CAS 2018/O/5712 International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (RUSAF) & Ms. Ekaterina Galitskaia
Related case:
CAS 2019_A_6167 Ekaterina Galitskaia vs IAAF
April 6, 2021
- Athletics (hurdle race)
- Doping (use or attempted use of prohibited substances)
- Principle of tempus regit actum for procedural matters
- Standard of proof
- Means of proof
- Purpose and reliability of a washout schedule
- Aggravating circumstances
- Proportionality of the sanction
- Fairness exemption with regard to disqualification of results
1. Pursuant to the legal principle of tempus regit actum, procedural matters are governed by the regulations in force at the time when the proceedings were initiated.
2. The “comfortable satisfaction” standard of proof has been the normal CAS standard in many anti-doping cases even prior to the WADA Code. The test of comfortable satisfaction must take into account the circumstances of the case, which 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 compared to national formal interrogation authorities. The gravity of the particular alleged wrongdoing is relevant to the application of the standard in any given case. However, the standard of proof is not a variable one. The standard remains constant, but inherent within that immutable standard is a requirement that the more serious the allegation, the more cogent the supporting evidence must be in order for the allegation to be found proven.
3. An anti-doping rule violation (ADRV) can be proven by “any reliable means” including, but not limited to evidence of third persons, witness testimony, expert reports and documentary. In addition, an ADRV may be established by reference to “other analytical information”.
4. The purpose of a washout schedule is to monitor athletes using prohibited substances to keep track of the athletes who were tested. On this background, an athlete’s presence on a washout schedule is a strong indication that the athlete used a prohibited substance. However, in order to come to the conclusion that an athlete committed an ADRV, the mere fact that the athlete appears on a washout schedule must be supported by other, different and external elements pointing in the same direction. Whether there is sufficient evidence to establish that an athlete committed an ADRV must be considered individually.
5. The fact that the name of an athlete is present on washout schedules and that s/he used multiple prohibited substances on more than one occasion are aggravating circumstances justifying a period of ineligibility greater than the standard period of two years for a first violation.
6. The WADA Code has been drafted to reflect the principle of proportionality, thereby relieving the need for the adjudicating body to apply this principle. In other words, the principle of proportionality is “built into” the WADA Code and the rules of the international federation implementing it. It follows, therefore, that the adjudicating body cannot consider the application of the principle of proportionality.
7. It is not appropriate to maintain results on the basis of fairness where the doping is severe, repeated and sophisticated. However, there is an overriding requirement of fairness in interpreting and assessing sanctions under the IAAF Rules. Therefore, even if there is no mention of a fairness exemption in the substantive rules applicable to a specific case, this principle applies in order to avoid disproportional disqualification of results.
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. Yekaterina Viktorovna Galitskaya is a Russian Athlete competing in the Women’s hurdle race athletics event at the London 2012 Olympic Games.
In November 2017 the IAAF reported an 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 a 4 year period of ineligibility on the Athlete due to aggravating circumstances and for the disqualification of the Athlete’s results from 15 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 in 2013 based on the findings of the Second IP Report and the disclosed evidence (the London Washout Schedules and the Moscow Washout Schedules). Here 2 official samples, provided by the Athlete, were reported as negative in ADAMS in 2012 by the Moscow Laboratory while the evidence showed that these samples contained prohibited substances. Also 4 unofficial samples were listed in the Moscow Washout Schedules in 2013 containing prohibited substances.
The Athlete denied the use of prohibited substances and disputed the reliability of the filed evidence in this case provided by the IAAF, Professor McLaren and Dr Rodchenkov. Sustained by expert witnesses, she pointed to various inconsistencies in this evidence.
Considering the Athlete’s allegations the Sole Arbitrator finds that the Athlete’s Due Process Right has not been violated as a result of the McLaren Reports and are not relevant in any event.
The Sole Arbitrator concludes that the Athlete is present on the London Washout Schedule in respect of the 2 samples collected in July 2012 and present on the Moscow Washout Schedule in respect of the 4 samples listed as belonging to the Athlete. Here the Athlete’s presence on the London and Moscow Washout Schedules are strong indications that the Athlete used the prohibited substance desoxymethyltestosterone in 2012 and the substances methasterone, trenbolone, 1-testosterone, boldenone, oxabolone and norandrosterone in 2013 as corroborated by the evidence.
The Sole Arbitrator holds that he has not been presented with any theory or alternative explanation for the Athlete's presence on the London and Moscow Washout Schedules, and it is difficult to conceive of any plausible innocent explanation for the Athlete's presence on these Washout Schedules.
Therefore, the Sole Arbitrator is willing to accept that the Athlete was one of the protected athletes who featured on the London Washout Schedules and whose positive samples in the lead-up to the London 2012 Olympic Games were automatically reported negative in ADAMS without the need of a specific SAVE email. Further the Sole Arbitrator is willing to accept that the Athlete's samples in the Moscow Washout Schedules were collected "under the table" in unofficial containers and this could not have been done without the knowledge of the Athlete.
Accordingly the Sole Arbitrator finds that the IAAF has proven to his comfortable satisfaction that the Athlete violated the IAAF Rules through the use of multiple prohibited substances on multiple occasions.
Considering the seriousness of the Athlete's 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 severtity of the Athlete’s misbehaviour. Based on the principle of fairness the Sole Arbitrator deems it appropriate to disqualify the Athlete's results from 15 July 2012 until 31 December 2014.
Therefore the Court of Arbitration for Sport decides on 1 February 2019 that:
1.) The request for arbitration filed by the International Association of Athletic Federations (IAAF) on 26 April 2018 against the Russian Athletics Federation and Ms. Ekaterina Galitskaia is partially upheld.
2.) Ms. Ekaterina Galitskaia has violated Rule 32.2(b) of the 2012-2013 IAAF Rules.
3.) A period of ineligibility of four (4) years is imposed on Ms. Ekaterina Galitskaia starting on the date of this Award.
4.) All results achieved by Ms. Ekaterina Galitskaia from 15 July 2012 until 31 December 2014 are disqualified, including forfeiture of any titles, awards, medals, points and prize and appearance money obtained during this period.
5.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne entirely by the Russian Athletics Federation.
6.) The Russian Athletics Federation and Ms. Ekaterina Galitskaia shall bear their own costs and are ordered to pay, jointly and severally, to the International Association of Athletics Federations the amount of CHF 7,500 (seven thousand five hundred Swiss Francs) as a contribution towards the legal fees and other expenses incurred in connection with these arbitration proceedings.
7.) All other and further prayers or request for relief are dismissed.
