CAS 2017/A/4986 Evgenia Shapovalova v. International Ski Federation (FIS), award of 31 August 2017 (operative part of 29 May 2017)
Related cases:
- CAS 2017_A_5439 Evgenia Shapovalova vs IOC
November 30, 2018 - IOC 2017 IOC vs Evgeniya Shapovalova - Operative Part
November 9, 2017
- Skiing (cross-country skiing)
Doping (tampering or attempted tampering with doping control) - Burden and standard of proof applicable to the imposition of a Provisional Suspension under the FIS ADR
Burden and standard of proof applicable to the lifting of a - Provisional Suspension under the FIS ADR
- Lack of infringement of the athlete’s fundamental and personality rights
- Assessment of the evidence upon which the provisional suspension is based
- Determination of the length of the provisional suspension
1. The provisional suspension occupies a space in which an anti-doping rule violation (ADRV) is asserted, but not yet proven. Provisional suspensions have therefore a necessarily preliminary character. The burden of proof and legal thresholds applicable must reflect the appealed suspension’s provisional nature and track the rules specific to its imposition. A provisional decision is overturned if it has “no reasonable prospect of being upheld”. In other words, the imposition of a provisional suspension requires a “reasonable possibility” that the suspended athlete has engaged in an ADRV. A reasonable possibility is more than a fanciful one; it requires evidence giving rise to individualized suspicion. This standard, however, is necessarily weaker than the test of “comfortable satisfaction” set forth in Article 3.1 FIS Anti-Doping Rules (ADR), relating solely to the adjudication of an ADRV. Accordingly, a reasonable possibility may exist even if the federation is unable to show that the balance of probabilities clearly indicates an ADRV on the evidence available. Pursuant to Article 7.9.2 FIS ADR, any ADRV suspected of an athlete can serve as cause for a provisional suspension against him or her, should the federation so decide. The federation’s burden under Article 7.9.2 is a limited one, but certainly not devoid of content. No plausible interpretation of Article 7.9.2 can require an athlete to disprove unsubstantiated assertions.
2. Once a suspension has been put in place and is challenged, Article 7.9.3.2 FIS ADR imposes three, independently sufficient criteria for lifting the suspension: a demonstrable lack of “fault” or “negligence” on the athlete’s part, “no reasonable prospect” of the assertion of an ADRV succeeding on the merits, or the presence of “other facts” making it “clearly unfair” to leave the suspension in place. Article 7.9.3.2 thus plainly imposes a higher threshold to lift a suspension than the FIS ADR require to impose one in the first place. Since additional evidence can be adduced in the period between a suspension’s imposition and ADRV proceedings, moreover, the rule does not require that “prospects” be assessed by reference to currently available evidence in isolation. Demonstrating the negative proposition, of no reasonable prospects, therefore requires more than an assertion as to shortcomings with current evidence, such as a patent flaw in the case against the athlete.
3. It is uncontroversial that certain norms and principles relating inter alia to the athlete’s rights of due process and personality inhere in Swiss law. These provide a minimum standard of process with which the FIS ADR must comply. However, those principles cannot be considered to be infringed where (i) there is neither “conviction” nor yet a formal “charge” of an ADRV, (ii) the suspected ADRV informing the athlete’s suspension is clear, (iii) as a matter of procedural due process, the parties’ equality of arms and the athlete’s rights to a fair hearing and opportunity to present his/her case were satisfied at the first instance and on appeal. Moreover, the athlete’s reference to a presumption of innocence cannot be considered to be availing. In this respect, Swiss “fundamental principles” including those relating to proof of guilt vary on a spectrum depending on the type of proceeding and cannot simply be transposed from criminal to private law. What is more, since there is no finding of guilt where a provisional suspension is at stake, the latter cannot implicate, still less violate, a presumption of innocence. Turning to the athlete’s personality rights, they must be balanced against those of associational autonomy. An athlete who joins an association and thereby submits to that association’s rules as a condition of participation may be deemed to have consented to those rules. Therefore, though a suspension infringes an athlete’s personality rights it is permissible if it is proportionate, i.e., not “excessive”. A determination of excessiveness depends on a balance of interests including inter alia the federation’s appreciable interest in guaranteeing for all athletes a “fundamental right to participate in doping-free sport”. Moreover, the fight against doping weighs even more heavily where the challenged measure is provisional and the infringement temporary.
