CAS 2018_O_5672 IAAF vs RusAF & Anna Bulgakova

CAS 2018/O/5672 International Association of Athletics Federations (IAAF) v. Russian Athletics Federation (RUSAF) & Anna Bulgakov

  • Athletics (hammer throw)
  • Doping (use or attempted use of a prohibited substance)
  • Standard of proof with regard to the alleged doping scheme
  • Means of proof and weighting of the evidence
  • Reliability of evidence
  • Sanction in case multiple violations can be considered as one single violation and aggravating circumstances
  • Proportionality in relation to the length of the disqualification

1. A sports body is not a national or international law enforcement agency. Its investigatory powers are substantially more limited than the powers available to such bodies. Since the sports body cannot compel the provision of documents or testimony, it must place greater reliance on the consensual provision of information and evidence, and on evidence that is already in the public domain. The CAS panel’s assessment of the evidence must respect those limitations. In particular, it must not be premised on unrealistic expectations concerning the evidence that the sports body is able to obtain from reluctant or evasive witnesses and other sources. In view of the nature of the alleged doping scheme and the sports body’s limited investigatory powers, the sports body may properly invite the CAS panel to draw inferences from the established facts that seek to fill in gaps in the direct evidence. The CAS panel may accede to that invitation where it considers that the established facts reasonably support the drawing of the inferences. So long as the CAS panel is comfortably satisfied about the underlying factual basis for an inference that an athlete has committed a particular anti-doping rule violation (ADRV), it may conclude that the sports body has established an ADRV notwithstanding that it is not possible to reach that conclusion by direct evidence alone. At the same time, however, if the allegations asserted against the athlete are of the utmost seriousness, i.e. knowingly benefitting from a doping scheme and system covering up positive doping results and registering them as negative in ADAMS, it is incumbent on the sports body to adduce particularly cogent evidence of the athlete’s deliberate personal involvement in that wrongdoing. In particular, it is insufficient for the sports body merely to establish the existence of an overarching doping scheme to the comfortable satisfaction of the CAS panel. Instead, the sports body must go further and establish, in each individual case, that the individual athlete knowingly engaged in particular conduct that involved the commission of a specific and identifiable ADRV. In other words, the CAS panel must be comfortably satisfied that the athlete personally committed a specific violation of a specific provision of the applicable rules.

2. In considering whether a sports body has discharged its burden of proof to the requisite standard of proof, a CAS panel will consider any admissible “reliable” evidence adduced by the sports body. This includes any admissions by the athlete, any “credible testimony” by third parties and any “reliable” documentary evidence or scientific evidence. Ultimately, the CAS panel has the task of weighing the evidence adduced by the Parties in support of their respective allegations. If, in the CAS panel’s view, both sides’ evidence carries the same weight, the rules on the burden of proof must break the tie.

3. If the standard of proof that was applied for the weighting of evidence was “beyond reasonable doubt”, that evidence meets a high threshold, and, thus, can be considered as sufficiently reliable.

4. In a case where, if the violations at the centre of the proceedings had been assessed together with the ADRV for which an athlete has already accepted a period of ineligibility, all violations would have been considered, together, as one single first violation, Rule 40.7(d)(i) of the 2012-2013 IAAF Competition Rules provides that the sanction imposed shall be based on the violation that carries the more severe sanction. However, in accordance with Rule 40.6, ADRVs committed as part of a scheme, the use of multiple prohibited substances and such use on multiple occasions constitute aggravating circumstances that justify the imposition of a period of ineligibility greater than the standard sanction, up to a maximum of four years.

5. When assessing whether a sanction is excessive, a judge must review the type and scope of the proved rule-violation, the individual circumstances of the case, and the overall effect of the sanction on the offender. The question of fairness and proportionality in relation to 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 can also be taken into consideration.



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 Anna Bulgakova is a Russian Athlete competing in the Women’s hammer throw athletics event at the 2013 Moscow IAAF World Championships.

In 2017 the International Association of Athletics Federations (IAAF) decided to perform further analyses on certain samples collected during the 2013 Moscow IAAF World Championships.
As a result in March 2017 the IAAF reported an anti-doping rule violation against the Athlete after her 2013 samples tested positive for the prohibited substance Dehydrochloromethyltestosterone (Turinabol).

Consequently the Athlete accepted on 10 April 2017 a 2 year period of ineligibility including disqualification of her results for a period of 2 years from 16 August 2013.

In October 2017 the IAAF reported a new anti-doping rule violation 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 an additional 2 year period of ineligibility on the Athlete commencing on the date of the expiration of the ineligibility period accepted by the Athlete on 10 April 2017. The IAAF asserted that there are aggravating circumstances in this case and requested for the disqualification of the Athlete’s results from 30 June 2013 through to the commencement of her provisional suspension on 29 March 2017 to the extend not already disqualified by the Acceptance of sanction of 10 April 2017.

