Fédération Internationale de Natation (FINA) v. Eastern Europe Regional Anti-Doping Organisation, Georgia Anti-Doping Agency (GADA), Irakli Bolkvadze

V. JURISDICTION

41. Article R47 provides as follows: “An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of said body”.

42. Article 13.2.3 of the GADA ADR states: “For cases under Article 13.2.2, WADA, the International Olympic Committee, the International Paralympic Committee, and the relevant International Federation shall also have the right to appeal to CAS with respect to the decision of the national-level appeal body”.

43. The jurisdiction of CAS is not contested by the Respondents.

44. Hence, it follows that CAS has jurisdiction to adjudicate and decide on the present dispute.

VI. ADMISSIBILITY

45. Article R49 of the Code provides as follows: “In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. After having consulted the parties, the Division President may refuse to entertain an appeal if it is manifestly late”.

46. According to Article 13.7.1 of the GADA ADR, the deadline to appeal to CAS is “twenty-one days from receipt of the file”.

47. FINA received the case file on 22 October 2017. As the Statement of Appeal was filed on 10 November 2017, the appeal was lodged within the deadline set forth under Article 13.7.1 of the GADA ADR. The appeal complied with all other requirements of Article R47 of the CAS Code.

48. It follows that the appeal is admissible.

VII. APPLICABLE LAW

49. Article R58 of the CAS Code provides the following: “The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation,

association or sports-related body which has issued the challenged decision is domiciled or according to the rules of the law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

50. The Sole Arbitrator notes that pursuant to Article 13.1.1 of the GADA ADR, the GADA ADR applies inter alia to (a) all athletes who are members or license-holders of any national federation in Georgia or (b) all athletes participating in Events, Competitions and other activities organized or recognized by any national federation in Georgia, or by any federation in Georgia (including any clubs, teams, associations or leagues), wherever held. Article 1.3.2 of the GADA ADR adds that: “These Anti-Doping Rules also apply to all other Persons over whom the Code gives GADA jurisdiction, including all Athletes who are nationals of or resident in Georgia, and all Athletes who are present in Georgia, whether to compete or to train or otherwise”.

51. Therefore, the GADA ADR applies to the Athlete.

52. In accordance with Article R58 of the CAS Code, the applicable regulation to this case is the GADA ADR.

53. As the “seat” of this arbitration is Lausanne, Switzerland, Swiss Law governs all procedural aspects of this proceeding.

VIII. MERITS — A. Due Process Rights

54. The Athlete asserts that he has “reasonable doubt, that the procedures held by GADA violated the rules and terms of GADA” for the following reasons: “Firstly, while the Athlete got provisional suspension, the terms of notification were violated. Also, it took a long time to open B sample. On 12 August 2016 we were asked to open B sample, on that day GADA presented us the form of provisional suspension that was signed by the Athlete. While GADA knew about the decision of the Athlete to open and make analyses of B sample, GADA presented the Form only in English, including lots of specific terms and the Athlete decided that this was a form of the request of opening B sample and signed it. Later, it turned out that this form declared, that Athlete did not want to open B sample and admitted the fact of using the prohibited substance. Moreover, all of the communications with the Laboratories and WADA was private, while at the beginning they explained that we would have a direct communication with them, but in spite that, none of the attorneys were included […]”.

55. The Sole Arbitrator notes that Article 57 of the CAS Code entails a procedure de novo (“The Panel shall have full power to review the facts and the law”) and that such review by the CAS, as repeatedly decided by well-established CAS jurisprudence, cures any procedural irregularities in the 2014/A/3467; and MAVOMATI/REEB, The Code of the Court of Arbitration for Sports, Wolters Kluwer, 2015, p. 513 f.

56. Therefore, the Sole Arbitrator considers that any possible infringement of the Athlete’s due process rights committed by GADA are hereby cured and thus insignificant for this procedure. As a result, the Sole Arbitrator may proceed to rule on the sole issue in this procedure, the Athlete’s appropriate period of ineligibility, if any.

B. Period of Ineligibility

57. In consideration of the foregoing, the principle issue for determination by the Sole Arbitrator is the appropriate length of the Athlete’s period of ineligibility, if any, under the GADA ADR. All factual determinations and rulings of the Georgian and Eastern European Regional Anti- Doping Appeal Commission that have not been contested by the parties will be treated as uncontested.

