CAS 2020/A/6988 Andrey Isaychev v. Russian Anti-Doping Agency RUSADA
- Athletics (middle-distance running)
- Doping (prohibited association)
- Methods of interpretation of legal/regulatory provisions
- Requirements of the prohibited association rule
- Burden and standard of proof under the Russian Anti-
- Doping Rules (ADR) in relation to an anti-doping rule violation
- Appeal arbitration dispute decided ex aequo et bono
1. Under Swiss law, if the provision under review is clear and unambiguous, an authority applying it is bound to follow its literal meaning, provided it expresses its true meaning. Only if a text is not clear and if several interpretations are possible, one must determine its true scope by analysing its relation with other provisions (systematic interpretation), its legislative history (historic interpretation) and the spirit and intent of such provision (teleological interpretation). It is not for CAS panels to question the policy or intent of anti-doping rule makers, in particular given that the WADA Code emphasises that “when reviewing the facts and the law of a given case, all (…) adjudicating bodies should be aware of and respect the distinct nature of the anti-doping rules in the Code and the fact that those rules represent the consensus of a broad spectrum of stakeholders around the world with an interest in fair sport”.
2. It is unambiguous that for article 2.10 of the Russian ADR to be applied to an athlete, s/he must have been previously advised in writing by a relevant anti-doping agency of said athlete support person’s disqualifying status and of the potential consequence of a prohibited association and that said athlete can reasonably avoid the association.
3. According to article 3.1 of the Russian ADR, the RUSADA shall have the burden of establishing that an ADR violation has occurred. The Standard of proof shall be whether the RUSADA has established an ADR violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made.
4. It is accepted that the arbitral tribunal could decide ex aequo et bono also in appeal proceedings (pursuant to Article R58 of the CAS Code), if the parties so agree.
- Mr Andrey Isaychev is a Russian track athlete participating in competitions organized, convened, authorized or recognized by RusAF.
- Mr. Vladimir Semenovich Kazarin is a Russian athletics coach, training short, middle and long-distance runners.
On 7 April 2017 the Court of Arbitration for Sport (CAS) decided to impose a lifetime period of ineligibility on the Coach Kazarin (CAS 2016/A/4480) for committing anti-doping rule violations: Possession, Trafficking, and Administration of multiple Prohibited Substances.
The Athlete was aware that the Coach had been banned from officially training athletes, yet he continued training unofficially with the Coach. Previously on 19 July 2018 the Athlete had signed an acknowledgment form regarding Order 37 which listed the names of disqualified Russian coaches prohibited from training athletes.
In June 2019 RUSADA reported an anti-doping rule violation against the Athlete for Prohibited Association with the Coach. Consequently the RUSADA Disciplinary Anti-Doping Committee decided on 17 December 2019 to impose a 1 year period of ineligibility on the Athlete.
Hereafter in April 2020 the Athlete appealed the RUSADA Decision with CAS.
In this Appeal it is undisputed between the Parties that:
- (i) the Athlete was aware that the Coach had been banned from training athletes;
- (ii) the Athlete trained with the Coach after the Coach was banned by the CAS in 2017; and
- (iii) in July 2018 the Athlete signed the acknowledgment form that referred to the Order 37.
However the Parties disagree whether the Order 37 was presented or made available to the Athlete at the time of signing the acknowledgement form.
The Athlete denied he committed an anti-doping rule violation and requested compensation for sustained damages. He asserted that before he signed the acknowledgment form on 19 July 2018 the Order 37 itself was not provided to him. He and other athletes testified that no one had explained the content of the Order 37, nor made the Order 37 available for their review.
The Sole Arbitrator scrutinized the Prohibited Association Rule and concludes that, in order to establish a violation of Article 2.10 of the ADR applicable in this case, the Athlete ought to have first been advised in writing by an anti-doping organization with jurisdiction over the Athlete of the Coach's disqualifying status and the potential consequence of prohibited association therewith. Failing to do so, a violation cannot properly be established.
Further the Sole Arbitrator assessed the issue as to whether an advanced written notice was servered to the Athlete prior to establishing a violation of Article 2.10 of the ADR.
The Sole Arbitrator concludes that RUSADA did not establish to the comfortable satisfaction of the Sole Arbitrator that the Athlete was previously advised in writing by an anti-doping agency of the Coach's disqualifying status and the potential consequences of prohibited association.
Accordingly, RUSADA did not establish to the comfortable satisfaction of the Sole Arbitrator that the Athlete infringed Article 2.10 of the ADR.
The Sole Arbitrator observes that the Athlete did not submit any evidence that he sustained damages due to the alleged misconduct by RUSADA. He did not substantiate in any manner the amount of damages, nor established a nexus between RUSADA’s alleged misconduct and any alleged moral damages or financial loss incurred by the Athlete.
Therefore the Court of Arbitration for Sport decides on 6 April 2021 that:
1.) The appeal filed by Mr. Andrey Isaychev on 15 April 2020 against the Russian AntiDoping Agency with respect to the decision no. 21/2020 of 17 December 2019 of the Disciplinary Anti-Doping Committee of Russian Anti-Doping Agency is partially upheld.
2.) The decision no. 20/2020 of 17 December 2019 of the Disciplinary Anti-Doping Committee of Russian Anti-Doping Agency is set aside.
3.) All individual results earned by Mr. Andrey Isaychev from 15 November 2018 are reinstated.
4.) The request for compensation filed by Mr. Andrey Isaychev is dismissed.
5.) The costs of the present arbitration, to be determined and separately communicated to the Parties by the CAS Court Office, shall be shall be borne by 20% by Mr. Andrey Isaychev and by 80% by the Russian Anti-Doping Agency.
6.) The Russian Anti-Doping Agency is ordered to contribute to the legal fees and expenses incurred by Mr. Andrey Isaychev in the amount of CHF 4,500 (four thousand five hundred Swiss francs).
7.) All other motions or prayers for relief are dismissed.
