CAS 2018/O/5666 International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (RUSAF) & Tatyana Firova
Related case:
IOC 2016 IOC vs Tatyana Firova
August 29, 2016
- Athletics (middle-distance)
- Doping (dehydrochlormethyltestosterone; 1-testosterone; use or attempted use of prohibited substances)
- Burden and standard of proof
- Validity of the testing methods for long-term metabolites of DHCMT
- Means of proof and assessment of the reliability of the evidence
- Validity of a contestation of facts
- Sanction in case multiple violations can be considered as one single violation and aggravating circumstances
- Substantial delay in the hearing process or other aspects of doping control
- Fairness with regard to the disqualification of results
1. While the burden of proof is – according to Swiss law – a question of substantive law, the standard of proof is a question of procedural law.
2. The testing methods for long-term metabolites of dehydrochlormethyltestosterone (DHCMT) adopted by the laboratories, which led to the positive findings for DHCMT in Beijing Olympic Games and London Olympic Games, are scientifically valid.
3. As stipulated in the IAAF Rules, an anti-doping rule violation (ADRV) against an athlete may be established by any reliable means. The assessment relating to the reliability of the evidence before a hearing panel must be made in light of all the facts and circumstances of an individual case.
4. According to Swiss procedural law, a valid contestation of facts needs to be specific, i.e. it must be directed and attributable to an individual fact submitted by the party bearing the burden of proof. General and completely unsubstantiated criticism is not sufficient.
5. In a case where all ADRVs have to be considered, together, as one single first violation, Rule 40.7(d)(i) of the 2012-2013 IAAF Competition Rules provides that the sanction imposed shall be based on the violation that carries the more severe sanction. However, in accordance with Rule 40.6, ADRVs committed as part of a scheme, the use of multiple prohibited substances and such use on multiple occasions constitute aggravating circumstances that justify the imposition of a period of ineligibility greater than the standard sanction, up to a maximum of four years.
6. If an athlete intentionally administers substances that make analysing the sample time-consuming, the delay is attributable to the athlete.
7. Rule 40.8 of the 2012-2013 IAAF Competition Rules does not explicitly contain a fairness exception. However, CAS panels have previously deemed that Rule 40.8 of the 2012-2013 IAAF Rules, or its equivalents, include a fairness exception or at least that it cannot be excluded that a general principle of “fairness” may be applied in deciding whether some results are to be left untouched even in the absence of an explicit rule to this effect. Fairness exception is an embodiment of the principle of proportionality. The sanction to be imposed for an ADRV must be proportional considering the length of the ineligibility period and the disqualification of results, together and alone. Indeed, although the main purpose of the disqualification of results is not to punish the transgressor, but rather to correct any unfair advantage and to remove any tainted performances from the record, having regard to the fact that the disqualification of results embraces the forfeiture of any titles, awards, medals, points, and prizes, as well as appearance money, disqualification may be considered equal to a retroactive ineligibility period and therefore a sanction. CAS panels have broad discretion in adjusting the disqualification period to the circumstances of the case.
Ms. Tatyana Firova is a Russian Athlete competing in the 400m Athletics event at the Beijing 2008 and the London 2012 Olympic Games.
In 2016 the International Olympic Committee (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.
In May 2016 the IOC reported an anti-doping rule violation against the Athlete after her 2008 A and B samples tested positive for the prohibited substances dehydrochlormethyltestosterone (turinabol) and the metabolite of 1-Androstenediol, 1-Androstenedione or 1-Testosterone.
Consequently the IOC Disciplinary Commission decided on 29 August 2016 to disqualify the Athlete from all the events in which she participated upon the occasion of the Beijing 2008 Olympic Games including her medals and diplomas and the related results of the Russian Federation Team.
In November 2016 the International Association of Athletics Federations reported an anti-doping rule violation against the Russian Athlete since her case had been referred from the IOC to the IAAF. After notification a provisional suspension was ordered in June 2016 and the Athlete failed to respond to the IAAF communcations.
On 16 July 2016, Professor Richard McLaren (the Independent Person or the IP) issued a first report on the allegations of systemic doping in Russia. Some of the key findings of the First IP Report were that:
1.) the Moscow Laboratory operated, for the protection of doped Russian athletes, within a state-dictated failsafe system, described in the First IP Report as the disappearing positive methodology (DPM) and
2.) the Ministry of Sport of the Russian Federation directed, controlled, and oversaw the manipulation of athletes' analytical results or sample swapping, with the active participation and assistance of the Russian Federal Security Service, the Center of Sports Preparation of National Teams of Russia, and both Moscow and Sochi Laboratories.
