World Anti-Doping Agency (WADA) v. International Canoe Federation (ICF), Nikolay Lipkin

II. OUTLINE OF THE APPEAL

4. As more fully described below, this is an appeal by WADA against the decision taken by the ICF not to bring forward an anti-doping rule violation against the Athlete in respect of a doping control sample provided by the Athlete in 2014. It is WADA’s case that the evidence in relation to the sample “clearly establishes that the Athlete committed an anti-doping rule violation” and that “the decision by the ICF not to move forward with this matter was manifestly wrong”.

5. There was no pleaded challenge to the manner in which the ICF conducted itself in coming to its decision, only that its decision was wrong. The appeal was therefore conducted by the Parties as an inquiry into whether the evidence was sufficient to establish, to the applicable standard of proof, that the Athlete had committed an anti-doping rule violation and not as to whether the ICF had met its investigation obligations under its anti-doping rules and related international standards.

VII. JURISDICTION OF CAS

74. 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 Player has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body.

An appeal may be filed with CAS against an award rendered by CAS acting as a first instance tribunal if such appeal has been expressly provided by the rules of the federation or sports-body concerned.

75. In these proceedings, as the alleged violations took place in 2014, then the ICF 2009 ADR are applicable to the merits of the respective alleged violations, while the 2021 ICF ADR applies to the procedural aspects of the case, including, in particular, the jurisdiction of CAS.

76. Article 13 of the 2021 ICF ADR provides in relevant part as follows:

a. Article 13.1 provides that decisions taken by the ICF may be appealed in accordance with Article 13.

b. Article 13.1.1 provides that the scope of the review on appeal is not limited but “includes all issues relevant to the matter and is expressly not limited to the issues or scope of review before the initial decision maker. Any party to the appeal may submit evidence, legal arguments and claims that were not raised in the first instance hearing so long as they arise from the same cause of action or same general facts or circumstances raised or addressed in the first instance hearing”.

c. Article 13.1.2 provides that, in making its decision, the CAS Panel “shall not give deference to the discretion exercised by the body whose decision is being appealed”.

d. Article 13.1.1 provides that “[w]here WADA has a right to appeal under Article 13 and no other party has appealed a final decision within the ICF’s process, WADA may appeal such decision directly to CAS without having to exhaust other remedies in the ICF’s process”.

a. Article of 13.2 provides, in terms, that a decision by the ICF not to bring forward an adverse analytical finding as an anti-doping rule violation, or a decision not to go forward with an anti-doping rule violation after an investigation in accordance with the International Standard for Results Management “may be appealed exclusively as provided in this Article 13.2”.

b. Article 13.2.1 provides that, in cases involving international-level athletes, the decision may be appealed exclusively to CAS.

77. It is common ground that the Athlete is an international-level athlete for the purposes of this article and that it is open to WADA to bring this appeal (exclusively) to CAS and that CAS has jurisdiction to hear this appeal, as is confirmed by the Parties in the Order of Procedure.

78. The Panel, therefore, confirms that CAS has jurisdiction to decide this appeal.

VIII. ADMISSIBILITY

79. Article R49 of the CAS Code is headed “Time limit for Appeal” and 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 in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. …

80. Article 13.6.1 of the 2021 ICF ADR sets out the time limits for the filing of appeals. It provides (in relevant part) that the deadline for WADA to appeal was “Twenty-one (21) days after the last day on which any other party having a right to appeal could have appealed, or (b) Twenty-one (21) days after WADA’s receipt of the complete file relating to the decision”.

81. The ICF Decision was rendered on 11 March 2021. WADA’s Statement of Appeal was filed with CAS on 1 April 2021, within the provided 21-day period.

82. This appeal is therefore admissible, as is common ground between the Parties (as confirmed in the signed Order of Procedure).

IX. APPLICABLE LAW

83. 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 that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.

84. It is uncontentious that: (a) the regulations applicable to the substantive issues in these proceedings are the ICF ADR that were in place at the time of the alleged ADRVs, namely the ICF 2009 ADR; (b) the regulations applicable to the procedural issues in these proceedings are the ICF 2021 ADR; and (c) the laws of Switzerland are to be applied subsidiarily, it being the country in which the ICF is domiciled.

85. The Panel shall therefore decide this dispute according to these regulations and, subsidiarily, according to the law of Switzerland.

X. THE MERITS

86. The Panel notes that while it has carefully considered the entirety of the submissions made and the evidence adduced by the Parties it only relies below on those matters which it deems

necessary to decide the dispute. This section of the award is divided into (a) Liability and (b) Sanctions.

A. Liability

87. It is necessary at the outset to define an ADRV under Article 2.2 of ICF 2009 ADR and the requirements for the burden, standard and means of proof.

a) The Definition of an ADRV pursuant to ICF 2009 ADR Rule 2.2

88. The allegation here is that there has been a violation of Article 2.2 of the ICF 2009 ADR, which article is in the following terms:

“ARTICLE 2 ANTI-DOPING RULE VIOLATIONS

Athletes and other Persons shall be responsible for knowing what constitutes an anti-doping rule violation and the substances and methods which have been included on the Prohibited List.

