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CAS 2019_A_6168 Ivan Ukhov vs IAAF

6 Apr 2021

CAS 2019/A/6168 Ivan Ukhov v. International Association of Athletics Federations (IAAF)

Related case:

CAS 2018_O_5668 IAAF vs RusAF & Ivan Ukhov
February 1, 2019

Athletics (high jump)
Doping (desoxymethyltestosterone)
Admissibility of the appeal in case the national association is not named as the respondent
Means of evidence
Influence of a doping plan or scheme on establishing ADRVs in individual cases
Assessment of circumstancial evidence
Distinction between liability and sanction with regard to the state of knowledge of the athlete
Doping plan or scheme as aggravating circumstance in the assessment of the period of ineligibility
Disqualification of results

1. According to Rule 42.18 of the 2016 IAAF Competition Rules, “as a general rule, the respondent to a CAS appeal shall be the party which has taken the decision that is subject to appeal. Where the Member has delegated the conduct of a hearing (…) in accordance with Rule 38.5, the respondent to the CAS appeal against such decision shall be the member”. The words “as a general rule” are indicative that this provision does not lay down conditions that are mandatory in every case and in all circumstances. In addition, the requirement that an appeal must be brought against “the member” is expressly limited to circumstances where that member “has delegated the conduct of a hearing … in accordance with Rule 38.5”. However, where a national association ceases to be a member of the IAAF for any reason, it is impossible for it to conduct a hearing and therefore there is no proper “delegation” within the meaning of Rule 38.5. In such a case, there is no mandatory rule requiring to bring the appeal against the national association.

2. The IAAF Competition Rules make no distinction between “direct” and “circumstantial” evidence, nor do they specify that evidence must have been created or obtained specifically for the purpose of proving anti-doping rule violations (ADRVs). They state that the party with the burden of proving an ADRV – may resort to “any reliable means”. The use of the word “any” makes clear that there is no restriction on the type or nature of evidence that may be adduced. However, findings of fact can only be reached on the basis of evidence that is reliable.

3. The mere existence of a doping scheme does not suffice for the purposes of establishing ADRVs in individual cases. However, the existence of such a scheme is a relevant fact to be taken into account in the evaluation of the evidence.

4. In a case where there are various non-analytical evidentiary elements, not only each element individually, but also the global weight of the evidence as a whole should be considered. 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 to the ‘comfortable satisfaction’ mandated from a tribunal before it can inculpate a sportsperson of a disciplinary offence.

5. Liability under the IAAF Competition Rules is a rule of strict liability. An ADRV is established notwithstanding any intent, fault, negligence or knowledge on the part of the athlete. By contrast to the issue of liability, the state of knowledge of the athlete is relevant to the question of sanction.

6. In the circumstances, where it cannot be shown that an athlete was aware of the existence of a wider doping plan or scheme at the time the prohibited substances were used, the mere existence of such plan or scheme does not, of itself, amount to an aggravating circumstance in the assessment of the period of ineligibility. This flows from the language of the relevant rule which states that the aggravating circumstance exists when the athlete committed the ADRV “as part” of that scheme.

7. When applying the wide discretion it retains in the disqualification of results, a CAS panel must be guided by the principles of fairness and proportionality.

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 Ivan Ukhov is a Russian Athlete competing in the High Jump Athletics event at the London 2012 Olympic Games and the Moscow 2013 IAAF World Championships.

In October 2017 the IAAF (World Athletics) reported multiple anti-doping rule violations against the Russian Athlete based on the findings of the First and Second IP Report and the disclosed evidence.

In First Instance (CAS 2018_O_5668) the CAS Sole Arbitrator was comfortably satisfactied that the Athlete had violated the IAAF Rules through the use of Desoxymethyltestosterone (DMT) on multiple occasions during the period of 2012 and 2013. Accordingly he decided on 1 February 2019 to impose a 4 year period of ineligibility on the Athlete.

Hereafter in February 2019 the Athlete appealed the First Instance Decision (CAS 2018_O_5668) with the CAS Appeals Arbitration Division. The Athlete requested to annul the Appealed Decision and to declare no period of ineligibility on him or, in te alternative, to reduce his period of ineligibility.

The Athlete disputed three findings of the Sole Arbitrator in the Appealed Decision:

that the Athlete is guilty of committing ADRVs;
sanctioning the Athlete to a period of ineligibility of four years as from 1 February 2019; and
disqualifying the Athlete's results from 16 July 2012 to 31 December 2015.

The Athlete denied the use of prohibited substances and argued that he was tested before without issues. He disputed the reliability of the filed evidence in this case provided by the IAAF, Professor McLaren and Dr Rodchenko and pointed to various inconsistencies in this evidence.

The IAAF finds that the appeal is inadmissible or, in the alternative, that CAS does not have jurisdiction. If the appeals is admissible and CAS has jurisdiction it requested the Panel to dismiss the appeal.

