International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (RUSAF), Vasiliy Kopeikin

I. THE PARTIES

1. The International Association of Athletics Federations (“IAAF”), is the international federation governing the sport of Athletics worldwide. It has its registered seat in Monaco.

2. The Russian Athletic Federation (“RUSAF”), is the national governing body for the sport of Athletics in Russia and has its registered seat in Moscow, Russia. RUSAF is a member federation of the IAAF but is currently suspended from membership.

3. Mr Vasiliy Kopeykin (the “Athlete”), is a Russian athlete specialising in the Athletics discipline of long jump, a member of RUSAF and part of the IAAF Registered Testing Pool. The Athlete was born on 9 March 1988. The Athlete won the 2016 Russian Outdoor Championships and is a two times (in 2015 and in 2016) winner of the Russian Indoor Championships.

IV. JURISDICTION

30. The IAAF Competition Rules are applicable to these proceedings since these rules govern anti-doping rule violation (“ADRV”) cases committed before 3 April 2017. The IAAF regulations currently governing anti-doping matters are the IAAF Anti-Doping Rules which entered into force on 3 April 2017, but these rules only apply to ADRVs committed on or after 3 April 2017. Pursuant to Articles 21.3 and 1.13 of the IAAF Anti-Doping Rules, ADRVs committed prior to 3 April 2017 are subject to the rules (including procedural rules) in place

at the time of the alleged ADRV; namely the relevant provisions of the IAAF Competition Rules.

31. The jurisdiction of CAS in this appeal derives from Rule 38.19 of the IAAF Competition Rules, which expressly permits ADRV cases to be filed directly with the CAS as a sole instance adjudicatory body.

32. Rule 38.19 of the IAAF Competition Rules stipulates that “Cases asserting anti-doping rule violations may be heard directly by CAS with no requirement for a prior hearing, with the consent of the IAAF, the Athlete, WADA and any Anti-Doping Organisation that would have had a right to appeal a first hearing decision to CAS”.

33. The IAAF, the Athlete, WADA, RUSAF and RUSADA all expressly consented to the Athlete’s case being heard directly by CAS without a prior hearing in accordance with Rule 38.19 of the IAAF Competition Rules.

34. Consequently, CAS has jurisdiction over the present case.

V. ADMISSIBILITY

35. Neither the Code nor the IAAF Competition Rules provide a specific time limit within which to file this first instance appeal procedure or identify the date on which it could have been filed.

36. Rule 38.3 of the IAAF Competition Rules provides:

“If the Member fails to complete a hearing within two months, or, if having completed a hearing fails to render a decision within a reasonable time period thereafter, the IAAF may impose a deadline for such event. If in either case the deadline is not met, the IAAF may elect, if the Athlete is an International-Level Athlete, to have the case referred directly to a single arbitrator appointed by CAS. The case shall be handled in accordance with the CAS rules (those applicable to the appeal arbitration procedure without reference to any time limit for appeal)”.

37. Rule 38.19 of the IAAF Competition Rules establishes that “[c]ases asserting anti-doping rule violations may be heard directly by CAS with no requirement for a prior hearing, with the consent of the IAAF, the Athlete, WADA and any Anti-Doping Organisation that would have had the right to appeal a first hearing decision to CAS”.

38. The Sole Arbitrator notes that, pursuant to Rule 42.15 of the IAAF Competition Rules, the standard time-limit for an appeal to CAS is 45 days from receipt of the decision to be appealed. An additional time limit of 15 days is granted to the appellant to file its appeal brief, which gives a total of maximum 60 days to refer a case in full to the CAS.

39. On 4 May 2017, the IAAF informed the Athlete of his right to a CAS hearing, which the Athlete requested pursuant to Rule 38.19 of the IAAF Competition Rules on 18 May 2017. The IAAF filed its Request for Arbitration with the CAS on 29 June 2017 (six days after

receipt of the last of the required consents for the referral of these proceedings to CAS as a sole instance pursuant to Rule 38.19) which the Sole Arbitrator finds to be a reasonable and timely period for purposes of the admissibility of this Request for Arbitration.

40. Finally, pursuant to Rule 47 of the IAAF Competition Rules, the statute of limitation for antidoping rule violation proceedings is “ten years from the date on which the anti-doping rule violation is asserted to have occurred”.

41. As a result, the Sole Arbitrator concludes that the Request for Arbitration is admissible, because the anti-doping control that resulted in the Athlete’s positive A sample test was notified on 3 January 2017 and the IAAF filed its Request for Arbitration on 29 June 2017.

