TAS - Laudo Arbitral CAS 2014A3734 WADA v Vladislav Lukanin and IWF

Tribunal Arbitral du SportCourt of Arbitration for Sport CAS 2014/A/3734 WADAy Vladislav Lukanin and [WF ARBITRAL AWARD delivered by THE COURT OF ARBITRATION FOR SPORT sitting in the following composition: Sole Arbitrator: His Hon, James Robert Reid QC in West Liss, United Kingdom in the arbitration between World Anti-Doping Agency (“WADA”), Montreal, Quebec, CanadaRepresented by Mr Julien Sieveking, Chief Legal Manager -Appellant-and Mr Vladislav Lukanin (“the Athlete”), Sochi, Russia -First RespondentInternational Weightlifting Federation (“IWF”), Lausanne, SwitzerlandRepresented by Dr Magdolna Trombitas, IWF Legal Counsel, Budapest, Hungary -Second RespondentChateau de Béthusy Av. de Beaumont 2 CH-1012 Lausanne Tél: +4121 6135000 Fax: +41 216135001 www.tas-cas.orgTribunal Arbitral du SportCourt of Arbitration for Sport I CAS 2014/A/3734 WADA v. Vladislav Lukanin & IWF — pg. 2 THE PARTIES The World Anti-Doping Agency (“WADA”) is a Swiss private-law foundation. Its seatis in Lausanne, Switzerland, and its headquarters are in Montreal, Canada. WADA wascreated in 1999 to promote, coordinate and monitor the fight against doping in sport inall its forms. The International Weightlifting Federation (“IWF”) is the international bodygoverning the sport of weightlifting. It is a signatory of the World Anti-Doping Code(“WADC”) having its registered seat in Lausanne, Switzerland, and its secretariat inBudapest, Hungary.

Mr Vladislav Lukanin (“the Athlete”) is a weightlifter affiliated to the RussianWeightlifting Federation which is a member of the IWF. As such the Athlete is boundby the terms of the IWF Anti-Doping Policy (“IWF ADP”). FACTUAL BACKGROUND Below is a summary of the relevant facts and allegations based on the parties’ writtensubmissions, pleadings and evidence adduced. Additional facts and allegations foundin the parties’ written submissions, pleadings and evidence may be set out, whererelevant, in connection with the legal discussion that follows. While the SoleArbitrator has considered all the facts, allegations, legal arguments and evidencesubmitted by the parties in the present proceedings, he refers in his Award only to thesubmissions and evidence he considers necessary to explain his reasoning, In 2003, the presence of the peptide hormone HCG, a prohibited substance, wasdetected in an in-competition sample provided by the Athlete during the 2003Weightlifting World Championships which took place in Vancouver between 14and 22 November 2003 (the “2003 Violation”). As a result, in accordance withRule 14.2 a) of the then current IWF Anti-Doping Policy (“IWF ADP”), theAthlete was sanctioned, pursuant to a decision of the IWF dated 26 January 2004,with a two-year period of ineligibility running to 16 November 2005 for an anti-doping violation. Following his return to competition, the Athlete submitted an in-competition teston 13 April 2011 during the European Weightlifting Championships in Kazan,Russia. The tests performed on both the A and B urine samples provided by theAthlete proved positive for epioxandrolone and i8-nor-oxandrolone. Bothepioxandrolone and 18-nor-oxandrolone are metabolites of oxandrolone. Oxandroloneis an exogenous, anabolic steroid, which is classified under "Si.i (a)" (AnabolicTribunal Arbitral du SportCourt of Arbitration for Sport