The IAAF holds that Prof. McLaren uncovered and described a doping scheme of unprecedented proportions that pervaded and implicated the Russian sporting and governmental authorities.

Further the IAAF contended that it didn't seek to prove the charges against the Athlete on the basis of the McLaren Reports alone. The charges are based primarily on the Evidence Disclosure Package (EDP), which underpin the McLaren Reports, including the Washout Schedules.

After rejecting IAAF's challenge in relation to the nomination of RUSAF as a respondent, the Panel is satisfied, without any doubt, that the present appeal is admissible.

Considering the filed evidence in this case the majority of the Panel is comfortably satisfied that:

the Athlete used Desoxymethyltestosterone (DMT) on or shortly prior to 16 July 2012; and
the Athlete used Desoxymethyltestosterone (DMT) on or shortly prior to 28 June 2013.

In light of the fact that the Athlete used prohibited substances on two separate occasions, the Panel deems that the maximum sanction, based on aggravating circumstances, is not merited in this case. As such, the four-year period of ineligibility imposed in the Appealed Decision is set aside and replaced with a period of ineligibility of 2 years and 9 months. Also the Panel reduced the disqualification period imposed in the Appealed Decision to a period of 2 years, 5 months and 16 days.

Therefore the Court of Arbitration for Sport decides on 6 April 2021 that:

1.) The Statement of Appeal filed by Mr. Ivan Ukhov with the Court of Arbitration for Sport (CAS) against the International Association of Athletics Federations (IAAF) on 22 February 2019 is partly upheld.

2.) The decision rendered by the Sole Arbitrator in CAS 2018/O/5668 IAAF v. RUSAF & Ivan Ukhov is set aside.

3.) Mr. Ivan Ukhov is suspended from competition for two (2) years and nine (9) months, starting from 1 February 2019.

4.) All competitive results obtained by Mr. Ivan Ukhov from 16 July 2012 and terminating on 31 December 2014 (inclusive) are disqualified, with all of the resulting consequences, including forfeiture of any titles, awards, medals, points, prizes and appearance money.

5.) The costs of the arbitration, to be calculated and communicated to the parties by the CAS Court Office, shall be borne by the parties in equal shares.

6.) The parties shall each bear their own legal and other costs incurred in connection with these proceedings.

7.) All further requests for relief are dismissed.

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CAS 2019_A_6167 Ekaterina Galitskaia vs IAAF

6 Apr 2021

CAS 2019/A/6167 Ekaterina Galitskaia v. International Association of Athletics Federations (IAAF)

Related case:

CAS 2018_O_5712 IAAF vs RusAF & Ekaterina Galitskaia
February 1, 2019

Athletics (hurdles)
Doping (desoxymethyltestosterone, methasterone, trenbolone, boldenone, 1-testosterone, oxabolone, nandrolone)
Admissibility of the appeal in case the national association is not named as the respondent
Means of evidence
Influence of a doping plan or scheme on establishing ADRVs in individual cases
Assessment of circumstancial evidence
Distinction between liability and sanction with regard to the state of knowledge of the athlete
Doping plan or scheme as aggravating circumstance in the assessment of the period of ineligibility
Disqualification of results

7. When applying the wide discretion it retains in the disqualification of results, a CAS panel must be guided by the principles of fairness and proportionality.

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.

Ms. Yekaterina Viktorovna Galitskaya is a Russian Athlete competing in the Women’s hurdle race athletics event at the London 2012 Olympic Games.

In November 2017 the IAAF (World Athletics) reported multiple anti-doping rule violations against the Russian Athlete based on the findings of the First and Second IP Report and the disclosed evidence.

In First Instance (CAS 2018_O_5712) the CAS Sole Arbitrator was comfortably satisfactied that the Athlete had violated the IAAF Rules through the use of multiple prohibited substances on multiple occasions. Accordingly he decided on 1 February 2019 to impose a 4 year period of ineligibility on the Athlete.

Hereafter in February 2019 the Athlete appealed the First Instance Decision (CAS 2018_O_5712) with the CAS Appeals Arbitration Division. The Athlete requested to annul the Appealed Decision and to declare no period of ineligibility on her or, in te alternative, to reduce her period of ineligibility.

The Athlete disputed three findings of the Sole Arbitrator in the Appealed Decision:

that the Athlete is guilty of committing ADRVs;
sanctioning the Athlete to a period of ineligibility of four years as from 1 February 2019; and
disqualifying the Athlete's results from 15 July 2012 to 31 December 2014.

The Athlete denied the use of prohibited substances and argued that she was tested before without issues. She disputed the reliability of the filed evidence in this case provided by the IAAF, Professor McLaren and Dr Rodchenko and pointed to various inconsistencies in this evidence.

The IAAF holds that Prof. McLaren uncovered and described a doping scheme of unprecedented proportions that pervaded and implicated the Russian sporting and governmental authorities.

After rejecting IAAF's challenge in relation to the nomination of RUSAF as a respondent, the Panel is satisfied, without any doubt, that the present appeal is admissible.

