CAS ADD - Sentencia 7 y 13 de 2020

CAS Anti-Doping Division Chambre Anti-dopage du TAS 2020/ADD/7 International Ski Federation v. Andrus Veerpalu 2020/ADD/13 International Ski Federation v. Andrus Veerpalu ARBITRAL AWARD delivered by the

ANTI-DOPING DIVISION

OF THE COURT OF ARBITRATION FOR SPORT sitting in the following composition: Sole Arbitrator: Mrs. Raphaëlle Favre Schnyder, Attorney-at-Law in Zurich, Switzerland in the arbitration between International Ski Federation, Switzerland Represented by Dr. Stefan Netzle and Dr. Mirjam Koller, Attorneys-at-Law, TIMES Attorneys AG, Zurich, Switzerland Claimant and Andrus Veerpalu, Estonia Represented by and Mr. Rafael Brägger and Dr. Thilo Pachmann, Attorneys-at-Law with Pachmann Ltd, Zurich, Switzerland Respondent Av. de Rhodanie 60 CH-1007 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 2020/ADD/7 & 13 - Page 2 Chambre Anti-dopage du TAS

I. PARTIES

1. The Fédération Internationale de Ski (the “Claimant” or “FIS”) is the world governing body of skiing and snowboarding. Its seat is in Oberhofen, Switzerland.

2. Mr. Andrus Veerpalu (the “Athlete” or “Respondent”), born 8 February 1971, is a former professional athlete in cross-country skiing and a multiple medal winner for Estonia at Olympic Winter Games and World Championships (including a gold medal each at the

Olympic Games 2002 in Salt Lake City and the Olympic Games 2006 in Torino in the 15 km classic technique). He retired from active sports in February 2011.

II. FACTUAL BACKGROUND

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

4. The FIS Nordic World Ski Championships 2019 took place in Seefeld, Austria from 19

February to 3 March 2019 (the “Event”). The Respondent took part in that event as a service staff member (“NSA Team Service Staff”) for the national team of Kazakhstan where he was responsible for ski preparation and waxing. The Kazakhstan National Team delegation consisted of 14 athletes (5 women and 9 men), including Alexey Poltoranin, and 19 staff members.

5. During the Event, on 27 February 2019, the Austrian police raided the belongings of several athletes and athlete support personnel from Austria, Estonia and Kazakhstan on suspicion of violating Austrian anti-doping laws. Simultaneously, German police officers searched the medical practice of Dr Mark Schmidt in Erfurt, Germany. This joint police operation became publicly known as the “Operation Aderlass”.

6. In the context of Operation Aderlass, a number of athletes (including Andreas Veerpalu

(the Athlete’s son) and Alexey Poltoranin) were arrested and interrogated by the Austrian police. The Athlete himself was neither arrested nor interviewed at that time.

7. The police searched the Athlete’s hotel room in Seefeld during the raid and found a heavy

box containing medical equipment, supplements and prohibited substances. The same hotel room was also used by Alexey Poltoranin for prohibited blood doping treatments.

8. Following the police raids in Seefeld and Erfurt, law enforcement authorities of Germany, Austria and Estonia initiated criminal investigations and proceedings against a number of athletes and support personnel.

9. The focus of the criminal investigations against the Estonian team was directed towards “Team Haanja”, a sponsored sport team of several Estonian cross-country skiers (including Andreas Veerpalu) and other Estonian athletes, as well as Alexey Poltoranin (who trained with “Team Haanja”). 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org CAS Anti-Doping Division 2020/ADD/7 & 13 - Page 3

Chambre Anti-dopage du TAS 10. “Team Haanja” was managed by Mati Alaver, the former coach of the Estonian crosscountry skiing team. Following the raids and investigations, Mr. Alaver confessed to establishing contacts between the Dr Schmidt and several athletes from “Team Haanja” since 2016.

