Key challenges facing athletes in contaminated supplement cases: A review of the Arijan Ademi decisionPaul J. Greene, Tomislav Kasalo
Mr. Arijan Ademi (hereinafter: the Appellant or the Player) is a Croatian-born football player who is registered with football club GNK Dinamo and a national team player of FYR Macedonia.
On 16 September 2015, the Player underwent a doping control test following the UEFA Champions League match between GNK Dinamo and Arsenal FC in Zagreb, Croatia. A few weeks later, on 7 October 2015, the Player was notified by the World Anti-Doping Agency (WADA)-accredited “Laboratoire Suisse d´Analyse du Dopage” (the Lausanne laboratory) of an Adverse Analytical Finding for stanozolol metabolites in his 16 September 2015 sample. Stanozolol is an anabolic steroid that is a non-specified substance and is prohibited at all times, both in- and out-of-competition (see WADA Prohibited List).
On 20 October 2015, the Lausanne laboratory notified the Player that the B-sample analysis confirmed the result of the A-sample for stanozolol metabolites. At this point, because the Player was certain he never intentionally doped, he started to doubt all the people around him including his friends and family, but eventually he decided to commence legal proceedings in order to get to the truth and minimize his impending sanction.
This article reviews the Player’s case. Specifically it looks at:
- The proceedings before the Control, Ethics and Disciplinary Body of UEFA;
- The proceedings before the UEFA Appeals Body;
- The proceedings before the Court of Arbitration for Sport;
- Authors’ comments
Please note that both authors were counsel for the Player in his appeal process.
Proceedings before the CEDB of UEFA
During the proceedings before the Control, Ethics and Disciplinary Body of UEFA (CEDB), the Player submitted that the stanozolol entered his body through the ingestion of a contaminated “over-the-counter dietary supplement called ‘Megamin / Megacomplex’” (hereinafter called product M), which he listed, among others, on his doping control form.
The Player initially sent all the supplements he listed on his 16 September 2015 doping control form, including some leftover product M which he still had in a bottle in his possession, to the WADA-accredited laboratory in Seibersdorf, Austria to have them tested for stanozolol. However, because athletes cannot use WADA-accredited labs to test their own supplements, the lab first needed approval from a federation or anti-doping organization.
Both the Croatian National Anti-Doping Organization (CITA) and UEFA refused to authorise such testing. Subsequently, on 19 November 2015, the CEDB suspended the Player from participating in any football-related activity for a period of 4 years. In its decision, the CEDB found the Player merely presented various theories as to how the stanozolol could have entered his body without scientific foundation to support his claim that the product M was likely contaminated.
In particular, the CEDB found that the Player faced an uphill battle trying to prove that product M was the source of the stanozolol because both the batch number and most of the expiration date on the cap of the bottle of the original product M were illegible.
As a result, the Player decided to file an appeal with the UEFA Appeals body.
Proceedings before the UEFA Appeals Body
In the proceedings before the UEFA Appeals body, the Player, among other things, repeated his claims and insisted on testing the products, which were, at this stage of the procedure, sent to the Institute of Biochemistry German Sport University Cologne (the Cologne laboratory).
In order to prove that the product M was the contaminated source, the Player purchased more product M. Unfortunately, the Player could not find an equivalent bottle of product M to test because the original bottle’s batch number was illegible and there was no new bottle with a similar expiration date to the one that was still partially existent on the original bottle. However, with the help of the Player’s team doctor, the Player bought blister packs of product M (i.e. pills sealed in plastic as opposed to in a bottle) that were similar based on the expiration date. He subsequently sent the blister packs to two independent state-of-the-art accredited laboratories: RIKILT laboratory in the Netherlands and AEGIS laboratory in the United States.
While the results of the first Cologne laboratory test on a sealed container of product M were negative for stanozolol, the RIKILT and AEGIS laboratory tests were positive for stanozolol. Both RIKILT and AEGIS found the presence of stanozolol in the product M blister packs.
Despite these results, the UEFA Disciplinary Inspector (UEFA DI), still refused to accept that the prohibited substance entered Player`s body by way of the product M:
- First, the UEFA DI claimed that product M in a blister pack was not equivalent to the product M the Player originally used out of a bottle.
- Second, the UEFA DI argued that there was a breach in the chain of custody in the blisters sent to the aforementioned laboratories because some of the blisters allegedly did not arrive completely intact (i.e. opened and unsealed), thus making the positive findings invalid.
- Third, the UEFA DI submitted that the laboratories in question did not hold the proper accreditation to perform the tests on the pills.
- Finally, the UEFA DI claimed that the Player could have manipulated the unsealed pills of product M sent to RIKILT and AEGIS laboratories.
On 12 May 2016, the UEFA Appeals body dismissed the appeal lodged by the Player and affirmed the decision of the UEFA CEDB. The UEFA Appeals body stated that, on a balance of probabilities, the Player had failed to prove his contamination theory and that the “positive” results of the RIKILT and AEGIS laboratories should be disregarded due to breaches of the chain of custody (i.e. the testing of the opened and unsealed product).
The UEFA Appeals body also highlighted that it was more likely that a supplement called “Tribulus terrestris”, which had been linked previously to stanozolol contamination, was actually the contaminated source as opposed to product M. In rendering its decision, the UEFA Appeals body disregarded that the “Tribulus terrestris” taken by the Player had tested negative for stanozolol. Consequently, the Player appealed to the Court of Arbitration for Sport (CAS).
