CAS 2016/A/4839 Anna Chicherova v. IOC
Related case:
IOC 2016 IOC vs Anna Chicherova
October 4, 2016
- Athletics (high jump)
- Doping (turinabol)
- Applicable editions of the International Standard for Laboratories and International Standard for Testing
- Contractual relationship between the athlete and the IOC
- Waiting time before splitting and re-analysis of samples
- Independence of witnesses
- Right to be heard
- Right to initiate disciplinary proceedings regarding positive re-testing following initial negative results
- Retrospective automatic disqualification
1. It is important that the technical experts be able to make timely changes to International Standards without requiring any amendment to the World Anti-Doping Code (WADC) or any individual stakeholder rules and regulations. Whilst athletes need to know clearly which rules may be applied to them, those persons carrying out the analysis should be able to benefit from any advancement in techniques in order to enable the World Anti-Doping Agency (WADA) and all other anti-doping bodies to best achieve their objectives (in the (athletes’) interest of fair competition).
2. Under Swiss law, contracts do not have to be in writing. Therefore, even if an athlete did not sign the Entry Form of the Olympic Games (as it might be someone at the National Olympic Committee who signed on his/her behalf), the athlete’s conduct (i.e. participating in Beijing 2008 and submitting him/herself to Doping Control) can amount to an acceptance to be bound by the rules and regulations of the sporting competition, in particular its Anti-Doping Regulations (ADR). Therefore, there is an implied contractual relationship between the athlete and the IOC, as the IOC is known to be the last authority of last resort on any question concerning the Olympic Games.
3. Analysis is not without costs. Clearly it is in the IOC’s best interests to wait as long as possible before re-analysing, in order to see if the new testing methods enable it to uncover positives that would have previously been undetectable. Additionally, the amount of urine in the sample is limited and therefore the number of re-analyses to be carried out restricted. One caveat to that is where samples could be affected by time (so substances are naturally broken down or are created over time).
4. Absent any evidence, there is no reason to conclude that any purported lack of true independence of the witnesses used by the IOC in the opening and splitting of an athlete’s samples could reasonably have caused an adverse analytical finding.
5. Pursuant to the International Standard for Laboratories 2015/16, the presence of the athlete or his/her representative is not a pre-requisite for the IOC to conduct the B-Sample opening and splitting procedure. If the IOC made reasonable attempts to accommodate the athlete, but was unsuccessful, it is within its rights to appoint an independent witness and proceed with the procedure. In any case, if, to the extent that the athlete did have a right to attend, s/he exercised this right by sending someone (irrespective of whether that person was designated as an official representative or not), there is no violation of the athlete’s right to be heard, even if the athlete was not present him/herself at the opening and splitting of the B-Sample.
6. The negative outcome of an athlete’s sample analysis (i. e. test) in a specific edition of the Olympic Games is not a ‘decision’ which needs to be appealed in order for the IOC to reserve their right to re-test the athlete’s sample 8 years later. The outcome of the test is a report of the analysis/testing process and its result for that sample. If later “re-tests” return a positive result, a disciplinary procedure can be initiated, ultimately leading to a decision, the appeal of which can be the basis of CAS proceedings.
7. Automatic disqualification after 8 years is not excessively binding pursuant to Article 27 of the Swiss Civil Code. Whilst it can be considered to be harsh, it represents a consensus which has been incorporated into the WADC. Its scope is predominately to look at a single event. If an athlete has competed in that event with the benefit of a prohibited substance, then the regulations are in place to effectively remove that athlete’s performance, to ensure a level playing field for the remaining athletes. The records need to show which one of those competing without the benefit of a prohibited substance came first and the rewards (medals, prize money, pins, the accolade, etc.) need to go the unassisted winner. It is not a matter of the athlete’s intent, fault or negligence. It may be that when that is examined elsewhere a perfectly plausibly explanation is advanced that results in the athlete receiving no ban at all and his/her reputation remains intact. When that matter is heard, s/he is able to defend him/herself. Therefore, his/her right to defend him/herself against further sanctions is not affected.
Ms. Anna Chicherova is a Russian Athlete competing in the Women’s high jump event at the Beijing 2008 Olympic Games
In May 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after reanalysis of her 2008 A and B samples tested positive for the prohibited substance dehydrochlormthyltestosterone (turinabol).
On 4 October 2016 the IOC Disciplinary Commission decided that the Athlete Anna Chicherova:
1.) is found to have committed an anti-doping rule violation pursuant to the IOC Anti-Doping Rules applicable to the Games of the XXIX Olympiad in Beijing in 2008,
2.) is disqualified from the Women’s high jump event in which she placed 3rd upon the occasion of the Olympic Games Beijing 2008.
3.) has the bronze medal, the diploma, and the medallist pin obtained in the Women’s high jump event withdrawn and is ordered to return same.
4.) The IAAF is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The Russian Olympic Committee shall ensure full implementation of this decision.
6.) The Russian Olympic Committee shall notably secure the return to the IOC, as soon as possible, of the medal, the medallist pin and the diploma awarded in connection with the Women’s high jump event to the Athlete.
