- CAS 2016/A/4803 Ekaterina Gnidenko v. International Olympic Committee (IOC) & Union Cycliste Internationale (UCI)
- CAS 2016/A/4804 Maria Abakumova v. IOC
- CAS 2017/A/4983 Tatyana Lebedeva v. IOC & World Anti-Doping Agency (WADA)
Related cases:
- IOC 2016 IOC vs Ekaterina Gnidenko
September 7, 2016 - IOC 2016 IOC vs Maria Abakumova
September 5, 2016 - IOC vs Tatiana Lebedeva
January 25, 2017
- Cycling & Athletics
- Doping (dehydrochloromethyltestosterone (DHCMT) metabolites; Turinabol (oral))
- Burden of proof for anti-doping rule violation and Article 3.2.1 WADC
- Version of procedural rules applicable in case of anti-doping rule violations
- Principles guiding an analysis for a prohibited endogenous substance and scientific validity of such procedure
- Filters for considering expert evidence
1. Ordinarily, the relevant anti-doping organisation has the burden of establishing, to the comfortable satisfaction of the judging body, that an anti-doping rule violation has occurred; that burden includes satisfying the judging body of the scientific validity of the analytical methods adopted by the testing laboratory. However, Article 3.2.1 of the 2015 World Anti-Doping Code (WADC) reverses that burden of proof concerning the scientific validity of the analytical methods employed by the laboratories by stipulating that “analytical methods or decision limits approved by WADA after consultation with the relevant scientific community and which have been the subject of peer review are presumed to be scientifically valid”.
2. In line with the general rule that it is the version of procedural rules existing at the time proceedings are commenced that is applicable, the 2015 WADC applies to anti-doping proceedings commenced as of the date of their entry into force; this is irrespective of the fact that the relevant anti-doping rule violation occurred prior to the introduction of Article 3.2.1 into the 2015 WADC.
3. There are established principles that guide a confirmatory analysis for a prohibited endogenous substance. For the purposes of an anti-doping rule violation, a sample taken from an athlete will only be found to contain a specific prohibited substance if, when compared to a reference sample or the like of the prohibited substance in question, there is an identity or very near identity in the two samples between:
- (a) at least two ion transitions;
- (b) the abundances of the diagnostic ions; and
- (c) the retention times for the particular substance.
Such testing method or procedure is “scientifically valid”, as used in Article 3.2.1 of the 2015 WADC, even if it does not identify the correct substance 100 times out of 100, if another substance (even another prohibited substance) could possibly be the source of a positive finding for the specific prohibited substance identified, or if there is one false positive out of a million. Absolute infallibility of a testing procedure is not required.
4. When considering expert evidence, the following filters shall be applied:
- (a) the expert’s duty is not to represent the interests of the party calling him or her, but rather to express his or her views honestly and as fully as necessary for the purpose of a case; an expert should provide independent, impartial assistance to the judging body and should not be an advocate for any party;
- (b) the judging body cannot completely disregard any expert evidence which is otherwise admissible or before it; rather, it must pay regard to the content of the expert evidence, but it is not bound by it, or required to blindly follow it;
- (c) the expert opinion should be comprehensible and lead to conclusions that are rationally based, with reasoning explained; the process of inference that leads to conclusions must be stated or revealed in a way that enables conclusions to be tested and a judgment made about their reliability;
- (d) in order to prevent deception or mistake and to allow the possibility of effective response, there must be a demonstrable objective procedure for reaching the expert opinion so that qualified persons can either duplicate the result or criticise the means by which it was reached, drawing their own conclusions from the underlying facts;
- (e) the value of expert evidence depends upon the authority, experience and qualifications of the expert and, above all, upon the extent to which his or her evidence carries conviction; and
- (f) in cases where experts differ, the judging body will apply logic and common sense in deciding which view is to be preferred, or which parts of the evidence are to be accepted.
- Ms. Ekaterina Gnidenko is a Russian Athlete competing in the Cycling Track Keirin Event and the Track Sprint Event at the London 2012 Olympic Games.
- Ms. Maria Abakumova is a Russian Athlete competing in the javelin throw event at the Beijng 2008 Olympic Games.
- Ms. Tatiana Lebedeva is a Russian Athlete competing in the Women’s triple jump athletics event in the Beijing 2008 Olympic Games.
In 2016, the IOC decided to perform further analyses on certain samples collected during the 2008 and 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available at that time.
In May 2016 and in July 2016 the International Olympic Committee reported anti-doping rule violations against these three Athletes after their samples had tested positive for the prohibited substance Dehydrochlormthyltestosterone (Turinabol).
Consequently the IOC Disciplinary Commission decided in September 2017 and in July 2018 that these Athletes had committed an anti-doping rule violation. Accordingly they were disqualified from the events in which they had participated at the 2008 and 2012 Olympic Games including disqualification of their obtained results.
Hereafter in September 2016 and in February 2017 the Athletes appealed these IOC decisions with the Court of Arbitration for Sport (CAS). Because of the near identity of the issues the parties agreed to consolidate their appeals and procedures.
The Athletes challenged the reliability of the testing methodology initially theorised in 2012 and applied by the Cologne and Lausanne laboratories to establish the presence of the long-term metabolites of Turinabol in the Athletes' stored samples.
In this matter the parties' expert witnesses addressed the following topics:
(a) The method for detection of the M3 metabolite;
(b) The synthesis of M3 and validation against urinary reference material; and
(c) Other chemicals impersonating M3 metabolite and potential for false positives.
After assessment of the expert evidence the Panel is comfortably satisfied that the Athletes have not discharged their burden of proving that the testing methods adopted by the laboratories, which led to the positive findings against each of them, were not scientifically valid in accordance with the standard required to be applied in these proceedings.
Therefore the Court of Arbitration for Sport decides on 25 July 2018 that:
In CAS 2016/A/4803:
1.) The Appeal filed by Ms Gnidenko on 28 September 2016 against the decision of the IOC Disciplinary Commission rendered on 7 September 2016 is dismissed.
2.) The decision of the IOC Disciplinary Commission dated 7 September 2016 is confirmed.
(…)
5.) All further requests for relief are dismissed.
In CAS 2016/A/4804:
1.) The Appeal filed by Ms Maria Abakumova on 28 September 2016 against the decision of the IOC Disciplinary Committee rendered on 7 September 2016 is dismissed.
2.) The decision of the IOC Disciplinary Committee rendered on 7 September 2016 is confirmed.
(…)
5.) All further requests for relief are dismissed.
In CAS 2017/A/4983:
1.) The Appeal filed by Ms Tatyana Lebedeva on 14 February 2017 against the decision of the IOC Disciplinary Committee rendered on 25 January 2017 is dismissed.
2.) The decision of the IOC Disciplinary Committee rendered on 25 January 2017 is confirmed.
(…)
5.) All further requests for relief are dismissed.