VI. APPLICABLE LAW AND REGULATIONS

42. These proceedings are governed by the regulations in force at the time of the alleged ADRV; namely, the IAAF Competition Rules which, in regard to ADRVs, reflect the 2015 WADA Code.

43. Article R58 of the Code provides:

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

44. Rule 42.23 of the IAAF Competition Rules provides:

“In all CAS appeals involving the IAAF, CAS and the CAS Panel shall be bound by the IAAF Constitution, Rules and Regulations (including the Anti-Doping Regulations)”.

45. Rule 42.24 of the IAAF Competition Rules further provides:

“In all CAS appeals involving the IAAF, the governing law shall be Monegasque law and the arbitrations shall be conducted in English, unless the parties agree otherwise”.

46. Rule 30.1 of the IAAF Competition Rules also states that:

“The Anti-Doping Rules shall apply to the IAAF, its Members and Area Associations and to Athletes, Athlete Support Personnel and other Persons who participate in the activities or Competitions of the IAAF, its Members and Area Associations by virtue of their agreement, membership, affiliation, authorisation or accreditation”.

47. In accordance with Article R58 of the Code, and recent CAS precedents, it is clear that the IAAF Competition Rules provide for the application of the IAAF Constitution, Rules and Regulations, including the Anti-Doping Regulations to any CAS disputes involving the IAAF. Moreover, the Athlete is an International-level Athlete under the IAAF Competition Rules

and part of the IAAF Registered Testing Pool, thus bound by the IAAF Anti-Doping Regulations.

48. Consequently, the Sole Arbitrator considers that the IAAF Competition Rules apply to the present matter and Monegasque law should apply on a subsidiary basis.

VIII. MERITS — A. Main Issues

116. The following are the main issues which arise in these proceedings:

(i) Has the Athlete committed an ADRV?

(ii) Did the Athlete meet his burden of proof to show that the Stockholm Laboratory departed from the ISL which resulted in the report of an AAF?

(iii) Did the Athlete consume Migsis (containing lomerizine), which is not a prohibited substance, and thus the Stockholm Laboratory reported a wrong positive?

(iv) If there is an ADRV, what is the appropriate period of ineligibility to be imposed on the Athlete?

(v) Is an establishment of the source of the substance needed in order to prove lack of intent?

(vi) What are the other consequences to the Athlete?

B. Has the Athlete Committed an Anti-Doping Rule Violation?

117. Pursuant to Rule 32.2 of the IAAF Competition Rules:

“The following constitute anti-doping rule violations: (a) Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample. (i) it is each Athlete’s personal duty to ensure that no Prohibited Substance enters his body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, Fault, negligence or knowing use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation under Rule 32.2(a)”.

118. Under Rule 32.2(a)(ii) of the IAAF Competition Rules, sufficient proof of an ADRV is established by the “presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample […] where the Athlete’s B Sample is analysed and the analysis of the Athlete’s B Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the Athlete’s A Sample”.

119. Under Rule 33.1 of the IAAF Competition Rules, “[t]he IAAF … shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the IAAF …. has established an anti-doping rule violation to the comfortable satisfaction of the relevant hearing panel, bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt”. Rule 33.3(b) of the IAAF Competition Rules continues to state that “WADA-accredited laboratories and other laboratories approved by WADA are presumed to have conducted Sample analysis and custodial procedures in accordance with the international Standard for laboratories”.

120. The analysis of the Athlete’s A and B samples by the Stockholm Laboratory revealed the presence of trimetazidine, which was reported by the Stockholm Laboratory as an AAF. Trimetazidine is a substance prohibited under S4.5.4 of the Prohibited List. It is a non-specified substance and is prohibited at all times. It does follow from Rules 32.2(a)(ii) and 33.3(b) of the IAAF Competition Rules that, in the absence of a proof by the Athlete regrading a departure from the ISL as will be discussed below, the IAAF has met its burden of proof to show that the Athlete committed an ADRV.

C. Did the Athlete meet his burden of proof to show that the Stockholm Laboratory

departed from the ISL which resulted in the report of an AAF?

121. Pursuant to rule 33.2 of the IAAF Competition Rules, “[w]here these Anti-Doping Rules place the burden of proof upon the Athlete … to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability”.

