CAS 2015/A/4129 Demir Demirev, Stoyan Enev, Ivaylo Filev, Maya Ivanove, Milka Maneva, Ivan Markov, Dian Minchev, Asen Muradiov, Ferdi Nazif, Nadezha-May Nguen & Vladimir Urumov v. International Weightlifting Federation (IWF)
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January 27, 2017 - CAS 2017_A_5127 BWF vs IWF
December 18, 2017
- Weightlifting
- Doping (stanozolol)
- Condition to grant a stay of the arbitration proceedings
- Burden and standard of proof
- No significant fault or negligence under the 2015 WADAC
Degree of fault
1. Under the applicable Swiss law, the alleged existence of criminal proceedings does not constitute a mandatory ground for staying an arbitration proceedings especially where no issue was raised by the appeal that it was beyond the competence of the CAS panel to determine on the evidence before it.
2. Under the applicable anti-doping rules, in order to benefit from an eliminated or reduced sanction, the burden of proof is placed on the athlete to establish that the violation of the anti-doping rules was not intentional and/or that he/she bears no fault or negligence or no significant fault or negligence. The standard of proof is the balance of probabilities. In this respect, while sabotage theories produced by an athlete - which could entitle an athlete to be absolved from any penalty- may be possible, they are not sufficient in the absence of evidence showing that it is more likely than not that a prohibited substance was introduced as a deliberate act of sabotage. On the other hand, if an athlete establish that the source of the prohibited substance is a contaminated supplement, the athlete will be entitled to benefit from the no significant fault or negligence regime.
3. Under the WADA Code 2015 adopted by the IFs, the standard sanction for a first anti-doping violation is 4 years ineligibility for a first offence. In cases where an athlete can establish no significant fault or negligence and that the detected prohibited substance came from a contaminated product, then the period of ineligibility shall be, at a minimum, a reprimand and no period of ineligibility, and at a maximum, two years of ineligibility, depending on the athlete’s degree of fault. This is substantially more generous to the athlete than the provision under which, in other cases where the athlete can establish no significant fault or negligence, the penalty may be reduced to a minimum of one half of the standard period of ineligibility, that is to say 2 years.
4. The fact for an athlete to comply with the directions of a team doctor in taking a product does not absolve him/her from all liability. Similarly, it is not sufficient for an athlete to declare on a doping control form in the most general and anodyne of terms the type of supplements he/she claimed to be taking. It behoves those who choose to enter on complicated regimes of supplements in an endeavour to maximise their performance to take the greatest care not only in what they take, but in how they declare it. However, the fact that a supplement had been used over a substantial period without any adverse consequences weighs substantially in the favour of an athlete. However, even if an athlete cannot be expected to carry out regular analysis of each new batch, there should be evidence of care being taken by an athlete to ensure the product was and continued to be appropriate.
Mr Demir Demirev, Mr Stoyan Enev, Mr Ivaylo Filev, Ms Maya Ivanove, Ms Milka Maneva, Mr Ivan Markov, Mr Dian Minchev, Mr Asen Muradiov, Mr Ferdi Nazif, Ms Nadezha-May Nguen and Mr Vladimir Urumov are international athletes in the weightlifting discipline affiliated to the Bulgarian Weightlifting Federation.
In March 2015 the International Weightlifting Federation (IWF) has reported multiple anti-doping rule violations against these Bulgarian Athletes after their A and B samples tested positive for the prohibited substance stanozolol. Analysis of the supplement Trybest capsules, administered to the Bulgarian Athletes on every training day, showed the presence of stanozolol.
On 10 June 2015 the International Weightlifting Federation (IWF) decided to impose a 9 month period of ineligibility on the Bulgarian weightlifting Athletes for committing a first violation and a 18 month period of ineligibility on the Athletes who have been sanctioned before.
Hereafter in July 2015 the Athletes appealed the IWF decisions of 10 June 2015 with the Court of Arbitration for Sport (CAS).
The Athletes accepted the test results and requested the Panel for a reduced sanction. They argued that they bear no fault or negligence and that the manufacturing process of Trybest had been sabotaged deliberately by some third party.
The IWF asserted, while it was accepted that on the balance of probabilities the Athletes had established that the reason for the AAFs was that the Trybest capsules contained some stanozolol, the evidence did not establish sabotage in the manufacture. The more likely explanation was that the manufacturer had for commercial reasons decided to add some stanozolol to the product. The Athletes’ submission disclosed no error in the view taken by the IWF Hearing Panel. The evidence produced in support of their allegation of sabotage was no more than speculation.
The Panel agrees that there is no evidence to show that it is more likely than not that the stanozolol was introduced as a deliberate act of sabotage rather than, for example, as a result of a commercial decision to try to enhance Trybest’s properties or as a result of contamination during the manufacturing process (eg by the use of inadequately cleaned machinery after it had been used for the making of capsules containing stanozolol for medicinal purposes).
The view of the Panel is that the Athletes have established on the balance of probabilities that the source of the stanozolol which gave rise to the AAFs were the Trybest capsules which they took in the days before the sample collection, but not that the capsules had been deliberately sabotaged.
The Panel accepts that this is a case in which a substantial reduction form the maximum penalty should be allowed to the Athletes. However it is unable to accept the proposition that the penalty should be reduced to a reprimand.
Therefore the Court of Arbitration for Sport decides on 6 October 2015 that:
1.) The appeal filed on 6 July 2015 by Demir Demirev Stoyan Enev, Ivaylo Filev, Maya Ivanova, Milka Maneva, Ivan Markov, Dian Minchev, Asen Muradov, Ferdi Nazif, Nadezhda-Mey Nguen, and Vladimir Uromov against the decision rendered by the IWF Hearing Panel on 10 June 2015 is dismissed.
2.) The decision rendered by the IWF Hearing Panel on 10 June 2015 is confirmed.
3.) (…)
4.) (…)
5.) All other motions or prayers for relief are dismissed.
