X. v. World Athletics

I. THE PARTIES

1. X. (the “Appellant” or the “Athlete”) is a […]-year-old […] of […] nationality.

2. World Athletics (the “Respondent” or “WA”) is the international federation governing the sport of athletics worldwide and a signatory to the World Anti-Doping Code (“WADA Code”). WA has its registered seat and headquarters in Monaco.

3. The Athlete and WA are collectively referred to as the “Parties”.

V. JURISDICTION

55. Article R47 para. 1 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 statutes or regulations of that body.”

56. The WA ADR, which is applicable to the procedural aspects of the present appeal, provides for the jurisdiction of the CAS on the challenge of the Appealed Decision. In its relevant parts, Rule 13 of the WA ADR provides as follows: “13.2 Appeals against decisions regarding Anti-Doping Rule Violations, Consequences, Provisional Suspensions, Implementation of Decisions and Authority The following decisions may be appealed exclusively as provided in Rules 13.2 to 13.7: a decision that an anti-doping rule violation was committed; a decision imposing Consequences or not imposing Consequences for an anti-doping rule violation; […]. 13.2.1 Appeals involving International-Level Athletes or International Competitions

In cases involving International-Level Athletes or arising from Persons participating in an International Competition, the decision may be appealed exclusively to CAS. 13.2.3 Persons entitled to appeal (a) In cases under Rule 13.2.1, the following parties will have the right to appeal to CAS: (i) the Athlete or other Person who is the subject of the decision being appealed;”

57. The Athlete is undisputedly an international-level athlete within the meaning of Rule 13.2.1 of the WA ADR. The Appealed Decision is a decision finding that the Athlete committed ADRVs (including the imposition of Consequences), against which a CAS appeal is admissible. The Panel, consequently, has jurisdiction to decide on the Appeal filed against the Appealed Decision.

58. The Parties further confirmed that CAS has jurisdiction by execution of the Order of Procedure.

VI. ADMISSIBILITY

59. Article R49 of the CAS Code provides – in its pertinent parts – 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 in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. The Division President shall not initiate a procedure if the statement of appeal is, on its face, late and shall so notify the person who filed the document.”

60. Rule 13.6 of the WA ADR provides as follows:

“13.6 Time for filing appeals: 13.6.1 Appeals to CAS (a) The time to file an appeal to the CAS will be thirty (30) days from the date of receipt of the reasoned decision by the appealing party. Where the appellant is a party other than World Athletics or WADA, to be a valid filing under this Rule 13.6.1, a copy of the appeal must be filed on the same day with World Athletics.”

61. The Athlete’s Statement of Appeal, submitted on 3 January 2024, against the Appealed Decision dated 5 December 2023, was, therefore, filed within the thirty-day time limit.

62. The Statement of Appeal also complied with the requirements of Article R48 of the CAS Code. In addition, the admissibility of the Appeal is not challenged by any party.

63. The Appeal is therefore admissible.

VII. APPLICABLE LAW

64. For appeal proceedings, 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 law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.”

65. The “applicable regulations” for the purposes of Article R58 of the CAS Code are those contained in the WA ADR because the Appeal is directed against a decision which was passed applying the WA ADR.

66. The Panel notes that Rules 13.7.4 and 13.7.5 of the WA ADR state the following:

“13.7.4 In all CAS appeals involving World Athletics, the CAS Panel shall be bound by the World Athletics Constitution, Rules and Regulations (including these Anti-Doping Rules). In the case of conflict between the CAS rules currently in force and the World Athletics Constitution, Rules and Regulations, the Constitution, Rules and Regulations shall take precedence. 13.7.5 In all CAS appeals involving World Athletics, the governing law shall be Monegasque law and the appeal shall be conducted in English, unless the parties agree otherwise.”

67. The Panel, therefore, applies the WA ADR, as in force at the relevant time of the dispute. Furthermore, the Panel will apply Monegasque law as an interpretative tool should the need arise to interpret the WA ADR.

VIII. SCOPE OF REVIEW

68. According to Article R57 para. 1 of the CAS Code, “The Panel has full power to review the facts and the law. It may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance. […]”.

69. The unlimited scope of review is also confirmed by Rule 13.1.1 of the WA ADR which provides – in its pertinent parts – as follows: “The scope of review on appeal includes all issues relevant to the matter and is expressly not limited to the issues or scope of review before the initial decision maker.”

