Tribunal Arbitral Du Sport Court Of Arbitration For Sport
Tribunal Arbitral du SportCourt of Arbitration for SportArbitration CAS 2019/A/6249 Roman Balandin v. Association Russian Anti-Doping Agency(RUSADA), award of 13 September 2019Panel: Mr Alexander McLin (Switzerland), Sole ArbitratorBasketballDoping (meldonium)Criteria for the determination of the intentionality of an ADRVCAS panels have to conduct fact-based and case-specific analyses. In the case of a youngprofessional player not contesting the anti-doping rule violation (ADRV), the followingelements can be relied upon in order to determine intent: relative experience level (with thesport and the relevant anti-doping rules), general anti-doping education (or lack thereof),level of awareness of previous cases involving the same prohibited substance, motivation toconsume the product containing the prohibited substance, circumstances surrounding theplayer’s visit to his team’s doctor and the accounts of the various participants and witnesses,consistency of the player’s explanations with the levels of prohibited substance found in hissystem.I.PARTIES1.Roman Balandin (the “Player, or the “Appellant”) is a Russian basketball player from StepnoyeOzero, Altai region, Russia. He was last employed by Basketball Club Avtodor Saratov (the“Club”), where he played for its youth team in the Youth Championship of Russia.2.The Association Russian Anti-Doping Agency (“RUSADA”) is the Russian national antidoping organization which has issued the decision on appeal.II.FACTUAL BACKGROUND3.Below is a summary of the relevant facts and allegations based on the parties’ writtensubmissions, pleadings and evidence adduced. Additional facts and allegations found in theparties’ written submissions, pleadings and evidence may be set out, where relevant, inconnection with the legal discussion that follows. While the Sole Arbitrator has considered allthe facts, allegations, legal arguments and evidence submitted by the parties in the presentproceedings, he refers in his Award only to the submissions and evidence it he considersnecessary to explain its his reasoning.
CAS 2019/A/6249 2Roman Balandin v. RUSADA,award of 13 September 20194.The Player started his professional career with the Club at the end of the 2014/15 sportingseason.5.In autumn 2016 the Player consumed Mildronate, medication available over-the-counter inRussia which contains the prohibited substance meldonium. The circumstances surroundinghis consumption of the product, including his intent for doing so, are disputed and summarizedbelow together with the parties’ respective arguments.6.On 21 April 2017, the Player was the subject of a doping control. On 19 May 2017, the “A”sample analysis showed an Adverse Analytical Finding for the presence of meldonium. He wassuspended by RUSADA the same day.7.The Player waived his right to a “B” sample analysis and did not contest that the AdverseAnalytical Finding constitutes an Anti-Doping Rule Violation (“ADRV”).8.He requested a hearing before the RUSADA Disciplinary Anti-Doping Committee (“DADC”),prior to which he submitted a witness statement alleging an ADRV by the Club team doctor,whom he alleges gave him permission to consume the Mildronate. He did so under the“substantial assistance” provision of the Anti-Doping Rules approved by the order of the Ministryof Sport of the Russian Federation of 9 August 2016 No. 947 (the “ADR”), seeking to mitigatean expected sanction.9.On 28 June 2018, the DADC imposed a period of ineligibility of four years on the Player byway of its Decision No. 97/2018 date 28 June 2018 (the “Appealed Decision”). The reasoneddecision was received by the Player on 26 March 2019.III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT10.On 16 April 2019, the Appellant filed its Statement of Appeal against the Respondent withrespect to the Appealed Decision in accordance with Article R47 of the Code of Sports-relatedArbitration (the “Code”). In his Statement of Appeal, the Appellant requested that thisprocedure be referred to a Sole Arbitrator.11.On 18 April 2019, the CAS Court Office confirmed receipt of the Statement of Appeal andinvited the Respondent to submit its views concerning the appointment of a Sole Arbitrator.12.On 19 April 2019, the Respondent agreed that the case be submitted to a Sole Arbitrator.13.On 26 April 2019, the Appellant filed his Appeal Brief, pursuant to Article R51 of the Code.14.On 30 April 2019, the CAS Court Office notified the parties that the Deputy President of theCAS Appeals Arbitration Division had appointed Mr Alexander McLin, Attorney-at-Law inGeneva, Switzerland, as Sole Arbitrator.15.On 30 May 2019, the Respondent filed its Answer pursuant to R55 of the Code.
