CAS ADD - Sentencia 50

CAS Anti-Doping Division Chambre Anti-dopage du TAS 2022/ADD/50 World Triathlon v. Yulia Yelistratova ARBITRAL AWARD delivered by the

ANTI-DOPING DIVISION

OF THE COURT OF ARBITRATION FOR SPORT sitting in the following composition: Sole Arbitrator: Dr.sc. Petra Pocrnic Perica LL.M, Arbitrator, Gingins, Switzerland in the arbitration between World Triathlon, Switzerland Appearing through the International Testing Agency (ITA), represented by Ms. Dominique Leroux-Lacroix, Head of Legal Affairs, and Ms. Ayesha Talpade, Senior Legal Counsel Claimant and Yulia Yelistratova, Ukraine Respondent Palais de Beaulieu Avenue Bergières 10 CH-1004 Lausanne Tel : +41 (21) 613 50 00 antidoping@tas-cas.org Château de Béthusy Av. de Beaumont 2 CH-1012 Lausanne Tel: +41 (21) 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org CAS Anti-Doping Division Chambre Anti-dopage du TAS 2022/ADD/50 World Triathlon v. Yuliya Yelistratova - Page 2

I. PARTIES

1. World Triathlon (“TRI” or the “Claimant”) is the world governing body for the sport of triathlon.

TRI is a Signatory of the World Anti-Doping Code (“WADA Code”) in which capacity has enacted TRI Anti-Doping Rules (“TRI ADR”). TRI has delegated the result management and disciplinary prosecutions in relation to adjudications of the consequences of adverse analytical findings (“AAF”) to the International Testing Agency (“ITA”).

2. Ms. Yulia Yelistratova (the “Athlete” or the “Respondent”) is an elite triathlete from Ukraine born on 15 February 1988. Ms. Yelistratova is a member of the Ukrainian Triathlon federation (“UTF”)

and is considered as an International-level Athlete within the meaning of the TRI ADR.

II. FACTUAL BACKGROUND

3. Below is the summary of the relevant facts and allegations based on the Parties’ submissions on the merits of this Claim. Additional facts and allegations found in the Parties’ written submissions may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, she refers in this Award only to the submissions and evidence she considers necessary to explain her reasoning.

4. The Sole Arbitrator will consider first the general factual background and then the factual background related to the Athlete.

5. On 5 June 2021, the Athlete participated in the 2021 Europe Triathlon Cup Dnipro held in Ukraine and placed first. The Athlete was selected for an In-Competition (“IC”) doping control and sample no. A and B-4557668 was collected from her (“IC Sample”).

6. By virtue of the Athlete’s results at the Competition, she was selected to represent Ukraine to participate in the Olympic Games Tokyo 2020 (the “Tokyo Games”). This would have been her 4th

Olympic Games.

7. Ms. Yelistratova declared on her Doping Control Form (“DCF”) associated with sample no. 4557668 that she had taken the following medications or supplements within the seven days prior to her doping control: “Vit D, Omega 3, Nasonex, Stepsils”. She also confirmed on her DCF that the sample collection was undertaken in accordance with the relevant World Anti-Doping Agency

(“WADA”) International Standards.

8. The A and B-samples were transferred for analysis to the WADA-accredited laboratory in Warsaw, Poland (the “Warsaw Laboratory”).

9. On 24 July 2021, the Warsaw Laboratory reported an Adverse Analytical Finding (“AAF”) for the prohibited substance recombinant Erythropoietin (“EPO”) in sample no. A-4557668 (the “First

AAF”).

10. Such substance is prohibited at all times and is classified as a non-specified substance under “S2.

Peptide, Hormones, Growth Factors, Related Substances, and Mimetics” of the 2021 WADA Prohibited List.

11. Prior to reporting the First AAF and in line with the WADA International Standards for Laboratories (“ISL”), the Warsaw Laboratory sought a second opinion in the form of an expert report from Dr. Christian Reichel and Dr. Günter Gmeiner from the WADAaccredited laboratory in Seibersdorf, Austria. Both experts confirmed that the analysis of sample A-4557668 complied 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org

CAS Anti-Doping Division Chambre Anti-dopage du TAS 2022/ADD/50 World Triathlon v. Yuliya Yelistratova - Page 3 with the positivity criteria as described in the applicable WADA Technical Document – Harmonization of Analysis and Reporting of Erythropoiesis Simulating Agents (ESAs) By Electrophoretic Techniques (“WADA TD2014EPO”).

