CAS 2017/O/5332 International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (RUSAF) and Elena Slesarenko
Related cases:
- IOC 2016 IOC vs Elena Slesarenko
November 10, 2016 - World Athletics 2021 WA vs Yelena Slesarenko
July 11, 2022
- Athletics (high jump)
- Doping (dehydrochlormethyltestosterone)
- CAS jurisdiction under Article 38.3 of the IAAF Competition Rules
- Determination of the substantive and procedural laws applicable to an anti-doping rule violation-related dispute
- Recognition by the IAAF and its members of a final and binding IOC’s adjudication
- Increase of the period of ineligibility due to aggravating circumstances (multiple violations)
- Reduction of the duration of the period of disqualification of results based on the principle of fairness
- Criteria to assess the excessiveness of a sanction
- Criteria to assess the quantum of a sanction of disqualification of results
1. In view of the suspension-based inability of the RUSAF to conduct the hearing process described in Rule 38.3 of the IAAF Competition Rules (IAAF CR, edition 2016-2017), the relevant athlete’s status of International-Level Athlete and her tacit acceptance of the procedure described therein, the IAAF is entitled on the basis of the aforementioned Rule to refer the athlete’s case to CAS so that it is heard in the first instance by a sole arbitrator.
2. Pursuant to art. 21.3 of the IAAF Anti-Doping Rules (IAAF ADR), which entered into force on 3 April 2017 (art. 1.13 of the IAAF ADR), an anti-doping rule violation (ADRV) committed prior to said date is in principle subject, for substantive matters, to the rules in place at the time of the alleged anti-doping rule violation and, for procedural matters, to the version of the rules in place immediately prior to 3 April 2017. Additional provisions or principle set forth in said article (may) apply depending on the particularities of a case.
3. Pursuant to Rule 46.2 of the 2016-2017 IAAF CR, IOC’s adjudications resulting in the finding of an ADRV having occurred at the Olympic Games shall inter alia be recognised by the IAAF and the IAAF members once said adjudication has become final under the applicable law.
4. Pursuant to Rules 40.6 and 40.7(d)(i) of the 2010-2011 IAAF CR, if it is established in an individual case that aggravating circumstances are present which justify the imposition of a period of ineligibility greater than the standard sanction, then the period of ineligibility otherwise applicable shall be increased up to a maximum of four years unless the athlete can prove to the comfortable satisfaction of the panel that s/he did not knowingly commit the ADRV. The occurrence of multiple violations may be considered as a factor in determining aggravating circumstances.
5. Although the literal wording of Rule 39 of the 2010-2011 IAAF CR sets forth that all the competitive results of an athlete as from the moment of the first positive sample was collected until his/her provisional suspension was pronounced would have to be disqualified, the general principle of fairness must prevail in order to avoid disproportional sanctions. A fairness exception must thus be read in said Rule, since only when reading in this manner and applying fairly, this provision can be understood as complying with Article 10.8 of the World Anti-Doping Code and the proportionality requirement under general principles of law applicable in Switzerland and Monaco, being the seats of World Anti-Doping Agency and the IAAF respectively.
6. The principle of proportionality requires to assess whether a sanction is appropriate to the violation committed. Excessive sanctions are prohibited. To find out whether a sanction is excessive, the adjudicating body must review the type and scope of the proved rule-violation, the individual circumstances of the case, and the overall effect of the sanction of the offender.
7. Taking into regard that a sanction of disqualification of results embraces the forfeiture of any titles, awards, medals, points and prize and appearance money, such sanction is to be held equal to a retroactive imposition of a period of ineligibility and, thus, is a severe sanction. It cannot be deemed fair to disqualify any of more than eight years of an athlete’s results absent any evidence that said athlete used doping substances or methods, with the exception of two occurrences. Given that the severity of the violation(s) has already been taken into account when requesting/deciding the length of the imposed ban, and given the IAAF’s policy in retesting cases to connect the disqualification period to the length of such ban, it is deemed fair and appropriate, based on the circumstances of the case, to disqualify the athlete’s results for the same duration as the length of the imposed ban.