CAS 2019/A/6249 3Roman Balandin v. RUSADA,award of 13 September 201916.On 21 and 24 June 2019, the Appellant and Respondent, respectively, signed and returned theOrder of Procedure.17.A hearing was held on 25 June 2019 at the CAS Court Office in Lausanne.18.The Sole Arbitrator was assisted by Mr Brent Nowicki, Managing Counsel to the CAS. TheAppellant was represented by Mr Mikhail Prokopets and Mrs Maria Tokmakova. TheRespondent was present at the hearing and represented by Mr Graham Arthur, assisted by MrsAlexandra Jurema, interpreter.19.The following individuals provided testimony at the hearing:a. For the Appellant:- Mr Roman Balandin, Appellant (via video link) ;- Mr Sergey Demidyuk, witness (via video link);- Mr Vladimir Rodionov, witness (via video link).b. For the Respondent:- Dr Vladimir Syrchikov (via video link).20.At the outset of the hearing, the parties confirmed that they had no objection to the SoleArbitrator deciding this appeal. At the conclusion of the hearing, the parties confirmed thattheir right to be heard had been fully respected. A summary of the parties’ arguments andevidence presented at the hearing is set out below.IV.SUBMISSIONS OF THE PARTIES21.The Appellant’s submissions, in essence, may be summarized as follows:- Given that the commission of an ADRV by the Player is uncontested, the issues in thiscase are (1) whether the ADRV falls within the definition of “intentional” per the ADR,and, if not, (2) whether a fault-related reduction to the period of ineligibility imposed onthe Athlete can be made.- The Player’s ADRV was not intentional within the meaning of the ADR. The term isdefined in Article 10.2.3 of the ADR as follows:“Athletes who cheat. The term, therefore, requires that the Athlete or other Person engaged in conductwhich he or she knew constituted an anti-doping rule violation or knew that there was a significant
CAS 2019/A/6249 4Roman Balandin v. RUSADA,award of 13 September 2019risk that the conduct might constitute or result in an anti-doping rule violation and manifestlydisregarded that risk”.- The rule should be applied in keeping with previous cases which interpreted the rule, inparticular that of the ITF Independent Tribunal in ITF and Maria Sharapova dated 6 June2016 (the “Sharapova case”), which reasoned as follows:“68. It is clear from the wording of article 10.2.3 that whether conduct is intentional is to be judgedon the actual knowledge of the player, not on the basis of what she ought to have known orunderstood. It is accepted by the ITF that her belief was that Mildronate was not a ProhibitedSubstance. On that basis of belief she did not know she was running a risk in takingMildronate. She understood that the Prohibited List might from time to time be amended butshe did not know or believe that it had been changed to make Mildronate a ProhibitedSubstance.69.The ITF argument conflates the two elements of the test prescribed by the second limb of article10.2.3. The first element is based on knowledge, the second on manifest disregard of the knownrisk. The second element may involve considering what steps the player took or ought to havetaken, but the first element depends on the actual knowledge of the player”.- The Player, having lived in rural environments most of his life was isolated and unawareof meldonium and its status as a prohibited substance. Like any ordinary person, he didnot consider that commonplace medication that is neither an anabolic agent nor astimulant could be considered as doping.- In the autumn of 2016, the Player and his teammate Artyom Limonov, who had a cold,went to a pharmacy seeking medicine for Mr Limonov and vitamins in order to help fightcolds and stay healthy during the season. At the pharmacy, they saw an advertisement forMildronate (a supplement containing meldonium), which was recommended in order tohelp the body overcome fatigue. The two decided to buy it given that the whole team hadtaken it previously on the recommendation of the club’s doctor, though they had stoppeddoing so approximately in early 2016.- Before purchasing and starting to use Mildronate, they checked with the team doctor,Vladimir Syrchikov, who confirmed that they could take it. The Player then consumedtwo capsules per day for a few days. Mr Limonov then learned from his father thatmeldonium was prohibited in sports, after which both athletes ceased taking thesubstance.- After both Mr Limonov and Mr Balandin tested positive to meldonium, Dr Syrchikovhad a conversation with the Club’s president, Vladimir Rodionov, in which he admittedhis fault in allowing the two athletes to use meldonium. This ultimately led to his dismissalfrom the Club.
