CAS 2017/O/5039 International Association of Athletics Federation (IAAF) v. Russian Athletic Federation (RUSAF) & Anna Pyatykh
- Athletics (triple jump)
- Doping in a re-testing context (oxandrolone, methenolone, mesterolone, dehydrochlormethyltestosterone (DHCMT))
- Applicable law
- Statute of limitation
- Proof of presence of a prohibited substance
- Proof of use of a prohibited substance
- Disqualification of results according to fairness principle
1. Pursuant to the legal principle of tempus regit actum, procedural matters of a case are governed by the regulations in force at the time of the procedural act in question. The substantive aspects of an alleged anti-doping rule violation shall be governed by the version of the applicable rules in force at the time of the alleged violation unless the rules applicable at that time contain a lex mitior rule and the application of this leads to the applicability of another version of the respective rules in the specific case.
2. According to Rule 49.1 of the 2016-2017 IAAF Rules, the statute of limitations contained in Rule 47 of the 2015 WADA Code is a procedural rule. Rule 49 explicitly regulates the intertemporal scope of application of the 10-year limitation period contained in the 2015 WADA Code. Accordingly, the statute of limitation of 10 year contained in Rule 47 shall only be applied to violations that have occurred prior to the entering into force of the 2015 WADA Code, i.e. 1 January 2015, provided the previously applicable statute of limitation of 8 years has not already expired on 1 January 2015.
3. Where a prohibited substance has been found in the context of retesting of an athlete’s A-sample and where it is undisputed and uncontested that the athlete consumed a non-specified substance prohibited in- and out-of-competition under section S1.1.a, known to be sport performance enhancing, a violation of Rule 32.2 (a) of the 2007 IAAF Rules for presence of a prohibited substance is established.
4. Facts related to an anti-doping rule violation (ADRV) may be established by any reliable means pursuant to Rule 33.3 of the 2013 IAAF Rules. As relevant to the expert investigation, reliable means include contextual evidence, Initial Testing Procedure (“ITP”) screen of the national laboratory indicating possible prohibited substances, forensic evidence related to sample tampering or substitution, witness evidence linking a particular athlete to doping. The combination of different types of facts provided by the expert report with respect to any individual athlete are circumstantial evidence that can be used to establish an ADRV pursuant to Rule 33.3 of the 2013 IAAF Rules. In principle, whether there is sufficient evidence to demonstrate an ADRV or not must be considered on a case-by-case basis. It follows that facts related to an ADRV need not to comply with the Standard for Testing & Investigation (ISTI), the International Standard for Laboratory (ISL) or other laboratory requirements.
5. The general principle of fairness must prevail in order to avoid disproportional sanction. The application of fairness is not only in accordance with the general principle of law, but also with the “fairness exception” mentioned in Rule 39.4 of the 2007 IAAF Rules. The principle of proportionality requires to assess whether a sanction is appropriate to the violation. Excessive sanctions are prohibited. It is not appropriate to maintain results on the basis of fairness where the doping is severe, repeated and sophisticated. Not to disqualify results that have been achieved by using a Prohibited Substance cannot be considered as fair with regard to other athletes that competed against the athlete during this period. However, it is not fair to disqualify any results of the athlete during a period where there is no evidence that the athlete used doping substances or methods.
In this case two distinct sets of facts amount to separate anti-doping rule violations against the Russian Athlete Anna Pyatykh:
- (A) a retesting of a sample collected in 2007 (the Retesting Allegation); and
- (B) the Moscow washout testing as described in the Richard H. McLaren, Independent Person reports of 16 July 2016 (the First IP Report) and of 9 December 2016 (the Second IP Report) and the underlying evidence (the Washout Allegation).
To avoid detection at the 2013 IAAF World Championships, the Moscow Laboratory conducted “under the table testing" (pretesting) on the samples provided by the Athlete. All the results of the unofficial testing were reported on the Washout Schedule. The Washout Schedule indicated that the Athlete was tested three times in July 2013 before the 2013 IAAF World Championship.