12. Upon receipt of the First AAF, the ITA (on behalf of TRI) conducted the Initial Review of the result under Article 7.2 of the TRI ADR and Article 5.1.1 of the International Standards for Results Management (“ISRM”) and found that, no applicable Therapeutic Use Exemption (“TUE”) had been or was in the process of being granted to the Athlete either by TRI or her National AntiDoping Agency there was no apparent departure from the International Standard for Testing and Investigations (“ISTI”) or ISL that could undermine the validity of the First AAF, and the First AAF was not caused by the ingestion of the Prohibited Substance through a permitted route insofar as EPO is banned irrespective of the route of ingestion.

13. On 25 July 2021 at 20:13 pm (Tokyo time), the ITA (on behalf of TRI) notified Ms. Yelistratova of

the First AAF and imposed a mandatory Provisional Suspension pursuant to Article 7.4.1 of the TRI ADR with immediate effect (the “First Notification”).

14. Through the AAF notification, the Athlete was informed of the potential consequences of the First AAF and her procedural rights - including the right to request the B-sample counter-analysis, a Provisional Hearing or an expedited final hearing.

15. Further, considering that Ms. Yelistratova was scheduled to participate in the Women’s Individual Event at the Tokyo Olympic Games on 27 July 2021 at 6.30 am, she was requested to confirm to the ITA whether or not she was challenging the imposition of the Provisional Suspension and requested for a Provisional Hearing at the earliest convenience.

16. On 26 July 2021, Ms. Yelistratova requested for a Provisional Hearing before the CAS ADD to determine the limited question of whether the Provisional Suspension imposed on her should be lifted or maintained.

17. Ms. Yelistratova also provided her initial explanations on the source of her First AAF (the “First Explanations”). The Athlete stated first and foremost that she has always respected and abided by the Code and TRI ADR. Although at this stage she could not confidently prove how recombinant EPO had been found in her IC Sample, she put forth the following factors for consideration: (i) that 20 days prior to her sample collection, she got back from a training camp in altitude; (ii) 4 days before her sample collection, she was vaccinated against Covid-19 what she believed that her Covid-19 vaccination could have affected the metabolic processes in her body and impacted her haematological profile.

18. On 26 July 2021 at around 11.51 am, Ms. Yelistratova provided further explanations for the source of the EPO in her sample (the “Second Explanations”). She reiterated that the source of her First AAF could be the Covid-19 vaccine she received prior to the sample collection. Ms. Yelistratova

further alleged that her Covid-19 vaccine may have had an impact on her haematological profile and that a better understanding of COVID-19 pathophysiology, in particular haematological disorders and its impact on athletes’ health and analyses findings (urine, blood etc.) is required.

19. Considering the proximity to the Athlete’s scheduled competition at the Tokyo Games, out of abundance of caution, the ITA obtained the raw analytical data pertaining to the First AAF from the Warsaw Laboratory and sought the expert opinion of Prof. Martial Saugy (“Prof. Saugy”) on the analytical finding. Upon review of the data, Prof. Saugy confirmed that the analysis of sample no. 4557668 evidenced the presence of recombinant erythropoietin in the Athlete’s sample. 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org

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20. On 26 July 2021, as requested by Ms. Yelistratova, the ITA filed an Application to CAS ADD under Article 7.4.3 of the TRI ADR with a view of determining the sole issue of whether the Provisional Suspension imposed on the Athlete by the ITA should be lifted or confirmed.

21. On 26 July 2021, the Provisional Hearing was held in the matter in the presence of the Athlete. On the same date, CAS ADD issued an Operative Part of the Arbitral Award maintaining the Provision Suspension imposed by TRI on Ms. Yelistratova. Consequently, the Athlete did not participate in

the Tokyo Games.

22. On 2 August 2021, the Warsaw Laboratory provided the Laboratory Documentation Package (“LDP”) for the First AAF to the ITA, which had been requested upon receipt of the First AAF.

23. On 23 July 2021 (and prior to the Warsaw Laboratory reporting the first AAF), Ms. Yelistratova was subject to an OOC test in Tokyo, Japan, and blood sample no. 713774 and urine sample no. 3753310 were collected from her. The doping control was conducted by the ITA under the Testing Authority of the International Olympic Committee (“IOC”).

24. On 28 July 2021 (thereby, after the Provisional Hearing), the WADA-accredited Laboratory in Tokyo, Japan (“Tokyo Laboratory”) reported AAFs for recombinant Erythropoietin in both blood sample no. 713774 (“Second AAF”) and urine sample no. 3753310 (“Third AAF”).

