CAS 2021/ADD/14 International Biathlon Union (IBU) v. Ekaterina Glazyrina
- Biathlon
- Doping (metenolone)
- CAS jurisdiction
- CAS ADD jurisdiction pursuant to Article A2 CAS ADD Rules and parties’ due process rights
- Authority and independence of the CAS ADD
- CAS ADD and disciplinary committees of sports governing bodies
- Provisional measures and Provisional Suspension
- Provisional Suspension during investigation
- Request for lifting of Provisional Suspension and athlete conduct
- Standard of proof of comfortable satisfaction
- Proportionality of sanctions
1. Jurisdiction, by its definition, is the official power to deliver legal decisions and judgements. A valid arbitration agreement is the basis of arbitration procedures and jurisdiction of the arbitral tribunal in general and the legal basis for the jurisdiction and procedure before the CAS. Since the seat of the CAS is in Lausanne, Switzerland, Swiss arbitration law is the lex arbitri for proceedings governed by the CAS and the Swiss Federal Statute on Private International Law (“PILA”) and its Chapter 12 applies. For the arbitration agreement to be valid, pursuant to Article 178 of the PILA, it must be made in writing by telegram, telex, telecopier or any other means of communication which permits it to be evidenced by a text. According to the PILA, the written form of the arbitration agreement is required for the jurisdiction of arbitral tribunals with seat in Switzerland.
2. According to Article A2 of the CAS ADD Rules, the CAS ADD has jurisdiction to rule as a first-instance authority on behalf of any sports entity which has formally delegated its powers to the CAS ADD to conduct anti-doping proceedings and impose applicable sanctions. In order for the CAS ADD to be responsible for first-instance adjudication of alleged anti-doping rule violations, including any sanctions, arising under the respective sports entity’s Anti-Doping Rules, a sports entity is required to sign an agreement with the CAS in accordance with Article A2 CAS ADD Rules. The consequence of the agreement between the CAS and the sports entity is the formal delegation of adjudicatory powers for the determination of Anti-Doping Rule violations (ADRVs) and the resulting sanctions to the CAS ADD in accordance with Article A2 CAS ADD Rules. Arguments related to the due process rights which should be safeguarded in an arbitration procedure governed by the CAS ADD Rules concern the quality of the procedure, but do not affect the jurisdiction of the CAS ADD.
3. Given that the CAS ADD is generally authorized by the delegation of a sports entity, it follows that in order to evaluate the constitution and the composition of the CAS ADD and the rights the parties can exercise, the CAS ADD constitution and its composition should be compared to the former first instance authority.
4. While the disciplinary committees of sports governing bodies, acting as first instance authority, are usually part of the institutional framework of the sports governing body, the CAS ADD, acting on authorization by a sports entity, is not. Therefore, by the delegation of powers to the CAS ADD, the ruling body in doping related matters becomes completely institutionally independent from the parties, in particular the sports governing body. Furthermore, both the number of persons sitting on the first instance disciplinary panels of sport’s governing bodies as well as the number of CAS ADD arbitrators are typically limited, and there is a closed number of persons. Generally, the disciplinary committees of sports governing bodies consist of members who are not appointed by the parties. Similarily, the persons who are able to sit on the respective appointed panels are typically not appointed by the parties. For those reasons, the disciplinary committees of sports governing bodies are usually not considered arbitral tribunals but integral part of the sport’s governing body. Accordingly, when delegating authority to the CAS ADD to rule as the first instance authority, and thereby allowing the parties the possibility to choose arbitrators in the first instance case, the parties’ rights, compared to the former situation, when such right was not granted, is typically broadened. Furthermore, the parties can appoint their arbitrator twice, first from the CAS ADD List from 24 proposed persons and once again, in the event of an appeal against the CAS ADD decision, from more than 400 persons from the CAS arbitrators List.
5. Any request for provisional measures needs to meet three relevant criteria: (i) the party seeking such relief would suffer irreparable harm if the relief was not granted, (ii) that party has a likelihood of success on the merits, and (iii) the interests of that party outweigh those of the other party. All three requirements (irreparable harm, likelihood of success on the merits, and balance of interests) are cumulative and the standard of proof to be met is the balance of probabilities. The mere fact that a professional athlete is prevented from competing in sports events is not enough to justify a stay of a Provisional Suspension imposed on the athlete on the basis of irreparable harm. Likewise, any alleged possible financial losses do not constitute irreparable harm, since such losses may be compensated at any time.