11. Dr Schmidt performed several blood doping treatments on these athletes, which can be described as follows: Blood was taken from the athletes during the non-competition periods. The blood bags were stored in a special refrigerator in the medical practice of Dr Schmidt. Immediately before a competition, one or two bags of the previously withdrawn blood were re-infused. Immediately after the competition, the same amount was withdrawn again from the athlete.

12. To set off the increased blood values, the athletes drank large amounts of water with a high salt content (one to two teaspoons salt per 500 ml water) after the competition and took albumin to cover up the blood doping.

13. During the course of “Operation Aderlass”, the police interviewed Mr Dario Nemec whereby Mr. Nemec informed the police authorities about a meeting between himself and

the Athlete on 4 December 2016 at the service station “Rosegg” on the Motorway A11 near Villach, Austria where, on behalf of Dr Schmidt, he delivered a package containing IGF-1 in return for a payment of EUR 3,200.

14. The Athlete does not dispute that this meeting took place, but disputes that he was aware of the contents of the package. Instead, the Athlete asserts that he never checked the contents of Mr Nemec’s package and was told that it simply contained vitamins for Mr.

Poltoranin, who had a flu at the time.

A. Proceedings before the FIS

15. On 28 September 2019, the FIS - in accordance with Art. 14.1.1 FIS Anti-Doping Rules 2019 (“FIS ADR 2019”) - notified the Estonian Ski Association that it was opening disciplinary proceedings against the Respondent and provisionally suspending him under Art. 7.9 FIS ADR 2019. The Athlete was invited to respond within 10 days and to participate in an in-person interview on 23 or 24 October 2019. The Athlete, however, did not respond.

16. On 16 October 2019, FIS’s legal counsel contacted the Athlete’s counsel to again invited the Athlete to attend an in-person interview before formal charges were made against him.

The Athlete declined FIS’s request.

17. On 30 November 2019, the FIS sent a formal letter to the Respondent (“Notice of Charge”) charging him as follows: - the commission of repeated anti-doping rule violations, in particular of Article 2.9 ADR ('Complicity') by assisting, aiding, conspiring and covering up or any other type of intentional complicity involving an anti-doping rule violation, and - failure to cooperate in full with the FIS investigating the ADRV allegations under Article 22.1.6

ADR 2019, since you refused to attend an in-person interview to which you had been invited by the

FIS. 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org CAS Anti-Doping Division 2020/ADD/7 & 13 - Page 4 Chambre Anti-dopage du TAS

18. On 18 December 2019 (i.e. two and a half months after the imposition of the provisional suspension), the Athlete requested that FIS lift his provisional suspension with immediate effect and objected to all charges brought by the FIS against him.

19. On 3 January 2020, the FIS forwarded the Athlete’s request to lift the provisional suspension to the FIS Independent Anti-Doping Delegate (“IADD”).

20. On 31 January 2020, the IADD dismissed the Athlete’s request to lift his provisional suspension (the “IADD Decision”).

21. On 21 February 2020, the Respondent appealed the IADD Decision to the Court of Arbitration for Sport (“CAS”), Appeals Arbitration Division and requested the immediate lifting of the provisional suspension vis-à-vis a request provisional measures (CAS

2020/A/6781).

22. On 6 March 2020, the Deputy President of the Appeals Arbitration Division of the CAS rejected the Athlete’s application for provisional measures.

23. The Respondent’s Appeal (CAS 2020/A/6781) against the decision of the IADD is still pending.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

24. On 5 May 2020, the Claimant filed its Request for Arbitration with the Anti-Doping Division of the Court of Arbitration for Sport (the “CAS ADD”) in accordance with Article A13 of the CAS ADD Rules (the “ADD Rules”).

25. On 6 May 2020, the CAS ADD invited the Athlete to file an Answer to the Request for Arbitration and invited the Parties to mutually agree on a Sole Arbitrator from the special

list of CAS ADD Presidents/Sole Arbitrators in accordance with Article A16 of the ADD Rules.