CAS 2019/A/6249 5Roman Balandin v. RUSADA,award of 13 September 2019- The Player lacked any formal anti-doping education. As a result, it was difficult for himto conceive that a substance that he and his teammates had used previously could becomeprohibited all of a sudden.- Regarding the second element of “intention” (manifest disregard of the risk to commit anADRV), the Player took the most efficient means of determining whether or not he couldconsume the substance: he consulted with the team doctor. Lacking formal anti-dopingeducation, he was unaware of the need to double-check the information he received fromhim.- The Player accepts that his behavior was careless and negligent, though not significantlyso, and most definitely not intentional. This is supported by the fact that as soon as helearned that meldonium was prohibited, he immediately stopped taking it.- In light of the lack of intent, the maximum sanction for the Athlete’s ADRV is two yearsof ineligibility.- Regarding the reduction of the Player’s sanction for fault-related reasons, while he admitsthat he did not use “utmost caution” and therefore cannot seek a reduction under the “NoFault or Negligence” rationale of Article 10.4 ADR, he considers his level of fault not tohave been significant within the meaning of Article 10.5.2 ADR, which provides asfollows:“If an Athlete or other Person establishes in an individual case where Article 10.5.1 is not applicable,that he or she bears No Significant Fault or Negligence, then, subject to further reduction orelimination as provided in Article 10.6, the otherwise applicable period of ineligibility may be reducedbased on the Athlete or other Person’s degree of Fault, but the reduced period of Ineligibility may notbe less than one-half of the period of Ineligibility otherwise applicable”.- “No Significant Fault or Negligence” is defined in the ADR as:“The Athlete or other Person’s establishing that his or her Fault or negligence which viewed in thetotality of the circumstances and taking into account the criteria for no Fault or Negligence, was notsignificant in relationship to the anti-doping rule violation. Except in the case of a Minor, for anyviolation of Article 2.1, the Athlete must also establish how the Prohibited Substance entered his orher system”.- According to CAS jurisprudence, the threshold for establishing No Significant Fault(“NSF”) “must not be set excessively high”, as it would otherwise be impossible for a hearingpanel to determine an appropriate period of ineligibility within a wide range of sanctionsfor an ADRV (CAS 2005/A/847). “CAS jurisprudence has found that the threshold of NSF ismet if the athlete observes the clear and obvious precautions which any human being would take in thespecific set of circumstances” (CAS 2016/A/4416). A finding of NSF must be established “inview of the totality of the circumstances”; “the ‘bar’ should not be set too high for a finding of NSF. Inother words, a claim of NSF is (by definition) consistent with the existence of some degree of fault andcannot be excluded simply because the athlete left some ‘stones unturned’. As a result, a deviation from
CAS 2019/A/6249 6Roman Balandin v. RUSADA,award of 13 September 2019the duty of exercising ‘utmost caution’ does not imply per se that the athlete’s negligence was ‘significant’”(CAS 2016/A/4643).- While the Player “left some stones unturned” given that he did not personally cross-check theingredients of Mildronate against the WADA Prohibited List, he acted in keeping withthe standard of care that could be expected of a reasonable person by consulting the teamdoctor for professional advice. According to CAS 2016/A/4643, it is permissible for anathlete to delegate elements of his or her anti-doping compliance obligations. In suchcircumstances, the athlete’s degree of fault to be assessed is that attributable to his or herchoice of delegate and extent (or failure) of supervision thereof.- The Player, who was very young and lacked knowledge or an entourage, reasonablyconsulted the team doctor and relied on his advice. In addition, knowing that Mildronatehad been prescribed to “nearly every player” at the Club in 2015 suggested the substance was“safe and harmless” in character.- In light of this, the NSF reduction to the Player’s non-intentional ADRV should lead toa period of ineligibility in the range of 12 to 24 months per Articles 10.2.2 and 10.5.3ADR. Applying the factors to assess degree of fault from CAS 2013/A/3327 and CAS2013/A/3335 (the “Cilic case”), and CAS 2017/A/5110 (the “Johaug case”), andconsidering the Player’s lack of formal anti-doping education analogous to the situationin CAS 2012/A/3029 (the “West case”), the Player’s degree of fault should be consideredas “normal” and leading to a sanction of no more than 16 to 20 months of ineligibility.- The Appellant makes the following requests for relief:“The Appellant hereby respectfully asks the Court of Arbitration for Sport to rule as follows:1) The appeal filed by Mr. Roman Balandin is upheld;2) The Appealed Decision no. 97/2018 issued on 28 June 2018 by the RUSADADisciplinary Anti-Doping Committee is set aside;3) Mr. Roman Balandin’s Anti-Doping Rule Violation is considered unintentional with themaximum sanction of 24 months of Ineligibility commencing on 19 May 2017;4) Mr. Roman Balandin’s sanction is further reduced under the “No Significant Fault orNegligence” to a period of Ineligibility within the range of 16-20 months at the Panel’sdiscretion commencing on 19 May 2017;5) RUSADA shall bear all costs incurred with the present procedure;6) RUSADA shall pay to Mr. Roman Balandin a contribution towards his legal and othercosts, in an amount to be determined at the discretion of the Panel”.22.The Respondent’s submissions, in essence, may be summarized as follows:
CAS 2019/A/6249 7Roman Balandin v. RUSADA,award of 13 September 2019- The Player has committed an Article 2.1 ADR ADRV, involving a Non-SpecifiedSubstance. The mandatory sanction for such a violation is a period of Ineligibility of fouryears, which the Player can avoid if he can demonstrate that his violation was notintentional. If he can demonstrate not only that his violation was unintentional but thatin addition he acted with No Significant Fault, the period of Ineligibility can be reducedto no less than one year.- The Player is unable to meet the burden of proving that he acted unintentionally.- According to CAS jurisprudence, for intent to be established, it is sufficient that there bea situation in which an athlete’s conduct might constitute or result in an anti-doping ruleviolation and for the athlete to manifestly disregard that risk. There is no need to provein addition to this that there was a separate and distinct intent to cheat on the field of play(CAS 2016/A/4512).- So as to demonstrate that the Player did not act intentionally, he must be able todemonstrate that he did not act in such a way as to create a significant risk of a violationoccurring, or, in the event such a risk existed, did not “manifestly disregard” it. This meansthat the Player must explain the circumstances in which he came to ingest the ProhibitedSubstance and be able to establish that such circumstances fall outside the scope of thedefinition of “intentional”.- In CAS 2016/A/4609 (the “Pereira case”), a CAS panel found that a football player whoreceived a series of injections from his medical advisors should have known that therewas a significant risk that his conduct might constitute and ADRV, and the fact that hedid not even attempt to verify whether the medication contained any prohibitedsubstances meant that he manifestly disregarded the risk.- In CAS 2017/A/5139 (the “Da Costa case”), an athlete who attributed an ADRV to atestosterone gel that had been prescribed by his medical advisors did not succeed inmeeting his burden of disproving intention, despite his limited educational background,cultural environment and intellectual capacities.- The testimony given by the Player before the RUSADA DADC is inconsistent with thatprovided before CAS, in particular the alleged presence of Mr Demidyuk during theencounter with Dr Syrchikov, who was not previously mentioned by either the Player orMr Limonov in their testimony before the DADC.- Since RUSADA does not believe that the evidence is sufficient for the Player to provethat his conduct was unintentional, it does not believe that an analysis as to his degree offault is necessary. However, in the event his conduct is found not to be intentional, thetotality of the circumstances is such that it is clear that the Player knew there was a riskassociated with his use of Mildronate, and that he significantly failed to manage this risk.Applying the jurisprudence from CAS 2016/A/4416 and the Cilic case, the circumstancescalled for a high degree of care, which the Player did not meet.
CAS 2019/A/6249 8Roman Balandin v. RUSADA,award of 13 September 2019- The Respondent makes the following requests for relief:“RUSADA says that —( ).1 Mr Balandin has committed an Anti-Doping Rule Violation contrary to ADR Article2.1;( ).2 The Consequences to be applied in respect of the Anti-Doping Rule Violation are that aperiod of Ineligibility of four years be imposed;( ).3 If it is found that Mr Balandin did not act intentionally, the Consequences to be applied inrespect of the Anti-Doping Rule Violation are that a period of Ineligibility of two years beimposed;( ).4 There are no grounds for reducing the period of Ineligibility to less than two years;( ).5 The period of Ineligibility should commence on the date the Provisional Suspension wasimposed;( ).6 If a reduction of the period of Ineligibility of two years is deemed warranted pursuant to theADR that this reduction should result in imposition of a period of not less than twentymonths’ Ineligibility.( )RUSADA respectfully requests that costs be awarded to RUSADA in accordance withRule 64.4 and Rule 64.5 of the Code of Sports-related Arbitration (in force from 1 January2017)”.V.THE HEARING23.At the hearing, the following evidence was given:24.Mr Balandin explained how he had gone to the pharmacy with Artyom Limonov because hehad asked him to, and that Mr Limonov had seen the ad for Mildronate. Mr Limonov asked MrBalandin if he had used it before, and Mr Balandin responded that he had, “a long time ago”, thatthe drug did not really feel like it had done anything but that it had been recommended by theClub. Given the cost of the drug, Mr Limonov said that they probably needed to check withthe team doctor to see if they cou
Mr Limonov then learned from his father that meldonium was prohibited in sports, after which both athletes ceased taking the substance. - After both Mr Limonov and Mr Balandin tested positive to meldonium, Dr Syrchikov had a conversation with the Club’s president, Vladimir Rodionov, in whi
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