58. The Sole Arbitrator will address this principle issue in four parts as follows: i. The Occurrence of an Anti-Doping Rule Violation (ADRV) ii. Burden and Standard of Proof iii. Was the Athlete’s ADRV intentional? iv. Sanctions

i. The Occurrence of an ADRV and the Standard Sanction

59. With regard to the Athlete’s ADRV, the Sole Arbitrator notes that it is undisputed that the Athlete’s A and B Samples revealed the presence of a non-specified substance 3´hydroxystanozolol glucuronide, a metabolite of Stanozolol. Stanozolol is an Exogenous Anabolic Steroid prohibited under S1.1.a of the WADA Prohibited List, known to be sport performance enhancing.

60. Furthermore, the Sole Arbitrator notes that the Georgian and Eastern European Regional Anti- Doping Appeal Commission ruled that an ADRV was established pursuant to Article 2.1 of the GADA ADR, which was not disputed by the Athlete. This issue is not disputed.

61. With respect to the appropriate period of ineligibility, Article 10.2 of the GADA ADR provides that: The period of ineligibility for a violation of Article 2.1, 2.2 or 2.6 shall be as follows, subject to potential reduction or suspension pursuant to Article 10.4, 10.5 or 10.6: 10.2.1 The period of ineligibility shall be four years where: 10.2.1.1 The anti-doping rule violation does not involve a Specified Substance, unless the Athlete or other Person can establish that the anti-doping rule violation was not intentional … If Article 10.2.1 does not apply, the period of Ineligibility shall be two years.

62. The Sole Arbitrator notes that the standard sanction for an ADRV involving a non-specified substance is 4 (four) years, unless the Athlete (or other Person) can establish that the ADRV was not intentional.

ii. Burden and Standard of Proof

63. In the present case, the burden of proof that the ADRV was not intentional falls on the Athlete (Article 10.2.1 of the GADA ADR) and it naturally follows that the Athlete must also establish how the substance entered her body (see e.g., CAS 2016/A/4377 and CAS 2016/A/4845).

64. Pursuant to Article 3.1 of the GADA ADR, the standard of proof is the balance of probabilities: […] Where these Anti-Doping Rules place the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by balance of probability.

65. The Sole Arbitrator notes that this standard requires the Athlete to convince the Sole Arbitrator that the occurrence of the circumstances on which the Athlete relies is more probable than their non-occurrence, cf. CAS 2016/A/4377, at para.51.

iii. Was the Athlete’s ADRV intentional?

66. The main relevant rule in question in the present case is Article 10.2.3 of the GADA ADR, that reads as follows: “As used in Articles 10.2 and 10.3, the term “intentional” is meant to identify those Athletes who cheat. The term, therefore, requires that the Athlete or other Person engaged in conduct which he or she knew constituted an anti-doping rule violation or knew that there was a significant risk that the conduct might constitute or result in an anti-doping rule violation and manifestly disregarded that risk. An anti-doping rule violation resulting from an Adverse Analytical Finding for a substance which is only prohibited In-Competition shall be rebuttably presumed to be not “intentional” if the substance is a Specified Substance and the Athlete can establish that the Prohibited Substance was Used Out-of-Competition. An anti-doping rule violation resulting from an Adverse Analytical Finding for a substance which is only prohibited In-Competition shall not be considered “intentional” if the substance is not a Specified Substance and the Athlete can establish that the Prohibited Substance was unrelated to sport performance”.

67. The 2015 World Anti-Doping Code, Anti-Doping Organizations Reference Guide (section 10.1 “What does ‘intentional’ mean?”, p. 24) provides the following guidance: ‘Intentional’ means the athlete, or other person, engaged in conduct he/she knew constituted an ADRV, or knew there was significant risk the conduct might constitute an ADRV, and manifestly disregard that risk.

Article 10.2 is clear that it is four years of ineligibility for presence, use or possession of a non-specified substance, unless an athlete can establish that the violation was not intentional. For specified substances, it is also four years if an ADO can prove the violation was not intentional.

Note: Specified substances are more susceptible to a credible, non-doping explanation; non-specified substances do not have any non-doping explanation for being in an athlete’s system.