The following constitute anti-doping rule violations:

[Comment to Article 2: The purpose of Article 2 is to specify the circumstances and conduct which constitute violations of anti-doping rules. Hearings in doping cases will proceed based on the assertion that one or more of these specific rules has been violated.]

…

2.2 Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method

[Comment to Article 2.2: As noted in Article 3 (Proof of Doping), it has always been the case that Use or Attempted Use of a Prohibited Substance or Prohibited Method may be established by any reliable means. Unlike the proof required to establish an anti-doping rule violation under Article 2.1, Use or Attempted Use may also be established by other reliable means such as admissions by the Athlete, witness statements, documentary evidence, conclusions drawn from longitudinal profiling, or other analytical information which does not otherwise satisfy all the requirements to establish “Presence” of a Prohibited Substance under Article 2.1. For example, Use may be established based upon reliable analytical data from the analysis of an A Sample (without confirmation from an analysis of a B Sample) or from the analysis of a B Sample alone where the ICF provides a satisfactory explanation for the lack of confirmation in the other Sample.]

2.2.1 It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. 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 for Use of a Prohibited Substance or a Prohibited Method.

2.2.2 The success or failure of the Use of a Prohibited Substance or Prohibited Method is not material. It is sufficient that the Prohibited Substance or Prohibited Method was Used or Attempted to be Used for an anti-doping rule violation to be committed.

[Comment to Article 2.2.2: Demonstrating the "Attempted Use" of a Prohibited Substance requires proof of intent on the Athlete’s part. The fact that intent may be required to prove this particular anti-doping rule violation does not undermine the strict liability principle established for violations of Article 2.1 and violations of Article 2.2 in respect of Use of a Prohibited Substance or Prohibited Method. An Athlete’s “Use” of a Prohibited Substance constitutes an anti-doping rule violation unless such substance is not prohibited Out-of- Competition and the Athlete’s Use takes place Out-of-Competition. (However, the presence of a Prohibited Substance or its Metabolites or Markers in a Sample collected In-Competition will be a violation of Article 2.1 (Presence of a Prohibited Substance or its Metabolites or Markers) regardless of when that substance might have been administered.)]

89. Article 2.2 of the ICF 2009 ADR thus provides that the “Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method” shall constitute an ADVR under Article 2. The capitalised terms are defined terms in the ICF 2009 ADR. For present purposes, both Attempted Use and Prohibited Method may be set to one aside as there is no allegation against the Athlete in either respect.

a. “Use. The utilization, application, ingestion, injection or consumption by any means whatsoever of any Prohibited Substance …”.

b. “Athlete. Any Person who participates in sport at the international level (as defined by each International Federation) …”.

c. “Prohibited Substance. Any substance so described on the Prohibited List (which is further defined as “The List identifying the Prohibited Substances …”)”.

90. It is made clear by Article 2.2.1 of the ICF 2009 ADR that, because it is every athlete’s duty to ensure that no prohibited substance enters his or her body, it is not necessary to show that any use on the part of an athlete was intentional or knowing, or that an athlete was at fault in some way or that he or she failed to take due care (i.e., was negligent). It has been said that “the rationale behind Article 2.2 is that prohibited substances and prohibited methods … are forbidden as such independent of intent, fault, or negligence” (CAS 2017/A/5379 at [732]).

b) Burden, Standard and Means of Proof

91. The ICF 2009 ADR also make express provision in relation to the burden, standard and the methods of establishing the facts in respect of an alleged violation of Article 2.2.

Burden and Standard of Proof

“ARTICLE 3 PROOF OF DOPING

3.1 Burdens and Standards of Proof

The ICF and its National Federations shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the ICF or its National Federation has established an anti-doping rule violation to the comfortable satisfaction of the 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. Where these Rules place the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability, except as provided in Articles 10.4 and 10.6, where the Athlete must satisfy a higher burden of proof.

[Comment to Article 3.1: This standard of proof required to be met by the ICF or its National Federation is comparable to the standard which is applied in most countries to cases involving professional misconduct. It has also been widely applied by courts and hearing panels in doping cases. See, for example, the CAS decision in N., J., Y., W. v. FINA, CAS 98/208, 22 December 1998]”.

92. As is made clear therefore by Article 3 of the ICF 2009 ADR, the burden is on (here) WADA and the standard of proof is whether WADA has established an anti-doping rule violation to the comfortable satisfaction of this Panel bearing in mind the seriousness of the allegations. As is noted, this standard of proof is greater than a mere balance of probability, but less than proof beyond a reasonable doubt. The Panel accepts the submission on the part of the Athlete that “the more serious the allegation, the more cogent the supporting evidence must be in order for the allegation to be found proven” per CAS 2017/A/5379. Having said that, it is important to bear in mind that, contrary to what is often asserted, the standard itself does not change; it is the required cogency of the evidence that changes on the basis that the more serious the allegations (a) the less likely that the alleged fact or event has occurred and (b) the more serious the consequences. The standard of proof, however, remains to the comfortable satisfaction of the Panel bearing in mind the seriousness of the allegations (see, e.g., CAS 2017/A/5422; CAS

93. There is no uncertainty as to the import of this rule and the Panel respectfully adopts what was said by the Sole Arbitrator in CAS/2020/O/6759 this respect as an accurate account of the law:

55. The CAS jurisprudence has clearly shaped the comfortable satisfaction standard as being lower than the criminal standard of beyond reasonable doubt but higher than other civil standards such as the balance of probabilities. Indeed, “the “comfortable satisfaction” standard of proof has been developed by the CAS 2010/A/2172) which has defined it by comparison, declaring that it is greater than a mere balance of probability but less than proof beyond a reasonable doubt. In particular, the CAS jurisprudence has clearly established that to reach this comfortable satisfaction, the Panel should have in mind “the seriousness of allegation which is made” (i.e. CAS 2005/A/908, CAS 2009/1920). It follows from the above that this

standard of proof is then a kind of sliding scale, based on the allegations at stake: the more serious the allegation and its consequences, the higher certainty (level of proof) the Panel would require to be “comfortably satisfied”

56. Notwithstanding the foregoing, it shall be noted that this standard of proof “does not itself change depending on the seriousness of the (purely disciplinary) charges. Rather the more serious the charge, the more cogent the evidence must be in support” (CAS 2014/A/3630, para. 115).

94. It should be borne in mind, however, that the standard itself does not change; it is the required cogency of the evidence that changes on the basis that the more serious the allegations (a) the less likely that the alleged fact or event has occurred and (b) the more serious the consequences. The standard of proof, however, remains to the comfortable satisfaction of the Panel bearing in mind the seriousness of the allegations (see, e.g., CAS 2014/A/3630).

c) Methods of Proof

95. Both Article 2.2 (by its comment) and Article 3 of the ICF 2009 ADR speak to the methods of proving facts. As a general rule, facts relating to ADRVs may (i.e., it is permissible) be established by “any reliable means”.

96. The comment to Article 2.2 of the ICF 2009 ADR (see above) addresses in terms the permissible means by which a violation of Article 2.2 may be established. As is there said, it has always been the case, in contrast to violations under Article 2.1 of the ICF 2009 ADR, that a violation of Article 2.2 may be established “by any reliable means”. The comment goes on to give examples of “reliable means”: admissions on the part of the athlete, witness statements, documentary evidence, conclusions drawn from longitudinal profiling, or other analytical information. These are examples and are not to be taken as an exhaustive list. As to the last mentioned, it is made clear in the comment that use may be established based upon reliable analytical data from the analysis of an A sample (without confirmation from an analysis of a B sample) or from the analysis of a B sample alone where a satisfactory explanation is provided for the lack of confirmation in the other sample.

97. Article 3 of the ICF 2009 ADR is in much the same terms. Article 3, set forth below, also provides that a violation may be established by “any reliable means” and likewise provides examples of what are to be regarded as “reliable means”. Once again, these are but examples and are not to be taken as an exhaustive list.

“3.2 Methods of Establishing Facts and Presumptions

Facts related to anti-doping rule violations may be established by any reliable means, including admissions. The following rules of proof shall be applicable in doping cases:

[Comment to Article 3.2: For example, the ICF or its National Federation may establish an anti-doping rule violation under Article 2.2 (Use of a Prohibited Substance or Prohibited Method) based on the Athlete’s admissions, the credible testimony of third Persons, reliable documentary evidence, reliable analytical data from

either an A or B Sample as provided in the Comments to Article 2.2, or conclusions drawn from the profile of a series of the Athlete’s blood or urine Samples.]

3.2.1 WADA-accredited laboratories 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 occurred which could reasonably have caused the Adverse Analytical Finding.

The ICF the Athlete or other Person rebuts the preceding presumption by showing that a departure from the International Standard occurred which could reasonably have caused the Adverse Analytical Finding, then the ICF or its National Federation shall have the burden to establish that such departure did not cause the Adverse Analytical Finding.

[Comment to Article 3.2.1: The burden is on the Athlete or other Person to establish, by a balance of probability, a departure from the International Standard that could reasonably have caused the Adverse Analytical Finding. If the Athlete or other Person does so, the burden shifts to the ICF or its National Federation to prove to the comfortable satisfaction of the hearing panel that the departure did not cause the Adverse Analytical Finding.] …”.

98. This language in relation to “reliable means” of proof was explained in the following way in

“It is important to note that this rule gives greater leeway to USADA and other anti-doping agencies to prove violations, so long as they can comfortably satisfy a tribunal that the means of proof is reliable. As a result, it is not necessary that a violation be proven by a scientific test itself. Instead, as some cases have found, a violation may be proved through admissions, testimony of witnesses, or other documentation evidencing a violation.

As a result, it is not even necessary that a violation be proven by a scientific test itself. Instead, as some cases have found, a violation may be proved through admissions, testimony of witnesses, or other documentation evidencing a violation. For instance, in CAS 2004/O/645 and in CAS 2004/O/649, the CAS Panels held:

“The fact that the Panel does not consider it necessary in the circumstances to analyse and comment on the mass of other evidence against the Athlete, however, is not to be taken as an indication that it considers that such other evidence could not demonstrate that the Respondent is guilty of doping. Doping offences can be proved by a variety of means; and this is nowhere more true than in “non-analytical positive” cases such as the present”.

