CAS 2024/A/10669

Uros Nikolic v. World Aquatics

English25 min

ARBITRAL AWARD delivered by the

COURT OF ARBITRATION FOR SPORT sitting in the following composition:

Sole Arbitrator: Mr. Ulrich Haas, Professor in Zurich, Switzerland, and Attorney-at-law in Hamburg, Germany

in the arbitration between

Uros Nikolic, Serbia

Represented by Mr. Matthew D. Kaiser and Mr. Paul J. Greene, Attorneys-at-Law with Global Sport Advocates LLC, Portland, United States of America

Appellant and

World Aquatics, Switzerland

Represented by Ms. Dominique Leroux-Lacroix, Head of Legal Affairs with ITA, Ms. Ayesha Talpade, Senior Legal Counsel with ITA and Mr. Justin Lessard, Senior Manager with Aquatics Integrity Unit, Lausanne, Switzerland

Respondent

I. THE PARTIES

1. Mr. Uros Nikolic (the “Appellant” or the “Athlete”) is a swimmer of Serbian nationality.

2. World Aquatics (the “Respondent” or “WA”) is the international federation recognised by the International Olympic Committee for administering competitions in water sports. It is a signatory to the World Anti-Doping Code (the “WADC”) of the World Anti-Doping Agency (“WADA”). In accordance with its obligations as a signatory to the WADC, WA has issued the WA Doping Control Rules (“WA ADR”).

3. The Appellant and Respondent are jointly referred to as the “Parties”.

II. FACTUAL BACKGROUND

4. The present dispute is primarily based on the decision of the Respondent to reject the Appellant’s retroactive Therapeutic Use Exemption (TUE) application on 23 May 2024 (the “Appealed Decision”). WADA informed the Athlete that it would not review the Appealed Decision on 5 June 2024 (the “WADA Decision”).

5. Below is a summary of the relevant facts and allegations based on the Parties’ written submissions and the case file. References to additional facts and allegations found in the Parties’ written and oral submissions, pleadings, and evidence will be made, where relevant, in connection with the legal analysis that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments, and evidence submitted by the Parties in the present proceedings, he shall refer in this Award only to those submissions and evidence he deems necessary to explain his reasoning.

i) Circumstances on Consumption and Doping Control

6. On 7 February 2024, the Appellant had an allergic reaction which caused his entire face to be swollen. Furthermore, the Appellant experienced itchy skin, nasal congestion and a running nose. The Appellant then made an appointment to see Dr. Nataša Dorić (“Dr. Dorić”) at 08:20 am at her private medical practice, “Harmony Life”.

7. On the same date, Dr. Dorić diagnosed the Appellant with “acute urticaria and angrioedema” and prescribed three different medications, including Rudrić drops, which is a nasal spray with the dual purpose of a vasoconstrictor and antibiotics. The prescription of Dr. Dorić was not legible to the Appellant before he brought the said prescription to the pharmacy, at which he was given an unlabelled nasal spray bottle for which he was told it was Rudrić drops. Afterwards, he went to his mother’s home to take the medication, eat and rest. The Appellant used the said Rudrić drops repeatedly throughout the day to help him breathe.

8. On 8 February 2024, the Appellant travelled to Doha, Qatar, for the 2024 World Aquatics Championships (the “Championships”), and continued to use the Rudrić drops whenever he felt congested.

9. On 11 February 2024, the Appellant competed in the qualifying race for the 4x100m relay which started at 11:45 am. He continued to use the Rudrić drops between the qualifying race and the final race, the latter was scheduled for 8:30 pm on the same day. The Appellant’s team finished 7th in the final, and the Appellant was selected for doping control (the “Doping Control”), and sample number 7222869 was collected from him (the “Sample”).

10. On 17 February 2024, the WADA-accredited laboratory in Doha, Qatar, reported an Adverse Analytical Finding (“AAF”) for Ephedrine for his Sample in a roughly estimated concentration of 52.5μg/mL. Ephedrine is listed in the WADA’s 2024 Prohibited List under Section S6 “Stimulants”. The substance is a specified substance prohibited In-Competition.

