CAS 2018/0/5673 International Association of Athletics Federations (IAAF) v. Russian Athletics Federation (RUSAF) & Gulfiya Agafonova Khanafeeva
Related case:
IOC 2016 IOC vs Gulfiya Khanafeeva
March 15, 2017
- Athletics (hammer throw)
- Doping (dehydrochlormethyltestosterone; 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
- Proof of lack of intent
- Sanction in case two violations should be considered a single second violation
- 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. The mere protestation of an athlete that he or she never used a prohibited substance or a prohibited method is, by itself without sufficient weight to discharge the burden lying upon the athlete to prove lack of intent.
5. If the two ADRVs established in a specific case, i.e. a presence violation and a use violation of non-specified substances, would, on basis of the applicable rules, both entail a period of ineligibility of four years if they were a first violation and if it was not established that they were unintentional, the sanction following from the rule applicable according to the lex mitior principle is twice the period of ineligibility that would be applicable to the second ADRV if it were a first ADRV, i.e. eight years.
6. The principle of proportionality requires a panel to assess whether a sanction is appropriate to the violation committed in the case at stake, excessive sanctions being prohibited. 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.
Ms Gulfiya Khanafeeva is a Russian Athlete competing in the Women’s hammer throw event at the London 2012 Olympic Games.
Previously the Athlete had served a sanction of 2 years from July 2008 until April 2011 for Tampering in 2007.
In 2016 the International Olympic Committee (IOC) decided to perform further analyses on certain samples collected during the 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2012.
In December 2016 the IOC reported an anti-doping rule violation against the Athlete after her 2012 sample tested positive for the prohibited substance dehydrochlormethyltestosterone (Turinabol).
Consequently the IOC Disciplinary Commission decided on 15 March 2017 to disqualify the Athlete from all the events in which she participated upon the occasion of the London 2012 Olympic Games including her medals and diplomas.
In July 2017 the International Association of Athletics Federations reported an anti-doping rule violation against the Russian Athlete since her case had been referred from the IOC to the IAAF. After notification a provisional suspension was ordered in January 2017 and the Athlete failed to respond to the IAAF communcations.
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.
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 8 year period of ineligibility on the Athlete because of her second anti-doping rule violation and the disqualification of her results from July 2012 until January 2017.
In her previous submission to the IAAF the Athlete disputed the reliability of the filed evidence in this case provided by the IOC, the IAAF, Professor McLaren and Dr Rodchenkov. She asserted that the positive findings in the retesting of the sample taken at the 2012 London Olympic Games was due to the faulty detection method developed by Dr Rodchenkov. She further denied ever having taken part in a "scheme" or having been on a list of "protected" athletes.
Although having been formally and repeatedly invited to participate in the present proceedings, neither the RusAF nor the Athlete filed any written submissions nor did they participate at the CAS hearing.
The IAAF contended that the Athlete tested positive for the prohibited substance Dehydrochlormethyltestosterone (Turinabol) as a result of the reanalysis of the Athlete’s London 2012 samples. Further the IAAF contended that the Athlete had used Turinabol and Oxandrolone in the lead-up to the London 2012 Olympic Games based on the findings of the Second IP Report and the disclosed evidence (the London Washout Schedules). Here 5 official samples, 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 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 tested positive for the prohibited substance Turinabol in her A-sample provided on 6 August 2012 at the 2012 London Olympic Games. Based on the evidence, the Sole Arbitrator is also comfortably satisfied that the Athlete is guilty of having used Prohibited Substances in the lead up to the 2012 London Olympic Games. In particular, the Sole Arbitrator is comfortably satisfied that the Athlete used Oral Turinabol and Oxandrolone during her preparation for this major event.
Since the present violations are the Athlete’s second anti-doping rule violation, i.e. the Presence Violation and Use Violation, the Sole Arbitrator finds that the period of ineligibility shall be 8 years. Based on the principle of fairness the Sole Arbitrator deems it appropriate to disqualify the Athlete's results until 6 August 2014.
Therefore the Court of Arbitration for Sport decides on 31 January 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. Gulfiya Agafanova Khanafeeva on 6 April 2018 is admissible and upheld.
2.) Ms Gulfiya Agafanova Khanafeeva committed anti-doping rule violations under Rule 32.2(a) and to Rule 32.2(b) of the 2012-2013 IAAF Competition Rules.
3.) Ms Gulfiya Agafanova Khanafeeva is sanctioned with an eight-year period of ineligibility starting on 6 January 2017.
4.) All competitive results obtained by Ms. Gulfiya Agafanova Khanafeeva from 15 July 2012 until 6 August 2014 shall be disqualified, with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points, prizes and appearance money.
5.) The cost of this arbitration, to be determined and served upon the Parties by the CAS Court Office, shall be borne entirely by the Russian Athletics Federation (RUSAF).
6.) The Russian Athletics Federation (RUSAF) and Ms Gulfiya Agafanova Khanafeeva shall each bear their own costs and are jointly and severally ordered to pay to the International Association of Athletics Federations (IAAF) the amount of CHF 2'000 (two 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.
