CAS 2015/A/4009 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF), Valeriy Borkin & Russian Anti-Doping Agency (RUSADA), award of 25 April 2016 (operative award of 24 March 2016)

Related cases:

• CAS 2015_A_4005 IAAF vs ARAF & Sergey Kirdyapkin & Rusada
  April 25, 2016
• CAS 2015_A_4006 IAAF vs ARAF & Yuliya Zaripova & Rusada
  April 25, 2016
• CAS 2015_A_4007 IAAF vs ARAF & Sergey Bakulin & Rusada
  April 25, 2016
• CAS 2015_A_4008 IAAF vs ARAF & Olga Kaniskina & Rusada
  April 25, 2016
• CAS 2015_A_4010 IAAF vs ARAF & Vladimir Kanaykin & Rusada
  April 25, 2016
  
  

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• Athletics (race walking)
• Doping (Athlete’s Biological Passport, ABP)
• Athlete Biological Passport as evidence
• Principle of lex mitior
• Concept of fairness
• Principle of proportionality

---

1. An athlete who, based on his Athlete Biological Passport (ABP), is found guilty of an anti-doping rule violation and criticises the reliability of the ABP but does not challenge the respective decision accepts the conclusion that his ABP constituted sufficient evidence to ground the conclusion that he committed an anti-doping rule violation. Conversely, the criticism as to the reliability of the ABP can be understood as aiming to show that insufficient evidence has been submitted to prove that some of the samples included in the ABP of the athlete are abnormal, and therefore to allow the conclusion, from the athlete’s perspective, that they should not be taken into account when determining whether the results achieved in the period surrounding those disputed samples have to be disqualified. In the same way, the athlete may invoke any alleged unreliability of the ABP method as a factor to be taken into account when assessing, in general terms, the “fairness” of the disqualification (or of the non-disqualification) of his results.

2. When applying the lex mitior principle in case of anti-doping rule violations, either the set of rules applicable at the time when the anti-doping rule violation was committed or otherwise the rules applicable at the time the decision is adopted are to be determined as the applicable set of rules most favourable to the accused, without picking individual provisions from each. The hearing body cannot undertake a rule-by-rule comparison of the two systems, picking the most favourable rule of each system.

3. The concept of “fairness” is a broad one, covering a number of elements that the deciding body can take into account in its decision not to disqualify some results. In the past CAS panels took into account a number of factors, such as the nature and severity of the infringement, the length of time between the anti-doping rule violation, the result to be disqualified and the disciplinary decision, the presence of negative tests between the anti-doping rule violation and the competition at which the result to be disqualified was achieved, and the effect of the infringement on the result at stake. It is not a single element that is decisive alone: an overall evaluation of them is necessary.

4. The principle of proportionality implies that there must be a reasonable balance between the kind of misconduct and the sanction, and in particular that (i) the measure taken by the governing body can achieve the envisaged goal, (ii) the measure taken by the governing body is necessary to reach the envisaged goal, and (iii) the constraints on the affected person resulting from the measure are justified by the overall interest of achieving the envisaged goal. In other words, to be proportionate, a measure must not exceed what is reasonably required in the search for a legitimate objective.

---

Mr Valeriy Borchin is an International Level Russian Athlete specializing in the 20 km race walk event.

The object of the dispute between the parties is a portion of a decision issued by a disciplinary committee of RUSADA in an anti-doping case brought against the Athlete, based on the irregularities observed between February 2011 and August 2012 in the Athlete's Biological Passport (ABP) concerning the Athlete.

The International Association of Athletics Federations (IAAF) started the present arbitration claiming that the applicable anti-doping rules adopted by IAAF (the IAAF ADR) to implement the provisions of the World Anti-Doping Code had not been correctly applied on a specific point (disqualification of results).

On 20 January 2015 the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency (RUSADA) decided to impose an 8 year period of ineligibility on the Athlete as second anti-doping rule violation including disqualification of his results obtained between July 2009 and September 2012 based on the atypical profile in his ABP.

Hereafter in March 2015 the IAAF appealed 6 similar decisions of RUSADA, including the Athlete’s case, with the Court of Arbitation for Sport (CAS).

The IAAF requested the Panel to disqualify all the Athlete’s results obtained between 14 August 2009 and 15 October 2012. This requested disqualification is including the competitive results of the 2011 Rio Maior Meeting and the 2012 Russian Winter Indoor Meeting which were not disqualified by RUSADA in its decision of 20 January 2015.

The IAAF argued that the “fairness exception” set forth in Article 40.9 of the 2015 IAAF ADR should not apply to the Athlete’s case considering the Athlete’s serious aggravated doping violation and based on the irregularities in his ABP.

ARAF requested the Panel to dismiss the IAAF appeal and finds the RUSADA decision of 20 August 2009 to be grounded, well-founded and reasonable. The Athlete argued that there is no evidence that he committed an anti-doping rule violation at the events in question and the obtained results should not be disqualified considering the principle of fairness.

RUSADA contended that they applied the principle of fairness in their decision according to the IAAF Rules. The Athlete was already sanctioned for 11 years and 2 months due he was provisionally suspended and sanctioned since October 2012. It asserted that it is not possible to use the data of samples collected in 2007-2009 as claim that the Athlete was engaged in a doping scheme over long period.

The selective disqualification of results decided by the Disciplinary Anti-Doping Committee was fair both for the Athlete and the clean athletes who competed against his. Also the decision of the Committee to consider only a selection of samples of the Athlete’s ABP was in line with the applicable standard of evidence.

The main issue that this Panel has to decide is whether the Decision was correct in disqualifying only some of the results achieved by the Athlete in the period following the date on which the anti-doping rule violation was found to have been committed and the beginning of the period of (provisional) suspension/ineligibility.

In this connection, the parties brought some other incidental issues to the attention of the Panel during the course of the arbitration: the identification of the rules which have to be applied, and, if relevant, the meaning and conditions of application of the "fairness exception" mentioned at Article 40.9 of the 2015 IAAF ADR.

After an overall evaluation of all relevant elements, the Panel concludes that all competitive results obtained by the Athlete must be disqualified, with all resulting consequences in accordance with Article 40.9 of the 2009 IAAF Rules. No reasons of fairness can be found not to disqualify them.

Therefore the Court of Arbitration for Sport rules decides on 25 April 2016:

1.) The appeal filed on 25 March 2015 by the International Association of Athletics Federations (IAAF) against the decision issued on 20 January 2015 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is granted.

2.) Point 3 of the decision issued on 20 January 2015 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is partially modified.

3.) All competitive results obtained by Mr Valeriy Borkin from 14 August 2009 to 15 October 2012 are disqualified, with all resulting consequences in accordance with Article 40.9 of the IAAF Anti-Doping Rules.

