CAS 2016/A/4817 Tetiana Gamera v. International Association of Athletics Federations (IAAF) & Ukrainian Athletic Federation (UAF), award on jurisdiction and admissibility of 1 June 2017
- Athletics (long-distance)
- Doping (Athlete Biological Passport)
- Jurisdiction of the CAS with regard to an application for reconsideration
- Characteristic features of a decision
- Appeals against decisions on applications for reconsideration
- Receipt of a decision
- Estoppel from lodging an appeal
1. Although the arbitration clause contained in Article 42.3 of the IAAF Anti-Doping Rules (ADR) does only allow appeals to CAS against a first instance national decision and not against second instance national decisions, an application for reconsideration filed by an athlete before the body that took the first decision is not a formal appeal. It follows from the context of Article 42.3 that an (international-level) athlete shall not have an (enforceable) claim to bring his or her case before another national instance (with full cognition). The provision, however, is not designed to prevent a sports authority from revisiting – on its initiative and in its discretion – a decision already taken by it. The decision taken by a sports organisation is an administrative matter that can be revisited or amended by it, in principle, at any time. Consequently, an application by an athlete to the sports organisation inviting the latter to make use of this competence, i.e. to revisit its decision, differ substantially from the type of “review” or “appeal” prohibited by Article 42.3. Applications for reconsiderations are neither time-limited nor do they award full access to justice. Instead such applications are extrajudicial remedies that can be filed at any time and that do not follow a particular procedure. In addition and contrary to ordinary appeals, the sports federation is free to deal with such (extrajudicial) applications at its complete discretion.
2. The characteristic features of a decision may be described as follows: (a) the term “decision” must be construed in a large sense; (b) the form of the communication in question is irrelevant for its qualification; (c) in principle, for a communication to be qualified as a decision, this communication must contain a ruling, whereby the body issuing the decision intends to affect the legal situation of the addressee of the decision or other parties; and (d) a decision is a unilateral act, sent to one or more determined recipients that is intended to produce or produces legal effects.
3. An application for reconsideration is – because extrajudicial – outside of any legal framework. Whether the addressee of an application for reconsideration reconsiders its decision or not is in its sole autonomy. An athlete has no claim or right that his or her case be reconsidered. Therefore, an appeal operating under legal standards and the rule of law is – from the outset – the wrong instrument to challenge a decision taken outside of any legal context. Decisions on application for reconsideration are, thus, very similar to field of play decisions not reviewable because they cannot be measured with the yardstick of the law. Appeals lodged against such decisions are – just like appeals against field of play decisions – inadmissible.
4. Receipt of the decision for the purposes of Art. R49 of the CAS Code means that the decision must have come into the sphere of control of the party concerned (or of his/her representative or agent authorised to take receipt). It does not imply that the party concerned actually took note of the content of the decision concerned. Instead it suffices that the party concerned had a (reasonable) possibility of taking note of the decision.
5. In particular circumstances a party may be estopped from availing itself of the fact that a deadline did not start to run. This is particularly so in view of the principle of good faith. Whether this is the case depends on the circumstances of the individual case. A party is estopped from lodging an appeal where the other stakeholders involved could legitimately rely on the (federation’s) measure in question to be final and binding. Thus, for example, if an appellant has taken note of a decision (in some other way) the latter is under a duty to make enquiries within certain limits as far as is reasonable and within his realms of possibility. If the party fails to do so, he or she would act in bad faith when arguing that the time limit had not yet begun to run. However, the requirement that the “party entitled to appeal” make enquiries may not be overstretched.
In 2015 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Ukrainian Athlete Tetiana Gamera after an IAAF expert panel concluded unanimously 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 26 August 2011 until 24 April 2015 reported in the Athlete’s Biological Passport (ABP).
As a result the Ukrainian Athletic Federation (UAF) decided on 20 November 2015 to impose a 4 year period of ineligibility on the Athlete. In first instance the Athlete failed to respond to the communications, she didn’t file a statement in her defence, nor did she attend the UAF hearing. Afterwards the Athlete came to know in the media that she was sanctioned. Her requests submitted thereafter to re-consider the UAF decision were rejected by the UAF and IAAF.
Hereafter in October 2016 the Athlete appealed the decision of 20 November 2015 with the Court of Arbitration for Sport (CAS). She requested to annul the UAF decision, contended that in this case her right to be heard was violated and she asserted that the UAF and IAAF made procedural failures.
The IAAF and UAF argued that the Athlete was duly notified about the proceedings in this case and also plainly informed about the rendered decision and sanction imposed on her. They contended that the appeal was inadmissible and that CAS has no jurisdiction because the Athlete’s appeal was filed 11 months after the UAF decision was rendered.
The Sole Arbitrator establishes that the Athlete retrieved in late November 2015 from her ‘old’ e-mail account the UAF decision of 20 November 2015 and she filed her appeal with CAS in October 2016. Consequently the Sole Arbitrator concludes that the 45 day-deadline to file an appeal with CAS had long elapsed and that the Athlete’s appeal is inadmissible.
Therefore the Court of Arbitration for Sport decides on 1 June 2017:
1.) The Court of Arbitration for Sport has jurisdiction to decide the Appeal filed by the Appellant on 11 October 2016.
2.) The Appeal filed by Ms Tetiana Gamera on 11 October 2016 is dismissed.
3.) The costs of the arbitration, to be detemined by the CAS Court Office, shall be borne by Ms Tetiana Gamera.
4.) Ms Tetiana Gamera is ordered to pay CHF 3,000 (three thousand Swiss Francs) each to the International Association of Athletics Federations and the Ukrainian Athletic Federation for legal and other expenses incurred in connection with this arbitration.