10. 11. CAS 2014/A/3734 WADA v. Vladislav Lukanin & IWF — pg. 3 Androgenic Steroids) on the 2011 WADA Prohibited List. As a result of this adverseanalytical finding the Athlete was provisionally suspended on 13 May 2011. Following a hearing at the Newport Bay Hotel, Disneyland, Paris, France on 7November 2011 the IWF Doping Hearing Panel (the “IWF DHP”), by a decisiondated 24 November 2011 (the “2011 IWF Decision”), held that the Athlete hadcommitted an anti-doping rule violation (the “2011 Violation”) and sanctioned himwith a period of ineligibility of 4 years. This sanction was a “standard sanction” fora first anti-doping rule violation in accordance with Rule 10.2 of the IWF ADP of31 March 2009 which was in force at the time. The four year period of ineligibilitycommenced on the date of the Athlete's provisional suspension, 13 May 2011. TheIWF DHP was not informed of the Athlete’s previous anti-doping violation in 2003. At the hearing the Athlete blamed his failure on his having taken a supplement inthe form of capsules labelled “Superior Amino 2222 Caps” purchased from aninternet site popular with body builders and power lifters. He had done so withoutany consultation with, or advice from, his coach, any doctor or any official of hisnational federation. Analysis of capsules produced by the Athlete showed that thecapsules contained the prohibited substance found in the urine samples. The IWF ADP was modified in September 2012. The 2012 version of the IWF ADPis the current version of the [WF ADP. Under this version of the IWF ADP theperiod ofineligibility (the “standard sanction”) for, inter alia, a violation of Rule2.1 (Presence of a Prohibited Substance or its Metabolites or Markers) wasreduced from four years to two years.

The Executive Committee of the IWF (apparently on an application of lex mitiorand in the light of Article 19.7.3 of the 2012 version of the IWF ADP) decided toapply “this reduction of suspension time to all athletes who are still serving theirperiod of ineligibility longer than two years in the period of ineligibility for afirst violation.” This decision was notified to the Russian WeightliftingFederation of this decision by letter dated 29 October 2012. By that letter [WFinformed the Russian Federation that the new date for the end of the Athlete”ssuspension was 13 May 2103 (the “Reduction Decision”). WADA received the 2011 IWF Decision (i.e. the decision imposing a period ofineligibility of four years) on 8 August 2014 as an attachment to an email from theIWF and requested the case file from the IWF by a letter dated 18 August 2014.WADA received documents relating to the 2011 IWF Decision attached to an emailfrom [WF dated 19 August 2014, These documents did not include the 2012 IWFReduction Decision.Tribunal Arbitral du SportCourt of Arbitration for Sport 12, Til. 13, 14. TS. 16. 17. 18. 19; 20. 21. CAS 2014/A/3734 WADA v. Vladislav Lukanin & IWF —pg. 4 Following a further request by WADA on 22 August 2014, WADA received theReduction Decision as an attachment to an email from the IWF on 26 August 2014 PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORTAND THE CONSTITUTION OF THE PANEL WADA filed its Statement of Appeal serving as Appeal Brief with the CAS by faxand registered mail on 8 September 2014 against the 2011 IWF decision and theReduction Decision (together the “Challenged Decisions”), in accordance withArticles R47, R48 and R51 of the Code Sports-related Arbitration (2013 edition)(the “Code”).

By its Statement of Appeal, WADA sought provisional measures pending thedetermination of the appeal as well as substantive relief. By letter dated 10 September 2014, enclosing the “Statement of Appeal/AppealBrief” the CAS informed the parties that, in accordance with Article R37 of theCode, the Respondents were granted a deadline of 10 days from receipt of the letterby courier to file their position on WADA’s request for provisional measures. The arbitration proceedings were served on the Athlete and the IWF on 13 September2014 and 11 September 2014, respectively. On 12 September 2014, IWF responded to the application for provisional measuresthat “The IWF hereby [...] agrees with the application for provisional measures.” TheAthlete did not respond to the application for provisional measures. On 19 September 2014, IWF expressed the wish to have the matter determined by asole arbitrator. By an e-mail dated 29 September 2014 WADA stated that it had no objection to thematter being referred to a sole arbitrator. On 3 October 2014 by e-mail the Athleteagreed “to proceed with a single arbitrator”. Neither the Athlete nor IWF filed any answer in response. The IWF however indicatedby letter dated 30 September 2014 that it would not file a statement of defence butwould abide by the award to be rendered. On 13 October 2014, the CAS informed the parties that in absence of agreementbetween the parties as to the person of the Sole Arbitrator the President or his Deputywould proceed with appointing a Sole Arbitrator pursuant to Article R54 of the Code.Tribunal Arbitral du SportCourt of Arbitration for Sport 22. 23% 24. IV 25: CAS 2014/A/3734 WADA v. Vladislav Lukanin & IWF — pg. 5

