CAS 2020/A/6987 RudolfVerkhovykh v. Russian Anti-Doping Agency RUSADA
- Athletics (sprint)
- Doping (prohibited association)
- Methods of interpretation of legal/regulatory provisions
- Requirements of the prohibited association rule
- Form of the previous advice in writing set forth in the prohibited association rule
- Burden and standard of proof under the Russian Anti-
- Doping Rules (ADR) in relation to an anti-doping rule violation
- Invalid justification for a continued prohibited association between an athlete and a coach
- Appeal arbitration dispute decided ex aequo et bono
- Right to be heard
1. Under Swiss law, if the provision under review is clear and unambiguous, an authority applying it is bound to follow its literal meaning, provided it expresses its true meaning. Only if a text is not clear and if several interpretations are possible, must one determine its true scope by analysing its relation with other provisions (systematic interpretation), its legislative history (historic interpretation) and the spirit and intent of such provision (teleological interpretation). It is not for CAS panels to question the policy or intent of anti-doping rule makers, in particular given that the WADA Code emphasises that “when reviewing the facts and the law of a given case, all (…) adjudicating bodies should be aware of and respect the distinct nature of the anti-doping rules in the Code and the fact that those rules represent the consensus of a broad spectrum of stakeholders around the world with an interest in fair sport”.
2. It is unambiguous that for article 2.10 of the Russian ADR to be applied to an athlete, s/he must have been previously advised in writing by a relevant anti-doping agency of said athlete support person’s disqualifying status and of the potential consequence of a prohibited association and that said athlete can reasonably avoid the association.
3. The form of the written notice set forth in art. 2.10 of the Russian ADR is not specified. The model template contained in the WADA Guidelines is not mandatory to use and said Guidelines do not prohibit that such statement be prepared by an athlete upon specific oral instructions from an anti-doping organization.
4. According to article 3.1 of the Russian ADR, the RUSADA shall have the burden of establishing that an ADR violation has occurred. The standard of proof shall be whether the RUSADA has established an ADR violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made.
- Mr Rudolf Verkhovykh is a Russian track athlete participating in competitions organized, convened, authorized or recognized by RusAF.
- Mr. Vladimir Semenovich Kazarin is a Russian athletics coach, training short, middle and long-distance runners.
On 7 April 2017 the Court of Arbitration for Sport (CAS) decided to impose a lifetime period of ineligibility on the Coach Kazarin (CAS 2016/A/4480) for committing anti-doping rule violations: Possession, Trafficking, and Administration of multiple Prohibited Substances.
However the Athlete continued training unofficially with the Coach until April 2019. Previously on 30 October 2018 the Athlete had produced a written statement indicating that he was aware that he was prohibited to associate with the Coach.
In June 2019 RUSADA reported an anti-doping rule violation against the Athlete for Prohibited Association with the Coach. Consequently the RUSADA Disciplinary Anti-Doping Committee decided on 17 December 2019 to impose a 1 year period of ineligibility on the Athlete.
Hereafter in April 2020 the Athlete appealed the RUSADA Decision with CAS.
In this Appeal it is undisputed between the Parties that:
- (i) the Athlete was aware that the Coach had been banned from training athletes;
- (ii) the Athlete trained with the Coach after the Coach was banned by the CAS in 2017; and
- (iii) in October 2018 the Athlete had a meeting with a RUSADA official, during which the Athlete produced a written statement.
However, the following principal issues are disputed between the Parties:
- Is it necessary that an athlete has been previously advised in writing by an antidoping agency of the athlete support person's disqualifying status and the potential consequences of prohibited association before an athlete could be sanctioned for a violation of Article 2.10 of the ADR?
- If so, did the Athlete's written statement prepared on 30 October 2018 satisfy this requirement?
The Athlete denied he committed an anti-doping rule violation and requested compensation for sustained damages. He believed that the Coach could train him unofficially and he was unaware of the allegations against the Coach.
He argued that his written statement prepared by him on 30 October 2018 was not a valid written notice within the meaning of Article 2.10 of the ADR. He also asserted that he did not receive any written notice from RUSADA.
The Sole Arbitrator scrutinized the Prohibited Association Rule and concludes that, in order to establish a violation of Article 2.10 of the ADR applicable in this case, the Athlete ought to have first been advised in writing by an anti-doping organization with jurisdiction over the Athlete of the Coach's disqualifying status and the potential consequence of prohibited association therewith. Failing to do so, a violation cannot properly be established.
Further the Sole Arbitrator assessed the issue as to whether an advanced written notice was servered to the Athlete prior to establishing a violation of Article 2.10 of the ADR.
The Sole Arbitrator concludes that RUSADA established to the comfortable satisfaction of the Sole Arbitrator that the Athlete committed an anti-doping rule violation of Article 2.10 of the ADR. The Athlete had received a written notice under Article 2.10 of the ADR from RUSADA on 30 October 2018.
Furthermore, it is undisputed between the Parties that the Athlete nonetheless continued to associate with the Coach as the Athlete participated in training activities with the Coach on 15 November 2018 and 22 April 2019 in the Republic of Kyrgyzstan.
The Sole Arbitrator observes that the Athlete did not submit any evidence that he sustained damages due to the alleged misconduct by RUSADA. He did not substantiate in any manner the amount of damages, nor established a nexus between RUSADA’s alleged misconduct and any alleged moral damages or financial loss incurred by the Athlete.
Therefore the Court of Arbitration for Sport decides on 6 April 2021 that:
1.) The appeal filed on 15 April 2020, by Mr. Rudolf Verkovykh against the decision no. 22/2020 of 17 December 2019 issued by the Disciplinary Anti-Doping Committee of Russian Anti-Doping Agency, is dismissed.
2.) The decision no. 22/2020 of 17 December 2019 of the Disciplinary Anti-Doping Committee of Russian Anti-Doping Agency is upheld.
3.) The costs of this arbitration, to be determined by the CAS Court Office, shall be paid by Mr. Rudolf Verkovykh.
4.) Each Party shall bear their own costs incurred m connection with the present proceedings.
5.) All other motions or prayers for relief are dismissed.