4.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne in their entirety by the All Russia Athletics Federation, Mr Valeriy Borkin and the Russian Anti-Doping Agency. The All Russia Athletics Federation, Mr Valeriy Borkin and the Russian Anti-Doping Agency are therefore ordered to reimburse the International Association of Athletics Federations (IAAF) for any amount advanced for the costs of arbitration in the following proportions: 25% by the All Russia Athletics Federation, 25% by Mr Valeriy Borkin, and 50% by the Russian Anti-Doping Agency.

5.) The All Russia Athletics Federation, Mr Valeriy Borkin and the Russian Anti-Doping Agency shall pay to the International Association of Athletics Federations (IAAF) an aggregate amount of CHF 9,000 (nine thousand Swiss Francs) as a contribution toward the costs it has sustained in connection with these arbitration proceedings, as follows: CHF 2,000 (two thousand Swiss Francs) by the All Russia Athletics Federation, CHF 5,000 (five thousand Swiss Francs) by Mr Valeriy Borkin, and CHF 2,000 (two thousand Swiss Francs) by the Russian Anti-Doping Agency.

6.) The All Russia Athletics Federation, Mr Valeriy Borkin and the Russian Anti-Doping Agency shall be jointly liable for the payments to be made to the International Association of Athletics Federations (IAAF) in accordance with points 4 and 5 above.

7.) All other motions or prayers for relief are dismissed.

CAS 2015/A/4008 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF), Olga Kaniskina & Russian Anti-Doping Agency (RUSADA), award of 25 April 2016 (operative award of 24 March 2016)

Related cases:

• CAS 2015_A_4005 IAAF vs ARAF & Sergey Kirdyapkin & Rusada
  April 25, 2016
• CAS 2015_A_4006 IAAF vs ARAF & Yuliya Zaripova & Rusada
  April 25, 2016
• CAS 2015_A_4007 IAAF vs ARAF & Sergey Bakulin & Rusada
  April 25, 2016
• CAS 2015_A_4009 IAAF vs ARAF & Valeriy Borchin & Rusada
  April 25, 2016
• CAS 2015_A_4010 IAAF vs ARAF & Vladimir Kanaykin & Rusada
  April 25, 2016
  
  

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• Athletics (race walking)
• Doping (Athlete’s Biological Passport, ABP)
• Athlete Biological Passport as evidence
• Principle of lex mitior
• Concept of fairness
• Principle of proportionality

---

1. An athlete who, based on his Athlete Biological Passport (ABP), is found guilty of an anti-doping rule violation and criticises the reliability of the ABP but does not challenge the respective decision accepts the conclusion that his ABP constituted sufficient evidence to ground the conclusion that he committed an anti-doping rule violation. Conversely, the criticism as to the reliability of the ABP can be understood as aiming to show that insufficient evidence has been submitted to prove that some of the samples included in the ABP of the athlete are abnormal, and therefore to allow the conclusion, from the athlete’s perspective, that they should not be taken into account when determining whether the results achieved in the period surrounding those disputed samples have to be disqualified. In the same way, the athlete may invoke any alleged unreliability of the ABP method as a factor to be taken into account when assessing, in general terms, the “fairness” of the disqualification (or of the non-disqualification) of his results.

2. When applying the lex mitior principle in case of anti-doping rule violations, either the set of rules applicable at the time when the anti-doping rule violation was committed or otherwise the rules applicable at the time the decision is adopted are to be determined as the applicable set of rules most favourable to the accused, without picking individual provisions from each. The hearing body cannot undertake a rule-by-rule comparison of the two systems, picking the most favourable rule of each system.

3. The concept of “fairness” is a broad one, covering a number of elements that the deciding body can take into account in its decision not to disqualify some results. In the past CAS panels took into account a number of factors, such as the nature and severity of the infringement, the length of time between the anti-doping rule violation, the result to be disqualified and the disciplinary decision, the presence of negative tests between the anti-doping rule violation and the competition at which the result to be disqualified was achieved, and the effect of the infringement on the result at stake. It is not a single element that is decisive alone: an overall evaluation of them is necessary.

4. The principle of proportionality implies that there must be a reasonable balance between the kind of misconduct and the sanction, and in particular that (i) the measure taken by the governing body can achieve the envisaged goal, (ii) the measure taken by the governing body is necessary to reach the envisaged goal, and (iii) the constraints on the affected person resulting from the measure are justified by the overall interest of achieving the envisaged goal. In other words, to be proportionate, a measure must not exceed what is reasonably required in the search for a legitimate objective.

---

Ms Olga Kaniskina is an International Level Russian Athlete specialized in the 20 km race walk event.

The object of the dispute between the parties is a portion of a decision issued by a disciplinary committee of RUSADA in an anti-doping case brought against the Athlete, based on the irregularities observed between August 2009 and August 2012 in the Athlete's Biological Passport (ABP) concerning the Athlete.

The International Association of Athletics Federations (IAAF) started the present arbitration claiming that the applicable anti-doping rules adopted by IAAF (the IAAF ADR) to implement the provisions of the World Anti-Doping Code had not been correctly applied on a specific point (disqualification of results).

On 20 January 2015 the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency (RUSADA) decided to impose a 3 year and 2 month period of ineligibility on the Athlete including disqualification of her results obtained between July 2009 and November 2011 based on the atypical profile in her ABP.

Hereafter in March 2015 the IAAF appealed 6 similar decisions of RUSADA, including the Athlete’s case, with the Court of Arbitation for Sport (CAS).

The IAAF requested the Panel to disqualify all the Athlete’s results obtained between 15 August 2009 and 15 October 2012. This requested disqualification is including the competitive results of the 2010 European Championships, the 2012 Race Walking Cup and the London 2012 Olympic Games which were not disqualified by RUSADA in its decision of 20 January 2015.

The IAAF argued that the “fairness exception” set forth in Article 40.9 of the 2015 IAAF ADR should not apply to the Athlete’s case considering the Athlete’s serious aggravated doping violation and based on the irregularities in her ABP.

ARAF requested the Panel to dismiss the IAAF appeal and finds the RUSADA decision of 20 August 2009 to be grounded, well-founded and reasonable. The Athlete argued that there is no evidence that she committed an anti-doping rule violation at the events in question and the obtained results should not be disqualified considering the principle of fairness.

RUSADA contended that they applied the principle of fairness in their decision according to the IAAF Rules. The Athlete was already sanctioned for 6 years and 4 months due she was provisionally suspended and sanctioned since October 2012. It asserted that it is not possible to use the data of samples collected in 2006-2009 as claim that the Athlete was engaged in a doping scheme over long period.

The selective disqualification of results decided by the Disciplinary Anti-Doping Committee was fair both for the Athlete and the clean athletes who competed against her. Also the decision of the Committee to consider only a selection of samples of the Athlete’s ABP was in line with the applicable standard of evidence.

The main issue that this Panel has to decide is whether the Decision was correct in disqualifying only some of the results achieved by the Athlete in the period following the date on which the anti-doping rule violation was found to have been committed and the beginning of the period of (provisional) suspension/ineligibility.

