International Olympic Committee (IOC), World Anti-Doping Agency (WADA), International Skating Union (ISU) v. Kamila Valieva, Russian Anti-Doping Agency (RUSADA), Russian Olympic Committee (ROC)

III. FACTS — A. Background Facts

8. The elements set out below are a summary of the main relevant facts as established by the Panel on the basis of the submissions of the Parties. Additional facts may be set out, where relevant, in the legal considerations of the present award.

9. The Athlete is a 15-year-old Russian figure skater, competing in the OWG 2022 as a member of the ROC delegation.

10. On 25 December 2021, on the occasion of her participation in the 2022 Russian National Figure Skating Championships, which took place in Saint Petersburg from 21 December until 26 December 2021, the Athlete was subjected to an in-competition doping control test and provided a urine sample (the “Sample”). The anti-doping authority which conducted the testing was RUSADA. On her Doping Control Form, the Athlete disclosed that she was taking three substances, two of which were legible (l-carnitine and hypoxen).

11. In the documentation in the file, until 7 February 2022, no further communication or information is found concerning the results of the collected Sample.

12. On 7 February 2022, the Athlete competed in the Team Event – Women’s Single Skating – Free Skating at the OWG 2022 as a member of the ROC team which placed first.

13. Also on 7 February 2022, based on the information contained in the relevant Test Report, the Doping Control Laboratory of the Karolinska University Hospital in Stockholm, Sweden, a WADA-accredited laboratory (the “Doping Control Laboratory”), issued an Adverse Analytical Finding (“AAF”) for the presence of “S4. Hormone and Metabolic Modulators/trimetazidine” in the Athlete’s Sample, which is a Non-Specified Substance. The AAF included the following details concerning the finding: “Neither lomerizine nor its metabolite M6 were detected in the Sample”. According to the Test Report, the Sample was received by the Doping Control Laboratory on 29 December 2021. It was explained that the delay in providing results sooner arose from the fact that the laboratory had personnel shortages as a result the COVID-19 pandemic.

14. The concentration of Trimetazidine detected was estimated at 2.1 ng/mL.

15. On 8 February 2022, Ms Valeriya German, Head of the Results Management Department at RUSADA, notified the Athlete, WADA, ITA and ISU that the Results Management Process had been initiated due to a potential anti-doping rule violation under clauses 4.1 and 4.2 of the All-Russian Anti-Doping Rules (the “Russian ADR”) on the basis of the Athletes’ AAF and that the Athlete had been provisionally suspended as of the same day at 11.36 Beijing time pursuant to art. 9.4.1 of the Russian ADR and to Article 7.4.1 of the WADA Code (the “Provisional Suspension”).

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16. Also on the same date, the ITA notified the Athlete of the implementation of her Provisional Suspension imposed by RUSADA. The notification, which was also forwarded by e-mail to the IOC, WADA, RUSADA and ISU, stated as follows:

“We write to you on behalf of the International Olympic Committee (the “IOC”) insofar as the IOC has delegated some of its responsibilities related to the implementation of the Doping Control in relation to the Games of the XXIV Olympic Winter Games (the “Olympic Games Beijing 2022”) to the International Testing Agency (the “ITA”). Any communication sent by the ITA on behalf of the IOC shall be considered as the IOC’s communication. The present notification refers to an Adverse Analytical Finding (“AAF”) that was notified to you on 8 February 2022 by the Russian Anti-Doping Agency (“RUSADA”) in relation to sample n° 170859V (the “Sample”) that was collected from you on 25 December 2021 during the 2022 Russian Figure Skating Championships in Saint Petersburg (the “AAF Notification”) under the Testing Authority and Results Management Authority of RUSADA. We have been informed by RUSADA that the analysis of the Sample had revealed the presence of the Prohibited Substance “trimetazidine”. Trimetazidine is a non-specified substance and is prohibited at all times by the World Anti-Doping Agency (“WADA”) - Prohibited List. We have also been informed by RUSADA that pursuant to Article 9.4.1 of the All-Russian Anti-Doping Rules, a Provisional Suspension was imposed against you as of 11:36 am (Beijing time) on 8 February 2022 as a consequence of the AAF. Pursuant to Article 15.2 of the IOC Anti-Doping Rules applicable to the Olympic Games Beijing 2022 (“IOC ADR”), a decision from a Signatory Anti-Doping Organisation such as RUSADA imposing a Provisional Suspension is recognised and implemented by the IOC. […] In light of the foregoing, you are hereby put on notice that the Provisional Suspension imposed by RUSADA prohibits you from participation in all Events, Competitions and any activity under the authority of the IOC, including the Olympic Games Beijing 2022. In this regard, you are prevented from competing, training, coaching, or participating in any activity, including any potential medal ceremony, during these Olympic Games Beijing 2022”.

17. On 9 February 2022, RUSADA’s Head of its Results Management Department informed the ITA, WADA and ISU that, on the same day at 16.30 Moscow time, following the Athlete’s request, a provisional hearing had taken place before the DADC on the issue of Provisional Suspension of the Athlete, and “The Committee reviewed the materials presented during the hearings and approved the request of the athlete. The provisional suspension imposed by RUSADA was cancelled. The resolutive part of the decision, as well as the final decision will be sent to you as soon as possible after it is prepared”.

18. The Appealed Decision found the following:

“Based on the above, pursuant to clause 9.4.3 of the Rules, the Committee decided to lift the provisional suspension of the athlete Valieva Kamila”.

19. On 10 February 2022, RUSADA forwarded to the ISU, WADA and ITA an email with four attachments: the case file, the doping test history of the Athlete from WADA’s Anti-Doping Administration and Management System (“ADAMS”), a picture of the front page of the medication (in Russian language) showing the letters TMZ and on the back side the product data, including the date of expiry of validity (“0524”).

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20. Later on, the same day RUSADA also forwarded to the same recipients as in the prior paragraph two videos recording of the hearing in Moscow and the oral issuance of the decision of the DADC.