99. It is important to understand what this rule means. It is not, as has often been said, a requirement that the evidence adduced be “reliable evidence” (whatever that might mean). Rather, it is a rule as to the method or manner or form in which the facts that are necessary to sustain an allegation of an ADRV may be established – and the rule provides (in a nonexhaustive list) a number of examples of means of establishing facts which are characterised as ‘reliable’. In the great majority of cases the parties will deploy only reliable means in that, in the great majority of cases, the parties will seek to establish the facts by one or other of reliable means set forth in the rule itself and only by those means. In any event, that is certainly the position here as the Parties have sought to establish the facts related to the alleged ADRV in

this matter by (a) evidence of third persons, (b) witness statements, (c) experts reports, and (d) documentary evidence.

100. It follows that each of the means by which WADA and the ICF have sought to establish facts in relation to the alleged ADRV is a ‘reliable’ means for the purposes of the rule.

101. In this respect it is necessary to address an argument put by the ICF that, as a matter of principle, it is not open to an anti-doping authority to deploy Article 2.2 of the ICF 2009 ADR as a means to circumvent the safeguards within the ICF 2009 ADR designed to protect athletes against possible errors in the laboratory. It is said that if the only evidence of use is the presence of a prohibited substance in a (blood or urine) sample, then the alleged violation must be determined according to Article 2.1 (presence) and not under Article 2.2 (use).

102. In the Panel’s view, as deployed in these proceedings this argument is misconceived for the following reasons.

a. First, it is not the case here that the only evidence of violation is a sample analysis. As just discussed, it is open to WADA under Article 2.2 of the ICF 2009 ADR to establish the facts related to the alleged ADRV by any reliable means and WADA has done just that.

b. Second, as the comments to Articles 2.2 and 3.2 of the ICF 2009 ADR make clear (see above) in the explanation of the methods by which a “use” violation may be proved, such “reliable means” include “analytical information which does not otherwise satisfy all the requirements to establish “Presence” of a Prohibited Substance under Article 2.1. For example, Use may be established based upon reliable analytical data from the analysis of an A Sample (without confirmation from an analysis of a B Sample) or from the analysis of a B Sample alone where the ICF provides a satisfactory explanation for the lack of confirmation in the other Sample”..

c. The reference to “the requirements to establish “Presence” of a Prohibited Substance under Article 2.1”. is a reference to the requirements for ‘sufficient proof’ under Article 2.1 of the ICF 2009 ADR, namely:

i. that the analysis of the athlete’s A sample shows the presence of a prohibited substance (etc) in the sample and the athlete waives analysis of the B sample and the B sample is not analysed; or

ii. that the analysis of the B sample confirms the presence of a prohibited substance or its metabolites or markers found in the A sample where the athlete does not waive analysis of the B sample and the B sample is analysed.

d. It follows therefore that a sample analysis that does not meet these requirements may nevertheless be relied upon as evidence of ‘use’ under Article 2.2 of the ICF 2009 ADR.

e. This is corroborated by the provisions within the ICF 2009 ADR relating to results management. In particular, Article 7.1.7 provides as follows:

“7.1.7 If the B Sample proves negative, then (unless the ICF takes the case forward as an antidoping rule violation under Article 2.2) the entire test shall be considered negative and the Athlete, his National Federation, and the ICF shall be so informed”.

f. This rule makes it plain that, where an athlete’s B sample has been analysed and a negative result returned then the entire test shall be considered negative – subject to the exception where the ICF takes the case forward as a ‘use’ ADVR under Article 2.2 of the ICF 2009 ADR. This expressly envisages, therefore, that analyses that are not available to be deployed in support of an Article 2.1 of the ICF 2009 ADR “presence” violation may still be relied upon by the ICF with respect to an alleged “use” violation under Article 2.2 of the ICF 2009 ADR.

g. The authorities relied upon by the ICF to support this argument relate not to Article 2.2 but to Article 2.1 violations (see e.g. CAS 2009/A/1752). Properly understood, the admonitions in those case for transparency in the sampling process relates to where (a) the alleged ADRV was presence and (b) the only evidence being proffered against the athlete was the sample analyses. None of these cases is authority for the proposition that where a sample does not meet the requirements of Article 2.1 of the ICF 2009 ADR it cannot be relied upon for the purposes of Article 2.2 of the ICF 2009 ADR.

103. All that being so, contrary to the ICF’s submission, it is open to WADA to place reliance on the sample analyses in this case to support an allegation of ‘use’ under Article 2.2 of the ICF 2009 ADR despite the fact that neither can be said to satisfy the requirements of ‘sufficient proof’ under Article 2.1 of the ICF 2009 ADR.

B. Violation of ICF 2009 ADR Article 2.2 by the Athlete

104. The allegation here is that there has been a violation (or violations) of Article 2.2 of the ICF 2009 ADR. In this reference, no issue has been taken as to whether Mr Lipkin is an “Athlete” for the purposes of the ICF 2009 ADR. Nor has either Respondent sought to say that the substances alleged to have been detected in the Samples taken from the Athlete are anything other than prohibited substances.

105. The overarching question for the Panel, therefore is, has (in this case) WADA established (the burden being on it) to the comfortable satisfaction of the Panel that a doping rule violation has occurred. The issue therefore is whether, on the evidential material adduced by WADA, the Panel is comfortably satisfied that Mr Lipkin has used – i.e.., utilised, applied, ingested, injected, or consumed by any means whatsoever – the substances said to have been found in the Samples, namely trenbolone and metenolone.

