Appellant who must demonstrate how the prohibited substance entered his system and the polygraph test does not provide any answers to this end.

• Second, the question of whether the Appellant used Letrozole intentionally has already been answered without requiring recourse to the polygraph test.

• Third, the question whether the Appellant acted with No (Significant) Fault or Negligence is not a matter that has been subject to the polygraph test. This concerns whether the Appellant applied all reasonable efforts to avoid the prohibited substance entering his body. Here, the Appellant’s acts and omissions are to be judged, not the verbal statements he made with the goal to escape a doping sanction.

• Fourth, in CAS proceedings and most European jurisdictions, the results of a polygraph test have no or a very limited probative value.

57. In rejecting the hair follicle analysis results, the Respondent also argues that to date, the results of a hair analysis have not been widely accepted as reliable evidence in doping procedures. Accepted analytical methods are defined in great detail in the International Standards and require certification by WADA of both the method itself and the laboratory which performs it. Hair analysis has not been identified as a certified analytical method by WADA. The Respondent also questions the reliability of Prof. Kintz’ analyses and repeatedly amended expert opinions and testimony arguing that they are not objective in interpreting the results and making final unbiased conclusions.

58. In rejecting Scenario 3 and 4 (i.e. contamination through sweat/saliva), the Respondent argues that no study or evidence suggests that it is possible for an athlete to be contaminated through an inadvertent simple contact with sweat or saliva of another person – let alone one who took Letrozole, which should be a critical requirement to the success of this scenario. Relying on the opinion of Dr. Boer who says that “as far as known, no alternative body fluids, such as saliva and skin excretions, have been studied in relation to letrozole”, the Respondent argues that there are no studies that confirm Letrozole contamination from saliva or sweat has ever occurred. This is so because only a very small amount of Letrozole is excreted in the urine. Even less is secreted through the skin. The Respondent also rejects the contention that Letrozole could be transmitted from one person to another through the skin by way of saliva or sweat excretion or secretion through shared facilities, surfaces or sports equipment and submits that the Appellant has failed to provide any evidence to support these scenarios to this end. To the contrary: all the Appellant’s sparring partners have stated that they did not use Letrozole, and gymnastic equipment is cleaned and disinfected more often these days than ever before, because of Covid-19 regulations.

59. The Respondent also rejects any attempt to liken this case to the other ‘contamination cases’ as the factual circumstances here are totally different. Succinctly, in those contamination cases:

• The transmitted substance was either Probenecid or Cocaine – not Letrozole;

• The affected athlete was able to demonstrate the specific contact or transmitting person who had used the prohibited substance and transferred it inadvertently to the athlete – which the Appellant fails to do;

• The prohibited substance entered the athlete’s body through mucous membranes – not via the skin by sweat or saliva;

• The transmission occurred only hours before the collection of the urine sample which turned out to be positive – not days as would be the case for the Appellant.

60. The Respondent also:

• rejects the Appellant’s reliance on the USADA v. Virginia Fuchs case because there, unlike here, the source/transmitting person of the substance was clearly identified (the athlete’s boyfriend) and the substance was transmitted via sexual intercourse (i.e. via a mucous membrane) and not via skin contact or contaminated equipment or surfaces.

• rejects the broadcast documentary by German journalist Hajo Seppelt as completely irrelevant to the present case. The experiment concerned anabolic steroids and not Letrozole. In addition, anabolic steroids were applied to human skin together with a carrier substance. Therefore, contamination with a Prohibited Substance in such a way is only possible through intentional and well-planned sabotage, on which not even the Appellant relies in the present case. The documentary does not claim that it is possible for an athlete to be contaminated with Letrozole through an inadvertent, simple contact with saliva or sweat of another person who has used Letrozole.

61. The Respondent also argues that not one single case of transmission of Letrozole from one person to another through shared facilities, surfaces or sports equipment has been reported by any expert, study or publication. Even though Dr. de Boer compares Letrozole’s pharmacokinetic properties to Phencydiline and Cannabinoids, and the excretion of all these substances might be similar, Dr. Boer confirmed during the course of the hearing that there are no scientific studies or other that have found that Letrozole (saliva or skin excretion) is easily absorbed through skin, which is designed to be a shield against external factors and more importantly through two skin barriers, as Letrozole would first need to be excreted by one individual’s system and skin barrier before being passed on to another individual through another skin barrier and system before detected in urine. On this point, the Respondent also argues that such a possibility should also be mentioned in the summary of the product characteristics and the package leaflet for the medicine Femara®. The package leaflet for the medicine Femara® does not mention any such effect or risk. If such risk were known, the respective drug administration authorities would require a warning to be affixed on the patient information.

