CAS 2017/A/5422 Aleksandr Zubkov v. International Olympic Committee (IOC)
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Bobsleigh
Doping (use of a prohibited substance or method; tampering with doping control; cover-up of and complicity in the commission of an ADRV)
Standard of proof in general
Standard of proof with regard to the alleged doping scheme
Means of proof
Liability of the athlete in case of substitution of the content of his/her sample
Elevated urinary sodium concentrations
Use of a prohibited method
Use of a prohibited substance
Tampering with any part of doping control
Administration of a prohibited method or substance to an athlete
Cover-up of or complicity in the commission of an ADRV
Consequences to the team of the disqualification of a team member’s individual results
Appropriate length of the Olympic ineligibility
Two reports commissioned by WADA, published by Prof Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample.
As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. At the same time the IOC Schmid Commission started their investigations to establish the facts on the basis of documented, independent and impartial evidence.
All the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated. The findings in the IP Reports were considererd in detail and both Commissions conclude that samples or urine collected from Russian Athletes were tampered with in Sochi in a systematic manner and as part of an organized scheme. The Commissions further conclude that it was not possible that the athletes were not fully implicated. They were also the main beneficiaries of the scheme.
The Commissions find that Prof. McLaren’s findings are not only based on the evidence provided by Dr Rodchenkov in his interviews, but on a wealth of other corroborating evidence, including other witnesses, the forensic examination of the sample bottles, the evidence showing abnormal salt results and the additional elements coming from DNA analysis. The corroborating evidence considered by Prof. McLaren included further objective elements, such as e-mails confirming that athletes were protected through different methods.
Aleksandr Zubkov is a Russian Athlete competing in the Men's Bobsleigh Event at the Sochi 2014 Olympic Winter Games.
In December 2016 the IOC Disciplinary Commission has reported multiple anti-doping rule violations against the Athlete for tampering, conspiracy and use of prohibited substances.
The Disciplinary Commission finds - based on the investigations, the evidence and findings - that the participation of the Athlete in the doping scheme is established to its comfortable satisfaction. The Disciplinary Commission concludes that it is more than comfortably satisfied that the Athlete was a participant in, and a beneficiary of, the cover up scheme implemented on the occasion of the Sochi 2014 Olympic Winter Games.
Therefore the IOC Disciplinary Commission decided on 6 December 2017 to declare the Alexandr Zubkov ineligible to be accredited in any capacity for all editions of the Games of the Olympiad and the Olympic Winter Games subsequent to the Sochi Olympic Winter Games. Further the Commission disqualified the Athlete and his Team from the events at the 2014 Sochi Olympic Winter Games including forfeiture of any medal, diploma, medallist pin, points and prizes.
In November 2017 the Athlete Alexandr Zubkov appealed the IOC decision with the Court of Arbitration for Sport (CAS). A total of 42 cases were filed with CAS by Russian athletes against the decisions taken by the IOC Disciplinary Commission in relation to the 2014 Sochi Olympic Winter Games.
Alexandr Zubkov and the other Sochi athletes argued that the IOC Disciplinary Commission fundamentally erred in its application of the relevant legal framework to the facts of the Sochi athletes’ cases. In particular, rather than seeking to determine whether the specific requirements set out in the relevant provisions of the WADC have been made out in individual cases, the Commission took a generic and “broad brush approach” to its assessment of the evidence. It proceeded from a foregone conclusion and applied assumptions and circular inferential reasoning to reach its ultimate conclusion that the Sochi athletes were each guilty of ADRVs.
They contended that there was no evidence that any of the Sochi athletes:
(a) had consumed the alleged Duchess Cocktail, or any other prohibited substance;
(b) had provided urine outside of doping procedures or medical check-ups;
(c) had communicated any information to anyone regarding the doping procedure at the Sochi Games;
(d) had been involved or took part in “washout” tests leading up to the Sochi Games;
(e) had been involved in any alleged tampering of their sample bottles; or
(f) had committed an ADRV.