70. Against this background, the Panel finds that its power to review the facts and the law of the present case is not limited.

IX. THE APPELLANT’S EVIDENTIARY REQUESTS — A. The Appellant’s Document Production Requests

71. Pursuant to Article R44.3 of the CAS Code,

“A party may request the Panel to order the other party to produce documents in its custody or under its control. The party seeking such production shall demonstrate that such documents are likely to exist and to be relevant.”

72. On 10 May 2024, the Appellant lodged the following Document Production Request:

“Furthermore, to comply with the principle of fair trial and with Rule 8.1 WA and WADA ADR and art. 12 of the Athletes’ Rights and Responsibilities Declaration according to which each athlete has a right to a timely hearing, to grant the timely hearing we request the Panel to order since now:

1. WADA’s laboratory of Cologne, through World Athletics, to immediately provide the file row [sic] of the analyses of sample A […] and of sample B […] and

2. WADA’s laboratory of Rome, through World Athletics, to provide from now the A Sample Laboratory Documentation Package of the analysis performed on X. on 30 July 2022.”

73. The Appellant argued that without the raw data, he would be unable to effectively defend against WA’s accusations, because only these documents “allow to clarify the anomalies found by the Appellant’s experts”. WA opposed the request, arguing (a) that it was unclear whether the documents existed, were necessary or relevant, (b) that it was unclear what the requested documents were and (c) that WA doping laboratories are not under the control of WA.

74. On 8 July 2024, after the Panel’s provisional dismissal of the Document Production Request (see above at para. 35), the Appellant reiterated its original request, emphasizing “the importance of the raw file related to the analysis performed on A and B Samples”. The Appellant claimed that his Document Production Request must be granted in accordance with Articles 3, 12 and 15 of Regulation (EU) 2016/679 on General Data Protection (“GDPR”), because the requested information contained the Athlete’s personal data. The Panel dismissed both the original and the updated Document Production Request for the reasons detailed below.

75. It is undisputed that the Appellant had received from WA the test reports and related LDPs for both the A and the B Sample. The Appellant does not contest that the LDPs comply with the requirements of the WADA Technical Document TD2022LDOC. Upon a respective document production request lodged before the Disciplinary Tribunal at first instance, the Appellant had also received further documents, namely a report containing the full scan spectrum and product ion spectrum of the analysis of the Athlete’s B Sample

(Appealed Decision, para 39). The Appellant does not contest that the B Sample analysis was conducted in accordance with the ISL and the WADA Technical Document TD

76. It is unclear to the Panel, and the Appellant has failed to provide a plausible explanation, why and to what extent the additional “raw files” are relevant to the Athlete’s case and how they benefit his challenge of the positive doping test. In the Appeal Brief, the Athlete makes arguments on his behalf on the basis of the available documentation, in particular the documents produced during the first instance proceedings. The Appeal Brief does not explain what exactly the requested documents (initially identified as “file row”, later corrected to “raw files”) are and what they are expected to show, beyond the detailed information available to the Athlete already. In particular, it is unclear what information the Appellant is missing, and why the available documentation is insufficient to evidence the presence of Meldonium in the Sample. The Athlete’s request remains vague, and does not provide the Panel with a sufficient basis to understand how the requested “raw files” are relevant and material to the analysis of this case.

77. The additional argument that the release of the documents is warranted by EU data protection law (specifically, the GDPR) does not change anything. If the Appellant believes that EU data protection law gives him a claim for document production, it is not for this Panel, under a CAS arbitration agreement, to enforce any such purported claims (against an entity – the Cologne Laboratory – which is not even a party in these proceedings).

78. For all of these reasons, the Document Production Requests were dismissed by the Panel.

B. The Appellant’s Request to add an additional expert to his roster of experts

79. By letter of 22 July 2024, the Appellant requested to add to his expert team an expert who had assisted Prof. Cristoni in publishing an article on which the Athlete’s defense relies.

80. Pursuant to Article R56 (1) of the CAS Code,

“Unless the parties agree otherwise or the President of the Panel orders otherwise on the basis of exceptional circumstances, the parties shall not be authorized to supplement or amend their requests or their argument, to produce new exhibits, or to specify further evidence on which they intend to rely after the submission of the appeal brief and of the answer.”