11. On 22 February 2024, just 11 days after competing in the Championships in Doha, Qatar, the Appellant received a letter from the International Testing Agency (“ITA”), on behalf of the Respondent, stating that he had tested positive for ephedrine on 11 February 2024 after competing in the finals of the Men’s 4x100m freestyle (the “Notification”).

ii) Application for Retroactive Therapeutic Use Exemption

12. On 14 March 2024, the Appellant responded to the Notification indicating that he wished to apply for a retroactive Therapeutic Use Exemption (“R-TUE”).

13. On 19 March 2024, the ITA provided the Appellant with information as to the R-TUE procedure.

14. On 13 April 2024, the Appellant filed his R-TUE application with WA under Article 4.1(b) of WADA’s International Standard for Therapeutic Use Exemptions (“ISTUE”) on grounds that there was insufficient time or opportunity for the Appellant to apply for a TUE or for any TUE Committee to consider his application between 7 to 11 February 2024, i.e. the four days from the prescription of the Rudrić drops to his sample collection (the “Application”).

15. On 23 May 2024, WA informed the Appellant that the Application was rejected, i.e. the Appealed Decision, and held that while the prescribed treatment met the conditions of Article 4.2 of the ISTUE, the circumstances of the Appellant did not meet the conditions of Article 4.1(b) of the ISTUE:

“The present notice is to inform you that after review of the entire case file and documents provided, the International Testing Agency (‘ITA’) has decided to reject your application dated 13 April 2024 for a retroactive Therapeutic Use Exemption (‘TUE’) made under Article 4.1(b) of the WADA International Standard for Therapeutic Use Exemptions (‘ISTUE’).”

16. On 28 May 2024, the Appellant requested for WADA to review the WA Decision.

17. On 5 June 2024, WADA sent the WADA Decision to the Athlete and informed him that it had decided not to review the WA Decision.

III. THE PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

18. On 14 June 2024, the Appellant filed the Statement of Appeal and the Appeal Brief with the Court of Arbitration for Sport (“CAS”) against the Respondent with respect to the Appealed Decision in accordance with Articles R47, R48 and R51 of the CAS Code of Sports-related Arbitration (2023 edition) (the “CAS Code”). In the Statement of Appeal, the Appellant, inter alia, requested for an expedited procedure and for the appointment of a sole arbitrator.

19. On the same date, the CAS Court Office acknowledged receipt of the Appellant’s Statement of Appeal, proposed the following expedited procedural calendar and invited the Parties to comment on the same by 17 June 2024 at 12:00 CEST:

➢ Parties agree on the appointment of a sole arbitrator in accordance with Article 54 of the CAS Code; ➢ Filing of the Answer by the Respondent by 18 June 2024; ➢ No hearing will be held in this matter; and ➢ Issuance of the operative part of the Arbitral Award by 20 June 2024, if possible.

20. On 14 and 17 June 2024 respectively, the Respondent and Appellant agreed to the proposed expedited procedural calendar.

21. On 18 June 2024, the CAS Court Office informed the Parties that the proposed expedited procedural calendar was implemented. In addition, the CAS Court Office informed the Parties that pursuant to Article R54 of the CAS Code and on behalf of the Deputy President of the CAS Appeals Arbitration Division, the Panel to decide the present dispute was constituted as follows:

Sole Arbitrator: Mr. Ulrich Haas, Professor in Zurich, Switzerland, and Attorney-at-Law in Hamburg, Germany

22. On the same date, the Respondent filed its Answer pursuant to Article R55 of the CAS Code.

23. Still on the same date, the CAS Court Office acknowledged receipt of the Respondent’s Answer and enclosed an Order of Procedure (“OoP”) for the Parties’ signature on or before 19 June 2024. The Parties returned their signed OoP on the same day.

IV. SUBMISSIONS OF THE PARTIES

24. This section of the award does not contain an exhaustive list of the Parties’ contentions, its aim being to provide a summary of the substance of the Parties’ main arguments. In considering and deciding upon the Parties’ claims in this Award, the Sole Arbitrator has accounted for and carefully considered all the submissions made and evidence adduced by the Parties, including allegations and arguments not mentioned in this section of the Award or in the discussion of the claims below.