21. An English version of the reasoned Appealed Decision was provided by RUSADA to the other Parties on 11 February 2022.

V. THE CAS PROCEEDINGS

36. On 11 February 2022, at 20:45 (Beijing time), the IOC filed an Application with the CAS Ad Hoc Division against RUSADA with respect to the Appealed Decision (the “IOC Application”). Ms Valieva, the ROC and ISU were named as Interested Parties. In its Application, the IOC also requested that RUSADA be ordered to issue the grounds of the Appealed Decision.

37. At 22:19 (Beijing time), WADA also filed an Application with the CAS Ad Hoc Division against RUSADA and Ms Valieva (the “WADA Application”). The ROC and ISU were named as Interested Parties.

38. At 23:52 (Beijing time), the IOC and WADA Applications were notified by the CAS Ad Hoc Division to the other Parties. Inter alia, RUSADA was requested to comment, by 12 February 2022, at 14:00 (Beijing time), on the Evidentiary Request filed by IOC. RUSADA eventually issued the grounds of the Appealed Decision. Therefore, the IOC withdrew its Evidentiary Request.

39. On 12 February 2022, at 09:13 (Beijing time), a third Application was filed by ISU (the “ISU Application”) with the CAS Ad Hoc Division against RUSADA, Ms Valieva and the ROC. WADA and IOC were named as Interested Parties. In its Application, the ISU requested that a decision in the matter should have be rendered by no later than 13 February 2022, at 10:30 (Beijing time).

40. The ISU Application was notified to the other Parties on the same day, at 09:52 (Beijing time).

41. At 10:20 (Beijing time), pursuant to Article 15 lit. c para. 1 of the CAS Arbitration Rules for the Olympic Games (the “CAS Ad Hoc Rules”), the Parties were notified of the composition of the Arbitral Tribunal (the “Panel”) for the three proceedings, as follows:

President: Mr Fabio Iudica, Italy

Arbitrators: Mr Jeffrey G. Benz, United States of America

Dr Vesna Bergant Rakočeviċ, Slovenia

42. At 12:10 (Beijing time), the President of the CAS Ad Hoc Division decided, pursuant to Article 11(§3) of the CAS Ad Hoc Rules, that the three proceedings shall be consolidated and decided by the same Panel of arbitrators.

43. At 12:17 (Beijing time), a proposal for a procedural schedule, was submitted to the Parties, with a deadline to file comments until 16:00 (Beijing time).

44. At 13:10 (Beijing time), the United States Olympic and Paralympic Committee (USOPC) and the Canadian Olympic Committee (COC) requested the opportunity to be “silent observers” in this procedure.

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45. At 18:05 (Beijing time), following input by all the Parties, the Panel issued a new set of procedural directions, and invited the Respondents to file their Answers by 13 February 2022, at 15:00 (Beijing time). The Parties were also summoned to appear at a hearing, scheduled for 13 February 2022, at 20:30 (Beijing time). The Parties were further advised that a hybrid hearing (i.e. with persons attending in person in front of the Panel and others remotely), would have been possible only with the consent of all Parties. In light of the Athlete’s objection in this regard, the Panel confirmed that the hearing would take place entirely online.

46. At 18:25 (Beijing time), the CAS Ad Hoc Division forwarded to the Parties a request from the WADA Independent Observers to attend the hearing. Failing a unanimous agreement of all involved Parties, such request was denied by the Panel.

47. At 18:30 (Beijing time), the Panel rejected the request of the USOPC and COC to be deemed as “silent observers”, because this procedural status does not exist in the CAS Ad Hoc Rules.

48. At 18:36 (Beijing time), the time limit for the Panel to give a decision was extended by the President of the CAS Ad Hoc Division until 14 February 2022, at 12:00 (Beijing time).

49. On 13 February 2022, at 07:06 (Beijing time), RUSADA filed its Answer.

50. At 09:35 (Beijing time), ISU, after “[h]aving read the explanation kindly made by RUSADA on the legal position of the [DADC]” requested to “declare DADC a further Respondent, expand the application submitted by the ISU against RUSADA, the Skater and the Russian Olympic Committee to the DADC and urgently call the DADC to make sure to be represented at the hearing later today”. On 13 February 2022, at 11:41, the Panel rejected ISU’s request to include the DADC, on the grounds that the latter has no standing to be sued.

51. At 14:58 (Beijing time), the Athlete filed her Answer.

52. At 14:58 (Beijing time), the ROC filed its Answer.

53. At 20:30 (Beijing time) a hearing was held by videoconference. In addition to the Panel, Mr Matthieu Reeb, CAS Director General, Mr Antonio de Quesada, CAS Head of Arbitration and Mr Giovanni Maria Fares, Counsel to the CAS, the following persons attended the hearing remotely:

For the IOC:

• Prof. Antonio Rigozzi, Counsel.

For WADA:

• Mr Ross Wenzel, General Counsel;

• Mr Nicolas Zbinden, Counsel;

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• Mr Anton Sotir, Counsel;

• Dr Olivier Rabin, Expert;

• Prof. Martial Saugy, Expert.

For the ISU:

• Mr Fredi Schmid, Director General

• Prof. Michael Geistlinger, Counsel

• Ms Christine Cardis, Anti-Doping Director.

For Ms Valieva:

• Ms Kamila Valieva, Athlete;

• Ms Alsu Anvarovna Valieva, Athlete’s mother;

• Mr Valeriy Artyukhov, Team manager;

• Dr Philippe Bärtsch, Counsel;

• Mr Ms Anna Kozmenko, Counsel;

• Mr Marco Vedovatti, Counsel;

• Mr Luka Groselj, Counsel;

• Mr Daniil Vlasenko, Counsel;

• Mr Hu Ke, Counsel;

• Mr Eduard Bezuglov, Expert;

• Mr Andrei Zholinskii, Expert;

• Ms Margarita Larshina, Interpreter.