In this connection, the parties brought some other incidental issues to the attention of the Panel during the course of the arbitration: the identification of the rules which have to be applied, and, if relevant, the meaning and conditions of application of the "fairness exception" mentioned at Article 40.9 of the 2015 IAAF ADR.

After an overall evaluation of all relevant elements, the Panel concludes that all competitive results obtained by the Athlete must be disqualified, with all resulting consequences in accordance with Article 40.9 of the 2009 IAAF Rules. No reasons of fairness can be found not to disqualify them.

Therefore the Court of Arbitration for Sport rules decides on 25 April 2016:

1.) The appeal filed on 25 March 2015 by the International Association of Athletics Federations (IAAF) against the decision issued on 20 January 2015 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is granted.

2.) Point 3 of the decision issued on 20 January 2015 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is partially modified.

3.) All competitive results obtained by Ms Olga Kaniskina from 15 August 2009 to 15 October 2012 are disqualified, with all resulting consequences in accordance with Article 40.9 of the IAAF Anti-Doping Rules.

4.) The costs of the arbitration, to be determined and served to the patties by the CAS Court Office, shall be borne in their entirety by the All Russia Athletics Federation, Ms Olga Kaniskina and the Russian Anti-Doping Agency. The All Russia Athletics Federation, Ms Olga Kaniskina and the Russian Anti-Doping Agency are therefore ordered to reimburse the International Association of Athletics Federations (IAAF) for any amount advanced for the costs of arbitration in the following proportions: 25% by the All Russia Athletics Federation, 25% by Ms Olga Kaniskina, and 50% by the Russian AntiDoping Agency.

5.) The All Russia Athletics Federation, Ms Olga Kaniskina and the Russian Anti-Doping Agency shall pay to the International Association of Athletics Federations (IAAF) an aggregate amount of CHF 9,000 (nine thousand Swiss Francs) as a contribution toward the costs it has sustained in connection with these arbitration proceedings, as follows: CHF 2,000 (two Swiss Francs) by the All Russia Athletics Federation, CHF 5,000 (five thousand Swiss Francs) by Ms Olga Kaniskina, and CHF 2,000 (two thousand Swiss Francs) by the Russian Anti-Doping Agency.

6.) The All Russia Athletics Federation, Ms Olga Kaniskina and the Russian Anti-Doping Agency shall be jointly liable for the payments to be made to the International Association of Athletics Federations (IAAF) in accordance with points 4 and 5 above.

7.) All other motions or prayers for relief are dismissed.

CAS 2015/A/4007 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF), Sergey Bakulin & Russian Anti-Doping Agency (RUSADA), award of 25 April 2016 (operative award of 24 March 2016)

Related cases:

• IAAF 2019 IAAF vs Sergey Bakulin
  August 14, 2019
• CAS 2015_A_4005 IAAF vs ARAF & Sergey Kirdyapkin & Rusada
  April 25, 2016
• CAS 2015_A_4006 IAAF vs ARAF & Yuliya Zaripova & Rusada
  April 25, 2016
• CAS 2015_A_4008 IAAF vs ARAF & Olga Kaniskina & Rusada
  April 25, 2016
• CAS 2015_A_4009 IAAF vs ARAF & Valeriy Borchin & Rusada
  April 25, 2016
• CAS 2015_A_4010 IAAF vs ARAF & Vladimir Kanaykin & Rusada
  April 25, 2016

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• Athletics (race walking)
• Doping (Athlete’s Biological Passport, ABP)
• Athlete Biological Passport as evidence
• Principle of lex mitior
• Concept of fairness
• Principle of proportionality

---

1. An athlete who, based on his Athlete Biological Passport (ABP), is found guilty of an anti-doping rule violation and criticises the reliability of the ABP but does not challenge the respective decision accepts the conclusion that his ABP constituted sufficient evidence to ground the conclusion that he committed an anti-doping rule violation. Conversely, the criticism as to the reliability of the ABP can be understood as aiming to show that insufficient evidence has been submitted to prove that some of the samples included in the ABP of the athlete are abnormal, and therefore to allow the conclusion, from the athlete’s perspective, that they should not be taken into account when determining whether the results achieved in the period surrounding those disputed samples have to be disqualified. In the same way, the athlete may invoke any alleged unreliability of the ABP method as a factor to be taken into account when assessing, in general terms, the “fairness” of the disqualification (or of the non-disqualification) of his results.

2. When applying the lex mitior principle in case of anti-doping rule violations, either the set of rules applicable at the time when the anti-doping rule violation was committed or otherwise the rules applicable at the time the decision is adopted are to be determined as the applicable set of rules most favourable to the accused, without picking individual provisions from each. The hearing body cannot undertake a rule-by-rule comparison of the two systems, picking the most favourable rule of each system.

3. The concept of “fairness” is a broad one, covering a number of elements that the deciding body can take into account in its decision not to disqualify some results. In the past CAS panels took into account a number of factors, such as the nature and severity of the infringement, the length of time between the anti-doping rule violation, the result to be disqualified and the disciplinary decision, the presence of negative tests between the anti-doping rule violation and the competition at which the result to be disqualified was achieved, and the effect of the infringement on the result at stake. It is not a single element that is decisive alone: an overall evaluation of them is necessary.

4. The principle of proportionality implies that there must be a reasonable balance between the kind of misconduct and the sanction, and in particular that (i) the measure taken by the governing body can achieve the envisaged goal, (ii) the measure taken by the governing body is necessary to reach the envisaged goal, and (iii) the constraints on the affected person resulting from the measure are justified by the overall interest of achieving the envisaged goal. In other words, to be proportionate, a measure must not exceed what is reasonably required in the search for a legitimate objective.

---

Mr Sergey Bakulin is an International Level Russian Athlete specializing in the 50 km race walk event

The object of the dispute between the parties is a portion of a decision issued by a disciplinary committee of RUSADA in an anti-doping case brought against the Athlete, based on the irregularities observed between February 2011 and August 2012 in the Athlete's Biological Passport (ABP) concerning the Athlete.

The International Association of Athletics Federations (IAAF) started the present arbitration claiming that the applicable anti-doping rules adopted by IAAF (the IAAF ADR) to implement the provisions of the World Anti-Doping Code had not been correctly applied on a specific point (disqualification of results).

On 20 January 2015 the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency (RUSADA) decided to impose a 3 year and 2 month period of ineligibility on the Athlete including disqualification of his results obtained between January 2011 and June 2012 based on the atypical profile in his ABP.

Hereafter in March 2015 the IAAF appealed 6 similar decisions of RUSADA, including the Athlete’s case, with the Court of Arbitation for Sport (CAS).

The IAAF requested the Panel to disqualify all the Athlete’s results obtained between 25 February 2011 and 24 December 2012. This requested disqualification is including the competitive results of the 2011 World Championships and the London 2012 Olympic Games which were not disqualified by RUSADA in its decision of 20 January 2015.

