CAS 2014/A/3561 IAAF vs RFEA & Marta Dominguez Azpeleta
CAS 2014/A/3614 WADA vs Marta Dominguez Azpeleta & RFEA
CAS 2014/A/3561 & 3614 International Association of Athletics Federation (IAAF) & World Anti-Doping Agency (WADA) v. Marta Domínguez Azpeleta & Real Federación Española de Atletismo (RFEA)
- Athletics (middle-distance)
- Doping (rEPO; synthetic oxygen carriers; blood transfusion)
- Effects of a State court order on the admissibility of evidence by the CAS
- Compliance of CAS arbitration with Article 6 ECHR
- Compliance of CAS arbitration with EU competition rules
- Burden and standard of proof in anti-doping proceedings concerning allegations of blood manipulation
- Validity of the Athlete Biological Passport
- Assessment of non-pathological factors presented as explanations of atypical results
- Assessment of alleged flaws in the sample procedures
- Aggravating circumstances in the assessment of the sanction
1. As an independent forum the CAS is not bound by the decisions of another jurisdictional body. With regard to its full power to review the facts and the law, a CAS panel is not bound by decisions taken by any other jurisdictional body. Further, as regards specifically the admissibility of evidence, a CAS panel is not bound by the rules of evidence and may inform itself in such a manner as the arbitrators think fit.
2. Article 6 para. 1 of the European Convention of Human Rights (ECHR) does not preclude the setting up of arbitration tribunals in order to settle disputes and does not prevent a party to consent to arbitration if this consent is given freely, is licit and unequivocal. The European Court of Human Rights (ECtHR) therefore clearly distinguishes between forced arbitration, imposed by law, and freely consented arbitration foreseen for by agreement between parties. Only in the former case all guaranties of article 6 para. 1 ECHR have to be respected. First, an arbitration procedure in a doping case cannot be considered as imposed by law. Second, by signing – on multiple occasions –Doping Control Forms, especially if some explicitly confer competence to the CAS for resolving definitively any dispute, controversy or claim arising thereof, an athlete gives his/her explicit consent to arbitration before the CAS.
3. The European Commission adopts a 4-step methodology when assessing the legality of rules adopted by sport organizations: (i) is the sports association that adopted the rule to be considered an “undertaking” or an “association of undertakings”?; (ii) does the rule in question constitute an abuse of a dominant position under Article 102 TFEU?; (iii) is trade between Member States affected?; and (iv) is the rule objectively justified? When determining a dispute resolution forum, with a view to facilitating the independent, impartial, specialized, and expeditious resolution of sports disputes, especially in connection with the global fight against doping in sport, sports federations do not engage in an economic activity, and thus do not constitute undertakings for the purposes of EU competition law. Therefore, the first step of the methodology is already not fulfilled.
4. In matters concerning blood manipulation, there is no ‘factual presumption’ that the blood screening tests produced correct result, because, in anti-doping proceedings other than those deriving from positive testing, no presumption applies. Accordingly, the anti-doping organisation bears the full burden to present reasonably reliable evidence to persuade the adjudicating body, by the applicable standard of proof, that the athlete committed a doping offence in violation. Anti-doping proceedings are private law and not criminal matters and the duty of proof and assessment of evidence are problems which cannot be regulated, in private law cases, on the basis of concepts specific to criminal law. Thus, the standard of proof is not “beyond all reasonable doubt” but “comfortable satisfaction” as provided the applicable rules of the international federation and consistently applied in many cases concerning allegations of blood manipulation or other serious form of doping.
5. CAS jurisprudence and numerous peer-reviewed applications have confirmed that the Athlete Biological Passport (ABP) is a reliable and valid mean of establishing an anti-doping rule violation (ADRV).
6. Scientific evidence confirms that changes induced by (extended) air travel do not significantly alter the blood variables of the ABP. Similarly, there is no scientific evidence showing measurable changes in the haematological variables used for the ABP by the use of artificial hypoxic devices such as a hypoxic tent. Also, the ABP is designed exactly to capture an athlete during his/her normal activities and consequently normal daily activity has no impact on the ABP variables.