For RUSADA:

• Mr Graham Arthur, Counsel;

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• Ms Veronika Loginova, Legal Counsel;

• Ms Valeriya German, Legal Counsel;

• Ms Kristina Coburn, Legal Counsel.

For the ROC:

• Dr Claude Ramoni, Counsel;

• Ms Monia Karmass, Counsel;

• Mr Rodion Plitukhin, Olympic Games Attaché;

• Ms Alexandra Brilliantova, Head of Legal;

• Mr Victor Berezov, Deputy Head of Legal.

54. At the outset of the hearing, the Athlete raised concerns regarding the appointment of Mr Jeffrey Benz as arbitrator given his prior status as a figure skater competing for the United States in his youth and the fact that he was previously employed (15 years ago) by the United States Olympic and Paralympic Committee. Mr Jeffrey Benz clarified that his previous position at the United States Olympic and Paralympic Committee and his nationality do not affect his independence and impartiality to decide the case. However, the Athlete did not formally challenge his appointment at any time. In addition, the Athlete expressed her objections with respect to the jurisdiction of the CAS Ad Hoc Division (see below) and the expedited nature of the procedure. Besides, there were no formal objections to the constitution of the Panel and the Parties confirmed not having any objection as to the specific conduct of the proceedings.

VI. THE PARTIES’ SUBMISSIONS AND REQUESTS FOR RELIEF

55. The Parties’ submissions and arguments shall only be referred to in the sections below if and when necessary, even though all such submissions and arguments have been considered.

A. The First Applicant

a. The IOC Submissions

56. The First Applicant filed its Application before notification of the grounds of the Appealed Decision, with the express purpose to “ensure that the Decision under Appeal is formally reviewed by the Court of Arbitration for Sport (CAS), in a de novo hearing in which all the interested parties are heard, prior to the Athlete’s next competition”.

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57. The position of IOC with respect to the facts of the case agrees with the description set forth under Section III of the present award.

58. With regard to jurisdiction, the First Applicant contends that the CAS Ad Hoc Division is the competent body to decide the present case based on Article 61(2) of the Olympic Charter and Article 1 and 2 of the CAS Arbitration Rules for the Olympic Games (hereinafter referred to as the “CAS Ad Hoc Rules”). The present dispute falls within the jurisdiction of the CAS Ad Hoc Division: a) ratione materiae since the “Athlete has been advised of an AAF which could potentially impact her eligibility to compete in these ‘Olympic Winter Games Beijing 2022’, and the dispute clearly arose on the occasion of, or in connection with, the Olympic Games” and b) ratione temporis “as both the AAF and the decision to lift the provisional suspension have been issued during the ‘Olympic Winter Games Beijing 2022’”.

59. The IOC excludes that the present dispute is subject to the jurisdiction of the CAS Anti-Doping Division, “which is limited to circumstances where an <anti-doping rule violation has been asserted and referred to it under the IOC ADR> or under the anti-doping rules of another International Federation who has delegated first-instance authority to CAS ADD”.

60. The Application complies with the IOC mission to ensure the regular celebration of the Olympic Games, to guarantee the respect to the fundamental ethical principles of Olympism, to protect clean athletes and the integrity of sports “by leading the fight against doping, and by taking action against all forms of manipulation of competitions and related corruption” according to Rule 2.9 of the Olympic Charter.

61. Although the IOC is not aware of the grounds of the Appealed Decision at the moment when the Application is filed, it understands that during the hearing, the Athlete relied on a possible contamination (through a medication taken by her grandfather) and raises doubt as to the level of substantiation of such allegations and whether other circumstances were taken into account by the DADC.

62. Against this background, the IOC notes that “the circumstances allowing the lifting of a mandatory provisional suspension in case of an AAF concerning a non-specified substance before the analysis of the Bsample are narrowly identified at Article 7.4.1 of the WADA Code as incorporated at Article 9.4.3. of the Russian ADR. The IOC is also mindful that Ms Valieva is a minor and that she will benefit from special evidentiary rules in the ultimate hearing on the merits for the AAF”.

63. As a consequence, the IOC stresses the importance of the decision as to whether Ms Valieva’s provisional suspension shall remain lifted be taken by an arbitral tribunal after having given all interested parties a fair opportunity to present their case in time in order to determine her participation the upcoming figure skating event on 15 February 2022.

64. The First Applicant preliminarily submitted evidentiary requests with regard to the production of the full case file in relation to the Athlete from RUSADA; and the grounds of the Appealed Decision (to the extent that the grounds for the Appealed Decision do not yet exist, or alternatively, the immediate issuance of such grounds). The IOC later confirmed that these requests were mooted by the production of the Appealed Decision and other documents.

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b. The First Applicant’s Requests for Relief

65. The IOC submitted the following requests for relief:

(i) Setting aside the Decision of the RUSADA Disciplinary Anti-Doping Committee to lift the provisional suspension imposed on Ms. Kamila Valieva.

(ii) Rendering a new decision after a de novo hearing (Article 16 of the CAS AHD Rules) with all the parties and interested parties having been heard.

(iii) Ordering any other relief the Panel deems appropriate under the circumstances.

B. The Second Applicant

a. WADA’s Submissions

66. The Second Applicant also filed its Application before notification of the grounds of the Appealed Decision, based on the urgency of the present case.

67. The facts of the case as set out under Section III of the present award are not in dispute.

68. The Appealed Decision is an appealable decision according to Article 15.2 of the Russian ADR; in addition, since the present case relates to an international-level athlete within the meaning of the Russian ADR, the appeal is subject to CAS according to Article 15.2.1 and WADA has right to appeal pursuant to Article 15.2.3.1(f) of the Russian ADR.

69. The jurisdiction of the CAS Ad Hoc Division is based on the following circumstances: a) the Appealed Decision was rendered and notified to WADA within the period of the OWG 2022 and b) it is clearly connected with the Olympic Games. Indeed, the CAS Ad Hoc Division at the Tokyo 2020 Olympic Games accepted jurisdiction in very similar circumstances where WADA (and World Athletics) appealed against a decision of the Swiss National Anti-Doping Organization to lift a mandatory provisional suspension (see CAS OG 20/006 & CAS OG 20/008).