Considering the filed evidence in this case the majority of the Panel is comfortably satisfied that:

the Athlete used Desoxymethyltestosterone (DMT) on or shortly prior to 15 July 2012; and
the Athlete used Methasterone, Trenbolone, Boldenone, 1-testosterone, Oxabolone and Nandrolone on or shortly prior to 10 July 2013.

In light of the fact that the Athlete used prohibited substances on two separate occasions, the Panel deems that the maximum sanction, based on aggravating circumstances, is not merited in this case. As such, the four-year period of ineligibility imposed in the Appealed Decision is set aside and replaced with a period of ineligibility of 3 years. Finally the Panel upholds the disqualification period imposed in the Appealed Decision of 2 years, 5 months and 15 days.

Therefore the Court of Arbitration for Sport decides on 6 April 2021 that:

1.) The Statement of Appeal filed by Ms. Ekaterina Galitskaia with the Court of Arbitration for Sport (CAS) against the International Association of Athletics Federations (IAAF) on 22 February 2019 is partly upheld.

2.) The decision of the Sole Arbitrator in CAS 2018/O/5712 IAAF v. RUSAF & Ekaterina Galitskaia is set aside.

3.) Ms. Ekaterina Galitskaia is suspended for a period of three (3) years, starting from 1 February 2019.

4.) All competitive results obtained by Ms. Ekaterina Galitskaia from 15 July 2012 until 31 December 2014 (inclusive) shall remain disqualified, with all of the resulting consequences, including forfeiture of any titles, awards, medals, points, prizes and appearance money.

5.) The costs of the arbitration, to be calculated and communicated to the parties by the CAS Court Office, shall be borne by the parties in equal shares.

6.) The parties shall each bear their own legal and other costs incurred in connection with these proceedings.

7.) All further requests for relief are dismissed.

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CAS 2019_A_6166 Svetlana Shkolina vs IAAF

6 Apr 2021

CAS 2019/A/6166 Svetlana Shkolina v. International Association of Athletics Federations (IAAF)

Related case:

CAS 2018_O_5667 IAAF vs RusAF & Svetlana Shkolina
February 1, 2019

Doping (desoxymethyltestosterone, methasterone)
Admissibility of the appeal in case the national association is not named as the respondent
Means of evidence
Influence of a doping plan or scheme on establishing ADRVs in individual cases
Assessment of circumstancial evidence
Distinction between liability and sanction with regard to the state of knowledge of the athlete
Doping plan or scheme as aggravating circumstance in the assessment of the period of ineligibility
Disqualification of results

7. When applying the wide discretion it retains in the disqualification of results, a CAS panel must be guided by the principles of fairness and proportionality.

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.

Ms. Svetlana Shkolina is a Russian Athlete competing in the High Jump Athletics event at the London 2012 Olympic Games and the Moscow 2013 IAAF World Championships.

In First Instance (CAS 2018/O/5667) the CAS Sole Arbitrator was comfortably satisfied that the Athlete was guilty of having used Prohibited Substances and decided on 1 February 2019 to impose a 4 year period of ineligibility on the Athlete.

Hereafter in February 2019 the Athlete appealed the First Instance Decision (CAS 2018/O/5667) with the CAS Appeals Arbitration Division. The Athlete requested to annul the Appealed Decision and to declare no period of ineligibility on her or, in te alternative, to reduce her period of ineligibility.

The Athlete disputed three findings of the Sole Arbitrator in the Appealed Decision:

that the Athlete is guilty of committing ADRVs;
sanctioning the Athlete to a period of ineligibility of four years as from 1 February 2019; and
disqualifying the Athlete's results from 16 July 2012 to 28 July 2015.

The IAAF holds that Prof. McLaren uncovered and described a doping scheme of unprecedented proportions that pervaded and implicated the Russian sporting and governmental authorities. Further the IAAF contended that it didn't seek to prove the charges against the Athlete on the basis of the McLaren Reports alone. The charges are based primarily on the Evidence Disclosure Package (EDP), which underpin the McLaren Reports, including the Washout Schedules.

After rejecting IAAF's challenge in relation to the nomination of RUSAF as a respondent, the Panel is satisfied, without any doubt, that the present appeal is admissible.

Considering the filed evidence in this case the majority of the Panel is comfortably satisfied that:

the Athlete used Desoxymethyltestosterone (DMT) on or shortly prior to 16 July 2012; and
the Athlete used Methasterone on or shortly prior to 28 June 2013.

In light of the fact that the Athlete used prohibited substances on two occasions, the Panel deems that the maximum sanction based on aggravating circumstances is not merited in this case. As such, the four-year period of ineligibility imposed in the Appealed Decision is set aside and replaced with a period of ineligibility of 2 years and 9 months. Also the Panel reduced the disqualification period imposed in the Appealed Decision to a period of 2 years, 5 months and 16 days.