A. The Appellant’s Position

25. In its Appeal Brief dated 13 June 2024, the Appellant requested as follows:

“(1) Find Mr. Nikolić has proven, by a balance of probability, that he meets the criteria under Article 4.1(b) of the ISTUE; (2) Find he should receive a retroactive TUE under Article 4.1(b) of the ISTUE; and (3) Order any other relief for Mr. Nikolić that this Panel deems to be just and equitable.”

26. The Appellant’s submissions, in essence, may be summarised as follows:

i) Jurisdiction

27. The Appellant maintains that the Sole Arbitrator has jurisdiction to hear the present appeal on the following grounds:

➢ The WADA Decision provides that the Appellant has the right to appeal the Appealed Decision to the CAS.

➢ According to Articles 4.4.7 and 13.4 of the WADC and WA ADR, the Appellant has the right to appeal the Appealed Decision to the CAS.

The comment to Article 4.4.7.2 of the WA ADR makes clear that the deadline to appeal a decision on a TUE does not begin to run until the date that WADA communicates its decision i.e. on 5 June 2024.

ii) Merits

28. The Appellant submits that the Application for R-TUE should be granted as he meets the criteria in Article 4.1(b) of the ISTUE, as follows:

➢ The Appellant’s ephedrine treatment meets the criteria of Article 4.2 of the ISTUE, which is reaffirmed by the Respondent in the Appealed Decision, as the Appellant was prescribed necessary medical treatment and did not gain any performance-enhancing benefit from its use.

➢ The circumstances around the use of the Rudrić drops meet the requirements for Article 4.1(b) of the ISTUE:

o The Appellant had insufficient time and opportunity to apply for a TUE as he would have only known whether or not he needed a TUE on the morning of the competition (i.e. on 11 February 2024) and had no premediated plan to use the Rudrić drops on the day of the competition. The Appellant did not have any medical documents with him or immediate access to Dr. Dorić, or have time to get them translated into English. He was only focused on helping his team secure a spot at the Olympic Games.

o The Appellant would not have had sufficient time to apply for a TUE on 7 February 2024 as he spent the next four days recovering and travelling to a foreign country with no access to his medical records or to a translator, and had to focus on competition.

o The Respondent was wrong to argue that the Appellant had time and opportunity to file a TUE.

o There were exceptional circumstances which prevented the Appellant from retroactively applying for a TUE, such as the illegible handwriting on the prescription, the unlabelled bottle containing the Rudrić drops, and the fact that the Appellant only had the prescription for a few minutes before handing it over to the pharmacist.

o Even if the Appellant had submitted a TUE application prior to sample collection, the Respondent’s TUE Committee would not have had sufficient time or opportunity to consider and decide on the TUE application ahead of the Appellant’s first race at 11:45 am on 11 February 2024. TUE Committees are given 21 days to make a decision.

B. The Respondent’s Position

29. In its Answer, the Respondent requested the Sole Arbitrator to rule as follows:

“1. The World Aquatics’ Answer is admissible.

2. The Appeal is dismissed and the Decision is upheld.

3. All costs of the proceedings to be borne by the Athlete.”

30. The Respondent’s submissions, in essence, may be summarised as follows:

i) Jurisdiction

31. The Respondent submits that it does not challenge the jurisdiction of the CAS for the present Appeal or its admissibility, in the interest of brevity.

ii) Merits

32. It is the Respondent’s position that the Appellant has failed to meet the burden of proof, on a balance of probability standard, that the required conditions of Article 4.1(b) of the ISTUE were met, as follows:

➢ It is not relevant that Article 4.2 of the ISTUE has been satisfied, as just because the medical diagnosis was appropriate and the conditions to grant a TUE prospectively were met, it has no bearing on the assessment of the “retroactivity” rule of the R-TUE.