26. On 20 May 2020, the Parties were informed by the CAS ADD Court Office that on agreement of the Parties, and on behalf of the President of the CAS ADD, Ms. Raphaëlle Favre Schnyder, Attorney-at-Law, Zurich, Switzerland, was confirmed as Sole Arbitrator.

27. On 25 June 2020, following an agreed-upon extension of time, the Athlete filed his answer

(including an objection to CAS jurisdiction).

28. On 27 July 2020, following the direction of the Sole Arbitrator, the Claimant filed a Reply submission, including its response to the Athlete’s objection to jurisdiction.

29. On 25 August 2020, the Athlete filed a Sur-Reply submission.

30. On 1 October 2020, Claimant requested a 20-day period of time to supplement its Request for Arbitration so as to bring new charges against the Athlete.

31. On 2 October 2020, the Athlete opposed to the Claimant being granted an additional period of time to file any supplemental documents. 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org CAS Anti-Doping Division 2020/ADD/7 & 13 - Page 5

Chambre Anti-dopage du TAS

32. On 20 October 2020, following various exchanges between the parties on the Claimant’s desire to file new charges against the Athlete, the CAS ADD suspended procedure 2020/ADD/7 pending the Claimant’s filing of a new Request for Arbitration. Upon receipt of the new Request for Arbitration, the Sole Arbitrator noted that a deadline of 20 would be granted to the Athlete for filing his Answer.

33. On 9 November 2020, the Claimant filed a new Request for Arbitration (2020/ADD/13)

and inter alia invited the Athlete to state by 11 November 2020 whether he agreed to the consolidation of the new procedure with 2020/ADD/7 in accordance with Article A14 of the ADD Rules. Also, the Athlete was invited to state his agreement to Ms Raphaëlle Favre Schnyder acting as Sole Arbitrator in the new procedure.

34. On 25 November 2020, the Parties were advised by the CAS Court Office that the President of the ADD has decided to consolidate procedures 2020/ADD/7 and 2020/ADD/13 in accordance with Article A14 of the ADD Rules given the similar nature of the two procedures. In doing so, the President of the ADD referred this procedure to Ms Raphaelle Favre Schnyder as Sole Arbitrator in accordance with Article A16 of the

ADD Rules.

35. On 30 November 2020, the Athlete filed his Answer in 2020/ADD/13.

36. On 9 & 10 February 2021, the Athlete and Claimant, respectively, signed and returned the

Order of Procedure.

37. On 10 February 2021, a video hearing was held. The Sole Arbitrator was joined by Mr.

Brent John Nowicki, Managing Counsel, and joined by the following:

For the Claimant: ➢ Dr. Stephen Netzle, Counsel

➢ Dr. Mirjam Koller, Counsel ➢ Mr. Franz Schwarzenbacher, Witness ➢ Mr. Dario Nemec, Witness ➢ Prof. Snježana Husnjak Pavlek, Translator ➢ Dr. Mark Schmidt, Witness

For the Athlete: ➢ Mr. Rafael Brägger, Counsel

➢ Mr. Andrus Veerpalu, Athlete ➢ Mati Alaver, Witness ➢ Mr. Alexey Poltoranin, Witness ➢ Andreas Veerpalu, Witness

➢ Dr. Aleksandr Lushchaev, Witness ➢ Mr. Alexey Nakonechnyy, Witness

38. At the outset of the hearing, the Parties confirmed that they had no objection to the Sole Arbitrator. That said, the Athlete reiterated his objection to admissibility and jurisdiction.