122. Rule 33.3 of the IAAF Competition Rules reads in its pertinent part:

“(b) WADA-accredited laboratories and other laboratories approved by WADA are presumed to have conducted Sample analysis and custodial procedures in accordance with the International Standard for Laboratories. The Athlete or other Person may rebut this presumption by establishing that a departure from the International Standard for Laboratories occurred which could reasonably have caused the Adverse Analytical Finding. If the Athlete or other Person rebuts the preceding presumption by showing that a departure from the International Standard for Laboratories occurred which could reasonably have caused the Adverse Analytical Finding, then the IAAF, Member or other prosecuting authority shall have the burden of establishing that such departure did not cause the Adverse Analytical Finding. (c) Departures from any other International Standard or other antidoping rule or policy set out in these Anti- Doping Rules or the rules of an Anti-Doping Organisation which did not cause an Adverse Analytical Finding or other anti-doping rule violation shall not invalidate such evidence or results. If the Athlete or other Person establishes a departure from another International Standard or other anti-doping rule or policy which could reasonably have caused an anti-doping rule violation based on an Adverse Analytical Finding or other antidoping rule violation, then the IAAF, Member or other prosecuting authority shall have the burden of establishing that such departure did not cause the Adverse Analytical Finding or the factual basis for the antidoping rule violation”.

123. The Athlete argues that the Stockholm Laboratory did not conduct the analysis and interpreted and reported its results in accordance with the ISL. The Athlete argues that based on the scientific evidence and the expert opinions of Dr Kopylov and of Professor Dr Larsson he has proven “far beyond the balance of probabilities standard” that the Stockholm Laboratory had committed a departure from the ISL and interpreted the results obtained by the retrospective analysis of the B sample analysis in a wrong way, thus resulting in an AAF. The Athlete claims that since the departure from the ISL could reasonably have caused the AAF, it is then up to the IAAF to establish that such departure did not cause the AAF.

124. Professor Dr Larsson, in his expert opinion of 11 September 2017 and in the oral testimony presented indicated that:

“The critical question in this case is not whether trimetazidine was present or not in the athlete’s sample 4053309B. It was and this follows unambiguously from the chromatogram on page 2. The critical question is the origin of trimetazidine, whether it was present in the athlete’s sample because of exogenous administration of trimetazidine, as claimed by the Doping Control Laboratory in Huddinge, or whether it derived as a metabolite from intake of lomerizine, which is perfectly possible according to Okano et al., “Analytical detection of trimetazidine produced by metabolic conversion of lomerizine in doping control analysis”, Drug Test. Analysis 8, 869 (2016). The understanding that intake of lomerizine for medical purposes (migraine symptoms) can result in the presence of trimetazidine in urine is thus of a very recent date. To summarize: the athlete uses lomerizine against migraine symptoms. This is a known fact. It is also known that licit administration of lomerizine results in the occurrence of trimetazidine in the urine sample. In addition to trimetazidine, Thevis et al. advocate the M6 metabolite as a marker that the precursor of trimetazidine is lomerizine. As shown by the athlete’s chromatogram on page 6, M6 is present in the sample. Thus, the Doping Control Laboratory should have reported the sample as negative”.

125. The Athlete claims that the scientific evidence presented on his behalf establishes that the Stockholm Laboratory should have confirmed the presence of (at least) M6 metabolite of

lomerizine, thus concluding that trimetazidine was merely detected as a result of the administration of the permitted drug lomerizine, being an ingredient of the migraine medication Migsis which he had been prescribed and was taking when needed, and should have thus reported a “negative” result.

126. The IAAF does not dispute that trimetazidine, as well as being a prohibited parent compound, may also result from the ingestion of lomerizine, which is not a prohibited substance. The IAAF indicates that Migsis is the only drug containing lomerizine. More particularly, the IAAF highlights that trimetazidine is one of the metabolites of lomerizine, known as the M7 metabolite, which is only contained in Migsis.

127. The IAAF highlights, however, that the Stockholm Laboratory, in its report of 27 April 2017, excluded that the positive finding could have been the result of an intake of lomerizine, highlighting that none of the metabolites, which should have been detected had lomerizine been administered, were found in the Athlete’s sample. The IAAF thus concludes that it is clear that the positive finding came from an intake of trimetazidine.

128. Furthermore, the IAAF’s position is that the retrospective investigation reports show that the analytical results are not consistent with lomerizine being the source. Differentiation of abuse of the banned substance trimetazidine from use of the permitted drug lomerizine would be supported by analysis of the intact drug lomerizine and/or specific metabolites. The Stockholm Laboratory’s second, more detailed version of the retrospective investigation report dated 20 October 2017, including full-plot and zoom-in plot versions of the relevant chromatograms, demonstrated the absence of any indications of lomerizine or its metabolite (the peak around the M6 position being only a “background noise” or “background peak”).