➢ The Appellant failed to complete basic checks on medication, despite having the Rudrić drops in his possession for four days, and was not aware of the composition of the unlabelled nasal spray. He did not apply for a prospective TUE not because he had insufficient time or opportunity to do so but because he completely disregarded his obligation as an International-Level Athlete to make inquiries about prescribed medication. If the doping control had not occurred on 11 February 2024, the Appellant would have not applied for a TUE.

➢ There are no exceptional circumstances, and the Appellant failed to ask Dr. Dorić or the pharmacist on the contents of the prescribed medication, which shows negligence. The Appellant’s negligent conduct cannot amount to “exceptional circumstances”, allowing him to obtain a R-TUE to shield him from the consequences of his carelessness.

➢ The Appellant had sufficient time to get a doctor’s appointment and purchase medication in person, as well as to rest at his mother’s place and pack for his trip to Qatar. The Appellant could have submitted a TUE application or instructed someone to apply for one on his behalf prior to 11 February 2024.

➢ Pursuant to Article 4.4.2.2 of the WA ADR, the Appellant had the obligation to apply for the issuance of a TUE in advance for the use of substances prohibited In-Competition at least 30 days before his next competition. The Appellant was using the Rudrić drops on a daily basis and while he might have contemplated stopping its use prior to 11 February 2024, it was not exclusively to abide to his anti-doping obligations as he was not aware that he was using ephedrine. The Respondent’s TUE Committee could grant a R-TUE if it did not have time to complete its review of the Appellant’s TUE application.

➢ The Appellant did not have insufficient opportunity to file a TUE application, considering that he could have sent an email to the Respondent to commence the TUE application, or ask for assistance from his mother or girlfriend, but the fact still stands that the Appellant did not know that the Rudrić drops contained a prohibited substance.

➢ The outcome of the present appeal on R-TUE and the impact of the Appellant’s participation at the Olympic Games is immaterial as to whether a R-TUE should be granted. The circumstances raised by the Appellant are simply not listed in the ISTUE.

V. JURISDICTION

33. According to Article R47 para. 1 of the CAS Code, the Sole Arbitrator has jurisdiction to hear:

“[a]n 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”.

34. Article 4.4.7.2 of the WA ADR provides as follows:

“Any TUE decision by World Aquatics that is not reviewed by WADA, or that is reviewed by WADA but is not reversed upon review, may be appealed by the Athlete and/or the Athlete’s National Anti- Doping Organisation exclusively to the CAS appeals division, in accordance with Art. 13.”

35. Given that the Respondent does not object to the jurisdiction of the CAS and taking into account that the Parties signed the OoP, the Sole Arbitrator finds that he has jurisdiction to hear the present dispute.

VI. ADMISSIBILITY

36. Article R49 of the CAS Code provides, in its relevant parts, as follows:

“In the absence of a time limit set in the statutes or regulations of the federations, associations or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty- one days from the receipt of a decision appealed against.”

37. Comment to Article 4.4.7.2 of the WA ADR provides that “the deadline to appeal the TUE decision does not begin to run until the date that WADA communicates its decision”.

38. The Statement of Appeal was timely filed and complied with the requirements set by Article R48 of the CAS Code. No further recourse against the WA Decision and WADA Decision is available within the legal framework of the Respondent. There is also no objection from the Respondent on the admissibility of the present appeal. Accordingly, the appeal filed by the Appellant is admissible.

VII. THE APPLICABLE LAW

39. Article R58 of the CAS Code stipulates that,

“[t]he 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.”

40. It is undisputed between the Parties that the WA ADR and ISTUE should apply in the present case. The Sole Arbitrator agrees and finds that the WA ADR and ISTUE will apply primarily on the matter at hand.

VIII. SCOPE OF REVIEW

41. According to Article R57 para. 1 of the CAS Code, the Sole Arbitrator has full power to review the facts and the law of the case. Furthermore, the Sole Arbitrator may issue a new decision which replaces the decision challenged or may annul the decision and refer the case back to the previous instance.

42. This scope of review is also confirmed by Article 13.1.1 of the WA ADR which states 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. 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.”

