CAS 2018/O/5704 International Association of Athletics Federations (IAAF) v. Russian Athletics Federation (RUSAF) & Vera Ganeeva
Related cases:
- IOC 2016 IOC vs Vera Ganeeva
January 21, 2017 - World Athletics 2022 WA vs Vera Ganeyeva (Karmishina)
May 25, 2023
- Athletics (discus)
- Doping (use or attempted use of a prohibited substance)
- Standard of proof with regard to the alleged doping scheme
- Means of proof and weighting of the evidence
- Reliability of evidence
- Sanction in case multiple violations can be considered as one single violation and aggravating circumstances
- Substantial delay
- Proportionality in relation to the length of the disqualification
1. A sports body is not a national or international law enforcement agency. Its investigatory powers are substantially more limited than the powers available to such bodies. Since the sports body cannot compel the provision of documents or testimony, it must place greater reliance on the consensual provision of information and evidence, and on evidence that is already in the public domain. The CAS panel’s assessment of the evidence must respect those limitations. In particular, it must not be premised on unrealistic expectations concerning the evidence that the sports body is able to obtain from reluctant or evasive witnesses and other sources. In view of the nature of the alleged doping scheme and the sports body’s limited investigatory powers, the sports body may properly invite the CAS panel to draw inferences from the established facts that seek to fill in gaps in the direct evidence. The CAS panel may accede to that invitation where it considers that the established facts reasonably support the drawing of the inferences. So long as the CAS panel is comfortably satisfied about the underlying factual basis for an inference that an athlete has committed a particular anti-doping rule violation (ADRV), it may conclude that the sports body has established an ADRV notwithstanding that it is not possible to reach that conclusion by direct evidence alone. At the same time, however, if the allegations asserted against the athlete are of the utmost seriousness, i.e. knowingly benefitting from a doping scheme and system covering up positive doping results and registering them as negative in ADAMS, it is incumbent on the sports body to adduce particularly cogent evidence of the athlete’s deliberate personal involvement in that wrongdoing. In particular, it is insufficient for the sports body merely to establish the existence of an overarching doping scheme to the comfortable satisfaction of the CAS panel. Instead, the sports body must go further and establish, in each individual case, that the individual athlete knowingly engaged in particular conduct that involved the commission of a specific and identifiable ADRV. In other words, the CAS panel must be comfortably satisfied that the athlete personally committed a specific violation of a specific provision of the applicable rules.
2. In considering whether a sports body has discharged its burden of proof to the requisite standard of proof, a CAS panel will consider any admissible “reliable” evidence adduced by the sports body. This includes any admissions by the athlete, any “credible testimony” by third parties and any “reliable” documentary evidence or scientific evidence. Ultimately, the CAS panel has the task of weighing the evidence adduced by the Parties in support of their respective allegations. If, in the CAS panel’s view, both sides’ evidence carries the same weight, the rules on the burden of proof must break the tie.
3. If the standard of proof that was applied for the weighting of evidence was “beyond reasonable doubt”, that evidence meets a high threshold, and, thus, can be considered as sufficiently reliable.
4. In a case where, if the violations at the centre of the proceedings had been assessed together with the ADRV for which an athlete has already accepted a period of ineligibility, all violations would have been 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.
5. According to Rule 10.10.2 of the IAAF Anti-Doping Rules applying as lex mitior, where there have been substantial delays in the hearing process or other aspects of doping control not attributable to the athlete, the period of ineligibility may be deemed to have started at an earlier date that the date of the hearing decision providing for ineligibility, commencing as early as the date the ADRV last occurred. If such a substantial delay is established in a case where the athlete has signed an acceptance of sanction according to which his/her sanction would come to an end on a specific date earlier than the date of the CAS award and an additional period of ineligibility is pronounced against the athlete, this additional period should start on that specific date.
6. When assessing whether a sanction is excessive, a judge must review the type and scope of the proved rule-violation, the individual circumstances of the case, and the overall effect of the sanction on the offender. The question of fairness and proportionality in relation to the length of the disqualification period vis-à-vis the time which may be established as the last time that the athlete objectively committed a doping offence can also be taken into consideration.
Ms Vera Ganeeva is a Russian Athlete competing in the Women’s discus throw athletics event at the 2012 London Olympic Games and the 2013 Moscow IAAF World Championships.
