The Violation:
The French Anti-Doping Agency (AFLD) has reported an anti-doping rule violation against the Athlete M68 for his refusal or failure to submit to sample collection in April 2015.
The AFLD openened proceedings against the Athlete since he had not a licence issued by the French Federation for Kick Boxing, Muay Thai and Associated Disciplines (FFKMDA).

The Athlete:
After notification the Athlete M68 failed to respond or to file a statement in his defence.

The AFLD:
The French Anti-Doping Agency contended that the Athlete provided insufficient urine for the sample collection and thereafter left the Doping Control Station without persmission.

The Decision:
The AFLD decides on 2 December 2015 to impose a 2 year period of ineligibility on the Athlete M68.

The First Instance Decision:
The French Federation for Kick Boxing, Muay Thai and Associated Disciplines (FFKMDA) decided on 7 May 2015 to impose a 6 month period of ineligibility on the Athlete M67 after his A and B samples tested positive for the prohibited substance Stanozolol. Hereafter the French Anti-Doping Agency (AFLD) appealed the FFKMDA First Instance Decision.

The Athlete:
M67 denied the intentional use and asserted that the substance was in the content of water bottle he ingested at the competition which was spiked by an opposing team he had a conflct with.

The AFLD:
The French Anti-Doping Agency contended that the Athlete failed to produce any evidence in support of his assertion. Also the Agency deemed that the concentration of Stanozolol found in the Athlete’s samples was not consistent with his ingestion of the content of a water bottle.

The Decision:
The AFLD decides on 2 December 2015 to reform the FFKMDA decision of 7 May 2015 and to impose a 2 year period of ineligibility on the Athlete M67.

The Violation:
In September 2015 The French Anti-Doping Agency (AFLD) has reported an anti-doping rule violation against the Athlete M66 for his refusal or failure to submit to sample collection in January 2015.
The AFLD openened proceedings against the Athlete since the French Federation for Kick Boxing, Muay Thai and Associated Disciplines (FFKMDA) under the Rules failed to settle the case within the time limit.

The Athlete:
After notification the Athlete M66 failed to respond or to file a statement in his defence.

The AFLD:
The French Anti-Doping Agency contended that the Athlete left the Doping Control Station without persmission while he was requested to return to provide a sample and was warned about the consequences of his refusal.

The Decision:
The AFLD decides on 19 November 2015 to impose a 3 year period of ineligibility on the Athlete M66 starting on the date of the notification.

The First Instance Decision:
The French Cycling Federation (FFC) decided on 10 June 2015 to impose a 18 month period of ineligibility on the Athlete M65 after he tested positive for the prohibited substance Methylphenidate (Ritalin).
Hereafter the French Anti-Doping Agency (AFLD) appealed the FFC First Instance Decision.

The Athlete:
M65 admitted the violation and denied the intentional use of the substance. He asserted that het used the Ritalin for his personal problems, that he already was sanctioned by the FFC and he requested for a reduced sanction.

The AFLD:
The French Anti-Doping Agency contended that the Athlete failed to produce a medical prescription for the Ritalin, failed to establish a medical justification for the use nor did he explain how he obtained the product.

The Decision:
The AFLD decides on 19 November 2015 to reform the FFC decision of 10 June 2015 and to impose a 2 year period of ineligibility on the Athlete M65 starting on the date of the notification.

The First Instance Decision:
The French Athletics Federation (FFA) decided on 19 August 2015 to impose a 2 year period of ineligibility on the Athlete M64 after he tested positive for the prohibited substance Triamcinolone.
Hereafter the French Anti-Doping Agency (AFLD) appealed the FFA First Instance Decision.

The Athlete:
M64 stated that the violation was not intentional and explained with medical evidence that he had used a prescribed ointment as treatment for his condition he suffered that contained Triamcinolone Acétonide.

The AFLD:
The French Anti-Doping Agency accepts the medical evidence and deems that the Athlete failed to produce this medical evidence in the First Instance FFA disciplinary proceedings.

