CAS 2017/A/4949 Tatyana Chernova v. International Association of Athletics Federations (IAAF)
Related cases:
- CAS 2016_O_4469 IAAF vs ARAF & Tatyana Chernova
November 29, 2016 - IOC 2016 IOC vs Tatiana Chernova
April, 19, 2017 - CAS 2017_A_5124 Tatyana Chernova vs IOC
December 4, 2017
- Athletics (heptathlon)
- Doping (Athlete’s Biological Passport, ABP)
- Reasons for the jurisdiction of the CAS Sole Arbitrator in the first instance
- Applicable requirements of the CAS Code
- Validity of the IAAF Rules as an arbitration agreement
- Validity of a rule providing for CAS jurisdiction in the first instance
1. The de novo power of review conferred upon a CAS panel under Article R57 of the CAS Code allows it to consider jurisdiction and the grounds therefor anew. According to the Swiss Federal Tribunal, a court can find that it had jurisdiction on grounds different from those enunciated previously, “as long as the facts found by the arbitral tribunal are sufficient to justify the substitution of new reasons”. Therefore, the reasons for a CAS panel’s findings on jurisdiction in appeals proceedings can differ from those identified by a CAS Sole Arbitrator in the first instance.
2. According to IAAF Rule 38.3, “the case shall be handled in accordance with CAS rules (those applicable to the appeal arbitration procedure without reference to any time limit for appeal)”. The reference in this provision to the appeal arbitration procedure merely concerns the procedural rules to be followed during the arbitral proceedings, not the threshold questions of jurisdiction. The requirements in Article R47 of the CAS Code governing appeals are inapplicable to the IAAF’s referral of the matter to a CAS Sole Arbitrator and do not operate to preclude him/her from assuming jurisdiction over the dispute. The full applicability of the jurisdictional requirements of Article R47 of the CAS Code would lead to the impossibility of applying Rule 38.3 as a basis for CAS jurisdiction, as there would never be a previous decision to review or prior internal remedies to exhaust. Such an interpretation is inconsistent with the interpretive principle ut res magis valeat quam pereat, according to which an interpretation rendering a rule effective must prevail over one which renders it superfluous.
3. Power asymmetries in sports arbitration agreements are inherent in the governing frameworks of international sport. While a sporting federation’s unilateral imposition of an arbitration agreement undeniably leaves athletes little bargaining power, the imposition also protects compelling constitutional interests – the autonomy of sporting associations – and is justified by the need for a uniform approach to doping. The Swiss Federal Tribunal has adopted a “benevolent” approach toward sports arbitration. It accepts as legitimate arbitration clauses “imposed” by international sports organizations on athletes, insofar as those agreements aim “to promote the swift resolution of disputes by specialized arbitral tribunals presenting sufficient guarantees of independence and impartiality, such as the CAS”.
4. Disciplinary matters typically arrive at the CAS as appeals against a prior decision, not as proceedings in the first instance. As a general matter, an athlete’s right to a hearing convened by his or her national federation is sensible as a guarantee of access to proximate and culturally attuned adjudicators. However, the purpose of Rule 38.3 of the IAAF Rules is to enable IAAF to refer cases to CAS where they cannot be done expeditiously within the national federation. This is typically the case when a national federation has been suspended and is therefore not in a position to convene a hearing. As no national entity within the national federation’s Member State has jurisdiction under the IAAF Rules to conduct a hearing, CAS enjoys jurisdiction over the first instance hearing.
In April 2015 the International Association of Athletics Federations (IAAF) initiated an investigation into a potential new anti-doping rule violation by the Russian Athlete Tatyana Chernova 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.
Previously the Russian Anti-Doping Authority (RUSADA) had decided on 20 January 2015 to impose a 2 year period of ineligibility on the Athlete - from 22 July 2013 to 21 July 2015 - after her sample tested positive for the prohibited substance dehydrochloromethyltestosterone (turinabol).
In February 2016 the IAAF reported an 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 ABP case and the previous appealed turinabol case were referred to the Court of Arbitration for Sport (CAS) in February 2016 for a first instance hearing panel procedure (CAS 2016/O/4469) with the right to appeal.
The CAS Sole Arbitrator deemed 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.
Considering that the Athlete in the case at hand had committed two separate anti-doping rule violations, the use of turinabol and an ABP violation, and considering that the established ABP violation of the Athlete lasted considerably longer the CAS Sole Arbitrator decided on 29 November 2016 that a period of ineligibility of 3 years and 8 months to be appropriate to the severity of the Athlete’s misbehavior.
In the meantime in another case against the Athlete the IOC Disciplinary Commission had established on 19 April 2017 that the Athlete had also committed an anti-doping rule violation at the Beijing 2008 Olympic Games after her 2008 A and B samples through reanalysis tested positive for the prohibited substance dehydrochlormethyltestosterone (turinabol).
Hereafter in January 2017 the Athlete appealed the CAS Decision (CAS 2016/O/4469) with the Court of Arbitration for Sport (CAS).
The Athlete alleges that the IAAF improperly referred the dispute to CAS rather than conducting its own first-instance hearing in the place of ARAF (which has been suspended by the IAAF since November 2015 and, but for its current suspension, would have adjudicated the dispute).
Accordingly, this appeal purely focuses on a jurisdictional issue and therefore does not require review of the Sole Arbitrator's finding in CAS 2016/O/4469 that "the Athlete engaged in blood doping practices throughout the period between August 2009 to at least July 2013."
The Parties in this appeal case (CAS 2017/A/4949) disagree as to the application of the CAS Code to the dispute before the CAS Sole Arbitrator (CAS 2016/O/4469). In particular, they adopt divergent positions concerning the extent to which Article R47 of the CAS Code governs and, if it does, whether it imposes threshold requirements beyond those present in IAAF Rule 38.3.
The Panel finds that having determined that the requirements of IAAF Rule 38.3 are met and that Article R47 of the CAS Code does not apply as a jurisdictional gateway, the IAAF has demonstrated that CAS enjoyed jurisdiction over the first-instance hearing before the Sole Arbitrator (CAS 2016/O/4469).
The CAS Panel concludes that the Athlete's submission concerning the jurisdiction of the CAS Sole Arbitrator (CAS 2016/O/4469) fails. As this was the only issue raised by the Athlete in her appeal, the Panel accordingly dismiss the appeal and confirms the Appealed Award.
Therefore the Court of Arbitration for Sport decides on 18 July 2017 that:
1.) The appeal filed by Ms. Tatyana Chernova on 12 January 2017 against the International Association of Athletics Federations (IAAF) against the decision rendered by the Court of Arbitration of Sport (CAS 2016/O/4469) is dismissed.
2.) The costs of the arbitration, to be determined and served to the Parties by the CAS Court Office, shall be borne by Ms. Tatyana Chernova.
3.) Ms. Tatyana Chernova shall bear her own costs and is ordered to pay to the International Association of Athletics Federations (IAAF) the amount of CHF 3,000 (three thousand Swiss Francs) as a contribution toward the legal fees and other expenses incurred in connection with these arbitration proceedings.
4.) All other motions or prayers for relief are dismissed.