129. On the other hand, the expert witnesses presented by the Athlete testified to numerous mistakes in the analysis conducted by the Stockholm Laboratory. The expert witnesses presented by the Athlete testified that had the tests been done and reported correctly, they should have established the presence of certain metabolites (at least the M6), which are detectable following an administration of lomerizine, thus possibly establishing that trimetazidine was detected as a result of the consumption of Migsis which contains lomerizine. They mentioned that the Stockholm Laboratory retrospective reports are reports made after the fact, that certain data was amended by hand and further referred to the width, shape and height of the M6 metabolite indicating that it should have been investigated. They also highlighted that that there is insufficient data to conclude that in all cases in which the parent compound lomerizine is ingested the M6 metabolite should peak higher than the M7 metabolite, being trimetazidine, which was not the case here.

130. The Athlete and his expert-witness, Dr Arthur Kopylov, appear to have abandoned at the hearing any arguments which may have been interpreted as shedding doubt on the integrity of the Stockholm Laboratory or claiming any deliberate action to manipulate or falsely present partial or wrong data.

131. Relating to the question of the establishment of the AAF, the Sole Arbitrator need not necessarily decide on the scientific questions which arise in this case and the conflicting

testimonies and evidence presented by the numerous expert witnesses, since the Athlete’s position, including that of his expert witnesses, and in particular of Professor Dr Larsson, is that the evidence regarding the consumption of Migsis which contains lomerizine combined with the presence of certain signals of lomerizine metabolites (as suggested by the Athlete’s experts) establishes on the balance of probabilities, that the positive finding was not as a result of the consumption of the prohibited substance trimetazidine.

132. The Sole Arbitrator notes that once the IAAF produced the Stockholm Laboratory report the burden shifted to the Athlete. The Athlete in this case cannot meet his burden on the balance of probability merely based on science, but should a priori establish that he consumed Migsis, which is also a factor relied upon by his own experts in concluding that the Stockholm Laboratory departed from the ISL and that such departure resulted in a wrongful report of an AAF. Therefore, the evidentiary question regarding the alleged ingestion of Migsis will be reviewed.

D. Did the Athlete consume Migsis (containing lomerizine), which is not a prohibited

substance, and thus the Stockholm Laboratory reported a wrong positive?

133. The Athlete is required to prove the origin of the prohibited substance on the “balance of probability”. The “balance of probability” standard entails that the Athlete has the burden of convincing the panel that the occurrence of the circumstances on which the athlete relies is more probable than their non-occurrence (CAS 2008/A/1515, para. 116). The “balance of probability standard” requires the Athlete to prove that his scenario is more likely than not to be correct; namely, that the occurrence of the circumstances on which the Athlete relies is more probable than their non-occurrence.

134. Establishing the origin of the prohibited substance requires substantiated, supported and corroborated evidence by the Athlete. It is not sufficient for the Athlete merely to make protestations of innocence, provide hypothesis or suggest that the prohibited substance must have entered his body inadvertently from some supplement, medicine or other product which the Athlete was taking at the relevant time. Rather, the Athlete must provide concrete, persuasive and actual evidence, as opposed to mere speculation, to demonstrate that a particular supplement, medication or other product that he took contained the prohibited

135. The ITF Anti-Doping Tribunal held in the matter ITF v Beck that this “is necessary to ensure that the fundamental principle that the player is responsible for ensuring that no prohibited substance enters his body is not undermined by an application of the mitigating provisions in the normal run of cases”.

136. The Sole Arbitrator reminds that it is not pivotal whether or not the scenario put forward by the Athlete (ingestion of Migsis) is more likely than or the most likely of other scenarios which were or may be advanced as alternatives. The Sole Arbitrator does not need to decide which is the most likely between two or more competing scenarios but rather the Athlete must prove that the events presented by him did happen, more likely than not. The IAAF does not have

the burden of proving the prevailing likelihood of a different scenario or is even obliged to put forward any other competing scenarios.

137. The Athlete provided what he claims to be “details of the most probable scenario of how trimetazidine appeared in his sample, including the indication to Migsis by Pfizer, Japan”. The Athlete testified that he has administered Migsis following a professional doctor’s advice, in order to relieve migraine headaches.

138. Dr Olga Konstantinycheva testified that on 20 August 2003, as a young practicing physician having graduated from university in May 2003, in a small clinic in the Russian town of Bor, she was visited by the Athlete. The Athlete was then fifteen years old.