Therefore the Court of Arbitration for Sport decides on 6 April 2021 that:

1.) The Statement of Appeal filed by Ms. Svetlana Shkolina with the Court of Arbitration for Sport (CAS) against the International Association of Athletics Federations (IAAF) on 22 February 2019 is partially upheld.

2.) The decision of the Sole Arbitrator in CAS 2018/O/5667 IAAF v. RUSAF & Svetlana Shkolina is set aside.

3.) Ms. Svetlana Shkolina is suspended for a period of two (2) years and nine (9) months, starting from 1 February 2019.

4.) All results earned by Ms. Svetlana Shkolina from 16 July 2012 to 31 December 2014 (inclusive) (two (2) years, five (5) months and 16 days are disqualified), with all of the resulting consequences, including forfeiture of any titles, awards, medals, points, prizes and appearance money.

5.) The costs of the arbitration, to be calculated and communicated to the parties by the CAS Court Office, shall be borne by the parties in equal shares.

6.) The parties shall each bear their own legal and other costs incurred in connection with these proceedings.

7.) All further requests for relief are dismissed.

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CAS 2019_A_6165 Yuliya Kondakova vs IAAF

6 Apr 2021

CAS 2019/A/6165 Yuliya Kondakova v. International Association of Athletics Federations (IAAF)

Related case:

CAS 2018_O_5713 IAAF vs RusAF & Yuliya Kondakova
February 1, 2019

Athletics (hurdles)
Doping (oral turinabol, methasterone)
Admissibility of the appeal in case the national association is not named as the respondent
Means of evidence
Influence of a doping plan or scheme on establishing ADRVs in individual cases
Assessment of circumstancial evidence
Distinction between liability and sanction with regard to the state of knowledge of the athlete
Doping plan or scheme as aggravating circumstance in the assessment of the period of ineligibility
Disqualification of results

7. When applying the wide discretion it retains in the disqualification of results, a CAS panel must be guided by the principles of fairness and proportionality.

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.

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 (World Athletics), 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.

Ms. Yuliya Kondakova is a Russian Athlete competing in the Women’s hurdle race athletics event at the London 2012 Olympic Games and the Moscow 2013 IAAF World Championships.

In First Instance (CAS 2018/O/5713) the CAS Sole Arbitrator was comfortably satisfied that the Athlete was guilty of having used Prohibited Substances and decided on 1 February 2019 to impose a 4 year period of ineligibility on the Athlete.

Hereafter in February 2019 the Athlete appealed the First Instance Decision (CAS 2018/O/5713) with the CAS Appeals Arbitration Division. The Athlete requested to annul the Appealed Decision and to declare no period of ineligibility on her or, in te alternative, to reduce her period of ineligibility.

The Athlete disputed three findings of the Sole Arbitrator in the Appealed Decision:

that the Athlete is guilty of committing ADRVs;
sanctioning the Athlete to a period of ineligibility of four years as from 1 February 2019; and
disqualifying the Athlete's results from 17 July 2012 to 16 July 2016.

After rejecting IAAF's challenge in relation to the nomination of RUSAF as a respondent, the Panel is satisfied, without any doubt, that the present appeal is admissible.

Considering the filed evidence in this case the Panel is comfortably satisfied that:

the Athlete had used oral-turinabol (DHCMT) on or shortly prior to 17 July 2012; and
the Athlete had used methasterone on or shortly prior to 10 July 2013.

Therefore the Court of Arbitration for Sport decides on 6 April 2021 that:

1.) The Statement of Appeal filed by Ms. Yuliya Kondakova against the International Association of Athletics Federations with the Court of Arbitration for Sport (CAS) on 22 February 2019 is partially upheld.

2.) The decision rendered by the Sole Arbitrator in CAS 2018/O/5713 IAAF v. RUSAF & Yuliya Kondakova is set aside.

3.) Ms. Yuliya Kondakova is suspended from competition for a period of two (2) years and nine (9) months, starting as from 1 February 2019.

4.) All results obtained by Ms. Yuliya Kondakova as from 17 July 2012 until 31 December 2014 (inclusive) (two (2) years, five (5) months and 15 days) are withdrawn, with all of the resulting consequences, including forfeiture of any titles, awards, medals, points, prizes and appearance money.

5.) The costs of the arbitration, to be calculated and communicated to the parties by the CAS Court Office, shall be borne by the parties in equal shares.

6.) The parties shall each bear their own legal and other costs incurred in connection with these proceedings.

7.) All further requests for relief are dismissed.

