The athlete had submitted that the sabotage must have been carried out by Mr Jithesh, who had previously attempted to tamper with the athlete’s food and who was an associate of Mr (Sushil) Kumar, a rival wrestler who had made threats to the Athlete; these threats had been made known to the police; the sabotage must have taken place on 23 or 24 June 2016, at the training facility where the Athlete, his roomate and Mr Jitesh were all present; it involved Mr Jithesh putting the prohibited substance, in powder form, into the Athelte’s (and also into his roomate’s) amino drink whilst he was training and out of his view; Mr Jithesh mixed it in a sufficent quantity to give the first test results and for the long term metabolite to show an increase in the second test some 10 days later; and that the powder, when mixed with water would appear the same as the amino supplement when mixed with water, so would not appear out of the ordinary to the Athlete.
Drug was taken orally
WADA relied upon Professor Ayotte (expert) to challenge the sabotage submission and circumstantial evidence. The expert evidence was that this was not a one-time ingestion (the reading of the long term metabolite in his second test was consistent with a second ingestion towards the end of June 2016); the roomate’s ingestion was not at the same time (he had the parent compound of methandienone in his test results, so he must have taken the substance sometime after the Athlete, as opposed to them both having their drinks spiked at the same training session); and the concentration of the prohibited substance in the first result was so high that it had to come from an oral ingestion of one or two tablets of methandienone, rather than from a drink where the powder had been mixed with water.
Sabotage not probable
The Panel had to weight the circumstantial evidence of the Athlete against the scietific evidence of WADA to determine whether it was satisified with the athlete’s position that he didn’t take the prohibited substance intentionally. The Panel is conscious that the expert evidence offered by Professor Ayotte may be susceptible to qualification by other expert(s), however, the Panel has no reason to question the scientific data offered and /or her expert testimony.
The Panel noted in the closing remarks that the Athlete’s counsel submitted that he may have been subject to further sabotage, but all in all found the sabotage theory possible but not probable and certainly not grounded in any real evidence. The Panel therefore determined that the Athlete had failed to satisfy his burden of proof and the Panel was satisfied that the most likely explanation was that the Athlete simply and intentionally ingested the prohibited substance in tablet form on more than one occasion.
What changed the verdict
WADA called Professor Christiane Ayotte, who was part of the Mc Laren committee which investigated the extent of doping among Russian athletes, as an expert witness and she provided the Panel with a written statement and was examined by WADA, the athlete and the Panel at lenght during the hearing in the Narsingh Yadav versus WADA/NADA case on the sidelines of the Rio Olympics.
The CAS verdict says: The Panel found her testimony extremely measured and pertinent to the facts of this matter. She was at pains to explain that “this is not an exact science” and careful not to give an opinion where it could not be supported by science. Using the research and from her analysis of the two test results carried out on the athlete and on the one test result of his roomate, prof Ayotte was able to conclude as follows:
Metabolites up by 5 times
There was at least 12 to 20 hours difference between the ingestion of the prohibited substance by the athlete and by his roomate. The ingestion was from a therapeutic dose, rather than from a suspension in water; and the long term metabolite reading in the athlete’s first sample was 4ng/ml, yet 10 days later the long term metabolite reading in the second sample was 20ng/ml. While the reading can increase, it would only do so in the first 2 or 3 days of ingestion. As there was no trace of the parent compound in the first reading, the likely ingestion was a few days before June 25, 2016 (day samples were collected which resulted in the first positive test).
The conclusion is that the long term metabolite in the second test was from a different (second) ingestion of the prohibited substance. ENS