The IAAF argued that the “fairness exception” set forth in Article 40.9 of the 2015 IAAF ADR should not apply to the Athlete’s case considering the Athlete’s serious aggravated doping violation and based on the irregularities in his ABP.

ARAF requested the Panel to dismiss the IAAF appeal and finds the RUSADA decision of 20 August 2009 to be grounded, well-founded and reasonable. The Athlete argued that there is no evidence that he committed an anti-doping rule violation at the events in question and the obtained results should not be disqualified considering the principle of fairness.

RUSADA contended that they applied the principle of fairness in their decision according to the IAAF Rules. The Athlete was already sanctioned for 5 years due he was provisionally suspended and sanctioned since December 2012. It asserted that it is not possible to use the data of samples collected in 2006-2009 as claim that the Athlete was engaged in a doping scheme over long period.

The selective disqualification of results decided by the Disciplinary Anti-Doping Committee was fair both for the Athlete and the clean athletes who competed against his. Also the decision of the Committee to consider only a selection of samples of the Athlete’s ABP was in line with the applicable standard of evidence.

The main issue that this Panel has to decide is whether the Decision was correct in disqualifying only some of the results achieved by the Athlete in the period following the date on which the anti-doping rule violation was found to have been committed and the beginning of the period of (provisional) suspension/ineligibility.

In this connection, the parties brought some other incidental issues to the attention of the Panel during the course of the arbitration: the identification of the rules which have to be applied, and, if relevant, the meaning and conditions of application of the "fairness exception" mentioned at Article 40.9 of the 2015 IAAF ADR.

After an overall evaluation of all relevant elements, the Panel concludes that all competitive results obtained by the Athlete must be disqualified, with all resulting consequences in accordance with Article 40.9 of the 2009 IAAF Rules. No reasons of fairness can be found not to disqualify them.

Therefore the Court of Arbitration for Sport decides on 25 April 2016 that:

1.) The appeal filed on 25 March 2015 by the International Association of Athletics Federations (IAAF) against the decision issued on 20 January 2015 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is granted.

2.) Point 3 of the decision issued on 20 January 2015 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is partially modified.

3.) All competitive results obtained by Mr Sergey Bakulin from 25 February 2011 to 24 December 2012 are disqualified, with all resulting consequences in accordance with Article 40.9 of the IAAF Anti-Doping Rules.

4.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne in their entirely by the All Russia Athletics Federation, Mr Sergey Bakulin and the Russian Anti-Doping Agency. The All Russia Athletics Federation, Mr Sergey Bakulin and the Russian Anti-Doping Agency are therefore ordered to reimburse the International Association of Athletics Federations (IAAF) for any amount advanced for the costs of arbitration in the following proportions: 25% by the All Russia Athletics Federation, 25% by Mr Sergey Bakulin, and 50% by the Russian Anti-Doping Agency.

5.) The All Russia Athletics Federation, Mr Sergey Bakulin and the Russian Anti-Doping Agency shall pay to the International Association of Athletics Federations (IAAF) an aggregate amount of CHF 9,000 (nine thousand Swiss Francs) as a contribution toward the costs it has sustained in connection with these arbitration proceedings, as follows: CHF 2,000 (two thousand Swiss Francs) by the All Russia Athletics Federation, CHF 5,000 (five thousand Swiss Francs) by Mr Sergey Bakulin, and CHF 2,000 (two thousand Swiss Francs) by the Russian Anti-Doping Agency.

6.) The All Russia Athletics Federation, Mr Sergey Bakulin and the Russian Anti-Doping Agency shall be jointly liable for the payments to be made to the International Association of Athletics Federations (IAAF) in accordance with points 4 and 5 above.

7.) All other motions or prayers for relief are dismissed.

CAS 2015/A/4006 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF), Yuliya Zaripova & Russian Anti-Doping Agency (RUSADA), award of 25 April 2016 (operative award of 24 March 2016)

Related cases:

• IOC 2016 IOC vs Yuliya Zaripova
  November 10, 2016
• CAS 2015_A_4005 IAAF vs ARAF & Sergey Kirdyapkin & Rusada
  April 25, 2016
• CAS 2015_A_4007 IAAF vs ARAF & Sergey Bakulin & Rusada
  April 25, 2016
• CAS 2015_A_4008 IAAF vs ARAF & Olga Kaniskina & Rusada
  April 25, 2016
• CAS 2015_A_4009 IAAF vs ARAF & Valeriy Borchin & Rusada
  April 25, 2016
• CAS 2015_A_4010 IAAF vs ARAF & Vladimir Kanaykin & Rusada
  April 25, 2016
  
  

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• Athletics (3000m steeplechase)
• Doping (Athlete’s Biological Passport, ABP)
• Principle of lex mitior
• Concept of fairness
• Principle of proportionality

---

1. When applying the lex mitior principle in case of anti-doping rule violations, either the set of rules applicable at the time when the anti-doping rule violation was committed or otherwise the rules applicable at the time the decision is adopted are to be determined as the applicable set of rules most favourable to the accused, without picking individual provisions from each. The hearing body cannot undertake a rule-by-rule comparison of the two systems, picking the most favourable rule of each system.

2. The concept of “fairness” is a broad one, covering a number of elements that the deciding body can take into account in its decision not to disqualify some results. In the past CAS panels took into account a number of factors, such as the nature and severity of the infringement, the length of time between the anti-doping rule violation, the result to be disqualified and the disciplinary decision, the presence of negative tests between the anti-doping rule violation and the competition at which the result to be disqualified was achieved, and the effect of the infringement on the result at stake. It is not a single element that is decisive alone: an overall evaluation of them is necessary.

3. The principle of proportionality implies that there must be a reasonable balance between the kind of misconduct and the sanction, and in particular that (i) the measure taken by the governing body can achieve the envisaged goal, (ii) the measure taken by the governing body is necessary to reach the envisaged goal, and (iii) the constraints on the affected person resulting from the measure are justified by the overall interest of achieving the envisaged goal. In other words, to be proportionate, a measure must not exceed what is reasonably required in the search for a legitimate objective.

---

Ms. Yiliya Zaripova is an International Level Russian Athlete specializing in the 3000 m steeplechase event.

The object of the dispute between the parties is a portion of a decision issued by a disciplinary committee of RUSADA in an anti-doping case brought against the Athlete, based on the irregularities observed between August 2009 and August 2012 in the Athlete's Biological Passport (ABP) concerning the Athlete.

The International Association of Athletics Federations (IAAF) started the present arbitration claiming that the applicable anti-doping rules adopted by IAAF (the IAAF ADR) to implement the provisions of the World Anti-Doping Code had not been correctly applied on a specific point (disqualification of results).

