CAS 2017/O/5398 International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (RUSAF) & Anisya Kirdyapkina
- Athletics (race walking)
- Doping (Athlete Biological Passport)
- Timing of an objection to CAS jurisdiction
- Principle of tempus regit actum for procedural matters
- Applicable law to burden and standard of proof
- ABP as reliable and accepted means of evidence
- Obligation to establish a “doping scenario”
- Aggravating circumstances
- Assessment of the period of disqualification of results
- Fairness exception
1. The party who challenges the jurisdiction of CAS should do so before entering into the merits of the CAS proceedings. Once it has submitted its Answer and expressed itself on the merits of the case, it is deemed to have accepted the jurisdiction and is therefore no longer admitted to raise the defence of lack of jurisdiction.
2. 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.
3. While the burden of proof is – according to Swiss law – a question of substantive law, the standard of proof is a question of procedural law.
4. The Athlete Biological Passport (ABP) has been generally accepted as a reliable and accepted means of evidence to assist in establishing anti-doping rule violations. However, although the credibility of the ABP system as a whole is not to be mistrusted easily, this is not to say that no criticism on the ABP is permitted or that the reliability of the evidence provided by the ABP in a specific case cannot be reproached. The ABP system is to be presumed valid, unless convincing arguments are made that a specific element of the system does not operate satisfactorily.
5. In addition to the testing results, an anti-doping organization is required to establish a “doping scenario”. From the mere fact that an athlete cannot provide a credible explanation for the deviations in his or her ABP it cannot automatically be deduced that an anti-doping rule violation has been committed. Rather, the deviations in the ABP are to be interpreted by experts called to put into the balance various hypothesis that could explain the abnormality in the profile values. The adjudicating body needs to be convinced that the abnormal values are caused by a “doping scenario”, which does not necessarily derive from the quantitative information provided by the ABP, but rather from a qualitative interpretation of the experts and possible further evidence.
6. The fact that an athlete used prohibited substances or prohibited methods on multiple occasions amounts to a doping plan or scheme to be considered as an important aggravating factor in determining the appropriate period of ineligibility to be imposed on the athlete.
7. The main purpose of disqualification of results is not to punish the transgressor, but rather to correct any unfair advantage and remove any tainted performances from the record. In an ABP case which is not one regarding a specific “positive sample”, but is nevertheless one in which the athlete’s competitive results are subject to disqualification, a complicating factor in this respect is that an anti-doping rule violation established on the basis of an ABP does normally not determine when the violation was committed exactly, but rather that based on all the evidence available it must be concluded that a violation was committed during a certain period.
8. When assessing the period of disqualification of results, fairness requires to take into account the fact that an athlete has no responsibility in the delay and that there is no compelling excuse for commencing anti-doping proceedings more than three years after the last sample indicative of doping was provided.
In July 2017 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Russian Athlete Anisya Kirdyapkina after an IAAF expert panel concluded unanimously in June 2017 in their Joint Expert Opinion that the Athlete’s hematological profile “highly likely” showed that she used a prohibited substance or a prohibited method: the use of EPO or Blood doping.
This conclusion of the IAAF expert panel is based on assessement of blood samples, collected in the period from 15 August 2009 until 8 December 2016 reported in the Athlete’s Biological Passport (ABP).
Previously the Athlete submitted an explanation to the IAAF about the circumstances surrounding the collected samples. The Athlete indicated that her blood values could be explained by ovarian cysts, pregnancy and/or miscarriage. However after consideration the Expert Panel rejected the Athlete’s explanations in their Second and Third Joint Expert Opinions, issued in July 2017 and in October 2017.
After notification a provisional suspension was ordered. Because the Russian Athletics Federation (RusAF) was suspended by the IAAF the case was referred in November 2017 to the Court of Arbitration for Sport (CAS) for a first instance hearing panel. Although duly invited RusAF decided not to attend the hearing.
The IAAF asserted that, based on the opinion of the Expert Panel, the Athlete’s ABP profile constitutes clear evidence of blood doping in the period between 2009 and 2016 with aggravating circumstances and requested the Sole Arbitrator Panel to impose a 4 year period of ineligibility on the Athlete including disqualification of her results.
Considering the evidence in this case the Sole Arbitrator finds that the irregular blood values in the Athlete’s ABP between 25 February 2011 and 11 October 2013 cannot be explained by ovarian cysts, pregnancy or by any miscarriage as contended by the Athlete. The Sole arbitrator holds that all evidence on file points in the direction that blood doping/manipulation by the Athlete is the only remaining and - when assessed individually - also the only plausible and likely explanation for the abnormal blood values in the Athlete's ABP.
The Sole Arbitrator is comfortably satisfied by the qualitative assessment of the Athlete's ABP by the Expert Panel, and finds that the Athlete committed an anti-doping rule violation, i.e. the IAAF succeeded to establish that the abnormal values in the Athlete's ABP are caused by a "doping scenario".
Without evidence that the Athlete had used substances or methods after 11 October 2013 the Sole Arbitrator finds that fairness requires that the Athlete's results between 12 October 2013 and 10 October 2015 remain untouched.
Therefore the Court of Arbitration for Sport decides on 1 February 2019 that:
1.) The claim filed on 7 November 2017 by the International Association of Athletics Associations against the Russian Athletic Federation and Ms Anisya Kirdyapkina is partially upheld.
2.) A period of ineligibility of three years is imposed on Ms Anisya Kirdyapkina starting from 27 July 2017.
3.) All results of Ms Anisya Kirdyapkina since 25 February 2011 are disqualified through to 11 October 2013, including forfeiture of any titles, awards, medals, points and prize and appearance money obtained during this period.
4.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne in their entirety by the Russian Athletic Federation.
5.) The Russian Athletic Federation and Ms Anisya Kirdyapkina are ordered to pay, jointly and severally, CHF 3,000.00 (three thousand Swiss Francs) to the International Association of Athletics Federations as a contribution towards its legal fees and expenses. The Russian Athletic Federation and Ms Anisya Kirdyapkina shall bear their own legal fees and expenses.
6.) All other and further prayers or requests for relief are dismissed.