62. The Respondent also adduced evidence that, to date, only two positive samples for Letrozole have been found in the thousands of doping controls performed in Estonia. One is the Appellant’s sample. The other is a confirmed case of intentional use. The Respondent argues

that other Estonian national team athletes also go to gym and use public areas and that other wrestlers are also exposed to the sweat or saliva of a training partner or competitor, yet no other case of contamination by Letrozole has arisen in Estonia, or elsewhere in the world. Considering the extensive list provided of top Estonian athletes who trained at the Sparta Gym and who have been subject to doping control by ESTCIS during the same time period, another AAF of Letrozole would have been almost inevitable if there had been a real risk of contamination at the gym. The Appellant’s would not have been the only one.

63. Thus to the Respondent, the Athlete does not establish the source of Letrozole to the required standard and cannot benefit from any reduction under Article 10.5 or 10.6 EADR. The first instance decision must be upheld and a two (2) year period of ineligibility confirmed as the applicable consequence that arises as a result of the Athlete’s established ADRV.

64. The Respondent’s requests for relief are as follows:

“1. to dismiss the Appeal of the Appellant and confirm the Decision of the Estonian Center for Integrity in Sports Disciplinary Board of 27 June 2021;

2. to order that

a. the Appellant’s results achieved since 6 January 2021 are disqualified including forfeiture of any medals, points and prizes;

b. a period of ineligibility of two years shall apply to the Appellant, beginning at the date of the decision of the CAS, from which the period of provisional suspension already served shall be deducted;

3. to order that the Appellant shall bear the entire costs of this arbitration proceedings;

4. to order that the Appellant shall pay an adequate contribution to the legal costs of the Respondent, such as legal fees and the costs of experts and witnesses, which the Respondent reserves the right to produce in due course”.

C. Oral Evidence

65. While both Parties’ experts and expert witnesses provided thorough and ample written expert evidence in the course of the written submissions, the hearing provided a great opportunity for the expert witnesses to be examined and provide evidence on their respective positions and expert opinions and submitted reports.

a) Mr. Heiki Nabi

66. The Appellant explained that to this day he still does not know for sure where Letrozole came from and that he knows that he never took it intentionally.

67. He has done everything he could to try to establish where Letrozole could have come from. He was not aware that it was possible to get contamination from meat but has since sought out restaurant receipts from the Argentina restaurant and sought out information from the Coop grocery store to determine where they purchase their turkeys.

68. He explained that the Sparta Gym is the largest and cheapest Gym in Estonia and that it contains all the best and updated equipment with heavier weights. It is frequented by many Estonian National Team athletes and it is also frequented by some individuals who appear to be steroid users. Because he is well known in Estonia, people often go to see him to shake his hand and he always takes the time to do so.

69. He said he goes to the Sparta Gym four-five times a week, and that a key card reading could offer corroboration of the same but that the Gym did not want to provide these readings as it did not want to get involved.

70. He said he does not wipe down equipment before using it but it does so after being finished. He assumed that everyone would also wipe down their equipment because these are the rules.

71. With regards to supplements, he had been using the same high-quality supplement for years and never tested positive. He felt confident and comfortable in using these supplements. He had many of them tested (those that were available) after the positive finding just in case and none of the tests ended showed signs of Letrozole.

72. He explained that he eats a varied diet with a lot of meat, especially rare liver, cheese, milk and fish purchased in different markets and shops in Estonia, sometimes in “funky stores” as well. He said that he has never had any food contamination or food poisoning and he trusts all his market sources.

73. He confirmed that he never took Letrozole and has been honest throughout these proceedings and chose not to make up a story in his defense but to find the truth. He just does not know for sure where Letrozole came from, but he offers many possible scenarios, not knowing what else he can do to prove his innocence.

b) Mr. Henn Vallimäe

74. He explained that as the Director of ESTCIS, he is the one who received notification of the Letrozole AAF from the Laboratory and personally notified the Athlete of the AAF.

75. He submitted that since 2017 and in the aftermath of the 2019 Seefeld scandal in cross country skiing where Estonian Athletes were detained and charged by Austrian police, ESTCIS has endorsed a principle of good governance and a zero-tolerance approach to doping in Estonia.

76. He explained that the office prepared the documentation for the results management of the case, and that he participated in each step including attending the first instance hearing.