On 20 January 2015 the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency (RUSADA) decided to impose a 2 year and 6 month period of ineligibility on the Athlete including disqualification of her results obtained between June 2011 and September 2012 based on the atypical profile in her ABP.

Hereafter in March 2015 the IAAF appealed 6 similar decisions of RUSADA, including the Athlete’s case, with the Court of Arbitation for Sport (CAS).

The IAAF requested the Panel to disqualify all the Athlete’s results obtained between 20 July 2011 and 25 August 2013. This requested disqualification is including the competitive results of the 2011 World Championships, the 2011 Diamond League Meeting and the 2013 Summer Universiade which were not disqualified by RUSADA in its decision of 20 January 2015.

The IAAF argued that the “fairness exception” set forth in Article 40.9 of the 2015 IAAF ADR should not apply to the Athlete’s case considering the Athlete’s serious aggravated doping violation and based on the irregularities in her ABP.

ARAF requested the Panel to dismiss the IAAF appeal and finds the RUSADA decision of 20 August 2009 to be grounded, well-founded and reasonable. The Athlete argued that there is no evidence that she committed an anti-doping rule violation at the events in question and the obtained results should not be disqualified considering the principle of fairness.

RUSADA contended that they applied the principle of fairness in their decision according to the IAAF Rules. The Athlete was already sanctioned for 4 years and 6 months due he was provisionally suspended and sanctioned since July 2013. The selective disqualification of results decided by the Disciplinary Anti-Doping Committee was fair both for the Athlete and the clean athletes who competed against her. Also the decision of the Committee to consider only a selection of samples of the Athlete’s ABP was in line with the applicable standard of evidence

The main issue that this Panel has to decide is whether the Decision was correct in disqualifying only some of the results achieved by the Athlete in the period following the date on which the anti-doping rule violation was found to have been committed and the beginning of the period of (provisional) suspension/ineligibility.

In this connection, the parties brought some other incidental issues to the attention of the Panel during the course of the arbitration: the identification of the rules which have to be applied, and, if relevant, the meaning and conditions of application of the "fairness exception" mentioned at Article 40.9 of the 2015 IAAF ADR.

After an overall evaluation of all relevant elements, the Panel concludes that all competitive results obtained by the Athlete must be disqualified, with all resulting consequences in accordance with Article 40.9 of the 2009 IAAF Rules. No reasons of fairness can be found not to disqualify them.

Therefore the Court of Arbitration for Sport rules decides on 25 April 2016:

1.) The appeal filed on 25 March 2015 by the International Association of Athletics Federations (IAAF) against the decision issued on 20 January 2015 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is granted.

2.) Point 3 of the decision issued on 20 January 2015 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is partially modified.

3.) All competitive results obtained by Ms Yuliya Zaripova from 20 July 2011 to 25 July 2013 are disqualified, with all resulting consequences in accordance with Article 40.9 of the IAAF Anti-Doping Rules.

4.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne in their entirety by the All Russia Athletics Federation, Ms Yuliya Zaripova and the Russian Anti-Doping Agency. The All Russia Athletics Federation, Ms Yuliya Zaripova and the Russian Anti-Doping Agency are therefore ordered to reimburse the International Association of Athletics Federations (IAAF) for any amount advanced for the costs of arbitration in the following proportions: 25% by the All Russia Athletics Federation, 25% by Ms Yuliya Zaripova, and 50% by the Russian Anti-Doping Agency.

5.) The All Russia Athletics Federation, Ms Yuliya Zaripova and the Russian Anti-Doping Agency shall pay to the International Association of Athletics Federations (IAAF) an aggregate amount of CHF 9,000 (nine thousand Swiss Francs) as a contribution toward the costs it has sustained in connection with these arbitration proceedings, as follows: CHF 2,000 (two thousand Swiss Francs) by the All Russia Athletics Federation, CHF 5,000 (five thousand Swiss Francs) by Ms Yuliya Zaripova and CHF 2,000 (two thousand Swiss Francs) by the Russian Anti-Doping Agency.

6.) The All Russia Athletics Federation, Ms Yuliya Zaripova and the Russian Anti-Doping Agency shall be jointly liable for the payments to be made to the International Association of Athletics Federations (IAAF) in accordance with points 4 and 5 above.

7.) All other motions or prayers for relief are dismissed.

CAS 2015/A/4005 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF), Sergey Kirdyapkin & Russian Anti-Doping Agency (RUSADA), award of 25 April 2016 (operative award of 24 March 2016)

Related cases:

• CAS 2015_A_4006 IAAF vs ARAF & Yuliya Zaripova & Rusada
  April 25, 2016
• CAS 2015_A_4007 IAAF vs ARAF & Sergey Bakulin & Rusada
  April 25, 2016
• CAS 2015_A_4008 IAAF vs ARAF & Olga Kaniskina & Rusada
  April 25, 2016
• CAS 2015_A_4009 IAAF vs ARAF & Valeriy Borchin & Rusada
  April 25, 2016
• CAS 2015_A_4010 IAAF vs ARAF & Vladimir Kanaykin & Rusada
  
  

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• Athletics (race walking)
• Doping (Athlete’s Biological Passport, ABP)
• Athlete Biological Passport as evidence
• Principle of lex mitior
• Concept of fairness
• Principle of proportionality

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1. An athlete who, based on his Athlete Biological Passport (ABP), is found guilty of an anti-doping rule violation and criticises the reliability of the ABP but does not challenge the respective decision accepts the conclusion that his ABP constituted sufficient evidence to ground the conclusion that he committed an anti-doping rule violation. Conversely, the criticism as to the reliability of the ABP can be understood as aiming to show that insufficient evidence has been submitted to prove that some of the samples included in the ABP of the athlete are abnormal, and therefore to allow the conclusion, from the athlete’s perspective, that they should not be taken into account when determining whether the results achieved in the period surrounding those disputed samples have to be disqualified. In the same way, the athlete may invoke any alleged unreliability of the ABP method as a factor to be taken into account when assessing, in general terms, the “fairness” of the disqualification (or of the non-disqualification) of his results.

2. When applying the lex mitior principle in case of anti-doping rule violations, either the set of rules applicable at the time when the anti-doping rule violation was committed or otherwise the rules applicable at the time the decision is adopted are to be determined as the applicable set of rules most favourable to the accused, without picking individual provisions from each. The hearing body cannot undertake a rule-by-rule comparison of the two systems, picking the most favourable rule of each system.

3. The concept of “fairness” is a broad one, covering a number of elements that the deciding body can take into account in its decision not to disqualify some results. In the past CAS panels took into account a number of factors, such as the nature and severity of the infringement, the length of time between the anti-doping rule violation, the result to be disqualified and the disciplinary decision, the presence of negative tests between the anti-doping rule violation and the competition at which the result to be disqualified was achieved, and the effect of the infringement on the result at stake. It is not a single element that is decisive alone: an overall evaluation of them is necessary.

