New procedure of detection of prohibited substances adopted by the Court of Arbitration for Sport

New procedure of detection of prohibited substances adopted by the Court of Arbitration for Sport

In an arbitral award delivered by the Court of Arbitration for Sport (“CAS”) in Olha Zemliak v. Ukrainian Athletic Federation & World Anti-Doping Agency (Click here to view decision) a new procedure for detection of prohibited substances was adopted.

The case is concerned with high levels of testosterone found in the blood samples of two Ukrainian sprinters Ms. Olha Zemliak and Ms. Olesia Povh (“athletes”), both medal winners in the 2012 London Olympics. The research centres and laboratories involved in examining the blood samples of the athletes ascertained that It was highly likely and almost certain that the high concentration of testosterone was due to the athletes’ use of exogenous testosterone.

The question before the CAS in the present appeal was whether use of exogenous testosterone could be identified by way of looking at the concentration of testosterone in the blood stream of an individual, when such method was not approved by the World Anti-Doping Agency.   

The World Anti-Doping Agency (“WADA”) is the international agency which is responsible for prevention of doping, it has implemented the World Anti-Doping Code (“WADA Code”) which is followed by sporting organizations like the International Association of Athletics Federations (“IAAF”), which is the world regulatory body governing athletics and athletes.

Use of exogenous testosterone is a prohibited substance under the WADA Code and is in violation of the rules made by IAAF in this regard. The rules made by IAAF prescribe the procedure for investigation and testing of blood samples of athletes, it includes analysis of samples in accordance with use of accredited laboratories for “legitimate anti-doping purposes”. The main contention of the athletes was that the method of investigation of blood samples was not WADA approved.

CAS held that even though the method of investigation was not approved by WADA, it can still qualify to be a reliable means of proof for establishing doping. IAAF Rule 33.3(a) states that analytical methods or decision limits approved by WADA are deemed to be scientifically valid. In cases where a method is not WADA approved, this presumption is not available. Thus, CAS upheld the findings of the laboratories involved in examining the blood samples of the athletes and held them guilty of doping.

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This is a landmark judgment in the field of anti-doping as it has laid down that testosterone level in blood sample is a clear indicator of exogenous testosterone use by athletes. The CAS ruled that even in the event where there was no intention by the athletes to use any prohibited substances, it is still the athlete’s obligation to explain how such a substance entered his/her body. However, the CAS has made an exception to cases where despite the athlete’s best efforts, he/she is not able to explain the origin of the prohibited substance. 

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