25. Considering that Ms. Yelistratova had been provisionally suspended by TRI on 25 July 2021 for the First AAF and consequently did not participate in the Tokyo Games, the Second and the Third AAFs did not trigger consequences under the IOC Anti-Doping Rules (“IOC ADR”).

26. Consequently, on 2 August 2021, as per Article 7.1.2 of the IOC ADR and Article 10.2 of the ISTI, the IOC transferred the ownership and ensuing Results Management Authority of sample numbers 713774 and 3753310 to TRI to conduct the Results Management of the Second and Third AAF as per the applicable TRI ADR.

27. On 4 August 2021, the ITA informed Ms. Yelistratova of the Second AAF and Third AAF (“Second Notification”). Through the Second Notification, the Athlete was made aware that considering that she provided the samples where the Second and Third AAFs were detected on 23 July 2021, i.e. 2 days prior to being notified of the First AAF (i.e. 25 July 2021), in application of Article 10.9.3 of the TRI ADR, all three AAFs would be jointly considered as a single first violation. The Athlete was

again explained her procedural rights, the consequences of her ADRV and the potential grounds for reducing the applicable period of Ineligibility.

28. On 6 August 2021, Ms. Yelistratova informed the ITA that the Second Notification had changed her opinion on the current situation and that she admitted the ADRV and waived her right to Bsample analysis for all three AAFs (“Third Explanations”).

29. Through this correspondence, Ms. Yelistratova changed her explanations on how the prohibited substance entered her system on two separate occasions (in three samples) and resulted in AAFs.

Ms. Yelistratova no longer claimed that the presence of exogenous EPO could be due to the Covid19 vaccine. The Athlete now alleged that she had most likely been a victim of dishonesty and fraud by a person claiming to be a “doctor”; that she had trusted medical professionals and had taken “vitamin supplements” from a doctor whom she did not know in person. Furthermore, that this doctor had prepared an “individual pharmacological program” for her and had supplied her with medication. She also stated that the doctor had claimed that he worked with many international-level athletes and only used permitted substances. Lastly, the Athlete claimed that she was willing to cooperate with the ITA to “search for the person” who caused her positive findings. 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org CAS Anti-Doping Division Chambre Anti-dopage du TAS 2022/ADD/50 World Triathlon v. Yuliya Yelistratova - Page 5

30. On 12 August 2021, the ITA informed the Athlete that as she had waived her right to B-sample analysis for all three AAFs, in line with the Article 2.1.2 of the TRI ADR it was undisputed that she had committed an ADRV for Presence of a Prohibited Substance in her samples. The ITA also noted the Athlete’s willingness to cooperate and informed her that the ITA would schedule an

interview to discuss this further.

31. On 16 August 2021, the ITA informed the Athlete that the ITA Intelligence and Investigation Department (“ITA I&I”) would schedule a phone call with her to discuss the circumstances surrounding her ADRV.

32. On 18 August 2021, an interview was conducted between ITA I&I and Ms. Yelistratova.

33. On 30 September 2021, the ITA informed the Athlete that after review of the entire case file, the ITA considered that she had not adduced any evidence satisfying any of the mitigation grounds, including Substantial Assistance. The Athlete was informed that Aggravating Circumstances (within the meaning of Article 10.4 of the TRI ADR) applied to her present case and accordingly, the applicable consequences for her ADRV was a period of ineligibility of six years. However, considering that the Athlete had “admitted to the ADRV” after being charged by the ITA, as per Article 10.8.1, the ITA was willing to offer the Athlete a one-year reduction in the period of Ineligibility. The ITA thus gave the Athlete the opportunity to either accept the period of Ineligibility and enter into an Agreement on Consequences or, alternatively, expressly refuse the proposed Consequences and request for the matter to be referred for adjudication to CAS ADD.

34. On 13 October 2021, the Athlete responded to the ITA’s correspondence providing “without prejudice information for settlement purposes” on the circumstances of her AAF.

35. On 16 November 2021, the ITA responded to the Athlete reiterating the ITA’s conclusions on the proposed terms of the Agreement on Consequences. The ITA once again gave the Athlete the opportunity to either accept the proposed Consequences or refer the matter to CAS ADD.

36. On 22 November 2021, Ms. Yelistratova informed the ITA that she requested for the matter to be

referred for adjudication to CAS ADD, acting as the first instance body of TRI.

37. After the war broke out in Ukraine in February 2022, it was TRI’s and ITA’s assumption that the Athlete may not be able to adequately participate in the CAS ADD proceedings.