No objections to the way in which the procedure was handled or organized were noted. 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org CAS Anti-Doping Division 2020/ADD/7 & 13 - Page 6 Chambre Anti-dopage du TAS

IV. SUBMISSIONS OF THE PARTIES

A. The Claimant

39. The Claimant’s submissions on the merits, in essence, may be summarised as follows: • In contravention of Article 2.9 FIS ADR 2016 (the relevant rules for substantive purposes) the Athlete committed an anti-doping rule violation (‘ADRV’) he granted access to his room to Dr. Mark Schmid to perform blood transfusion on Alexey Poltoranin thereby being an accomplice to Alexey Poltoranin’s admitted blood doping during the World Championships in Seefeld. • According to Art. 2.9 FIS ADR 2016, the following conduct is prohibited and considered an ADRV: “Assisting, encouraging, aiding, abetting, conspiring, covering up or any other type of intentional complicity involving an anti-doping rule violation, Attempted anti-doping rule violation or violation of Article 10.12.1 by another Person”. • The CAS already decided in its longstanding jurisprudence that the wording of Art. 2.9

FIS ADR 2016 has to be interpreted broadly. According to the CAS, the wording “assisting, encouraging, aiding, abetting, conspiring, covering up or any other type of intentional complicity involving an anti-doping rule violation”: “is intended to be very broad and to cover any

ADR violation by any person bound by the ADR, including a coach or a support staff member, and is not limited to the ADR violations of fellow athletes”. • Furthermore, the CAS established that “although 'complicity' is likely to involve some degree of knowledge on the part of the persons alleged to be complicit, it is not necessary that that person knew all of the people involved or all of the Prohibited Methods being used”. This means that a doping sanction based on Art. 2.9 FIS ADR 2016 does not require that the concerned person knows everything about the doping offences committed in the context of the entire doping scheme. It must be sufficient if the person has somehow facilitated the doping offense. • The Final report of the Austrian Police constitutes clear evidence that the Athlete committed ADRVs. • On 21 February 2019, the police had intercepted a discussion between Dr Mark Schmid and his father Ansgar Schmidt whereby the former informed the latter that he would be contacted by Mati Alaver to organise a meeting in which he – i.e. Ansgard Schmidt – would receive a room key for his son. • On 22 February 2019 Dr Mark Schmidt informed his father that he should ring the door of the apartment no. 24 of the house “Excelsior” and say “Hello Mr. Alexander”. Ansgard Schmidt would then receive a key so that Dr Schmidt could enter the apartment on the next day. • Shortly before 8pm on 22 February 2019, Ansgard Schmidt rang at the door of the house “Excelsior” and spoke to the intercom system. A few moments later, the Athlete opened the door, spoke shortly with Ansgard Schmidt and gave him a key. Ansgard Schmidt testified that the Respondent understood that he – i.e. Ansgard Schmidt – was related to Dr Mark Schmidt. Furthermore, according to the testimony of Ansgard 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org

CAS Anti-Doping Division 2020/ADD/7 & 13 - Page 7 Chambre Anti-dopage du TAS Schmidt, the Respondent told him: “Tomorrow morning, as agreed”, which was understood as a reference to the agreed blood transfusion of Alexey Poltoranin. The conversation between Ansgard Schmidt and the Respondent was photographed by the police. • On 23 February 2019 at 7:58 am: Dr Mark Schmidt walked from his apartment to the house “Excelsior” to perform a blood infusion on Alexey Poltoranin before the 30km skiathlon, which started on 12:30 pm.65 This was confirmed by Alexey Poltoranin during his interrogation by the Austrian police. • On 27 February 2019, the Austrian police accompanied Ms Diana Sommer to room no 24 of the house Excelsior where she was expected by Alexey Poltoranin who awaited her as she was supposed to perform a blood transfusion on him. • Alexey Poltoranin confirmed during his interrogation by the Austrian police that the blood doping treatments took place in the apartment room shared by the Athlete and Jan Alvela (room no. 24 of the house “Excelsior”) because he could have been controlled by WADA at any time in his own room in Alpenhotel. • Upon their arrival in room 24, the police found a heavy metal box and a sport bag containing several doping utensils in the Respondent's hotel room. In particular, the police found one ampoule “Dexamethasone”, two ampoules “Prednisolone” (both substances are prohibited according to Art. S9 WADA Prohibited List 2019), 100 ml albumin solution (prohibited according to Art. S5 WADA Prohibited List 2019) and one inhalation device with “Flutiform” (prohibited according to Art. S9 WADA

Prohibited List 2019).

