CAS 2013/A/3080 Alemitu Bekele Degfa v. Turkish Athletics Federation and International Association of Athletics Federations
- Athletics
- Doping (Athlete Biological Passport - ABP)
- Standard and burden of proof regarding the commission of a doping offence
- Aggravating circumstances
- Determination of the applicable sanction
1 According to the standard of comfortable satisfaction and to the applicable rules, the abnormality of an athlete’s hematological profile identified as being abnormal by the federation’s adaptive model with a probability of more than 99% demonstrates clearly the commission of doping offences. On the contrary, suspicion related to a further doping offence is not enough to comfortably satisfy a CAS panel as to an athlete’s guilt.
2. Any conduct in advance of the taking of tested samples, involving a course of conduct over a considerable period, amounts to a doping plan or scheme implying an athlete’s knowledge and constitutes an aggravating circumstance. According to the applicable rules, the fact that such conduct is likely to imply the help or assistance of others constitutes another aggravating circumstance. Likewise, the use or possession of a Prohibited Substance or Prohibited Method on multiple occasions is also an aggravating circumstance. Conversely, as most, if not all doping practices are timed to avoid detection, to constitute an aggravating circumstance, the avoidance of detection is likely to require a further element of deception.
3. Aggravating circumstances may justify the imposition of a period of ineligibility greater than the standard sanction of two-year ineligibility. However, the words “up to a maximum of four (4) years” do not mean that in every case in which there are aggravating circumstances a period of ineligibility of four years must be imposed. In any event, the appropriate period of ineligibility should be determined taking into account the gravity of the aggravating circumstances and the particular circumstances of the case.
In September 2010, the IAAF received what it describes as a "tip-off from an anonymous Turkish athlete which suggested, inter alia, that Ms Bekele was engaged in doping practices."
As a result of this information and the ABP results from Ms Bekele in 2009 and 2010 (which the IAAF regarded as "highly suspicious") her name was added to the IAAF's "Registered Testing Pool" in October 2010.
Because of the results from the IAAF ABP tests, an investigation into a potential doping violation was triggered by the IAAF pursuant to the Anti-Doping Rules. Her case was referred to an independent Expert Panel and they concluded that it was highly likely that her blood profile was the result of the use of a prohibited substance or method.
Ms Bekele was invited to provide an explanation for her abnormal profile, which she did through her national federation. Her explanation was considered but rejected by the Expert Panel and she was then charged with a breach of Rule 32.2(b) by a letter dated 3 April 2012.
On 4 December 2012 the Turkish Athletics Federation (TAF) Penal Board decided to impose a 4 year period of ineligibility on the Athlete starting on 15 February 2012.
Hereafter in February 2013 the Athlete filed two appeals with the Court of Arbitration for Sport (CAS) and with the Arbitrtion Panel of the Turkish Directorate of Youth and Sport. However the Turkish national appeal body rejected the Athlete’s appeal and decided to uphold the TAF Penal Board decision.
Thereupon the Athlete requested the CAS Panel to set aside the TAF decision of 4 December 2012 and filed a number of issues in her defence:
- the possibility of incorrect flagging of abnormality;
- alleged flaws in the sampling process, the analysis of the samples, and the conclusions which could be drawn from the analysis; and
- the effects of severe malaria on the values found in some of the samples.
In March 2013 the IAAF asserted the right to intervene as a party in the CAS case and requested the Panel to uphold the TAF Penal Board decision of 4 December 2012 considering aggravating circumstances.
The Panel is comfortably satisfied that Ms Bekele committed anti-doping rule violations in 2010. The Panel is also comfortably satisfied that there are in this case aggravating circumstances.
The Panel finds that Ms Bekele has failed to prove to the comfortable satisfaction of the Panel that she did not knowingly commit anti-doping rule violations. The Panel deems her assertions that she had never engaged in any doping practice or method entirely unconvincing.
In all these circumstances of the cases, and having taken account of all the matters placed before the Panel, the Panel's view is this is not a case in which the period of ineligibility should be increased to the maximum available. To do so would be to suggest that in all cases of blood doping a four-year period of ineligibility would under the rules as they stand be almost de rigueur, when the rules do not make specific provision for a more severe penalty in blood doping cases.
Therefore the Court of Arbitration for Sport decides on 14 March 2014 that:
1.) The appeal of Ms Bekele is allowed in part.
2.) The decision of the TAF is varied to the extent that Ms Bekele's period of ineligibility shall be for a period of two years and nine months commencing on the date of this award but giving credit for the period of ineligibility already served from 3 April 2012.
3.) Each party shall pay one third of the costs of the arbitration, such costs to be determined by the Court Office of the CAS.
4.) Each of the parties shall bear their own legal costs and other expenses incurred in connection with this arbitration.
5.) All other claims are dismissed.