7.) This decision enters into force immediately.
Hereafter in October 2016 the Athlete appealed the IOC decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to annul the imposed sanctions.
The Athlete raised the following assertions in her defence:
- A.) The Athlete never signed the Beijing Entry Form, so she was not bound by the Beijing ADR, and the IOC Disciplinary Commission therefore did not have the jurisdiction to render the Appealed Decision.
- B.) In the alternative, the IOC "severely and systematically violated the agreement with the Appellant and almost all the procedural rules contained therein." In particular, the IOC applied a re-testing method which was never agreed between the two parties and the IOC was not entitled to apply rules retrospectively in that way.
- C.) The most important violation of the Athlete's procedural rights was the violation of her right to be heard when the B sample was opened and split. Even if the ISL 2015 was applied, such a rule would violate the basic procedural rights of the Athlete and could not be applied.
- D.) Finally, the entire re-testing program - "which stigmatizes the Appellant as a fraudster after more than eight years without any possibility to show her innocence or at least no faulf' - is highly questionable as it took away the Athlete's mandatory human rights. This, and the rules applied in rendering the Appealed Decision must be considered as excessively binding in the sense of Article 27(2) of the SCC.
- E.) The IOC, "as a monopoly organisation", implemented extremely unfair rules which would be illegal under Article 6 of the Swiss Federal Act on Cartels and other Restraints of Competition ("Cartel Act").
The Panel observes that the parties have made a great number of submissions and arguments in the matter at hand, however the main issues to be resolved are:
- A.) Was there a contractual relationship between the Athlete and the IOC?
- B.) What is the applicable standard of proof and who bears the burden in this case?
- C.) Were there departures from the ISL 2015/16 and/or the IST that could reasonably have caused the ADRV/AAF?
- D.) Was the Athlete's right to be heard violated?
- E.) Was the IOC barred from initiating a disciplinary procedure against the Athlete according to Article 12.5 of the Beijing ADR?
- F.) Did the IOC have the right to analyse the Athlete's samples outside of Beijing 2008?
- G) Does the IOC's re-testing program and/or do the applicable regulations violate Swiss law or the EHRC?
- H.) Is the re-testing process reliable, in the light of Dr. Kopylov's written position?
- I.) Is the IOC's re-allocation of medals a violation of the Athlete's right to be treated equally?
- J.) If so, is the Athlete entitled to financial compensation?
The Panel assessed and addressed each issue and determines:
- A.) The Athlete was, and is, bound by the Beijing ADR and contrary tot Athlete’s position Chinese Law is not applicable.
- B.) the Panel is comfortably satisfied that an ADRV had occurred pursuant to Article 2.1 of the Beijing ADR.
- C.) While potential departures from ISL 2015/16 and ISL 2008 and/or the IST were raised and explored, there simply was not enough evidence submitted to verify that any of them either in isolation, or in combination, could have reasonably caused the AAF.
- D.) There have been no violations of the Athlete's right to be heard.
- E.) Article 6.5 of the Beijing ADR is clear and unequivocal in stating that the IOC had the authority to retain ownership of the Athlete's Beijing samples for a period of 8 years.
- F.) The IOC was authorised to re-analyse (re-test) the Athlete's samples in 2016.
G.) Having concluded that her right to defend herself against further sanctions is not affected by these proceedings, the Panel sees no merit in the Athlete's parallel arguments regarding her Human Rights or the provisions of Article 29(2) of the Swiss Constitution being breached. - H.) The Panel clearly recognises the difficulty the Athlete faced by not being able to rely upon Dr. Kopylov in person to attempt to prove the testing process was flawed, however, she has the burden of proof and has failed to meet it.
- I.) How the bronze medal would be allocated if the appeal was rejected or how random sampling should be designed is not within the scope of review for this Panel. Accordingly, the Panel rejects this argument.
- J.) As the Panel dealing with an Appeal Arbitration Procedure would be acting in violation of its jurisdiction and its competence in this case if it were to award damages, this request for relief is rejected without further consideration.
Based on the foregoing, and after taking into due consideration all the evidence produced and all submissions made, the Panel rejects the Appeal by the Athlete in its entirety and upholds the Appealed Decision.
Therefore the Court of Arbitration for Sport (CAS) decides on 6 October 2017 that:
1.) The appeal filed on 25 October 2016 by Anna Chicherova against the decision rendered by the International Olympic Committee Disciplinary Commission on 4 October 2016 is dismissed.
2.) The decision rendered by the International Olympic Committee Disciplinary Commission on 4 October 2016 is upheld.
3.) The award is pronounced without costs, except for the CAS Court Office fee of CHF 1,000 (one thousand Swiss Francs) already paid and to be retained by the CAS.
4.) Anna Chicherova shall pay to the International Olympic Committee an amount of CHF 10,000 (ten thousand Swiss Francs) as a contribution toward the costs the latter has sustained in connection with these arbitration proceedings.
5.) All other motions or prayers for relief are dismissed.
