The story of Russian star biathlete Evgeny Ustyugov (pictured), who stands accused of doping but maintains his innocence, has not only made headlines in sporting circles in recent weeks, but has also spawned a legal saga that is unlikely to end anytime soon.
It all began with allegations of widespread doping following the 2014 Winter Olympics in Sochi. Ustyugov, winner of a gold medal at the Olympics, got caught in the dragnet and was subsequently stripped of his award and banned from the sport by the International Biathlon Union’s (IBU) Anti-Doping Hearing Panel in February this year. The case is ongoing as Ustyugov challenged the sanction before the Court of Arbitration for Sport, which is expected to hear the appeal next year.
On the top of that, the IBU initiated other proceedings before the Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD) in Switzerland earlier this year. The bone of contention was a curious one: abnormally elevated haemoglobin levels, which for the IBU was evidence for doping.
However, Ustyugov’s defense had long argued that the athlete carries an exceptionally rare genetic mutation that leads to haemoglobin overproduction. Unconvinced, the CAS ADD ruled against Ustyugov on 27 October, thereby upholding the IBU’s point of view in the face of what the defence claims is overwhelming evidence to the contrary.
“The CAS ADD found that the abnormalities in the athlete biological passport (ABP), namely high haemoglobin (HGB) values, could not be explained by his particular genetic condition”, explained to EuReporter Yvan Henzer, a member of the defence team representing Ustyugov. “Said otherwise, the CAS ADD found that the abnormalities were caused by doping.”
But here is where things become complicated. Along with the defence’s submission of blood samples that showed the athlete to have high haemoglobin levels in 2017 and 2020 – three and six years, respectively, after Ustyugov’s retirement from the sport – CAS ADD listened to the testimony of three geneticists, two of which supported the defence’s position. According to Henzer, however, the court “did not follow the two Russian geneticists and preferred the opinion of the geneticist appointed by WADA who believes that genetic mutations of Mr Ustyugov cannot cause high haemoglobin values.”
While CAS ADD’s decision was swift, it leaves unanswered a number of uncomfortable questions. Their significance derives from the fact that they challenge not only the legal authority of CAS ADD to rule on the case, but also call into doubt the fairness of the trial itself. “When [Mr Ustyugov] was affiliated with the IBU, he accepted to be placed under the jurisdiction of the IBU Anti-Doping Hearing Panel”, says Henzer. But because the CAS anti-doping division is a new institution that was only established in 2019, the defence argues it has no jurisdiction over the case at hand.
“We filed a legal opinion of a prominent expert who clearly concluded that the CAS ADD could not have jurisdiction,” clarified Henzer, but the trial went ahead nonetheless. Not surprising then that in coming to its ruling, Henzer accuses the trial to have been a rather one-sided affair in which the judges turned a blind eye to a series of vindicating facts. For example, Ustyugov’s parents also have shown to have elevated haemoglobin levels thanks to the same genetic mutation, “which establishes that the genetic mutations effectively cause high haemoglobin values.”
This was not considered in court, just as blood samples from Ustyugov showing high haemoglobin levels – even after his retirement – were dismissed by the court on the grounds that they were taken without independent oversight. Yet this would imply that Ustyugov had taken performance enhancing drugs even beyond his professional career – and deep into his retirement.
With these inconsistencies left unexplained, another issue concerns the circumstances in which the IBU collected Ustyugov’s samples. Henzer insists they were collected “in clear violation of the WADA Guidelines”, meaning they cannot be considered “valid evidence” as adherence to temperature and transportation requirements created by WADA itself was not demonstrated. Even so, CAS ADD failed to consider this argument altogether, much to Henzer’s dismay, “as the violation of these Guidelines was a very strong argument that could not even be rebutted by the IBU’s counsel” – making it seem as if “the outcome was written in advance.”
Whether this really was the case remains unclear, yet Henzer makes it clear that the fight is far from over: “We will definitely appeal before the CAS and probably file an appeal before the Swiss Supreme Court on the issue of jurisdiction as well.” As things stand now, the Ustyugov case is set to go into the next round.