81. WA objected the Appellant’s request, and the Appellant failed to establish “exceptional circumstances” which would have allowed to add an expert to his list of witnesses at a late stage in the proceedings. Dr. Conti neither submitted an expert report in these CAS proceedings, nor did he (co-)author the expert report submitted by Prof. Cristoni. His coauthorship of an article mentioned in the Appellant’s Appeal Brief does not constitute “exceptional circumstances” requiring his (belated) addition to the Appellant’s roster of experts. As a result, the Panel dismissed the Appellant’s respective request.

X. MERITS

82. It is undisputed between the Parties that the Prohibited Substance at issue in this case is Meldonium, which is a metabolic modulator classified under the “S4 Hormone and Metabolic Modulators” category of the WADA Prohibited List (2022 version). It is stated to be a “non-Specified Substance” and prohibited at all times.

83. Meldonium was included into the WADA Prohibited List on 1 January 2016.

A. The Applicable Legal Framework

84. With respect to the Athlete’s alleged ADRV, the WA ADR provides – in its pertinent parts – as follows:

“2.1.1 It is each Athlete’s personal duty to ensure that no Prohibited Substance enters their 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 to demonstrate intent, Fault, Negligence or knowing Use on the Athlete’s part in order to establish a Rule 2.1 antidoping rule violation.

2.1.2. Sufficient proof of an anti-doping rule violation under Rule 2.1 is established by any of the following: (i) the presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample where the Athlete waives analysis of the B Sample and the B Sample is not analysed; (ii) where 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; or (iii) where the Athlete’s A or B Sample is split into two parts and the analysis of the confirmation part of the split Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the first part of the split Sample or the Athlete waives analysis of the confirmation part of the split Sample.

[…]

2.2.1 It is the Athlete’s personal duty to ensure that no Prohibited Substance enters their body and that no Prohibited Method is Used. Accordingly, it is not necessary to demonstrate intent, Fault, Negligence or knowing Use on the Athlete’s part in order to establish an anti-doping rule violation for Use of a Prohibited Substance or a Prohibited Method.”

85. Regarding the periods of ineligibility in cases involving the presence of a prohibited substance (Rule 2.1 of the WA ADR) and/or use of a prohibited substance (Rule 2.2 of the WA ADR), and possible elimination or reduction of ineligibility periods, the WA ADR provides as follows:

“10.2 Ineligibility for Presence, Use or Attempted Use, or Possession of a

Prohibited Substance or Prohibited Method

The period of Ineligibility for a violation of Rule 2.1, Rule 2.2 or Rule 2.6 will be as follows, subject to potential elimination, reduction or suspension pursuant to Rules 10.5, 10.6 and/or 10.7:

10.2.1 Save where Rule 10.2.4 applies, the period of Ineligibility will be four years where:

(a) The anti-doping rule violation does not involve a Specified Substance or a Specified Method, unless the Athlete or other Person can establish that the anti-doping rule violation was not intentional.

(b) The anti-doping rule violation involves a Specified Substance or a Specified Method and the Integrity Unit can establish that the anti-doping rule violation was intentional.

[…]

10.2.3 As used in Rule 10.2, the term 'intentional' is meant to identify those Athletes or other Persons who engage in conduct that they 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 that is only prohibited In-Competition will 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 that is only prohibited In-Competition will not be considered 'intentional' if the substance is not a Specified Substance and the Athlete can establish that the Prohibited Substance was Used Out-of-Competition in a context unrelated to sport performance.”

86. With respect to the standard and burden of proof, Rule 3.1 of the WA ADR provides the following:

“3.1 Burdens and Standards of Proof

The Integrity Unit or other Anti-Doping Organisation will have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof will be whether the Integrity Unit or other Anti-Doping Organisation has established an anti-doping rule violation to the comfortable satisfaction of the

hearing panel, bearing in mind the seriousness of the allegation that has been made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. 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, except as provided in Rules 3.2.3 and 3.2.4, the standard of proof will be by a balance of probability.”

B. The Questions at Stake in these Proceedings

87. Considering the Parties’ submissions in light of the applicable rules quoted above, the main issues to be resolved by the Panel are the following:

1. Was Meldonium correctly identified in the Athlete’s Sample by the Cologne Laboratory?

2. In case question (1) is answered affirmatively, has the Athlete established that his ADRV was not intentional?

3. What is the appropriate sanction to be imposed on the Athlete?

1. Was Meldonium correctly identified in the Athlete’s Sample?

88. The Athlete contests the scientific validity of the testing of the Sample by the Cologne Laboratory. He argues that proof of the presence of Meldonium requires identification of the 132 Ion, which was not detected in the Sample. The Athlete argues that identification of only three ions (the precursor ion at m/z 147.1129, and two product ions at m/z 58.0654, m/z 59.0732) by the Cologne Laboratory was not sufficient to prove the presence of Meldonium when the quantity is as low as in the Sample (155 ng/mL).