38. On 10 May 2022, the ITA wrote to the Athlete and informed her that to protect her due process rights, the ITA was following up on her ADRV. The ITA requested from the Athlete to confirm whether she was still willing to proceed before CAS ADD. The ITA also reminded the Athlete that the regime of Substantial Assistance was still available to her with a view of obtaining a credit to be computed against the Ineligibility period, and it was explained the requirements of Substantial Assistance and invited her to come forward with any information that she may wish to share with the ITA.

39. On 16 May 2022, the Ukrainian Triathlon Federation (the “UTF”) wrote to the ITA reiterating the contents of the Athlete’s Third Explanations on the “Sabotage Theory”. More particularly, UTF stated that, prior to the Tokyo Olympic Games, a Russian “sports doctor” called “Sergey” had contacted Ms. Yelistratova. This doctor proposed to improve Ms. Yelistratova’s performance by prescribing “vitamins”. The medication was in the form of injections, but were claimed by the doctor as permitted in sports. The doctor further told Ms. Yelistratova that many international-level athletes were using the same medication and it had helped those athletes to improve their performance. Ms.

Yelistratova considered the information given to her by the doctor to be reliable and decided to use injections. 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org CAS Anti-Doping Division Chambre Anti-dopage du TAS 2022/ADD/50 World Triathlon v. Yuliya Yelistratova - Page 6

40. The UTF referred to the current political relations between Ukraine and Russia to state that “fraud is one of the elements of current war as well” and, accordingly, requested the ITA to only impose a one-year period of Ineligibility for the Athlete’s ADRV, i.e. running from 25 July 2021 until 24 July

2022.

41. On 24 May 2022, Ms. Yelistratova responded to the ITA stating that she was unwilling to accept the ITA’s proposed period of Ineligibility.

42. The Athlete further stated that she “now realized” how the Prohibited Substance had entered her system and regretted her mistake. She reiterated that she did not knowingly take the Prohibited Substance and highlighted the “doctor” who had given her the medication was Russian and considering the political situation between Russia and Ukraine, the Russian doctor could have purposely sabotaged her.

43. Consequently, since Ms. Yelistratova was unwilling to accept the ITA’s proposed period of the ITA referred the present proceedings to the CAS ADD for a determination of the applicable and appropriate Consequences for Ms. Yelistratova’s ADRV.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

44. On 14 September 2022 ITA, on behalf of the World Triathlon, ITA filed a Request for Arbitration with the Anti-Doping Division of the Court of Arbitration for Sport (the “CAS ADD”) against Ms.

Yulia Yelistratova .

45. On 15 September 2022, the CAS ADD notified the Request for Arbitration to Ms. Yelistratova, ITA and the Ukrainian Triathlon Federation. It also delivered the Request for Arbitration via email with the link to access the whole case file, since due to the current situation in Ukraine, DHL is unable to deliver any correspondence. By the same letter, the CAS ADD informed the Athlete of the deadline to file her Answer to the Request for Arbitration.

46. On the same day, the CAS ADD informed WADA of the receipt of the Request for Arbitration in the present matter, with the note that it is not directed against WADA. However according to the Arbitration Rules of the CAS ADD (the “Rules”) and the Code of Sport-related Arbitration (the “Code”), if WADA intends to participate as a party, it shall file with the CAS an application to this effect together with the reasons therefore within the prescribed deadline.

47. On 16 September 2022, WADA informed the CAS ADD it does not want to participate in the present arbitration but reserves its right to appeal if needed.

48. On 16 September 2022, the CAS ADD informed the Parties and the Ukrainian Triathlon Federation of WADA’s letter.

49. On 22 September 2022, the CAS ADD informed the Parties and the Ukrainian Triathlon Federation that the Parties failed to jointly nominate a Sole Arbitrator, who shall be then appointed by the President of the CAS ADD in accordance with the Article A16 of the CAS ADD Rules.

50. On 4 October 2022, the Athlete submitted her Answer to the Request of Arbitration. The Answer was submitted in a form of e mail, without any attachments.

51. On 5 October 2022, the CAS ADD informed the Parties and the Ukrainian Triathlon Federation of the Athlete’s e mail, attached it to their attention, and invited the Athlete to confirm whether her email of 4 October 2022 shall be deemed as her Answer to the Request of Arbitration. By the same 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org

CAS Anti-Doping Division Chambre Anti-dopage du TAS 2022/ADD/50 World Triathlon v. Yuliya Yelistratova - Page 7 letter, the Parties were invited to state where they would like to hold a hearing in the present arbitration.

