CAS 2017/A/5473 Ekaterina Pashkevich v. International Olympic Committee (IOC)
Related case:
IOC 2017 IOC vs Ekaterina Pashkevich - Operative Part
December 11, 2017
Ice Hockey
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
Use of a prohibited substance
Liability of the athlete in case of substitution of the content of his/her sample
Use of a prohibited method
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
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 IOC 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.
Ekaterina Pashkevich is a Russian Athlete competing in the Women's Ice Hockey 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.
Consequently the IOC Disciplinary Commission decided on 11 December 2017 to declare Ekaterina Pashkevich 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 her team from the events at the 2014 Sochi Olympic Winter Games including forfeiture of any medal, diploma, medallist pin, points and prizes.
In December 2017 the Athlete Ekaterina Pashkevich appealed the IOC decision with the Court of Arbitration for Sport (CAS). A total of 42 cases were filed with CAS by Russian athletes (the Sochi Appellants) against the decisions taken by the IOC Disciplinary Commission in relation to the 2014 Sochi Olympic Winter Games.
The Athlete and other Sochi Appellants submitted that the IOC Disciplinary Commission fundamentally erred in its application of the relevant legal framework to the facts of the Sochi Appellants’ 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 IOC 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 Appellants were each guilty of ADRVs. The Sochi Appellants disputed the reliability of the filed evidence provided by the IOC, Prof. McLaren and Dr. Rodchenko and pointed to various inconsistencies in this evidence.
The IOC, in its written submissions, provided a detailed description of the doping and cover-up scheme that allegedly operated in Russia from 2011 to 2015.
The IOC contended that the McLaren Reports and the Schmid Report both identified the Disappearing Positive Methodology as the origin of the institutionalised doping and cover-up scheme while Dr. Rodchenkov identified the main aspects to the Disappearing Positive Methodology in his affidavits.
With regard to the Athlete’s implication in this scheme, the IOC asserted that:
- The 8 athletes participating in the Russian Women’s Ice Hockey Team had samples bottles with direct evidence of tampering in the form of multiple T marks and/or abnormal sodium content, as well as two cases of samples with mixed DNA.
- These elements confirm that the members of the Russian Women’s Ice Hockey Team were directly implicated in the scheme.
- The Athlete’s B sample bottles had multiple T marks, i.e. evidence of tampering.
- The Athlete’s implication in the doping scheme was also demonstrated by the evidence of Dr. Rodchenkov.
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 IOC has not discharged its burden of proving to the Panel’s comfortable satisfaction that the Athlete committed an ADRV during the Sochi Games. The Panel was unable to find the commission of either an ADRV in the form of the use of a prohibited substance under Article 2.2 of the WADC, or 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 WADA 2014 Prohibited List, or an ADRV in the form of tampering in accordance with Article 2.5 of the WADC, or an ADRV in the form of cover-up of or complicity in an ADRV under Article 2.8 of the WADC.
In reaching these conclusions, the Panel wishes to underscore what it has not decided in this appeal. The Panel has not made a ruling on whether and to what extent the alleged doping scheme during the Sochi Games existed and how it operated even though it recognizes that there is significant evidence that it was in place and worked. Moreover, the Panel did not consider it possible to conclude that the mere existence of a general doping and cover-up scheme, even if established, would inexorably lead to a conclusion that the Athlete committed the ADRVs alleged by the IOC.
What the Panel, in the appeal of an individual athlete against the finding of various ADRVs, did decide is simply this: for all of the reasons outlined in this award, the evidence presented before the Panel does not justify the conclusion to the comfortable satisfaction of the Panel that the Athlete, through acts or omissions, individually committed any of the alleged ADRVs.
Accordingly, the Panel concludes that the Athlete’s appeal against the decision of the IOC DC rendered on 11 December 2017 shall be upheld and the appealed decision set aside.
Therefore the Court of Arbitration for Sport decides on 16 November 2018 that:
1.) The Appeal filed by Ekaterina Pashkevich on 19 December 2017 against the Decision of the International Olympic Committee Disciplinary Commission dated 11 December 2017 is upheld.
2.) The Decision rendered by the International Olympic Committee Disciplinary Commission dated 11 December 2017 is set aside.
3.) All individual results earned by Ekaterina Pashkevich, if any, upon the occasion of the XXII Olympic Winter Games in Sochi, Russia are reinstated, with all resulting consequences.
4.) This Award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Ekaterina Pashkevich, which is retained by the CAS.
5.) Each party shall bear their own costs and other expenses incurred in connection with this arbitration.
6.) All other motions or prayers for relief are dismissed.