4. The principle of proportionality implies that there must be a reasonable balance between the kind of misconduct and the sanction, and in particular that (i) the measure taken by the governing body can achieve the envisaged goal, (ii) the measure taken by the governing body is necessary to reach the envisaged goal, and (iii) the constraints on the affected person resulting from the measure are justified by the overall interest of achieving the envisaged goal. In other words, to be proportionate, a measure must not exceed what is reasonably required in the search for a legitimate objective.

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Mr Sergey Kirdyapkin is an International level Russian Athlete specializing in the 50 km race walk event.

The object of the dispute between the parties is a portion of a decision issued by a disciplinary committee of RUSADA in an anti-doping case brought against the Athlete, based on the irregularities observed between August 2009 and August 2012 in the athlete's biological passport (the ABP) concerning the Athlete.

The International Association of Athletics Federations (IAAF) started the present arbitration claiming that the applicable anti-doping rules adopted by IAAF (the IAAF ADR) to implement the provisions of the World Anti-Doping Code had not been correctly applied on a specific point (disqualification of results).

On 20 January 2015 the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency (RUSADA) decided to impose a 3 year and 2 month period of ineligibility on the Athlete. Also his results were disqualified obtained between July 2009 and June 2012 based on the atypical profile in his ABP.

Hereafter in March 2015 the IAAF appealed 6 similar decisions of RUSADA, including the Athlete’s case, with the Court of Arbitation for Sport (CAS).

The IAAF requested the Panel to disqualify all the Athlete’s results obtained between 20 August 2009 and 15 August 2012. This requested disqualification is including the competitive results of the 2011 World Championships and the London 2012 Olympic Games which were not disqualified by RUSADA in its decision of 20 January 2015.

The IAAF argued that the “fairness exception” set forth in Article 40.9 of the 2015 IAAF ADR should not apply to the Athlete’s case considering the Athlete’s serious aggravated doping violation and based on the irregularities in his ABP.

ARAF requested the Panel to dismiss the IAAF appeal and finds the RUSADA decision of 20 August 2009 to be grounded, well-founded and reasonable.

The Athlete argued that there is no evidence that he committed an anti-doping rule violation at the events in question and the obtained results should not be disqualified considering the principle of fairness.

RUSADA contended that they applied the principle of fairness in their decision according to the IAAF Rules. The Athlete was already sanctioned for 6 years and 4 months due he was provisionally suspended and sanctioned since October 2012. Also it asserted that it is not possible to use the data of samples collected in 2005-2008 as claim that the Athlete was engaged in a doping scheme over long period.

The main issue that this Panel has to decide is whether the Decision was correct in disqualifying only some of the results achieved by the Athlete in the period following the date on which the anti-doping rule violation was found to have been committed and the beginning of the period of (provisional) suspension/ineligibility.

In this connection, the parties brought some other incidental issues to the attention of the Panel during the course of the arbitration: the identification of the rules which have to be applied, and, if relevant, the meaning and conditions of application of the "fairness exception" mentioned at Article 40.9 of the 2015 IAAF ADR.

After an overall evalutation of all relevant elements, the Panel concludes that all competitive results obtained by the Athlete must be disqualified, with all resulting consequences in accordance with Article 40.9 of the 2009 IAAF Rules. No reasons of fairness can be found not to disqualify them.

Therefore the Court of Arbitration for Sport decides on 25 April 2016 that:

1.) The appeal filed on 23 March 2015 by the International Association of Athletics Federations (IAAF) against the decision issued on 20 January 2015 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is granted.

2.) Point 3 of the decision issued on 20 January 2015 by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Agency is partially modified.

3.) All competitive results obtained by Mr Sergey Kirdyapkin from 20 August 2009 to 15 October 2012 are disqualified, with all resulting consequences in accordance with Article 40.9 of the 2015 IAAF Rules.

4.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne in their entirely by the All Russia Athletics Federation, Mr Sergey Kirdyapkin and the Russian Anti-Doping Agency. The All Russia Athletics Federation, Mr Sergey Kirdyapkin and the Russian Anti-Doping Agency are therefore ordered to reimburse the International Association of Athletics Federations (IAAF) for any amount advanced for the costs of arbitration in the following proportions: 25% by the All Russia Athletics Federation, 25% by Mr Sergey Kirdyapkin, and 50% by the Russian Anti-Doping Agency.

5.) The All Russia Athletics Federation, Mr Sergey Kirdyapkin and the Russian Anti-Doping Agency shall pay to the International Association of Athletics Federations (IAAF) an aggregate amount of CHF 9,000 (nine thousand Swiss Francs) as a contribution toward the costs it has sustained in connection with these arbitration proceedings, as follows: CHF 2,000 (two Swiss Francs) by All Russia Athletics Federation, CHF 5,000 (five thousand Swiss Francs) by Mr Sergey Kirdyapkin, and CHF 2,000 (two thousand Swiss Francs) by the Russian Anti-Doping Agency.

6.) All Russia Athletics Federation, Mr Sergey Kirdyapkin and the Russian Anti-Doping Agency shall be jointly liable for the payments to be made to the International Association of Athletics Federations (IAAF) in accordance with points 4 and 5 above.

7.) All other motions or prayers for relief are dismissed.

CAS 2015/A/3979 International Association of Athletics Federations (IAAF) v. Athletics Kenya & Rita Jeptoo

Related case:

CAS 2015_O_4128 IAAF vs Rita Jeptoo
October 26, 2016

In October 2014 Athletics Kenya reported an anti-doping rule violation against the Kenyan Athlete after her A and B samples tested positive for the prohibited substancerecombinant human erythropoietin (rhEPO).

On 30 January 2015 Athletics Kenya decided to impose a 2 year period of ineligibility on the Athlete without aggravating circumstances.

Hereafter in March 2015 both the IAAF and the Athlete appealed the decision of Athletics Kenya with the Court of Arbitration for Sport. In June 2015 the Athlete withdrew her appeal CAS 2015/A/3978.

The IAAF requested the Panel to impose a 4 year period of ineligibility due to aggravating circumstances. The IAAF argued that the Athlete did not only used rhEPO in September 2014 but her ABP shows that she used rhEPO (or similar) earlier in 2014.

Also the IAAF asserted that the Athlete was involved in a ‘doping plan or scheme’ in conjunction with a local doctor Kalya with evidence that such cheating is widespread in Kenya. In addition in another CAS case (CAS 2015/O/4128) against the Athlete the IAAF requested the Panel to sanction the Athlete for Attempted Tampering.

In July 2015, the IAAF and the Athlete in both cases (CAS 2015/A/3979 & CAS 2015/O/4228) were informed that the Panel in this procedure would also preside over the ordinary procedure. Accordingly, both procedures would be handled simultaneously for purposes of judicial economy.

The Panel finds it undisputed that the Athlete tested positive for rhEPO in September 2014 and that the substance was injected by Dr Kalya. Disputed between the parties is whether the athlete knew that rhEPO was injected into her system, i.e. whether the athlete acted intentionally.