106. In this case there is no direct evidence of use by the Athlete – all the evidence is circumstantial. In this context, the Panel accepts the submission that the Panel must assess the evidence separately and together and must have regard to what is sometimes called ‘the cumulative weight’ of the evidence (as described by Lord Hoffmann in the Privy Council in AG for Jersey v Edmond-O’Brien [2006] UK PC 14 and as relied upon in CAS 2015/A/4059). In Edmond-

O’Brien, Lord Hoffmann said this: “It is in the nature of circumstantial evidence that single items of evidence may each be capable of an innocent explanation but, taken together, establish guilt beyond reasonable doubt”. See also CAS 2018/O/5713 where there was reference to the following passage from Pollock CB in R v Exall (1866) 4 F&F 922, 929: “One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence - there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion: but the whole taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of”.

107. It is important to weigh the evidence adduced in order to decide whether or not there has been a violation of Article 2.2 of the ICF 2009 ADR in respect of each of the Samples. In doing so, it will be, of course, necessary to consider the specific evidence proffered in relation to each alleged violation both – in context and in and of itself.

C. The Contextual Evidence

108. There appears to be no dispute on the part of the Respondents that there was a Russian doping scheme as described in the McLaren Reports and that it provides the context for the matters in issue in this appeal.

109. That being so, it suffices to say that the Panel accepts the McLaren Reports as a fair account of the Russian doping scheme and, in particular, accepts that the account of the so-called “Disappearing Positive Methodology” set forth in the McLaren Reports is an accurate and compelling account of what took place in this regard. To be clear, for the purposes of this Award the Panel makes findings of fact as follows.

a. The historic position in Russia was that doping of athletes was undertaken on an ad hoc, decentralised basis where coaches and officials working with elite athletes “in the field” provided those athletes with an array of PEDs. The difficulty with this approach was that it could not keep abreast of the developments in doping control, including in particular the introduction of the ABP so that the athletes were at risk of being caught.

b. In response, in or about 2012, the Russian Ministry of Sport sought to ‘centralise’ the doping effort and bring it under the control of the Moscow Laboratory. An essential part of this centralisation was the development by Dr Rodchenkov in or about 2012 of the so-called “Duchess Cocktail”, a cocktail of PEDs comprised of oxandrolone, metenolone and trenbolone, which cocktail had a very short detection period thereby reducing the risk of detection. The objective was to shift all of the athletes who were participating in the “in the field” programs onto this Duchess Cocktail and under the supervision of the Moscow Laboratory (and Dr Rodchenkov).

c. Part and parcel of this new program was the “Disappearing Positive Methodology” deployed by the Moscow Laboratory. Samples were provided by the athletes and sent to the Moscow Laboratory for testing and analysis. The Moscow Laboratory conducted an ITP. For certain ‘protected’ athletes, if the ITP indicated the presence

of prohibited substance(s), the Moscow Laboratory would falsely report the sample as negative in ADAMS.

d. The Moscow Laboratory monitored the athletes’ PED levels through the use of ‘washout testing’. This was “critical to (i) minimise the likelihood of future in-competition positive results and (ii) continue the doping regime of various Russian athletes up until the London Games”.

e. For this ‘washout testing’ the athletes delivered urine samples to the Centre of Sports Preparation of National Teams of Russia (“CSP”) which, in turn, delivered them to the Moscow Laboratory. The samples were delivered to the laboratory outside normal working hours, generally on either Friday mornings or evenings. The sample bottles bore a note of the athlete’s name and collection date. The Moscow Laboratory conducted an initial analysis of the samples and the results were recorded in the “Moscow Washout Schedules”.

f. The Moscow Washout Schedules were used to help organise pre-testing before events. When it was expected that an athlete would not test positive in view of the results of an unofficial sample, that sample was noted as a “parallel sample” in the Moscow Washout Schedule, which meant that the athlete was sent to RUSADA for an official out-of-competition sample.

D. The Evidence of Use by the Athlete

110. Nevertheless, the Panel accepts the submission on the part of the Athlete that these general matters do not, in and of themselves, amount to proof of the particular ADRV allegations made against the Athlete in these proceedings; i.e., that the Athlete used the particular prohibited substances on the dates in question. It is necessary therefore to assess the evidence relating the Samples.

a) The RUSADA Doping Control Forms

111. The starting point is the RUSADA doping control forms. It is common ground that these show that Sample No.1 was collected out-of-competition from the Athlete on 5 June 2014 in Moscow and that Sample No.2 was collected from the Athlete on 19 June 2014, also out-ofcompetition.

b) The 2015 LIMS

112. The 2015 LIMS was provided to WADA by an unnamed whistle-blower. WADA submitted, and the Panel accepts, that upon forensic examination, the 2015 LIMS is an accurate, authentic, and contemporaneous account of the original data and its contents can be relied upon as accurate and valid.

