Sports Law

Devyatovskiy & Tsikhan v IOC

In Devyatovskiy & Tsikhan v IOC, the Court of Arbitration for Sport concluded that adverse analytical findings in relation to 2 hammer throwers who recorded high readings for testosterone (suggesting the presence of exogenous testorone) at the 2008 Beijing Olympics should be annulled due to non-compliances with the ISL standard by the laboratory.

In that case, the Panel was persuaded by the following non-compliances: 

1. non-reproducibility of the results between the A and B samples (though in 1 instance, the Panel concluded, however, that there was sufficient qualitative, if not quantitative reproducibility);
2. failure of the Laboratory to properly record the “mid-stream” interruption and changes made in the sequencing of the vials for IRMS analysis, constituting a departure” from the ISL, in particular, in “cutting and pasting”/”manually re-constructing” the original Sequence List in such a manner that its deviation from the original would not be noticed, the laboratory analyst: “violated a fundamental safeguard which ensures transparency to the testing process and its authenticity”;
3. the Laboratory did not, at the time of the analysis, properly document the quality control procedures, in particular, the failure of the positive control and the use of the internal standards, in accordance with the the ISL standard;
4. the Laboratory failed to disclose, in the proceedings, its SOPs, despite several requests for information concerning alleged deficiencies in the Laboratory’s quality control and handling procedures;
5. the same analyst was involved in the testing of both the A and B samples.

The Tribunal concluded (repeating the important principle from Quigley and other CAS cases):

6.9 In the view of the Panel, both of the above provisions of the ISL (relating to the same analyst performing testing of the A and B sample)constitute mandatory procedural safeguards, the violation of which, independently of each other, justifies the annulment of the test results.

6.10 Doping is an offence which requires the application of strict rules. If an athlete is to be sanctioned solely on the basis of the provable presence of a prohibited substance in his body, it is his or her fundamental right to know that the Respondent, as the Testing Authority, including the WADA-accredited laboratory working with it, has strictly observed the mandatory safeguards.

6.11 Strict application of the rules is the quid pro quo for the imposition of a regime of strict liability for doping offenses. This fundamental rule which has formed the anchor for CAS rulings for more than two decades of anti-doping arbitrations was laid down eloquently in USA Shooting & Q./ International Shooting Union already in 1995:

“The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule appliers must begin by being strict with themselves.”

6.12 The Panel wishes to emphasize that its decision should not be interpreted as an exoneration of the Athletes. The Panel is not declaring that the Appellants did not, prior to the competition, administer exogenous testosterone. The Panel is merely concluding that the Respondent has not been able to prove, to the comfortable satisfaction of the Panel, diligent adherence to the rules set out in the International Standard for Laboratories and the relevant Technical Documents.

(emphasis added)