40. The Claimant brought additional charges in relation with an alleged former ADRV as follows: • In addition, during its investigation into Dr Mark Schmidt, the police interrogated Mr Dario Nemec, one of Dr Mark Schmidt’s provider of prohibited substances for use by athletes participating in high-level sports competitions, who explained having met the Athlete in December 2016. • According to Mr Nemec’s in December 2016, Dr Mark Schmidt ordered the supply of the prohibited substance IGF-1 produced by the pharmaceutical company SigmaAldrich from him. • The purchase and the handover to the Athlete of the prohibited product IGF-1 took place on 4 December 2016 at the service station “Rosegg” on the motorway A11 near Villach (AUT) as was arranged by Dr Mark Schmidt and Mati Alaver. The Athlete received instructions about the driving route from Ramsau (AUT) to the delivery point from coach Mati Alaver. • Upon arrival at the service station “Rosegg”, Dario Nemec gave the Athlete two packages of IGF-1, and the Athlete paid to Mr. Nemec a purchase price of EUR 3'200 in cash. • At the latest on 6 December 2016, the Respondent left Ramsau and drove to Livigno

(ITA). Livigno is a well-known Nordic skiing training venue located close to 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org CAS Anti-Doping Division 2020/ADD/7 & 13 - Page 8 Chambre Anti-dopage du TAS Valdidentro / Isolaccia, where the Alpen Cup took place in which Karel Tammjärv participated.

41. In both its Requests for Arbitration, the Claimant requested the following relief: On behalf of the Federation International de Ski, the undersigned respectfully request the honourable Panel:

(1) to declare Andrus Veerpalu ineligible from participating in any FIS-sanctioned event or other activity for a period of four years starting from the date of the final hearing decision providing for ineligibility for having committed an Anti-Doping Rule Violation contrary to Article 2.9 of the FIS Anti-Doping Rules; (2) to order that Andrus Veerpalu shall bear the costs of these arbitration proceedings in its entirety; (3) to order Andrus Veerpalu to reimburse the legal fees of the Fédération Internationale de Ski (FIS) and other expenses related to the present arbitration.

B. The Athlete

42. The Athlete’s submissions, on the merits in essence, may be summarized as follows: • He took part in the FIS Nordic World Championships 2019 exclusively as a service staff member for the nation al team of Kazakhstan and had no link or relationship at all to team Haanja. His task was solely to provide athletes with fast skis and he had nothing to do with the physical condition and preparation of the athletes. He has no knowledge at all of the doping scheme admittedly organised and orchestrated by Mati Alaver for the members of team Haanja. • The Athlete disputes that he handed over a key to Anger Schmidt on the evening of 22 February 2019 as alleged by the Claimant. There is no evidence that he had planned or had the intention to encounter Ansgar Schmidt; their meeting was a coincidence and a random encounter only. He relies upon: • Dr Mark Schmidt and Mati Alaver never expected the Athlete to play a role in this. In his entire interrogation, Dr Schmidt never mentioned the Athlete’s name. • According to the intercepted telephone call between Dr Mark Schmidt and Ansgard Schmidt the latter was supposed to meet the “General”. The “General” is Mati Alaver, not the Athlete. • According to Ansgard Schmidt, he was supposed to say “Hallo Herr Alexander” (“Hello