The Decision:
The AFLD decides on 2 December 2015 to confirm the FFA decision of 19 August 2015 and also to extend the sanction imposed on the Athlete M64 to other French Sports Federations.

The First Instance Decision:
The French Federation for Kick Boxing, Muay Thai and Associated Disciplines (FFKMDA) decided on 7 May 2015 to impose a 6 month period of ineligibility on the Athlete M63 for two anti-doping rule violations.
Here the Athlete failed to produced sufficient urine for the sample collection and left the Doping Control Station without permission.
Further her sample tested positive for the prohibited substances 19-norandrosterone (Nandrolone) and Stanozolol. Hereafter the French Anti-Doping Agency (AFLD) appealed the FFKMDA First Instance Decision.

The Athlete:
M63 stated that she left the Doping Control Station because of fatigue and denied the intentional use of the substances. She asserted that she had used products purchased from a person at her bodybuilding center in order to lose weight without evidence in support of her assertion.

The AFLD:
the French Anti-Doping Agency contended that the Athlete committed two anti-doping rule violations and, failed to establish that the violation was not intentional nor the source of the positive test without grounds for a reduced santion.

The Decision:
The AFLD decides to reform the FFKMDA decision and to impose a 4 year period of ineligibility on the Athlete M63 starting on the date of the notification, i.e. on 15 March 2015.

CAS 2016/O/4469 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) & Tatyana Chernova

Related cases:

• IOC 2016 IOC vs Tatiana Chernova
  April 19, 2017
• CAS 2017_A_4949 Tatyana Chernova vs IAAF
  July 18, 2017
• CAS 2017_A_5124 Tatyana Chernova vs IOC
  December 4, 2017
  
  

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• Athletics (middle distance)
• Doping (dehydrochloromethyltestosterone; Athlete’s Biological Passport, ABP)
• CAS Jurisdiction according to Article 38.3 IAAF Competition Rules
• Version of the regulations applicable
• ABP finding as single anti-doping rule violation
• Prerequisites to disregard sample from ABP profile
• Prerequisites to add samples to ABP profile
• Establishment of an anti-doping rule violation by means of an ABP
• Disqualification of results in case of a violation found by reference to the ABP
• Application of the principle of proportionality with regard to disqualification of results
• Purpose of disqualification of results

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1. In circumstances where an IAAF member federation is prevented from convening and completing a hearing within the deadline set by Rule 38.3 of the IAAF Competition Rules (the “IAAF Rules”), e.g. because it is suspended from IAAF activities, the IAAF is permitted to refer the matter directly to a sole arbitrator appointed by CAS, subject to an appeal to CAS in accordance with Rule 42 of the IAAF Rules. In case of such referral it is Rule 38.3 of the IAAF Rules that establish the jurisdiction of CAS.

2. 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. Conversely the substantive aspects of an alleged anti-doping rule violation shall be governed by the version of the applicable rules that have been 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.

3. An ABP finding of an anti-doping rule violation is not to be considered as a multiple violation under Rule 40.8(e) of the 2016-2017 IAAF Rules but rather as a single anti-doping rule violation, established on the basis of a set of different samples collected at different times, places and occasions. This follows clearly from the concept and the wording of the WADA ABP Operating Guidelines, which provide at the end of Article 5 of Annex E that in case of confirmation of an Adverse Passport Finding by unanimous decision of the Expert Panel an Anti-Doping Organisation (ADO) has the obligation to advise the athlete and WADA that it is considering the assertion of “an anti-doping rule violation (ADRV)” against the athlete. I.e. the wording speaks of an ADRV established by the ABP as a whole and embraces a multitude of anti-doping rule violations documented by the ABP.

4. In order to successfully argue that a sample which has been taken on the day prior to another sample for which the athlete has been charged with and sanctioned for an anti-doping rule violation, is to be excluded from his ABP because it has been caused by the same source as the sample that lead to the sanction for the positive anti-doping finding, the athlete has to adduce evidence supporting the allegation of the same source. Only if the athlete succeeds to establish the above can it be concluded that there is only one anti-doping rule violation with the consequence that the sample in question has to be excluded from the athlete’s ABP.

