CAS 2018_O_5667 IAAF vs RusAF & Svetlana Shkolina

CAS 2018/0/5667 International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (RUSAF) & Svetlana Shkolina

Related case:

CAS 2019_A_6166 Svetlana Shkolina vs IAAF
April 6, 2021


  • Athletics (high jump)
  • Doping (use or attempted use of prohibited substances)
  • Standard of comfortable satisfaction
  • Means of proving “use” violations
  • Assessment of evidence
  • Reliability of a document and use as evidence
  • Aggravating circumstances
  • Fairness with regard to the disqualification of results

1. The test of comfortable satisfaction must take into account the circumstances of the case. Those circumstances include the paramount importance of fighting corruption of any kind in sport and also considering the nature and restricted powers of the investigation authorities of the governing bodies of sport as compared to national formal interrogation authorities. A CAS panel is allowed to consider the cumulative effect of circumstantial evidence. Therefore, even if single items of evidence may each be inadequate to establish a violation to the comfortable satisfaction of a hearing panel, considered together they may suffice. The gravity of the particular alleged wrongdoing is relevant to the application of the comfortable satisfaction standard in any given case. The comfortable satisfaction standard is a kind of sliding scale, based on the allegations at stake: the more serious the allegation and its consequences, the higher certainty (level of proof) the CAS panel would require to be ‘comfortably satisfied’.

2. “Use” violations may be proven by “any reliable means” including, but not limited to, admissions, witness testimony and documentary evidence. A “Use” violation may also be established through other analytical information which does not otherwise satisfy all the requirements to establish an anti-doping rule violation (ADRV) based on presence of a prohibited substance. It is not necessary that a violation be proven by a scientific test itself.

3. A sports body is not a national or international law enforcement agency, and its investigatory powers are more limited than the powers available to such bodies. When assessing the evidence available, a CAS panel shall take these limitations into consideration. It shall also consider that the absence of direct evidence is not necessarily an indication of innocence, but may equally be indicative that the wrongdoing has been effectively concealed. At the same time however, allegations that an athlete participated in a doping scheme are serious and it is not sufficient for the sports body merely to establish the existence of the doping scheme. Instead, it shall establish that the athlete himself or herself committed an ADRV. Furthermore, the seriousness of the allegations against the athlete require a high level of certainty of the athlete’s guilt to be comfortably satisfied that the athlete committed an ADRV.

4. Unless there is a valid reason to find that the content of a particular document is not reliable, it may be used as evidence on an ADRV.

5. In accordance with Rule 40.6 of the 2012-2013 IAAF Competition Rules, ADRVs committed as part of a scheme, the use of multiple prohibited substances and on multiple occasions, as well as the fact that the athlete is unable to persuade the adjudicating body to its comfortable satisfaction that s/he did not knowingly commit the ADRVs constitute aggravating circumstances that justify the imposition of a period of ineligibility greater than the standard sanction, up to a maximum of four years.

6. Rule 40.8 of the 2012-2013 IAAF Competition Rules does not explicitly contain a fairness exception. However, CAS panels have previously deemed that Rule 40.8 of the 2012-2013 IAAF Rules, or its equivalents, include a fairness exception 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. Fairness exception is an embodiment of the principle of proportionality. The sanction to be imposed for an ADRV must be proportional considering the length of the ineligibility period and the disqualification of results, together and alone. Indeed, although the main purpose of the disqualification of results is not to punish the transgressor, but rather to correct any unfair advantage and to remove any tainted performances from the record, having regard to the fact that the disqualification of results embraces the forfeiture of any titles, awards, medals, points, and prizes, as well as appearance money, disqualification may be considered equal to a retroactive ineligibility period and therefore a sanction. CAS panels have broad discretion in adjusting the disqualification period to the circumstances of the case.



On 16 July 2016, Professor Richard McLaren (the Independent Person or the IP) issued a first report on the allegations of systemic doping in Russia. Some of the key findings of the First IP Report were that:

1.) the Moscow Laboratory operated, for the protection of doped Russian athletes, within a state-dictated failsafe system, described in the First IP Report as the disappearing positive methodology (DPM) and

2.) the Ministry of Sport of the Russian Federation directed, controlled, and oversaw the manipulation of athletes' analytical results or sample swapping, with the active participation and assistance of the Russian Federal Security Service, the Center of Sports Preparation of National Teams of Russia, and both Moscow and Sochi Laboratories.

On 9 December 2016, the IP elaborated on the First IP Report and released a second report on the doping allegations in Russia, together with the First IP Report. The Second IP Report confirmed the key findings of the First IP Report and described in detail the DPM and the Washout Testing.

Within the context of the Second IP Report, the IP identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered. The IP made publicly available on the IP Evidence Disclosure Package (EDP) website the evidence of the involvement of the Identified Athletes. According to the IP and the IAAF, the evidence on the EDP was retrieved from the hard-drive of Dr Rodchenkov and, after the metadata of all the documents was examined, the documents were determined to have been made contemporaneously to the events.



Ms. Svetlana Shkolina is a Russian Athlete competing in the High Jump Athletics event at the London 2012 Olympic Games and the Moscow 2013 IAAF World Championships.

In November 2017 the IAAF reported multiple anti-doping rule violations against the Russian Athlete based on the findings of the First and Second IP Report and the disclosed evidence.
After deliberations between the parties the case was referred to the Court of Arbitration for Sport (CAS) in April 2018 for a Sole Arbitrator first instance hearing panel.

The IAAF requested the Panel to impose a 4 year period of ineligibility on the Athlete due to aggravating circumstances and for the disqualification of the Athlete’s results from July 2012 until the date of the decision in this case.