On 4 November 2014, the President appointed His Honour James Robert Reid QC asSole Arbitrator. The Sole Arbitrator, having considered the preference expressed by the parties for thematter to be determined without a hearing, pursuant to Article R57 of the Code hasdetermined not to hold an oral hearing. In view of the circumstances, and in particular the short duration of the presentprocedure, the request for provisional measures filed by WADA has become moot andshall not be ruled upon.

THE PARTIES’ SUBMISSIONS

On behalf of WADA it was submitted: 25.1 25.2 25;3 The Athlete did not contest the presence of the metabolites of a prohibitedsubstance in his urine sample taken in 2011. He did not have a therapeutic useexemption in place at the time of the anti-doping rule violation.Consequently, the violation by the Athlete of Article. 2.1 of the 2009 [WFADP (presence of a prohibited substance or its metabolites or markers inan athlete's bodily specimen) was established. The Athlete did not appealagainst the 2011 IWF Decision, which imposed a four year ineligibilityperiod. The four year period of ineligibility was the standard sanction under the 2009IWF ADP for a first violation of Article. 2.1. The IWF DHP determined theapplicable sanction in the erroneous belief that the Athlete had not previouslybeen sanctioned for an anti-doping rule violation. In fact, the Athlete had beensanctioned with a two year period of ineligibility in respect of the 2003Violation.

Pursuant to the IWF ADP in force at the time of the 2003 Violation, a twoyear period of ineligibility was the standard sanction for a first anti-dopingrule violation involving peptide hormones. The sample which led to the2003 Violation was collected during the 2003 Weightlifting WorldChampionships which took place in Vancouver between 14 and 22 November2003. The sample collection which led to the 2011 Violation was collected on13 April 2011. The two anti-doping rule violations occurred within the sameeight year period and must therefore be considered as multiple violations forthe purposes of Rule 10.7 of the 2009 IWF ADP.Tribunal Arbitral du SportCourt of Arbitration for Sport 26. 25.4 23.5 23.6 25:7 25.8 25.9 CAS 2014/A/3734 WADA v. Vladislav Lukanin & IWF — pg. 6 Consequently, the 2011 Violation should have been sanctioned as a secondanti-doping rule violation in accordance with Rule. 10.7 of the 2009 IWFADP and, in particular, the table set out at Rule 10.7.1. The 2003 Decisionconstituted a "standard sanction" for the purposes of Rule 10.7 of the 2009IWF ADP. Similarly, the IWF DHP found that the 2011 Violation, whenconsidered in isolation, also merited the "standard sanction" of four yearsunder the 2009 IWF ADP. Where an athlete (i) commits a second anti-doping rule violation which would(in isolation) attract a standard sanction and (ii) has already been sanctionedwith a standard sanction in respect of a previous anti-doping rule violation,the applicable ineligibility period is between 8 years and lifetime ineligibilityunder both the 2009 IWF ADP and the 2012 IWF ADP. Consequently, theAthlete's second violation, ic. the 2011 Violation, should have beensanctioned with an ineligibility period of between eight years and lifetime.