5. Samples voluntarily provided by an athlete can only be added to his ABP if the athlete proves under which circumstances the samples were taken from him and that such processes complied with the applicable standards.

6. Abnormal values in the ABP of an athlete for which he cannot provide a credible explanation do not on their own allow the conclusion that an anti-doping rule violation has been committed. Rather, the deviations in the ABP are to be interpreted by experts, called to examine various hypothesis that could explain the abnormality in the profile values; i.e. a distinction is made between a “quantitative” and a “qualitative” assessment of the evidence. Specifically, the inference to be drawn from abnormal blood values is enhanced where the ascertainment of such values occurs at a time when the athlete in question could benefit from blood manipulation, i.e. if the levels coincidence with the athlete’s racing schedule. In conclusion, to find that an athlete has committed an anti-doping rule violation the panel needs to be convinced that the abnormal values are caused by a “doping scenario”, which does not necessarily derive from the quantitative information provided by the ABP, but rather from a qualitative interpretation of the experts and possible further evidence.

7. Although the provisions of the IAAF Rules regarding disqualification of results are expressly made applicable to violations consisting of use of a prohibited method, they are not easy to apply where the proof of such violation is to be found by reference to the ABP. The provisions are geared to the situation where the violation is an occurrence rather than a process, most obviously where the violation is the presence of a prohibited substance. However, even if the violation is found by reference to the ABP, the respective case falls under Rule 40 of the IAAF Rules and, as a consequence, the athlete’s competitive results are nevertheless subject to disqualification.

8. The 2016-2017 IAAF Rules regarding disqualification of results (Rule 40.9) differ from the 2012-2013 IAAF Rules (Rule 40.8) as the former regulations include a fairness exception (“unless fairness requires otherwise”), whereas the latter – read literally – do not. Considering however that Article 10.8 of the WADA Code 2009 included the fairness exception, that this provision was part of the obligatory commitment of the IAAF as signatory to the WADA Code according to Article 23.2.2 WADA Code and that the IAAF was not allowed to include any substantial change to this provision, the fairness exception has to be read into Rule 40.8 2012-2013 IAAF Rules, read together with Articles 10.8 and 23.2.2 WADA Code.

9. Taking into account that the sanction of disqualification of results embraces the forfeiture of any titles, awards, medals, points and prize and appearance money, it is to be held equal to a retroactive imposition of a period of ineligibility and, thus, is a severe measure. The athlete loses all income from sport and, even more, has to return income achieved. However, not to disqualify results that have been achieved by using a prohibited substance or prohibited method cannot be considered as fair with regard to other athletes that competed against the athlete during this period. The main purpose of disqualification of results is not to punish the transgressor, but rather to correct any unfair advantage and remove any tainted performances from the record.

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In April 2015 the IAAF initiated an investigation into a potential new anti-doping rule violation by the Athlete Tatyana Chernova after three experts analysed the Athlete’s ABP on an anonymous basis and concluded that it is highly likely that a prohibited substance or prohibited method has been used.

After notification by the IAAF about the possible charges the Athlete submitted some explanations for the alleged abnormalities in her ABP. However in August 2015 the Expert Panel concluded after consideration of the Athlete’s explanations that it is highly likely that a prohibited substances or prohibited method has been used and that it is unlikely that the passport is the result of any other cause.

Previously the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Authority (RUSADA) had decided on 20 January 2015 to impose a 2 year period of ineligibility on the Athlete - from 22 July 2013 to 21 July 2015 - after her sample tested positive for the prohibited substance dehydrochloromethyltestosterone (turinabol).

In April 2015 the IAAF decided to appeal this decision of 20 January 2015 with the Court of Arbitration for Sport (CAS). Upon the request of the IAAF this case (CAS 2015/A/4050) was suspended pending the outcome in the present case (CAS 2016/A/4469).

