CAS 2016/O/4575 lnternational Association of Athletics Federations (lAAF) v. All Russia Athletic Federation (ARAF) & Dr Sergei Nikolaevich Portugalov
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December 23, 2016
- Athletics
- Anti-doping violation committed by a doctor
- CAS jurisdiction under Rule 38.3 IAAF ADR
- Establishment of the anti-doping violation of possession, trafficking and administration committed by a medical doctor
- Determination of the sanctions to be imposed on the doctor (life ban)
1. Where a national federation is suspended by IAAF, no entity has jurisdiction in the relevant country to conduct a hearing in a doping case. Against this background, pursuant to the IAAF Anti-Doping and Medical Rules (ADR), IAAF can take over the responsibility for coordinating the relevant disciplinary proceedings and to inform the athlete and its national federation that the case will be referred to the CAS for a hearing. In this regard, where the proceedings are based on a request for arbitration for the conduct of a first instance hearing and do not involve an appeal against a decision rendered by a sports-related body, they are considered as ordinary arbitration proceedings, within the meaning, and for the purposes, of the CAS Code. However, in accordance with Rule 38.3 of the IAAF ADR, these proceedings are handled in accordance with CAS rules applicable to the appeal arbitration procedure without reference to any time limit for appeal. Furthermore, according to the “Definitions” as set by the IAAF ADR, a medical doctor falls in the definition of “Athlete Support Personnel”. Having consented to the IAAF ADR by participating in the IAAF and ARAF’s activities, a doctor consented also to the possibility of arbitration of anti-doping rule violation in front of the CAS.
2. By providing unchallenged detailed, consistent and credible declarations made by two athletes who were treated by a doctor prosecuted for doping, IAAF discharged its burden of proof that said doctor committed anti-doping violations. In this respect, by mentioning the delivery of drugs and supplements, both declarations established the possession of prohibited substances by the doctor. By confirming the distribution to the athletes of performance enhancing drugs (PEDs) on various occasions and the doctor’s assistance towards athletes in committing, or covering up, anti-doping rule violations, both declarations established the violation of trafficking in prohibited substances. Finally, by abundantly describing the actions of the doctor, who prescribed prohibited substances, advising the athletes as to the timing and dosages of their use, and directed blood manipulation practices, the declarations established the administration of prohibited substances and methods, assistance, aid, abetting, covering up or complicity involving anti-doping rule violations.
3. Although an athlete support personnel such as a medical doctor may be responsible for a plurality of anti-doping violations, such violations should only be considered together as one single first violation where the anti-doping rule violations were committed before the doctor received notice pursuant to Rule 37 (Results Management) or reasonable efforts had been made to give notice of the first anti-doping rule violation. As a result, the sanction imposed should be based on the violation that carried the more severe sanction. In light of the foregoing, the sanction to be applied to the doctor should consists in a period of ineligibility between four years and lifetime. In the determination of the applicable sanction in that range, all the circumstances of the violations have to be considered. In this regard, the fact to commit the anti-doping rule violation as part of a doping plan or scheme, to use or possess multiple Prohibited Substances or Prohibited Methods or to use or possess a Prohibited Substance or Prohibited Method on multiple occasions are as much aggravating circumstances. The very fact that a doctor abused his medical practice, in order to advise athletes on doping schemes, applying science not to treat illness but to direct illegal conducts in return for payment, appears to be utterly reprehensible. Under the circumstances, a life ban can be imposed.
Dr Sergei Nikolaevich Portugalov is a Russian medical doctor who advised athletes in the position and function as Chief of the Medical Commission of the Russian Federation.
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 declarations provided by Ms Stepanova and the Russian Athlete Liliya Shobukhova the International Association of Athletics Federations (IAAF) reported in August 2015 several anti-doping rule violations against Sergei Portugalov (the Doctor) for involvement over a course of years in procuring and providing prohibited substances to athletes, and in advising athletes to engage in prohibited methods, for significant financial rewards.
After notification a provisional suspension was ordered and the Doctor 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 on the Doctor a lifetime period of ineligibility with aggravating circumstances for possession, trafficking and administration of prohibited substances.
The Doctor denied any and all allegations brought by Ms Stepanovan and Ms Shobukhova against him and found that their evidence and declarations are false.
The Sole Arbitrator determines that the evidence provided by the Athlete’s declarations are detailed, consistent and credible. Also the Stepanova Declaration is supported by audio- and videorecordings, as well as by contemporary documents, such as emails and notes. ln addition, those declarations remained largely unchallenged. Dr Portugalov only provided IAAF with a generic denial, and did not take the opportunity to test in adversary proceedings the evidence submitted by IAAF.
Considering the evidence and declarations the Sole Arbitrator concludes that the Doctor committed a plurality of anti-doping rule violations with aggravating circumstances for his involvement in an organised doping system. At the centre of this doping system was Dr. Portugalov, who possessed and used multiple prohibited substances on multiple occasions.
Therefore Court of Arbitration for Sport decides on 10 March 2017 that:
1.) Dr Sergei Nikolaevich Portugalov is responsible for the anti-doping rule violations contemplated by:
- Rule 32.2(:f) ["Possession of a Prohibited Substance or Prohibited Method''];
- Rule 32.2(g) ["Trafficking or Attempted Trafficking in any Prohibited Substance or Prohibited Method'']; and
- Rule 32.2(h) ["Administration or Attempted Administration of a Prohibited Substance or Prohibited Method"] of the IAAF Anti-Doping and Medical Rules.
2.) Dr Sergei Nikolaevich Portugalov is imposed the sanction of lifetime ineligibility starting from the date of this award.
3.) The costs of the arbitration, to be determined and se:i:ved on the parties by the CAS Court Office, shall be borne by the Russian Athletics Federation.
4.) Dr Sergei Nikolaevich Portugalov shall pay to the International Association of Athletics Federations (IAAF) an amount of CHF 5,000 (five thousand Swiss Francs) as a contribution toward the costs it has sustained in connection with these arbitration proceedings.
5.) All other motions or prayers for relief are dismissed.