The IOC contends that the Athlete Alexandr Zubkov was part of a far-reaching conspiracy that encompassed, among other things, an organization of which the Russian State, including elements of its central government and national security service has been a crucial component. The alleged doping scheme was, by its very nature, intended and designed to conceal evidence of wrongdoing to the maximum extent possible. As a result, the more successful the alleged conspiracy was at achieving its objectives, the less direct evidence of wrongdoing is likely to be available to the IOC. The absence of direct evidence, therefore, is not necessarily indicative of innocence, but may equally be indicative that serious wrongdoing has been effectively concealed.
The CAS Panel considers that in the circumstances of this case, individual actions or omissions by the Athlete must be established to its comfortable satisfaction in order to find him guilty of a specific ADRV. The Panel does not consider it possible to conclude that the existence of a general doping and cover-up scheme automatically and inexorably leads to a conclusion that the Athlete committed the ADRVs alleged by the IOC. Instead, the Panel must carefully consider the ingredients of liability under each of the relevant provisions of the WADC that the Athlete is alleged to have contravened. It must then consider whether the totality of the evidence presented before the Panel enables it to conclude, to the requisite standard of comfortable satisfaction, that the Athlete personally committed the specific acts or omissions necessary to constitute an ADRV under each of those separate provisions of the WADC.
The Panel examined whether or not the elements of each of the relevant ADRVs exist in this case:
1.) Use of a Prohibited Substance or Method, Art. 2.2 of the WADC
2.) Tampering, Art. 2.5 of the WADC
3.) Cover-up, Complicity, Art. 2.8 of the WADC
Having thoroughly considered the submissions of the Parties, the written evidence as well as the oral evidence and testimonies provided at the six-day hearing, the Panel finds that the Athlete Alexandr Zubkov committed ADRVs in the form of the use of a prohibited method, i.e. urine substitution, pursuant to Article 2.2 of the WADC in connection with M2.1 of the 2014 WADA Prohibited List, and in the form of use of a prohibited substance under Article 2.2 of the WADC.
In contrast to the IOC DC’s conclusions, the Panel was only able to find to its comfortable satisfaction that the Athlete committed individual ADRVs in the form of the use of a prohibited method and of a prohibited substance under Article 2.2 of the WADC, but no ADRV of tampering under Article 2.5 of the WADC and, in particular, no individual ADRV of covering-up or complicity in violation of Article 2.8 of the WADC. Consequently, the Panel is unable to find a lifetime ineligibility an appropriate sanction.
Therefore The Court of Arbitration for Sport decides on 23 April 2018 that:
1.) The Appeal filed by Aleksandr Zubkov on 1 December 2017 against the Decision of the International Olympic Committee Disciplinary Commission dated 24 November 2017 (and amended by the reasoned decision on 6 December 2017) is partially upheld.
2.) Paragraph I(a) of the Decision rendered by the International Olympic Committee Disciplinary Commission dated 24 November 2017 (and amended by the reasoned decision on 6 December 2017) is modified as follows:
I. The Athlete, Aleksandr ZUBKOV:
a) is found to have committed an anti-doping rule violation pursuant to the International Olympic Committee Anti-Doping Rules applicable to the XXII Olympic Winter Games in Sochi, Russia, in connection with the World Anti-Doping Code.
3.) Paragraph V of the Decision rendered by the International Olympic Committee Disciplinary Commission dated 24 November 2017 (and amended by the reasoned decision on 6 December 2017) is annulled and replaced as follows:
V. Aleksandr ZUBKOV is declared ineligible to be accredited in any capacity for the next edition of the Olympic Winter Games subsequent to the Sochi Olympic Winter Games (i.e. PyeongChang 2018).
4.) The Russian Team which ranked 1st in the 4-Man Bobsleigh event is disqualified. The corresponding diplomas are withdrawn and shall be returned to the International Olympic Committee.
5.) All other rulings contained in the Decision rendered by the International Olympic Committee Disciplinary Commission dated 24 November 2017 (and amended by the reasoned decision on 6 December 2017) are maintained.
6.) This Award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Aleksandr Zubkov, which is retained by the CAS.
7.) Each party shall bear their own costs and other expenses incurred in connection with this arbitration.
8.) All other motions or prayers for relief are dismissed.