In February 2016 the IAAF reported an alleged anti-doping rule violation against the Athlete and a provisional suspension was ordered. Because the All Russia Athletic Federation (ARAF) was suspended by the IAAF this case was referred to CAS in February 2016 for a first instance hearing panel procedure with the right to appeal.

The Athlete requested the CAS Panel to declare the IAAF’s claim inadmissible due to lack of equality of arms, as the IAAF referred to an unpublished CAS award in its written submission while such CAS award was not available to the Athlete. However the CAS Court Office explained to the Athlete in March 2016 that such CAS award could not be provided to her as the parties involved had not yet lifted its confidentiality.

The Athlete further disputed the analysis of her ABP and the alleged irregularities with the samples and argued that the IAAF failed to meet its burden of proof in establishing an anti-doping rule violation.

Considering the arguments and evidence the Sole Arbitrator determines that:

• The Athlete’s ABP remains as it is; no samples are excluded and no samples are added.
• The IAAF has convincingly established that the Athlete generally had abnormally high levels of HGB on the eve of competitions, whereas her base levels of HGB appear to be much lower, as shown by the off-season samples.
• The IAAF succeeded to establish a “doping scenario”.
• The values in the Athlete’s ABP are caused by the use of a prohibited substance or a prohibited method by the Athlete.
• It has been established that the Athlete is found guilty of using steroids as well as for the present ABP charge
• Both violations were committed during more or less the same period.
• The IAAF succeeded in convincingly establishing by means of expert evidence that both offences have been committed independent from each other.
• The Athlete’s use of oral turinabol could not cause the abnormal blood values in the Athlete’s ABP Sample 1.
• The Athlete used multiple prohibited substances or prohibited methods, i.e. oral turinabol and blood doping, at the same time.

Considering that the Athlete in the case at hand committed two separate anti-doping rule violations, the use of turinabol and an ABP violation, and considering that the established ABP violation of the Athlete lasted considerably longer the Sole Arbitrator finds that a period of ineligibility of three years and eight months is appropriate to the severity of the Athlete’s misbehavior.

Therefore the Court of Arbitration for Sport decides on 29 november that:

1.) The claim filed on 23 February 2016 by the International Association of Athletics Federations against the All Russia Athletics Federation and Ms Tatyana Chernova is partially upheld.

2.) A period of ineligibility of three years and eight months is imposed on Ms Tatyana Chernova starting from 5 February 2016.

3.) The period of ineligibility served by Ms Tatyana Chernova between 22 July 2013 and 21 July 2015 shall be credited against the period of ineligibility imposed.

4.) All results of Ms Tatyana Chernova since 15 August 2011 are disqualified through to 22 July 2013, including forfeiture of any titles, awards, medals, points and prize and appearance money obtained during this period.

5.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne entirely by the All Russia Athletics Federation.

6.) Ms Tatyana Chernova shall bear her own costs and is ordered to pay to the International Association of Athletics Federations the amount of CHF 5,000 (five thousand Swiss Francs) as a contribution towards the legal fees and other expenses incurred in connection with these arbitration proceedings.

7.) The All Russia Athletics Federation shall bear its own costs.

8.) All other and further prayers or requests for relief are dismissed.

CAS 2016/O/4464 IAAF v. ARAF & Ekaterina Sharmina

CAS 2016/O/4464 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) & Ekaterina Sharmina

• Athletics (middle distance)
• Doping (Athlete’s Biological Passport, ABP)
• CAS Jurisdiction according to Article 38.3 IAAF Competition Rules
• Version of the regulations applicable and time of the anti-doping violation
• Prerequisites to disregard sample from ABP profile
• Validity of ABP irrespective of number of ABP samples
• Establishment of an anti-doping rule violation by means of an ABP
• Disqualification of results in case of a violation found by reference to the ABP
• Application of the principle of proportionality with regard to disqualification of results
• Purpose of disqualification of results

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1. In circumstances where an IAAF member federation is prevented from convening and completing a hearing within the deadline set by Rule 38.3 of the IAAF Competition Rules (the “IAAF Rules”), e.g. because it is suspended from IAAF activities, the IAAF is permitted to refer the matter directly to a sole arbitrator appointed by CAS, subject to an appeal to CAS in accordance with Rule 42 of the IAAF Rules. In case of such referral it is Rule 38.3 of the IAAF Rules that establish the jurisdiction of CAS.

