CAS 2016/O/4481 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) & Mariya Savinova-Farnosova
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March 10, 2017
- Athletics (middle-distance)
- Doping (parabolan; growth hormones; ABP)
- Applicable law in IAAF cases referred to CAS as first instance
- Principle tempus regit actum
- Taking of evidence in international arbitration proceedings seated in Switzerland
- Admissibility of illegally obtained reliable means of evidence
- Admissibility of an ABP as means of evidence
- Doping plan or scheme as aggravating circumstance
- Fairness exception regarding disqualification of results
1. In an IAAF doping case involving an International-Level Athlete and where the national federation is prevented from conducting a hearing in the athlete’s case within the two-month deadline set by Rule 38.3 of the IAAF Competition Rules, 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 Competition Rules. In such cases, the IAAF replaces the national federation in prosecuting the athlete for an alleged anti-doping rule violation; therefore, the regulations to be applied are in principle the regulations that would have to be applied by the national federation. In possible appeal proceedings before CAS, the regulations of the IAAF would be applicable.
2. Pursuant to the legal principle of tempus regit actum, procedural matters are governed by the regulations in force at the time of the procedural act in question.
3. The admittance of means of evidence is subject to procedural laws, i.e. the lex arbitri. Since the seat of CAS arbitration is Switzerland, Switzerland’s Private International Law Act (PILS) is applicable. Article 184(1) PILS vests arbitral tribunals in international arbitration proceedings seated in Switzerland with ample latitude in the taking of evidence. Arbitral tribunals do not have to follow the rules of taking evidence in State courts in Switzerland. The power to determine the arbitral proceedings in the absence of an agreement between the parties thus allows the arbitral tribunal to freely determine the principles governing evidence to the extent that these are of a procedural nature and not governed by the applicable substantive law. Besides article 184(1) PILS, the power of a CAS panel to rule on the admissibility of evidence is also noted in the CAS Code (cf. Article 44.2). It follows from Article 184, paragraph 1 PILS (as well as the CAS Code) that the panel disposes of a certain discretion to determine the admissibility or inadmissibility of evidence. In general, the power of the arbitral tribunal related to the taking of evidence is only limited by “procedural public policy”, the procedural rights of the parties, and, where necessary, by the relevant sporting regulations.
4. Pursuant to Rule 33(3) of the IAAF Competition Rules, recordings can in principle be regarded as a reliable means of evidence. If a means of evidence is illegally obtained, the courts shall balance the interest in protecting the right that was infringed by obtaining the evidence against the interest in establishing the truth. If the latter outweighs the former, the courts may declare a piece of evidence admissible for assessment even though it was unlawfully acquired. Not only the interest of a complainant in abstaining from obtaining evidence in an illegal manner is relevant in this balancing, but also the interest of not having this evidence used against him/her.
5. The Athlete’s Biological Passport (ABP) is a reliable and accepted means of evidence to assist in establishing anti-doping rule violations. However, abnormal values are (for the purposes of the ABP) a necessary but not a sufficient proof of a doping violation. From the mere fact that an athlete cannot provide a credible explanation for the deviations in his or her ABP it cannot automatically be deduced that an anti-doping rule violation has been committed. Rather, the deviations in the ABP are to be interpreted by experts called to put into the balance various hypothesis that could explain the abnormality in the profile values, i.e. a distinction should be made between a “quantitative” and a “qualitative” assessment of the evidence. The CAS 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. No provision in the IAAF Competition 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. However, the use of blood doping, in general, is a more advanced method of doping in comparison with the mere ingestion of prohibited substances, as it requires a certain degree of advice and support. The fact that an athlete uses doping over a prolonged period of time, has detailed knowledge of wash-out periods of certain specific substances and gets advice and support from other people proves the sophistication of the doping regime the athlete is subjected to and demonstrates that the athlete engaged in a doping plan or scheme which is to be taken into account as an aggravating circumstance in determining the period of ineligibility.
7. The disqualification of results is, in itself, a severe sanction and, in a way, can be equated to a period of ineligibility. However, whereas the period of ineligibility to be imposed (even for the worst cases) is limited to four years, the period during which results can be disqualified is unlimited. According to established CAS jurisprudence, the principle of proportionality requires to assess whether a sanction is appropriate to the violation committed in the case at stake. Excessive sanctions are prohibited. Therefore, even if the applicable version of the IAAF Competition Rules does not contain a “fairness exception”, a general principle of fairness must prevail in order to avoid disproportional sanctions. Such interpretation is not only in accordance with the general principle of law but also with the WADA Code, which the IAAF signed and thus committed to comply with.
Ms Mariya Savinova-Farnosova is a Russian International Level Athlete specializing in the 800 metres.
In the period from 2013 to 2014, the Russian Athlete Yulia Stepanova secretly recorded a number of conversations that she had with Russian athletes and Athlete Support Personnel. With a view to exposing the widespread doping practices within Russian athletics, Ms Stepanova made those recordings available to Mr Hajo Seppelt, a German journalist. Mr Seppelt used some of those recordings to produce a documentary alleging widespread doping in Russian athletics which was broadcasted in December 2014.
Based on the evidence and statements provided by Ms Stepanova and the ABP of the Athlete the International Association of Athletics Federations (IAAF) reported in August 2015 an anti-doping rule violation against the Athlete for using prohibited substances. After notifaction a provisional suspension was ordered and the Athlete filed a statement in her defence.
Because the All Russia Athletic Federation (ARAF) was suspended by the IAAF the case was referred in March 2016 to the Court of Arbitration for Sport (CAS) for a first instance hearing panel procedure with the right to appeal.
The IAAF requested the Panel to impose a 4 year period of ineligibility on the Athlete with aggravating circumstances for the use of prohibited substances on multiple occasions and long term engaged in a doping plan or scheme.
The Athlete denied having committed an anti-doping rule violation and disputed the evidence provided by Ms Stepanova and the IAAF.
The CAS Sole Arbitrator determines that the recordings of Ms Stepanova's conversations with the Athlete and the Coach are admissible as evidence in the proceedings at hand and finds that the recordings are in general reliable evidence. The Sole Arbitrator has no doubt that the Athlete violated the IAAF Rules by admitting the use of Parabolan (Trenbolone) and growth hormones to Ms Stepanova.
Considering the admissions of the Athlete in her conversations with Ms Stepanova regarding the consumption of prohibited substances and the evidence based on the Athlete's ABP, the Sole Arbitrator finds that the Athlete violated Rule 32.2(b) of the IAAF Rules for using prohibited substances.
Therefore the Court of Arbitration for Sport decides on 10 February 2017 that:
1.) The claim filed on 4 March 2016 by the International Association of Athletics Federations against the All Russia Athletics Federation and Ms Mariya SavinovaFarnosova is partially upheld.
2.) A period of ineligibility of four years is imposed on Ms Mariya Savinova-Farnosova starting from 24 August 2015.
3.) All results of Ms Mariya Savinova-Farnosova from 26 July 2010 until 19 August 2013 are to be disqualified, including forfeiture of any titles, awards, medals, points and prize and appearance money.
4.) 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.
5.) Ms Mariya Savinova-Farnosova shall bear her own costs and is ordered to pay to the International Association of Athletics Federations the amount of CHF 6,000 (six thousand Swiss Francs) as a contribution towards the legal fees and other expenses incurred in connection with these arbitration proceedings.
6.) The All Russia Athletics Federation shall bear its own costs.
7.) All other and further prayers or requests for relief are dismissed.