IX. MERITS

43. Given that it is undisputed between the Parties that Article 4.2 of the ISTUE is fulfilled, the main issue which the Sole Arbitrator has to determine is whether the Appellant fulfilled Article 4.1(b) of the ISTUE, and should thereby receive a R-TUE under the said Article, which stipulates the following:

“4.1 A retroactive TUE provides an Athlete the opportunity to apply for a TUE for a Prohibited Substance or Prohibited Method after Using or Possessing the substance or method in question.

An Athlete may apply retroactively for a TUE (but must still meet the conditions in Article 4.2) if any one of the following exceptions applies:

[…]

b) There was insufficient time, opportunity or other exceptional circumstances that prevented the Athlete from submitting (or the TUEC to consider) an application for the TUE prior to Sample collection;

[…]”

i) Position of Parties

44. The Appellant maintains that Article 4.1(b) of the ISTUE is fulfilled on the following grounds:

➢ The Appellant had insufficient time and opportunity to apply for a TUE prior to sample collection as he would have only known whether or not he needed a TUE on the morning of the competition (i.e. on 11 February 2024), and had no premediated plan to use the Rudrić drops on the day of the competition. The Appellant did not have any medical documents with him or immediate access to Dr. Dorić, or have time to get them translated into English. He was only focused on helping his team secure a spot at the Olympic Games.

➢ The Appellant would not have had sufficient time to apply for a TUE on 7 February 2024 as he spent the next four days recovering and travelling to a foreign country with no access to his medical records or a translator. He also had to focus on competition.

➢ The Respondent was wrong to argue that the Appellant had time and opportunity to file a TUE prior to sample collection.

➢ There were exceptional circumstances which prevented the Appellant from retroactively applying for a TUE, such as the illegible handwriting on the prescription, the unlabelled bottle containing the Rudrić drops, and the fact that the Appellant only had the prescription for a few minutes before handing it over to the pharmacist.

➢ Even if the Appellant had submitted a TUE application, the Respondent’s TUE Committee would not have had sufficient time or opportunity to consider and decide on the TUE ahead of the Appellant’s first race at 11:45 am on 11 February 2024. TUE Committees are given 21 days to make a decision.

45. In turn, the Respondent submits that Article 4.1(b) of the ISTUE is not fulfilled on the following grounds:

➢ There are no exceptional circumstances. The Appellant failed to ask Dr. Dorić or the pharmacist on the contents of the prescribed medication which shows his negligence. The Appellant’s negligent conduct cannot amount to “exceptional circumstances”, allowing him to obtain a R-TUE to shield him from the consequences of his carelessness.

➢ The Appellant had sufficient time to get a doctor’s appointment and purchase medication in person, as well as to rest at his mother’s place and pack for his trip. The Appellant could have submitted a TUE application or instructed someone to apply for one on his behalf prior to 11 February 2024.

➢ Pursuant to Article 4.4.2.2 of the WA ADR, the Appellant had the obligation to apply for the issuance of a TUE in advance for the use of substances prohibited In-Competition at least 30 days before their next competition. The Appellant was using the Rudrić drops on a daily basis and while he might have contemplated stopping its use prior to 11 February 2024, it was not exclusively to abide to his anti-doping obligations as he was not aware that he was using ephedrine. The Respondent’s TUE Committee could grant a R-TUE if it did not have time to complete its review of the Appellant’s TUE application.

ii) Findings of the Sole Arbitrator

46. At the outset, the Sole Arbitrator recalls that it is not disputed between the Parties that the criteria under Article 4.2 of the ISTUE are fulfilled, which by extension means that had the Appellant applied for a prospective TUE under Article 4.2 of the ISTUE, it is likely that the Appellant would have been granted the TUE by the Respondent’s TUE Committee. However, the crux of the issue here is whether the Appellant satisfied any criteria for a TUE to be granted retroactively. Inter alia, a R-TUE can be granted if Article 4.1(b) of the ISTUE is satisfied, viz, that “there was insufficient time, opportunity or other exceptional circumstances that prevented the Athlete from submitting (or the TUEC to consider) an application for the TUE prior to Sample collection”.

