AIU Decision in ALEKSANDR IVANOV case - Use of a Prohibited Substance/Method
1 FACTUAL BACKGROUND
1.1. On 30 October 2017, the World Anti-Doping Agency (“WADA”) Intelligence & Investigations Department (“WADA I&I") secured from a whistleblower a copy of the Laboratory Information Management System (“LIMS”) data of the Moscow Laboratory for the years 2011 to August 2015 (the “2015 LIMS”).
1.2. The LIMS is a system that allows a laboratory to manage a sample through the analytical process and the resultant analytical data. Conceptually, the LIMS is a warehouse of multiple databases organized by year. The most relevant anti-doping data within the LIMS are those related to sample reception, analysis, and the actions of users within the system. This pertinent data is housed in key tables including: “bags”, “samples”, “screening”, “found” (or “scr_results” prior to 2013), “confirmation”, “MS_data” (or “Pro_4” prior to 2013) and “pdf”.
1.3. Subsequently, as part of the reinstatement process of the Russian Anti-Doping Agency (“RUSADA”), WADA required that inter alia authentic analytical data from the Moscow Laboratory for the years 2012 to 2015 be provided. Access to the Moscow Laboratory was therefore given to a team of WADA-selected experts, who were allowed to remove data from the Moscow Laboratory, including another copy of the LIMS data for the relevant years (the “2019 LIMS”) as well as the underlying analytical PDFs and raw data of the analyses reported in the LIMS (the “Analytical Data”). The analytical PDFs are automatically generated from the instruments and contain the chromatograms, which demonstrate whether a substance is present or not in a given sample.
1.4. Further investigations were conducted by WADA I&I in collaboration with forensic experts from the University of Lausanne on the data retrieved from the Moscow Laboratory and evidence of manipulation of the 2019 LIMS was uncovered, in particular, to remove positive findings contained in the LIMS. On that basis, WADA I&I concluded that the 2015 LIMS was reliable (and the 2019 LIMS was not). WADA I&I also identified evidence of deletions/alterations of Analytical Data to remove evidence of positive findings prior to WADA’s retrieval mission in January 2019.1
1.5. In the present case, the 2015 LIMS data and the Analytical Data show that one of the Athlete’s samples contained prohibited substances and was not reported as positive as part of the Russian manipulation scheme. More particularly:
1.6. Sample 2687451
1.6.1. On 6 May 2012, the Athlete was subject to an out-of-competition urine doping control collected by RUSADA. The 2015 LIMS indicates that 4-androstene-3,6,17-trione (6-OXO) and androsta-1,4,6-triene-3,17-dione7 were found in this sample.
1.6.2. 4-androstene-3,6,17-trione (6-OXO) and androsta-1,4,6-triene-3,17-dione belong to the hormone and metabolic modulators prohibited under S4 of the 2012 WADA Prohibited List.
1.6.3. The sample was reported negative by the Moscow laboratory.
2 PROCEDURAL BACKGROUND
2.1. On 3 May 2022, the Athlete was notified by the Athletics Integrity Unit (“AIU”), on behalf of World Athletics2, of the potential anti-doping rule violation and of his right to provide explanations by 17 May 2022 or to admit the potential anti-doping rule violation inter alia.
2.2. The Athlete did not respond to this letter.
2.3. As a result, on 30 June 2022, the AIU noted that the Athlete had not provided any explanations within the deadline and maintained its assertion that he had committed the anti-doping rule violation. The Athlete was granted an opportunity to request a hearing by 14 July 2022. The Athlete was specifically informed that, if he failed to request a hearing, he would be deemed to have waived his right to a hearing and to have accepted the asserted anti-doping rule violation, and that the AIU would render a decision confirming the imposition of the consequences set out in the letter.
2.4. The Athlete did not respond to this letter either.
2.5. On 20 July 2022, exceptionally, the AIU set a final deadline of 25 July 2022 for the Athlete to request a hearing, failing which the AIU would render a decision confirming the imposition of the consequences set out at section 4 of the attached Notice (i.e., disqualification of all his results from 6 May 2012 onwards, and Public Disclosure of the matter).