When the Athlete’s third sample of 25 July 2013 showed normal levels the Washout Schedule indicated that the Athlete was “like clean”. As a result the Athlete was allowed to compete at the 2013 IAAF World Championship, as the Russian knew that she would not test positive.
In December 2016 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Athlete after reanalysis of her sample, provided in 2007, tested positive for the prohibited substance dehydrochlormethyltestosterone (turinabol).
In February 2017, after publication of the Second IP Report and the underlying evidence, the IAAF reported a second anti-doping rule violation against the Athlete for the use or attempted use of multiple prohibited substances in 2013: Oxandrolone, Methenolone, Mesterolone and Turinabol including a T/E ration above the WADA threshold.
After notification a provisional suspension was ordered. Because the Russian Athletics Federation (RusAF) was suspended by the IAAF the case was referred in March 2017 to the Court of Arbitration for Sport (CAS) for a first instance hearing panel. The Athlete filed a statement in her defence and she was heard for the CAS Panel.
The IAAF argued that the Athlete committed this anti-doping rule violation as part of a doping plan or scheme and used multiple prohibited substances or used prohibited substances on multiple occasions. Also the first reported anti-doping rule violation following the retesting of the Athlete’s sample must be taken into account when assessing the Athlete’s sanction.
The Athlete stated as to the Retesting Allegations that contaminated supplements she used in 2007 could apparently have caused the positive test result. As to the Washout Allegations, the Athlete asserted that she has always been tested officially, strictly in accordance with the WADA Code and the IAAF Rules and she has never provided the unofficial urine samples.
The main issues to be resolved by the CAS Sole Arbitrator are:
- Did the Athlete violate Rule 32.2(a) of the 2007 IAAF Rules?
- Did the Athlete violate Rule 32.2(b) of the 2013 IAAF Rules?
The Sole Arbitrator determines that the prohibited substance Turinabol has been found in the Athlete’s 2007 sample and finds that she committed an anti-doping rule violation under the 2007 IAAF Rules. The statute of limitation has not expired and the IAAF was entitled to initiate proceedings against the Athlete.
The Sole Arbitrator observes that the Athlete offered no explanation neither in her written submissions nor at the hearing why her name ended up in the Washout Schedule nor did she challenge the credibility of the Second IP Report. It follows that, the Sole Arbitrator finds the Athlete’s denial to be unsubstantiated and not credible.
The Sole Arbitrator finds it to be convincingly established by the IAAF that it is in fact the Athlete’s name in the Washout Schedule. The Sole Arbitrator holds that the Washout Schedule is a strong indication that the Athlete used the prohibited substances oxandrolone, metenolone mesterolone and turinabol.
The Sole Arbitrator agrees with the IAAF’s reading that the declining T/E ratio level supports the assertion the Athlete used the Prohibited Substances to prepare for the 2013 IAAF World Championships in Moscow. The latter is furthermore supported by the proximity between the dates mentioned in the Washout Schedule and the Athlete’s participation in the 2013 IAAF World Championships in Moscow.
Based on these findings, the Sole Arbitrator concludes that the Athlete committed an anti-doping rule violation under the 2013 IAAF Rules. Furthermore the Sole Arbitrator considers the seriousness of the Athlete’s ARDV and the fact that almost all of the aggravating factors under the 2013 IAAF Rules are relevant in the present case.
Therefore the Court of Arbitration for Sport decides on 18 August 2017 that:
1.) The request for arbitration filed by the International Association of Athletics Federations (IAAF) on 22 March 2017 against the Russian Athletics Federation and Ms Anna Pyatykh is partially upheld.
2.) Ms Anna Pyatykh has violated Rule 32.2(a) of the 2007 IAAF Rules and Rule 32.2(b) of the 2013 IAAF Rules.
3.) A period of ineligibility of four (4) years is imposed on Ms Anna Pyatykh starting on 15 December 2016.
4.) All results achieved by Ms Anna Pyatykh on 31 August 2007 and from 6 July 2013 to 15 December 2016 are disqualified, including forfeiture of any titles, awards, medals, points and prize and appearance money obtained during this period.
5.) (…).
6.) (…).
7.) (…).
8.) All other and further prayers or request for relief are dismissed.