Bearing in mind the serious nature of the substances involved in the 2003Violation and the 2011 Violation — peptide hormones and anabolic steroids— WADA submitted that there is certainly no reason why the Athlete shouldbenefit from the minimum applicable sanction, i.e. 8 years. The IWF DHP imposed the wrong sanction on the Athlete in respect of the2011 Violation because it did not appreciate that the Athlete had previouslybeen sanctioned for an anti-doping rule violation. This information shouldhave been known or made available to the IWF DHP. Because of this omission on the part of the IWF, WADA was duty-bound toappeal against the Challenged Decisions in order to ensure that a Code-compliant sanction is imposed. The IWF neglected to provide WADA withthe 2011 IWF Decision for a period of nearly three years with the result theAthlete has eligible to compete in circumstances where he should have beenserving a long (even lifetime) ban. Neither the Athlete nor [WF has made any submissions as to the substance ofthe appeal. JURISDICTION OF THE CAS AND ADMISSIBILITY OF THE APPEAL Article R47 of the Code provides as follows: “An appeal against the decision of a federation, association or sports-related bodymay be filed with the CAS insofar as the statutes or regulations of the said body soTribunal Arbitral du SportCourt of Arbitration for Sport 27. 28. 29. 30. Ji. IL 33 CAS 2014/A/3734 WADA v. Vladislav Lukanin & IWF — pg. 7 provide or as the parties have concluded a specific arbitration agreement andinsofar as the Appellant has exhausted the legal remedies available to him prior tothe appeal, in accordance with the statutes or regulations of the said sports-relatedbody.”

According to Rule 13.2.1 of both the 2009 and 2012 TWF ADP: "In cases arising from participation in an International Event or in cases involvingInternational-Level Athletes, the decision may be appealed exclusively to CAS inaccordance with the provisions applicable before such court.” The European Weightlifting Championships 2011 was an International Event, for thepurposes of Rule 13.2.1 of the 2012 IWF ADP, such an event being defined as “AnEvent where the International Olympic Committee, the International ParalympicCommittee, an International Federation, a Major Event Organization, or anotherinternational sport organization is the ruling body for the Event or appoints thetechnical officials for the Event.” Rule 13.2.3 of both the 2009 and 2012 IWF ADP sets out the persons entitled to appealunder art. 13.2.1. WADA is explicitly mentioned amongst such persons (at sub-paragraph (f) of the first paragraph of the article). In light of the above, WADA has a right of appeal against the Challenged Decisionsto the CAS whether the relevant provisions are those of the 2009 IWF ADP or the2012 IWF ADP. Under Rule 13.6 of both the 2009 IWF ADP and the 2012 IWF ADP: “The above notwithstanding, the filing deadline for an appeal or intervention filedby WADA shall be the later of: (a) Twenty-one (21) days after the last day on whichany other party in the case could have appealed, or (b) Twenty-one (21) days afterWADA’s receipt of the complete file relating to the decision.” WADA received documents relating to the 2011 IWF Decision on 19 August 2014,and subsequently received the Reduction Decision on 26 August 2014. The appeal toCAS against both the 2011 IWF Decision and the Reduction Decision is thereforemade within the applicable time-limit.

The CAS accordingly has jurisdiction and the appeal is admissible.Tribunal Arbitral du SportCourt of Arbitration for Sport VI 34, Vil

35. 36. ah CAS 2014/A/3734 WADA v. Vladislav Lukanin & IWF —pg. 8

APPLICABLE LAW Article R58 of the Code provides as follows: “The Panel shall decide the dispute according to the applicable regulations and,subsidiarily, the rules of law chosen by the parties or, in the absence of such achoice, according to the law of the country in which the federation, association orsports-related body which has issued the challenged decision is domiciled oraccording to the rules of law, the application of which the Panel deemsappropriate. In the latter case, the Panel shall give reasons for its decision.” Accordingly this matter falls to be decided according to the IWF ADP and subsidiarilySwiss law. THE RELEVANT IWF ADP RULES The edition of the IWF ADP in force at the time of the 2011 Violation was the 2009IWF ADP. By Article 18.7 of the 2009 IWF ADP, those rules came into full force andeffect on 31 March 2009. The version of the IWF ADP in force at the time of this appeal is the 2012 [WF ADP.Those Rules are (perhaps surprisingly) expressed to “have come into full force andeffect on 1 January 2009 (defined as the “Effective Date”)”: see Article 19.7, Theyare not to apply retrospectively to matters pending before the Effective Date,provided, however, that: “19.7.1 With respect to any anti-doping rule violation case which is pending asof the Effective Date and any anti-doping rule violation case brought after theEffective Date based on an anti-doping rule violation which occurred prior tothe Effective Date, the case shall be governed by the substantive anti-dopingrules in effect at the time the alleged anti-doping rule violation occurred unlessthe panel hearing the case determines the principle of “lex mitior”appropriately applies under the circumstances of the case.”