68. The Sole Arbitrator in the present case aligns with the Panel in CAS 2016/A/4377 that the Athlete must establish how the substance entered her body, and that to establish the origin of the prohibited substance it is not sufficient for an Athlete to “merely to protest their innocence and suggest that the substance must have entered his or her body inadvertently from some supplement, medicine or other product which the athlete was taking at the relevant time. Rather, an athlete must adduce concrete evidence to demonstrate that a particular supplement, medication or other product that the athlete took contained the substance in question”.

69. In CAS 2014/A/3820, the Panel made the following comments: “In order to establish the origin of a Prohibited Substance by the required balance of probability, an athlete must provide actual evidence as opposed to mere speculation. In CAS 2010/A/2230, the Panel held that: [t]o permit an athlete to establish how a substance came to be present in his body by little more than a denial that he took it would undermine the objectives of the Code and Rules. Spiking and contamination – two prevalent explanations volunteered by athletes for such presence – do and can occur; but it is too easy to assert either; more must sensibly be required by way of proof, given the nature of the athlete’s basic personal duty to ensure that no prohibited substances enter his body”.

70. The Sole Arbitrator notes the Athlete’s submission that the following facts point to the Athlete’s violation not to be intentional: i) the Athlete had his B Sample, supplements and hair analyzed, ii) the Athlete suspects that he was sabotaged, and iii) the Athlete is a successful swimmer. The Sole Arbitrator finds that the Athlete’s explanations have virtually no evidentiary basis supporting them. As for the Athlete’s explanations, the Sole Arbitrator holds as follows:

• The Athlete explains that he requested tests into the food supplements he used at the time of the alleged offence. The Athlete asserts that the fact he requested such tests shows that he did his best “to prove his innocence within his possibility”. The Sole Arbitrator aligns with the Panel in CAS 2014/A/3615 which stated: “The person charged cannot discharge that burden [of proof ] merely by showing that he made reasonable efforts to establish the source, but that they were without success”. The Sole Arbitrator observes that it is clear from constant CAS practice that it is not sufficient for an Athlete merely to make protestations of innocence and suggest that the prohibited substance may have entered his/her body inadvertently from supplement, medicine etc. Rather, an athlete must adduce concrete evidence to demonstrate that the particular supplement etc. that he/she took contained the substance in question. In the present case, the Sole Arbitrator observes that no Stanozolol or Stanozolol metabolites were detected in the supplements. The Sole Arbitrator finds that the mere fact that the Athlete requested an analysis of the food supplement he used at the time of the alleged offence does not prove on the balance of probability that the violation was not intentional.

• Further, the Athlete explains that he submitted his hair sample for analysis with a WADAaccredited laboratory. The Athlete asserts that either the A and B Samples do not belong to the Athlete, or the concentration of Stanozolol was too low and not detectable in the hair, “Therefore it has entered Athlete’s body without his intention”. The Sole Arbitrator notes that

the identity of the urine sample has been secured by compliance with the International Standard for Testing, which has not been contested by the Athlete, and both the A and B Sample revealed the presence of Stanozolol. Therefore, the Sole Arbitrator finds that the fact that the hair analysis was negative does not demonstrate on the balance of probability i) how the prohibited substance entered the Athlete’s body, and ii) that the violation was not intentional. It follows that the Sole Arbitrator finds the hair analysis to be of no relevance in the present case.

• With respect to the Athlete’s suspicion of sabotage, the Sole Arbitrator observes that the Athlete acknowledges that, “sabotage shall be approved with actual evidence”. The Sole Arbitrator notes that the Athlete did not provide any evidence that the ADRV is the result of sabotage, and therefore the Sole Arbitrator finds such allegation unsubstantiated.

• The Athlete submits that it would be illogical for him to take a prohibited substance because he was a successful, professional swimmer and that he has never before tested positive for a prohibited substance. The Sole Arbitrator reiterates with respect to the Athlete’s requirement to prove the origin of the prohibited substance, that the Athlete must adduce concrete evidence to demonstrate how a particular substance entered his/her body. In the present case, the Sole Arbitrator finds that “logic” and the fact that the Athlete has never tested positive for a prohibited substance before are not concrete evidence that prove on the balance of probability that the violation was not intentional.

71. The Sole Arbitrator finds that even if the Athlete’s assertions were true, the Athlete did not prove on the balance of probability how the prohibited substance entered his body or the origin of the prohibited substance.