89. The Panel dismisses the Appellant’s argument. It is comfortably satisfied that the Cologne Laboratory correctly established the presence of Meldonium in the Sample, for the reasons detailed below.

90. First, the Panel is comfortably satisfied that the 132 Ion was indeed monitored and shown in the analysis of both the Athlete’s A and B Sample, conducted by the Cologne Laboratory. As explained by Prof. Thevis in his expert report, confirmed by him during the oral hearing, the image of the product ion mass spectrum of the Athlete’s B Sample illustrates that the 132 Ion was visible, albeit at a rather low abundance. The Panel has examined the relevant (zoom-in) image showing the 132 Ion, and is comfortably satisfied by Prof. Thevis’s explanations, which remained unchallenged during the hearing. The data on which Prof. Thevis relied stem from a WADA-accredited laboratory, and there is no indication for any irregularity in the sample analysis, respective data collection or data processing. During his oral examination, Dr. Barroso of the WADA Science Department confirmed that at least four other WADA-accredited laboratories apply the same testing procedure for detecting Meldonium as the Cologne Laboratory. While the Athlete has requested the “raw data” underlying the Cologne Laboratory’s analysis (including

chromatograms), he has failed to explain if and how such raw data could be suitable to disprove the evidence given by Prof. Thevis (including mass spectrum images, which the Appellant was provided with).

91. Second, the Panel finds that a showing of the 132 Ion was not even mandatory for a valid demonstration of the presence of Meldonium in the Athlete’s Sample. The Panel is not convinced by the Athlete’s argument that without the presence of the 132 Ion, there is a risk of confusion, because the other three ions appear in other substances, such as Mythoxan Forte (a nutrition supplement used by the Athlete). As explained by Prof. Thevis, based on his in-depth experience, the 132 Ion does not offer any advantage in identifying Meldonium over other, more abundant product ions.

92. Third, the Panel rejects the Athlete’s further argument that detection of all four ions (including the 132 Ion) is required by law, more specifically the 2002 EC Decision, implementing the 96 Council Directive. The minimum identification criteria to be fulfilled in the anti-doping analysis are listed in the WADA Technical Document – TD2021IDCR. According to the WADA TD2021IDCR, at least two diagnostic ions shall be identified when using multiple-stage mass spectrometry. These minimum criteria were fulfilled in the Athlete’s case. European (case) law has no further bearing for anti-doping testing requirements. The 96 Council Directive relates to testing of animal meat, and it requires the testing of four identification points (IPs) and not four ions. It sets no additional requirements beyond those implemented in the WADA TD2021IDCR for a sample testing in doping laboratories, because it does not apply to anti-doping.

93. In conclusion, the Panel finds that WA has sufficiently established the presence of Meldonium in the Sample. Hence, the Athlete committed an ADRV under Rules 2.1 and 2.2 of the WA ADR.

2. Has the Athlete established that his ADRV was not intentional?

94. The central question in this case is whether the Athlete has established that the ADRV was not intentional.

95. Meldonium is a non-Specified Substance. An ADRV involving a non-Specified Substance is presumed to be intentional, with a basic period of ineligibility of four years, unless the Athlete establishes that the violation was not intentional, in which case the basic period of ineligibility reduces to two years (Rule 10.2.1 (a) of the WA ADR, quoted above at para. 85). The burden of proof to demonstrate lack of intent rests on the Athlete, and the standard of proof is that of balance of probability pursuant to Rule 3.1 of the WA ADR. In other words, for the Athlete to benefit from a reduction of the standard sanction of four years, the Panel must find it more likely than not that the ADRV was not intentional, based on the record before it.

96. A definition of what constitutes an “intentional” violation is contained in Rule 10.2.3 of the WA ADR. That definition includes two limbs of intent. The first one is “direct” intent, which is attributed to athletes who have positive knowledge of committing an ADRV. The second one is “indirect” intent, which is attributed to athletes who knew that there

was a significant risk that the conduct might constitute or result in an ADRV and manifestly disregarded that risk.