7. Alleged flaws in the sample procedures must be examined under a two-prong test. First, whether there was a departure from the applicable anti-doping regulations (or Blood Testing Protocol) and applicable International Standards. Second, whether any identified departure could reasonably have caused the ADRV. In this regard, although the sample collection procedure commonly includes a rest period in a normal seated position with feet on the floor for at least 10 minutes prior to providing a sample, only a posture change such as lying down can change the plasma volume which in turn can lead to an increased haemoglobin (HGB). In any event, any possible change in the HGB cannot have an impact on an abnormal reticulocytes pattern which is not a concentration-based measure and cannot therefore reasonably have caused the ADRV. Similarly, although repetitive unsuccessful venepuncture attempts can have a marginal impact on HGB levels in certain circumstances, such a marginal impact on HGB can in any event not explain the abnormalities in the reticulocytes patterns and cannot therefore reasonably have caused the ADRV. Also, the HGB concentration and RET% – two primary ABP markers – are stable at room temperature for up to 72 hours, and even longer if kept between 4°C and 6°C. Accordingly, if the athlete’s samples were brought under refrigerated, cool, or room temperature conditions, while the time between a sample collection and a sample analysis was in all 20 samples well below 72 hours, there was no departure from the applicable rules and standards.
8. Use of prohibited substances and/or prohibited methods on multiple occasions, participation in a doping plan/scheme, refusal to admit the ADRV, categorisation as high-profile athlete and high-profile position as board member of a national federation are all aggravating circumstances when assessing the measure of the sanction to be imposed on an athlete for an ADRV.
In July 2013 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Athlete Marta Domínguez Azpeleta on the irregularities in her ABP.
However on 19 March 2014 the Tribunal of the Royal Spanish Athletics Federation (RFEA) decided for the acquittal of the Athlete due to sufficient doubts about the ABP evidence provided by the IAAF.
Hereafter both the IAAF and the World Anti-Doping Agency (WADA) appealed the decision of the RFEA with the Court of Arbitration for Sport (CAS). The Appellants requested the Panel to set aside the RFEA decision of 19 march 2014 and to impose a 4 year period of ineligibililty on the Athlete due to aggravating circumstances.
The Athlete denied the anti-doping violation and argued that her consent to arbitration is void. She contested the CAS jurisdiction, the competence to judge the case and the independence of the CAS arbitrators.
Supported by experts witnesses the Athlete asserted that her ABP was not atypical but the result of a combination of factors including physiological and pathological conditions, viral infectons, other medical conditions and non-pathological factors. Also she argued that departures occurred from the rules and standards regarding the Chain of Custody, the sample collection and the sample analysis.
The Panel is comfortably satisfied that there is sufficient evidence showing that Ms. Dominguez Azpeleta planned her doping activities in order to improve her performance at high-level athletics events. The Panel observes that the Athlete did not admit the ADRV. Instead, she took every opportunity to challenge it, often with arguments that lacked support or even directly contradicted the factual record.
In addition, the Panel notes that Ms. Dominguez Azpeleta was a high-profile athlete, with over 20 years of competing experience, and acted as a Vice-President of the RFEA. Accordingly, the Panel wishes to emphasise that Ms. Dominguez Azpeleta' s positions obliged her to act with the utmost respect for rules and regulations and aspire to be a role model for other athletes.
Therefore the Court of Arbitration for Sport decides on 19 November 2015 that:
1.) The CAS has jurisdiction to decide on the subject matter of this appeal.
2.) The appeals filed by IAAF and WADA are admissible and partially upheld.
3.) The decision of the RFEA Sports Disciplinary Committee of March 19, 2014 is set aside.
4.) Ms. Dominguez Azpeleta is guilty of an anti-doping rule violation.
5.) Ms. Dominguez Azpeleta is sanctioned with a three-year period of ineligibility starting on June 24, 2015. The period of provisional suspension imposed on Ms. Dominguez Azpeleta from July 8, 2013 through March 19, 2014, shall be credited against the 3-year period of ineligibility to be served.
6.) All competitive results obtained by Ms. Dominguez Azpeleta from the date Sample 1 was collected (August 5, 2009) through to the commencement of her provisional suspension (July 8, 2013) shall be disqualified, with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points, prizes, and appearance money.
