CAS 2017/O/4980 International Association of Athletics Federations (IAAF) vs. Russian Athletic Federation (RusAF) & Svetlana Vasilyeva
- Athletics (race walking)
- Doping (blood doping based on the ABP)
- CAS jurisdiction under IAAF Rule 38.3
- Applicable law
- Applicable sanction in case of 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 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 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. 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. With respect to the rules applicable to the substantive aspects of the case, subject to the possible application of lex mitior, substantive aspects shall be governed by the anti-doping regulations in force at the time of the alleged violations, i.e. the 2012-2013 IAAF Rules in the particular case. The rules in force at the time of the first sample taken shall be applied.
3. The starting point for the length of the ineligibility period under the applicable 2012-2013 edition of the IAAF Rules is two years’ ineligibility. Pursuant to CAS case law, aggravating circumstances may justify the imposition of a period of ineligibility greater than the standard sanction of a two-year ineligibility. However, the words “up to a maximum of four (4) years” do not mean that a period of ineligibility of four years must be imposed in every case in which aggravating circumstances are present. The appropriate period of ineligibility should be determined taking into account the gravity of the aggravating circumstances and the particular circumstances of the case. A single example of aggravating circumstances may sometimes warrant the maximum period, while another time multiple examples may call for a lesser penalty only. The fact that the athlete’s career appears to have been built on blood doping over a five years period shows the existence of a doping plan or scheme. Blood doping offences are repetitive and sophisticated by their nature. These aggravating circumstances justify a maximum ineligibility period of four years.
4. As to the disqualification of results, CAS panels have deemed that Rule 40.8 in the 2012-2013 IAAF Rules also includes a fairness exception, even though not explicitly mentioned therein, or at least that it cannot be excluded that a general principle of “fairness” may be applied in deciding whether some results are to be left untouched even in the absence of an explicit rule to this effect. Pursuant to Rule 40.8 of the 2012-2013 IAAF Rules, the disqualification of results is the main rule, and applying fairness would be an exception. The findings that an athlete has committed an anti-doping rule violation and that his/her anti-doping rule violation can be set on the date of the collection of the first relevant sample, mean that his/her competitive results obtained in the period between this date and the date of collection of the last relevant sample must be disqualified unless fairness requires otherwise. This period may exceed 4 years. Yet, where there is no proof that the athlete has used prohibited substances or methods during 2 consecutive years, fairness requires that the athlete’s results in this period remain untouched.
In December 2016 the International Association of Athletics Federations (IAAF) has reported an anti-doping rule violation against the Russian Athlete Svetlana Vasilyeva after an IAAF expert panel concluded unanimously in October 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 20 July 2011 until 27 July 2016 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 her blood values could be explained:
- by the intensive training period on hight;
- by illnesses that she suffered;
- by using a hypoxic ten;, and
- by blood loss in menstruation periods.
However after consideration the expert panel rejected the Athlete’s explanations in their Second Joint Expert Opinion, issued in December 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 RusAF and the athlete failed to file any written submission.
The IAAF asserted that, based on the opinion of the expert panel, the Athlete’s ABP profile constitutes reliable evidence of blood doping in the period between 2011 and 2016 with aggravating circumstances. It requested the Sole Arbitrator Panel to impose a 4 year period of ineligibility on the Athlete including disqualification of her results.
Considering the evidence in this case the Sole Arbitrator is comfortably satisfied by the assessment of the Athlete's ABP that the Athlete has committed an anti-doping rule violation, i.e. the IAAF succeeded to establish that the abnormal values in the Athlete's ABP were caused by blood doping. The Athlete has failed to prove by a balance of probability that the abnormal values of samples 2, 7, 8, 9, and 17 in her ABP resulted from training and residing at high altitude, illnesses, or menstruation.
The Sole Arbitrator concludes that the Athlete has engaged in continuous, intentional, and severe violations of the anti-doping regulations which have led to the setting of an ineligibility period of four years based on aggravating circumstances. It has been established that the Athlete's ABP shows abnormalities indicating that the Athlete was in blood doping cycles at least in 2011, 2012, 2013, and 2016.
The Athlete did not commit the anti-doping rule violation by accident or even on a single occasion. Instead she has been engaged in a long-lasting doping scheme with an aim to gain advantage of her unlawful practice. However there is no proof that the Athlete has used prohibited substances or methods in 2014 and 2015 even though she gave altogether six samples during said years. Fairness requires that the Athlete's results in this period remain untouched.
Based on the above and considering, in particular, that RusAF or the Athlete have not submitted any claims or arguments with respect to the disqualification of results, the Sole Arbitrator considers it justified to disqualify all of the Athlete's results obtained between 18 October 2011 (first abnormal result) and 14 July 2013 (end of the U23 European Athletics Championships) as well as between 24 May 2016 (Sample 17 with abnormal values) and 12 December 2016.
Therefore the Court of Arbitration for Sport decides on 4 August 2017 that:
1.) CAS has jurisdiction to hear this dispute and the claims submitted to it are admissible.
2.) Mw Svetlana Vasilyeva has violated Rule 32.2(b) of the 2012-2013 IAAF Rules.
3.) A period of ineligibility of four (4) years is imposed on Ms Svetlana Vasilyeva starting from 13 December 2016.
4.) All competitive results of Ms Svetlana Vasilyeva from 18 October 2011 through to 14 July 2013 and from 24 May 2016 through to 12 December 2016 are disqualified, with all resulting consequences (including forfeiture of any titles, awards, medals, profits, prizes, and appearance money).
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 Rusesian Athletic Federation.
6.) Ms Svetlana Vasilyeva is ordered to pay CHF 3,000.00 (three thousand Swiss Francs) to the International Association of Athletics Federations as a contribution towards its legal fees and expenses. The Russian Athletic Federation and Ms Svetlana Vasilyeva shall bear their own legal fees and expenses.
7.) All other motions or prayers for relief are dismissed.
