CAS 2020/A/7294 Aleksandr Shustov v. World Athletics & Russian Athletics Federation (RusAF)
CAS 2019_O_6156 IAAF vs RusAF & Aleksandr Shustov
June 5, 2020
On 16 July 2016, Professor Richard McLaren (the Independent Person or the IP) issued a first report on the allegations of systemic doping in Russia. Some of the key findings of the First IP Report were that:
- the Moscow Laboratory operated, for the protection of doped Russian athletes, within a state-dictated failsafe system, described in the First IP Report as the disappearing positive methodology (DPM) and
- the Ministry of Sport of the Russian Federation directed, controlled, and oversaw the manipulation of athletes' analytical results or sample swapping, with the active participation and assistance of the Russian Federal Security Service, the Center of Sports Preparation of National Teams of Russia, and both Moscow and Sochi Laboratories.
On 9 December 2016, the IP elaborated on the First IP Report and released a second report on the doping allegations in Russia, together with the First IP Report. The Second IP Report confirmed the key findings of the First IP Report and described in detail the DPM and the Washout Testing.
Within the context of the Second IP Report, the IP identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered. The IP made publicly available on the IP Evidence Disclosure Package (EDP) website the evidence of the involvement of the Identified Athletes. According to the IP and the IAAF, the evidence on the EDP was retrieved from the hard-drive of Dr Rodchenkov and, after the metadata of all the documents was examined, the documents were determined to have been made contemporaneously to the events.
Mr. Aleksandr Shustov is a Russian high jumper competing in the Moscow 2013 IAAF World Championships.
In November 2017 the International Association of Athletics Federations (IAAF) - now: World Athletics - reported an anti-doping rule violation against the Russian Athlete based on the findings of the First and Second IP Report and the disclosed evidence.
After deliberations between the parties the case was referred to the Court of Arbitration for Sport (CAS) in February 2019 for a Sole Arbitrator first instance hearing panel (CAS 2019/O/6156).
The Sole Arbitrator concluded that the Athlete is present in the Moscow Washout Schedules in respect of the 5 samples listed as belonging to the Athlete. Here the Athlete’s presence in the Moscow Washout Schedules are strong indication that the Athlete used the prohibited substances Methandrostenolone (Metandienone) and Methasterone in 2013 as corroborated by the evidence.
Accordingly the Sole Arbitrator decided on 5 June 2020 to impose a 4 year period of ineligibility on the Athlete including disqualification of his results from 8 July 2013 until 7 July 2017.
in July 2020 the Athlete appealed the CAS First Instance Decision of 5 June 2020 (CAS 2019/O/6156) with the CAS Appeal Arbitration Division. He requested the Panel to annul the Appealed Decision and not to impose a period of ineligibility, or in the alternative to impose a reduced sanction.
The Athlete denied the use of prohibited substances and disputed the reliability of the filed evidence in this case provided by the World Athletics (IAAF), Professor McLaren and Dr Rodchenkov. Sustained by expert witnesses, he pointed to various inconsistencies in this evidence.
World Athletics contended that the Athlete (like all the other athletes on the Moscow Washout Schedules) manifestly used multiple prohibited substances in the lead-up to the Moscow World Championships. In addition, the Athlete was subject to a sophisticated protection scheme, involving washout testing to avoid detection at the event, as well as urine swapping when it ultimately transpired that his sample was positive.
Further World Athletics asserted that the Sole Arbitrator was absolutely correct to find that the Athlete had committed anti-doping rule violations and to impose a four-year period of ineligibility on him.
Despite being duly invited to do so, RusAF did not participate in the present appeal arbitration proceedings. It did not file any written briefs or prayers for relief and did not attend the hearing.
The Panel assessed the following isues in this case:
1. Did the Athlete violate Rule 32.2(b) IAAF Rules?
- The credibility of Dr Rodchenkov' s testimony
- The authenticity and reliability of the Moscow Washout Schedules
- The authenticity and reliability of the email dated 2 August 2013 related to the official 31 July 2013 sample
- Evidence of the official Sample 5 collected at the Moscow World Championships being swapped
- Marks and scratches
- Specific gravity
- Conclusion with respect to swapping of Sample 5
- Overall conclusion with respect to the alleged violation of Rule 32.2(b) IAAF Rules
2. What are the consequences of a violation of Rule 32.2(b) IAAF Rules?
The Panel finds that the evidential strands presented by World Athletics, taken individually, is sufficiently reliable. Taken together, the evidence is particularly forceful because the several individual pieces of (indirect) evidence mutually support each other and thereby make the overall body of evidence against the Athlete stronger.
All the evidence, particularly when taken together, leads the Panel to the clear conclusion that it is satisfied to its comfortable satisfaction that the Athlete used prohibited substances, more specifically Methasterone, Oxandrolone and Methandrostenolone in the period between 8 July and 17 August 2013 in the lead-up to the Moscow World Championships, thereby violating Rule 32.2(b) IAAF Rules.
Therefore the Court of Arbitration for Sport decides on 23 November 2021:
- The appeal filed on 20 July 2020 by Aleksandr Shustov against the decision issued on 5 June 2020 by the Court of Arbitration for Sport is dismissed.
- The decision issued on 5 June 2020 by the Court of Arbitration for Sport is confirmed.
- The costs of the arbitration, to be determined and served on the Parties by the CAS Court Office, shall be borne by Aleksandr Shustov.
- The Athlete shall bear his own costs and pay a contribution in the amount of CHF 2,000 (two thousand Swiss Francs) towards World Athletics' legal fees and other expenses
incurred in connection with the present appeal arbitration proceedings.
- All other and further claims or prayers for relief are dismissed.