139. Dr Konstantinycheva performed an “express-diagnosis” of the Athlete, and concluded that his headaches were likely migraine headaches, since the teenager did not have an intracranial pressure elevation or spikes of arterial tension and since glaucoma was also not diagnosed.

140. Dr Konstantinycheva testified that throughout her career she was interested in innovative approaches and treatments and tried to stay abreast of innovations in the medical field including those appearing in foreign medical journals. She was thus made aware that Pfizer started to produce in Japan a new drug for migraine headache treatment – Migsis, which received good reviews from patients. She advised the Athlete to order this drug from Japan and use it according to the manufacturer’s instructions.

141. In response to questions, Dr Konstantinycheva testified that she heard about this new drug from a Pfizer company representative in some gathering in 2003. The representative brought with him a magazine in English in which the drug was mentioned. Dr Konstantinycheva could not explain why a drug available since 1999 would be mentioned as a “new drug” in 2003. Dr Konstantinycheva further stated that she thought that the Athlete was a young man and did not check his ID or enquired about his age, since this was not the practice in Russia. Dr Konstantinycheva recommended to the Athlete to use Migsis in accordance with the instructions in the pack, but did not prescribe the drug. She could not recall if it was a prescription drug. She also did not know whether the instructions were only in Japanese.

142. Dr Konstantinycheva testified that she did not know how the Athlete obtained this drug, but that after a short period of time the Athlete visited her again and showed her the package of Migsis indicating that the drug helped him to get rid of his headaches. According to her she explained to the Athlete that it appears that this drug was suitable for him and could be used in case of the re-occurrence of symptoms. About one and a half or two years later she accidentally met the Athlete in the town of Bor. The Athlete reintroduced himself, reminded her of the suggested method of treatment using Migsis and thanked her for prescribing Migsis, which produced very good results.

143. In response to questions from the IAAF’s counsel, Dr Konstantinycheva indicated that the medical treatment in Russia is not as organised as in the West. She did not find it peculiar that she treated the Athlete when he approached her as a young under aged teenager, not accompanied by his parents. She prescribed a drug not formally available in Russia, without

conducting additional tests and did not have electronic records or official records of the visit issued by the clinic nor any prescription. She did have her own notes indicating that the Athlete’s visit to the clinic occurred on 20 August 2003.

144. In response to questions put forward by the Sole Arbitrator, Dr Konstantinycheva confirmed that in connection with these proceedings and her evidence including the witness statement provided by her, she was visited by the Athlete during late summer 2017. She could not remember the date within August of 2017. In response to questions, she indicated that she does remember the exact 20 August 2003 date because she was a young doctor just out of school without many patients or vast experience and thus she vividly remembers those early days noting that the Athlete had made an impression upon her. While she sees about 300 patients a year, she remembers only a few.

145. The Athlete testified that when having migraines the symptoms are severe, he is not able to be in a lighted room or hear loud voices, he hardly gets out of bed and he is nauseated and vomits. The severity of these attacks was further supported by the Athlete’s wife.

146. The Athlete testified that Migsis was manufactured by the Japanese branch of Pfizer and was primarily available in Japan. The drug is expensive but according to the Athlete most effective and thus worth the price. The only way to purchase the drug in Russia is to order it online and have it delivered from Japan. There were and are a great number of companies in Russia which offer the delivery of medications from Japan and some other countries. The Athlete was using such services when he needed to buy a new pack of Migsis. Each time he ran the online search (two times a year, at most), a new set of companies appeared, and he just called the first or the second company in order to place an order, and within 7-15 days a Migsis pack was usually delivered to his home address by a courier. The payments were usually made in cash, as is allowed in Russia. In the rare cases when he got receipts, he was not eager to keep these receipts for years. When he was younger the Athlete may have used relatives to obtain Migsis.

147. The Athlete also provided evidence of the purchase of Migsis at the beginning of July 2017, after this case was filed, from the on-line shop of “Japan Health Shop” (bio.trade-jp.net) for USD 109 for the medication and USD 29 for the delivery (a total USD 138), an amount paid through PayPal using the Athlete’s debit card.

148. Mrs Nadezhda Kopeykina, the Athlete’s wife who shares the same apartment with him since 2012, confirmed his migraine attacks, keeping the Migsis at home and its occasional purchase. The drug was always delivered to the Athlete and never to her when she was at home.

149. The Athlete indicated that he uses this drug on occasion whenever he has migraines and, since it is effective, he ensures that he always has some in case of need.

150. The Athlete indicated that he did not indicate on the test form the use of this drug because he did not suspect it to contain prohibited substances, having used it for many years with so many tests done and always coming out negative.