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CAS 2019_A_6161 Lyukman Adams vs IAAF

6 Apr 2021

CAS 2019/A/6161 Lyukman Adams v. International Association of Athletics Federations (IAAF)

Related cases:

CAS 2016_A_4703 Lyukman Adams [et al.] [67 Russian Athletes] vs IAAF
October 14, 2016
CAS 2016_O_4684 Russian Olympic Committee, Lyukman Adams [et al.] [68 Russian Athletes] vs IAAF
October 10, 2016
CAS 2018_O_5671 IAAF vs RusAF & Lyukman Adams
January 31, 2019

Athletics (triple jump)
Doping (dehydroepiandrosterone, desoxymethyltestosterone, nandrolone, trenbolone, oxandrolone, methenolone, ostarine)
Admissibility of the appeal in case the national association is not named as the respondent
Means of evidence
Influence of a doping plan or scheme on establishing ADRVs in individual cases
Email evidence
Assessment of circumstancial evidence
Distinction between liability and sanction with regard to the state of knowledge of the athlete
Doping plan or scheme as aggravating circumstance in the assessment of the period of ineligibility
Disqualification of results

2. The IAAF Competition Rules do not specify that evidence must have been created or obtained specifically for the purpose of proving anti-doping rule violations (ADRVs). They state that the party with the burden of proving an ADRV – may resort to “any reliable means”. The use of the word “any” makes clear that there is no restriction on the type or nature of evidence that may be adduced. However, findings of fact can only be reached on the basis of evidence that is reliable.

4. The presence of a Domain Keys Identified Mail (DKIM) signature on an email makes it “quite highly probable” that the email in question was actually sent on the day and at the time indicated, and that the body of those emails has not been subsequently manipulated or modified (whether knowingly or unknowingly).

5. In a case where there are various non-analytical evidentiary elements, not only each element individually, but also the global weight of the evidence as a whole should be considered. 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 to the ‘comfortable satisfaction’ mandated from a tribunal before it can inculpate a sportsperson of a disciplinary offence.

6. Liability under the IAAF Competition Rules is a rule of strict liability. An ADRV is established notwithstanding any intent, fault, negligence or knowledge on the part of the athlete. By contrast to the issue of liability, the state of knowledge of the athlete is relevant to the question of sanction.

7. In the circumstances, where it cannot be shown that an athlete was aware of the existence of a wider doping plan or scheme at the time the prohibited substances were used, the mere existence of such plan or scheme does not, of itself, amount to an aggravating circumstance in the assessment of the period of ineligibility. This flows from the language of the relevant rule which states that the aggravating circumstance exists when the athlete committed the ADRV “as part” of that scheme.

8. When applying the wide discretion it retains in the disqualification of results, a CAS panel must be guided by the principles of fairness and proportionality.

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.

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 (World Athletics), 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 Lyukman Adams is a Russian Athlete competing in the Triple Jump Athletics event at the London 2012 Olympic Games, the Moscow 2013 IAAF World Championships and the Sopot 2014 IAAF Indoor World Championships.

In First Instance (CAS 2018/O/5671) the CAS Sole Arbitrator was comfortably satisfied that the Athlete was guilty of having used Prohibited Substances and decided on 31 January 2019 to impose a 4 year period of ineligibility on the Athlete.

Hereafter in February 2019 the Athlete appealed the First Instance Decision (CAS 2018/O/5671) with the CAS Appeals Arbitration Division. The Athlete requested to annul the Appealed Decision and to declare no period of ineligibility on him or, in te alternative, to reduce his period of ineligibility.

The Athlete disputed three findings of the Sole Arbitrator in the Appealed Decision:

that the Athlete is guilty of committing ADRVs;
sanctioning the Athlete to a period of ineligibility of four years as from 31 January 2019; and
disqualifying the Athlete's results from 16 July 2012 to 14 September 2014.

After rejecting IAAF's challenge in relation to the nomination of RUSAF as a respondent, the Panel is satisfied, without any doubt, that the present appeal is admissible.

Considering the filed evidence in this case the Panel is comfortably satisfied that the Athlete had used seven prohibited substances on at least three occasions, on or shortly prior to 16 July 2012, 6 July 2013 and 26 February 2014.

In light of the fact that the Athlete used prohibited substances on at least three occasions over the course of 19 months, the Panel deems that the maximum sanction is merited. As such, the four-year period of ineligibility imposed in the Appealed Decision will remain. Also the Panel uphold the disqualification period imposed in the Appealed Decision.

Therefore the Court of Arbitration for Sport decides on 6 April 2021 that:

1.) The Statement of Appeal filed by Mr. Lyukman Adams against the International Association of Athletics Federations with the Court of Arbitration for Sport (CAS) on 21 February 2019 is dismissed.

2.) The decision rendered by the Sole Arbitrator in CAS 2018/O/5671 IAAF v. Russian Athletics Federation (RUSAF) & Lyukman Adams is upheld.

3.) The costs of the arbitration, to be calculated and communicated to the parties by the CAS Court Office, shall be paid in full by Mr. Lyukman Adams.

4.) Mr. Lyukman Adams all pay a contribution toward the legal and other costs incurred by the International Association of Athletics Federations in connection with the present proceedings in the amount of CHF 2,500 (two thousand five hundred Swiss francs).

5.) All further requests for relief are dismissed.