113. The 2015 LIMS contains the following information:

a. For Sample No.1:

i. The sample was received into the Moscow Laboratory on 6 June 2014 and assigned an internal code of 6812.

ii. Between 9 and 11 June 2014, the Moscow Laboratory performed a number of initial testing procedures on the sample. The following information was entered into the LIMS on 10 June 2014:

1. ID: 1533-1540

2. Internal code: 6812

3. External code: 2916097

4. Substance: trenbolone; metenolone; oxandrolone

5. Metabolite: [various]

6. Concentration: trenbolone: 27; metenolone: 1.2, 4.4, 8.8; oxandrolone: 5.7, 36.3, 4, 5.5

7. User: Grigory Dudko

8. Do: 0

b. For Sample No.2:

1. The sample was received into the Moscow Laboratory on 20 June 2014 and assigned an internal code of 7630.

2. From 20 June to 4 July 2014, the Moscow Laboratory performed a number of initial testing procedures on the sample. The following information was entered into the LIMS:

3. ID: 1770-1778

4. Internal code: 7630

5. External code: 2918643

6. Substance: trenbolone; metenolone; oxandrolone; salbutamol

7. Metabolite: various

8. Concentration: trenbolone: 65, metenolone: 0.3, 3.6, 13.8, oxandrolone: 3.5, 8.4, 1.2 and 1.6; salbutamol 224.5

9. User: Grigory Dudko

10. Do: 0

114. As noted above, the 2015 LIMS is an authentic, contemporaneous document which provides and authentic, contemporaneous account of the analysis of the Samples in this case. On the face of it, therefore, the 2015 LIMS provides evidence of use on the part of the Athlete of three prohibited substances, trenbolone, metenolone and oxandrolone, as per the specific particulars set forth therein.

c) The Raw Data and the PDFs

115. WADA also relied on the Moscow Laboratory’s raw data and analytical PDFs in respect of the Samples. For the sake of good order, it is noted that the unchallenged evidence is that the Moscow Laboratory maintained raw data files in respect of each sample assessed by it and prepared analytical PDFs (‘portable document format’) for each sample which PDFs were stored on the Moscow Laboratory server and the name and location were recorded in LIMS.

116. It seems to be the position, however, that only the PDF documents were reviewed by Prof. Ayotte in that there is no mention in her report of her review of the raw data, despite the reference in the opening paragraph to her being asked for her expert opinion “in relation to the data retrieved from the Moscow LIMS and server (pdf and raw data)”.

117. Accordingly, the evidence shows that Prof. Ayotte reviewed the 2015 LIMS and the PDFs in relation to both of the Samples and in her expert opinion these materials show the presence of prohibited substances. In Prof. Ayotte’s expert (and unchallenged) view, the PDF files reviewed by her “support the data recorded in the LIMS and evidence administration of anabolic steroids trenbolone, metenolone, and oxandrolone”. Prof. Ayotte’s expert opinion is set out above but bears repeating here.

118. For Sample No.1:

a. The metabolites of the androgenic steroids trenbolone, metenolone, and oxandrolone were recorded in LIMS “in relatively high levels ranging from 1.2 to 36.3 ng/mL”.

b. These results were exported to a PDF file, which file confirmed the presence of these three substances.

c. The results were “clear” and “abundant”.

d. Given the results, there was no technical reason for not conducting confirmation procedures “that undoubtedly would have confirmed the presence” of the substances.

119. For Sample No.2:

a. The same three anabolic steroids (the metabolites of trenbolone, metenolone, and oxandrolone were listed in LIMS “in levels that are still high”.

b. The PDF file created in respect of this sample by the Moscow Laboratory confirmed the presence of these three substances and the signals were “clear” and “abundant”.

c. The “higher levels of epitrenbolone and the presence of … oxandrolone suggests repeated administration after the collection of the first sample”.

120. There was no serious challenge to the expertise of Prof. Ayotte or to her expert evidence in relation to the material, and certainly no contrary expert view was put before the Panel. In the circumstances, the Panel readily accepts this evidence.

d) The Athlete’s Evidence

121. The Panel must weigh this evidence against the evidence adduced by or on behalf of the Athlete. The difficulty for the Athlete in this case is that he did not provide a witness statement, did not give evidence before the Panel, and did not address the Panel in any way. There is, therefore, no counterweight evidence.

e) The ICF’s Evidence

122. The ICF does not adduce any evidence in relation to the conduct of the Athlete. The ICF’s evidence relates instead to its submission that the analyses here did not conform with the ISL and WADA’s own Technical Document TD2009LCOC and are not available to be used in support of an alleged ‘use’ violation. For the reasons expressed above, that argument is misconceived but, in any event, there is no evidence from the ICF to be weighed against the evidence of use as described in some detail above.

f) Conclusion on the Evidence

123. In all, having carefully considered all of the evidence adduced by the Parties, the Panel concludes as follows:

a. There was a systemic cover-up and manipulation of the doping control process within Russia in the manner described by Prof. McLaren in the McLaren Reports, commonly referred to as the Russian doping scheme.

b. The Moscow Laboratory performed initial testing procedures (“ITP”) on the Samples, the results of which showed the (presumptive) presence of the anabolic steroids trenbolone, metenolone and oxandrolone.

c. Each of these substances is a prohibited substance.

d. In furtherance of the Russian doping scheme, and in order to protect the Athlete from the consequences of positive test results, the Moscow Laboratory did not go on to conduct the ‘confirmation procedure’ to confirm the presence and/or concentration and/or origin of these substances but, instead, falsely recorded the analytical results of the Samples in the ADAMS as negative.

