CAS 2016/O/4883 International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (ARAF) & Mr. Petr Trofimov
- Athletics (race walking)
- Doping (abnormalities detected in the Athlete’s Biological Passport (ABP))
- CAS jurisdiction under Rule 38.3 IAAF ADR
- Applicable law
- Establishment of a violation of “use” of a prohibited substance
- Period of ineligibility based on aggravating circumstances
- Fairness exception applicable to the disqualification of results
1. Where a national federation is suspended by IAAF, the latter is not in a position to conduct a hearing in a doping case. Against this background, pursuant to Rule 38.3 of the IAAF Anti-Doping Rules (ADR), IAAF can take over the responsibility for coordinating the relevant disciplinary proceedings regarding an international-level athlete and refer directly the matter to the CAS for a hearing subject to an appeal to CAS in accordance with Rule 42 of IAAF ADR. In this regard, where the proceedings are based on a request for arbitration for the conduct of a first instance hearing and do not involve an appeal against a decision rendered by a sports-related body, they are considered as ordinary arbitration proceedings, within the meaning, and for the purposes, of the CAS Code. However, in accordance with Rule 38.3 of the IAAF ADR, these proceedings are handled in accordance with CAS rules applicable to the appeal arbitration procedure without reference to any time limit for appeal.
2. In accordance with the principle of tempus regit actum, those regulations in force at the time of the alleged acts apply, with respect to the substantive aspects of the case. In applying this principle, ABP cases are generally treated as a single anti-doping rule violation based on samples collected over an extended period of time. In accordance with Rule 49.1, and given that in the particular case the athlete’s alleged anti-doping rule violation would have occurred in 2009-2013, this arguably results in the application of Chapter 3 of the 2012 IAAF Rules (in force as of 1 November 2011) to substantive aspects of the case, unless an earlier version of the IAAF Rules can be shown to apply as lex mitior. Additionally, a ‘fairness exception’ inheres the 2012 IAAF Rules regarding assessment of sanctions. Accordingly, application of the 2012 IAAF Rules, which read literally do not require that sanctions be fair or proportionate, does not prejudice the athlete’s case relative to the 2015 IAAF Rules (which include a fairness exception in explicit terms). Procedural matters are governed by regulations in force at the time of the procedural act in question, i.e., the 2016-2017 IAAF Rules.
3. Use of the ABP Analytical Model to demonstrate a high statistical likelihood of blood doping qualifies as a “reliable method” for the purposes of Rule 33.3. While it is true that an ABP analysis by its nature provides indirect evidence of doping practices, such evidence nevertheless can predict, with a high level of statistical confidence, abnormalities attributable to the use of doping agents – sufficient for a finding under the relevant standard of “comfortable satisfaction” that a rule violation has occurred. The IAAF Rules make clear that it is “not necessary” to establish “intent, fault, negligence or knowing use” in order to establish a violation of Rule 32.2(b). Accordingly, the rule can be understood to impose a strict liability on athletes for doping violations.
4. Rule 40.6 of the 2012 IAAF Rules imposes a period of ineligibility of four years (higher than the standard sanction of two years contemplated in Rule 40.2) for a violation of, inter alia, Rule 32.2(b), where the anti-doping rule violation is accompanied by “aggravating circumstances”. The use of a prohibited substance or prohibited method on multiple occasions and the commission of a “doping plan or scheme” constitute such aggravating circumstances.
5. Consistent with CAS jurisprudence on proportionality and the overriding requirement of fairness in interpreting and assessing sanctions under the IAAF Rules and Swiss law, it is not appropriate to disqualify all results of the athlete corresponding to the entire period encompassed by the latter’s eighteen ABP blood samples. This conclusion is buttressed by the absence of any abnormalities or anti-doping rule violations detected in respect of sixteen of the eighteen samples so collected.
In November 2016 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Russian Athlete Petr Trofimov after an IAAF expert panel concluded unanimously in June 2016 in their Joint Expert Opinion 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 IAAF expert panel is based on assessment of blood samples, collected in the period from 13 August 2009 until 16 May 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. The Athlete indicated that his blood values could be explained: by kidney problems; by intensive training period on high altitude; and by using a hypoxic tent. However after consideration the expert panel rejected the Athlete’s explanations in their Second Joint Expert Opinion, issued in July 2016.
After notification a provisional suspension was ordered. Because the Russian Athletics Federation (RusAF) was suspended by the IAAF the case was referred in February 2017 to the Court of Arbitration for Sport (CAS) for a first instance hearing panel. Although duly informed about the arbitral proceedings ARAF and the athlete failed to file any written submissions.
The IAAF asserted that, based on the opinion of the expert panel, the Athlete’s ABP profile constitutes reliable evidence of the use of a prohibited substance or prohibited method in the period between 2009 and 2015 with aggravating circumstances and requested the Sole Arbitrator Panel to impose a period of ineligibility on the Athlete between 2 and 4 years including disqualification of his results.
Considering the evidence in this case the Sole Arbitrator accepts the conclusions of the First and Second Expert Panel Opinion namely that it is highly likely that the Athlete's ABP profile results are attributable to blood doping as defined and sanctioned under the IAAF Rules. Accordingly, he considers that the lAAF has discharged its burden of establishing a violation of Rule 32.2(b) of the IAAF Rules.
The Sole Arbitrator is satisfied that samples 1 and 11 of the Athlete's ABP profile indicate, to his comfortable satisfaction, the use of prohibited substances. Moreover in light of the dates on which these two samples were collected, the evidence indicates artificial augmentation of red blood cell mass in proximity to competitions spaced nearly four years apart from each other. Accordingly, pursuant to the operation of Rule 40.6 of the IAAF Rules, aggravating circumstances, justify the imposition of a period of ineligibility of four years for the Athlete's violation of Rule 32.2(b).
The Sole Arbitrator finds that fairness requires that it is not appropriate to disqualify all results of the Athlete corresponding to the entire period encompassed by the Athlete's 18 ABP blood samples. This conclusion is buttressed by the absence of any abnormalities or anti-doping rule violations detected in respect of 16 of the 18 collected samples. As a result the Sole Arbitrator finds that all competitive results of the Athlete from 13 August 2009 to 18 May 2013, inclusive, shall be disqualified.
Therefore the Court of Arbitration for Sport decides on 17 May 2017 that:
1.) CAS has jurisdiction to hear this dispute and the claims submitted to it are admissible;
2.) Mr. Petr Trofimov has violated Rule 32.2(b) of the IAAF Rules;
3.) A period of ineligibility of four (4) years is imposed on Mr. Petr Trofimov commencing from 3 November 2016;
4.) All competitive results obtained by Mr. Petr Trofimov from 13 August 2009 through 18 May 2013, inclusive, are disqualified, with all resulting consequences (including forfeiture of medals, points and prizes);
5.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne in their entirety by the Russian Athletics Federation, which shall bear its own costs,
6.) Mr. Petr Trofimov shall bear his own costs and is ordered to pay to the International Association of Athletics Federations 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.
7.) All other motions or prayers for relief are dismissed.
