Olha Zemliak, Olesia Povh v. Ukrainian Athletic Federation (UAF), World Anti-Doping Agency (WADA)

V. JURISDICTION

46. Article R47 of the CAS Code 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 statues or regulations of that body.

47. The Appellants rely on the IAAF Anti-Doping Rules 2015 as conferring jurisdiction on the CAS. This jurisdiction is not contested by the Respondents and is confirmed in their signature

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to the order of procedure.

48. The Sole Arbitrator, therefore, determines that CAS has jurisdiction to decide the appeals.

VI. ADMISSIBILITY

49. Article R49 of the CAS 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.

50. The Appealed Decision were notified to the Appellants on 6 February 2018. The statements of appeal were filed on 23 March 2018 within the 45-day deadline specified in IAAF Rule 42.15. The Respondents did not contest the admissibility of the appeals.

51. The Sole Arbitrator, therefore, determines that these appeals are admissible.

VII. APPLICABLE LAW

52. Article R58 of the CAS Code provides as follows: 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 law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.

53. In the present case, the parties agree that the applicable regulations are the IAAF Rules. No issues arose which required the application of subsidiary national law.

VIII. MERITS — A. The Review of the Appealed Decisions

54. The parties agree on (and indeed the Appellants invoke) that under Article R57 of the CAS Code, the Sole Arbitrator has power to review the facts and the law. The scope of this power is basically unrestricted, meaning that CAS may re-hear the matter afresh, is not bound by the evidence or the factual and legal findings below, and can consider new facts and new evidence adduced by the parties.

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55. The curing effect of the CAS appeal covers any deficiencies in the investigation and hearing below, even fundamental procedural defects such as the denial of the right to be heard, justice, the failure to analyse important questions, or a lack of independence of the first-instance

56. Thus, in effect, virtually any violation of procedural rights at first instance can be cured by a full appeal to the CAS, as noted in CAS 2016/A/4387: … The Swiss Federal Tribunal has also confirmed the legality of the curing effect of the CAS de novo review. Accordingly, infringements of the parties’ right to be heard can generally be cured when the procedurally flawed decision is followed by a new decision, rendered by an appeal body which had the same power to review the facts and the law as the tribunal in the first instance and in front of which the right to be heard had been properly exercised (ATF 124 II 132 of 20 March 1998).

57. The Sole Arbitrator has conducted such a full review in respect of the present appeals, and the Appellants have had every opportunity to deal with all the evidence and arguments on fact and on law. Thus, procedural irregularities of which they complain against UAF are dismissed as moot.

B. The Method

58. The Athletes make various criticism of the process by which their samples were used in order to produce the alleged analysis relating to testosterone. First, there is no evidence to support their claim that their samples were wrongly used for research subject to IAAF Rule 36.1(c). No-one else (including Dr Kuuranne) ever so stated and Professor Saugy, Director of the Lausanne Laboratory at the time, confirmed that “the samples were not in a research phase when the analysis took place”.

59. In oral evidence he disagreed with Dr Kuuranne’s comment in her letter of 21 November 2017 that the testing was for endocrine measurement “outside the anti-doping context”. Making allowances for any nuances of English, Dr Kuuranne probably meant – although she was not called as a witness – that the initial or primary purpose from her recollection was to profile relevant parameters in an Athlete’s urine, blood or other matrix rather than immediate prohibited-substance-detection.

60. But both of these are anti-doping purposes under IAAF Rule 36.1(b) and the comment to articles 2.2 and 6.2 of the WADA Code sets out explicitly that profile data may be used to establish an anti-doping rule violation under its Article 2.2 (Use or Attempted Use of a Prohibited Substance or a Prohibited Method). The Athletes’ contention that their samples were used for data relevant to new Eligibility Regulations for Female Classification does not detract from this.

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61. As for the reliability of the Method in measuring testosterone in blood serum, there can be no doubt on the evidence in these appeals that it is scientifically valid, and this in itself was not disputed on behalf of the Athletes. Professor Saugy stated that “In particular, for the quantification of testosterone, the spectrum of concentrations which was tested during the validation process was from 20 to 25000 pg/ml (ca. 0.1 to 80 nmol/L), showing a precision of the quantification (meaning the sum of repeatability and intermediate precision) being between maximum 13% (for the lower concentrations) and 4% for the most concentrated serums… the quantification of testosterone has been ... and accepted as totally reliable by the scientific community (peer-reviewed)… This method is using LC/MSMS technique, which is known today as the gold-standard method for testosterone measurement and quantification in serum”.