2. 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. Conversely the substantive aspects of an alleged anti-doping rule violation shall be governed by the version of the applicable rules that have been 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. In order to determine the point of time at which an anti-doping rule violation established by the ABP has been committed it has to be taken into account that an ABP-based anti-doping rule violation is not a case of a multiple anti-doping rule violation; further, it is the date of the first ABP sample(s) that determines the start of the rule violation.

3. For an athlete to explain the abnormal values of his Athlete Biological Passport (ABP) as having been caused by non-doping related means (e.g. by training at high altitude, sleeping in hypoxic tents, miscarriage or subsequent surgeries, intake of iron) the athlete needs to adduce evidence rebutting the establishment of an anti-doping rule violation made by the expert opinions that analysed the athlete’s ABP. In the absence of any such evidence the athlete’s ABP remains as it is, no sample(s) are excluded from his ABP.

4. The ABP Operating Guidelines do not determine that an ABP must consist of a certain minimum number of samples before an athlete can be charged.

5. Abnormal values in the ABP of an athlete for which he cannot provide a credible explanation do not on their own allow the conclusion that an anti-doping rule violation has been committed. Rather, the deviations in the ABP are to be interpreted by experts, called to examine various hypothesis that could explain the abnormality in the profile values; i.e. a distinction is made between a “quantitative” and a “qualitative” assessment of the evidence. Specifically, the inference to be drawn from abnormal blood values is enhanced where the ascertainment of such values occurs at a time when the athlete in question could benefit from blood manipulation, i.e. if the levels coincidence with the athlete’s racing schedule. In conclusion, to find that an athlete had committed an anti-doping rule violation the panel needs to be convinced that the abnormal values are caused by a “doping scenario”, which does not necessarily derive from the quantitative information provided by the ABP, but rather from a qualitative interpretation of the experts and possible further evidence.

6. Although the provisions of the IAAF Rules regarding disqualification of results are expressly made applicable to violations consisting of use of a prohibited method, they are not easy to apply where the proof of such violation is to be found by reference to the ABP. The provisions are geared to the situation where the violation is an occurrence rather than a process, most obviously where the violation is the presence of a prohibited substance. However, even if the violation is found by reference to the ABP, the respective case falls under Rule 40 of the IAAF Rules and, as a consequence, the athlete’s competitive results are nevertheless subject to disqualification.

7. The 2016-2017 IAAF Rules regarding disqualification of results (Rule 40.9) differ from the 2012-2013 IAAF Rules (Rule 40.8) as the previous regulations include a fairness exception (“unless fairness requires otherwise”), whereas the latter – read literally – do not. Considering however that Article 10.8 of the WADA Code 2009 included the fairness exception, that this provision was part of the obligatory commitment of the IAAF as signatory to the WADA Code according to Article 23.2.2 WADA Code and that the IAAF was not allowed to include any substantial change to this provision, the fairness exception has to be read into Rule 40.8 2012-2013 IAAF Rules, read together with Articles 10.8 and 23.2.2 WADA Code.

8. In the context of an anti-doping rule violation established by means of an ABP disqualification of results going back to the first sample collected in the context of the ABP may, in certain circumstances, be deemed excessive in terms of proportionality. However, not to disqualify results that have been achieved by using a prohibited substance or prohibited method cannot be considered as fair with regard to other athletes that competed against the athlete during this period. The main purpose of disqualification of results is not to punish the transgressor, but rather to correct any unfair advantage and remove any tainted performances from the record.