The IAAF contended that the Athlete had used Oxandrolone, Methasterone and 4-hydroxytesosterone in 2013 and 2014 based on the findings of the Second IP Report and the disclosed evidence (the Moscow Washout Schedules). Here 6 unofficial samples were listed in the Moscow Washout Schedules in 2013 containing the prohibited substances Methasterone and 4-hydroxytesosterone in the lead-up to the Moscow 2013 IAAF World Championships. Also 1 official sample, provided by the Athlete, was reported as negative in ADAMS in 2014 by the Moscow Laboratory while the evidence showed that this sample contained the prohibited substance Oxandrolone.

In her submissions the Athlete disputed the filed evidence in this case provided by the IAAF, Professor McLaren and Dr Rodchenko and pointed to various inconsistencies in the proceedings and evidence. She further denied ever having taken part in a "scheme" or having been on a list of "protected" athletes.

The Sole arbitrator concludes that the McLaren Evidence and the Washout Schedules are reliable elements that, taken together, form a body of concordant factors and evidence strong enough to establish an ADRV in this specific case.

The Sole Arbitrator is comfortably satisfied that the Athlete is guilty of having used Prohibited Substances in the lead-up to the 2013 IAAF World Championships in Moscow. In particular, the Sole Arbitrator is comfortably satisfied that the Athlete used Methasterone and 4-Hydroxytestosterone during her preparation for this major event as is shown by the results of the samples respectively provided on 30 June 2013, on 10, 17, 25 and 30 July as well as on 16 August 2013 as listed in the Moscow Washout Schedule.

The Sole Arbitrator is further comfortably satisfied that the Athlete is guilty of having used another Prohibited Substance, i.e. Oxandrolone, in or around 4 August 2014.
Based on the principle of fairness the Sole Arbitrator deems it not fair to disqualify the results achieved by the Athlete between 16 August 2015 and 29 March 2017.

Therefore the Court of Arbitration for Sport decides on 14 February 2019 that:

1.) The Request for Arbitration filed by the International Association of Athletics Federations (IAAF) with the Court of Arbitration for Sport (CAS) against the Russian Athletics Federation (RUSAF) and Ms. Anna Bulgakova on 6 April 2018 is admissible and partially upheld.

2.) Ms. Anna Bulgakova committed anti-doping rule violations according to Rule 32.2(b) of the 2012-2013 IAAF Competition Rules.

3.) Ms. Anna Bulgakova is sanctioned with a period of ineligibility of two (2) years starting on 29 March 2019, which shall be added to the period of ineligibility of two (2) years which is currently served by the Athlete since 29 March 2017.

4.) All competitive results obtained by Ms. Anna Bulgakova from 30 June 2013 through to 15 August 2015 shall be disqualified, with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points, prizes and appearance money.

5.) The costs of this arbitration, to be determined and served upon the Parties by the CAS CourtOffice, shall be borne by the Russian Athletics Federation (RUSAF).

6.) The Russian Athletics Federation (RUSAF) and Ms. Anna Bulgakova shall bear their own costs and are jointly and severally ordered to pay to the International Association of Athletics Federations (IAAF) the amount of CHF 3'000 (three thousand Swiss Francs) as a contribution towards the International Association of Athletics Federations' legal fees and expenses incurred in relation to the present proceedings.

7.) All other or further motions or prayers for relief are dismissed.

Original document

Parameters

Legal Source
CAS Ordinary Procedure Awards
Date
14 February 2019
Arbitrator
Radoux, Jacques
Original Source
Court of Arbitration for Sport (CAS)
Country
Russian Federation
Language
English
ADRV
Adverse Analytical Finding / presence
Use / attempted use
Legal Terms
Aggravating circumstances
Burdens and standards of proof
Case law / jurisprudence
Circumstantial evidence
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
Reanalysis
Doping classes
S1. Anabolic Agents
Substances
4-Hydroxytestosterone (4,17β-dihydroxyandrost-4-en-3-one)
Dehydrochlormethyltestosterone (4-chloro-17β-hydroxy-17α-methylandrosta-1,4-dien-3-one)
Methasterone (17β-hydroxy-2α,17α-dimethyl-5α-androstan-3-one)
Oxandrolone
Various
ADAMS
Disappearing positive methodology
Disqualified competition results
Doping culture
Falsification / fraud
McLaren reports
Tip-off / whistleblower
Washout schedule
Document type
Pdf file
Date generated
5 February 2019
Date of last modification
6 July 2023
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Country & language
  • Country
  • Language
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  • ADRV
  • Legal Terms
  • Sport/IFs
  • Other organisations
  • Laboratories
  • Analytical aspects
  • Doping classes
  • Substances
  • Medical terms
  • Various
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  • Document category
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