62. But at the heart of the Athletes’ case, as summarised in their reply and oral submissions, was the contention that the Method, while scientifically valid, was not “approved” by WADA for the purpose of IAAF Rule 33.1(a) and did not carry with it specific reference guidelines, and explanatory and protective documentation from athletes’ point of view, so as to regulate its use in ADRV procedures.

63. Moreover, while Professor Saugy stated that the Method was WADA-approved, and is being used in its accredited laboratories for its anti-doping purposes, the Sole Arbitrator is not satisfied that this necessarily brings it within IAAF Rule 33.1(a) but neither does it seem to him to matter.

64. Rule 33.1(a) provides begins … The following rules of proof (a) Analytical methods or decision limits approved by WADA after consultation with the relevant scientific community and which have been the subject of peer review are deemed to be scientifically valid. Any Athlete or other Person seeking to rebut this presumption of scientific validity shall, as a condition precedent to any such challenge, first notify WADA of such challenge….

65. This does not mean that that an analytical method not approved by WADA cannot serve as a reliable means of proof under IAAF Rule 33.1. It means that, if it is not WADA-approved, the presumption and procedure set out in Rule 33.1(a) applies. This does not purport to be an exhaustive list of possible means of reliable proof, and the preceding Rule 33.1 makes entirely clear.

66. As for the absence of specific reference guidelines and other related documents, the Sole Arbitrator rejects the Athlete’s submission that without such materials the Athletes’ rights of defence have been significantly prejudiced. Athletes are able and entitled to question the scientific evidence presented against them, to present their own evidence, and otherwise to challenge the results allegedly proved by use of the Method.

67. If the Method does not fall within IAAF Rule 33.1(a), the consequence in the athletes’ favour is that it is not deemed scientifically valid. They may still be proved as such and the fact that resulting procedural provisions in Rule 33.1(a) do not apply carries no inherent prejudice.

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C. The ADRVs

68. The Sole Arbitrator therefore turns to the reliability of the results in this case and whether the ADRVs (use of a prohibited substance contrary to IAAF Rule 32.2(b) are established against the Athletes to the level of comfortable satisfaction.

69. According to Professor Saugy, the measurement uncertainty for the Method (or the precision expressed in %) is between 4% and 13%, depending on the absolute concentration of testosterone in serum: “We can therefore say that, even making the most conservative assumptions, the maximum measured uncertainty could not be greater than 30%”.

70. A 2018 peer-reviewed study by Professor Handelsman and others on “Circulating Testosterone as the Hormonal Basis of Sex Difference in Athletic performance” found that the normal level of testosterone for healthy women is between 0 and 1.7 nmol/L

71. In his report, Professor Handelsman stated among other things that: (a) “there are no known pharmacological methods to effectively increase serum testosterone in women other than administration of exogenous testosterone, a testosterone precursor (e.g. DHEA or androstenedione) or an aromatase inhibitor, all of which are prohibited substances”; (b) serum testosterone concentrations in other samples from the Athletes, ranging from 0.72 to 1.43 nmol/L for Zemliak and 0.79 to 1.36 nmol/L for Povh, were “consistent with those of a normal female athlete based on the laboratory’s reference interval stated in the Swiss lab report where the upper limit of normal is 1.8 [nmol/L] and the extensive database of serum testosterone concentrations measured by LC-MS developed by the IAAF from healthy female athletes”; (c) the probability is less than 1 in 10,000 that a serum testosterone measurement of only 3.0 nmol/L by the LC-MS method would occur by chance and “the extremity of the outlying results [10.1 nmol/L for Zemliak and 7.3 nmol/L for Povh] between massive deviations above the population mean would lead to a probability of such a finding as reported occurring by chance being so extreme (less than 1 in a trillion) as to be virtually impossible”. (d) there is “no known pathology (including endocrine disorders) that could account for this set of blood testosterone concentrations in a single female athlete” and such extreme elevation of serum testosterone concentrations is known only in cases of steroid-producing adrenal or ovarian tumours (an explanation which can be excluded as subsequent serum testosterone concentrations for the Athletes were again normal without any intervening diagnosis).

72. Thus, Professor Handelsman concluded that “it is highly likely, almost certain, that the results are due to the athlete’s use of exogenous testosterone, and are unlikely to be the result of any other cause”. Such exiguous testosterone would have been used in the lead up to the Rio Olympics and explained results so greatly different from the Athletes’ other, normal results.

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73. For his part, Professor Saugy concluded that “Not only do both athletes have non-physiological values of s-T in comparison to the normal female population, but it is also that those high values of s-T are completely abnormal in comparison to their normal individual values”.

74. On 6-7 August 2018, the Seibersdorf accredited laboratory conducted a quantitative analysis on Ms. Zemliak’s sample no. 305404 and Ms. Povh’s sample no. 304860, and - in order to demonstrate the accuracy of the testosterone quantification - certified reference materials with a similar concentrations to the Athletes’ samples.

