CAS 2016/O/4853 International Association of International Federations (IAAF) v. All Russia Athletic Federation (ARAF) & Ms Albina Mayorova
- Athletics (middle distance)
- Doping (witness statement of whistle blower)
- Taking of evidence and arbitral tribunals’ discretion
- Law applicable to procedural and to substantive matters respectively
- Taking of evidence under Rule 33(3) IAAF Competition Rules and illegally obtained evidence
- Evidence required under IAAF Rules to establish anti-doping rule violation
1. Article 184(1) of the Swiss Private International Law Act (“PILS”) provides arbitral tribunals in international arbitration proceedings seated in Switzerland with ample latitude in the taking of evidence. It further follows from Article 184(1) of the PILS that CAS panels dispose 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.
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, whereas the substantive issues are governed by the IAAF Rules in force at the time of the alleged violation.
3. The discretion to admit evidence under Rule 33(3) of the IAAF Competition Rules (“IAAF Rules”) is fairly wide as it determines that anti-doping rule violations may be established by “any reliable means”. Whereas an athlete’s witness statement is undoubtedly admissible, particularly because witness statements are explicitly listed as a means of evidence in Rule 33(3) of the IAAF Rules, the admissibility of recordings which objectively fall under the category “any reliable means” provided for in Rule 33(3) of the IAAF Rules, require a more detailed analysis in case the recordings have been made covertly e.g. by an athlete acting as a whistle blower. If a means of evidence is illegally obtained, it is only admissible if the interest to find the truth prevails over the interest in protecting the right that was infringed by obtaining the evidence. Elements to be considered pertinent when performing the above balancing test are e.g. the nature of the violation, the interest in discerning the truth, the difficulty of adducing evidence for the concerned party, the conduct of the victim, the legitimate interests of the parties, and the possibility of acquiring the (same) evidence in a legitimate manner. Where it is notorious that doping in a particular country is widespread and has been systematically supported by coaches, clubs and government-affiliated organisations, the interest in finding the truth prevails over a possible reliance of an athlete on the principle of good faith as a defence against gathering illegally obtained evidence. This is even more the case if the athlete in question himself/herself relies on the illegally obtained evidence to exculpate himself/herself.
4. The IAAF Rules do not foresee that a conviction of an anti-doping rule violation must be based on multiple pieces of evidence. Therefore a CAS panel can be comfortably satisfied that an athlete committed an anti-doping violation based on (another) athlete’s witness statement or/and on recordings or/and on the transcript of such recordings.
Ms Albina Mayorova is a Russian Athlete and as long distance runner specialized in marathon competitions representing Russia at the 2004 and the 2012 Olympic Games.
In June and in September 2016 the International Association of Athletics Federations (IAAF) reported 2 anti-doping rule violations against the Athlete after her samples, provided in March and May 2016, tested positive for the prohibited substance Testosterone.
After notification 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 November 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 for the intentional use of the prohibited substance as a first violation. The Athlete stated that she underwent some surgery in 2015 and that possibly the medication she used caused the positive test result.
The Sole Arbitrator finds that the Athlete’s medication could not be the source of the positive test result; it occurred several months after her surgery; and the Athlete provided no scientific evidence about her allegation. The Sole Arbitrator concludes that the presence of the Testosterone establish that the Athlete committed an anti-doping rule violation and she failed to prove that the violation was not intentional.
Therefore the Courtof Arbitration for Sport decides on 21 April 2017 that:
1.) Ms Albina Mayorova is responsible for the anti-doping rule violation contemplated by Article 32.2(a) ["Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete's Sample"] of the IAAF Anti-Doping and Medical Rules.
2.) A sanction of ineligibility for four (4) years starting from 28 June 2016 is imposed on Ms Albina Mayorova.
3.) All competitive results obtained by Ms Albina Mayorova from 14 March 2016 through to 28 June 2016 are disqualified with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points and prize and appearance money.
4.) The costs of the arbitration, to be determined and served on the parties by the CAS Court Office, shall be borne by the Russian Athletics Federation.
5.) Ms Albina Mayorova shall pay to the International Association of Athletics Federations (IAAF) an amount of CHF 3,000 (three thousand Swiss Francs) as a contribution towai-d the costs it has sustained in connection with these arbitration proceedings.
6.) All other motions or prayers for relief me dismissed.