Proceedings before CAS
- providing that the Player’s burden of proof is by a balance of probability, and
- Article 10.02(a)(ii). – which states:
“In cases where the player or other person can establish no significant fault or negligence and that the detected prohibited substance came from a contaminated product, then the minimum sanction is a reprimand and no period of suspension and the maximum sanction two years of suspension, depending on the player’s or other person’s degree of fault”.
It is also important to note that according to Appendix C (Definitions) of the UEFA ADR, a contaminated product is defined as “[a] product that contains a prohibited substance that is not disclosed on the product label or in information that can be found by means of a reasonable internet search” and that fault is defined as any breach of duty or lack of care appropriate to a particular situation.
Moreover, no significant fault or negligence can be established if the player or other person proves that his “fault or negligence, when viewed in the totality of the circumstances and taking into account the no fault or negligence criteria, was not significant in relation to the anti-doping rule violation.”
The Player`s position before the CAS was as follows:
- The product M the Player took contained stanozolol as evidenced by the positive test results from RIKILT and AEGIS (and which was further supported by a post-hearing CAS-ordered test performed by the Cologne laboratory of the original, open container of product M the Player used).
- The concentration of stanozolol found in all the tests of product M was consistent with the concentration measured in the Player’s urine sample.
- UEFA's theory of manipulation and alternative contamination theory were mere speculation.
- Article 10.02(a)(ii) UEFA ADR applied because the stanozolol came from a contaminated product M and therefore in light of the Player’s low degree of fault (as indicated by the Player putting product M on his doping control form, consultation with medical staff of GNK Dinamo, etc.), a sanction at the lower end of the scale, such as a reprimand or no more than a 6-month suspension, should be imposed.
- If the Panel did not accept that the Player had no Significant Fault or Negligence, than the Panel should at least find that the ingestion of stanozolol was not intentional and, therefore, the Player should benefit from Article 9.01(b) of the UEFA ADR and have his sanction cut in half from 4 years to 2 years.
- The Player had established, on a balance of probability, that he did not knowingly ingest stanozolol or intend to cheat.
The CAS decision to reduce the Player’s sanction to 2 years
In reducing the Player’s sanction from 4 years to 2 years, the CAS Panel found in its decision of 24 March 2017 that it did not need to establish the source of the prohibited substance in order to prove the absence of intent. Thus, even though the Panel was not persuaded that the product M was the likely source of the banned substance stanozolol, the Panel found on the balance of probability (primarily through reliance on the Player’s own testimony) that the anti-doping rule violation was not intentional.
The Panel found that it could not impose a sanction of less than 2 years since it determined that the Player did not establish the likely source of the banned substance stanozolol, which would have qualified him for a reduction under Article 10.02(a)(ii). For this reason, the Panel imposed the lowest sanction possible of 2 years while making it clear that the Player was not a cheat or someone who had used a prohibited substance intentionally.
Although all cases turn on their own facts, the Ademi decision is important because the CAS Panel reduced an athlete’s sanction from 4 years to 2 years even though it determined that the athlete had not established the likely source of a non-specified substance.
Still, the case leaves many questions unanswered, including:
- can the mere suggestion of manipulation, without any evidence, be sufficient to prevent an athlete from meeting his or her burden of proof with regard to the source of the prohibited substance?
- given that two state-of-the-art laboratories found the prohibited substance in the supplement, how much evidence must be presented to establish that the likely source is a contaminated supplement?
- will panels begin to rely on the “non-intentional” provision more frequently?
In the end, the Player was satisfied with the outcome. His career was saved by the reduction from 4 to 2 years and the Panel explicitly found that he was not a cheater, thus saving his image and reputation.
However, the Player will always believe that he should have had an even greater reduction because three independent laboratories found the presence of the banned substance stanozolol in the product M. In the Player’s mind, what more could he have done to prove that this was a “classic” contamination case?
For critical commentary on several interesting issues relating to the interpretation and implementation of anti-doping regulations that were highlighted by CAS in their reasoning, please see this related piece by Claude Ramoni of Libra Law: "Key challenges facing athletes in contaminated supplement cases: Discussion on the Ademi decision".
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- Tags: Court of Arbitration for Sport (CAS) | Croatia | Croatian National Anti-Doping Organization (CITA) | International Standard for Laboratories (ISL) | Laboratory Code of Ethics | Switzerland | UEFA | UEFA Anti-Doping Regulations (UEFA ADR) | UEFA Appeals Body | World Anti-Doping Agency (WADA) | World Anti-Doping Code 2015 (WADA Code)
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About the Author
Paul J. Greene, Esq. is a U.S. based sports lawyer who protects the rights of athletes in disputes, including those charged in anti-doping proceedings. Paul has been recognized by Chambers USA and Super Lawyers as one of America’s top sports lawyers.
Tomislav Kasalo, Attorney at law, is a co-founder and partner at the Law office of Boro Rajic and Tomislav Kasalo, in Split, Croatia, since 14 March 2010. Tomislav has represented many athletes before national dispute resolution chambers, courts of general jurisdiction, arbitration courts, FIFA DRC, CAS, and other competent courts and tribunals as well as negotiations with different sports clubs regarding the employment contracts.