2.6. The 20 July 2022 email remained unanswered as well.
3 REASONED DECISION
A) Applicable Rules
3.1. Pursuant to Rule 1.7.2(b) of the 2021 World Athletics Anti-Doping Rules (“WA ADR”), anti-doping rule violations committed prior to 1 January 2021 shall be governed by the substantive Anti-Doping Rules in effect at the time the alleged anti-doping rule violation occurred and, with respect to procedural matters, by the 2016-2017 IAAF Competition Rules (the “2016 IAAF Competition Rules”) for anti-doping rule violations committed prior to 3 April 2017.
3.2. As the Athlete’s anti-doping rule violation occurred in 2012, it is governed by the rules at the time of their commission, viz. the 2012-2013 IAAF Competition Rules (the “IAAF Competition Rules”), subject to the application of the principle of lex mitior
B) Anti-Doping Rule Violations
3.3. Per Rule 32.2(b) of the IAAF Competition Rules, the Use of Prohibited Substances constitutes an anti-doping rule violation. The provision adds the following:
“(i) it is each Athlete’s personal duty to ensure that no Prohibited Substance enters his body. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation for Use of a Prohibited Substance or a Prohibited Method.
(ii) the success or failure of the Use or Attempted Use of a Prohibited Substance or Prohibited Method is not material. It is sufficient that the Prohibited Substance or Prohibited Method was Used, or Attempted to be Used, for an antidoping rule violation to be committed.”
3.4. Use within the meaning of Rule 32.2(b) of the IAAF Competition Rules can be established “by any reliable means, including but not limited to admissions, evidence of third Persons, witness statements, experts reports, documentary evidence, conclusions drawn from longitudinal profiling and other analytical information” (Rule 33.3 of the IAAF Competition Rules).
3.5. In the present case, the 2015 LIMS data and underlying Analytical Data show that 4-androstene-3,6,17-trione (6-OXO) and androsta-1,4,6-triene-3,17-dione, prohibited hormone and metabolic modulators, were detected in a sample collected from the Athlete in 2012. This clear and reliable evidence shows that the Athlete used Prohibited Substances in 2012 in breach of Rule 32.2(b) of the IAAF Competition Rules.
3.6. In addition, the AIU notes that, when confronted with the anti-doping rule violation, the Athlete did not challenge them and is therefore deemed to have accepted them.
3.7. In view of the above, it is clear that the Athlete committed an anti-doping
C) Applicable Consequences
3.8. By way of background, the AIU notes that the Athlete was previously sanctioned for a violation of Rule 32.2 of the 2012-2013 IAAF Competition Rules3, resulting in a period of Ineligibility of two years from 2 May 2017 until 1 May 2019 and the disqualification of all the Athlete’s results from 9 July 2012 until 17 August 2014 (the “First Violation”).
3.9. Per Rule 40.7(d)(i), “[f]or the purposes of imposing sanctions under Rule 40.7, an anti-doping rule violation will only be considered a second violation if it can be established that the Athlete or other Person committed the second anti-doping rule violation after the Athlete or other Person received notice pursuant to Rule 37 (Results Management) or after reasonable efforts were made to give notice of the first anti-doping rule violation; if this cannot be established, the violations shall be considered together as one single first violation and the sanction imposed shall be based on the violation that carries the more severe sanction; however, the occurrence of multiple violations may be considered as a factor in determining aggravating circumstances (Rule 40.6).”
3.10. In the present case, the Athlete committed the anti-doping rule violation (in May 2012) prior to his notification of the First Violation which was committed on 9 July 2012. As a result, the present anti-doping rule violation cannot count as a second violation for the purposes of Rule 40.7(d)(1) and shall be considered as a single first violation together with the First Violation.
3.11. To determine the applicable sanction, the applicable rules indicate that, where multiple violations are to be considered together, “the sanction imposed shall be based on the violation that carries the more severe sanction”.
3.12. As set out above, the present anti-doping rule violation shall be considered as a first violation together with the First Violation. In this respect, Rule 40.2 of the IAAF Competition Rules sets out that “[t]he period of Ineligibility imposed for a violation of […] 32.2(b) (Use or Attempted Use of a Prohibited Substances or Prohibited Method) […], unless the conditions for eliminating or reducing the period of Ineligibility as provided in Rules 40.4 and 40.5, or the conditions for increasing the period of Ineligibility as provided in Rule 40.6 are met, shall be as follows: First Violation: Two (2) years’ Ineligibility.”