151. The Sole Arbitrator is not persuaded by Dr Konstantinycheva’s testimony. The Sole Arbitrator questions: (i) her ability to remember an examination conducted on a specific date in 2003 but not the Athlete’s visit in mid-2017; (ii) maintaining personal notes of an examination of a patient in 2003; (iii) not having an official record from the clinic regarding such visit; (iv) recommending but not prescribing a drug; (v) suggesting to a young teenager to purchase an expensive medicine available only in Japan; (vi) not insisting to meet with the parents before suggesting a new drug which she cannot officially prescribe and is not available in Russia; (vii) not suggesting first other locally available medications which can be officially prescribed; and (viii) not conducting additional tests or having follow on appointments.

152. The Sole Arbitrator is also not persuaded by the evidence of the Athlete and his wife on point. The Sole Arbitrator questions: (i) the ability of a young teenager in Russia to spend large amounts of money on such medication; (ii) not trying to find other more accessible and cheaper alternatives; (iii) not consulting with other professionals regarding his very severe headaches for so many years; (iv) not having any records of other tests and examinations of his condition as he grew up and over some 14 years; (v) not having evidence of any purchase of Migsis, either receipts or mails, save for the purchase made after the case was initiated; (vi) not having any doctor’s prescription to any other drug against migraine headaches; (vii) not having any corroborating evidence regarding the purchase or delivery of Migsis prior to the initiation of these proceedings; (viii) no communication to drug or delivery companies trying to obtain record of purchases and not having old boxes of used drugs; (ix) not listing Migsis on the test form.

153. The Sole Arbitrator did not find the testimony of Dr Konstantinycheva and the testimony of the Athlete on this point to be transparent, forthright and credible.

154. The Panel in the award CAS 2017/A/5296 (paras. 83 & 84), referred to by the Athlete, in dismissing the appeal, concluded that:

“83. The Panel finds itself faced with compelling factual evidence and, at best, conflicting scientific evidence that acts as a double-edge sword in determining the truth. Put simply, in its assessment, the scientific evidence fails to take this storyline below the requisite Gasquet threshold. Therefore, the Panel reverts to the non-expert evidence and finds itself sufficiently satisfied that it is more likely than not that the presence of probenecid in the Athlete’s system resulted from kissing his girlfriend Ms. Salazar shortly after she had ingested a medication containing probenecid. 84. In consideration of the foregoing, and in contemplation of the evidence put before the Panel in both written and oral form, the Panel concludes that the Athlete has established the origin of the prohibited substance on a balance of probabilities. Furthermore, the Panel finds that even with the exercise of the utmost caution, the Athlete could never have envisioned that kissing his girlfriend of three years would lead to an adverse analytical finding for trace amounts of a banned substance that he was not familiar with. The Panel finds, therefore, that the Athlete acted without fault or negligence”.

155. The Sole Arbitrator finds the Robert’s Award irrelevant and unhelpful to the present proceedings. In the award CAS 2017/A/5296, the Panel found the witnesses to be credible; whereas in the present case the Sole Arbitrator was not persuaded by the testimony of the

Athlete, his wife and Dr Konstantinycheva regarding the use of Migsis. Additionally, and as indicated by IAAF, “whereas the lack of contemporaneous evidence of the purchase of the product in the [CAS 2017/A/5296] case made sense (it was a one-off purchase in a shack-pharmacy in semi-rural India), the Second Respondent was simply unable to explain the total lack of contemporaneous evidence for his alleged (online) purchases of Migsis over the course of years”.

156. The Sole Arbitrator is not persuaded by the scenario put forward by the Athlete. The Sole Arbitrator having considered all of the evidence holds that the Athlete has not met his burden of proof and could not establish that the occurrence of the circumstances on which the Athlete relies regarding the consumption of Migsis as the reason for the presence of trimetazidine (or lomerizine for that matter) in his systems is more probable than their nonoccurrence.

157. Even if the Athlete’s arguments may be interpreted as suggesting that, independent of any evidence regarding the consumption of Migsis, the Stockholm Laboratory had to call a “negative” result because there was sufficient evidence consistent with lomerizine itself being the source of the trimetazidine, the Sole Arbitrator is not, in the absence of the establishment of the consumption of Migsis, persuaded that the scientific evidence (which is conflicting at best) on point is sufficient to meet the burden of proof which is on the Athlete. The Sole Arbitrator is more persuaded by Dr Okano’s expert-witness statement dated 25 October 2017, concluding that “[n]o evidence of lomerizine intake by the athlete was obtained from the related analytical data”.