By Article 19.7.3 of the 2012 IWF ADP, provision was made for the effect of theamendment to the Articles by which the standard sanction for violations of, inter alia,Article 10.2 of the 2009 Code was reduced. It provides: “With respect to cases where a final decision finding an anti-doping ruleviolation has been rendered prior to the Effective Date, but the Athlete or otherPerson is still serving the period of Ineligibility as of the Effective Date, theAthlete or other Person may apply to the Anti-Doping Organization which hadTribunal Arbitral du SportCourt of Arbitration for Sport 38. 39, 40. 41. 42. 43. CAS 2014/A/3734 WADA v. Vladislav Lukanin & IWF — pg. 9 results management responsibility for the anti-doping rule violation to considera reduction in the period of Ineligibility in light of these anti-doping rules. Suchapplication must be made before the period of Ineligibility has expired. Thedecision rendered may be appealed pursuant to Article 13.2. These anti-dopingrules shall have no application to any anti-doping rule violation case where afinal decision finding an anti-doping rule violation has been rendered and theperiod of ineligibility has expired.” Article 10.2 of the 2009 Code provided as follows: “The period of Ineligibility imposed for a violation of Article 2.1 (Presence ofProhibited Substance or its Metabolites or Markers), Article 2.2 (Use orAttempted Use of Prohibited Substance or Prohibited Method) or Article 2.6(Possession of Prohibited Substances and Prohibited Methods) shall be asfollows, unless the conditions for eliminating or reducing the period ofIneligibility, as provided in Articles 10.4 and 10.5, or the conditions forincreasing the period of Ineligibility, as provided in Article 10.6, are met:First violation: Four (4) years’ Ineligibility.”

Article 10.2 of the 2012 Code is in identical terms, save that the period ofineligibility is set at 2 years, It has not been suggested in the course of the appeal that any of Articles 10.4, 10.5or 10.6 are relevant and there has been no evidence produced which might makeany of them material. Article 10.7.1 under the heading “Multiple Violations” is in the same terms in boththe 2009 and 2012 Codes. It provides, inter alia, that the standard sanction for asecond anti-doping rule violation under Article 10.2 where the first violation waspunished with a standard sanction under Article 10.2 shall be a period ofIneligibility of between 8 years and lifetime. Article 10.7.5 states as follows: “For the purposes of Article 10.7, each anti-doping rule violation must takeplace within the same eight (8) year period in order to be considered multipleviolations.” Article 10.8 of both the 2009 and 2012 Codes provides as follows: “In addition to the automatic Disqualification of the results in the Competitionwhich produced the positive Sample under Article 9 (Automatic Disqualification ofTribunal Arbitral du SportCourt of Arbitration for Sport 44. VII. 45, 46. 47. CAS 2014/A/3734 WADA v. Vladislav Lukanin & IWF — pg. 10 Individual Results), all other competitive results obtained from the date a positiveSample was collected (whether In-Competition or Out-of-Competition), or otheranti-doping rule violation occurred, through the commencement ofany ProvisionalSuspension or Ineligibility period, shall, unless fairness requires otherwise, beDisqualified with all of the resulting Consequences including forfeiture of anymedals, points and prizes.”