124. In relation therefore to the ADRV allegations in this matter, the Panel concludes that, upon taking the evidence as a whole and assessing its cumulative weight, the Panel is comfortably satisfied that, on or about 5 June 2014 and on or about 19 June 2014, the Athlete used prohibited substances (namely, trenbolone, metenolone and oxandrolone) in violation of Article 2.2(b) of the ICF 2009 ADR.

125. It follows therefore that the Panel takes the view that the decision taken by the ICF not to pursue the matter was wrong.

XI. SANCTIONS

126. In its prayer for relief, the “principal” relief sought by WADA were orders on the part of the Panel (a) finding the Athlete liable for the ADRV and (b) sanctioning the Athlete accordingly pursuant to the applicable provisions of the ICF 2009 ADR. In the alternative, WADA sought an order sending the matter back to the ICF for its further consideration. On balance, the Panel takes the view that, for the sake of expediency, the preferred course is for the Panel to go on to consider the question of sanctions.

127. The Panel has the benefit of submissions in this respect from WADA but neither the ICF nor the Athlete made submissions in relation to sanctions. The ICF does, however, say that it “will obviously accept and enforce the CAS award, if the Panel is to reach another conclusion” and, by its prayer for relief “defers to justice with regard to the appeal filed by [WADA]”.

128. Article 10 of the ICF 2009 ADR provides that the period of ineligibility for an ADRV is two years unless the conditions set forth in Articles 10.4 and 10.5 for elimination or reduction or those set forth in Article 10.6 for aggravation are met.

129. Nothing was said on behalf of the Athlete as to the conditions set forth in Articles 10.4 and 10.5 for elimination or reduction of the period of two years, so there is no question that the two-year period should be eliminated or reduced.

130. It was submitted by WADA that there are aggravating circumstances here such that the period of sanction should be increased from two years. It is said that the Athlete “was part of the most sophisticated doping scheme in the history of sport” and that he was “strongly protected”, as a consequence of which a number of positive results were never reported as such. All this warrants, so it is submitted, an aggravated sanction of up to four years (commencing from the date of the award).

131. The question that arises therefore is whether there are any “aggravating circumstances” that require that period to be increased pursuant to Article 10.6 of the ICF 2009 ADR.

132. Article 10.6 of the ICF 2009 ADR provides in relevant part as follows:

“10.6 Aggravating Circumstances Which May Increase the Period of Ineligibility

If the ICF establishes in an individual case involving an anti-doping rule violation other than violations under Article 2.7 (Trafficking) and 2.8 (Administration) that aggravating circumstances are present which justify the imposition of a period of Ineligibility greater than the standard sanction, then the period of Ineligibility otherwise applicable shall be increased up to a maximum of four years unless the Athlete or other Person can prove to the comfortable satisfaction of the hearing panel that he did not knowingly violate the anti-doping rule.

An Athlete or other Person can avoid the application of this Article by admitting the anti-doping rule violation as asserted promptly after being confronted with the anti-doping rule violation by the ICF.

[Comment to Article 10.6: Examples of aggravating circumstances which may justify the imposition of a period of Ineligibility greater than the standard sanction are: the Athlete or other Person committed the anti-doping rule violation as part of a doping plan or scheme, either individually or involving a conspiracy or common enterprise to commit anti-doping rule violations; the Athlete or other Person used or possessed multiple Prohibited Substances or Prohibited Methods or used or possessed a Prohibited Substance or Prohibited Method on multiple occasions; a normal individual would be likely to enjoy the performance-enhancing effects of the anti-doping rule violation(s) beyond the otherwise applicable period of Ineligibility; the Athlete or Person engaged in deceptive or obstructing conduct to avoid the detection or adjudication of an anti-doping rule violation.

For the avoidance of doubt, the examples of aggravating circumstances described in this Comment to Article 10.6 are not exclusive and other aggravating factors may also justify the imposition of a longer period of Ineligibility. Violations under Article 2.7 (Trafficking or Attempted Trafficking) and 2.8 (Administration or Attempted Administration) are not included in the application of Article 10.6 because the sanctions for these violations (from four years to lifetime Ineligibility) already build in sufficient discretion to allow consideration of any aggravating circumstance]”.

133. A majority of the Panel takes the view that there are aggravating circumstances here. Over and above the ADRVs themselves, the Athlete participated in the Sample Swapping Methodology. By doing so, he participated in a “doping plan or scheme … to commit anti-doping rule violations” and also engaged in “deceptive or obstructing conduct to avoid the detection” of an anti-doping rule violation. In these circumstances, the Panel by a majority determines that a period of ineligibility of four years is a proportionate sanction.

134. Accordingly, the Panel must consider (a) the date on which the period of ineligibility should commence and (b) the disqualification of the Athlete’s results in competition after the commission of the ADVR.

135. The applicable rule for the former is Article 10.9 of the ICF 2009 ADR, which provides (in relevant part) as follows:

“Commencement of Period of Ineligibility

10. Except as provided below, the period of Ineligibility shall start on the date of the hearing decision providing for Ineligibility or, if the hearing is waived, on the date the Ineligibility is accepted or otherwise imposed.