In 2016 the International Olympic Committee (IOC) decided to perform further analyses on certain samples collected during the 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2012.
In May 2016 the IOC reported an anti-doping rule violation against the Athlete after her 2012 samples tested positive for the prohibited substance Dehydrochloromethyltestosterone (Turinabol).
Consequently the IOC Disciplinary Commission decided on 27 January 2017 to disqualify the Athlete from all the events in which she participated upon the occasion of the London 2012 Olympic Games including her medals and diplomas.
In July 2017 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. As a result the Athlete accepted on 10 April 2017 a 2 year period of ineligibility including disqualification of her results for a period of 2 years from 3 August 2012.
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 December 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 for a Sole Arbitrator first instance hearing panel.
The IAAF requested the Panel to impose a 2 year period of ineligibility on the Athlete due to aggravating circumstance and for the additional disqualification of the Athlete’s results from 25 July 2012 until the date of the decision in this case.
The IAAF contended that the Athlete tested positive for the prohibited substance Dehydrochlormethyltestosterone (Turinabol) as a result of the reanalysis of the Athlete’s London 2012 samples. Further the IAAF contended that the Athlete had used 4-hydroxytesosterone in the lead-up to the Moscow 2013 IAAF Championships based on the findings of the Second IP Report and the disclosed evidence (the London and Moscow Washout Schedules).
Here 2 official samples, provided by the Athlete, were reported as negative in ADAMS in 2012 by the Moscow Laboratory while the evidence showed that these samples contained a prohibited substance. Also 3 unofficial samples were listed in the Moscow Washout Schedules in 2013 containing a prohibited substance.
The Athlete disputed the reliability of the filed evidence in this case provided by the IOC, the IAAF, Professor McLaren and Dr Rodchenkov. She asserted that the positive findings in the retesting of the sample taken at the 2012 London Olympic Games were due to the faulty detection method developed by Dr Rodchenkov. She further denied ever having taken part in a "scheme" or having been on a list of "protected" athletes.
The Sole arbitrator concludes that the McLaren Evidence and the Washout Schedules are reliable elements that, taken together, form a body of concordant factors and evidence strong enough to establish an ADRV in this specific case.
The Sole Arbitrator is comfortably satisfied that the Athlete used a prohibited substance in the lead up to the London 2012 Olympic Games and the Moscow 2013 IAAF World Championships. In particular, the Sole Arbitrator is comfortably satisfied that the Athlete used Oral Turinabol in 2012 and 4-hydroxytestosterone in 2013 during her preparation for these major events as listed in the London and Moscow Washout Schedules.
Considering the seriousness of the violations of the Athlete 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. The 2 year period of ineligibility already served by the Athlete shall be prolonged with an additional period of ineligibility of 2 years starting on 2 July 2018.
Based on the principle of fairness the Sole Arbitrator deems it appropriate to disqualify the results of the Athlete from 25 July 2012 until 2 August 2014 and between 2 July 2018 and the notification of this CAS Award.
Therefore the Court of Arbitration for Sport decides on 31 January 2019 that:
1.) The Request for Arbitration filed by the International Association of Athletics Federations (IAAF) with the Court of Arbitration for Sport (CAS) against the Russian Athletics Federation (RUSAF) and Ms. Vera Ganeeva on 26 April 2018 is admissible and partially upheld.
2.) Ms. Vera Ganeeva committed anti-doping rule violations according to Rule 32.2(b) of the 2012-2013 IAAF Competition Rules.
3.) Ms. Vera Ganeeva is sanctioned with an additional period of ineligibility of two (2) years starting on 2 July 2018.
4.) All competitive results obtained by Ms. Vera Ganeeva from 25 July 2012 through to 2 August 2014, and between 2 July 2018 and the notification of the present Award shall be disqualified, with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points, prizes and appearance money.
5.) The costs of this arbitration, to be determined and served upon the Parties by the CAS Cami Office, shall be borne by the Russian Athletics Federation (RUSAF).
6.) The Russian Athletics Federation (RUSAF) and Ms. Vera Ganeeva shall each bear their own costs and are jointly and severally ordered to pay to the International Association of Athletics Federations (IAAF) the amount of CHF 2'000 (two thousand Swiss Francs) as a contribution towards the International Association of Athletics Federations' legal fees and expenses incurred in relation to the present proceedings.
7.) All other or further motions or prayers for relief are dismissed.
