CAS 2021/A/8012 Natalya Antyukh v. World Athletics (WA)
Related case:
CAS 2020_O_6759 World Athletics vs RusAF & Natalya Antyukh
April 7, 2021
- Athletics (sprint & hurdles)
- Doping (methasterone, boldenone, desoxymethyltestosterone, oxabolone, DHEA, 1-testosterone)
- Discretion of a CAS panel to exclude evidence under Article R57 para. 3 of the CAS Code
- Standard of proof
- Methods of establishing facts
- Assessment of circumstantial evidence
- Lex mitior
- Principle of fairness
1. In the appropriate circumstances, a CAS panel has the discretion to exclude evidence. It must be remembered, however, that such discretion should be exercised with restraint in order to preserve the de novo character of the CAS appeal proceedings and should be limited to those circumstances where the new material is adduced in an abusive way or with some measure of bad faith, for example, where the evidence is in hand at the first instance hearing but is withheld for strategic purposes and adduced for the first time on appeal.
2. The “comfortable satisfaction” standard is lower than the criminal standard of beyond reasonable doubt but higher than other civil standards such as the balance of probabilities. To reach this comfortable satisfaction, a CAS panel should have in mind the seriousness of allegation which is made. It follows that this standard of proof is a kind of sliding scale, based on the allegations at stake: the more serious the allegation and its consequences, the higher certainty (level of proof) the panel would require to be “comfortably satisfied”. It should be borne in mind, however, that, contrary to what is often asserted, the standard itself does not change; it is the required cogency of the evidence that changes on the basis that the more serious the allegations (a) the less likely that the alleged fact or event has occurred and (b) the more serious the consequences. The standard of proof, however, remains to the comfortable satisfaction of the panel bearing in mind the seriousness of the allegations.
3. Rule 33.3 of the IAAF 2013 Anti-Doping Regulations provides that facts related to anti-doping rule violations may be established by any reliable means. This rule is not a requirement that the evidence adduced be ‘reliable evidence’ (whatever that might mean). Rather, it is a rule as to the method or manner or form in which the facts that are necessary to sustain an allegation of an anti-doping rule violation (ADRV) may be established. The rule provides (in a non-exhaustive list) a number of examples of means of establishing facts which are characterised as ‘reliable’.
4. In case there is no direct evidence of use by an athlete, the CAS panel must assess all the circumstantial evidence separately and together and must have regard to what is sometimes called ‘the cumulative weight’ of the evidence. It is in the nature of circumstantial evidence that single items of evidence may each be capable of an innocent explanation but, taken together, establish guilt beyond reasonable doubt. In other words, there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion: but the whole taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.
5. The principle of lex mitior does not permit one to pick and choose between the most favourable individual provisions from different sets of rules; such would indeed offend against the principle of legality.
6. A rule is subject to a ‘general principle of fairness’ which provides a discretion on the part of a tribunal to modify the application of the rule where to apply it strictly would be unfair.
Ms. Natalya Antyukh is a Russian Athlete competing at the 2012 London Olympic Games and at the 2011 World Championships in Daegu. She retired from professional sport and competition in 2017.
In 2016, Professor Richard McLaren issued two reports about systemic doping in Russia. These reports identified a significant number of Russian athletes who were involved in, or benefitted from, the doping schemes and practices that he uncovered.
Based on the findings of the McLaren Reports the Athletics Integrity (AIU) on behalf on World Athletics reported in May 2019 anti-doping rule violations against the Athlete. In this matter the disclosed evidence (the Moscow Washout Schedules) listed 4 samples, provided by the Athlete, in which the presence had been established of the substances 1-Testosterone, Boldenone, Dehydrochlormethyltestosterone, Desoxymethyltestosterone, Methasterone and Oxabolone.
In December 2019 the Athlete's case was referred to the Court of Arbitration for Sport (CAS) for a first instance procedure and thereupon a 4 year period of ineligibility was imposed on the Athlete on 7 April 2021.
Hereafter in May 2021 the Athlete appealed the first instance decision with the CAS Appeals Division and requested the Panel to set aside the Appealed Decision.
The Athlete denied the use of prohibited substances, nor that she had provided unofficial samples, while she officially was tested before without issues. She asserted that World Athletics failed to discharge its burden on the evidence and that the alleged anti-doping rule violations were unproved.
Further she disputed the reliability of the filed evidence in this case provided by World Athletics, Professor McLaren and Dr Rodchenkov and pointed to various inconsistencies in this evidence.
The AIU contended that there are aggravating circumstances in this case because the Athlete was engaged in the washout testing program which was part of a doping plan or scheme. The Moscow Washout Schedules showed that in 2013 the Athlete had provided 4 unofficial samples and that she had used 6 different prohibited substances in a one month period.
After assessment of the evidence the Panel is comfortably satisfied that, during the period on or about 30 June 2013 to and including on or about 25 July 2013, the Athlete used the prohibited substances Methasterone, Boldenone, Desoxymethyltestosterone, Oxabolone, Prasterone (DHEA) and 1-testosterone.
The Panel agrees that there are aggravating circumstances in this case and that a period of 4 years is a proportionate sanction.
Therefore the Court of Arbitration for Sport decides on 13 June 2022 that:
- The appeal filed by Ms Natalia Antyukh on 21 May 2021 against the Award issued by the CAS Court Office on 7 April 2021 is partially upheld.
- Ms Natalia Antyukh is found to have committed an anti-doping rule violation under Rule 32.2 of the IAAF Competition Rules 2012-2013.
- Ms Natalia Antyukh is sanctioned with a period of ineligibility of four (4) years starting from (and including) 7 April 2021.
- All competitive results achieved by Ms Natalya Antyukh from 30 June 2013 through to and including 31 December 2015 are disqualified with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points and prize and appearance money.
- The costs, to be determined and served separately to the Parties by the CAS Court Office, shall be borne in the proportions 90% (ninety percent) by Ms Natalya Antyukh and 10% (ten percent) by World Athletics.
- Each Party shall bear its own costs and expenses incurred in connection with the present proceedings.
- All other or further requests for relief are hereby dismissed.
