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
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.
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.