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In July 2015 the IAAF initiated an investigation into a potential anti-doping rule violation by the Athlete Ms. Ekaterina Sharmina after three experts analysed the Athlete’s ABP on an anonymous basis and concluded that it is highly likely that a prohibited substance or prohibited method has been used.

After notification by the IAAF about the possible charges the Athlete submitted some explanations for the alleged abnormalities. However in November 2015 the Expert Panel concluded after consideration of the Athlete’s explanations that the Athlete’s profile is highly suspicious for blood manipulation caused by the use of prohibited substances or prohibited methods.

In December 2015 the IAAF reported an alleged anti-doping rule violation against the Athlete and a provisional suspension was ordered. Because the All Russia Athletic Federation (ARAF) was suspended by the IAAF the case was referred in February 2016 to the Court of Arbitration for Sport for a first instance hearing panel procedure with the right to appeal.

In her defence the Athlete disputed the analysis of her ABP and argued that the IAAF failed to meet its burden of proof in establishing an anti-doping rule violation to the prerequisite standard of proof .

The Sole Arbitrator dismissed the Athlete’s arguments and the conclusion of her expert witness and finds that a clear pattern in the Athlete’s blood values is visible if the competition schedule of the Athlete is taken into account. The Sole Arbitrator considers this combination of circumstances convincing evidence that the Athlete engaged in blood doping practices throughout the period between at least 17 June 2011 and 5 August 2015.

The Sole Arbitrator finds that the IAAF succeeded to establish a “doping scenario” and is satisfied, indeed to his comfortable satisfaction, that the values in the Athlete’s ABP are caused by the use of a prohibited substance or a prohibited method by the Athlete.

Therefore the Court of Arbitration for Sport decides on 29 November 2016 that:

1.) The claim filed on 22 February 2016 by the International Association of Athletics Federations against the All Russia Athletics Federation and Ms Ekaterina Sharmina is partially upheld.

2.) A period of ineligibility of three years is imposed on Ms Ekaterina Sharmina starting from 7 December 2015.

3.) All results of Ms Ekaterina Sharmina since 17 June 2011 are disqualified through to 5 August 2015, including forfeiture of any titles, awards, medals, points and prize and appearance money obtained during this period.

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.

5.) Each party shall bear its/her own legal fees and other expenses incurred in connection with the present arbitration.

6.) All other and further prayers or requests for relief are dismissed.

CAS 2016/O/4463 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) & Kristina Ugarova

• Athletics (Middle distance)
• Doping (Athlete’s Biological Passport, ABP)
• CAS Jurisdiction according to Article 38.3 IAAF Competition Rules
• Increased red blood cell mass, altitude and diarrhea
• Increased HGB levels and mental stress
• Establishment of an anti-doping rule violation by means of an ABP
• Determination of the applicable sanction and number of abnormal samples in an ABP
• Aggravating circumstances
• Disqualification of results in case of a violation found by reference to the ABP
• Application of the principle of proportionality with regard to disqualification of results

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1. In circumstances where an IAAF member federation is prevented from convening and completing a hearing within the deadline set by Rule 38.3 of the IAAF Competition Rules (the “IAAF Rules”), e.g. because it is suspended from IAAF activities, the IAAF is permitted to refer the matter directly to a sole arbitrator appointed by CAS, subject to an appeal to CAS in accordance with Rule 42 of the IAAF Rules. In case of such referral it is Rule 38.3 of the IAAF Rules that establish the jurisdiction of CAS.

2. An athlete seeking to explain the abnormal blood values in one of his Athlete Biological Profile (ABP) samples by training/residing at high altitude or dehydration due to diarrhea needs to submit conclusive evidence in this respect, supported by unanimous opinions of experts in the field.

3. Whereas it is potentially possible that mental stress increases HGB levels, an athlete seeking to rely on stress as cause for his increased HGB levels needs to establish that the stress had occurred prior to the taking of the blood samples showing increased HGB levels. Furthermore it cannot be lightly accepted that an athlete encountered a significant level of stress because of participating in a major international competition; otherwise any athlete confronted with abnormal blood values could potentially use this argument in bad faith.

