CAS 2017/A/5021 International Association of Athletics Federations (IAAF) v. UAE Athletics Federation & Betlhem Desalegn
- Athletics (middle- and long distance)
- Doping (Athlete Biological Passport; blood doping)
- Aggravating circumstances under Rule 40.6 2014 IAAF Rules/Article 10.6 2009 WADA Code
- “Multiple occasions” and “doping plan or scheme” as aggravating circumstances
- Disqualification of results under Rule 40.8 IAAF Rules
1. The burden to establish the existence of aggravating circumstances in the meaning of Rule 40.6 2014 IAAF Rules (Article 10.6 of the 2009 WADA Code) lies on the IAAF. In this respect the standard of “comfortable satisfaction” not only applies to the IAAF, but also to the athlete, in order to rebut any claim of aggravating circumstances. Furthermore, even if aggravating circumstances in the meaning of Rule 40.6 2014 IAAF were to be established, a CAS panel has discretion whether to increase a sanction based on aggravating circumstances, and if so, how much the sanction should be increased, as Rule 40.6 2014 IAAF Rules does not impose a minimum increase. A single example of aggravating circumstances may sometimes warrant the maximum period of four years, while another time multiple examples may call for a lesser penalty only.
2. Given that a rEPO course commonly stretches over a period of two to three weeks and involves two to three injections a week, with a single injection not providing the expected enhancing effects, this course of injections may be considered a continuous doping practice. However, in case only one sample out of four taken for the purpose of an ABP establish an abnormality (i.e. one doping violation), this does not necessarily establish use on “multiple occasions” in the meaning of Rule 40.6 2014 IAAF Rules. Put differently, the fact that blood doping, whether by use of rEPO or by blood transfusion, presupposes the use of syringes on more than just one occasion, i.e. injection of rEPO every two to three days or taking of blood to re-inject blood, does not necessarily justify the imposition of an increased period of ineligibility for use on “multiple occasions”. Furthermore, the sole fact that blood doping usually requires specific knowledge or assistance from a specialist, i.e. an athlete engaging in blood doping is most probably assisted by another person, does not automatically qualify the conduct as part of a doping plan or scheme in the meaning of Rule 40.6 2014 IAAF Rules and is therefore not per se constitutive of a doping plan or scheme.
3. Some limitation may be applicable to the retroactive disqualification of competitive results if in an individual case it is considered that “fairness requires” so. When determining whether or not to disqualify results under Rule 40.8 IAAF Rules the main purpose of disqualification of results, i.e. to correct any unfair advantage and remove any tainted performances from the record, has to be kept in mind.
In July 2016 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Ethiopian Athlete Betlhem Desalegn after an IAAF expert panel concluded unanimously in June 2016, and again in July 2016, that the Athlete’s hematological profile “highly likely” showed that she used a prohibited substance or a prohibited method: the use of EPO or Blood doping.
This conclusion of the UCI expert panel is based on assessment of blood samples, collected in the period from 8 March 2012 until 24 August 2015 reported in the Athlete’s Biological Passport (ABP).
Previously the Athlete submitted an explanation to the IAAF about the circumstances surrounding the collected samples which was rejected by the Expert Panel in August 2016.
On 4 August 2016 the United Arab Emirates National Anti-Doping Committee (UAE-NADO) accepted the explanations from the Athlete and ruled that the Athlete had not committed an anti-doping rule violation. The IAAF appealed this decision and on 22 January 2017 the UAE Athletics Federation (UAE AF) Disciplinary Committee decided to impose a 15 month period of ineligibility on the Athlete.
Hereafter in March 2017 the IAAF appealed the decision of 22 January 2017 with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the Appealed Decision and to impose a period of ineligibility on the Athlete between 2 and 4 years.
The UAE AF asserted that the antidoping rule violation was not clearly established. Therefore, the UAE AF Committee tried to make a fair balance between the legal aspects and the factual elements of the case and imposed a 15 month ban on the Athlete.
The Athlete denied the intentional use of doping and stated that she had no knowledge of rhEPO, nor had the financial means to perform blood doping. She asserted that the medical treatment, prescribed supplements and high altitude training could explain her ABP blood profile.
Regarding the ABP model, the Panel notes that, according to the well-established jurisprudence of the CAS, the ABP model is a valid and reliable means of establishing an anti-doping rule violation. Moreover, in the present case, the UAE AF and the Athlete neither question the results of sample 3 in particular, nor the validity of the ABP model as such.
In view of the strong and un-rebutted evidence, the Panel is comfortably satisfied that, prior to the taking of sample 3 on 6 March 2014, the Athlete committed an anti-doping rule violation by using a prohibited substance and/or method in the sense of Rule 32.2 (b) of the 2014 IAAF Rules. The Panel observes that, in its Appealed Decision, the Disciplinary Committee of the UAE AF came to the same conclusion.
Given that a course of rEPO as well as blood transfusion can exclusively be done by injections, the anti-doping rule violation at hand has, in the Panel's view, to be considered as having been committed intentionally. In this regard, the Panel has not been convinced by the Athlete’s assertions according to which she had never engaged in any doping practice, had no knowledge of rhEPO and did not have the financial means to engage in blood doping. Moreover, the Athlete did not try to establish the existence of any mitigating circumstances.
In the light of several considerations and in view of the fact that each case has to be considered on its own merits, the Panel finds that in the present case there are no aggravating circumstances that would justify the imposition of a period of ineligibility greater than the standard period of twenty-four (24) months.
Therefore the Court of Arbitration for Sport decides on 17 October 2017 that:
1.) The appeal filed on 3 March 2017 by the International Association of Athletics Federations with the Court of Arbitration for Sport against the decision of the United Arab Emirates Athletic Federation's Disciplinary Committee dated 22 January 2017 is admissible.
2.) The decision of the United Arab Emirates Athletic Federation Disciplinary Committee dated 22 January 2017 is set aside.
3.) Ms Betlhem Desalegn committed an anti-doping rule violation according to Rule 32.2 (b) of the 2014 IAAF Rules.
4.) Ms Betlhem Desalegn is sanctioned with two (2) year period of ineligibility, starting on 10 August 2016, date of her second provisional suspension. The period of provisional suspension served by Ms Betlhem Desalegn between 22 July 2016 and 4 August 2016, shall be credited against the two-year period of ineligibility to be served.
5.) All competitive results obtained by Ms Betlhem Desalegn from 6 March 2014 to 13 August 2015 shall be disqualified, with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points, prizes, and appearance money.
6.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne entirely by the United Arab Emirates Athletics Federation.
7.) The United Arab Emirates Athletic Federation is ordered to pay to the IAAF the amount of CHF 5,000 (five thousand Swiss Francs) as a contribution to the IAAF towards the legal fees and expenses incurred in relation to the present proceedings.
8.) All other motions or requests for relief are dismissed.