3.13. Pursuant to Rule 40.6 of the IAAF Competition Rules, if it is established that “aggravating circumstances are present which justify the imposition of a period of Ineligibility greater than the standard sanction, then the period of Ineligibility otherwise applicable shall be increased up to a maximum of four (4) years unless the Athlete or other Person can prove to the comfortable satisfaction of the hearing panel that he did not knowingly commit the anti-doping rule violation.”
3.14. Examples of aggravating circumstances include the following per Rule 40.6(a) of the IAAF Competition Rules: “the Athlete or other Person committed the antidoping rule violation as part of a doping plan or scheme, either individually or involving a conspiracy or common enterprise to commit anti-doping rule violations; the Athlete or other Person used or possessed multiple Prohibited Substances or Prohibited Methods or used or possessed a Prohibited Substance or Prohibited Method on multiple occasions; a normal individual would be likely to enjoy performance-enhancing effects of the anti-doping rule violation(s) beyond the otherwise applicable period of Ineligibility; the Athlete or other Person engaged in deceptive or obstructing conduct to avoid the detection or adjudication of an anti-doping rule violation.”
3.15. In the present case, a number of aggravating circumstances are present:
3.15.1. First, the present anti-doping rule violation was committed as part of the most sophisticated doping and anti-detection scheme of the history, aiming at ensuring that athletes who were using prohibited substances would escape any sanction.
3.15.2. Second, the Athlete’s violation involves more than one substance i.e., 4-androstene-3,6,17-trione (6-OXO) and androsta-1,4,6-triene-3,17-dione.
3.15.3. Third, Rule 40.6 sets out that “the occurrence of multiple violations may be considered as a factor in determining aggravating circumstances (Rule 40.6)”. Here, the Athlete committed the First Violation, which is a separate anti-doping rule violation independently established and therefore an additional aggravating circumstance as such.
3.15.4. Fourth, it is noteworthy that these violations were committed in the lead-up to the 2012 IAAF Junior World Championships, i.e. an important event in the sport of athletics.
3.16. In view of all the above, it is clear that a number of aggravating circumstances are present with respect to the Athlete’s present anti-doping rule violation and that the maximum sanction of four years of Ineligibility under Rule 40.6 of the IAAF Competition Rules is therefore warranted and proportional to the serious offences committed. As the Athlete already received a two-year sanction for the First Violation, only an additional two-year period of Ineligibility shall be imposed.
b. Disqualification
3.17. Per Rule 40.8 of the IAAF Competition Rules, “[i]n addition to the automatic disqualification of the results in the Competition which produced the positive sample under Rules 39 and 40, all other competitive results obtained from the date the positive Sample was collected (whether In-Competition or Out-of-Competition) or other anti-doping rule violation occurred through to the commencement of any Provisional Suspension or Ineligibility period shall be Disqualified with all of the resulting Consequences for the Athlete including the forfeiture of any titles, awards, medals, points and prize and appearance money.”
3.18. In the present case, the Athlete’s anti-doping rule violation occurred on 6 May 2012. As a result, per Rule 40.8 of the IAAF Competition Rules, all results obtained by the Athlete from 6 May 2012 until the date of this decision (save for those already disqualified as a result of the First Violation) shall be disqualified. The AIU sees no fairness justifying otherwise given the severity of the violation. In addition, the Athlete has not even sought to argue that the fairness exception should apply.
D) Dispositive
3.19. In view of all the above, the following decision is hereby rendered (with binding effect on all Signatories to the World Anti-Doping Code, in all sports and countries as per Code Article 15):
3.19.1. The Athlete is found to have committed an anti-doping rule violation as described in this decision under Rule 32.2(b) of the IAAF Competition Rules;
3.19.2. The Athlete is imposed an additional period of Ineligibility of two years starting from the date of this decision;
3.19.3. All competitive results obtained by the Athlete from 6 May 2012 until the date of this decision (save for those already disqualified per the Athlete’s prior sanction) are disqualified, with all of the resulting consequences, including forfeiture of any medals, titles, points, prize money and prizes.
3.20. The disposition of the matter will be Publicly Disclosed in accordance with Rule 43 of the 2016 IAAF Competition Rules.
3.21. This decision is subject to appeal under Rule 42 of the 2016 IAAF Competition Rules.
The original press release can be found here : https://www.athleticsintegrity.org/downloads/pdfs/disciplinary-process/en/AIU-22-51-Ivanov-Decision.pdf