4. Abnormal values in the ABP of an athlete for which he cannot provide a credible explanation do not on their own allow the conclusion that an anti-doping rule violation has been committed. Rather, the deviations in the ABP are to be interpreted by experts, called to examine various hypothesis that could explain the abnormality in the profile values; i.e. a distinction is made between a “quantitative” and a “qualitative” assessment of the evidence. Specifically, the inference to be drawn from abnormal blood values is enhanced where the ascertainment of such values occurs at a time when the athlete in question could benefit from blood manipulation, i.e. if the levels coincidence with the athlete’s racing schedule. In conclusion, to find that an athlete has committed an anti-doping rule violation the panel needs to be convinced that the abnormal values are caused by a “doping scenario”, which does not necessarily derive from the quantitative information provided by the ABP, but rather from a qualitative interpretation of the experts and possible further evidence.

5. The number of abnormal samples establishing an anti-doping rule violation in the framework of an ABP profile, without any further argument, cannot be considered as a starting point for discussing any reduction of the regular sanction. Specifically, in case an ABP only contains one abnormal sample, in order for the regular sanction to be reduced the athlete in question e.g. would have to establish that the abnormal blood values in the sample were caused by circumstances for which the athlete bore no significant fault or negligence.
6. In order to find aggravating circumstances under the IAAF Rules which would mandate an increase of the “standard” period of ineligibility of two years, supporting evidence of the factors justifying increase needs to be adduced. Furthermore, no provision in the IAAF Rules indicates that an anti-doping rule violation proven by means of the ABP, per se, justifies a higher sanction than the presence of a prohibited substance.

7. The provisions of the IAAF Rules regarding disqualification of results are geared to the situation where the violation is an occurrence rather than a process, most obviously where the violation is the presence of a prohibited substance. If an anti-doping rule violation is established on the basis of an ABP, the complicating factor is that it normally does not determine when the violation was committed exactly, but rather that based on all the evidence available it must be concluded that a violation was committed during a certain period. In those circumstances it has to be determined which element of the case can be most appropriately equated to a positive sample (e.g. a single sample of the athlete’s ABP) in order to decide the date decisive for the commencement of the disqualification of the athlete’s results.

8. The 2016-2017 IAAF Rules regarding disqualification of results (Rule 40.9) differ from the 2012-2013 IAAF Rules (Rule 40.8) as the former regulations include a fairness exception (“unless fairness requires otherwise”), whereas the latter – read literally – do not. Considering however that Article 10.8 of the WADA Code 2009 included the fairness exception, that this provision was part of the obligatory commitment of the IAAF as signatory to the WADA Code according to Article 23.2.2 WADA Code and that the IAAF was not allowed to include any substantial change to this provision, the fairness exception has to be read into Rule 40.8 2012-2013 IAAF Rules, read together with Articles 10.8 and 23.2.2 WADA Code.

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In July 2015 the IAAF initiated an investigation into a potential anti-doping rule violation by the Athlete Ms. Kristina Ugarova after three experts analysed the Athlete’s ABP on an anonymous basis and concluded that it is highly likely that a prohibited substance or prohibited method has been used and that it is unlikely that the passport is the result of any onter cause.

After notification by the IAAF about the possible charges the Athlete submitted some explanations for the alleged abnormalities. However in August 2015 the Expert Panel concluded after consideration of the Athlete’s explanations that the Athlete’s profile is highly suspicious for blood manipulation caused by the use of prohibited substances or prohibited methods.

In September 2015 the IAAF reported an alleged anti-doping rule violation against the Athlete and a provisional suspension was ordered. Because the All Russia Athletic Federation (ARAF) was suspended by the IAAF the case was referred in February 2016 to the Court of Arbitration for Sport (CAS) for a first instance hearing panel procedure with the right to appeal.

In her defence the Athlete disputed the analysis of her ABP due to its reliance on an unidentified sample population and argued that her “abnormal” test results can be explained by naturally occurring physiological changes in the human body due to training and living at hight altitudes.