77. He said that the Appellant’s arguments are not supported by science and that ESTCIS proceeded in accordance with their Rules.

78. He also conceded that ESTCIS learned a lot from its handling of this case, that they did the best they could to deal with it, even if it was their first of this kind, and admits that there are things they would do differently in future cases.

c) Ms. Ene Leigri

79. She is the Athlete’s mother and confirmed her written statement.

80. She remembered her Christmas dinner in 2020 and recalled exactly that she prepared turkey and bought it from a Coop retail store. It was a deep freeze product from France.

d) Mr. Levi Earl

81. He is a trainer and metabolic analyst who has been collaborating with the Appellant for many years.

82. He has completed the United-Kingdom Anti-Doping (“UKAD”) clean sport education course and National Sanitation Foundation (‘NSF’). Certified supplements are the only recommendations he ever gives his clients in terms of supplement use. On this, he testified that the Appellant has always been clean, tested his supplements and used the same supplements for years because he was confident they would not return positive tests having never done so in the past.

83. He confirmed that the Appellant’s training consists of going to go to the Sparta Gym fourfive times a week because it is the only gym in Tallinn that has Olympic weights.

84. He also confirmed that on 4 January 2021, he and the Appellant ate roaster liver at the Argentina restaurant after doing a strength training session together at the Sparta Gym.

e) Dr. Douwe de Boer

85. Dr. Douwe de Boer is a biochemist, who worked in Sport Drug Testing laboratories from 1987 to 2004 and has since been working fulltime in the Central Diagnostic Laboratory (CDL), Maastricht University Medical Centre, the Netherlands. He opined that the level of Letrozole is so low, 0.49 ng/ml, “as to render accidental contamination the most likely explanation from the outset”.

86. His expert conclusions are as follows:

• There are no indications that Letrozole was inadequately identified by the Laboratory in its analysis and reporting;

• The reported concentration of Letrozole was very low, in the range of 0.6 ng/mL;

• Based on the fact that at the time of sample collection a Letrozole concentration of a mere 0.6 ng/mL was reported, Letrozole did not have any pharmacological significance or performance enhancing benefits at the time of sample collection;

• The evidence does not indicate that the Athlete administered Letrozole at a single therapeutic dosage or multiple dosages of 0.62 mg or 2.5 mg. Therefore, such scenarios cannot explain his AAF;

• Hair follicle analysis is essential in this case in order to distinguish between incidental and repetitive administration. Proof of repetitive administration would render alternative scenarios implausible. e.g. medication, supplements and meat contaminated with Letrozole residues and contamination through sweat after contact with other persons;

• Assuming that Letrozole had been administered unconsciously, the origin of Letrozole is unlikely to originate from tablets and incidental contaminations must be considered and looked for in a broad way. Scenarios to be checked are medication, supplements and meat contaminated with Letrozole residues as well as contamination through sweat after contact with other persons.

87. Dr. de Boer’s oral evidence spoke to a similar case in Belgium where Letrozole was traced back to the milk powder used to produce supplements (so-called “Milk Theory”). He says that Letrozole has now been found to be used in some countries and dairy farms to control pregnancies and calf milk production and that trace of residual amounts of Letrozole can therefore be detected in dairy products, notably in milk powder which is not diluted. He explained that it should be the food authorities’ responsibility to report the dairy farms’ use of Letrozole but that they are not doing so because there currently is no reason to alert the general public of a possibility of trace amounts of Letrozole being found in milk, or dairy products.

88. Dr. de Boer also opined that it is possible that trace amounts of Letrozole could be found in calf or beef liver as the liver is the barge of the digestive system and if Letrozole was used by dairy or meet farms, it would necessarily be secreted by the liver.

89. Finally, although the saliva and sweat theory should be considered by the Panel, Dr. de Boer concedes that the probability of Letrozole contamination occurring as a result of indirect contact (saliva or sweat) having to pass through two skin barriers and be secreted or excreted by two bodily systems, is low.

90. According to Dr. De Boer, the most likely source of contamination of Letrozole is milk powder or meat contamination.

f) Prof. Pascal Kintz

91. Prof. Pascal Kintz is renowned expert in hair follicle analysis.

92. Prof. Kintz collected both head hair and axillary hair (from armpits) from the Athlete. The following results were obtained by the laboratory as provided in Prof. Kintz’s report:

Segments Letrozole concentrations (pg/mg) 2 to 3 cm (period of the urine test) < 1 (0.9) Axillary hair < 1 (0.2)

93. Prof. Kintz explained that the window of drug detection in a 4 cm head hair can cover about the last four months. In the Appellant’s case, from early December 2020 to late March 2021. He also explained that the window of drug detection in axillary hair goes back four to eight months, in the Appellant’s case as far back as May 2020.

