CAS 2019/O/6153 International Association of Athletics Federations (IAAF) v. Russian Athletics Federation (RusAF) and Yulia Gushchina
CAS 2019/O/6153 International Association of Athletics Federations (IAAF) v. Russian Athletics Federation (RUSAF) & Yulia Guschina
Related case:
IOC 2017 IOC vs Yulia Gushchina (London Olympiad)
October 16, 2017
- Athletics (sprint)
- Doping (dehydrochloromethyltestosterone)
- Purpose and effect of a disqualification of an athlete’s results
- Application of a general principle of fairness while determining the disqualification of an athlete’s results
- Principle of proportionality
- Factors assessed in relation to the application of a fairness test
1. The main purpose of a disqualification of results is not to punish a transgressor, but rather to correct any unfair advantage and to remove any tainted performances from the record. However, having regard to the fact that a 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.
2. It cannot be excluded that a general principle of “fairness” may be applied under Swiss and Monaco laws including in regard to Rule 40.8 of the 2011 IAAF Rules and the 2012 IAAF Rules or its equivalents in deciding whether some of an athlete’s 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, which must be applied in doping cases. The sanction to be imposed for an Anti-Doping Rule Violation must be proportional considering the length of the ineligibility period and the disqualification of results, together and alone.
3. The principle of proportionality requires to assess whether a sanction is appropriate to the violation committed. Excessive sanctions are prohibited.
4. Among factors assessed in the application of a fairness test are an athlete’s degree of fault, the affected sporting results, the significant consequences of disqualification of results, an Athlete’s Blood Passport, specific issues, additional ineligibility period in a second instance, delays in results management, the overall length of the disqualification and longer periods of disqualification specifically associated with re-testing.
Ms. Yulia Gushchina is a Russian Athlete competing in the Daegu 2011 Athletics World Championships and the Athletics events at the London 2012 Olympic Games.
In 2016, both IAAF and the IOC decided to perform further analyses on certain samples collected during the 2011 Athletics World Championships and the 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2011 and in 2012.
In December 2011 the International Association of Athletics Federations (IAAF) reported and anti-doping rule violation against the Athlete after her Daegu 2011 sample tested positive for the prohibited substance Dehydrochlormethyltestosterone (Turinabol).
In addition in April 2017 the International Olympic Committee reported an anti-doping rule violation against the Athlete after her 2012 A and B samples tested positive for the prohibited substance Turinabol. After notification a provisional suspension was ordered while the Athlete failed to respond.
Consequently the IOC Disciplinary Commission concluded that the Athlete had committed an anti-doping rule violation and decided on 16 October 2017 to disqualify the Athlete from the London 2012 Olympic Games and the events in which she participated.
The case was referred from the IOC to the IAAF in November 2017 to determine the further consequences that should be imposed. Because the Russian Athletics Federation (RusAF) was suspended by the IAAF the case was finally referred in February 2019 to the Court of Arbitration for Sport (CAS) for a Sole Arbitrator first instance hearing panel.
The IAAF requested the Sole Arbitrator Panel to impose a 4 year period of ineligibility and for disqualification of the Athlete’s results between 1 September 2011 and 28 March 2017.
The IAAF contended that the Athlete’s samples showed the presence of a prohibited substance and that she had committed 2 anti-doping rule violations in 2011 and in 2012 to be considered as one single first violation with aggravating circumstances.
Despite the numerous CAS communications both RusAF and the Athlete failed to provide any submission or communication on this matter.
Based on the evidence the Sole arbitrator finds that the presence had been established of Turinabol in the Athlete’s 2011 and 2012 samples and accordingly that she committed an anti-doping rule violation. Further the Sole Arbitrator considers that there are aggravating circumstances in this case that justifies the imposition of an increased period of ineligibility.
Also based on the principle of fairness the Sole Arbitrator deems it appropriate to disqualify the Athlete results between 1 September 2011 and 31 December 2014.
Therefore the Court of Arbitration for Sport decides on 18 October 2019 that:
1) The Request for Arbitration filed by the International Association of Athletics Federations against the Russian Athletics Federation and Ms Yulia Gushchina on 6 February 2019 is admissible and is upheld.
2) Ms Yulia Gushchina is sanctioned with a four-year period of ineligibility, commencing on the date of the present Award. The period of ineligibility served during the period of provisional suspension imposed on Ms Yulia Gushchina from 28 March 2017 through the date of the present Award shall be credited against the total period of ineligibility.
3) All the competitive results obtained by Ms Yulia Gushchina between and including 1 September 2011 and 31 December 2014 are disqualified, with all the resulting consequences, including the forfeiture of any titles, awards, medals, points and prize and appearance money.
4) The costs of the arbitration, to be determined and served separately to the Parties by the CAS Court Office, shall be borne, jointly and severally, by the Russian Athletics Federation and Ms Yulia Gushchina.
5) The Russia Athletics Federation and Ms Yulia Gushchina are ordered to pay, jointly and severally, to the International Association of Athletics Federations a total amount of CHF 3,000 (three thousand Swiss Francs) as contribution towards its legal fees and expenses incurred in connection with this arbitration procedure.
6) Any other motions or prayers for relief are rejected.