70. The Athlete alleges having been inadvertently exposed to Trimitazidine due to domestic interaction with her grandfather who used the drug at that time. Although the Athlete did not submit any specific scenario, in support of her allegations the Athlete submitted oral evidence by her mother, a pre-recorded video message from her grandfather in which he claimed to use Trimetazidine periodically when he suffered from ‘attacks’ and showed a packet of Trimetazidine medication to the camera (her grandfather did not testify at the hearing), as well as oral expert evidence from Dr Andrey Zhalinskii and Dr Eduard Bezuglov.

71. The position of the two scientific experts was, in essence, that the concentration in the Athlete’s sample was compatible with contamination. The experts conceded, however, that the AAF was also compatible with the end of the excretion period after a full dose of Trimetazidine.

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72. The Athlete’s provisional suspension was correctly imposed according to Article 9.4.1 of the Russian ADR; furthermore, WADA stresses that according to Article 9.4.3, suspension may be lifted only if athletes can demonstrate that the relevant violation was most likely caused by the use of a contaminated product, which, according to the Russian ADR is as a “product that contains a Prohibited Substance that is not disclosed on the product label or in information available in a reasonable Internet search”.

73. As Trimetazidine is not a Substance of Abuse, the only basis in the applicable rules to lift the mandatory provisional suspension is if the Athlete demonstrates that the violation is likely to have involved a Contaminated Product.

74. The grounds for lifting a provisional suspension are subject to restrictions. The underlying reason is that “Allowing athletes that have tested positive for non-specified substances to participate in competitions pending the final adjudication of their case would risk negatively affecting the sporting integrity of those competitions. This is all the more the case as the default position under art. 10.10 of the World Anti- Doping Code (and art. 12.10 of the Russian ADR) is that, once the anti-doping rule violation is established, all the competitive results of the Athlete after the date of the violation shall be disqualified”.

75. The Athlete’s explanation does not involve a Contaminated Product; this excludes by itself any basis to lift the mandatory provisional suspension. The Athlete’s explanation involves some form of exposure to a medication that contained Trimetazidine as an ingredient. The Athlete declared the following three products on her Doping Control Form at the Doping Control: Lcarnitine, supradyn and hypoxen4. However, she has not sought to argue that any of these products was a Contaminated Product. Therefore, the Athlete necessarily cannot meet the criteria to have her (mandatory) provisional suspension lifted.

76. An athlete bears the burden to prove that the explanation of the exposure to Trimetazidine is more likely than not. As it has been confirmed by CAS jurisprudence, the fact that an explanation is possible, is not sufficient (CAS 2020/A/6978 & 7068; CAS OG 16/025) and also that “an athlete must provide actual evidence as opposed to mere speculation” (CAS /A/2014/3820).

77. In addition, an athlete must also demonstrate that the source could have caused the specifics of

78. On the contrary, the Athlete failed to provide evidence that her explanation is “most likely”: a) First, there is no independent and/or documentary evidence that the Athlete’s grandfather used Trimetazidine. There is, without limitation, no proof of purchase, no underlying medical records, and no prescription; b) Second, there is no scientific evidence as to whether the specifics of the AAF (in particular the concentration of Trimetazidine) are compatible with the athlete’s explanation of the accidental exposure.

b. The Second Applicant’s requests for relief

79. WADA requested the following relief:

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“The Appealed Decision (i.e. the decision of the Disciplinary Anti-Doping Committee dated 9 February 2022 in the matter of Kamila Valieva) is set aside; and

A provisional suspension is imposed on Kamila Valieva with immediate effect”.

C. The Third Applicant

a. ISU’s Submissions

80. The Third Applicant’s submissions may be summarized, in essence, as follows:

81. As to the main facts, ISU agrees with the description set forth under Section III of the present award.

82. As to jurisdiction, ISU contends that the Appealed Decision is an appealable decision according to Article 15.2 of the Russian ADR; in addition, since the present case relates to an internationallevel athlete within the meaning of the Russian ADR, the appeal is subject to CAS according to Article 15.2.1 and ISU has right to appeal pursuant to Article 15.2.3.1(c) of the Russian ADR.

83. Jurisdiction of the CAS Ad Hoc Division is based on Article 61(2) of the Olympic Charter and Article 1 of the CAS Ad Hoc Rules.

84. With regard to the competence ratione temporis, ISU referred to CAS jurisprudence in CAS OG 14/003 at para 5.28 which established the following:

“It is accepted that the date when a dispute arises is in general – in fact in most cases – the date of the decision with which the Applicant disagrees (“a disagreement on a point of law or fact” as stated by the ICJ). Such a date can arise later, in some cases, if, for example, the decision is not selfexplanatory and requires some explanation in order for the Parties to know with certainty that they are in disagreement. Evidence would be required to establish whether a later date than the date of the decision should apply”.

85. This CAS finding was confirmed by CAS OG 20/006 and CAS OG 20/008, at para 5.10 (see Exhibit 22 of the Third Applicant).

86. Based on the foregoing, ISU submitted that the dispute arose during the OWG 2022 by the Appealed Decision communicated to the ISU without reasons on 10 February 2022, at 0.12 am Beijing time and with reasons on 11 February 2022, at 10.18 pm Beijing time; i.e., when the ISU became aware of the disagreement with the DADC.

87. With reference to CAS OG 14/003, CAS OG 20/006 and CAS OG 20/008, the ISU considers that the dispute relates to whether the DADC was allowed to lift the Provisional Suspension under the applicable article 9.4.3 of the Russian ADR which states the same as article 7.4.1 ISU Anti-Doping Rules.