94. He opined that studies show that a single Letrozole administration of 0.62 or 2.5 mg will produce hair concentrations ranging from 16 to 60 pg/mg. To the contrary, repetitive users of Letrozole have head hair concentrations higher than 160 pg/mg. In a known case of a confirmed ADRV for Letrozole, the athlete presented Letrozole concentrations of 310 and 245 pg/mg in the 2 x 2 cm segments. Conversely, the concentrations measured in the Appellant’s hair specimens are much lower than what can be expected after even just a single exposure to Letrozole. Prof. Kintz conclusion is that these results demonstrate that the Athlete was incidentally exposed to trace amounts of Letrozole within two to four months preceding sample collection. (Noting that the Athlete was tested in September and was negative).

95. With regards to axillary hair, Prof. Kintz conceded that there is no international consensus in terms of what segments should be used for analysis given the varying nature of the axillary hair. While head hair its linear and experts know that the incorporation rate of the hair is 85%, axillary hair is not linear. Each fiber has its own life and can be curvy.

96. Still to Prof. Kintz, one month of growth in head hair is sufficient to understand timing of use. Four-eight months of axillary hair of growth is used for analysis. If we are dealing with one-time exposure of a limited amount of a drug, there would be a small spot of one month in head hair and for axillary hair it would be even less. The concentration of a substance detected in head hair would always be higher than that detected in axillary hair.

97. Confident with his analysis, Prof. Kintz explained that if the Athlete had taken just one pill or more “we know what would have been expected concentration. It would be higher”. Here he explained that the concentration of Letrozole detected in the Athlete’s axillary hair was lower than the

concentration of 0.62 mg detected in his urine. To him, Letrozole could not have come from a voluntary ingestion of a Letrozole pill or repetitive ingestion of Letrozole for a performance enhancing benefit. In either case, Letrozole would have been detected on the axillary hair (and head head) in higher concentrations, which it was not.

98. Prof. Kintz also explained that while it may be more complicated to have exact results with just axillary hair, here, the axillary hair confirms the measurement from the head hair. It confirms not only that the AAF was likely caused by a singular incidental exposure or repetitive incidental exposure at a very low level, but additionally, because the concentration in the urine is so low and the results are so low in both the head and axillary hair – keeping in mind the negative urine test in September – the possibility that the Athlete inadvertently consumed more than what would be normally contained in just one Letrozole pill (which would offer no performance enhancement benefit whatsoever) can be excluded.

99. To Prof. Kintz, in the present case, we are dealing with one or more incidental exposures of Letrozole. Results of both the head and axillary hair analysis confirm and corroborate the same. Based on the timing of the tests (negative in September), it can be concluded that Letrozole to which the Athlete was exposed was less than a single voluntary exposure or single pill. It was minimal exposure with only traces of Letrozole in December 2020 and in January 2021, thus it was an accidental exposure

g) Dr. Mihkel Mardna

100. Dr. Marda is an Orthopedic surgeon who shares a doctor/patient relationship with the Appellant.

101. He has known the Athlete a long time. He explains that through hard work and dedication, the Athlete put on 12 kg in 12 years just working out, training and eating properly.

102. He submitted that he conducted a High Density Lipo-Protein (“HDL”) test after the reporting of the AAF. This HDL test results were not produced but he explained that the results of the HDL test for a person who regularly uses Letrozole would show a lower HDL than normal. In the Athlete’s case the results were normal.

103. He argued that it is crucial to give athletes the chance to defend themselves when very small concentrations of a substance that offer no performance enhancement are detected and that sanctioning clean athletes is a political tool. He submitted that the Athlete did not use Letrozole and should not be sanctioned for the inadvertent finding of a trace of Letrozole in his sample, especially as it is of no performance enhancing benefit to him.

h) Dr. Keith R. Ashcroft

104. Dr. Ashcroft is a Forensic Polygraph Examiner and Consultant, who was trained at the British Polygraph Academy, London and accredited by the American Polygraph Association and the British Accreditation Council.

105. Dr. Ashcroft formulated three questions to which the Athlete answered No.

• Did you ever purposefully take Letrozole?