E. If there is an ADRV, what is the appropriate period of ineligibility to be imposed on

the Athlete?

158. According to IAAF Competition Rule 40.2:

“the period of Ineligibility imposed for a violation of Rules 32.2(a) (Presence of a Prohibited Substance or its Metabolites or Markets), 32.2(b) (Use or Attempted Use of a Prohibited Substances or Prohibited Method) […] shall be as follows, subject to potential reduction or suspension pursuant to Rules 40.5, 40.6 or 40.7: (a) The period of Ineligibility shall be four years where: - 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”.

159. Thus and pursuant to Rule 40.2(a) of the IAAF Competition Rules, the period of ineligibility shall be four years since the ADRV in the present proceedings does not involve a specified substance, unless the Athlete can establish that the ADRV was not intentional.

F. Is an establishment of the source of the substance needed in order to prove lack of

intent?

160. Rule 40.3 of the IAAF Rules sets out that 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”.

161. The Athlete bears the burden of establishing that the violation was not intentional. A line of CAS cases have held that it follows that in order to meet such burden the Athlete must necessarily establish how the substance entered his/her body (CAS 2016/A/4377, at para. 51;

162. The IAAF further cites a recent Canadian decision in which CAS arbitrator Yves Fortier was sitting as a Sole Arbitrator for the Sport Dispute Resolution Centre of Canada in the matter of Taylor Findlay. In that case, the Athlete claimed that the substance “clenbuterol” entered her system from the consumption of contaminated horse meat in a restaurant. On the basis of the evidence before him, Mr Fortier found that this explanation was “highly improbable”. He held that a failure to explain the concrete origin of the prohibited substance necessarily meant that the athlete could not prove a lack of intention:

“It appears to me that logically, I cannot fathom nor rule on the intention of an athlete without having initially been provided with evidence as to how she had ingested the product which, she says, contained the Clenbuterol. With respect for the contrary view, I fail to see how I can determine whether or not an athlete intended to cheat if I do not know how the substance entered her body”.

163. The Panel in CAS 2016/A/4534 held differently, relying in particular on the wording of the new version of the WADA Code of 2015 whose own language should be strictly construed without reference to case law which considered earlier versions where the versions are inconsistent:

“The WADC does not refer to any need to establish such source for the purposes of establishing lack of intent while specifically requiring it when an athlete seeks to prove no fault or negligence (WADC 10.4) or no significant fault or negligence (WADC 10.5.1 and 10.5.2) under the definitions of “No Fault or Negligence” and “No Significant Fault or Negligence”. “This engages the principle inclusio unius exclusio alterius: if such establishment is expressly required in one rule, its omission in another must be treated as deliberate and significant”. Stating that: “The omission in FINA DC modelled on WADC 2015 of the need to establish source as a precondition of proof of lack of intent must be presumed to be deliberate. Furthermore, the Panel can envisage the theoretical possibility that it might be persuaded by an athlete’s simple assertion of his innocence of intent when considering not only his demeanour, but also his character and history. That said, such a situation would inevitably be extremely rare. … Where an athlete cannot prove source it leaves the narrowest of corridors through which such athlete must pass to discharge the burden which lies upon

164. In the present proceedings the IAAF stated that it “would in principle be willing to accept that such exceptional cases may exist. However, the IAAF submits that the circumstances would have to be truly exceptional; in particular but without limitation, a lack of intention cannot be inferred from e.g. protestations of innocence (however credible), the lack of a demonstrable sporting incentive to dope, apparently diligent (but unsuccessful) attempts by the athlete to discover the origin of the prohibited substance or the athlete’s clean record”.

165. The Panel in CAS 2016/A/4534 also agreed that “[i]t is difficult to see how an athlete can establish lack of intent to commit an ADRV demonstrated by presence of a prohibited substance in his sample (a fortiori though use of such substance) if s/he cannot even establish the source of such substance”.

166. The Sole Arbitrator follows the reasoning of the CAS cases 4676 and 4534, but accepting that an athlete, in order to meet such burden of proving lack of intent without establishing source cannot merely rely on protestations of innocence, lack of a demonstrable sporting incentive to dope, diligent attempts to discover the origin of the prohibited substance or the athlete’s clean record. Supporting lack of intent without establishing the origin of the prohibited substance requires truly exceptional circumstances.

