CAS 2017/A/5045 Maria Farnosova v. International Association of Athletics Federations (IAAF) & All Russia Athletics Federation (ARAF)
Related case:
CAS 2016_O_4481 IAAF vs ARAF & Mariya Savinova-Farnosova
February 10, 2017
- Athletics
- Doping (ABP)
- Version of the regulations applicable
- Burden and standard of proof regarding the ADRV
- Requirements to establish an anti-doping rule violation by means of an ABP
- Duty to substantiate
- “Beweisnotstand” and duty of cooperation
- Requirement to establish a “doping scenario”
- Admissibility and reliability of the intelligence provided by a witness
1. 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. 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.
2. The burden of proving whether an athlete has committed an anti-doping rule violation (ADRV) in the form of IAAF Rule 32.2 (2012-2013) rests upon the IAAF. In order to succeed with its request, the IAAF must convince the adjudicating body to the comfortable satisfaction of the latter, bearing in mind the seriousness of the allegation which is made that the athlete committed the ADRV. It clearly follows from the applicable provision that the applicable standard of proof is flexible. The threshold that the IAAF must meet is higher depending on the seriousness of the allegation.
3. The ABP is in principle reliable evidence of doping in general terms, provided a two-step approach is duly applied: (i) 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 and (ii) the deviations are to be set into context.
4. The duty to substantiate, and in particular the prerequisites that a party must fulfil in order to dispose of its duty to sufficiently substantiate its submissions, is intrinsically linked to the principle of party presentation and, thus, clearly a procedural question. Consequently, Article 182 of the Swiss Private International Law Act (PILA) applies in respect of the applicable law. The onus of substantiation, i.e. which party has the onus of presenting and submitting the facts, is in principle linked to the law applicable to the merits, because the onus of presentation follows from the burden of proof. The burden of proof does not only allocate the risk among the parties of a given fact not being ascertained, but also allocates who bears the duty to submit the relevant facts before the court/tribunal. It is, in principle, the obligation of the party that bears the burden of proof in relation to certain facts to submit them also to the court/tribunal in a sufficient manner. The party that has the burden of proof, thus, in principle also has the burden of presenting the relevant facts to the tribunal. However, there are exceptions to the above rule. The exceptions concern – inter alia – cases in which a party is faced with a serious difficulty in discharging its burden of proof (“état de nécessité en matière de prevue”, “Beweisnotstand”).
5. In the context of an ABP, the anti-doping organization is confronted with an “état de nécessité en matière de preuve” or “Beweisnotstand” since by its very nature the alleged facts i.e. doping, cannot be proven by direct means. In order to discharge its burden of proof, the anti-doping organization must show – in principle – that not only the doping scenario is plausible, but that all potential explanations other than doping – have to be excluded. Such proof of “negative facts”, however, is impossible. Difficulties in proving “negative facts” result in a duty of cooperation of the contesting party who must cooperate in the investigation and clarification of the facts of the case; e.g. in ABP cases, the athlete must submit in detail alternative (natural) scenarios to explain the blood values. However, the above difficulties do not lead to a re-allocation of the risk if a specific fact cannot be established. Instead, this risk will always remain with the party having the burden of proof. Furthermore, in assessing and determining whether a specific fact can be established, the court must take into account whether the contesting party has fulfilled its obligations of cooperation.
6. In addition to the testing results, an anti-doping organization is required to establish a “doping scenario”. This means that even if all scenarios other than doping can be excluded on a balance of probability, this does not suffice for the adjudicating body to be comfortably satisfied that the athlete committed blood manipulation. Instead, the use of a prohibited substance or method must – in addition – be a plausible and likely explanation of the values obtained for the adjudicating body to positively assume that the athlete has doped. Such assessment must be made based on all evidence before the adjudicating body. Specifically, a significant correlation between the sporting calendar of the athlete and the variances observed in his/her blood values and the fact that the seasonal variances between winter and summer observed in the athlete’s values are opposite from what one would normally expect when looking at the reference population should be considered plausible and likely explanations of blood manipulation by the athlete.
7. Intelligence provided by a witness including recordings and transcripts showing that an athlete regularly used prohibited substances over a long period of time is reliable evidence in general.
Ms Mariya Savinova-Farnosova is a Russian International Level Athlete specializing in 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 and findings of the ABP of the Athlete the International Association of Athletics Federations (IAAF) reported in August 2015 an anti-doping rule violation against the Athlete for using prohibited substances.
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.
Considering the admissions of the Athlete in her conversations with Ms Stepanova regarding the consumption of prohibited substances and the evidence based on the Athlete's ABP, the Sole Arbitrator ruled that the Athlete violated Rule 32.2(b) of the IAAF Rules for using prohibited substances. Therefore the Court of Arbitration for Sport decided on 10 February 2017 to impose a 4 year period of ineligibility on the Athlete.
Hereafter in March 2017 the Athlete filed an appeal against the CAS first instance decision of 10 February 2017. The Athlete requested to set aside the Appealed Decision and argued that the doping scenario is neither plausible nor can it be ascertained with a sufficient degree of certainty.
The Panel considered the Athlete’s blood values contained in the ABP and the information provided by Ms. Stepanova and finds that all evidence on file points in the direction that blood manipulation by the Athlete is the only remaining and - when assessed individually - also the only plausible and likely explanation for the Athlete's abnormal blood values.
The Panel notes that the Athlete has changed her defence strategy considerably over time. In the beginning she contested the admissibility of the recording in these proceedings and tried to trivialize her statements that have been recorded by Ms Stepanova. Today, the latter strategy is only pursued in part. The Panel concludes the Ms Stepanova’s evidence shows that the Athlete regularly used prohibited substances over a long period of time.
Furthermore, the Panel acknowledges that the doping case at hand is indeed very severe. Not only has the Athlete ingested different prohibited substances on multiple occasions, but she was also engaged in a sophisticated doping scheme, supported by her coach.
The Panel holds that her persistent doping practice has caused serious damage not only to all other athletes, who were deprived of their medals, but also to the reputation of athletics in general. Bearing in mind all aggravating circumstances and in view of the lack of any mitigating circumstances submitted by the Athlete, the Panel must confom the period of ineligibility of four years.
Therefore the Court of Arbitration for Sport decides on 27 July 2018:
1.) The Appeal filed by Maria Farnosova on 27 March 2017 against the International Association of Athletics Federations and the All Russia Athletics Federation concerning the decision issued by the Court of Arbitration of Sport dated 10 February 2017 is dismissed.
2.) The decision issued by the Court of Arbitration for Sport dated 10 February 2017 is upheld.
3.) The costs of the arbitration, to be determined and served to the Parties by the CAS Court Office, shall be borne entirely by Ms Maria Farnosova.
4.) Ms Maria Farnosova shall bear her own costs and is ordered to pay the International Association of Athletics Federations the amount of CHF 6,000 (six thousand Swiss Francs) as a contribution towards its legal fees and other expenses incurred in connection with these arbitration proceedings.
5.) All other or further claims are dismissed.