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CAS 2020_ADD_07 ISF vs Andrus Veerpalu

17 Mar 2021

2020/ADD/7 International Ski Federation v. Andrus Veerpalu
2020/ADD/13 International Ski Federation v. Andrus Veerpalu

Related cases:

CAS 2011_A_2566 Andrus Veerpalu vs International Ski Federation
March 25, 2013
CAS 2020_A_6781 Andrus Veerpalu vs FIS
July 21, 2020
FIS 2011 FIS vs Andrus Veerpalu
August 21, 2011

During the FIS 2019 Nordic World Ski Championships in Austria from 19 February to 3 March 2019, the Austrian police raided the belongings of several athletes and athlete support personnel from Austria, Estonia and Kazakhstan on suspicion of violating Austrian anti-doping laws. Simultaneously, German police officers searched the medical practice of Dr Mark Schmidt in Erfurt, Germany. This joint police operation became publicly known as the Operation Aderlass.

The police searched the hotel room of the Athlete Andrus Veerpalu in Seefeld during the raid and found a heavy box containing medical equipment, supplements and prohibited substances. The same hotel room was also used by the Athlete Alexey Poltoranin for prohibited blood doping treatments.

Following the police raids in Seefeld and Erfurt, law enforcement authorities of Germany, Austria and Estonia initiated criminal investigations and proceedings against a number of athletes and support personnel.

The Austrian and German Police provided the International Ski Federation (FIS) with all the evidence and intelligence they had gathered in the context of the Operation Aderlass such as minutes of wire-taped conversations and in-person interrogations, mobile phone messages, surveillance photos and indices of confiscated items.

As a result in September 2019 FIS openend proceedings against the Athlete Andrus Veerpalu and reported an anti-doping rule violation for Complicity and his failure to cooperate in full with the FIS investigations. After notification a provisional suspension was ordered and FIS filed a request for arbitration with the Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD).

FIS contended that the final report of the Austrian Police constitutes clear evidence that the Athlete committed anti-doping rule violations. The evidence shows that the Athlete granted access to his hotel room to Dr Mark Schmidt to perform blood transfusion on the Athlete Alexey Poltoranin thereby being an accomplice to Alexey Poltoranin’s admitted blood doping during the World Championships in Seefeld.

In addition FIS contended that there is evidence that the Athlete purchased the prohibited product IGF-1 from one of Dr Mark Schmidt’s providers of prohibited substances.

The Athlete disputed the jurisdiction of the CAS ADD in this case and denied that he had knowledge at all of the doping scheme admittedly organized and orchestrated by the manager of the Estonian team. He stated that he had no links to the Estonia team and worked only as a service staff member for the team of Kazakhstan.

The Athlete only acknowledged that in December 2016 he had picked-up a parcel. He was told that it contained medication for the Athlete Alexey Poltoranin and in return he gave an envelop with money to a person.

The CAS ADD Sole Arbitrator establishes that the alteration in the disciplinary body from FIS Doping Panel to the CAS ADD in the 2019 FIS ADR being procedural, applied to the Athlete and confirms the jurisdiction of the CAS ADD to decide this matter.

Considering the evidence in this case the Sole Arbitrator is comfortably convinced that the Athlete not only was aware but also was actively involved in allowing Dr Mark Schmidt to perform blood doping on Alexey Poltoranin by storing necessary equipment and granting access to his room. By doing so he committed an anti-doping rule violation by being intentionally complicit in the blood doping performed on Alexey Poltoranin.

Further the Sole Arbitrator is convinced that by purchasing IGF-1 from of Dr Schmidt’s providers on 4 December 2016 he intentionally aided and assisted the doping practice of an Estonian Athlete and other members of the Estonian Team.

Therefore the Court of Arbitration for Sport decides on 17 March 2021 that:

The Anti-Doping Division of the Court of Arbitration for Sport has jurisdiction to decide on the subject matter of this dispute.
The request for arbitration filed by the International Ski Federation is admissible.
Andrus Veerpalu is found guilty of an anti-doping rule violation in accordance with Article 2.9 FIS ADR 2016.
Andrus Veerpalu is sanctioned with a 2-year period of ineligibility starting from the date of the final CAS ADD Award.
(…).
(…).
All other motions or prayers for relief are dismissed.

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CAS 2020_A_6763 Trinidad and Tobago Olympic Committee vs World Athletics

24 Feb 2021

CAS 2020_A_6763 Trinidad and Tobago Olympic Committee (TTOC) v. World Athletics

In August 2019 the Athletics Integrity Unit (AIU) for World Athletics reported an anti-doping rule violation against the Athlete Ms Michelle-Lee Ahye from Trinidad and Tobago for having 3 Missed Tests within a 12 month period: in June 2018, February 2019 and in April 2019.

In First Instance before the Disciplinary Tribunal the Athlete accepted that the First and Second Missed Tests amounted to breaches of World Athletics Rules. As to the Third Missed Test the Athlete stated that she was at home on 19 April 2019 but had not heard the doorbell or the knocking on the door or the telephone.

