- CAS 2008/A/1718 IAAF v. All Russia Athletic Federation & Olga Yegorova
- CAS 2008/A/1719 IAAF v. All Russia Athletic Federation & Svetlana Cherkasova
- CAS 2008/A/1720 IAAF v. All Russia Athletic Federation & Yuliya Fomenko
- CAS 2008/A/1721 IAAF v. All Russia Athletic Federation & Gulfiya Khanafeyeva
- CAS 2008/A/1722 IAAF v. All Russia Athletic Federation & Tatyana Tomashova
- CAS 2008/A/1723 IAAF v. All Russia Athletic Federation & Yelena Soboleva
- CAS 2008/A/1724 IAAF v. All Russia Athletic Federation & Daiya Pishchalnikova
CAS 2008/A/1718-1724 International Association of Athletics Federation (IAAF) v. All Russia Athletics Federation (ARAF) & Olga Yegorova, Svetlana Cherkasova, Yuliya Fomenko, Gulfiya Khanafeyeva, Tatyana Tomashova, Yelena Soboleva & Darya Pishchalnikova
- Athletics
- Doping (manipulation of samples)
- Applicable law
- CAS power of review
- Proof of tampering with the doping control process according to the applicable standard
- Establishment of an unbroken chain of custody
- Validity and reliability of the testing procedure conducted by a laboratory non-accredited by WADA
- Athlete’s right to be given a reasonable opportunity to observe the opening and testing of a B sample
- Determination of the applicable sanction
1. It follows from the clear wording of the World Anti-Doping Code (WADC) and from constant CAS jurisprudence that the WADC is not directly applicable to athletes. Furthermore, it follows that the associations have autonomy to regulate their athletes – subject to mandatory provisions of law – at their discretion. By issuing its anti-doping rules, the IAAF has exercised this discretion exhaustively and exclusively without any possibility that other regulations could apply unless there was a specific reference in the IAAF Rules.
2. Based on the clear wording of the IAAF Rules as well as on Art. R57 of the CAS Code, not only can a CAS panel review the facts and the law contained in the challenged decisions but it can as well replace those decisions if the panel finds that the facts were not correctly assessed or the law was not properly applied leading to an “erroneous” decision. The procedure before CAS is indeed a de novo appeal procedure, which means that if the appeal is admissible, the whole case is transferred to CAS for a complete rehearing with full devolution of power in favor of CAS. CAS is thus only limited by the requests of the parties (the so called “petita”).
3. Under IAAF Rules, the use or attempted use of a prohibited substance or prohibited method and tampering or attempting to tamper, with any part of the doping control process or its related procedures have to be established by the IAAF to the comfortable satisfaction of the panel, bearing in mind the seriousness of the allegation. In this respect, DNA analysis is a reliable evidentiary means. Circumstantial evidence of significant probative value can also support the inference of tampering which can be drawn from the DNA results. Motive is one of the items of circumstantial evidence which is often admitted to establish guilt. In this regard, the findings that several athletes had blood profiles indicative of the long term use of rh-EPO or other forms of blood doping does provide a motive for tampering with the out of competition samples, namely a need to disguise the use of prohibited substances. The lack of any remark by the DCOs clearly cannot be considered as proof that no tampering took place at the moment of the sample collection. In the context, the natural, if not irresistible inference, is that the athletes have somehow arranged to have the urine of third persons used in their out of competition testing.
4. An unbroken chain of custody can be established to the comfortable satisfaction of the panel bearing in mind the seriousness of the allegation by the sampling and transportation evidence, namely the documentation provided by the IAAF, the evidence, both written and oral of the DCOs and the members of IDTM in charge of the transportation of the samples, as well as the evidence of the competent laboratories.
5. A WADA-accredited laboratory benefits from the presumption of compliance with applicable procedure. On the contrary a non WADA-accredited cannot benefit from the presumption of proper application of the custodial procedures. However, the fact that a laboratory in charge of DNA testing procedures acts in criminal cases for the Swiss Confederation, that it is ISO 7025 accredited, and that the officers within the said laboratory know very well the measures to be taken in order to avoid any DNA contamination eliminate any doubts about the reliability of DNA testing procedures.
6. The athlete’s right to be given a reasonable opportunity to observe the opening and testing of a B sample is of sufficient importance that it needs to be enforced, even in situations where all of the other evidence available indicates that an athlete committed an anti-doping violation. However, a distinction must be made between the results management process applicable to the case of an anti-doping rule violation detected through an adverse analytical finding and one where there is no such finding. Where there is no adverse analytical finding the applicable results management process does not provide for the athlete’s right to request the analysis of the B sample.