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88. The reasoning on which the DADC based the Appealed Decision to lift the provisional suspension on the assumption that the Athlete is a Protected Person falls outside the scope of Article 9.4.3 of the Russian ADR with respect to the element of a Contaminated Product and is not justified: “Without any legal basis for applying analogy, the [DADC] takes the liberty to assume a privilege of a protected person with regard to article 9.4.3 of the AllRussian Anti-Doping Rules and the corresponding provision in the WADC. If the WADC had wanted to expand the privilege for protected persons to the issue of a Provisional Suspension, this had been included in the definitions or accommodated in the text of the relevant article”.

89. In fact, ISU objects that the DADC has created “a new standard of proof for a Protected Person below the standard of balance of probability and calls it the “standard of reasonable possibility” and last, but not least, allows also for a special term of ‘Contaminated Product’, when it comes to a Protected Person”, providing a sophisticated model of how to escape a rule violation.

90. Moreover, the criteria of irreparable harm, balance of interests and likelihood of success have been developed by CAS for provisional measures; application by analogy of such principle to a Provisional Suspension without authorization is arbitrary.

91. Therefore, the standard to meet is the balance of probability as Article 9.4.3 of the Russian ADR applies to both protected and non-protected Skaters in the same manner:

“Given the text of article 9.4.3 of the AllRussian Anti-Doping Rules, the nature and the concept of a Provisional Suspension, there is no difference to be seen between a Protected Person and any other Skater. For both the last sentence of article 5.1 of the AllRussian Anti-Doping Rules must be considered. This provision, which, with the exception of the reference to authority and provisions, is identical with article 3.1 last sentence ISU Anti-Doping Rules reads as follows: “Where these Rules place the burden of proof upon the Skater or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, except as provided in Articles 5.2.2 and 5.2.3 of these Rules, the standard of proof shall be by a balance of probability””.

92. According to CAS jurisprudence, the balance of probability standard means that “the Appellant must demonstrate the origin of the prohibited substance on the “balance of probability” standard, by providing actual evidence as opposed to mere speculation” (CAS 2019/A/6319, at para 48).

93. On the contrary, the Athlete provided the DADC with pure speculations on whether the violation is likely to have involved a Contaminated Product; in addition,

“The [DADC] followed this approach in its reasoned decision by re-defining the term “Contaminated Product” for a Protected Person. The scenario that the grandfather uses TMZ as medication, shares car and home with the Skater and uses the same dish and glass, which then causes rests of the medication to enter the system of the Skater does not allow to speak of a Contaminated Product and see the requirements of this article met”.

94. In addition, the assumption that a metabolic modulator like Trimitazidine would not enhance sport performance as maintained by the medical experts called by the Athlete is false, as

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metabolic modulators “are popular in sports where strength is an important factor and can suppress the production of estrogen, or prevent the normal conversion of testosterone into estrogen. They can remove natural limitations like that of muscle growth of the body (Exhibit 25). Metabolic modulators increase glucose metabolism at the expense of free fatty acid metabolism and enhance so efficient use of oxygen (Exhibit 26)”.

95. Finally, another requirement is not met by the Athlete since she failed to establish that the ingestion has taken place out-of-competition and unrelated to sports performance, deriving from the fact that the ingestion itself cannot be demonstrated on a balance of probability.

b. The Third Applicant’s requests for relief

96. ISU submitted the following request for relief:

“1. CAS Ad Hoc Division for the Beijing Games 2022 is requested to declare that it holds jurisdiction for the case.

2. CAS Ad Hoc Division is requested to set aside the decision of RUSADA Disciplinary Antidoping Committee of 9 February 2022.

3. CAS Ad Hoc Division is requested to re-instate the Provisional Suspension imposed by RUSADA on 8 February 2022, Nr VV-545 with immediate effect”.

D. The First Respondent

a. The First Respondent’s Submissions

97. RUSADA agrees with the factual framework set forth under Section III of the present award.

98. In addition, it emphasized that although standard operating practice is for biological samples to be analysed within a period of two weeks from receipt, the laboratory’s analysis of the Sample was delayed seemingly due to a backlog of sample analysis caused by pandemic-related staff shortages prior to 25 December 2021, exacerbated by further pandemic-related absences in January 2022.

99. According to the First Respondent, the Athlete had a very limited time within which to prepare a position and present evidence before the DADC, and the evidence that she was able to present by way of her representatives may not have been the complete evidence available.

100. The position submitted by RUSADA before the DADC was the following: a) provisional suspension was a mandatory measure in the present case since Trimetazidine is a Non-Specified Prohibited Substance; b) the Russian ADR and the WADC provide that a Provisional Suspension can only be removed if evidence is provided that establishes that an Adverse Analytical Finding “was most likely caused by the Use of a Contaminated Product or pertains to a Substance of Abuse”; c) the evidence that the Athlete provided at the hearing was not sufficient to satisfy the grounds stated in the Russian ADR with regard to the lifting of the Provisional Suspension:

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“It did not appear to RUSADA that, in the time available, the Athlete had been able to gather sufficient evidence to establish that the presence of trimetazidine in the A Sample was most likely caused by the use of a Contaminated Product”.

101. RUSADA is confident that the Athlete will be able to complete her submission with respect to evidence in the present proceedings before CAS. The hearing before CAS will be de novo and will provide a platform for a full and comprehensive review of that evidence.

102. The Appealed Decision correctly identifies that the Athlete is a Protected Person; however there does not appear to RUSADA to be any provision in either the Russian ADR or the WADC that establishes that the Athlete has a lesser burden of proof than the ‘balance of probabilities’ by virtue of being a Protected Person.

103. In addition, the First Respondent specified that the DADC is an independent and impartial body from RUSADA and that its decisions, as is the Appealed Decision cannot be conflated with RUSADA’s decisions.

b. The First Respondent’s Requests for Relief

104. RUSADA requested the following relief:

“The hearing on 9 February 2022 was convened at very short notice and did not provide for an opportunity for an in depth examination of the evidence relating to the AAF, and its possible source. The hearing of the Applications before CAS provides an opportunity for a de novo hearing to take place at which all interested parties may be heard and a full consideration by CAS of all the relevant evidence to take place.