4. The likelihood of an ADRV and the validity of provisional measures are clearly intertwined. The success of any ADRV charge will depend on further investigations, the outcome of which is at present unknown, indeed unknowable. This tension makes it all the more imperative that Article 7.9 FIS ADR be applied strictly to require evidence demonstrating at least a reasonable possibility of an ADRV. In this regard, the implication of an athlete in a clean urine bank whose existence is adduced by a report commissioned by the IOC i.e. the McLaren Report,, the existence of lists of names of athletes containing the athlete’s code purportedly authorized to take a “boosting cocktail” and scheduled to start in medal races and who likewise enjoyed “protected” status under Russia’s doping Scheme particularly when assessed collectively with evidence of tampering with the athlete’s sample bottle, indicate a reasonable possibility of an ADRV. The evidence suffices for the limited purpose of Article 7.9.2 of the FIS ADR.
5. An athlete cannot endorse an indefinite and indeterminable suspension as proportionate. Noting the athlete’s reasonable entitlement to legal certainty, it is deemed appropriate and just that the provisional suspension expire after 10 months, at which time it will be for the federation to consider whether or not to seek a further suspension justified by new developments and within the framework of the FIS ADR.
Two reports commissioned by WADA, published by Prof Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample.
As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. In the context of this Commission the IOC decided that all the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated.
Evgeniya Shapovalova is a Russian Athlete competing in the Women's Cross Country Skiing Event at the Sochi 2014 Olympic Winter Games.
In December 2016 the IOC Disciplinary Commission has reported multiple anti-doping rule violations against the Athlete for tampering, conspiracy and use of prohibited substances. Concurrently after notification a provisional suspension was ordered by the International Ski Federation (FIS). The IOC conducted further investigations after opening of the proceedings against the Athlete.
In December 2016 the Athlete challenged the imposed Provisional Suspension. However on 6 February 2017 the FIS Doping Panel decided by majority to uphold this Provisional Suspension. Hereafter in February 2017 the Athlete filed an appeal with the Court of Arbitration for Sport CAS.
The Athlete submitted that the applicable provisions regulating Optional Provisional Suspension in the FIS ADR require the Federation to should a legal burden which it has failed to meet.
FIS contended that its imposition of an Optional Provisional Suspension was necessary and legally justified. In its view, the FIS ADR require the Athlete – and not the Federation – to demonstrate certain criteria in order to lift a suspension, once one has been instituted. The Athlete in its view has failed to make out these criteria, least of all that an eventual ADRV charge has “no reasonable prospect” of being upheld. The provisional suspension therefore survives scrutiny.
The Panel concludes that the filed evidence establish a “reasonable possibility” of an anti-doping rule violation in the Athlete’s case. It further considered that the Athlete has not demonstrated with satisfaction the fulfillment of criteria necessary to lift the suspension, though the Panel decided that it should be modified.
Therefore the Court of Arbitration for Sport decides on 31 August 2017 that:
1.) The appeal filed on 16 February 2017 against the Decision of the FIS Doping Panel regarding Provisional Measures in the matter of Ms. Evgenia Shapovalova, dated 6 February 2017, is partially upheld.
2.) The Decision of the FIS Doping Panel dated 6 February 2017 is amended as follows:
The Optional Provisional Suspension is maintained until 31 October 2017, after which such suspension shall lapse and Ms. Evgenia Shapovalova shall, in the absence of any anti-doping rule violation sanction having been assessed against her, be restored to the status quo ante prevailing at the time of the suspension’s imposition.
3.) All other elements of the Decision of the FIS Doping Panel dated 6 February 2017 are confirmed.
4.) The International Ski Federation may, on or after 1 November 2017, re-impose an Optional Provisional Suspension in accordance with the FIS Anti-Doping Rules if the facts and circumstances so merit. Such suspension shall be subject to appeal in accordance with Article 13.7.1 of the FIS Anti-Doping Rules.
5.) (…).
6.) (…).
7.) All other motions or prayers for relief are dismissed.