The Panel is comfortably satisfied that the Athlete acted intentionally because she mentioned a couple of times that injections were given to her by Dr Kalya and she changed her story at least twice. The Athlete’s competition schedule sustains the intentional use of rhEPO and there were desperate attempts to hide that there was already contact for a considerable time between the Athlete and Dr Kalya.

The Panel is also comfortably satisfied that the Athlete intentionally used rhEPO multiple and repeated times before September 2014 based on the Athlete’s ABP. The Panel finds that there are various aggravating factors in the case at hand, that the Athlete drew significant sportive and financial benefit from her illicit behaviour, and that the damage inflicted on her competitors was considerable.

Therefore the Court of Arbitration for Sport decides on 26 October 2016 that:

1.) The appeal filed by the IAAF on 13 March 2015 is upheld.

2.) The Decision issued by Athletics Kenya on 27 January 2015 (with reasons on 30 January 2015) is set aside.

3.) Ms Rita Jeptoo is sanctioned with a period of ineligibility of 4 years starting as from 30 October 2014.

4.) The results of Ms Jeptoo in the 2014 Boston marathon and all other results from 17 April 2014 (including the 2014 Chicago marathon) are disqualified pursuant to IAAF Rule 40.8, with all resulting consequences, including the forfeiture of the title, medal, prize money, and any appearance money.

5.) The costs of these proceedings, which shall be specified and communicated separately by the CAS Court Office, shall be borne by the Ms Rita Jeptoo.

6.) Ms Rita Jeptoo is ordered to pay CHF 15,000 as a contribution to IAAF's legal fees and expenses.

7.) All other motions or prayers for relief are dismissed.

CAS 2015/A/3899 Flomena Chepchirchir Chumba v. Athletics Kenya

• Athletics
• Doping (terbutaline)
• De novo hearing
• Requirements related to the application of a reduced period of ineligibility for the use of a Specified Substance
• No intent to enhance sport performance
• Duties of the athlete
• Determination of the applicable sanction

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1. Even if an athlete was deprived of an essential right i.e. of the opportunity for a hearing before the national sport federation, this fatal defect in the procedure is however overcome by the fact that CAS appeal is by way of a hearing de novo of the issues on appeal.

2. Under IAAF Rule 40.4, where an athlete can establish how a Specified Substance entered his/her body and that such Specified Substance was not intended to enhance the athlete’s sport performance, the penalty for the anti-doping offence on a first violation will be at a minimum, a reprimand and no period of ineligibility from future competitions and, at a maximum, two (2) years’ ineligibility.

3. According to the comfortable satisfaction standard, the proof that an athlete had no intention of enhancing his/her sporting performance can be demonstrated by the athlete’s open declaration of a product (containing the prohibited substance) on the doping control form.

4. Under IAAF Rule 32.2 an athlete is responsible for knowing what constitutes an anti-doping rule violation and the substances and methods which have been included on the Prohibited List. Furthermore, under Rule 32.2(a)(i), it is the athlete’s personal duty to ensure that no prohibited substance enter his/her body.

5. An experienced international athlete must take real steps to ensure that he/she did not commit an anti-doping violation by taking a prohibited substance. An increase in doping cases in the athlete’s country is not a factor which weighs against the athlete for each case has to be judged on its own particular merits. Although a period of ineligibility is the proper penalty where an athlete took no real precautions to avoid committing an anti-doping offence and had scant regard for her obligations under the IAAF Rules, proper credit must be given for all that can be said on behalf of the athlete i.e. the fact that the offence was committed by negligence and not by any deliberate decision to

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In November 2014 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Kenyan Athlete after her sample tested positive for the prohibited substance terbutaline.

After notification the Athlete promptly admitted the violation and stated that she had used a product for her throat a few days before the completion where she was tested and without knowledge that is contained a prohibited substance.

Because Athletics Kenya used an incorrect email address to contact the Athlete she was not informed about the proceedings and her right to request a hearing. As a result without the Athlete’s knowledge Athletics Kenya rendered on 19 December 2014 a decision imposing a 6 month period of ineligibility on the Athlete. Also this decision of Athletics Kenya was sent to the incorrect email address.

The Athlete was unaware of the decision until the fact that she was listed as subject to a 6 month ban appeared on the IAAF website and in the IAAF Newsletter. Also without a provisional suspension the Athlete had competed in two races in the period between the competition were she tested positive and sending of the decision letter.

After the Athlete’s agent contacted the IAAF and the decision of Athletics Kenya was communicated to her in January 2015 the Athlete appealed this decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel for acquittal or to impose a lesser sanction.

The Athlete argued that she had never been made aware of the disciplinary proceedings because the Athletics Kenya had sent all relevant correspondence to the wrong email address. As a result she never had any opportunity to request a hearing and she was wrongly sanctioned without having any chance to present her case. The Athlete further asserted that Athletics Kenya had breached multiple procedural rules.

Athletics Kenya acknowledged that the Athlete had not received several notifications. Further it contended that the Athlete had admitted the violation and that the sanction was proportional as recommended by the IAAF.

The Sole Arbitrator finds that due to the error with the email address the Athlete was deprived of the opportunity for a hearing which had been overcome in the CAS procedure as a hearing de novo of the issues on appeal.

The Athlete had promptly admitted the violation, established how the prohibited substance entered her system, acted without intention to enhance and mentioned the use of the product on the Doping Control Form.

Considering these circumstances the Sole Arbitrator concludes that it is appropriate to impose a 4 month period of ineligibility on the Athlete with disqualification of her results obtained at the competition where she tested positive.

Therefore the Court of Arbitration for Sport decides on 3 July 2015 that:

1.) The appeal of Ms Filomena Chipchercher Chumba is partially upheld.

2.) The decision of Athletics Kenya dated 19 December 2014 is set aside. Ms Filomena Chipchercher Chumba is sanctioned with a period of four (4) months Ineligibility commencing as of 19 December 2014.

3.) All competitive results obtained on 6 September 2014 during the Birell Prague GP are disqualified, including the forfeiture of any titles, awards, medals, points and prize and appearance money.
4.) The costs of the arbitration, to be calculated and communicated to the parties by the CAS Court Office, shall be borne 80% by Athletics Kenya and 20% by Ms Filomena Chipchercher Chumba.

5.) Athletics Kenya shall pay a contribution of CHF3000 towards Ms Filomena Chipchercher Chumba's legal costs and expenses.

TAS 2014/A/3663 Yolanda Beatriz Caballero Pérez v. Federacion Colombiana de Atletismo

CAS 2014/A/3663 Yolanda Beatriz Caballero Perez vs Federacion Colombiana de Atletismo & IAAF

In March 2014 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Columbian Athlete after one of her samples (provided on 11 and 12 February 2014) tested positive for the prohibited substance recombinant human erythropoetin (rhEPO).

