2010-06-14 / 2008 OLYMPIC GAMES – Hammer Throw Vadim Devyatovskiy & Ivan Tsikhan Case: The Court of Arbitration for Sport (CAS) upholds the Appeals of the Belarusian Athletes

Lausanne, 10 June 2010 – The Court of Arbitration for Sport (CAS) has upheld the appeals filed by the two Belarusian hammer throwers, Vadim Devyatovskiy and Ivan Tsikhan, against the decision of the Disciplinary Commission of the International Olympic Committee (IOC) of 11 December 2008.

Consequently, the silver and bronze medals won at the 2008 Olympic Games in Beijing are to be returned to Vadim Deviyatovskiy and Ivan Tsikhan respectively.

On 17 August 2008 both athletes competed in the men's hammer throw final at the Olympic Games in Beijing; Devyatovskiy ranked second and Tsikhan ranked third. Following a doping control performed immediately after the competition, the Beijing National Laboratory, a WADA accredited laboratory responsible for the analysis of the samples collected during the Olympic Games, reported that the analyses of the A and B samples of both athletes showed the presence of exogenous testosterone.

After hearing each athlete separately, the IOC Disciplinary Commission established on 11 December 2008 that the athletes had committed an anti-doping rule violation due to the presence of the substance testosterone in their bodies at a T/E ratio above the T/E ratio threshold of 4.1.

On 31 December 2008, both athletes filed an appeal with the CAS in order to request the annulment of the IOC Decision. The case was submitted to a CAS Panel composed of Mr John Faylor (USA), President, Mr Yves Fortier (Canada) and Prof. Ulrich Haas (Germany). A hearing took place at the CAS Headquarters in Lausanne on 25, 26 and 27 January 2010 during which the parties, their representatives, witnesses and experts were heard.

In an unusually complex doping case, the arbitral Panel had to decide whether the two Belarusian athletes violated the IOC Anti-Doping Regulations by the presence of exogenous testosterone in their bodies, considering that the athletes denied the use of such substance and defended their position by reference to departures from the sample analysis and custodial procedures of the Beijing Laboratory. In the case of both athletes, the arbitral Panel has established a violation of the laboratory's documentation and reporting requirements, in addition to a violation of the different analysts rule. More particularly, the laboratory was unable to provide a plausible explanation for the interruption of the automated testing procedure of the IRMS (isotope ratio mass spectrometry) instruments for the purpose of manually exchanging aliquot fractions. Such movement was not properly documented. Furthermore, the same laboratory analyst should not have performed activities on the A and on the B samples, which constituted a clear violation of the international standards for laboratories (ISL). In this regard, the arbitral Panel confirmed a CAS precedent in a case involving the Spanish cyclist Inigo Landaluce.

This different analysts rule has been eliminated under ISL 2009 but was still applicable in 2008. With regard to the IRMS confirmation procedure, the CAS Panel also doubted the reliability of the testosterone values established for V. Devyatovskiy. These were measured on two different IRMS instruments for the A and B samples.

The CAS Panel emphasized that its decision should not be interpreted as an exoneration of the athletes and has not declared that the athletes did not, prior to the competition, administer exogenous testosterone. The CAS Panel merely stated that the departures from the ISL, which constitute mandatory procedural safeguards, justify the annulment of the tests’ results for both athletes.

The full text of the CAS award is published on the CAS website (www.tas-cas.org, section “Jurisprudence”).

COMMENT:

This appears to be a clear case of the Testing Laboratory failing to follow its own rules of procedure and, as such, the doping ruling must be quashed in such circumstances! CAS has established this general sports law principle in its jurisprudence in several doping and other sports bodies regulatory cases rendered to date. Also, in view of its wider interest and application in the international sporting community, this appeal decision has been published as an exception to the general rule of confidentiality in CAS cases.

Professor Ian Blackshaw
14 June, 2010