CAS 2011/A/2678 International Association of Athletics Federations (IAAF) v. Real Federación Española de Atletismo (RFEA) & Francisco Fernández Peláez
- Athletics (race walking)
- Doping (substantial assistance)
- Admissibility of the appeal (validity of the extensions of the deadline to appeal)
- Power of review of an IF regarding decisions taken at national level in doping cases
- Condition to benefit from a reduction of the sanction based on Substantial Assistance
- Scope of the factors considered in assessing Substantial Assistance
- Starting date of the sanction
1. According to Article 42.13 of the IAAF Rules, an appellant shall have forty-five (45) days in which to file his statement of appeal with CAS starting from the date of communication of the written reasons of the decision to be appealed. The IAAF Rules do not require a particular justification for extending the deadline to file an appeal. However, it cannot be contested that administrative efficiency, and in particular the desirability for any International Federation (IF), to have all the elements in its possession in order to take a reasoned decision on whether to appeal, are sufficient grounds to warrant a postponement of the deadlines to appeal a decision rendered by a national federation until such time as the IF has been sufficiently informed on the meaning, nature, and scope of the national federation’s decision.
2. It is fundamental that decisions taken at a national level in doping cases, particularly regarding the imposition of sanctions, be subject to the review of the relevant international sporting federation. The power conferred to the international federation aims, inter alia, at maintaining the integrity of international competitions by preventing national federations from not imposing any sanction at all on an athlete or imposing a less severe sanction than justified merely in order to allow the athlete to compete at international level. In this respect, a decision regarding an exception for Substantial Assistance must, in the last instance, remain under the control of the entity charged with enforcing the corresponding anti-doping rules, or to a body appointed by that entity. Criminal law provisions concerning confidentiality cannot justify non-compliance with the relevant IF provisions in order to obtain a reduction in the ineligibility period pursuant to the IF provisions.
3. In order to benefit from a reduction of the period of ineligibility under Article 40.5(c) of the IAAF Rules, it must be established that an athlete has provided Substantial Assistance to the IAAF, his/her National Federation, an Anti-Doping Organization, criminal authority or professional disciplinary body, resulting in the discovery or establishment of an anti-doping rule violation by a third party, or in the discovery or establishment of a criminal offence or of a breach of professional rules by a third party. A simple indication of cooperation, which could hypothetically result in the discovery of a criminal offense, is not sufficient for the Assistance to be Substantial.
4. A commentary of a legal provision cannot replace the substance of the provision itself. In this respect, considering that the sine qua non condition that the assistance result in discovering or establishing doping or criminal offenses or a violation of professional rules by third parties must first be satisfied, the factors set forth in the commentary of the WADA Code can only be taken into account in assessing the importance of the Substantial Assistance in order to determine the extent of the reduction of the ineligibility period in each particular case.
5. The provisions regarding substantial delays do not provide an automatic right to start the period of Ineligibility at an earlier date that stated, but a discretionary power to appreciate whether, taking into consideration the circumstances of the case, the ineligibility period should start earlier.
In November 2009, the Spanish Guardia Civil carried out a number of police raids in locations across Spain that targeted an alleged doping ring involving doctors, pharmacists and athletes. This police operation, called Operación Grial, led to the arrest of 11 individuals, including 3 cyclists. The activities of the alleged doping ring included the distribution of EPO, growth hormones and masking agents.
The home of the Athlete Francisco Fernández was one of the locations raided by the Civil Guard, where EPO and other performance-enhancing drugs were reportedly found. The Athlete admitted possession of prohibited substances, testified about his involvement in this doping network and cooperated with the Spanish judicial authorities and the police.
Initially on 24 February 2010 the Committee on Sports Discipline of the Royal Spanish Athletics Federation (RFEA) decided to impose a sanction of 2 years on the Athlete. However following a number of proceedings and appeals at national level the RFEA Committee on Sports Discipline decided on 17 May 2011 to impose a reduced 1 year period of ineligibility on the Athlete.
Between April 2010 and December 2011 the International Association of Athletics Federations (IAAF) was impeded in its attempts to obtain relevant information from the RFEA. It repeatedly received no answers from the RFEA or received information very late. As a result the IAAF had to extend the deadline to file an appeal, in order for its rights of appeal to remain unaffected.
Ultimately in December 2011 the IAAF appealed the RFEA Decision of 17 May 2011 with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.
The Sole arbitrator assessed and addressed the following issues raised by the parties:
- Applicability of Spanish Law within the RFEA Decision
- Violation of the Agreement by the RFEA
- Clash between Disciplinary Proceedings and Criminal Proceedings
- Existence of the Anti-Doping Rule Violation
- Fulfilment of the Conditions to Benefit from a Reduction of the Sanction under IAAF Rules
- Start of the Ineligibility Period
Accordingly the Sole Arbitrator determines that:
- The RFEA disregarded the IAAF Rules and violated its obligations as a member of the IAAF.
- The RFEA deliberately violated the terms of the Parties signed Agreement.
- The decision regarding the exception for Substantial Assistance must, in the last instance, remain under the control of the entity charged with enforcing the corresponding anti-doping rules, or to a body appointed by that entity.
- It is undisputed, and admitted, that the Athlete committed an anti-doping rule violation under the IAAF rules.
- Although the Athlete provided at least some assistance to the authorities, this cannot qualify as Substantial within the meaning of Article 40.5(c) of the IAAF Rules.
- It was disproportionate to reduce the period of ineligibility in this case by one half of the usually applicable sanction of 2 years.
- The period of ineligibility starts on the date of this award, lees the period of provisional suspension and/or ineligibility that the Athlete has already served.
Therefore the Court of Arbitration for Sport decides on 17 April 2011:
1.) The appeal filed by the International Association of Athletics Federations on 20 December 2011 against the decision of the Real Federación Española de Atletismo Committee on Sports Discipline of May 17, 2011 is admissible.
2.) The appeal filed by the International Association of Athletics Federations is upheld.
3.) The decision of the Real Federación Española de Atletismo Committee on Sports Discipline of May 17, 2011 is set aside.
4.) Mr. Francisco Fernández Peláez is declared ineligible for a period of two years, commencing on March 14, 2012, less the period of provisional suspension and/or ineligibility that he has already served namely one year, three months and four days.
(…)
7.) All other requests for relief are rejected.
