CAS 2017/A/5444 Olga Zaytseva v. International Olympic Committee (IOC)
Related cases:
IOC 2017 IOC vs Olga Zaytseva - Decision
December 22, 2017
IOC 2017 IOC vs Olga Zaytseva - Operative Part
November 27, 2017
- Biathlon
- Doping (use of a prohibited substance or method; tampering with doping control; cover-up of and complicity in the commission of an ADRV)
- Connection between use or attempted use of a prohibited method and tampering or attempted tampering with any part of doping control
- Standard of proof to be met by anti-doping organizations
- Consideration to be given of the restricted powers of the investigation authorities of the IOC
- Underlying factual basis for an inference that an athlete has committed a particular ADRV
- Standard of proof with regard to an athlete’s alleged participation to an alleged doping scheme
- Interpretation of Article 2.8. of the 2009 WADC
- Interpretation of Article 9.1 of the IOC ADR
- Justification for the imposition of a sanction of lifetime ineligibility
1. According to art. 2.2. of the World Anti-Doping Code (WADC, in its 2009 edition), the use or attempted use of a prohibited method constitutes an Anti-Doping Rule Violation (ADRV). In this respect, the 2014 World Anti-Doping Agency (WADA) Prohibited List sets forth in point M2.1 (prohibited methods) the prohibition of tampering or attempting to tamper, in order to alter the integrity and validity of samples collected during doping control. These include but are not limited to urine substitution. Art. 2.5 WADC, for its part, states that tampering or attempted tampering with any part of doping control constitutes an ADRV. More precisely, art. 2.5 WADC prohibits conduct which subverts the doping control process, but which would not otherwise be included in the definition of prohibited methods. Accordingly, the alleged swapping of urine samples has first to be examined under the framework of the specific rule of art. 2.2. WADC, rather than by reference to the more general rule of art. 2.5 WADC. Art. 2.5 WADC is only applicable insofar as it relates to acts that are not already included within the definition of prohibited methods under art. 2.2 WADC.
2. The standard of proof established in art. 3.1 WADC shall be whether an Anti-Doping Organization has established an ADRV to the comfortable satisfaction of a hearing panel bearing in mind the seriousness of the allegation which is made. The standard of comfortable satisfaction is a kind of sliding scale: the more serious the allegation and its consequences, the higher certainty (level of proof) a panel would require to be comfortably satisfied. The test of comfortable satisfaction must consider the circumstances of the case.
3. Taking into account all relevant circumstances of a case includes inter alia to consider the nature and restricted powers of the investigation authorities of the governing bodies of sport as compared to national formal interrogation authorities. In casu, consideration needs to be given to the fact that the IOC is not a national or international law enforcement agency. Its investigatory powers are substantially more limited than the powers available to such bodies. Since the IOC cannot compel the provision of documents or testimony, it must place greater reliance on the consensual provision of information and evidence and on evidence that is already in the public domain. The evidence that it is able to present necessarily reflects these inherent limitations in its investigatory powers. Assessment of the evidence must respect those limitations. In particular, it must not be premised on unrealistic expectations concerning the evidence that the IOC is able to obtain from reluctant or evasive witnesses and other source.
4. In view of the nature of the alleged doping scheme presented in casu and the IOC’s limited investigatory powers, the IOC may properly invite a CAS panel to draw inferences from the established facts that seek to fill in gaps in the direct evidence. The panel may accede to that invitation where it considers that the established facts reasonably support the drawing of the inferences. So long as a panel is comfortably satisfied about the underlying factual basis for an inference that an athlete has committed a particular ADRV, it may conclude that the IOC has established an ADRV notwithstanding that it is not possible to reach that conclusion by direct evidence alone.
5. In a case of an athlete accused, inter alia, of participating in a conspiracy of unprecedented magnitude and sophistication, it is insufficient for the IOC merely to establish the existence of an overarching doping scheme to the comfortable satisfaction of a panel. Instead, given that, in order to be liable for conspiracy a person must have knowledge of the existence of that conspiracy and of its object, the IOC must go further and establish that the individual athlete knowingly engaged in particular conduct that involved the commission of a specific and identifiable ADRV. In other words, a panel must be comfortably satisfied that said individual athlete personally committed a specific violation of a specific provision of the WADC.
7. The first part of art. 2.8 WADC only covers the (attempted) administrations attributable to a third party rather than by an athlete himself/herself, unless it is alleged that an athlete has administered or attempted to administer a prohibited method or substance to another athlete. A precondition for the application of the second part of art. 2.8 WADC is the existence of an ADRV under art. 2.1 to 2.7 WADC committed by another person than the one charged with a violation of art. 2.8 WADC.
