The Federal Supreme Court of Switzerland has rejected an appeal by Estonian wrestler Heiki Nabi against the International Court of Arbitration for Sport's (CAS) decision to uphold his two-year ban. In October, the CAS ruled, that while Nabi could not be considered to have willingly used performance enhancing substances, his ban would not be overturned.
The Estonian Anti-Doping and Sports Ethics Foundation (EADSE) said, that, in Nabi's case, the dispute came down to a matter of principle, with the aim being to establish the truth and bring clarity to the way anti-doping regulations ought to be applied.
According to EADSE board member Henn Vallimäe, the Swiss court's decision confirms that the EADSE did what it could to ensure the rules of fair play in sport were upheld and that Nabi's case had been handled in accordance with the relevant principles and regulations.
"It has been confirmed that neither the EADSE nor the CAS violated the athlete's rights or procedural rules in the handling of the case. The rules and the system for handling doping cases are the same for all athletes and must be applied equally to all athletes," said Vallimäe.
For now, only the operative part of the decision made by the Federal Supreme Court of Switzerland on March 13 has been published, with the reasoned decision to follow later.
In its decision released on October 20 last year, the CAS dismissed the appeal of Greco-Roman wrestler Heiki Nabi in its entirety and upheld the two-year ban imposed on Nabi by the Estonian Anti-Doping Disciplinary Board (EADS) on the grounds that the banned substance Letrozole had been detected in his doping sample.
Nabi then appealed against the CAS' decision to the Federal Supreme Court of Switzerland. Nabi's argument was, that the sanctioning of an athlete in a situation where they cannot be considered to have intentionally cheated, yet at the same time also cannot prove the source of accidental contamination, is contrary to Swiss public policy. However, the Swiss court disagreed. Therefore, the principle remains that athletes are liable for the presence of prohibited substances in their bodies, unless they can prove the source of the alleged contamination and that they have acted diligently to avoid contravening anti-doping rules.
Following the decision of the CAS and the Federal Supreme Court of Switzerland, the Estonian Anti-Doping and Sports Ethics Foundation (EADSE) said, that its rules, which are based on the WADA (World Anti-Doping Code) require athletes to provide clear evidence of how a banned substance entered their system in order for a ban to be reduced.
In cases like this, instead of the usual four-year ban, a two-year ban will apply unless it can be proven that the athlete in question intentionally violated the anti-doping rules. Thus, as the CAS also explained in its assessment of Heiki Nabi's case, no athlete who has been banned from competing for two years or less can be labeled a cheat. In this respect, Heiki Nabi's situation is no different from other similar cases.
However, the fact that a banned substance was found to be present in an athlete's body will still be considered a doping violation if the athlete fails to prove conclusively the source of the alleged contamination and that they have acted as diligently as possible to avoid contamination.
In such cases, a two-year ban from competition will usually be administered. If the source of the contamination is proven, depending on the circumstances of the contamination, the two-year ban may be reduced or the sanction no longer applied. In the case of Heiki Nabi, there was no basis for such a decision as none of the four possible contamination scenarios put forward by the athlete were considered credible or proven by CAS.
In a statement released on Wednesday, the EADSE said, that it is obliged to follow international rules and practices at all times and therefore cannot make exceptions for Estonian athletes when handling individual cases. The EADSE said, that it will always explain to the athletes involved, what needs to be proven in order for bans to be reduced or waived.
However, as the EADSE does not have the same rights as the Police and Border Guard Board (PPA) or the Prosecutor's Office to conduct its doping investigations, the athlete has an important role to play in gathering and presenting any evidence, which may lead to the overturning of a prior decision in court.
The EADSE added, that Nabi's case demonstrates the importance of athletes competing in the international arena taking measures to prevent the risk of violating doping rules. Keeping accurate training diaries as well as documentation regarding the composition and origin of food and food supplements they consume is also necessary as this can be important evidence if they are ever involved in doping-related proceedings.
Nabi, who won a silver medal for Estonia at the London Olympics in 2012, was initially banned from competing by the disciplinary board of the Estonian Center for Integrity in Sports (ESTCIS) in June 2021, after a sample provided during an out-of-competition doping test was found to contain the banned substance Letrozole in February of the same year. As a result, Nabi missed out on competing for Estonia at the 2021 Tokyo Olympics.
Last October, the International Court of Arbitration for Sport (CAS) upheld the ban, but stated in its decision that Nabi had been an unfortunate victim and could not rightfully be labeled a cheat or willing user of banned substances. Nabi then appealed CAS' decision at the Federal Supreme Court of Switzerland.
He also did not rule out the possibility of continuing to compete in top-level sport once the ban was lifted.
"I can at least be happy that the CAS agreed that I have not been a bad athlete or a (willing) user of banned substances. That gives me some satisfaction. What happens next, whether there actually will there be a (court) procedure and so on, is difficult to say. I hope it goes well and sets a (new) precedent," Nabi told ERR last November.
As for the resumption of his career in Greco-Roman wrestling, Nabi promised to give a more precise answer in the spring, once his ban is over. "I can honestly say, that I still have the desire to return to top level sport and fight for the Olympic medal that this incident has robbed me of," he said.
Nabi's ban from competing has officially expired this week.
Editor: Michael Cole