The IAAF contended that the Athlete had used anabolic steroids in the lead-up to the London 2012 Olympic Games and the Moscow 2013 IAAF World Championships based on the findings of the Second IP Report and the disclosed evidence (the London Washout Schedules & the Moscow Washout Schedules). Here 3 official samples (prior to London 2012) and 6 official samples (prior to Moscow 2013), provided by the Athlete, were reported as negative in ADAMS by the Moscow Laboratory while the evidence showed that these samples contained prohibited substances.

The Athlete denied the use of prohibited substances and argued that she was tested before without issues. The Athlete disputed the reliability of the filed evidence in this case provided by the IAAF, Professor McLaren and Dr Rodchenko and pointed to various inconsistencies in this evidence.

Considering all the Parties submissions the Sole Arbitrator notes that, the main issues to be resolved by are the following:

  • A.) Did the Athlete commit an anti-doping rule violation prior to the London Olympic Games in 2012, i.e. did she violate Rule 32.2(b) of the 2012-2013 IAAF Rules?
  • B.) Did the Athlete commit an anti-doping rule violation prior to the Moscow IAAF World Championships in 2013, i.e. did she violate Rule 32.2(b) of the 2012-2013 IAAF Rules?
  • C.) If either or both questions are answered in the affirmative, what is the appropriate sanction to be imposed on the Athlete?

The Sole Arbitrator notes that there is considerable evidence supporting the IAAF's position on the reliability of the London Washout Schedules and, conversely, on the unreliability of the ADAMS entries carried out by the Moscow Laboratory. After having duly considered the arguments put forward by each Party, the Sole Arbitrator finds that the entries concerning the Athlete in the London Washout Schedules shall be considered reliable and the respective ADAMS entries by the Moscow Laboratory inaccurate.

The Sole Arbitrator finds that the IAAF has established, to the comfortable satisfaction of the Sole Arbitrator, that the Athlete has committed an anti-doping rule violation in July 2012 prior to the London Olympic Games by using the prohibited substance Desoxymethyltestosterone (DMT).

The Sole Arbitrator determines that there are some facts and arguments that speak against the finding of an ADRV by the Athlete prior to the Moscow 2013 IAAF World Championships, including her denial. On the other hand, the evidence shows that there are other weighty factors that strongly support a finding of an ADRV.

Having carefully considered all of the evidence, facts, and arguments, the Sole Arbitrator is comfortably satisfied that the Athlete has used Methasterone in summer 2013 and thus committed an anti-doping rule violation under the Rules.

Considering the seriousness of the Athlete violations and the fact that many aggravating factors are relevant in this case, the Sole Arbitrator finds that a 4 year period of ineligibility is appropriate in relating to the degree and severity of the Athlete’s misbehaviour. Based on the principle of fairness the Sole Arbitrator deems it appropriate to disqualify the Athlete's results until 28 July 2015.

Therefore the Court of Arbitration for Sport decides on 1 February 2019 that:

1.) The Request for Arbitration filed by the International Association of Athletics Federations (IAAF) on 6 April 2018 is partially upheld.

2.) A period of ineligibility of four (4) years is imposed on Ms Svetlana Shkolina, starting from the date of this award.

3.) All competitive results of Ms Svetlana Shkolina from 16 July 2012 through to 28 July 2015 are disqualified, with all resulting consequences (including forfeiture of any titles, awards, medals, profits, prizes, and appearance money).

4.) 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 Athletic Federation.

5.) The Russian Athletic Federation and Ms Svetlana Shkolina are ordered to pay, jointly and severally, CHF 8,000.00 (eight 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 Shkolina shall bear their own legal fees and expenses.

6.) All other motions or prayers for relief are dismissed.

Original document

Parameters

Legal Source
CAS Ordinary Procedure Awards
Date
1 March 2019
Arbitrator
Manninen, Markus
Original Source
Court of Arbitration for Sport (CAS)
Country
Russian Federation
Language
English
ADRV
Use / attempted use
Legal Terms
Aggravating circumstances
Burdens and standards of proof
Case law / jurisprudence
Circumstantial evidence
Costs
Digital evidence / information
First instance case
Multiple violations
Period of ineligibility
Principle of fairness
Rules & regulations International Sports Federations
Sole Arbitrator
Sport/IFs
Athletics (WA) - World Athletics
Other organisations
International Association of Athletics Federations (IAAF)
RusAthletics - Russian Athletics Federation (RusAF)
Laboratories
Moscow, Russia: Antidoping Centre Moscow [*]
Analytical aspects
Pretesting
Doping classes
S1. Anabolic Agents
Substances
Desoxymethyltestosterone (17α-methyl-5α-androst-2-en-17β-ol)
Methasterone (17β-hydroxy-2α,17α-dimethyl-5α-androstan-3-one)
Various
ADAMS
Anti-Doping investigation
Disappearing positive methodology
Disqualified competition results
Doping culture
Falsification / fraud
McLaren reports
Schmid Commission
Tip-off / whistleblower
Washout schedule
Document type
Pdf file
Date generated
5 March 2019
Date of last modification
6 July 2023
Category
  • Legal Source
  • Education
  • Science
  • Statistics
  • History
Country & language
  • Country
  • Language
Other filters
  • ADRV
  • Legal Terms
  • Sport/IFs
  • Other organisations
  • Laboratories
  • Analytical aspects
  • Doping classes
  • Substances
  • Medical terms
  • Various
  • Version
  • Document category
  • Document type
Publication period
Origin