Based on that evidence CAS will determine whether or not the Athlete can establish, on a balance of probabilities, that the grounds referred to in Article 9.4.3 of the ADR apply.

That no further measures, remedies, or other orders are required save that CAS may wish to limit the extent to which its decision is made public, consistent with the restrictions in the Code applicable to the publication of information concerning Protected Persons”.

E. The Second Respondent

a. The Second Respondent’s Submissions

105. As a preliminary issue, the Second Respondent objected that the CAS Ad Hoc Division does not have jurisdiction to adjudicate this matter based on the following grounds.

106. Although Article 15.2 Russian ADR, provides that “a decision to apply or lift a provisional suspension based on a preliminary hearing” can be appealed before CAS, there is no provision in the Russian ADR granting jurisdiction to the CAS Ad Hoc Division; therefore, the CAS Appeals Division should be the competent body.

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107. Moreover, the present matter “does not concern a dispute arising on the occasion of or arising out of the Olympic Games” while it involves a decision taken by the DADC, in relation to a sample taken 41 days before the Olympic Games, and whose effects are not limited to the Olympic Games. The requirements under Article 1 of the CAS Ad Hoc Rules to establish the jurisdiction of the CAS Ad Hoc Division are not met, both with regard to jurisdiction ratione materiae and with regard to jurisdiction ratione temporis.

108. As to jurisdiction ratione materiae it is objected that: a) the Sample was not collected, and the alleged violation was not committed on the occasion of or in connection with the Olympic Games; b) RUSADA did not act as the Results Management Authority of the Games when it decided to provisionally suspend the Athlete; c) the Provisional Suspension did not specifically target the Games; d) the decision to lift the Provisional Suspension was rendered by an authority – the DADC – who is alien to the Games; e) the Appealed Decision was not rendered in connection with the Olympic Games.

109. As to jurisdiction ratione temporis it is objected that: a) the Sample was taken on 25 December 2021; b) the fact that the Appealed Decision was rendered during the OWG 2022 is a pure coincidence due to an irregular delay of the Anti-Doping Laboratory and cannot create any basis for jurisdiction of the CAS Ad Hoc Division ratione temporis.

110. Besides, the expedited procedure before the CAS Ad Hoc Division does not allow sufficient time to safeguard the Athlete’s due process rights; while the Athlete would have more possibilities to defend her case before the CAS Appeals Division (also considering that she was not allowed to have her B-Sample analyzed yet): “Had the Applicants filed their applications before the CAS Appeals Arbitration Division, as they should have, Kamila would at least then have had the right to appoint an arbitrator and would have had sufficient time to prepare her defense, including by presenting medical science based detailed expert evidence”.

111. Secondly, IOC and WADA submitted their Applications even before the notification of the grounds of the Appealed Decision, and thus were not able to substantiate their case, which fact itself is a sign of their unjust motives.

112. As to the merits, the Athlete concurs with the factual framework set forth under Section III of the present awards. The following facts are emphasised in her submissions:

113. That the Test Report was issued only on 7 February 2022, which is 44 days after the collection of the Sample; that such irregular delay cannot go to the detriment of the Athlete, also with regard to the burden of proof in relation to the use of a Contaminated Product; that the detected substance is a medication against heart disease, whose performance enhancement potential is scientifically not proven or at least questioned and has harmful potential side effects which have negative impact on coordination; that the level of concentration of Trimetazidine in the Sample was extremely low; that her previous tests have never been positive and, in particular, the two anti-doping tests prior and during the Olympic Games, on 13 January and 7 February 2022, were both negative.

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114. WADA and IOC are disregarding the fact that the Athlete’s status as a Protected Person under the applicable anti-doping provisions needs to be taken into account in the present case, in particular because of the severe consequences and irreparable harm that the reinstatement of a provisional suspension would cause her. In this regard, as a Protected Person, the Athlete does not need to prove contamination with the Prohibited Substance in order for the Provisional Suspension to be lifted. In fact, it is noteworthy to underline that if a Protected Person benefits from a more lenient treatment in terms of sanctions (Article 10.5 WADC; Article 12.5 Russian ADR; Article 10.6.1.3 WADC; Article 12.6.1.3 Russian ADR), a similar more lenient treatment must obviously also apply at the stage of the provisional suspension assessment, failing which a provisional suspension may have greater consequences than a sanction if an anti-doping rule violation is found to have been committed.

115. In this respect, the Athlete argues that as a Protected Person, she does not need to adduce actual evidence of a contamination in order to have a mandatory provisional suspension lifted under article 9.4.3 Russian ADR, since what needs to be established is not the actual use of a contaminated product, but the mere likelihood of the use of a contaminated product, i.e. that a contamination is more likely than any other explanation (the intentional ingestion of Trimetazidine). The wording “most likely” under Article 9.4.3 Russian ADR indicates that the burden of proof is neither “certainty” nor “comfortable satisfaction”. The threshold of proof is lower. Under CAS case law the standard must be a “reasonable possibility”. The Athlete has met this standard since she has demonstrated that given the extremely low concentration of the Prohibited Substance in the Sample, there is a very high probability that the substance entered Kamila's body by touch, accidental contact with the packaging and/or traces of the medication within the family context though domestic interaction with contaminated objects.

116. In fact, after having considered all the circumstances and evidence of the present case, the DADC finally found that the Athlete did not take the prohibited substance as a course of treatment to achieve therapeutic effects or enhance sports performance.

117. The Athlete contends that the source of inadvertent contamination has been established by the DADC after careful analysis, in connection with the Athlete’s interaction with her grandfather, who regularly takes the medicine Trimetazidine to cure his condition and the DADC has also accepted that she would not have any competitive advantages by consuming the substance in question, based on the medical experts’ testimonies.

118. In this respect, the DADC correctly acknowledged that the Athlete is a Protected Person due to her age and therefore considered that a lower standard of proof should apply, specifically a “reasonable possibility” test, which is a “less stringent standard than ‘balance of probabilities’”.