10.9.1 Delays Not Attributable to the Athlete or other Person

Where there have been substantial delays in the hearing process or other aspects of Doping Control not attributable to the Athlete or other Person, the ICF or Anti-Doping Organization imposing the sanction may start the period of Ineligibility at an earlier date commencing as early as the date of Sample collection or the date on which another anti-doping rule violation last occurred. …”.

136. There is no suggestion on behalf of the Athlete that there has been a substantial delay in the hearing process so that Article 10.9.1 of the ICF 2009 ADR can be set to one side. In the result, the period of ineligibility shall run from the date of the Award in this matter.

137. As to the period of disqualification, the salient terms of Article 10.8 of the ICF 2009 ADR are as follows:

“Disqualification of Results in Competitions Subsequent to Sample Collection or Commission of an Anti-Doping Rule Violation

8. In addition to the automatic Disqualification of the results in the Competition which produced the positive sample under Article 9 (Automatic Disqualification of Individual Results) all other competitive results obtained from the date the positive Sample was collected (whether In-Competition or Out-of-Competition) or other anti-doping rule violation occurred through to 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 medals, points and prizes. …”.

138. In this case there was no in-competition testing and so no automatic disqualification under Article 9 of the ICF 2009 ADR applies, and there was no provisional suspension. That being so, the rule provides that all competitive results achieved by the Athlete from the date that a positive sample was collected or other ADRV was committed through to the start of the period of ineligibility is to be disqualified with all of the resulting consequences as there set forth – unless fairness requires otherwise.

139. The rule thus provides that the Panel is to take into account whether the strict application of the article is fair in all the circumstances. By doing so, the rule gives expression to established CAS jurisprudence that it is subject to a principle of fairness and that the Panel has a discretion to modify this period of time should fairness so dictate: see, e.g., CAS 2016/O/4881, CAS/

140. In this case, a strict application of the rule would mean disqualification of the Athlete’s results (etc) from 5 June 2014 (the date of Sample No.1) through to the date of this Award, a period approaching eight years.

141. A question arises as to whether such a lengthy period is disproportionate and unfair and out of kilter with sanctions imposed in similar cases. On this issue the Panel agrees with the approach taken in CAS 2020/O/6759 as to the applicable general principles (albeit there dealing with an implied fairness requirement). As noted there:

“89. Therefore, the general rule is that, in addition to the automatic disqualification of the results in the competition where the Adverse Analytical Finding has been produced, all the Athlete's competitive results obtained from the date of the commission of the ADRV through the start of any provisional suspension or ineligibility period shall be disqualified. In this regard, the Sole Arbitrator notes that the retroactive disqualification of the competitive results of an athlete that has committed an ADRV is fair and necessary to restore the integrity of all the sporting competitions in which he or she competed, rectifying the record books in the interest of sport. Deciding otherwise would be tantamount to reward the deceiver and would not be fair at all vis-à-vis the rest of the athletes that did not use Prohibited Substances.

90. Notwithstanding this, it is also important not to forget that the primary reason behind this measure (i.e. the disqualification of the sporting results of an athlete that cheated) is not to sanction him or her, but to ensure fair play and equal opportunities for all athletes, annulling those results achieved by those who acted or is reasonable to believe that have acted dishonestly vis-à-vis their competitors, being involved in any kind of ADRV, which is one of the most despicable breaches of the fundamental principles of sport. But, at the same time, it should be taken into account that, in certain exceptional circumstances, the strict application of the disqualification rule can produce an unjust result. In particular, this may be the case when the potential disqualification period covers a very long term, which is normally the case when the facts leading to the ADRV took place long before the adjudicating proceedings started which usually occurs when they are opened as a result of the re-testing of a sample or of the uncover of a sophisticated doping scheme. In addition, in this type of cases it may be difficult to prove that the athlete at stake used prohibited substances or methods during such a long period of time”.

142. Bearing that approach in mind, the Panel takes the view that, in this case, there are exceptional circumstances which militate against a strict application of the rule: (a) the events in question took place in 2014, long before these arbitral proceedings, (b) the ADRV relates solely to those events, and (c) there is no suggestion, let alone evidence, that there has been any use of prohibited substances on the part of the Athlete on any other later occasion.

143. These circumstances do, in the Panel’s view, set this matter apart from the ordinary and require, in the interests of fairness, a reduction of the period of disqualification. In this regard, the Panel pays heed to other CAS matters of a similar nature such as CAS 2019/A/6161, CAS 2019/O/6156 and takes the view that, in line with the period imposed in those cases, all competitive results from the date of the Sample No.1 (5 June 2014) through to and including 31 December 2016 should be disqualified (with all attendant consequences).

XII. CONCLUSION

144. In view of all the above considerations, the Panel holds and determines that the appeal brought by WADA should be allowed. In particular:

a. The Panel is comfortably satisfied that the Athlete used prohibited substances in violation of Article 2.2(b) of the ICF 2009 ADR.

b. The Athlete is sanctioned with a period of ineligibility of four (4) years starting from the date of this Award.

c. All of the Athlete’s competitive results from 5 June 2014 through to and including 31 December 2016 shall be disqualified, with all of the resulting consequences including the forfeiture of any titles, awards, medals, points and prize and appearance money.