97. An abundance of CAS jurisprudence exists on the question of how an athlete can prove lack of intent. Before addressing this jurisprudence, which shall guide the Panel in its analysis of the present case, the Panel finds it useful to summarize the facts relevant for the analysis of intent in the present case:

a. The undisputed facts

• It is undisputed that the Athlete was unable to identify the source of Meldonium, i.e. that he failed to demonstrate how Meldonium entered his body.

• It is undisputed that the Athlete undertook certain efforts to identify the source of Meldonium. The testing of his supplements at the Turin Laboratory did not trigger any result so that the presence of Meldonium in his system could not be traced back to any of the supplements used by him.

• It is not disputed by WA that the Athlete underwent a hair test, and that such hair test was negative.

• In the weeks before the positive doping test, the Athlete had undergone numerous doping tests, all of which returned negative results, including the following:

o 4 June 2022 (urine sample) o 13 July 2022 (blood sample) o 18 July 2022 (urine sample) o 30 July 2022 (urine sample) o 15 August 2022 (blood sample)

• Blood samples are not tested for Meldonium. Relevantly, no Meldonium was found in the urine samples collected from the Athlete on 4 June 2022, 18 July 2022 and 30 July 2022.

• Regarding excretion periods for Meldonium, WADA issued its last official statement on 11 April 2006 (the “2016 WADA Statement”). At that time, limited data existed on the urinary excretion of Meldonium. While the 2016 WADA Statement explained that several studies were underway (at the time) to obtain more data on excretion periods, and while WADA assured that it “will share these results with its stakeholders when available”, no official update has been provided by WADA since.

b. The Parties’ positions

98. The Athlete submits that he did not act with intent. He argues that the concentration of Meldonium found in the Sample was very low (155 ng/ml) and did not have any performance-enhancing effect. He further argues that the low concentration is incompatible with intentional doping, also in light of the negative test results for samples

collected in the weeks before the Doping Control. Considering excretion periods, these samples (including the urine sample collected on 30 July 2022) should have shown high concentrations of Meldonium had the Athlete intentionally doped.

99. Furthermore, the Athlete submits that proof of source is not required to establish that an athlete acted unintentionally under guiding CAS jurisprudence. In his view, the evidence provided by him, when considered in its entirety, constitutes concrete, specific, objective, and persuasive evidence sufficient to demonstrate, on a balance of probabilities, the Athlete’s lack of intent.

100. WA submits that although it is theoretically possible for an athlete to establish that an ADRV was not intentional without proving the source of the Prohibited Substance that entered his system, this may only occur in exceptional cases. The Respondent is of the view that the present case is not a difficult, unusual or exceptional case on the facts.

c. The Panel’s Findings

101. In theory, unlike for “no fault” or “no significant fault” (Articles 10.5 and 10.6 of the WA ADR and in view of the express wording and requirement within the definitions of such terms), the Athlete does not necessarily need to establish how the substance entered his system in order to claim that the ADRV was not intentional. However, CAS jurisprudence commonly finds that it is very difficult to rebut the presumption of intent without showing how the prohibited substance entered the Athlete’s system (see, e.g., CAS 2023/A/9451 & 9455 & 9456; CAS 2023/A/9377; CAS 2021/O/7977). This is confirmed by the official comment to Art. 10.2.1.1 of the 2021 WADA Code, which sets forth that “it is highly unlikely that […] an Athlete will be successful in proving that the Athlete acted unintentionally without establishing the source of the Prohibited Substance”.

102. To establish the origin of the prohibited substance, it is not sufficient for an athlete to merely protest his or her innocence and suggest that the substance must have entered his or her body inadvertently from a supplement, medicine, or other product (e.g. Jonathan Taylor, Assessing Contamination And Thresholds Under The World Anti-Doping Code: An Advocate’s View On Lawson v IAAF, 2020). Rather, an athlete must adduce concrete evidence to demonstrate that a particular supplement, medication, or other product that the athlete has taken contained the substance in question (e.g. CAS 2017/A/5248).

