CAS 2016/O/4683 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) & Andrey Krivov
- Athletics (race-walking)
- Doping (blood doping)
- CAS jurisdiction under IAAF Rule 38.3
- Applicable law
- Establishment of the violation of “use” of a prohibited method
- Determination of the period of ineligibility based on aggravating circumstances
- Disqualification of results in light of the fairness exception
1. As a consequence of the suspension of its membership, the ARAF is not in a position to conduct a hearing process in an athlete’s case by way of the delegated authority from the IAAF pursuant to Rule 38 of the 2016 IAAF Rules. In these circumstances, it is plainly not necessary for the IAAF to impose any deadline on the ARAF for that purpose. Consequently, if the athlete is an International-Level Athlete in accordance with IAAF Rules, and the ARAF is indeed prevented from conducting a hearing in the athlete’s case within the deadline set by Rule 38.3 of the IAAF Rules, therefore, the IAAF is permitted to refer the matter directly to a Sole Arbitrator appointed by CAS subject to an appeal to CAS in accordance with Rule 42 of the IAAF Rules.
2. Pursuant to the legal principle of tempus regit actum, any 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. According to Rule 33 IAAF Rules, the IAAF has the burden to establish the occurrence of an anti-doping rule violation. It is specifically stated that facts related to Anti-Doping Rule Violations may be established “by any reliable means” including, but not limited to, conclusions drawn from longitudinal profiling such as the athlete’s biological passport (ABP) and other analytical information. The ABP has been generally accepted as a reliable means of evidence to assist in establishing Anti-Doping Rule Violations. Furthermore, evidence such as an Expert Panel’s unanimous opinions can convincingly establish that the athlete engaged in blood doping practices throughout a subsequent period. Finally, the establishment of the fact that the athlete generally had high levels of haemoglobin (HGB) on the eve of competions, whereas his base level of HGB appeared to be much lower as shown by the samples taken, when the athlete was not competing is relevant.
4. The fact for an athlete to be involved over a substantial period (almost five years) in both multiple doping offences as well as a doping scheme or plan constitutes aggravating circumstances pusuant to article 40.6 IAAF Rules justifying an increased suspension compared to the standard suspension of 2 years.
5. The question of fairness and proportionality of Rule 40.8 of the 2008 IAAF Rules providing for automatic disqualification of results has been discussed in light of the length of the disqualification period vis-à-vis the time which may be established as the last time that the athlete objectively committed a doping offence according to the ABP. Under these circumstances, it may be unfair and disproportionate, if the disqualification period was extended all the way through the commencement of the provisional suspension especially where there is no clear evidence that the athlete was using doping after the last sample collection establishing doping. On that basis there would be no legal grounds to extend the disqualification for an additional period, such additional period of time being mainly caused by the duration of the IAAF investigations and procedures.
In April 2016 the International Association of Athletics Federations (IAAF) has reported an anti-doping rule violation against the Russian Athlete Andrey Krivov after an IAAF expert panel concluded unanimously in February 2016 in their Joint Expert Opinion that the Athlete’s hematological profile “highly likely” showed that he 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 August 2009 until October 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 without further details that his blood values could be explained by:
- long traing camp in the Midlands;
- experienced illnesses;
- by using a hypoxic tent; and
- other different factors.
However after consideration the expert panel rejected the Athlete’s explanations in their second joint report, issued in March 2016.
After notification a provisional suspension was ordered. Because the Russian Athletics Federation (RusAF) was suspended by the IAAF the case was referred in May 2016 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 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 2013 with aggravating circumstances. It requested the Sole Arbitrator Panel to impose a 4 year period of ineligibility on the Athlete including disqualification of his results.
Considering the evidence in this case the Sole Arbitrator is satisfactorily convinced 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 between 2011 and 2013.
The Sole Arbitrator finds that the Athlete has been involved in both multiple doping offences as well as a doping scheme or plan, since the findings in his ABP profile clearly indicates that the blood doping had been orchestrated to avoid detection around major championships and competitions. Taking all relevant and aggravating factors into account, the Sole Arbitrator finds that the Athlete should be sanctioned with a period of ineligibility of 3 years and considers it justified to disqualify all of the Athlete's results obtained between 20 May 2011 and 6 July 2013.
Therefore the Court of Arbitration for Sport decides on 22 June 2017 that:
1.) The Request for Arbitration filed on 23 June 2016 by the International Association of Athletics Associations against the All Russia Athletics Federation and Mr Andrey Krivov is upheld.
2.) A period of ineligibility of three years is imposed on Mr Andrey Krivov, starting from 12 April 2016.
3.) All results of Mr Andrey Krivov since 20 May 2011 are disqualified through to 6 July 2013, including forfeiture of any titles, awards, medals, points, prizes, appearance money obtained during this period.
4.) (…).
5.) (…).
6.) All other and further prayers or requests for relief are dismissed.