Mr. Alexander”) when ringing the doorbell of apartment no. 24. However “Alexander” is presumably a reference to either Alexey Poltoranin (with “Alexander” being a germanization of the Russian/Kazakh name “Alexey”) or to Dr Aleksandr Lushchaev, his doctor. • Also, it is manifest from the evidence that the neither the Athlete nor his roommate Jan Alvela expected Ansgard Schmidt or any other visitor to come by that evening as Ansgard Schmidt had to wait a very long time and almost left before the door was finally opened. 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org CAS Anti-Doping Division 2020/ADD/7 & 13 - Page 9 Chambre Anti-dopage du TAS • As the door to room 24 was always unlocked, there was no need to meet with Ansgard Schmid and no key to hand over. Also, Ansgar Schmid never stated that he was handed over a key and even less so, that such key should have been handed over by the Athlete. • The metal box was not especially large or heavy and could easily have been overlooked, as it was covered by several other bags. Also it was locked and as the Athlete did not have a key to it, he could not have opened it to know its content. He is and was not the owner of the metal box and the criminal authorities were unable to determine its ownership. • As the police has established that Dr Mark Schmid and Dinna Sommer always carried their equipment necessary for the blood treatment, there would have been no need to store equipment in the Athletes room. • While Alexey Poltoranin admitted having been treated in the Athlete’s room, was not tested positive to any of the substances contained in the metal box. • Dr Alexander Lushchaev, Alexey Poltoranin’s medical doctor confirmed having brought the metal box and sports bag and stored his equipment for treating Alexey

Poltoranin in room 24, as he stayed in the Jugendherberge in Innsbruck and did not want to carry the equipment around. • Also, sport bags in every shape and form are common in accommodations occupied by sport professionals.

43. As for the additional evidence submitted by the Claimant in its second request for arbitration, the Athlete further submitted that he: • While he was in Ramsau am Dachstein in early December 2016 to inspect that the snow and ski track conditions, he was asked by Mati Alaver to pick up a parcel on a motorway service area in southern Austria about one-and-a-half hours away. Mati Alaver told the Athlete that it was medicine for bed-ridden Alexey Poltoranin to bolster his immune system and gave him an envelope with what the Athlete presumes was money, but did not check. • The Respondent then drove to the pick-up point Mati Alaver had told him about.

There, a man whom he did not know and had never seen before (or after) approached him. That man gave him a small parcel and the Respondent gave him the envelope. There was no talking between them apart from saying hello and goodbye. In particular, the bearer of the parcel did not tell the Respondent what was in it. There was no phone call or other kind of communication between the two before or after the encounter, neither. • The Respondent put the parcel on the back seat of his car and drove back to Ramsau. Back in Ramsau, he gave the parcel to Mati Alaver. Since it was not for him, the Respondent did not open the parcel and did also not see Mati Alaver or anybody else opening it. Accordingly, the Respondent never saw its content. However, he has no reason to doubt that it was medicine for Alexey Poltoranin, as Mati Alaver had told him. 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org

CAS Anti-Doping Division 2020/ADD/7 & 13 - Page 10 Chambre Anti-dopage du TAS • The evidence submitted by the Claimant does not show that the Athlete was aware of the content of the parcel and the emails exchanged between Dr Mark Schmidt and Mati Alaver do not mention his name, but that of his son Andreas, i.e. his code name “Andrei”. The fact that his phone number was mentioned in the email correspondence as “Andrei handy” can be explained by a short notice change of the driver. • Besides Dario Nemec’s statement, there is no evidence that the parcel in question contained IGF-1 and Dario Nemec’s evidence is unreliable as mostly wrong regarding places, dates and hours. • All other evidence confirm that the package did not contain IGF-1. The fact that the email correspondence between Dr Schmidt and Mati Alaver mentions “Pulver” proves that it was not IGF-1 and this substance was always referred to as “Isostar” by Dr Mark Schmidt. In addition, Karel Tammjärv asked questions to Dr Mark Schmidt regarding the usage of Vitamin-E, not “Isostar” and the evidence shows that IGF-1 is not a powdery substance, but a liquid. • More importantly, the Athlete’s name is not mentioned once in the email correspondence between Dr Mark Schmid, Mati Alaver and Karel Tammjärv which however evidences how Mati Alaver took care to conceal the doping activities as the athletes did not know that other athletes were also involved. • Also, according to the Claimant, the IGF-1 was intended for Karel Tammjärv's participation in the 2017 Nordic World Ski Championships in Lahti, Finland. However, Karel Tammjärv (nor Andreas Veerpalu, Algo Kärp or Alexey Poltoranin)