52. On 6 October 2022, the Athlete confirmed that her email of 4 October 2022 shall be deemed as her

Answer to the Request of Arbitration but also highlighted that she cannot attend the hearing in person or even send a representative.

53. On 7 October 2022, the CAS ADD informed the Parties of the Athlete’s email from 6 October 2022, and invited the Athlete to state whether she requests the hearing to be held via videoconference.

54. On 10 October 2022, the Athlete informed the CAS ADD that she requests the hearing to be held via videoconference.

55. On 11 October 2022, the CAS ADD informed the Parties of the Athlete’s email of 10 October 2022.

By the same letter, they were informed that the President of the ADD Division has nominated Ms Petra Pocrnic Perica, Arbitrator, Gingins, Switzerland, to act as Sole Arbitrator in this procedure.

56. On 4 November 2022, the CAS ADD, on behalf of the Sole Arbitrator, and in accordance with the Article A19.4 of the ADD Rules, invited the Claimant to produce a transcript of the Athlete’s interview with ITA I&I (which was mentioned in the Request for Arbitration and relied upon by the Claimant). The Parties were further informed that the Sole Arbitrator has decided to hold a hearing in this matter, that she would be available on 22 December 2022, and the Parties were invited to inform the CAS of any justified impossibility to attend the hearing at the aforementioned date.

57. On 11 November 2022, the Claimant informed the CAS ADD, that as mentioned in the ITA’s Request (paragraph 45), on 18 August 2021 an interview was conducted between the ITA I&I and Ms. Yelistratova. The purpose of this interview was an intelligence gathering and fact-finding exercise to determine whether any further actions were needed from an I&I perspective as required by the WADA Code. The interview with Ms. Yelistratova was not recorded and hence no transcript

of the interview is available. That being said, for the sake of completeness and procedural good faith, the ITA mentioned that, on 19 August 2021, the ITA I&I department prepared an internal interview report “IV Report” containing inter alia a summary of the discussions with the Athlete. Being an internal document, the IV report also contains confidential information not directly pertaining to the present matter. The Claimant stressed that should the Sole Arbitrator in her entire discretion found that the IV Report is useful for the assessment of this case, the ITA would be available to provide it. However, in such case, the ITA respectfully requested to redact the confidential information prior to submitting the IV Report.

58. As to the proposed hearing date on 22 December 2022, the Claimant informed the CAS ADD that the ITA’s Counsel in charge of this matter was unfortunately not available due to prior commitments and the onset of the Christmas holidays which applies as well to the TRI representative.

59. On 14 November 2022, the Athlete informed the CAS ADD that she is available for a hearing on 22 December 2022, and that she is sorry that there is no transcript of her interview with the ITA, but that she would like that the hearing be held as soon as possible.

60. On 25 November 2022, the CAS ADD informed the Parties that, after examining the Parties’ positions, and in accordance with Article A19.4 of the ADD Rules, the Sole Arbitrator considers that the “IV Report” might be of relevance in this matter and, therefore, invited the Claimant to produce a redacted version of such “IV Report” – after removing all confidential elements which do not pertain to the matter at stake – no later than 9 December 2022. 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org

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61. Finally, taking into consideration the Claimant’s unavailability on 22 December 2022, the CAS ADD informed the Parties that the Sole Arbitrator would be available on 20 and 23 January 2023.

62. On 5 December 2022, the CAS ADD informed the Parties that in view of the Parties’ availability, the hearing will be held by videoconference on 23 January 2023 by videoconference.

63. On 9 December 2022, the Claimant provided redacted version of the Interview Report of 19 August 2021, a copy of which was delivered for the Athlete’s attention.

64. On 12 December 2022, the CAS ADD acknowledged receipt of the Athlete’s email of 11 December 2022, whereby she confirmed that she will be attending the hearing on 23 January 2023. By the same letter, the Athlete was invited to file the communication between her, ITA and TRI by 19 December 2022, after which date the Claimant will be given a chance to comment on the Athlete’s new documents.

65. On 12 December 2022, the Claimant informed the CAS ADD of the list of participants for the hearing.

66. On 18 December 2022, the Athlete sent an email to the CAS ADD proposing a settlement. On 20

December 2022, the CAS ADD invited the Claimant to comment on the Athlete’s email containing such proposition.