In addition the IAAF reported in May 2014 new anti-doping rule violations against the Athlete for Tampering and on the irregularities in her ABP after analysis of the other sample she provided in February 2014. These results could lead to a 4 year period of ineligibility for the Athlete.

On 26 May 2014 the Disciplinary Commission of the Colombian Athletics Federation (FECODATLE) decided to impose a 2 year period of ineligibility on the Athlete for the use of the prohibited substance.

Hereafter in July 2014 the Athlete appealed the decision of 26 May 2014 with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the decision of 26 May 2014.

The Athlete denied the allegations for tampering and the intentional use of rhEPO and asserted that her right for a fair trial was violated. The Columbian Federation argued that during the disciplinary proceedings the Athlete did not file a statement in her defence nor had reservations or comments about the case during the hearing she attended.

Requested by the IAAF FECODATLE had appealed the case in June 2014 with the General Disciplinary Commission of the Colombian Olympic Committee while the Athlete appealed the case with CAS.

The IAAF contended that the Athlete was involved in 3 anti-doping rule violations, her case was already appealed with the General Disciplinary Commission. The IAAF asserted that CAS has no jurisdiction to consider the appeals.

The Panel concludes that under the Rules it has no jurisdiction Because the Athlete had failed to appeal her case at first with the General Disciplinary Commission of the Colombian Olympic Committee before she could appeal with CAS.

Therefore the Court of Arbitration for Sport decides on 15 July 2015 that it has no jurisdiction to hear and to rule the Athlete’s appeal against the decision 26 May 2014 of the Colombian Athletics Federation.

CAS 2014/A/3662 IAAF v ARAF, Liliya Shobukhova & WADA (Settlement)

Related case:

ARAF 2014 ARAF vs Liliya Shobukhova
April 9 , 2014

On 9 April 2014 the Russian ARAF Anti-Doping Commission decided to impose a 2 year period of ineligibility on the Athlete on the irregularities in her ABP.

Hereafter in July 2014 the International Association of Athletics Federations (IAAF) appealed the ARAF decision with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to impose a 4 year period of ineligibility on the Athlete due to aggravating circumstances.

After deliberations between the parties they informed the CAS Court that they had reached a settlement. A hearing with CAS would nog longer be needed and the parties requested the Panel to ratify the Settlement Agreement.

In the Settlement Agreement the Athlete accepted that a 3 year and 2 month period of ineligibility is imposed with disqualification of her results as from and including 9 October 2009.

Therefore the Court of Arbitration for Sport decides on 29 July 2015:

1.) The Panel, with the consent of the IAAF and the Respondents, hereby ratify the Settlement Agreement executed by the parties on 30 June 2015 (see Paragraph 27 of the present award) and incorporates its terms into this consent arbitral award.

2.) The arbitral procedure CAS 2014/A/3662 JAAF v ARAF, Liliya Shobukhova & WADA is terminated and deleted from the CAS roll.

3.) Each party is hereby ordered to perform the obligations and duties as per the Settlement Agreement referred to above.

4.) As per clause 6 of the Settlement Agreement signed on 30 June 2015, the costs of the arbitration, which shall be determined and separately communicated to the parties by the CAS Court Office, shall be paid as follows: 50% of the costs to be paid by the IAAF and the remaining 50% to be paid in equal parts by the Respondents and WADA (i.e. one sixth for each of the ARAF, Ms. Shobukhova and WADA).

5.) As per clause 6 of the Settlement Agreement signed on 30 June 2015, each party shall bear its own legal costs and expenses.

6.) All other requests of prayers for relief are rejected.

CAS 2014/A/3651 Agnieszka Gortel-Maciuk v. The International Association of Athletics Federations & The Polish Association of Athletics

In November 2013 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Polish Athlete Agnieszka Gortel-Maciuk after her sample tested positive for the prohibited substances DHEA (Prasterone).

After notification the Athlete admitted the violation and explained that she suffered from hypothyroidism and used prescribed medication DHEA (Prasterone) as treatment. She mentioned her medication on the Doping Control Form and admitted she didn’t apply for a TUE.

The Committee for Awards, Discipline and Counteracting of the Polish Association of Athletics (PZLA) accepted the Athlete’s explanation and decided on 18 December 2013 to impose a reprimand on the Athlete.

After deliberations with the IAAF about the imposed sanction the PZLA Committee resumed in February 2014 the disciplinary proceedings and recognized it had applied an erroneous procedure. It suspended its decision of 18 December and referred the case to the IAAF Doping Review Board.

After the IAAF Doping Review Board had concluded that the Athlete did not establish exceptional circumstances the PZLA Committee decided on 26 May 2014 to impose a 2 year period of ineligibility on the Athlete.

Hereafter in July 2014 the Athlete appealed the decisions imposed by the PZLA with the Court of Arbitration for Sport (CAS).

The Athlete requested the Panel for a reduced sanction due to the grounds for exceptional circumstances under IAAF Rules. She argued that the failures in the disciplinary proceedings against her were a violation of her rights.

The Panel notes that the Athlete raises serious concerns as to the compliance of the procedure applied by the IAAF and PZLA with an international human rights treaty and an international convention or agreement, in particular Article 6.1 ECHR, and the WADC, in particular Article 8 WADC. The concerns relate to two different stages of the procedure: (a) the establishment of the anti-doping-rule violation and (b) the imposition of a sanction.

Following assessment the Panel does not see any circumstances which amount to a procedural error that cannot be cured through the course of the proceedings before CAS. The Panel holds that the procedural errors had no influence on the establishment of an anti-doping-rule violation and, thus, can be cured by the de novo power of the Panel.

The Panel also finds that the Appellant showed a complete ignorance of even the most basic anti-doping obligations of an athlete, and she undertook no affirmative measure's to protect herself. The Panel views the Athlete’s actions in this regard as grossly negligent or even reckless. Nevertheless the Athlete is not a cheater and showed no intention to violate any rules.

Therefore the Court of Arbitration for Sport decides on 28 January 2015 that:

1.) The appeal filed on 4 July 2014 by Ms Agnieszka Gortel-Maciuk against the decision of the PZLA Committee for Awards, Discipline and Counteracting Doping of 3 December 2013, the IAAF's Doping Review Board's determination of 12 May 2014, and the decision of the PZLA Committee for Awards, Discipline and Counteracting Doping of 13 June 2014 is dismissed.

2.) The decision of the PZLA Committee for Awards, Discipline and Counteracting Doping of 13 June 2014, imposing a two-year period of ineligibility on the Appellant, commencing on 13 October 2013, is confirmed.

3.) The present arbitration procedure shall be free, except for the CAS Court Office fee of CHF l ,000 (one thousand Swiss francs), which has already been paid by the Appellant and which is retained by the CAS.

4.) Each party shall bear her/its own costs incurred in connection with these arbitral proceedings.

5.) All other motions or prayers for relief are dismissed.