Anti-doping: CAS accepts a new method to detect prohibited substances
On 29 March 2019, the Court of Arbitration for Sport (CAS) issued its decision in the appeal arbitration procedures involving two Ukrainian track-and-field athletes (the Athletes).1 Both athletes were convicted of using a prohibited substance based on the detection of non-physiological levels of testosterone in their blood serum samples following analysis in the WADA-accredited laboratories in Lausanne, Switzerland, and Seibersdorf, Austria.2
The case is of significant importance for the fight against doping as it was for the first time athletes were convicted of anti-doping rule violations (the ADRVs) based on the steroidal values in their blood serum. This article reviews the decision.
In the period from 2011 until 2017, the Athletes provided a number of blood serum samples (para. 6). Three samples that were collected shortly before the Rio 2016 Olympic Games were found to contain a serum testosterone concentration far in excess of the Athletes’ normal values and of blood serum testosterone concentrations in the female population generally (paras. 9-10).
The Athletes’ results were submitted to an independent expert for review, who concluded that it was highly likely, almost certain, that the results were due to the athletes’ use of exogenous testosterone (para. 72). In his reports, the relevant expert opined that
both athletes had non-physiological levels of serum testosterone in comparison to the normal female population; and
those high values were completely abnormal in comparison to their normal individual values.3
Therefore, the concentrations for the Athletes (10.10 nmol/L for one athlete and two samples at approximately 7.3 nmol/L for another athlete) could only be explained by the use of exogenous testosterone (which is prohibited at all times)4.
The Athletes failed to provide an alternative explanation for their abnormal test results (paras. 76-77). The Athletics Integrity Unit brought forward charges against the Athletes, considering that they had committed an anti-doping rule violation under IAAF Rule 32.2(b) (use or attempted use of a prohibited substance or a prohibited method) (para. 15). At first instance, the Ukrainian Athletic Federation found that the Athletes had committed ADRVs and sanctioned them with inter alia periods of ineligibility of four years (Povh) and eight years (Zemliak)5 (para. 19).
The Athletes appealed against these decisions before the CAS.
Analysis of the CAS award
The main issue on appeal was whether testosterone levels in blood serum could be used as a means of establishing an ADRV. In particular, the Athletes contended that the method was not “approved” by WADA for the purposes of IAAF Rule 33.3(a).
IAAF Rule 33.3(a) reads as follows:
“[…] The following rules of proof shall be applicable in doping cases:
(a) 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 deemed to be scientifically valid. Any Athlete or other Person seeking to rebut this presumption of scientific validity shall, as a condition precedent to any such challenge, first notify WADA of the challenge and the basis of the challenge. CAS on its own initiative may also inform WADA of any such challenge. At WADA's request, the CAS Panel shall appoint an appropriate scientific expert. […]”
The Sole Arbitrator found that when an analytical method is not approved by WADA, it does not mean that it cannot serve as a reliable means of proof under IAAF Rule 33.1. It means rather that if the analytical method is not (yet) WADA-approved, the presumption of scientific validity is not applicable.6
In any event, the Sole Arbitrator accepted the validity of the method used by WADA-accredited laboratories in Lausanne and Seibersdorf for measurement of blood serum testosterone concentration, confirming that “the method is using LC/MSMS technique, which is known today as the gold-standard method for testosterone measurement and quantification in serum”.7
In order to avoid any doubt that the analytical results with respect to the Athletes’ blood serum samples could be unreliable, the Seibersdorf WADA-accredited laboratory conducted a further quantitative analysis on the Athletes’ samples.8 The results of the quantification analysis confirmed the previous values within an acceptable range of measurement uncertainty.
With respect to the ADRV, based on the analytical values in the case at stake, the Sole Arbitrator was “more than comfortably satisfied that the Athletes committed the ADRVs charged” on the basis that there is no explanation other than administration of exogenous testosterone (or precursor) for the values analysed by the method in the Athletes’ blood serum samples.9
As the Athletes did not seek to establish the origin of the prohibited substances in their samples, they were not entitled to any reduction in the period of ineligibility.10
As WADA Director General Olivier Niggli said:
“WADA welcomes this decision by CAS, which could have a long-term positive impact on clean sport. I would also like to commend the AIU for their excellent work which led to this outcome. The decision sets an important precedent and this new method of detecting doping represents another way for ADOs to secure Anti-Doping Rule Violations against those who choose to cheat. It is a significant victory for clean sport and for athletes around the world.”11
The award confirmed that the measurement of testosterone levels in blood serum could constitute a further tool for anti-doping 0rganizations to detect and prosecute doping, even where urine samples might be reported as negative.
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- Tags: Anti-Doping | Athletics | Austria | Court of Arbitration for Sport (CAS) | IAAF Rules | International Association of Athletics Federations (IAAF) | Rio 2016 Olympic Games | Switzerland | Ukraine
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Partner, Kellerhals Carrard
Ross Wenzel is a Partner in the sports law group of Kellerhals Carrard. His practice is exclusively dedicated to sports law, with a focus on doping and football-related disputes. He is one of the most active advocates before the Court of Arbitration for Sport (CAS) where he has successfully represented WADA, International Federations and National Anti-Doping Organisations and football clubs. He also advises a number of sports organisations with respect to their commercial programmes and governance issues.
Tel +41 58 200 33 00
Associate, Kellerhals Carrard
Anton Sotir is a Ukrainian qualified lawyer, whose main expertise is international sports law, eSports and commercial arbitration.
He regularly advises and represents clients in various commercial and sports-related disputes, handling arbitration proceedings before sports governing bodies and the Court of Arbitration for Sport or other arbitration institutions.
Anton is an author of many articles and books in the spheres of commercial arbitration, eSports and sports law.
Tel +41 58 200 33 00