67. On 20 December 2022, the Parties were invited to sign and return the Order of Procedure.

68. On 5 January 2023, the Claimant informed the CAS ADD of its comments to the proposed settlement. In brief, the ITA did not agree with the terms proposed by the Athlete, nor her assessment of the case and applicable regulations. In summary, the ITA limited its comments in the following way: i) the information provided by the Athlete does not equate to substantial assistance;

1. the proposed 5-year period of ineligibility was only in the context of Article 10.8.1 ITU ADR and is no longer available in the scope of disciplinary proceedings and iii) aggravating circumstances ought to apply to the case, as detailed in their request.

69. On 5 January 2023, the Parties signed and returned the Order of Procedure.

70. On 23 January 2023, a video hearing was held. The Sole Arbitrator was assisted by Mr. Fabien Cagneux, Managing Counsel of the CAS ADD, and joined by the following:

For the Claimant:

• Jeanne Courbe, TRI Legal Counsel
• Dominique Leroux, ITA Head of Legal Affairs • Ayesha Talpade, ITA Senior Legal Counsel • Prof. Martial Saugy, expert witness

For the Athlete:

• Ms. Yulia Yelistratova

IV. SUBMISSIONS OF THE PARTIES

71. The following is a summary of the Parties’ submissions and does not purport to be comprehensive.

However, the Sole Arbitrator has thoroughly considered in her deliberation all the evidence and 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org CAS Anti-Doping Division Chambre Anti-dopage du TAS 2022/ADD/50 World Triathlon v. Yuliya Yelistratova - Page 9 arguments submitted by the Parties, even if no specific or detailed reference is made to those arguments in the following outline of their positions and in the ensuing discussion on the merits.

A. The Claimant

72. The Claimant’s submissions may be summarized as follows.

73. Regarding the establishment of the ADRV, the Claimant reiterates that under Article 3.1 of the TRI ADR, the burden of proof is first on TRI to establish, to the comfortable satisfaction of the hearing body, that an ADRV has occurred. Article 3.1 of the TRI ADR defines the comfortable satisfaction standard as “greater than a mere balance of probability but less than proof beyond a reasonable

doubt”.

74. As provided for in Article 2.1.2 of the TRI ADR, sufficient proof of an ADRV for Presence is established, inter alia: [...] presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample where the Athlete waives analysis of the B Sample and the B Sample is not analysed.

75. The Claimant stressed that in the present matter, the Athlete confirmed that she waived her right for the B-sample opening and analysis of all three AAFs. Therefore, strictly speaking, it is undisputed that the Athlete has committed an ADRV under Article 2.1 of the TRI ADR for the Presence of a Prohibited Substance or its Metabolites of Markers.

76. Furthermore, whilst not necessary to establish an ADRV under Article 2.1 of the TRI ADR, the review of the raw data of analysis for the First AAF by Prof. Saugy (as confirmed in his Expert Report), the fact that independent experts have validated the presence of EPO prior to the Warsaw and Tokyo laboratories reporting the AAFs and the review of the laboratory documentation packages for the three AAFs by Prof. Saugy, clearly attests the presence of exogenous EPO in all three samples provided by the Athlete.

77. The Claimant highlights that, pursuant to Article 2.1.3 of the TRI ADR, EPO is not a substance for which a quantitative threshold is required pursuant to the WADA Prohibited List. Therefore, the presence of any quantity of this Prohibited Substance or its Metabolites or Markers in an athlete’s Sample constitutes an ADRV.

78. Lastly, as set forth in Article 2.1.1 of the TRI ADR, TRI does not have to show intent, fault, negligence or knowing use on the Athletes’ part to establish an ADRV for Presence under Article 2.1. This principle of strict liability, according to which an ADRV occurs whenever a Prohibited

Substance is detected in an athlete’s bodily specimen, has been consistently upheld by the appeal division of the CAS.

79. Accordingly, the Claimant submits that TRI has discharged its burden of proof to establish the ADRV for the Presence of a Prohibited Substance (on three occasions) in accordance with Article 2.1 of the TRI ADR to the comfortable satisfaction of the Panel.

80. Also, The Claimant pointed out that the Athlete has not challenged the validity of the AAFs at any time during the results management proceeding and there has been no evidence provided that the results were not reliable.

81. As stressed by the Claimant, according to Article 3.2.2 of the TRI ADR, WADA-accredited laboratories (such as the Warsaw and Tokyo Laboratories) are presumed to have conducted sample analysis in according with the ISL. It is hence for an Athlete to rebut such presumption by establishing, on a balance of probabilities (i) a departure from the ISL and (ii) that such departure 613 50 00 Fax: +41 (21) 613 50 01 proc