72. The Sole Arbitrator is mindful of CAS 2016/A/4534 and CAS 2016/A/4676, where the Panels considered that an Athlete might be able to demonstrate a lack of intent even where he/she cannot establish the origin of the prohibited substance. In CAS 2016/A/4676, at para 72, it is, inter alia, stated that “the Panel can envisage the theoretical possibility that it might be persuaded by a Player’s simple assertion of his innocence of intent when considering not only his demeanour, but also his character and history, even if such a situation may inevitably be extremely rare”. The Sole Arbitrator finds, however, that there are no exceptional circumstances in the present case which show on the balance of probability that the ADRV was not intentional (without the Athlete having to establish the origin of the prohibited substance).

73. Accordingly, the Sole Arbitrator finds that the Athlete has not met his burden of proof, and the ADRV must be deemed to be intentional. The Athlete must therefore be sanctioned with a four-year period of ineligibility under the GADA ADR.

74. As the Sole Arbitrator has established that the Athlete’s ADRV was intentional, the Sole Arbitrator cannot consider the application of Article 10.5.2 of the GADA ADR.

75. The Sole Arbitrator observes that the Athlete asserts that the sanction imposed must be consistent with the principle proportionality, according to which there must be a balance between the relevance of the breach committed and the sanction imposed. For the sake of completeness, the Sole Arbitrator notes that the WADA Code has been drafted to reflect the

principle of proportionality, thereby relieving the need for the appellate body to apply this principle, cf. WADA Code 2015 (introduction): “The Code has been drafted giving consideration to the principles of proportionality and human rights”. In other words, the principle of proportionality is “built into” the WADA Code and the GADA ADR (see also CAS 2007/A/1290). It follows, therefore, that the Sole Arbitrator cannot consider the application of the principle of proportionality.

iv. Sanctions

a) Disqualification

76. Article 10.8 of the GADA ADR reads as follows: Disqualification of Results in Competitions Subsequent to Sample Collection or Commission of an Anti-Doping Rule Violation In addition to the automatic Disqualification of the results in the Competition which produced the positive Sample under Article 9, all other competitive results of the Athlete obtained from the date a positive sample was collected (whether In-Competition or Out-of-Competition), or other anti-doping rule violation occurred, through the commencement of any Provisional Suspension or Ineligibility period, shall, unless fairness requires otherwise, be Disqualified with all the resulting Consequences including forfeiture of any medals, points and prizes.

77. The Sole Arbitrator rules that pursuant to Article 10.8 of the GADA ADR, all competitive results obtained by the Athlete from and including 6 July 2016 (i.e. the date of the sample collection) are disqualified, with all resulting consequences, including forfeiture of medals, points and prizes.

b) Period of Ineligibility Start Date

78. With respect to the sanction start date, the Sole Arbitrator is guided by Article 10.11 of the GADA ADR which provides as follows: “Except as provided below, the period of Ineligibility shall start on the date of the final hearing decision providing for Ineligibility or, if the hearing is waived or there is no hearing, on the date Ineligibility is accepted or otherwise imposed”.

79. Article 10.11.3 of the GADA ADR is titled “Credit for Provisional Suspension or Period of Ineligibility” and states as follows: “If a Provisional Suspension is imposed and respected by the Athlete or other Person, then the Athlete or other Person shall receive a credit for such period of Provisional Suspension against any period of Ineligibility which may ultimately be imposed. If a period of Ineligibility is served pursuant to a decision that is subsequently appealed, then the Athlete or other Person shall receive a credit for such period of Ineligibility served against any period of Ineligibility which may ultimately be imposed on appeal”.

80. In this case, the sample collection was made on 6 July 2016, and according to the Georgian and Eastern European Regional Anti-Doping Appeal Commission Decision, the Athlete was

provisionally suspended on 26 July 2016. It follows therefore, that the Athlete should receive ‘credit’ for the period of ineligibility already served. In this regard, the Sole Arbitrator determines that the Athlete’s four-year period of ineligibility shall commence as from the date of his provisional suspension (i.e. 26 July 2016), thus giving him full credit for time already served in accordance with Article 10.2 of the GADA ADR. Consequently, the period of ineligibility starts as from 26 July 2016.