167. In the present proceedings the Sole Arbitrator did not accept that Migsis was consumed by the Athlete and there is not even a sliver of any exceptional circumstances to establish that the violation was not intentional. Other than the statements regarding the use of Migsis we are left only with protestations of innocence, the Athlete’s clean record and the lack of incentive to dope when the Athlete was not competing due to an injury and when, according to the Athlete, the substance could not provide any sporting advantage to the Athlete in the discipline which he practices. Consistent with CAS case law this is far from being sufficient to establish lack of intent.

168. Regarding the alleged lack of intent, the Athlete tried to establish that the positive finding resulted from the consumption of Migsis. The Sole Arbitrator did not accept the Athlete’s arguments and testimony on point, as detailed above.

169. The Athlete further provided evidence regarding an injury to his right ankle sustained by him on 12 November 2016 while training. The Athlete indicated that he was not allowed to train and compete since that date for an unpredictable period. This was confirmed not only by the Athlete but also by Dr Yegor Kochergin, the Russian athletics team doctor who examined the Athlete immediately following the injury and on 12 November 2016. All of the Athlete’s trainings were immediately stopped. This was further confirmed by Mr Georgy Goroshansky, the Athlete’s coach, and by the Athlete’s whereabouts information input into the ADAMS system. Evidence was given that the trauma consequences worsened and that the treatment was over only at the very end of March 2017 following medical treatment in Moscow. This evidence is accepted by the Sole Arbitrator but is not sufficient to show lack of intent.

170. The Athlete denies that he was doping. The Athlete claims that he had never doped; that he had always been extremely careful when administrating any nutritional supplements and/or medications; that trimetazidine may be used by athletes to improve physical efficiency, especially in the case of endurance sports (long distance running, swimming, etc.), but not in other types of sport, and that it does not really help to enhance sporting performance of long jumpers. Moreover, the Athlete argues that ingesting a prohibited substance when his sporting season was over due to his injury was highly unlikely to happen.

171. The Athlete argues that he has an impressively good “doping history”: since July 2013 he has provided 15 urine samples, 2 blood samples, and 2 blood samples for ABP. All of them were

negative, save for the test of 6 December 2016 which was the only positive test in the Athlete’s career; his sport results do indicate that he never used prohibited substances.

172. The Athlete insists on the fact that he has discharged his burden of proving the source of the substance being Migsis used by him to relieve his migraines, and thus the lack of intent. The Athlete argues that the totality of the evidence presented is sufficient to establish on the balance of probabilities that he had no intention to cheat whatsoever. However, the Sole Arbitrator concludes that based on the case law, the Athlete’s arguments in paras. 169 and 170 are not indicative of exceptional circumstances that might negate the presumed intentionality of the violation.

173. As the Athlete has clearly failed to identify the origin of the prohibited substance in his system and as there are no exceptional circumstances that might otherwise negate the presumed intentionality of the violation, he must be sanctioned with a four year period of ineligibility, starting from 4 May 2017.

G. What are the other consequences to the Athlete?

a) Disqualification

174. Rule 40.9 of the IAAF Competition Rules provides:

“In addition to the automatic Disqualification of the Athlete’s individual results in the Competition which produced the positive sample under Rules 39 and 40, all other competitive results obtained by the Athlete from the date the positive Sample was Collected (whether In-Competition or Out-of-Competition) or other antidoping rule violation occurred through the commencement of any Provisional Suspension or Ineligibility period shall, unless fairness requires otherwise, be Disqualified with all of the resulting Consequences for the Athlete including the forfeiture of any titles, awards, medals, points and prize and appearance money”.

175. The ADRV occurred on 6 December 2016, the date of the doping control which resulted in a positive finding. Consequently, all the results obtained by the Athlete from such date must be disqualified through to the date of his provisional suspension on 4 May 2017, with all resulting consequences (including forfeiture of any titles, awards, medals, profits, prizes and appearance money).

b) Period of Ineligibility Start and End Date

176. With respect to the sanction start date, the Sole Arbitrator is guided by Rule 40.11 of the IAAF Competition Rules 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 the Ineligibility is accepted or otherwise imposed”.

177. Rule 40.11 (c) of the IAAF Competition Rules 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 the appeal”.

178. In this case, the sample collection was made on 6 December 2016, and the Athlete was provisionally suspended on 4 May 2017. The Sole Arbitrator finds that for practical reasons, and in order to avoid any eventual misunderstanding, the period of ineligibility shall start on 4 May 2017, the date of commencement of the provisional suspension, and not of the date of this Award, thus giving him full credit for time already served in accordance with Rule 40.11 of the IAAF Competition Rules. Consequently, the period of ineligibility starts from 4 May 2017.