CAS 2016/O/4463 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) & Kristina Ugarova
- Athletics (Middle distance)
- Doping (Athlete’s Biological Passport, ABP)
- CAS Jurisdiction according to Article 38.3 IAAF Competition Rules
- Increased red blood cell mass, altitude and diarrhea
- Increased HGB levels and mental stress
- Establishment of an anti-doping rule violation by means of an ABP
- Determination of the applicable sanction and number of abnormal samples in an ABP
- Aggravating circumstances
- Disqualification of results in case of a violation found by reference to the ABP
- Application of the principle of proportionality with regard to disqualification of results
1. In circumstances where an IAAF member federation is prevented from convening and completing a hearing within the deadline set by Rule 38.3 of the IAAF Competition Rules (the “IAAF Rules”), e.g. because it is suspended from IAAF activities, the IAAF is permitted to refer the matter directly to a sole arbitrator appointed by CAS, subject to an appeal to CAS in accordance with Rule 42 of the IAAF Rules. In case of such referral it is Rule 38.3 of the IAAF Rules that establish the jurisdiction of CAS.
2. An athlete seeking to explain the abnormal blood values in one of his Athlete Biological Profile (ABP) samples by training/residing at high altitude or dehydration due to diarrhea needs to submit conclusive evidence in this respect, supported by unanimous opinions of experts in the field.
3. Whereas it is potentially possible that mental stress increases HGB levels, an athlete seeking to rely on stress as cause for his increased HGB levels needs to establish that the stress had occurred prior to the taking of the blood samples showing increased HGB levels. Furthermore it cannot be lightly accepted that an athlete encountered a significant level of stress because of participating in a major international competition; otherwise any athlete confronted with abnormal blood values could potentially use this argument in bad faith.
4. Abnormal values in the ABP of an athlete for which he cannot provide a credible explanation do not on their own allow the conclusion that an anti-doping rule violation has been committed. Rather, the deviations in the ABP are to be interpreted by experts, called to examine various hypothesis that could explain the abnormality in the profile values; i.e. a distinction is made between a “quantitative” and a “qualitative” assessment of the evidence. Specifically, the inference to be drawn from abnormal blood values is enhanced where the ascertainment of such values occurs at a time when the athlete in question could benefit from blood manipulation, i.e. if the levels coincidence with the athlete’s racing schedule. In conclusion, to find that an athlete has committed an anti-doping rule violation the panel needs to be convinced that the abnormal values are caused by a “doping scenario”, which does not necessarily derive from the quantitative information provided by the ABP, but rather from a qualitative interpretation of the experts and possible further evidence.
5. The number of abnormal samples establishing an anti-doping rule violation in the framework of an ABP profile, without any further argument, cannot be considered as a starting point for discussing any reduction of the regular sanction. Specifically, in case an ABP only contains one abnormal sample, in order for the regular sanction to be reduced the athlete in question e.g. would have to establish that the abnormal blood values in the sample were caused by circumstances for which the athlete bore no significant fault or negligence.
6. In order to find aggravating circumstances under the IAAF Rules which would mandate an increase of the “standard” period of ineligibility of two years, supporting evidence of the factors justifying increase needs to be adduced. Furthermore, no provision in the IAAF Rules indicates that an anti-doping rule violation proven by means of the ABP, per se, justifies a higher sanction than the presence of a prohibited substance.
7. The provisions of the IAAF Rules regarding disqualification of results are geared to the situation where the violation is an occurrence rather than a process, most obviously where the violation is the presence of a prohibited substance. If an anti-doping rule violation is established on the basis of an ABP, the complicating factor is that it normally does not determine when the violation was committed exactly, but rather that based on all the evidence available it must be concluded that a violation was committed during a certain period. In those circumstances it has to be determined which element of the case can be most appropriately equated to a positive sample (e.g. a single sample of the athlete’s ABP) in order to decide the date decisive for the commencement of the disqualification of the athlete’s results.
8. The 2016-2017 IAAF Rules regarding disqualification of results (Rule 40.9) differ from the 2012-2013 IAAF Rules (Rule 40.8) as the former regulations include a fairness exception (“unless fairness requires otherwise”), whereas the latter – read literally – do not. Considering however that Article 10.8 of the WADA Code 2009 included the fairness exception, that this provision was part of the obligatory commitment of the IAAF as signatory to the WADA Code according to Article 23.2.2 WADA Code and that the IAAF was not allowed to include any substantial change to this provision, the fairness exception has to be read into Rule 40.8 2012-2013 IAAF Rules, read together with Articles 10.8 and 23.2.2 WADA Code.
In July 2015 the IAAF initiated an investigation into a potential anti-doping rule violation by the Athlete Ms. Kristina Ugarova after three experts analysed the Athlete’s ABP on an anonymous basis and concluded that it is highly likely that a prohibited substance or prohibited method has been used and that it is unlikely that the passport is the result of any onter cause.
After notification by the IAAF about the possible charges the Athlete submitted some explanations for the alleged abnormalities. However in August 2015 the Expert Panel concluded after consideration of the Athlete’s explanations that the Athlete’s profile is highly suspicious for blood manipulation caused by the use of prohibited substances or prohibited methods.
In September 2015 the IAAF reported an alleged anti-doping rule violation against the Athlete and a provisional suspension was ordered. Because the All Russia Athletic Federation (ARAF) was suspended by the IAAF the case was referred in February 2016 to the Court of Arbitration for Sport (CAS) for a first instance hearing panel procedure with the right to appeal.
In her defence the Athlete disputed the analysis of her ABP due to its reliance on an unidentified sample population and argued that her “abnormal” test results can be explained by naturally occurring physiological changes in the human body due to training and living at hight altitudes.
Considering the evidence the Sole Arbitrator is comfortably satisfied by the qualitative assessment of the Athlete’s ABP that the Athlete committed an anti-doping rule violation, i.e. the IAAF succeeded to establish that the abnormal values in the Athlete’s ABP are caused by a “doping scenario”.
Therefore the Court of Arbitration for Sport decides on 29 November 2016 that:
1.) The claim filed on 22 February 2016 by the International Association of Athletics Associations against the All Russia Athletics Federation and Ms Kristina Ugarova is upheld.
2.) A period of ineligibility of two years is imposed on Ms Kristina Ugarova starting from 7 September 2015.
3.) All results of Ms Kristina Ugarova since 26 June 2012 are disqualified through to 25 December 2012, including forfeiture of any titles, awards, medals, points and prize and appearance money obtained during this period.
4.) (…).
5.) (…).
6.) All other and further prayers or requests for relief are dismissed.