Contrary to the Athlete's statement the Doping Control Officer (DCO) reported that during the 60-minute time slot he knocked on her door 36 times and rang the bell 12 times while he also telephoned her twice.

Although the Athlete offered a number of reasons, the Tribunal concluded that she failed to demonstrate that she didn’t acted negligently for her failure to be available for testing on 19 April 2019. Consequently the Disciplinary Tribunal decided on 7 January 2020 to impose a 2 year period of ineligibility on the Athlete starting on the date of Third Missed Test, i.e. 19 April 2019.

Hereafter in February 2020 the Trinidad and Tobago Olympic Committee (TTOC) appealed the Decision of 7 January 2020 with the Court of Arbitration for Sport (CAS). The Sole Arbitrator rendered a decision based on the written submissions of the Parties.

The TTOC on behalf of the Athlete did not dispute the First Missed Test but did address the Second and Third Missed Tests. The TTOC argued that the Athlete was not to blame for the Second Missed Test then it follows that the Second Missed test should not be taken into account as a violation, with the result that no anti-doping rule violation has been committed, or that no fault or negligence to be attributed to the Athlete regarding to the Second Missed Test.

As to the Third Missed Test the TTOC asserted that in First Instance the Tribunal erred in law when it found that the World Athletics did discharge its burden of proof at the requisite standard in relation to the actions of the DCO in question. The TTOC claimed that the DCO did not do all that was reasonable necessary to locate the Athlete and that he failed to act in accordance with the applicable Guidelines.

The Sole Arbitrator concludes that the Athlete has committed three Missed Tests within a 12-month period (commencing 23 June 2018). Having taken into account the nature and circumstances of the Three Missed Tests, and the evidence on each of them proffered by the Athlete, the Sole Arbitrator finds that the decision of the Disciplinary Tribunal was correct in applying a 2 year period of ineligibility from the date of the Third Missed Test (being 19 April 2019).

Further he finds that there is no reason to grant a reduction of the period of ineligibility. In the Sole Arbitrator's view, there is nothing about the degree of fault on the part of the Athlete that commends itself to a reduction of sanction.

Therefore the Court of Arbitration for Sport decides on 24 February 2021 that:

The appeal filed by the Trinidad and Tobago Olympic Committee against World Athletics with the Court of Arbitration for Sport on 10 February 2020 is dismissed in its entirety.
The decision of the Disciplinary Tribunal dated 7 January 2020 is confirmed.
The Award is pronounced without costs, except for the Court Office fee of CHF 1,000 (onethousand Swiss Francs) paid by the Trinidad and Tobago Olympic Committee, which is retainedby the Court of Arbitration for Sport.
The Trinidad and Tobago Olympic Committee shall make a contribution of CHF 3000 (threethousand Swiss francs) to the legal costs and other expenses incurred by World Athletics in connection with these proceedings.
All other motions or prayers for relief are dismissed.

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CAS 2018_A_6069 André Cardoso vs UCI

10 Feb 2021

CAS 2018/A/6069 André Cardoso v. Union Cycliste Internationale (UCI)

Related case:

UCI-ADT 2018 UCI vs André Cardoso
November 15, 2018

Cycling
Doping (recombinant EPO)
Application of the CAS rules in case of a dispute before the CAS
Dinstinct means of establishing an ADRV
Confirmation by a B sample in “use” cases
Hierarchy of norms
Burden and standard of proof in “use” cases

1. By agreeing to hold a UCI licence, a rider consents to the jurisdiction of the CAS, which necessitates the application of the CAS rules in case of dispute. Within the CAS Code, it is not possible for a person not on the mandatory list of arbitrators to be appointed as an arbitrator in a CAS panel or for CAS rules not to apply.

2. Both the World Anti-Doping Code (WADC) and the UCI Anti-Doping Rules (ADR) differentiate, deliberately, between “presence” cases and “use” cases in their provisions. While not infrequently responsible bodies may bring charges of an anti-doping rule violation (ADRV) under both provisions, it does not follow that a charge cannot be made good under one, but not the other.

3. There is no indication in the language of Article 2.2 of the UCI ADR that confirmation of the presence of a prohibited substance in the A sample by analysis of the B sample is essential in a charge of “use”. In addition, the comment to Article 2.2 (i) indicates that such a charge may be established by ‘any reliable means’ and (ii) expressly states that “Use may be established based upon the reliable analytical data from the analysis of an A Sample” (without confirmation from an analysis of a B Sample) or from the analysis of a B Sample alone where the Anti-Doping Organization provides a satisfactory explanation for the lack of confirmation in the other Sample”. The provision in which the parenthesis appears is clear both in its intent and in its effect. Where the analysis of the A sample provides reliable analytical data to establish the use, there is no need for confirmation by a B sample assuming that the lack of confirmation is sufficiently explained by the Anti Doping Organization.

4. When creating new rules and regulations, the relevant organs are bound by the limits imposed on them by higher ranking norms, in particular the association’s statutes. This follows from the principle of legality. According to this principle, regulations of a lower level may complement and concretize higher ranking provisions, but not amend nor contradict or change them. The WADC is a regulation of a higher ranking than the International Standard for Laboratories; accordingly it is not possible to allow any provision of the latter to trump a provision of the former.

