CAS 2018/O/5713 International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (RUSAF) & Yuliya Kondakova
Related case:
CAS 2018_O_5713 IAAF vs RusAF & Yuliya Kondakova
February 1, 2019
- Athletics (hurdles)
- Doping (use or attempted use of a prohibited substance)
- Means of proof
- Reliability of each and every element of proof vs reliability of evidence as a whole
- Application of the fairness exception with regard to disqualification of results
- Aggravating circumstances
1. Facts related to an anti-doping rule violation (ADRV) may be established by any reliable means, including but not limited to admissions, evidence of third parties, witness statements, expert reports, documentary evidence, conclusions drawn from longitudinal profiling such as the Athlete Biological Passport and other and analytical information.
2. Circumstantial evidence might be compared to a rope comprised of several cords: one strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Therefore, it is not necessary that every element of proof on its own surmount the required standard of comfortable satisfaction, but the evidence as a whole must constitute reliable means for the determination on which an adjudicating body is comfortably satisfied that an athlete indeed committed an ADRV.
3. CAS panels have broad discretion in adjusting the disqualification period to the circumstances of the case. Some CAS panels, in individual cases, have previously considered that it would be unfair to disqualify all results since the doping found, even in the case of a doping scheme. Others have held that it was not appropriate to maintain results on the basis of fairness where the doping was severe, repeated and sophisticated. CAS panels have not infrequently applied the fairness exception and let results remain partly in force, in particular when (a) the disqualification period extends over many years and (b) there is no evidence that the athlete had committed violations over the whole period from the first violation to the commencement of the provisional suspension or ineligibility.
4. The fact that an athlete used prohibited substances in the lead-up to the most important competitions as part of a lengthy, sophisticated and concealed training scheme involving many others, and providing samples falsely reported as being clean and unofficial samples for washout testing are severe aggravating circumstances warranting an increase of the standard period of ineligibility.
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. Yuliya Kondakova is a Russian Athlete competing in the Women’s hurdle race athletics event at the London 2012 Olympic Games and the Moscow 2013 IAAF World Championships.
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 circumstance and for the disqualification of the Athlete’s results from 17 July 2012 until the date of the decision in this case.
The IAAF contended that the Athlete had used Dehydrochlormethyltestosterone (Turinabol) in the lead-up to the London 2012 Olympic Games and Methasterone in the lead-up to 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 1 official sample, provided by the Athlete, was reported as negative in ADAMS in 2012 by the Moscow Laboratory while the evidence showed that this sample contained Turinabol. Also 4 unofficial samples were listed in the Moscow Washout Schedules in 2013 containing Methasterone.
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 Rodchenkov. Sustained by expert witnesses, she pointed to various inconsistencies in this evidence.
In this case, having carefully considered all the evidence and submissions from the parties, the Sole Arbitrator finds himself comfortably satisfied that the Athlete committed the ADRVs alleged, largely because, after having heard the experts, he considers that the key documents relied upon against her are authentic and are sufficiently probative in the circumstances of this case.
The Sole Arbitrator holds that the Athlete's explanation regarding her testing and responsibility was wholly unconvincing. Her manner of denying any violation was, sadly, no more than to be expected in the circumstances of this case and she called no other factual evidence. The Sole Arbitrator concludes that the Athlete's violations are clearly established, despite her very extensive challenge to each and every separate element of proof against her.
Accordingly the Sole Arbitrator deems that the evidence as a whole constitutes reliable means for the determination on which he is comfortably satisfied that the Athlete indeed breached the IAAF Rules through using prohibited anabolic steroids in programs during the course of 2012 and 2013.
Considering the seriousness of the Athlete violations and the fact that 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. The Sole Arbitrator deems it fair and appropriate to disqualify the Athlete's results from 17 July 2012 until 16 July 2016.
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 against All Russia Athletics Federation and Yuliya Kondakova on 26 April 2018 is admissible and is partially upheld.
2.) Yuliya Kondakova is found guilty of anti-doping rule violations under Rule 32.2(b) of the IAAF Rules.
3.) Yuliya Kondakova is sanctioned with a period of ineligibility of 4 years starting from the date of this Award.
4.) All competitive results of Yuliya Kondakova from 17 July 2012 to 16 July 2016 inclusive are disqualified, with all resulting consequences (including forfeiture of medals, points, and prizes).
5.) The arbitration costs, to be determined and separately communicated by the CAS Court Office, shall be borne in their entirety by the Russian Athletic Federation.
6.) The Russian Athletic Federation and Yuliya Kondakova are jointly and severally ordered to pay to the International Association of Athletics Federations CHF 5,000 (five thousand Swiss Francs) as contribution towards its legal fees and expenses incurred in connection with this arbitration procedure
7.) All other and further prayers or requests for relief are dismissed.