47. Fundamentally, the Sole Arbitrator notes the Appellant’s concession that he was completely unaware that the Rudrić drops contained a prohibited substance, which is found in both the Appellant’s submissions and Witness Statement. The Appellant was only made aware that the Rudrić drops contained ephedrine after the Notification, and after the Appellant returned to the pharmacy to ask the pharmacist on whether the Rudrić drops contained ephedrine, which the said pharmacist affirmed. By extension of this fact, it was logically not possible for the Appellant to have considered filing a TUE prior to Sample Collection on 11 February 2024. As such, for the Appellant to be making the application for a R-TUE on 13 April 2024, after he had found out about the contents of the Rudrić drops belatedly, the Appellant is effectively seeking for a TUE to cover his negligence and mistake in failing to apply for a prospective TUE, which he admitted that he would have done if he had known the contents of the Rudrić drops. Notwithstanding the unfortunate physical state that the Appellant was in at material time, the Appellant failed to inquire with Dr. Dorić or the attending pharmacists on the content of his prescribed medication, or at minimum, informed them that he is an International-Level Athlete who is subjected to doping control.

48. In any event, even if the Appellant had known or taken steps to find out that whether the Rudrić drops contained ephedrine, there was a copious amount of time and opportunity available to the Appellant to file a prospective TUE application. The Sole Arbitrator bases this consideration on the following facts:

➢ There were four full days from the time that the Appellant saw Dr. Dorić at 08:20 am on 7 February 2024 to the Appellant’s first race on 11 February 2024 at 11:45 am, noting that there is only a one-hour difference in time between Serbia and Doha, Qatar.

➢ Notwithstanding the fact that the Appellant may have been physically unwell in the first few hours of 7 February 2024, the Appellant was eventually fit enough to travel from his mother’s place to his own place in Serbia, before packing and travelling to the airport and to Doha within the span of 24 hours.

➢ Even if the Appellant was unable to obtain assistance from his mother or girlfriend or write an email to the Respondent to begin a TUE application, the Appellant was on-site at the Championships and could have approached his team officials or officials of the Respondent for assistance.

➢ At Sample Collection on 11 February 2024, the Appellant was again afforded an opportunity to inform the Doping Control Officer (“DCO”) on the medication he was consuming and/or include a TUE application before providing the Sample, but failed to do so.

49. Given the above, while it is acknowledged that the Appellant was in pain when he first saw Dr. Dorić and there was an emergency for the Appellant to consume the prescribed medication, the Appellant did recover sufficiently in order to be able to travel and compete. There was sufficient time and opportunity after the Appellant’s recovery – albeit not a full recovery – for the Appellant to realise that there might be a doping risk related to the medication he was consuming practically on a daily basis, do the necessary due diligence, and apply for a R-TUE before the Championships, if necessary (CAS 2020/A/7536, para. 91).

50. The exceptional circumstances raised by the Appellant, viz, the illegible handwriting on the prescription and the unlabelled bottle containing the Rudrić drops, do not serve to put the Appellant under the purview of Article 4.1(b) of the ISTUE, given that these circumstances ought to have raised concerns on the content of his prescribed medicine and highlight the negligence of the Appellant in his anti-doping obligations as an International-Level Athlete.

51. Accordingly, the Sole Arbitrator finds that, on a balance of probabilities, the Appellant has not fulfilled the conditions set out in Article 4.1(b) of the ISTUE, and dismisses the present appeal, in toto.

X. COSTS

(…).

******

ON THESE GROUNDS

The Court of Arbitration for Sport rules that:

1. The appeal filed by Uros Nikolic on 13 June 2024 against the decision rendered on 23 May 2024 by World Aquatics is dismissed.

2. (…).

3. (…).

4. All other and further motions or prayers for relief are dismissed.

Seat of the arbitration: Lausanne, Switzerland Operative part of the award notified on 21 June 2024 Date: 26 February 2025

THE COURT OF ARBITRATION FOR SPORT

Ulrich Haas Sole Arbitrator