5. Where only a “use” case can be advanced, the anti-doping authority has to prove both that: (a) the A sample positive result is reliable; and (b) there is a satisfactory explanation for the lack of confirmation in the B sample and (c) on both issues to the standard of “comfortable satisfaction”.

In June 2017 the International Cycling Union (UCI) reported an anti-doping rule violation against the Portuguese Rider André Cardoso after his A-sample tested positive for the prohibited substance rhEPO. However the Rider’s B-sample did not confirm the test result of the A-sample, nor the analysis of his blood sample provided on the same day as the urine sample on 18 June 2017.

Nevertheless in first instance the Sole Arbitrator was comfortably satisfied by the assessment of the evidence at hand that the conditions established by Article 2.2 of the UCI ADR (and the comment thereto) which allow a Use Anti-Doping Rule Violation (ADRV) to be established based upon (a) reliable analytical data from the analysis of an A-sample alone (without confirmation from an analysis of a B-sample) and (b) where the prosecuting authority provides a satisfactory explanation for the lack of onfirmation in the other sample, are satisfied in this matter.

Moreover, the Sole Arbitrator in first instance deemed that the Rider failed to substantiate that the presence of rhEPO in his A-sample resulted from an accidental swap of samples or a congenital / ethanol-induced disorder or a microbial activity. Therefore, the Single Judge concluded that the Rider had committed an ADRV under Article 2.2 of the UCI ADR. Consequently the UCI Anti-Doping Tribunal decided on 15 november 2018 to impose a 4 year period of ineligibility on the Athlete, including disqualification of his results, a fine and payment of costs.

Hereafter in December 2018 the Athlete appealed the UCI decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to acquit him of any anti-doping rule violation.

Further the Athlete raised procedural claims regarding the CAS legal aid system and process. He claimed damages and raised also substantive claims regarding the Appealed Decision.

The Athlete’s position was that an ADRV on the basis of the analysis of urine is exclusively governed by Article 2.1 of the UCI ADR, which concerns the presence of a Prohibited Substance in an athlete's sample and that, on the facts of the case, the conditions set forth in Article.2.1 to conclude to an ADRV are not satisfied. The Athlete also denied that the requirements of Article 2.2 UCI ADR (even if applicable, quod non) are met.

The UCI's contended that the UCI ADR expressly provides for an ADRV for use, which is based solely on the analytical data of the analysis of the A-sample governed by Article 2.2 of the UCI ADR, and that, on the facts of the case, Article 2.2 is satisfied.

Following assessment the Panel rejects the Athlete's argument regarding the overall fairness of the CAS proceeding and CAS rules. The Panel finds that it has jurisdiction and that the appeal is admissible.

Considering the expert evidence in this case generally the Majority of the Panel finds the UCI's experts more persuasive than those of the Athlete, who appeared to be sceptical about the generally accepted methodology used to identify exogenous EPO which is a matter beyond the scope of the Panel's deliberations.

Overall, the Panel deems that the Athlete's experts did not seriously challenge the presence of rhEPO but rather attempted to provide explanations for the Adverse Analytical Finding, none of which convinced the Panel.

The Panel concludes that the UCI has established the existence of an ADRV under Article 2.2 of the UCI ADR based on the reliable analytical data from the A sample of the Athlete and the UCI experts' evidence to the comfortable satisfaction of the Panel.

In light of this conclusion, the Panel does not need to turn either, whether as a matter of jurisdiction or of the merits, to the question of the damages sought by the Athlete, which has become moot.

The Panel finds that the Athlete’s sanction could not be reduced on the basis of "No Fault or Negligence" or "No Significant Fault or Negligence," which was in any event not argued by him.

Finally the Panel holds that the fine ordered in the Appealed Decision failed to take into consideration the financial situation of the Athlete, resulting from his provisional suspension and accordingly reduces it by 50%.

Therefore the Court of Arbitration for Sports decides on 10 February 2021 that:

1.) The Panel has jurisdiction to hear the appeal filed by Mr. André Cardoso on 14 December 2019.

2.) The appeal filed by Mr. André Cardoso against the decision rendered by the UCI AntiDoping Tribunal on 15 November 2018 is partially granted.

3.) The fine imposed on Mr. André Cardoso in the decision rendered by the UCI AntiDoping Tribunal on 15 November 2018 is reduced to EUR 26,000; the decision rendered by the UCI Anti-Doping Tribunal on 15 November 2018 is confirmed in all other respects.

4.) The award is pronounced without costs, except for the Comi Office fee of CHF 1000 (one thousand Swiss Francs) paid by Mr. André Cardoso, which is retained by the CAS.

5.) Each Party will bear their own costs incurred in connection with these arbitration proceedings.

6.) All other motions or prayers for relief are dismissed.

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