• Did you even intentionally administer Letrozole to yourself?

• Did you ever deliberately use Letrozole?

106. Dr. Ashcroft opined that the analytical result of the Polygraph supports the conclusion that there were no significant reactions indicative of deception in the loading of the recorded changes in physiological activity in the response to the relevant test stimuli during his examination.

107. The purpose behind the questions was to determine if there was purposeful or intentional use of Letrozole. Dr. Ashcroft’s conclusion is that the Appellant did not intentionally ingest Letrozole.

i) Dr. Detlef Thieme

108. He is Forensic Toxicologist and currently the Director of the Institute of Doping Analysis und Sports Biochemistry Dresden in Kreischa (IDAS Dresden).

109. Dr. Thieme opined that hair analysis is a valid scientific method employed to obtain additional evidence that can be useful to confirm the finding in urine or blood samples. He even suggested that Ms. Katia Shultz from his laboratory perform the hair extraction test in accordance with the forensic analysis of samples. Although he explained this was not done because ESTCIS refused to ask the laboratory to perform the analysis.

110. When discussing axillary hair, he explained that in principle it has a better retrospection than head hair, of up to eighteen months. It contains a smaller portion of hair that can be up to eighteen months old and act as a mirror of what was in an athlete’s blood stream during that period of time.

111. Based on the factual evidence before him, Dr. Thieme concluded that there was no intake of Letrozole prior to June 2020 and no intake of Letrozole prior to September 2020.

112. The 6 January 2021 test result of 0.6 ng/mL is a low concentration but according to Dr. Thieme, this is a typical concentration for substances such as Letrozole unless the intake is intentional. He also confirmed that the limit of detection for Letrozole at his laboratory is 0.2 ng/mL and as far he knows, this the same as other WADA accredited laboratories.

113. Based on this finding, if it were the tail end of ongoing Letrozole abuse by the Appellant, the use would have had to take place between the end of September 2020 and the end of November 2020. There is no way you would do this and leave a trace amount of 0.6 ng/ml in

January 2021; the intake would have had to have been significant. Dr. Thieme stated that one single therapeutic application of Letrozole in October of November cannot be ruled out. But he agreed that there is no benefit to one single dose.

D. Additional Written Witness Statements

114. The Panel has also considered the statements of the following individuals who did not testify at the hearing but did file written submissions summarized below.

a) Mr. Ivar Kotkas

115. Ivar Kotkas is the Appellant’s trainer. He explains that he has worked with the Appellant for years and describes him as a disciplined, exemplary and experienced athlete and role model.

116. He opines that the Athlete did not intentionally use Letrozole and this is most probably a case of accidental contamination for which the Athlete should not be responsible.

b) Mr. Henn Polluste

117. Henn Polluste was the Appellant’s coach from 2022-2016. Under this guidance the Athlete won a silver medal at the London Olympic Games and was World Champion twice (2006 and 2013).

118. He explains that the Athlete has always been vigilant about proper nutrition and has always followed a strict nutrition and training regime. The Athlete is an honest and sincere person. He has always had good stamina and worked very hard to reach his goals.

119. For the minute finding of Letrozole to be confirmed to be the result of accidental exposure would be a relief and hopefully result in a quick ending to this case.

c) Mr. Jaanus Paeväli

120. Jaanus Paeväli is the President of the Estonian Wrestling Federation. He explains that the Appellant is a diligent and honest Athlete and role model and the best Greco-Roman wrestler in the history of Estonian wrestling.

121. He was shocked further to being informed of the positive finding of Letrozole and is convinced that because of its low concentration, it must have entered the Athlete’s system accidentally. This is because he is a careful athlete who shows care in everything he eats and consumes in order to achieve the best physical form.

122. The Athlete’s unwarranted punishment is taking a toll on his mental and physical health and his reputation, all of which are undeserved. There is no logic in punishing him further.

d) Mr. Tarvi Thomberg

123. Tarvi Thomberg is a member of the Management Board of the Estonian Wrestling Federation. He also submits that the Appellant is and has always been an exemplary athlete who has, to his knowledge, always understood and respected the fight against doping in sport.

124. The fact that the concentration of Letrozole was very low suggests accidental contamination and perhaps it came from the gym where he trains. To this end, Mr. Thomberg personally contacted the Gym to determine if there had been any other doping cases involving the Gym’s members, but the Gym refused to disclose such information.

125. He says that punishing the Athlete with ineligibility seems unfair under the circumstances of accidental contamination.