103. However, the Panel notes that other CAS awards - notably CAS 2019/A/6313, but also 7580 - have found that in “extremely rare” cases, an athlete might be able to demonstrate a lack of intent even where he/she cannot establish the origin of the prohibited substance. The CAS 2016/A/4534 award refers to the “narrowest of corridors” through which an athlete must pass, and the CAS 2016/A/4676 award states that “in all but the rarest cases the issue is academic”. In the CAS 2019/A/6313 award, the Panel found “that the socalled “corridor” must be sufficiently narrow to prevent intentionally doped athletes with a means of evading due sanctions, yet still wide enough to allow unintentionally doped athletes an opportunity to exculpate themselves by means of relevant and convincing evidence.” On the basis of a “rare set of facts”, the CAS 2019/A/6313 panel dealing with

a food contamination defence found that, although the likelihood that the portion of beef consumed by the Athlete contained any Trenbolone was – in the abstract – small, this was not “the end of the story”, because the other elements of the Athlete’s demonstration of a lack of intent were in fact so overwhelming that the panel concluded that contaminated meat was more likely than not the origin of the Epitrenbolone found in the athlete’s body in that specific case (CAS 2019/A/6313). More recent CAS jurisprudence followed a stricter approach, describing the required proof of the origin of the Prohibited Substance to be a “crucial, almost indispensable element for an athlete to disprove intent” (CAS

104. Another CAS panel described the need to present compelling evidence in cases where the source of the prohibited substance cannot be established as follows (CAS 2017/A/5248):

“[…] According to CAS praxis, an athlete should then establish lack of intention with other robust evidence, such as the possibility that the prohibited substance came from a specific product, the athlete’s credible testimony, evidence by the athlete’s doctors that the athlete had no intent to use a prohibited substance, and the implausibility of a scenario that the athlete intentionally used prohibited substances.”

105. In other words, “[a]n athlete must provide actual evidence to support his protestations of innocence; he or she must provide “concrete and persuasive evidence establishing such lack of intent on the balance of probabilities”; protestations of innocence, however credible they appear, “carry no material weight in the analysis of intent” (CAS

106. In the present case, the Athlete has not submitted any direct evidence suggesting the possibility of a contamination scenario. The analysis of his food supplements remained inconclusive. No other potential contamination source has been identified by him. Rather, the Athlete’s (indirect) referral to a potential contamination of his urine primarily rests on the argument of an allegedly low concentration of Meldonium in the Sample, and the fact that his samples collected four days and 19 days before the positive test were negative. The Athlete argues that intentional doping would have entailed the intake of a normal dosage of Meldonium, which is one capsule (sold under the name “mildronate”) containing 500mg of Meldonium. The Athlete further argues that his testing history renders such scenario of the (intentional) intake of a full dosage of Meldonium, triggering the result found in the 19 August 2022-sample, impossible: considering the relevant excretion periods for Meldonium, to find a concentration of 155 ng/ml in a urine sample means (in the Athlete’s view) that a normal dosage of Meldonium would require to have been consumed much earlier than 30 July 2022. In that case, the 30 July 2022-sample would have shown high levels of Meldonium (which it did not, because it was negative). On the other hand, the Athlete considers a scenario in which he took a capsule of mildronate after the (negative) 30 July 2022-sample just as inexplicable: because of the slow excretion periods for Meldonium, the Athlete argues that the concentration of Meldonium in the 19 August 2022-sample would have been much higher had he taken a normal dosage of 500mg (contained in one capsule) after 30 July 2022.

107. In support of his reliance on his testing history, allegedly excluding an intentional doping

scenario, the Athlete refers to the 2016 WADA Statement, which declared (at the time) that only limited knowledge exists on the excretion periods for Meldonium. The Athlete concludes that, based on the 2016 WADA Statement, the Panel shall assume – for his benefit – slow excretion periods supportive of his testing history-argument.

108. The starting point for the Panel’s analysis on whether the Athlete passed through the “narrowest of corridors” is that it has not been presented with any potential contamination source. Based on the CAS jurisprudence summarized above, this fact alone sets a high hurdle for the Athlete to demonstrate, on the balance of probabilities, and based on cogent and compelling evidence, that he did not act with (indirect) intent.

109. Therefore, the Panel has to assess whether the Appellant’s argument that the assumed intentional administration of Meldonium is incompatible with his testing history (including the positive test) suggests, on the balance of probabilities, that the ADRV was not intentional. While the Athlete’s explanation does not appear implausible per se, the majority of the Panel is not convinced that the Athlete’s explanation renders an unintentional ADRV more likely than an intentional doping scenario, for the reasons detailed below.