119. Not to mention that there is also a probability that the Anti-Doping Laboratory might have made a technical mistake, which is compatible with the extremely low concentration in the Sample. This is why the Athlete will request the analysis of the B-Sample.

120. In such a context, it cannot be disregarded that the delay of the WADA-accredited Anti-Doping Laboratory has de facto made it impossible for the Athlete to conduct timely investigation and

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bring actual proof of the contamination. Therefore, it would be highly unfair and disproportionate to make the Athlete bear the consequences of such irregular delay: “In other words, the CAS ADH cannot request Kamila to prove the origin of trimetazidine, because this would amount to a probatio diabolica”.

121. Furthermore, it has to be considered that the Provisional Suspension is an interim measure aimed at prohibiting an athlete or other person from participating in any competition pending the decision on the merits. As such, the following requirements must be met when the addressee of a Provisional Suspension requires its lifting: a) there must be a likelihood of success on the merits; b) there must be irreparable harm; c) the interests of the applicant overweigh those of the opposing party. During the hearing before the DADC, the Athlete demonstrated that all these requirements were met.

122. In addition, the Athlete’s young age must also be given special consideration in light of relevant human rights instruments, in particular the United Convention on the Rights of the Child.

123. To set aside the Appealed Decision and reinstate the Provisional Suspension, excluding her from the competition on 15 February 2022, would cause irreparable harm to the Athlete who is one of the leaders in world figure skating and is a real contender for the Olympic gold. Such irreparable harm cannot be repaid by monetary relief or any other equivalent.

“Moreover, should the Provisional Suspension be maintained, Kamila would de facto be sanctioned for the Alleged ADRV in the absence of a completed (or any, as a matter of fact) investigation because the B sample has not yet been opened, and without a decision on the merits. Such a de facto sanction is not compatible with the very nature of a Provisional Suspension, which should not be a punitive measure, let alone would it be proportionate”.

124. As to the balance of interests, the Athlete put forward the following arguments:

“In these circumstances, if the Decision was to be overturned and a provisional suspension reinstated, Kamila’s interests would be flatly disregarded, in violation of fundamental principles, such as the presumption of innocence, the right to be heard and the right to a fair trial. A decision denying the Applicants to reinstate the Provisional Suspension would not harm their interests, nor that of any third parties. Neither WADA, the ISU nor the IOC invoked any overriding interest in their applications, saved for an alleged “unfair competition”, which makes absolutely no sense because nobody, not even the Applicants, are alleging that Kamila is obtaining an advantage from the Alleged ADRV during the Games. In other words, her participation at the Games would certainly not affect the fair competition of figure skating”.

“Equally, Kamila’s participation of in the Olympic Games will not damage their integrity, because – and it is important to recall it – the A sample has not even been confirmed by the B sample. There is indeed the possibility that the B sample will confirm that Kamila did not commit any ADRV”.

125. Finally, the Athlete argued that the reinstatement of the Provisional Suspension would not comply with the principle of proportionality, since the Applicants have failed to even explain

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what the goal of reinstating the Provisional Suspension would be in this case and why such measure would be necessary to reach that (unexplained goal).

126. In view of the foregoing, the decision to lift the provisional suspension is justified and must be upheld.

b. The Second Respondent’s Requests for Relief

127. The Athlete submitted the following requests for relief:

“(1) Declare that it lacks jurisdiction to hear the matter;

(2) In any event dismiss the Applications filed by the International Olympic Committee, the World Anti- Doping Agency and the International Skating Union and confirm that the decision dated 9 February 2022 to lift the Provisional Suspension stands;

(3) Order the International Olympic Committee, the World Anti-Doping Agency and the International Skating Union to pay the costs of the arbitration (if any) as well as Ms Kamila Valieva’s legal fees and expenses”.

F. The Third Respondent

a. The Third Respondent’s Submissions

128. With regard to the merits, the ROC agrees with the statement of facts set forth under Section III of the present award.

129. As to procedural aspects of the present arbitration, the Third Respondent pointed out the following: a) the limited time granted to the Athlete (less than 48 hours) to prepare her defence; b) the ROC cannot be considered as a true “Respondent” in the proceedings since it did not play any role in the result management process of this national case which was exclusively handled by RUSADA, although the ROC has nevertheless the right to take part in the proceedings according to the CAS Ad Hoc Rules; c) the ROC did not take any position with regard to the Athlete’s challenge of the CAS Ad Hoc jurisdiction, leaving it to the Panel to decide the matter.

130. With regard to the substance, the ROC emphasizes that the present case shows that there was a breach of the International Standards of Laboratories by the Anti-Doping Laboratory, namely Article 5.3.8.4 which provides that “reporting of “A” Sample results should occur in ADAMS within twenty (20) days of receipt of the sample”. This breach is detrimental to the Athlete which suffers the following negative consequences: a) she is deprived from her fundamental right to have the Bsample analysed; b) It is materially impossible for the Athlete to collect evidence and to establish the origin of a prohibited substance in a couple of days, whilst she is in Beijing. If there had not been such delay, she would have benefited from 20 days before the CAS Appeals Division.

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131. In such context, the standard of proof claimed by the Applicants is impossible to meet and must be disregarded: “If a party is in a situation of probatio diabolica, his factual allegations shall be deemed proven, in the absence of other evidence refuting the allegations by such party”.

132. Therefore, the ROC requests the Panel to apply the general principle of law and of fairness when assessing the Athlete’s explanations and evidence, as this is supported by CAS jurisprudence in a similar case (CAS 2019/A/6443 & 6593).

133. Moreover, the Applicants give a strict reading of Article 9.4.3 of the Russian ADR failing to consider that the Athlete is a Protected Person, and she does not need to prove how the substance entered her body to benefit from a reduction of sanction for No Significant Fault or Negligence, notably in case of a Contaminated Product.