8. Art. 9.1 para. 3 IOC Anti-Doping Rules (ADR) has to be interpreted as referring to the rules of the relevant international federation only with respect to “other disciplinary action”, while “disqualification” remains the full responsibility of the IOC. This interpretation of art. 9.1 para. 3 of the IOC ADR is also supported by the allocation of responsibility and jurisdiction between the IOC and the international federation with respect to Olympic Games.
9. A sanction equivalent to a lifetime period of ineligibility can only be considered justified where the seriousness of the offence was most extraordinary.
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 considered 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.
Olga Zaytseva is a Russian Athlete competing in the Women's Biathlon Events at the Sochi 2014 Olympic Winter Games.
In October 2017 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 22 December 2017 to declare Olga Zaytseva 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 Olga Zaytseva appealed the IOC decision with the Court of Arbitration for Sport (CAS). In January 2018 the appeals of the Athlete Olga Zaytseva together with the appeals of the Athletes Olga Vilukhina (CAS 2017/A/5434 and Yana Romanova (CAS 2017/A/5435) were stayed until reasoned awards were issued by the CAS in the cases:
- CAS 2017_A_5379 Alexander Legkov vs IOC
- CAS 2017_A_5380 Evgeniy Belov vs IOC
- CAS 2017_A_5422 Aleksandr Zubkov vs IOC
- CAS 2017_A_5433 Maria Orlova vs IOC
- CAS 2017_A_5436 Maxim Vylegzhanin vs IOC
- CAS 2017_A_5441 Alexander Rumyantsev vs IOC
- CAS 2017_A_5445 Yulia Chekaleva vs IOC
- CAS 2017_A_5446 Anastasia Dotsenko vs IOC
After the rendering of these reasonded decisions the CAS proceedings of the Athletes Olga Zaytseva, Olga Vilukhina and Yana Romanova were resumed in December 2018.
The Athlete disputed the reliability of the filed evidence provided by the IOC, Prof. McLaren and Dr. Rodchenko and pointed to various inconsistencies in this evidence. She argued that the IOC did not only failed to provide any credible evidence on her supposed involvement in the so-called organised doping scheme or of her being aware of any doping scheme supposedly tailored to protect her, but did not even establish that she ever used a prohibited substance. The IOC merely relies on a speculation which is not admissible when the issues at stake are so serious and carry severe consequences for the Athlete.
The IOC contended that the Athlete had personally committed various anti-doping rule violations, namely:
- using a prohibited substance, i.e. the Duchess Cocktail, and using a prohibited method, i.e. urine substitution;
- tampering with any part of the doping control; and
- cover-up of and complicity in the commission of an ADRV.
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 Athlete’s B sample bottles had multiple T marks and elevated sodium levels, i.e. evidence of tampering.
- The Athlete’s implication in the doping scheme was also demonstrated by the evidence of Dr. Rodchenkov.
The IOC requested the Panel to confirm the existence of a generalised doping scheme in Russia before and during the Sochi Games, one which enabled the Athlete to participate in a doping-control free environment. Also th IOC requested the Panel, to find a link (even contextual) between the Athlete or one of her urine samples and the generalised doping scheme which is sufficient to allow it to conclude that the Athlete has committed one or more of the alleged ADRVs.
Having considered the submissions of the Parties, the written evidence as well as the oral evidence and testimonies provided at the hearing the, in the present case, the Panel is comfortably satisfied that, the elevated sodium level found in the Athlete’s B sample constitutes reliable evidence to support the conclusion that the urine the Athlete provided was likely to have been deliberately swapped against clean urine that the Athlete had provided in advance to the Sochi Games.
Thus, the Panel finds to its comfortable satisfaction, on the basis of the evidence before it, that the Athlete committed an anti-doping rule violation for use of a prohibited substance and use of a prohibited method. However the Panel is not comfortably satisfied that the Athlete committed an anti-doping rule violation for tampering, neither for complicity.
Therefore the Court of Arbitration for Sport decides on 24 September 2018 that:
1.) The appeal filed by Ms. Olga Zaytseva on 6 December 2017 against the decision of the International Olympic Committee Disciplinary Commission dated 1 December 2017 is partially upheld.
2.) Paragraph I (a) of the Decision rendered by the International Olympic Committee Disciplinary Commission dated 1 December 2017 is modified as follows:
I. The Athlete, Olga ZAYTSEVA :
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 1 December 2017 is annulled and replaced as follows:
V. Olga ZAYTSEVA 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.) All other rulings contained in the Decision rendered by the International Olympic Committee Disciplinary Commission dated 1 December 2017 are maintained.
5.) (…).
6.) (…).
7.) All other motions or prayers for relief are dismissed.
