CAS 2016/O/4504 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) & Vladimir Mokhnev
Related cases:
- CAS 2016_A_4480 IAAF vs ARAF & Vladimir Kazarin
April 7, 2017 - CAS 2016_A_4486 IAAF vs Ekaterina Poistogova
April 7, 2017 - CAS 2016_A_4487 IAAF vs Alexey Melnikov
April 7, 2017 - CAS 2016_O_4481 IAAF vs ARAF & Mariya Savinova-Farnosova
February 10, 2017 - CAS 2016_O_4488 IAAF vs ARAF & Anastasiya Bazdyreva
December 23, 2016 - CAS 2016_O_4575 IAAF vs ARAF & Sergei Portugalov
March 10, 2017
- Athletics
- Doping offences committed by a coach
- CAS jurisdiction upon coaches based on Rule 38.3 IAAF Competition Rules
- Law applicable to procedural and to substantive matters respectively
- Admissibility of a witness statement and of a recording as means of evidence
- Multiple violations by a coach: possession, trafficking, administration
- Determination of the applicable sanction based on aggravating circumstances
1. Rule 38.3 of the IAAF Rules determines that the IAAF may elect to refer a matter to CAS if a federation member fails to complete a hearing within two months and if the athlete is an International-Level Athlete. A coach falls under this definition, as, pursuant to Rule 37.2 of the IAAF Rules, “athlete” shall be understood as referring also to athlete support personnel. Coaches are listed in the definition of “athlete support personnel” in the IAAF Rules. Furthermore, a coach who trained international-level athletes clearly acted on an international level. Since the membership of the national federation from the IAAF has been suspended, the federation is prevented from conducting a hearing within the deadline set by Rule 38.3 of the IAAF Rules. Therefore, the IAAF was permitted to refer the matter directly to the CAS, subject to an appeal to CAS in accordance with Rule 42 of the IAAF Rules.
2. Pursuant to the legal principle of tempus regit actum, procedural matters are governed by the regulations in force at the time of the procedural act in question, whereas the substantive issues are governed by the IAAF Rules in force at the time of the alleged violations.
3. According to Swiss scholars, Article 184(1) PILS provides arbitral tribunals in international arbitration proceedings seated in Switzerland with ample latitude in the taking of evidence. According the CAS case law, it follows from Article 184 (1) PILS (as well as the CAS Code) that a CAS panel disposes of a certain discretion to determine the admissibility or inadmissibility of evidence. Furthermore, the discretion to admit evidence under Rule 33(3) IAAF Rules is fairly wide as it determines that anti-doping rule violations may be established by “any reliable means”. Whereas an athlete’s witness statement is undoubtedly admissible, particularly because witness statements are explicitly listed as a means of evidence in Rule 33(3) of the IAAF Rules, the admissibility of recordings which objectively fall under the category “any reliable means” provided for in Rule 33(3) of the IAAF Rules, require a more detailed analysis as they have been made covertly by an athlete acting as a whistle blower to accuse widespread doping in a national sport. According to the Swiss Code of Civil procedure and to the Swiss Federal Tribunal, if a mean of evidence is illegally obtained, it is only admissible, if the interest to find the truth prevails over the private interest (balancing test). In general, the fight against doping is not only of a private interest, but indeed also of a public interest. In a special situation where it is notorious that doping in a particular country is widespread and has been systematically supported by coaches, clubs and government-affiliated organisations, the interest in finding the truth must prevail over a possible reliance of a coach on the principle of good faith as a defence against gathering illegally obtained evidence.
4. Based on an athlete’s witness statement, on recordings and on transcript of such recordings, a panel can be comfortably satisfied that a coach committed several violations i.e. possession of prohibited substances in breach of Rule 32.2 (f)(ii) of the IAAAF Rules, trafficking in breach of Rule 32.2(g) of the IAAF Rules for having provided prohibited substances to his athletes on multiple occasions and administration of prohibited substances to his athletes in breach of Rule 32.2(h) IAAF Rules.
5. Pursuant to Rule 40.7(d)(i) of the IAAF Rules, if it has not been established that the coach committed a second and a third doping violation after having been notified of the first anti-doping rule violation, all violations shall be considered together as one single first violation and the sanction imposed shall be based on the violation that carries the more severe sanction. “Trafficking” and “Administration” of prohibited substances carry the more severe sanction with an ineligibility period of four years up to lifetime. If the coach acted intentionally, the period of ineligibility shall not be shorter than four years. According to the IAAF Rules the quantum of the sanction shall depend on the seriousness of the violation. In this regard, although the regime of aggravating circumstances of Rule 40.6 of the IAAF Rules is not directly applicable in the context of Trafficking and Administration, they can and must be taken into account in determining the sanction for these specific violations based on the commentary in the World Anti-Doping Code and if the violations have been severe. Furthermore athlete support personnel in general bears an even higher responsibility than athletes themselves in respect of doping considering the influence they usually exert on their athletes. As a matter of principle, a lifetime period of ineligibility could be considered both justifiable and proportionate in doping cases even if the ban is imposed for a first violation. However, according to CAS jurisprudence, the imposition of a lifetime ban is only justified where the seriousness of the offence is most extraordinary.
Mr Vladimir Mokhnev is a Russian athletics coach who was in charge of a number of track athletes including the International Level athletes Ms Yuliya Stepanova and Ms Yekaterina Kupina.
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 the International Association of Athletics Federations (IAAF) reported in August 2015 several anti-doping rule violations against Vladimir Mokhnev (the Coach) for involvement over a course of years in procuring and providing prohibited substances to athletes training under him. After notification a provisional suspension was ordered and the Coach filed a statement in his 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 period of ineligibility on the Coach between 4 years and a lifetime ban with aggravating circumstances for tampering or attempted tampering, possession, trafficking or attempted trafficking and administration or attempted administration of prohibited substances.
The Coach maintained that al accusations brought against him by Ms Stephanova are false and cooked up out of revenge.
The CAS Sole Arbitrator finds that the recordings of Ms Stepanova' s conversations between the Athlete and the Coach are admissible as evidence in the proceedings at hand and finds that the recordings are in general reliable evidence.
The Sole Arbitrator concludes, although the charge of ''Tampering" is not proven, that the anti-doping rule violations of the Coach have nevertheless been severe, that multiple anti-doping rule violations (Possession, Trafficking, Administration) have been committed by the Coach over a period of time, and that he provided multiple athletes (at least two) with prohibited substances.
Therefore the Court of Arbitration for Sport decides on 23 December 2016 that:
1.) The claim filed on 17 March 2016 by the International Association of Athletics Federations against the All Russia Athletics Federation and Mr Vladimir Mokhnev is upheld.
2.) A period of ineligibility of 10 years is imposed on Mr Vladimir Mokhnev starting from the date of this award.
3.) 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.
4.) Mr Vladimir Mokhnev shall bear his own costs and is ordered to pay to the !nternational Association of Athletics Federations the amount of CHF 2'000 (two thousand Swiss Francs) as a contribution towards the legal fees and other expenses incurred in connection with these arbitration proceedings.
5.) The All Russia Athletics Federation shall bear its own costs.
6.) All other and further prayers or requests for relief are dismissed.