134. Such understanding must be rejected by adopting the principle governing the interpretation of law rather than of contracts, according to well-established CAS jurisprudence (CAS 2013/A/3365 & 3366 §§137 et seq). The starting point should be therefore the literal interpretation; secondly, inconsistencies/ambiguities in the rules must be construed against the legislator, as per the principle of “in dubio contra proferentem”.

135. The ROC submits that the text of article 9.4.3 Russian ADR is ambiguous and unclear in the circumstances that the adverse analytical finding is reported in connection with a Protected Person, i.e. an athlete who is below 16-year-old, as the Athlete.

136. In fact, while Protected Persons do not need to prove how a prohibited substance entered their system to benefit from a reduction of sanction for “No Significant Fault or Negligence”, there is a lacuna in Article 9.4.3 Russian ADR with respect to a Protected Person in case of Provisional Suspension. Such lacuna needs to be filled-in by the Panel by way of interpretation, in accordance with the CAS case law.

137. The Third Respondent argues that the provision under article 9.4.3 Russian ADR has to be reconciled with the general provision that, on the merit, Protected Persons do not need to establish the cause of a doping offence.

138. The same reasoning applies with regard to Articles 12.6.1.1, 12.6.1.2 and 12.6.1.3 Russian ADR: “In other words, in case of an antidoping rule violation implying a Specified Substance, a Contaminated Product or a Protected Person, the sanction is the same in case of No Significant Fault or Negligence, i.e. at a minimum a reprimand and at a maximum a two-year period of ineligibility. One cannot see why some circumstances listed in article 12.6.1 Russian ADR could open the door to the lifting of a provisional suspension, and not the fact that the athlete is a Protected Person”.

139. On 12 February 2022, the ROC sent a question by email to the independent members of the WADA 2021 Code Drafting Team (Prof. Ulrich Haas, Ms Liz Riley, Mr Richard Young) to know “whether the absence of reference to “Protected Persons” in the context of Section 7.4 of the World Anti- Doping Code has been done on purpose, or whether it could be seen as an oversight or a lacuna”. Prof. Haas answered that, even though he is not allowed as a CAS Arbitrator to provide an opinion as to

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the interpretation of this rule, he could testify that there had been no discussion in the context of the 2021 Code revision with respect to the specific issue to coordinate the provisions on ineligibility of Protected Persons with the provision on Provisional Suspension.

140. A systematic assessment of the Russian ADR and of the WADC shows that being a Protected Person must be taken into consideration when interpreting the rules. In fact, the Russian ADR and the WADC contain numerous provisions where Protected Persons are subject to a “milder” system of sanctions than other athletes (Articles 4.3, 4.5, 17.3.7,); being a Protected Person is a factor to assess the “Fault” as per the definition of this word in the Russian ADR; Protected Persons do no need to prove how the prohibited substance entered their body to benefit from No Fault or Negligence or No Significant Fault or Negligence; Protected Persons who have committed No Significant Fault or Negligence can benefit from a reduction of the period of ineligibility between a reprimand and two years, even in case of a non-specified substance.

141. Furthermore, an historic analysis of the successive versions of the WADC shows that when a new possibility for an athlete to obtain a reduced sanction was introduced in the regulations, the provision on provisional suspensions was adapted. It is obvious that there should be a coordination between the provisions governing sanctions (including the possibility to reduce sanctions), and the provisions on provisional suspensions.

142. Moreover, according to the principle in dubio contra proferentem, the rule shall be interpreted in a way that is favourable to the Athlete, implying that there is no strict requirement, for Protected Persons, to show how the substance entered their body in order to have a provisional suspension lifted.

143. Finally, the strict approach followed by WADA (and ISU) in the present case with respect to the lifting of a provisional suspension is not applied consistently. Notably in case of particular circumstances (such as the long excretion time of meldonium, contaminated meat, etc), provisional suspensions have been lifted in hypotheses which are not contemplated by art. 9.4.3 Russian ADR / art. 7.4.1 WADC. The same shall apply in the case of the Athlete, in the exceptional circumstances of a Protected Person reporting an adverse analytical finding.

144. As to the standard of proof, the references by WADA and ISU that, to benefit from a lifting of a mandatory provisional suspension, the Athlete should demonstrate “the origin of the prohibited substance” are wrong based on Article 12.6.1 Russian ADR in connection with the definition of No Significant Fault or Negligence and also on the consideration that in order to have a mandatory provisional suspension lifted as per article 9.4.3 Russian ADR, what needs to be proven is not the use of a Contaminated Product, but the likelihood of use of a Contaminated Product, which shows that the standard of proof is lower.

145. Therefore, the proper test to be applied by the Panel is not whether the Athlete proved how the substance entered her body, but whether her explanations are “likely”, bearing in mind that as a Protected Person she does not need to prove how the substance entered her body.

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146. The ROC requests the Panel to apply the principle of proportionality, taking into consideration all aspects of the case at hand, including that the Athlete could on the merit be sanctioned with a reprimand for No Significant Fault or Negligence, without having to prove how the prohibited substance entered her body, and that she returned several negative tests in 2022. In this respect, the ROC submitted that any provisional sanction being harsher than the sanction that could be imposed after a full hearing of the case would be per se disproportionate.

147. Since in the present case concrete evidence showing the source of the contamination is not required (as the Athlete is a Protected Person) and are not available (due to the undue delay in the reporting of the adverse analytical finding by the Anti-Doping Laboratory), the Panel must rely on circumstantial evidence and decide to confirm the Appealed Decision if the scenario submitted by the Athlete with regard to contamination with the Prohibited Substance is more likely that the different scenario of a voluntary ingestion.

b. The Third Respondent’s Requests for Relief

148. The Third Respondent submitted the following requests for relief:

“The Russian Olympic Committee respectfully applies for the Ad hoc Division of the Court of Arbitration for Sport to dismiss the Applications filed by the International Olympic Committee, the World Anti-Doping Agency, and the Ice Skating Union in the arbitration cases CAS OG 22/08, CAS OG 22/09 and CAS OG 22/10, provided that the Panel finds that it has jurisdiction”.