CAS 2016/O/4469 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) & Tatyana Chernova
Related cases:
- IOC 2016 IOC vs Tatiana Chernova
April 19, 2017 - CAS 2017_A_4949 Tatyana Chernova vs IAAF
July 18, 2017 - CAS 2017_A_5124 Tatyana Chernova vs IOC
December 4, 2017
- Athletics (middle distance)
- Doping (dehydrochloromethyltestosterone; Athlete’s Biological Passport, ABP)
- CAS Jurisdiction according to Article 38.3 IAAF Competition Rules
- Version of the regulations applicable
- ABP finding as single anti-doping rule violation
- Prerequisites to disregard sample from ABP profile
- Prerequisites to add samples to ABP profile
- Establishment of an anti-doping rule violation by means of an ABP
- 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
- Purpose of 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. Pursuant to the legal principle of tempus regit actum, procedural matters of a case are governed by the regulations in force at the time of the procedural act in question. Conversely the substantive aspects of an alleged anti-doping rule violation shall be governed by the version of the applicable rules that have been in force at the time of the alleged violation unless the rules applicable at that time contain a lex mitior rule and the application of this leads to the applicability of another version of the respective rules in the specific case.
3. An ABP finding of an anti-doping rule violation is not to be considered as a multiple violation under Rule 40.8(e) of the 2016-2017 IAAF Rules but rather as a single anti-doping rule violation, established on the basis of a set of different samples collected at different times, places and occasions. This follows clearly from the concept and the wording of the WADA ABP Operating Guidelines, which provide at the end of Article 5 of Annex E that in case of confirmation of an Adverse Passport Finding by unanimous decision of the Expert Panel an Anti-Doping Organisation (ADO) has the obligation to advise the athlete and WADA that it is considering the assertion of “an anti-doping rule violation (ADRV)” against the athlete. I.e. the wording speaks of an ADRV established by the ABP as a whole and embraces a multitude of anti-doping rule violations documented by the ABP.
4. In order to successfully argue that a sample which has been taken on the day prior to another sample for which the athlete has been charged with and sanctioned for an anti-doping rule violation, is to be excluded from his ABP because it has been caused by the same source as the sample that lead to the sanction for the positive anti-doping finding, the athlete has to adduce evidence supporting the allegation of the same source. Only if the athlete succeeds to establish the above can it be concluded that there is only one anti-doping rule violation with the consequence that the sample in question has to be excluded from the athlete’s ABP.
5. Samples voluntarily provided by an athlete can only be added to his ABP if the athlete proves under which circumstances the samples were taken from him and that such processes complied with the applicable standards.
6. 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.
7. Although the provisions of the IAAF Rules regarding disqualification of results are expressly made applicable to violations consisting of use of a prohibited method, they are not easy to apply where the proof of such violation is to be found by reference to the ABP. The provisions 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. However, even if the violation is found by reference to the ABP, the respective case falls under Rule 40 of the IAAF Rules and, as a consequence, the athlete’s competitive results are nevertheless subject to disqualification.
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.
9. Taking into account that the sanction of disqualification of results embraces the forfeiture of any titles, awards, medals, points and prize and appearance money, it is to be held equal to a retroactive imposition of a period of ineligibility and, thus, is a severe measure. The athlete loses all income from sport and, even more, has to return income achieved. However, not to disqualify results that have been achieved by using a prohibited substance or prohibited method cannot be considered as fair with regard to other athletes that competed against the athlete during this period. The main purpose of disqualification of results is not to punish the transgressor, but rather to correct any unfair advantage and remove any tainted performances from the record.
In April 2015 the IAAF initiated an investigation into a potential new anti-doping rule violation by the Athlete Tatyana Chernova 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.
After notification by the IAAF about the possible charges the Athlete submitted some explanations for the alleged abnormalities in her ABP. However in August 2015 the Expert Panel concluded after consideration of the Athlete’s explanations that it is highly likely that a prohibited substances or prohibited method has been used and that it is unlikely that the passport is the result of any other cause.
Previously the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Authority (RUSADA) had decided on 20 January 2015 to impose a 2 year period of ineligibility on the Athlete - from 22 July 2013 to 21 July 2015 - after her sample tested positive for the prohibited substance dehydrochloromethyltestosterone (turinabol).
In April 2015 the IAAF decided to appeal this decision of 20 January 2015 with the Court of Arbitration for Sport (CAS). Upon the request of the IAAF this case (CAS 2015/A/4050) was suspended pending the outcome in the present case (CAS 2016/A/4469).
In February 2016 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 this case was referred to CAS in February 2016 for a first instance hearing panel procedure with the right to appeal.
The Athlete requested the CAS Panel to declare the IAAF’s claim inadmissible due to lack of equality of arms, as the IAAF referred to an unpublished CAS award in its written submission while such CAS award was not available to the Athlete. However the CAS Court Office explained to the Athlete in March 2016 that such CAS award could not be provided to her as the parties involved had not yet lifted its confidentiality.
The Athlete further disputed the analysis of her ABP and the alleged irregularities with the samples and argued that the IAAF failed to meet its burden of proof in establishing an anti-doping rule violation.
Considering the arguments and evidence the Sole Arbitrator determines that:
- The Athlete’s ABP remains as it is; no samples are excluded and no samples are added.
- The IAAF has convincingly established that the Athlete generally had abnormally high levels of HGB on the eve of competitions, whereas her base levels of HGB appear to be much lower, as shown by the off-season samples.
- The IAAF succeeded to establish a “doping scenario”.
- The values in the Athlete’s ABP are caused by the use of a prohibited substance or a prohibited method by the Athlete.
- It has been established that the Athlete is found guilty of using steroids as well as for the present ABP charge
- Both violations were committed during more or less the same period.
- The IAAF succeeded in convincingly establishing by means of expert evidence that both offences have been committed independent from each other.
- The Athlete’s use of oral turinabol could not cause the abnormal blood values in the Athlete’s ABP Sample 1.
- The Athlete used multiple prohibited substances or prohibited methods, i.e. oral turinabol and blood doping, at the same time.
Considering that the Athlete in the case at hand committed two separate anti-doping rule violations, the use of turinabol and an ABP violation, and considering that the established ABP violation of the Athlete lasted considerably longer the Sole Arbitrator finds that a period of ineligibility of three years and eight months is appropriate to the severity of the Athlete’s misbehavior.
Therefore the Court of Arbitration for Sport decides on 29 november that:
1.) The claim filed on 23 February 2016 by the International Association of Athletics Federations against the All Russia Athletics Federation and Ms Tatyana Chernova is partially upheld.
2.) A period of ineligibility of three years and eight months is imposed on Ms Tatyana Chernova starting from 5 February 2016.
3.) The period of ineligibility served by Ms Tatyana Chernova between 22 July 2013 and 21 July 2015 shall be credited against the period of ineligibility imposed.
4.) All results of Ms Tatyana Chernova since 15 August 2011 are disqualified through to 22 July 2013, including forfeiture of any titles, awards, medals, points and prize and appearance money obtained during this period.
5.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne entirely by the All Russia Athletics Federation.
6.) Ms Tatyana Chernova shall bear her own costs and is ordered to pay to the International Association of Athletics Federations the amount of CHF 5,000 (five thousand Swiss Francs) as a contribution towards the legal fees and other expenses incurred in connection with these arbitration proceedings.
7.) The All Russia Athletics Federation shall bear its own costs.
8.) All other and further prayers or requests for relief are dismissed.