6. A provisional suspension during the investigation and the adjudication procedure is appropriate to protect the interests of the other competitors. This is especially true in cases where the athlete is suspected of having committed further ADRVs against the background of other violations for which he has already served a sanction.
7. The procedural conduct of an athlete, who first contests the provisional suspension imposed on her almost 8 months after already serving the provisional suspension period and in the context of a submission for which the athlete had requested – without addressing the issue of her ongoing provisional suspension – an extension of the deadline by 80 days, does not support the athlete’s argument that the provisional suspension imposed on her is unfair.
8. The standard of comfortable satisfaction is greater than a mere balance of probability but less than proof beyond reasonable doubt, and must take into account all circumstances of the case. Those circumstances include the paramount importance of fighting corruption of any kind in sport and also considering the nature and restricted powers of the investigation authorities of the governing bodies of sport as compared to national formal interrogation authorities. In applying this standard, a CAS panel is expressly required to bear in mind the seriousness of the allegation which is made. Put differently, the comfortable satisfaction standard 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”.
9. Sanctions in general must comply with the proportionality requirement of being appropriate, necessary and demonstrate a reasonable balance between the objective pursued and the means used to achieve it, but it also has to be kept in mind that harsher sanctions are warranted in case of serious infringements, structural non-compliance with the various obligations and in case of recidivism. Furthermore, disciplinary measures serve different functions: the punitive function serves to punish the offender; the preventive function prevents re-offending and restorative function helps to undo the harm inflicted by the offence.
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.
Hereafter in January 2019 the World Anti-Doping Agency (WADA) recovered the internal database of the Moscow Laboratory (LIMS). Following investigation of allegations of organized doping practices, and in particular of the LIMS, WADA provided international federations with investigation reports on the athletes implicated in these organized doping practices.
As a result in September 2020 the International Biathlon Union (IBU) reported an anti-doping rule violation against the Athlete Ekaterina Glazyrina for the use of the prohibited substances Enobosarm (ostarine), Metenolone and Oxandrolone in March and September 2013.
Previously on 24 April 2018 the IBU Anti-Doping Hearing Panel had already imposed a sanction of 2 years on the Athlete based on the findings of the McLaren Reports for "use" of a prohibited substance.
In January 2021 the Athlete's case was referred to the CAS Anti-Doping Division (CAS ADD) for a Sole Arbitrator first instance procedure.
The IBU contended that it had already been established that the Athlete was a protected Athlete, i.e. an athlete who benefitted from the Disappearing Positive Methodology, which means that her samples were among those whose entries in the LIMS had been deleted.
The IBU asserted that the LIMS 2015 Data revealed that the Athlete's samples, collected in March 2013 and in September 2013, showed the presence of Enobosarm (ostarine), Metenolone and Oxandrolone.
The Athlete denied that she had committed an anti-doping rule violation and argued that CAS ADD lacks jurisdiction, impartiality and independence. Further she disputed the reliability of the filed evidence in this case provided by WADA, Professor McLaren and Dr Rodchenkov.
The Sole Arbitrator assessed and addressed the evidence provided by the Parties and determines that:
- CAS ADD has jurisdiction to hear and adjudicate the present matter.
- The Athlete's request for lifting the provisional suspension is dismissed.
- The evidence submitted to the file is reliable and the use of Metenolone has been proven.
- The Athlete has committed the anti-doping rule violation for use of a prohibited substance.
- Both violations shall be considered as one single violation.
- There are aggravating circumstances and proportionality requirements regarding the additional sanction.
- The Athlete had already served a sanction of 2 years and a supplemental sanction of 1 year shall be imposed.
Therefore the Court of Arbitration for Sport decides on 21 March 2022 that:
1.) The Request for Arbitration filed by the Biathlon Integrity Union (BIU) on behalf of the International Biathlon Union (IBU) on 12 January 2021 against Ms. Ekaterina Glazyrina is partially upheld.
2.) Mrs. Ekaterina Glazyrina committed an Anti-Doping Rule Violation in accordance with Article 2.2 of the IBU ADR 2012.
3.) Ms. Ekaterina Glazyrina is sanctioned with a period of ineligibility of one (1) year.
4.) The period of ineligibility shall commence on 23 September 2020, which is the starting date of the provisional suspension imposed on Ms Ekaterina Glazyrina.
5.) All competitive results obtained by Ms. Ekaterina Glazyrina’s between 19 September 2013 and 18 December 2013 shall be disqualified, with all of the consequences including forfeiture of any medals, points and prizes.
6.) (…).
7.) (…).
8.) All other and further prayers or requests for relief are dismissed.