110. The consumption of customary dosages of medications sold in pharmacies is not a mandatory premise for intentional doping, as suggested by the Appellant. To the contrary: intentional cheaters may try to avoid positive doping tests by dividing the intake of a prohibited substance into multiple, smaller dosages to stay below the applicable reporting levels during testing. Taking full dosages entails a high risk of detection, given that athletes do not know when and how often they are tested, particularly at the verge of important competitions such as the Event in this case. The Athlete’s central premise that a full dosage (of 500 mg Meldonium) must be the reference point for analysing his testing history is, therefore, without avail. As a result, the majority of the Panel is satisfied that the Panel can leave the question as to whether the intake of a full dosage of Meldonium after 30 July 2022 can trigger the concentration found in the 19 August 2022-sample (confirmed by Prof. Saugy, rejected by Prof. Ghidoni) undecided.

111. Rather, the Panel must look into the hypothetical scenario of multiple smaller doses, which would be more realistic to assume for a true cheater and would thus corroborate intention. Based on the (expert) evidence before it, the majority of the Panel finds that in that scenario, the Athlete’s explanation for unintentional doping (through contamination) is not more likely than an intentional doping scenario, in which an athlete deliberately consumes multiple small portions of a prohibited substance shortly before a major event in an attempt to enhance his or her performance:

112. First, both Prof. Thevis and Prof. Saugy disagreed with the Athlete’s argument that the concentration of Meldonium found in the Sample was particularly low. Prof. Saugy explained that the value of 155 ng/ml, which is an estimation (with a potential 20% variation), is wide above the reporting limit for Meldonium (100 ng/ml) and even wider above the detection limit.

113. Second, the Appellant has not provided scientifically robust evidence that the detected

concentration levels are not performance-enhancing. To the contrary, a study lead by Prof. Thevis in 2015, which was referred to by the Appellant himself, suggests that small doses of Meldonium ingested daily for a period of 10-14 days before a competition, have a performance-enhancing effect. The “small doses” Prof Thevis referred to were 2g per day, which amounts to 0.4% of one capsule of mildronate.

114. Third, the positive sample was collected on the day of the Athlete’s participation in the finals of the steeplechase race at the Event (where he won the silver medal). As a result, it is not excluded that Meldonium gave him an advantage, and that the substance was administered for precisely that purpose.

115. Fourth, the Athlete’s reliance on the 2016 WADA Statement is of no avail either. While this Statement demonstrates that scientific knowledge on excretion periods for Meldonium was very limited at the time, it is incomprehensible how this fact should benefit the Athlete’s case. The 2016 WADA Statement does not discredit the assumption that multiple small doses of Meldonium can plausibly explain the Athlete’s positive test.

116. In conclusion, the majority of the Panel finds that the Athlete’s contamination scenario, which lacks reference to any possible contamination source, is not superior over plausible scenarios of intentional doping, potentially carried out precisely around the time of one of the most important competitions of the year. Furthermore, the Athlete carries the burden to prove that his argued contamination scenario is more likely than not to be the cause of the positive test, even in the absence of any “competing” or alternative scenario, and WA is not required to put forward and demonstrate the likelihood or supremacy of any alternative scenario. The Athlete has not demonstrated, on the balance of probabilities, lack of intent and is, therefore, presumed to have acted intentionally.

3. What Is the Appropriate Sanction to be Imposed on the Athlete?

117. The third question that the Panel has to answer concerns the consequences of the ADRV committed by the Athlete. Pursuant to Article 10.2.1 of the WA ADR, the standard sanction for an intentional ADRV is four years.

118. A four-year period of ineligibility could potentially have a career-ending effect on an athlete in the Appellant’s position. Nevertheless, the applicable rules, as interpreted and concretized by CAS jurisprudence, do not permit another outcome. The Athlete is not a minor and an athlete’s career perspectives do not constitute a criterion for the determination of the appropriate sanction. In addition, the comment to Article 10.6.2 of the WA ADR clearly sets out that the benefit of a reduction of the sanction due to “no significant fault” or “negligence” is not available to ADRVs involving intent. This is all the more true for the exception of “no fault or negligence” enshrined in Article 10.5 of the WA ADR, which is not applicable to intentional ADRVs either (see also CAS

119. Pursuant to Article 10.2.1 of the WA ADR, the period of Ineligibility started on the date of the Appealed Decision. The Athlete is to receive credit for the period of the Provisional Suspension served from 7 September 2022 onwards.

120. All the Athlete’s results obtained at the Event and since 19 August 2022 must be disqualified pursuant to Rules 9, 10.1 and 10.10 of the WA ADR with all resulting consequences including the forfeiture of any titles, awards, medals, points and prize and appearance money.

XI. COSTS

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