CAS 2018/O/5675 International Association of Athletics Federations (IAAF) v. Russian Athletics Federation (RUSAF) & Ivan Yushkov
Related case:
IOC 2016 IOC vs Ivan Yushkov
August 15, 2016
- Athletics (shot put)
- Doping (dehydrochlormethyltestosterone; stanozolol; oxandrolone; use or attempted use of prohibited substances)
- Limits to the retroactive application of the statute of limitation
- 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 multiple violations can be considered as one single violation and aggravating circumstances
- Proportionality in relation to the length of the disqualification
1. According to Rule 49.1 of the 2016-2017 IAAF Competition Rules, the statute of limitations in Rule 47 is a procedural rule. Rule 49 explicitly regulates the intertemporal scope of application of the 10-year limitation period of the 2015 WADA Code. Accordingly, the 10-year limitation period may only be applied retroactively if the previously applicable statute of limitation has not already expired on 1 January 2015 (“Effective Date”). If in a specific case the limitation period (8 years) according to the previous statute of limitation, laid down in Rule 44 of the 2008 IAAF Competition Rules, expired 15 August 2016, the new limitation period can be applied retroactively.
2. 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.
3. 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.
4. 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.
5. 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.
6. In a case where all violations to the anti-doping rules have to be 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.
7. 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.
Mr Ivan Yushkov is a Russian Athlete competing the short put Athletics event event at the Beijing 2008 and the London 2012 Olympic Games.
In 2016 the International Olympic Committee (IOC) decided to perform further analyses on certain samples collected during the 2008 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2008. In May the IOC reported an anti-doping rule violation against the Athlete after his 2008 A and B samples tested positive for the prohibited substances Dehydrochlormethyltestosterone (Turinabol), Oxandrolone and Stanozolol.
Consequently the IOC Disciplinary Commission decided on 15 August 2016 to disqualify the Athlete from all the events in which he participated upon the occasion of the Beijing 2008 Olympic Games including his medals and diplomas.
In June 2016 the International Association of Athletics Federations reported an anti-doping rule violation against the Russian Athlete since his case had been referred from the IOC to the IAAF. After notification a provisional suspension was ordered in July 2016 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 to be settled by 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 circumstance and for the disqualification of the Athlete’s results from 15 August 2008 until 2 July 2016.
In his 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. He asserted that the positive findings in the retesting of the sample taken at the Beijing 2008 Olympic Games was due to the faulty detection method developed by Dr Rodchenkov. He 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 in the CAS hearing.
The IAAF contended that the Athlete tested positive for the prohibited substances Dehydrochlormethyltestosterone (Turinabol), Oxandrolone and Stanozolol as a result of the Athlete’s Beijing 2008 A and B samples. Further the IAAF contended that the Athlete had used several prohibited substances 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 3 official samples, provided by the Athlete, were reported as negative in ADAMS by the Moscow Laboratory while the evidence showed that these samples contained several 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 substances Turinabol, Stanozolol and Oxandrolone in his A and B samples provided on 15 August 2008 at the Beijing 2008 Olympic Games.
Based on the evidence, the Sole Arbitrator is also comfortably satisfied that the Athlete is guilty of having used multiple 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, Nandrolone and Oxandrolone during his preparation for this major event.
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 from 16 July 2012 until 2 July 2016.
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 Mr. Ivan Yushkov on 6 April 2018 is admissible and upheld.
2.) Mr. Ivan Yushkov committed anti-doping rule violations according to Rule 32.2(a) of the 2008 IAAF Competition Rules and to Rule 32.2(b) of the 2012-2013 IAAF Competition Rules.
3.) Mr. Ivan Yushkov is sanctioned with a four-year period of ineligibility starting on 2 July 2016.
4.) All competitive results obtained by Mr. Ivan Yushkov from 16 July 2012 to 2 July 2016 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 Court Office, shall be entirely borne by the Russian Athletics Federation (RUSAF).
6.) The Russian Athletics Federation (RUSAF) and Mr. Ivan Yushkov 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 incmTed in relation to the present proceedings.
7.) All other or further motions or prayers for relief are dismissed.
