CAS 2016/A/4486 International Association of Athletics Federations (IAAF) v. Ekaterina Poistogova
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March 10, 2017
- Athletics (middle distance)
- Doping (oxandrolone)
- CAS jurisdiction according to IAAF Rule 38.19
- Applicable law
- Admissibility of the evidence establishing the violation of
- IAAF Rule 32(b) “use” of a prohibited substance
- Determination of the applicable sanction
1. The applicable 2016 IAAF Competition Rules, expressly permit anti-doping rule violation cases to be filed directly with the CAS as a sole instance adjudicatory body. In this regard, IAAF Rule 38.19 provides that cases asserting anti-doping rule violations may be heard directly by CAS with no requirement for a prior hearing, with the consent of all the relevant stakeholders i.e. the IAAF, the Athlete, WADA and any Anti-Doping Organisation that would have had a right to appeal a first hearing decision to CAS.
2. A case filed directly with the CAS as a sole instance adjudicatory body in accordance with IAAF Rule 38.19 is not an appeal. However, it follows from IAAF Rule 38.3 that in a case directly referred to CAS, the case shall be handled in accordance with CAS rules applicable to the appeal arbitration procedure without reference to any time of limit for appeal. The purpose of the direct hearing at the CAS is to shortcut the otherwise applicable procedure. Given that the substantive outcome of the shortcut should not differ from the outcome of the otherwise applicable procedure, the substantive issues are to be governed by the “applicable regulations” referred to in article R58 of the CAS Code, namely the IAAF Rules in force at the time of the alleged violations.
3. The admittance of means of evidence is subject to procedural laws. In this respect, Rule 33(3) IAAF Rules determines that anti-doping rule violations may be established by “any reliable means”. Considering the very large scope of means of admissible evidence provided by Rule 33(3), witness statements and recordings should be considered as reliable mean of evidence in the sense of the 2016 IAAF Rules. Even illegally obtained evidence may be admissible if the interest to find the truth prevails. Based on testimonies and recordings, a panel can be comfortably satisfied that an athlete is guilty of using a prohibited substance.
4. Rule 40.2 of the 2012 IAAF Rules provides for a two-year period of ineligibility for a first violation of Rule 32.2(b) prohibiting the use of prohibited substances, unless the conditions for eliminating or reducing the period of Ineligibility as provided in Rules 40.4 and 40.5, or the conditions for increasing the period of Ineligibility as provided in Rule 40.6 are met. In this regard, one preparation with oxandrolone, an anabolic steroid, involving the intake of ten pills cannot be qualified as use on multiple occasions i.e. aggravating circumstances. If the athlete did not act on his/her own but was part of a training structure, governed by athlete support personnel and/or persons holding certain official functions within the federation, and if it is doubtful whether the athlete would have been selected for the national team if he/she had not followed all aspects of the training program, including the use of prohibited substances, it is not just to go beyond the basic period of ineligibility of two years.
Ms Ekatrina Poistogova (born Zavyalova, divorced and now Ekaterina Guliyev) is a Russian Athlete specializing in middle distance events, in particular the 800 metres.
In the period from 2013 to 2014, the Russian Athlete Yulia Stepanova secretly recorded a number of conversations that she had with Russian athletes and Athlete Support Personnel. With a view to exposing the widespread doping practices within Russian athletics, Ms Stepanova made those recordings available to Mr Hajo Seppelt, a German journalist. Mr Seppelt used some of those recordings to produce a documentary alleging widespread doping in Russian athletics which was broadcasted in December 2014.
Based on the evidence and statements provided by Ms Stepanova (Stepanova Statement) the International Association of Athletics Federations (IAAF) reported in August 2015 an anti-doping rule violation against the Athlete for using the prohibited substances oxandrolone, peptides and EPO. After notification a provisional suspension was ordered and the Athlete filed a statement in her defence.
Because the All Russia Athletic Federation (ARAF) was suspended by the IAAF the case was referred in March 2016 to the Court of Arbitration for Sport (CAS) for a first instance hearing panel procedure with the right to appeal.
The IAAF requested the Panel to impose a sanction between 2 and 4 years on the Athlete with aggravating circumstances for the use of prohibited substances on multiple occasions.
Also the IAAF filed an affidavit from Professor McLaren. He submitted that his investigative team spreadsheets produced by the Moscow Laboratory contained three samples relating to the Athlete. The samples were dated 17, 25 and 31 July 2012. According to Professor McLaren, the samples showed positive results, yet all three samples were reported as negative in ADAMS.
The Athlete denied the use of prohibited substances and disputed the evidence provided by Ms Stepanova, the IAAF and Professor McLaren.
The CAS Panel finds that the recordings of Ms Stepanova's conversations are admissible as evidence in the proceedings at hand. The Panel accepted the McLaren Affidavit as evidence but did not rely upon it to a substantial extent.
The Panel is comfortably satisfied that the Athlete is guilty of using Prohibited Substances. In particular, the Panel is comfortably satisfied that the Athlete used Oxandrolone during her autumn 2014 preparation. The Panel is, in contrast, not comfortably satisfied that the evidence presented confirms that the Athlete used other Prohibited Substances at other times during her career (i.e. EPO in 2012 and Peptides in 2013).
Therefore the Court of Arbitration for Sport decides on 7 April 2017 that:
1.) The request filed by the IAAF with the Court of Arbitration for Sport against Ms Ekaterina on 8 March 2016 is admissible and upheld.
2.) Ms Ekaterina Poistogova committed an anti-doping rule violation according to IAAF Rule 32.2(b).
3.) Ms Ekatarina Poistogova shall be sanctioned with a two-year period of ineligibility, starting on 24 August 2015.
4.) All competitive results obtained by Ms Ekatarina Poistogova from 21 October 2014 through to the commencement of her suspension on 24 August 2015 shall be disqualified, with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points, prizes and appearance money.
5.) The costs of this arbitration, to be detetermined and served upon the parties by the CAS Court Office, shall be borne in equal parts by Ms Ekatarina Poistogova and the IAAF.
6.) Each party shall bear its own legal costs and all other expenses incurred in connection with these proceedings.
7.) All other or fmiher motions or prayers for relief are dismissed.