Article 10.9 of both the 2009 and 2012 Codes provides (so far as material) as follows: “Except as provided below, the period of Ineligibility shall start on the date of thehearing decision providingfor Ineligibility or, if the hearing is waived, on the dateIneligibility is accepted or otherwise imposed. Any period of ProvisionalSuspension (whether imposed or voluntarily accepted) shall be credited against thetotal period of Ineligibility imposed...10.9.3 Ifa Provisional Suspension is imposed and respected by the Athlete, then theAthlete shall receive a creditfor such period ofProvisional Suspension against anyperiod of Ineligibility which may ultimately be imposed.” MERITS OF THE APPEAL The Sole Arbitrator is comfortably satisfied that each of the two anti-doping violationson which WADA relies occurred. The Athlete did not seek to challenge the findingswhich led to the first suspension following a test taken in the period 14 to 22 November2003 during the World Championships in Vancouver. No suggestion has been madein the course of this appeal that the Athlete was not guilty of that violation or that thelaboratory report detecting peptide hormone HCG in his sample was incorrect. As tothe second violation, the Athlete was tested on 13 April 2011 during the EuropeanChampionships. Neither at the original hearing on 7 November 2011 nor on this appealdid the Athlete seek to suggest that the analysis of the A or B sample was in any wayin error or that there was any deficiency in the way the samples were collected andtreated. The Athlete did not seek to appeal against the decision of the [WF DHP.

Since the first violation took place in November 2003 and the second in April 2011the two violations took place within the same eight year period and must therefore beconsidered multiple violations within the terms of Article 10.7.5 of both the 2009 and2012 IWF ADP. When the Athlete was found by the IWF DHP in 2011 to have committed a secondanti-doping violation under Article 10.2, the IWF DHP should have imposed a sanctionof between 8 years and life ineligibility in accordance with the 2009 IWF ADC. Theonly reason why it could have failed to impose a sanction in accordance with Article10.2 of the 2009 Code is that it was not made aware of the fact that the Athlete hadTribunal Arbitral du SportCourt of Arbitration for Sport 48. 49. 50. 31. 52. CAS 2014/A/3734 WADA v. Vladislav Lukanin & IWF — pg. 11 been previously sanctioned in 2003. It imposed an incorrect sanction on the Athlete inrespect of the 2011 Violation as it failed to appreciate that the Athlete had previouslybeen sanctioned for an anti-doping rule violation. This information should have beenknown or made available to the [WF DHP. In these circumstances the period of ineligibility imposed ought to have beenbetween 8 years and life. The letter from IWF dated 29 October 2012 purported to record a decision of theIWF Executive Board by which the period of ineligibility imposed on the Athletewas reduced so as to end of 13 May 2013. The material parts of that letter are asfollows: “... [A]mong others Article 10.2 was amended and the period of Ineligibilityfor first violation was reduced from 4 years to 2 years. Other related provisionsare amended accordingly... In addition to the above, the IWF Executive Boarddecided to apply this reduction ofsuspension to all athletes who are still servingtheir period of ineligibility longer than 2 years.”

The letter then identified the Athlete as one of those to benefit from the decision ofthe Executive Board. It appears that by its letter the [WF was trying to short-circuit the process envisagedby Article 19.7.3 of the 2012 IWF ADP. Under that provision an athlete seeking totake advantage of the reduction in penalties under the 2012 IWF ADP would haveto apply to the Anti-Doping Organization which had results managementresponsibility for the anti-doping rule violation (in the case of the Athlete, IWF).Although the process used in sending out the letter of 26 October 2012 (and nodoubt other letters in similar terms) was technically flawed, it did no more thanspeed up what might otherwise have been a somewhat tedious administrativeprocess for IWF Executive Board. The substance of the problem with the decision recorded in the letter is that it waswritten on the basis that the Athlete was a first time offender, as would haveappeared correct to the [WF Executive Board on the face of the IWF DHP’sdecision. Since in fact the Athlete had been guilty of a second anti-doping ruleviolation the fundamental premise of the letter was flawed. The decision wasintended only to benefit a person serving a four year period of ineligibility underthe terms of Article 10.2 as it stood in the 2009. In these circumstances the 2011 IWF DHP decision must be set aside and a freshsanction imposed in accordance with Article 10.7 of the 2009 version of the Code.Tribunal Arbitral du SportCourt of Arbitration for Sport TX. 53. 54. 55. 56. BA CAS 2014/A/3734 WADA v. Vladislav Lukanin & IWF — pg. 12 Such a sanction must be in the range of 8 years to life ineligibility. Once this isdone the decision of the IWF Executive Committee falls away because on its trueconstruction the decision was intended only to apply to athletes serving a period ofineligibility longer than two years under the 2009 version of Article 10.2. It has noapplication to the Athlete who is to serve a period of ineligibility under Article 10.7of the 2009 Code.

