CAS 2018/O/5822 International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (RUSAF) & Mariya Ponomareva
- Doping (Athlete’s Biological Passport)
- Principle “tempus regit actum” and transitional provision providing otherwise
- CAS jurisdiction based on Rule 38.3 2016 IAAF Rules
- ABP as appropriate means of evidence
- Determination of the applicable sanction
1. The principle “tempus regit actum” provides – as a general rule – that the substantive aspects of a contract keep being governed by the law in force at the time when the contract was signed, while any claim should be brought and any dispute should be settled in accordance with the procedural rules in force at the time of the claim. However, the principle “tempus regit actum” does not apply if transitional provisions provide otherwise. The predominant principle with regard to transitional provisions in procedural rules is the one of legal certainty. The parties of legal proceedings must have confidence that procedural rules do not change during the course of the proceedings. A party who intends to initiate new proceedings must, therefore, be aware of the procedural rules that apply to these proceedings. This is why the principle “tempus regit actum” is considered to be more appropriate for defining the law to the merits and not for defining the law to the proceedings.
2. Where the athlete is an International-Level Athlete and the national federation is prevented from conducting a hearing in the athlete’s case within the deadline set by Rule 38.3 of the applicable IAAF Rules, the IAAF is permitted to refer the matter directly to a single arbitrator appointed by CAS, subject to an appeal to CAS in accordance with Rule 42 of the IAAF Rules. The CAS Rules applicable to the Appeal Arbitration Procedure shall apply.
3. The Athlete’s Biological Passport (ABP) is a reliable and accepted means of evidence to assist in establishing anti-doping rule violations. However, if the observed blood values of an athlete’s ABP deviate from normal values and if they cannot be explained pathologically, there is not automatically a high probability of doping. From the mere fact that an athlete cannot provide a credible explanation for the deviations in his or her ABP, it cannot automatically be concluded that an anti-doping rule violation has been committed. The deviations in the ABP are to be interpreted by experts called to put into the balance various hypothesis and circumstances that could explain the abnormality in the profile values. In other words, a distinction should be made between a mere “quantitative” evaluation and a “qualitative” assessment of the evidence. Even in the absence of a credible non-doping related explanation for the abnormal values and sequence in the athlete’s ABP, the abnormal values may not necessarily be explained by doping. In order to affirm a doping violation pursuant to the applicable rules, a CAS panel needs to be convinced to its comfortable satisfaction that the abnormal values are caused by a “doping scenario”, which does not necessarily derive from the quantitative information provided by the ABP, but requires a qualitative interpretation of the experts and possible further evidence.
4. Blood doping practices can only be committed intentionally. Blood manipulation by using prohibited substances or prohibited methods do not constitute Specified Substances within the meaning of the applicable IAAF Rules. Therefore the conditions for the application of a sanction of two years in case of an anti-doping rule violation are not met.
In March 2018 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Russian Athlete Mariya Pnomareva after an IAAF expert panel concluded unanimously in December 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 was based on assessment of blood samples, collected in the period from 15 December 2014 until 18 October 2017 reported in the Athlete’s Biological Passport (ABP).
Previously the Athlete submitted an explanation to the IAAF about the circumstances surrounding the collected samples. However after consideration the expert panel rejected the Athlete’s explanations in their second joint report, issued in February 2018.
After deliberations between the parties the case was referred to the Court of Arbitration for Sport (CAS) in July 2018 to be settled by a Sole Arbitrator first instance hearing panel. Although duly invited RusAF did not participate in these proceedings.
The Athlete denied the IAAF allegations and claimed that CAS has no jurisdiction. Further she argued - supported by expert witnesses - that there are convincing non-doping explanations for the reported abnormalities in her ABP. She provided detailed information regarding her medical diagnoses and description of the conditions which influence the Athlete’s system (and blood parameters) throughout many years.
The IAAF requested the Panel to impose a 4 year period of ineligibility on the Athlete and to disqualify her results from July 2015 until the date of the provisional suspension, i.e. 8 March 2018. The IAAF contended that the Athlete’s ABP profile constitutes clear evidenc that the Athlete has committed and anti-doping rule violation; her ABP shows multiple abnormalities and her explanations of these abnormalities in her ABP are not plausible and in any case inaccurate.
The Sole Arbitrator establishes that CAS has jurisdiction to adjudicate and decide on the present matter.
Considering the Parties submissions the main issues to be resolved by the Sole Arbitrator are the following:
- 1.) Did the Athlete violate Rule 32.2(b) of the 2015 IAAF Rules?
- a) The Athlete's ABP is an appropriate means of evidence which needs to be interpreted.
- b) Interpretation of the Athlete's ABP by IAAF's experts.
- c) The explanations and evidence submitted by the Athlete.
- d) Overall conclusion in respect of the Athlete's alleged violation of Rule 32.2(b) of the 2015 IAAF Rules
- 2.) If Rule 32.2(6) of the 2015 IAAF Rules has been violated, what sanction shall be imposed on the Athlete?
In order to affirm a doping violation under the Rules, the Sole Arbitrator needs to be convinced to his comfortable satisfaction that the abnormal values are caused by a "doping scenario", which does not necessarily derive from the quantitative information provided by the ABP, but requires a qualitative interpretation of the experts and possible further evidence.
Based on the evidence and subject to plausible explanations by the Athlete for the abnormal low HGB in Samples 13 and 19, the Sole Arbitrator is convinced that the Athlete used blood doping practices after the end of the competitive seasons 2016 and 2017.
In the absence of convincing explanations by the Athlete, the Sole Arbitrator is satisfied that the IAAF has established a "doping scenario" by using blood doping during the time period from 8 July 2015 (Sample 4) to 18 October 2017 (Sample 19).
The Sole Arbitrator reaches the conclusion that the explanations provided by the Athlete and her experts with regard to Samples 13 and 19 are unfounded and that it is unlikely that chronic blood loss caused the abnormalities visible in these samples of the ABP. The Sole Arbitrator remains convinced that there are no likely explanations for the identified abnormalities in Samples 13 and 19 of the ABP other than the doping scenario established by the IAAF.
Consequently, the Sole Arbitrator finds that the Athlete violated Rule 32.2(b) of the 2015 IAAF Rules by using prohibited substances or prohibited methods from 8 July 2015 (the eve of the European Championship U23) through to 18 October 2017 (after the end of the competitive season 2017), i.e. a period of more than two years.
The Sole Arbitrator deems that a period of ineligibility of 4 years is to be imposed on the Athlete from 8 March 2018 and disqualification of her results from 8 July 2015 until 8 March 2018.
Therefore the Court of Arbitration for Sport decides on 11 April 2019 that:
1.) The defence of lack of jurisdiction of Ms Mariya Ponomareva is dismissed and the jurisdiction of CAS is confirmed.
2.) The claim filed on 2 July 2018 by the International Association of Athletics Federations against the Russian Athletic Federation and Ms Mariya Ponomareva is upheld.
3.) A period of ineligibility of four years is imposed on Ms Mariya Ponomareva starting from 8 March 2018.
4.) All results of Ms Mariya Ponomareva from 8 July 2015 until 8 March 2018 are to be disqualified, including forfeiture of any titles, awards, medals, points and prize and appearance money.
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 Athletic Federation.
6.) Ms Mariya Ponomareva shall bear her own costs and is ordered to pay to the International Association of Athletics Federations the amount of CHF 4,000 (four thousand Swiss Francs) as a contribution towards the legal fees and other expenses incurred in connection with these arbitration proceedings.
7.) The Russian Athletic Federation shall bear its own costs.
8.) All other and fmther prayers or requests for relief are dismissed.