did not test positive for IGF-1 at these Championships (and also not for anything else). Consistent with this is the fact that Karel Tammjärv was not sanctioned for use of IGF-1 but only of hGH and Insulin pens; both he had received from Mati Alaver or directly from Dr Mark Schmidt, not from the Respondent. • According to art. 3.1, first sentence FIS ADR, FIS shall have the burden of establishing that an anti-doping rule violation has occurred. • The present case claim is not a “typical” doping case where the Claimant can simply present an Adverse Analytical Finding and then wait and see if the athlete is able to prove his or her innocence (see art. 2.1.2 FIS ADR). Rather, the Claimant has to prove that the Athlete would have committed an ADRV, not the other way around. The same is warranted under the applicable art. 8 of the SCC. • The standard of proof shall be whether FIS has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made (art. 3.1, second sentence FIS ADR). • The Respondent is of the view that the allegations raised against him by the Claimant are, even if they were true, only minor in nature. • The underlying rationale of the “comfortable satisfaction” standard is that sports federation like the Claimant have restricted powers of investigation compared to national formal interrogation authorities and do in particular not have invasive 613 50 00 Fax: +41 (21) 613 50 01 procedures@tas-cas.org CAS Anti-Doping Division 2020/ADD/7 & 13 - Page 11 Chambre Anti-dopage du TAS investigative means (like raids, confiscation, arrests, wire-tapping, etc.) at their disposal

(CAS 2014/A/3832 & 3833; FIS ADD-A-8).

• In the present case, however, the Claimant has been able to use all these means: The Austrian and German Police provided the Claimant with all the evidence and intelligence they had gathered in the context of the “Operation Aderlass” such as minutes of wire-taped conversations and in-person interrogations, mobile phone messages, surveillance photos, indices of confiscated items, etc. Accordingly, the Claimant was precisely not in a “difficult position to produce evidence in relation to the offence in question” (CAS 2014/A/3832 & 3833). There is therefore no reason whatsoever to lower the standard of proof in this case; rather, it is very much like an “Ordinary” criminal case where the applicable standard of proof is, without a doubt, the proof beyond reasonable doubt (see e.g. art. 10 para. 3 of the Swiss Criminal Procedure Code

[CPC]12). • The Athlete considers that the fact that his name is not mentioned once in the interrogation minutes of Karel Tammjärv, Andreas Veerpalu, Dr. Mark Schmid and of Dina Sommer and that he was not recognized by the latter in the pictures submitted to her is evidence that he was not involved; so is the assurance by Alexey Poltoranin that the Athlete was unaware of the blood doping treatments, repeated several times. • Even if the Claimant could have proven that the athlete was aware of the blood doping scheme, such awareness would not be sufficient as the “pure knowledge of doping practices does not fall under the scope of Art. 2.9 FIS ADR 2016”. • Given that there were no complicity actions by the Athlete, there is no legal basis for sanctions against him. Yet, the relevant CAS award leaves no doubt that any individual sanctioned for complicity must have at least some knowledge of the scheme he is accused of having conspired in. It therefore cannot be said that no knowledge would be required. • In any event, there was no intention on the Respondent's part (which is required for

all alternatives) to be complicit in the doping scheme. There is no negligent, or unknowing, complicity in an ADRV. • The Respondent submits that the Claimant has not met its burden of proof and that the elements of the complicity offence under 2.9 FIS ADR 2016 are not fulfilled.

44. In his Answer on the merits in CAS 2020/ADD/7, the Athlete requested the following relief: 613 50 00 Fax: +41