75. The results of the quantification analysis confirmed the initial values measured two years prior: the testosterone concentration (a) in Ms. Zemliak’s sample (305404) was reported at 11.1 nmol/L, and (b) in Ms. Povh’s sample (304860) at 8.1nmol/L. When compared with the previous values of 10.1 and 7.3 nmol/L respectively, these were within the measurement uncertainty range of the method of 12%, that is between 9.768 and 12.432 nmol/L for M. Zemliak and 7.128 and 9.072 nmol/L for Ms. Povh.

76. The Athletes have never submitted any explanation for their abnormal results other than to challenge the Method. As regards to Professor Handelsman’s reports, their appeal briefs stated in terms: … The numbers [10.1 and 7.3 nmol/l] are too high. Such testosterone concentration is dangerous even for male health. The Athlete did not use any prohibited substance, has no serious sickness and under no circumstances can physiologically have such a high level of testosterone. Even if to try to put forward a kind of truthful version of the presence in the female organism of such a high testosterone level, it is impossible to find an adequate explanation….

77. Accordingly, on the basis that there is no explanation other than administration of exogenous testosterone (or precursor) for the values analysed by the Method in the Athletes’ blood serum sample, the Sole Arbitrator is more than comfortably satisfied that the Athletes committed the ADRVs charged. Their appeals as regards to the findings to that effect are dismissed.

D. Sanctions

78. According to Rule 40.2 of the IAAF Rules, a violation of Rule 32.2(b) leads to a period of ineligibility of 4 years where an anti-doping rule violation does not involve a Specified Substance, unless the Athlete can establish that the anti-doping rule violation was not intentional; and under IAAF Rule 40.8(a), for an athlete’s second anti-doping rule violation, the period of ineligibility shall be the greater of twice the period of ineligibility otherwise applicable to the second anti-doping rule violation treated as if it were a first violation, that is, 8 years.

79. As the athlete bears the burden of establishing that the violation was not intentional, a series of CAS cases has held that he or she must usually establish how the substance entered his or her body (see, for example CAS 2016/A/4662, subject to the “rarest” cases in which an athlete

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might be able through “narrowest of corridors” to demonstrate a lack of intent even where he or she cannot establish the origin of the prohibited substance (CAS 2016/A/4534, CAS

80. In the present cases, such questions do not arise. There are no exceptional circumstances. The Athletes have not attempted to establish the origin of exogenous testosterone in their systems but rather, unsuccessfully, to challenge the presence of such prohibited substances.

81. The Athletes have requested that their periods of ineligibility be backdated to the dates of sample collection (5 July 2016 and 15 June 2016, respectively) and that their competitive results in the period leading up to the provisional suspension on 3 August 2017 are left “untouched”.

82. WADA has submitted, on the other hand, that it is an automatic consequence of backdating the commencement of ineligibility periods that any results during the relevant period are disqualified, with all resulting consequences including forfeiture of medals, points and prize money (see, for example CAS 2011/A/2615 & 2618).

83. The Sole Arbitrator does not accept this submission (in the case of testing out of the particular competition in respect of which the results must be automatically disqualified under Articles 9 and 10.1 of the WADA Code). Article 10.8 of the WADA Code specifically allows results subsequent to sample collection out of the relevant competition to stand “if justice requires”. This is a question to be considered primarily with regards to fairness as regards to the athlete in violation, but without regarding the effect on other athletes who have been or may feel “cheated” by the violation (see CAS 2016/O/4469).

84. There are cases (for example CAS 2009/A/1782) where significant and prejudicial delay between testing and notification makes it unfair to disqualify all of the athlete’s results in the interim, for example where it known that the athlete failed a test but he or she is allowed to compete for years (or in many events) before notification, at events where he or she was or may have been “clean”.

85. The present is not such a case, and moreover it is the Athletes who seek to backdate the commencement of the ineligibility periods. In view of the delay between sample collection and notification to the Athletes, WADA accepted that the periods of ineligibility might commence as early as the date of sample collections if the Athletes accepted such disqualifications of their competitive results since then.

86. While the Athletes were not prepared to do, their representative stressed that the backdating of the commencement of their ineligibility periods was of greater importance to them. The Sole Arbitrator therefore considers it just to order that the prescribed ineligibility periods commence from the dates of the sample collections (5 July and 15 June 2016, respectively) - thereby allowing the appeals in part - but only if, as he also orders, all their competitive

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results from then are disqualified. The Athletes put forward no factual basis for contending otherwise and to that extent their appeals as regards to the sanctions are denied.