Ms. Elena Slesarenko is a Russian Athlete competing in the Women’s high jump event at the Beijing 2008 Olympic Games and she competed at the Daegu 2011 IAAF World Championships.
In 2016, the IOC decided to perform further analyses on certain samples collected during the 2008 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2008.
As a result in July 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after her 2008 A and B samples tested positive for the prohibited substance dehydrochlormethyltestosterone (Turinabol). After notification by the IOC the Athlete failed to respond.
The IOC Disciplinary Commission decided on 10 November 2016 that the Athlete committed an anti-doping rule violation and to disqualify his results including withdrawn of her diploma. The case of the Athlete was then referred to the International Association of Athletics Federations (IAAF) for the imposition of consequences over and above those related to the Games.
Also in 2016 the IAAF decided to perform further analyses on certain samples collected during the Daegu 2011 IAAF World Championships. Reanalysis conducted by the Lausanne Laboratory revealed the presence of Turinabol in the Athlete’s Daegu 2011 A and B samples.
After notification by the IAAF in October 2016 a provisional suspension was ordered while the Athlete was informed about the Daegu 2011 test result and about the IOC decision of 19 November 2016. Here the Athlete also failed to respond to the IAAF communications.
Because the Russia Athletic Federation (RusAF) was suspended by the IAAF the case was referred in September 2017 to the Court of Arbitration for Sport (CAS) for a first instance hearing panel procedure with the right to appeal.
The IAAF contended that the Athlete committed an anti-doping rule violation at the Beijing 2008 Olympic Games and a second anti-doping rule violation at the Daegu 2011 IAAF World Championships. The Athlete used Turinabol at least twice at the IOC Games and the IAAF WC. This justifies as such the imposition of an aggravated period of ineligibility of up to 4 years.
Although duly invited neither RusAF or the Athlete responded to the CAS communications, nor did they file any statement in their defence.
The Sole Arbitrator determines that the IAAF has presented two Doping Control Reports issued by the WADA accredited Laboratory dated 8 July 2016. According to said reports, the Laboratory detected the presence of DHCMT metabolites in the Athlete's Beijing 2008 A- and B1-samples.
Considering that the Athlete has not disputed the Laboratory's finding, the Sole Arbitrator is comfortably satisfied that the Athlete has violated Rule 32.2(a) of the 2008 IAAF Rules and thus committed an anti-doping rule violation. This finding is consistent with the IOC Disciplinary Commission's finding.
Further the Sole Arbitrator finds that it is undisputed that the Athlete’s Daegu 2011 A- and B1-samples revealed the presence of Turinabol metabolites. Accordingly the Arbitrator finds that the Athlete here committed and anti-doping rule violation.
The Sole Arbitrator holds that it has been established that the Athlete committed two independent ADRVs three years apart, and that the Athlete, therefore, used Prohibited Substances on more than one occasion.
Considering the seriousness of the Athlete's ARDV, and the fact that the aggravating factors in Rule 40.7(d)(i) of the 2010-2011 IAAF Rules are relevant in the present case, the Arbitrator finds that a period of ineligibility of four (4) years is appropriate to the severity and the Athlete's misbehavior.
The Sole Arbitrator deems it justified to disqualify all of the Athlete's results obtained within four years from 23 August 2008, i.e. the date of the collection of the sample taken during the 2008 Games.
Therefore the Court of Arbitration for Sport decides on 3 May 2018 that:
1.) The request for arbitration filed by the International Association of Athletics Federations (IAAF) on 22 September 2017 against the Russian Athletics Federation and Ms Elena Slesarenko is partially upheld.
2.) A period of Ineligibility of four (4) years is imposed on Ms Elena Slesarenko starting from 4 October 2016.
3.) All results achieved by Ms Elena Slesarenko from 23 August 2008 until 22 August 2012 are disqualified, including forfeiture of any titles, awards, medals, points and prize and appearance money obtained during this period.
4.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne entirely by the Russian Athletics Federation.
5.) Ms. Elena Slesarenko shall bear her own costs and is ordered to pay to the International 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.
6.) The Russian Athletics Federation shall bear its own costs.
7.) All other and fmiher prayers or request for relief are dismissed.