On 9 December 2016, the IP elaborated on the First IP Report and released a second report on the doping allegations in Russia, together with the First IP Report. The Second IP Report confirmed the key findings of the First IP Report and described in detail the DPM and the Washout Testing.
Within the context of the Second IP Report, the IP identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered. The IP made publicly available on the IP Evidence Disclosure Package (EDP) website the evidence of the involvement of the Identified Athletes. According to the IP and the IAAF, the evidence on the EDP was retrieved from the hard-drive of Dr Rodchenkov and, after the metadata of all the documents was examined, the documents were determined to have been made contemporaneously to the events.
In October 2017 the IAAF reported a new anti-doping rule violation against the Russian Athlete based on the findings of the First and Second IP Report and the disclosed evidence.
After deliberations between the parties the case was referred to the Court of Arbitration for Sport (CAS) in April 2018 to be settled by a Sole Arbitrator first instance hearing panel.
The IAAF requested the Panel to impose a 4 year period of ineligibility on the Athlete due to aggravating circumstance and for the disqualification of the Athlete’s results from August 2008 until June 2016.
The IAAF contended that the Athlete tested positive for the prohibited substances Dehydrochlormethyltestosterone (turinabol) and the metabolite of 1-Androstenediol, 1-Androstenedione or 1-Testosterone as a result of the Athlete’s Beijing 2008 A and B samples.
Further the IAAF contended that the Athlete had used a wide range of anabolic steroids in the lead-up to the London 2012 Olympic Games based on the findings of the Second IP Report and the disclosed evidence (the London Washout Schedules). Here 3 official samples, provided by the Athlete, were reported as negative in ADAMS by the Moscow Laboratory while the evidence showed that these samples contained several prohibited substances.
In her submissions the Athlete disputed the filed evidence in this case provided by the IOC, the IAAF, Professor McLaren and Dr Rodchenko and pointed to inconsistencies in the proceedings and evidence.
Considering all the Parties submissions the Sole Arbitrator notes that, the main issues to be resolved are the following:
- A.) Did the Athlete commit an anti-doping rule violation in the Beijing 2008 Olympic Games, i.e. did she violate Rule 32.2(a) of the 2008 IAAF Rules?
- B.) Did the Athlete commit an anti-doping rule violation prior to the London 2012 Olympic Games, i.e. did she violate Rule 32.2(b) of the 2012-2013 IAAF Rules?
- C.) In case either or both questions are answered in the affirmative, what is the appropriate sanction to be imposed on the Athlete?
Based on the test results of the Athlete’s Beijing 2008 samples the Sole Arbitrator is comfortably satisfied that the Athlete has committed an anti-doping rule violation under de Rules. This finding is consistent with the IOC Disciplinary Commission’s finding.
In view of the evidence and having duly considered the arguments put forward by each Party, the Sole Arbitrator finds that the entries concerning the Athlete in the London Washout Schedules shall be considered reliable and the respective ADAMS entries by the Moscow Laboratory inaccurate.
The Athlete nor RusAF failed to establish that the London Washout Schedules would be fictitious.
The Sole Arbitrator concludes that the IAAF has established, to the comfortable satisfaction of the Sole Arbitrator, that the Athlete has committed an anti-doping rule violation in July 2012 prior to the London Olympic Games by using three prohibited substances: Dehydrochlormethyltestosterone (DHCMT), Boldenone, and 1-testosterone.
Considering the seriousness of the Athlete violations and the fact that many aggravating factors are relevant in this case, the Sole Arbitrator finds that a 4 year period of ineligibility is appropriate in relating to the degree and severity of the Athlete’s misbehaviour. Based on the principle of fairness the Sole Arbitrator deems it appropriate to disqualify the Athlete's results until 31 December 2012.
Therefore the Court of Arbitration for Sport decides on 1 February 2019 that:
1.) The Request for Arbitration filed by the International Association of Athletics Federations (IAAF) on 6 April 2018 is partially upheld.
2.) A period of ineligibility of four (4) years is imposed on Ms Tatyana Firova, starting from 9 June 2016.
3.) All competitive results of Ms Tatyana Firova from 20 August 2008 through to 31 December 2012 are disqualified, with all resulting consequences (including forfeiture of any titles, awards, medals, profits, prizes, and appearance money).
4.) The costs of the arbitration, to be determined and served to the Parties by the CAS Court Office, shall be borne in their entirety by the Russian Athletic Federation.
5.) The Russian Athletic Federation and Ms Tatyana Firova are ordered to pay, jointly and seperately, CHF 3,000.00 (three thousand Swiss Francs) to the International Association of Athletics Federations as a contribution towards its legal fees and expenses. The Russian Athletic Federation and Ms Tatyana Firova shall bear their own legal fees and expenses.
6.) All other motions or prayers for relief are dismissed.