Considering the evidence the Sole Arbitrator is comfortably satisfied by the qualitative assessment of the Athlete’s ABP that the Athlete committed an anti-doping rule violation, i.e. the IAAF succeeded to establish that the abnormal values in the Athlete’s ABP are caused by a “doping scenario”.

Therefore the Court of Arbitration for Sport decides on 29 November 2016 that:

1.) The claim filed on 22 February 2016 by the International Association of Athletics Associations against the All Russia Athletics Federation and Ms Kristina Ugarova is upheld.

2.) A period of ineligibility of two years is imposed on Ms Kristina Ugarova starting from 7 September 2015.

3.) All results of Ms Kristina Ugarova since 26 June 2012 are disqualified through to 25 December 2012, including forfeiture of any titles, awards, medals, points and prize and appearance money obtained during this period.

4.) (…).

5.) (…).

6.) All other and further prayers or requests for relief are dismissed.

CAS 2016/A/4632 Alexei Lovchev v. International Weightlifting Federation (IWF)

Related case:

Swiss Federal Court 4A_80_2017 Alexei Lovchev vs IWF
July 25, 2017

• Weightlifting
• Doping (ipamorelin)
• Request for a further analysis
• Measurement of uncertainty

1. No claim for reanalysis or further analysis arises from any provision of the World Anti-Doping Code or of the IWF Anti-Doping Policy). Even assuming such to be permissible under the applicable regulations, there can be no basis for requiring such further analysis unless the athlete can cast sufficient doubt on the laboratory’s conclusions, and if indeed he can do so, he would not need it.

2. Ipamorelin is not a threshold substance; therefore, irrespective of the concentration of the substance, the sample can be returned positive by the laboratory. Additionally the term uncertainty is used in relevant WADA documents exclusively in the context of threshold substances. Therefore, such data is not relevant for non-threshold substances.

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On 13 May 2016 the International Weightlifting Federation (IWF) Panel decided to impose a 4 year period of ineligibility on the Russian Athlete Alexei Lovchev after his A sample tested positive for the prohibited substance ipamorelin in a very low concentration. Also later conducted analysis showed the presence of the substance ipamoreling in the Athlete’s B sample.

In June 2016 the Athlete appealed the IWF Panel decision of 13 May 2016 with the Court of Arbitration for Sport (CAS).
The Athlete argued that the IWF had failed to establish to the standard of comfortable satisfaction that the substance in his sample was ipamorelin as distinct from some other benign substance.

The CAS Panel notes that there was, underlying the debate between the parties, a single (but decisive) question. Have the IWF proved to the standard of comfortable satisfaction pursuant to Article 2.1 IWF ADP that the substance found in the Appellant’s urine was Ipamorelin (or its metabolites) as distinct from some other (non-prohibited) substance?
Because the Athlete previously was claiming that the Montreal Laboratory reported a false positive the Montreal Laboratory repeated the analysis showing again the presence of the substance ipamoreling in the Athlete’s B sample.

The CAS Panel observes that the main thrust of the Athlete’s argument was that this matter could and should be resolved one way or another by a further analysis bearing on the detected substance’s ion structure. The Panel notes that the Athlete appears to have sought various and inconsistent explanations for the AAF reported by the Montreal Laboratory supported by the testimony of three experts.

Therefore the Court of Arbitration for Sport decides on 1 December 2016:

1.) The appeal filed by Mr Alexei Lovchev on 1 June 2016 against the decision issued by the Hearing Panel of the International Weightlifting Federation on 13 May 2016 is dismissed.
2.) The decision issued by the Hearing Panel of the International Weightlifting Federation on 13 May 2016 is confirmed.
3.) This award is pronounced without costs, with the exception of the CAS Court Office fee of CHF 1,000,00 (one thousand Swiss francs), paid by Mr Alexei Lovchev, which shall be retained by the CAS.
4.) (…).
5.) All other motions or prayers for relief are dismissed.