THE SANCTION WADA submitted that as a result of the failure of TWF to inform the [WF DHP in 2011of the Athlete’s 2003 anti-doping violation and its failure to inform WADA timeouslyof the 2011 decision, the Athlete has been for some 18 months been eligible tocompete, and has been competing, in circumstances where he should have been servinga long or even a lifetime ban. It asserts that in these circumstances and in the light ofthe seriousness of the two violations there were no reasons why the Athlete shouldbenefit from the minimum ban of 8 years. It is correct that the Athlete should not have been in a position to complete during theperiod from 13 May 2013, but he did so having been cleared to compete by the IWF.It was the failure of the IWF to alert the [WF DHP to the Athlete’s first anti-dopingrule violation which led to the imposition of a period of ineligibility of only 4 years. Itis unrealistic to expect the Athlete to have done this when the IWF did not do so. As to the seriousness of the second violation, this was no more nor less serious thanmany other violations. The second violation was, it appears, a violation committed bynegligence rather than by intent. As the IWF DHP observed in its decision: “Anyathlete who uses a so-called “supplement” without knowing precisely whatingredients and constituents it has is taking a risk that in fact it contains a ProhibitedSubstance. It is tragic to see an illustrious sporting career end because the athlete hasgambled on the contents of a “supplement”, but has lost that gamble. It is a very highprice to pay.”

Tn all the circumstances this is not a case which calls for a period of ineligibility greaterthan the lower end of the bracket set out in the [WF DHP and the appropriate periodof ineligibility is one of eight years. There follows the question of whether the results obtained by the Athlete in the periodfrom 13 May 2013 to the date of this award should be allowed to stand. The terms ofArticle 10.8 provide for a case such as the present. They provide for disqualificationof results from the date a positive sample was collected “through the commencementof any Provisional Suspension or Ineligibility Period”. The word “any” has the effectTribunal Arbitral du SportCourt of Arbitration for Sport 58. 39. CAS 2014/A/3734 WADA v. Vladislav Lukanin & IWF — pg. 13 of catching results in any period between the end of a period of Ineligibility and there-commencement of a period of Ineligibility as a result of a decision on appeal. The question then arises as to whether fairness requires that those results should beallowed to stand. Article 10.8 provides for the disqualification of results in a case“unless fairness requires otherwise”. There is nothing in this case which requires thatthe Athlete’s results be allowed to stand. Under Article 10.9 the period of ineligibility(subject to certain exceptions) “shall start on the date of the hearing decision providingfor Ineligibility”. One of the exceptions gives athletes credit for any period ofprovisional suspension preceding the hearing decision. The effect in this case has beento backdate the period of ineligibility so as to commence on 13 May 2011. It would becontrary to fairness and common sense for the Athlete to be able to retain the benefitof his results over the period from May 2013 while at the same time having the benefitof counting the same period as a part of his period of Ineligibility.

CONCLUSION

CONCLUSION It follows that WADA’s appeal must be allowed and a period of eight yearsineligibility imposed on the Athlete. The determination of the IWF DHP as to theperiod of Ineligibility is set aside and a period of eight years ineligibility is substitutedcommencing on 13 May 2011. The effect of this is to make void the decision of theIWF Executive Committee to reduce the period of ineligibility imposed by the IWFDHP to two years, that decision having been made upon the false premise that t