7. The length of the sanction depends on the particular facts of the case. Based on the structure of the IAAF rules as they stood at the relevant time and the CAS jurisprudence, the trend for a first offense with tampering seems to be a two years period of ineligibility. Depending on the attitude of the athlete and the nature and complexity of the scheme set in place, a tribunal obviously may increase the sanction. The circumstances that justify an increase must be serious. In addition, there is an upper limit for an increase of the sanction. Contrary to what the wording of the provision might suggest, the upper limit for the length of a sanction for a “standard infraction” must not exceed the lower limit of those anti-doping violations the IAAF rules consider to be particularly serious, ie 4 years of ineligibility. This follows from the overall context of the IAAF provisions on ineligibility.
In March 2007, the IAAF started to investigate the possible manipulation of samples collected under its out of competition testing program in Russia. In particular, the IAAF decided to compare the DNA profiles of out of competition urine samples that had been collected from selected Russian athletes with the DNA profiles of “in competition” urine samples collected from the same athletes in conditions that could guarantee the origin of the samples.
As a result of these DNA analyses the IAAF reported in June 2008 anti-doping rule violations against the seven Russian Athletes for tampering with any part of the doping control process.
Consequently the Council of the All Russia Athletic Federation (ARAF) decided on 20 October 2008 to impose a 2 year period of ineligibility on these Athletes, staring on the date of the sample collection, i.e. between 7 April 2007 and 23 May 2007)
Hereafter in November 2008 the IAAF appealed the ARAF Decision of 20 October 2008 with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to annul the Appealed Decisions and to impose a more severe sanction.
The Athletes claimed that the ARAF did not produce sufficient evidence of anti-doping rule violations. They blamed ARAF for having relied exclusively on the allegations of the IAAF without conducting its own investigation in order to determine what really had happened with the samples and to determine whether the athletes were guilty of an anti-doping rule violation. They argued that no evidence existed as to any tampering attempt from the Athletes.
In this case the Panel assessed and addressed the evidence and the submissions of the parties regarding:
- Analystical results;
- Reliability of the DNA analysis;
- Supporting circumstantial evidence;
- Chain of custody of the samples;
- Validity and reliability of the testeing procedures; and
- Testing of B samples
The Tribunal deems that the anti-doping violations alleged against each of the Athletes have been established to its comfortable satisfaction, bearing in mind the seriousness of the allegation.
Therefore the Court of Arbitration for Sport decides on 18 November 2009:
1.) The appeals filed by The International Association of Athletics Federation are partially upheld.
2.) The Decisions of the ARAF Council dated 20 October 2008 regarding the Athletes Olga Yegorova, Svetlana Cherkasova, Yuliya Fomenko, Gulfiya Khanafeyeva, Tatyana Tomashova, Yelena Soboleva and Darya Pishchalnikova, are set aside.
3.) The Athletes Olga Yegorova, Svetlana Cherkasova, Yuliya Fomenko, Gulfiya Khanafeyeva, Tatyana Tomashova, Yelena Soboleva and Darya Pishchalnikova are sanctioned with a suspension of two years and nine months.
- a.) For Svetlana Cherkasova, Yuliya Fomenko, Gulfiya Khanafeyeva, Tatyana Tomashova, Yelena Soboleva and Darya Pishchalnikova the period of ineligibility shall start on 3 September 2008. However, credit is given for the period of ineligibility already served because of the provisional suspension dated 31 July 2008. The period of ineligibility, therefore, expires on 30 April 2011.
- b.) For Olga Yegorova the period of ineligibility shall start on 20 October 2008. However, credit is given for the period of ineligibility already served because of the provisional suspension dated 31 July 2008. The period of ineligibility, therefore, expires on 30 April 2011.
4.) All competitive results achieved by the Athletes since the out of competition testing are annulled, namely:
- a.) All competitive results achieved by Olga Yegorova since 7 April 2007
- b.) All competitive results achieved by Svetlana Cherkasova since 26 April 2007
- c.) All competitive results achieved by Yuliya Fomenko since 27 April 2007
- d.) All competitive results achieved by Gulfiya Khanafeyeva since 9 May 2007
- e.) All competitive results achieved by Tatyana Tomashova since 23 May 2007
- f.) All competitive results achieved by Yelena Soboleva since 26 April 2007
- g.) All competitive results achieved by Darya Pishchalnikova since 10 April 2007
5.) All other motions or prayers for relief are dismissed.
(…).
