Elena Dorofeyeva, International Tennis Federation (ITF)

I. THE PARTIES

1. Ms Elena Dorofeyeva (hereinafter referred to as the “Appellant”), formerly an elite-level swimmer on the USSR national team in the 1980s, is a sports medicine specialist in the Ukraine.

2. The International Tennis Federation (hereinafter referred to as “ITF” or “Respondent”) is the International Olympic Committee-recognized international sports federation for the sport of tennis, and has its headquarters in London, United Kingdom. One of its objects and purposes is to promote the integrity of tennis and to protect the health and rights of tennis players. To these ends, the ITF, a signatory to the World Anti-Doping Code (the “WADC”) established by the World Anti-Doping Agency (“WADA”) issued the Tennis Anti-Doping Program (“TADP”) to implement the provisions of the WADC.

IV. THE PARTIES’ RESPECTIVE REQUESTS FOR RELIEF AND BASIC

POSITIONS

65. This section of the Award does not contain an exhaustive list of the Parties’ contentions, its aim being to provide a summary of the substance of the Parties’ main arguments. In considering and deciding upon the Parties’ claims in this Award, the Sole Arbitrator has accounted for and carefully considered all of the submissions made and evidence adduced by the Parties, including allegations and arguments not mentioned in this section of the Award nor in the discussion of the claims below.

A. The Appellant

66. In her Appeal, the Appellant requested relief as follows: “1 Suspend ITF decision against me till final appeal examination 2 Found decision of ITF against me null and void as accusations and charges have been created on fabricated documents with simultaneous hiding key evidences by offence to present them within trial by ITF re lated persons Compensatory damages in amount of EUR 150 000.00 Punitive damages in amount of 250 000.00 Declaratory judgement pursuant to Art. 6 and Art. 8 of Human Righs et seq. Declaring that ITF knowingly, willfully, deliberately and maliciously violated my human and civil rights what is a danger for community in general A permanent injunction prohibiting ITF or related person from using my name in doping case of Ms Katherina Kozlova Such other and further relief as may seem just and proper in the premises Costs: I’m pensioner and migrant therefore I ask you to examine my Appeal free of charges (…)”.

67. The Appellant’s submissions, in essence, may be summarised as follows: 1) The Appellant submits that she is not part of the Athlete’s team: a. Pursuant to the Appellant, there is no “written or whatsoever” labour or non-labour agreement between the Appellant and the Athlete which is a requirement under Ukrainian Law. b. Considering that the Appellant is from Donetsk (Ukraine), she argues that she has to abide by Ukrainian law.

2) The Appellant puts forward that she is not subject to the jurisdiction of the ITFT and to English law: a. Being a Ukrainian citizen, the Appellant argues that she is obliged to follow Ukrainian law. b. According to the Appellant she has never accepted “English Law, ITF jurisdiction and ITF Sole Arbiter”.

3) The Appellant submits that the principle of nemo iudex in causa sua has been violated because the arbitrator of the ITFT was “nominated, paied off and instructed” by the Respondent. 4) Pursuant to the Appellant, her rights to a fair trial and privacy under Articles 6 and 8 of the European Convention on Human Rights (“ECHR”) have been violated “including [her] rights to defense”. 5) The Appellant submits that her case is based on fabricated evidence. In particular, a. The Appellant argues that: “copy of fabricated correspondence from my private emailbox whereof my identity have been stolen (…)”. b. Furthermore, according to the Appellant, “Ministry of Justice of Ukraine confirms in official statement that invoice for prohibited product has been issued by person who by written confirmation with created allegations against me what was a willfull ITF decision never exist as a natural person or legal entity (sic!) and was bought outside Urkaine due to simple fact that product on photo does not have any Ukrainian description what is a obligation in Ukraine (…)”. 6) According to the Appellant, the Respondent and “also in person of ITF Sole Arbiter” are hiding key evidence. It follows from the official player’s certificate that the Appellant is not the Athlete’s doctor. This document has however not been submitted by the Respondent even though the Appellant had requested the Respondent to do so. 7) The Appellant argues that the principle alienus dolus nocere alteri non debet has been violated. 8) Finally, the Appellant submits that her right to be heard was violated by the ITFT. The latter is evidenced by the fact that all her motions before the ITFT have been ignored and were wrongfully “rejected without Appeal clause”.

B. The Respondent

68. In its Answer Brief, the Respondent requests that the CAS: “7.1.1dismiss the appeal; 7.1.2 uphold the Decision and in particular confirm that: 7.1.2.1 the Appellant has committed a violation of TADP Article 2.8; and 7.1.2.2 that the Appellant is subject to a period of ineligibility of four years (starting from 1 May 2016) in accordance with TADP Article 10.3.3; and 7.1.3 order the Appellant to pay a contribution towards the ITF’s legal fees and other expenses in this matter under CAS Code Article R65.3”.

69. With respect to the ADRV the Respondent submits that the ITFT correctly accepted the ITF’s finding that the Appellant had committed an ADRV in the form of “Administration”. 1) Article 2.8 of the TADP applies to this case.

2) The offence of “Administration” may be committed either by another Player or by a Player Support Person (“PSP”). 3) The Appellant must be qualified as a PSP. It is established that the Appellant advised the Athlete to ingest Red Rum. Furthermore, it is undisputed that Red Rum contains DMBA, a Prohibited Substance under the TADP and the WADA List. 4) It is true that the term “Administration” is not defined in the applicable TADP, i.e. in the version of the TADP prior to 2015. However, the term “Administration” has always been construed by hearing panels to cover cases where a doctor recommended and/or supplied a product containing a prohibited substance to an athlete. 5) According to the Respondent the “facts of this case satisfy all of the ’actus reus’ requirements of Article 2.8 (…)”. 6) It is true that the “mental element is not addressed in the wording of Article 2.8, i.e., it does not say whether it is a strict liability offence or whether intent, fault or negligence is required, or (if so) what exactly is required”. 7) However, Article 2.8 TADP must be construed as a strict liability offence. Should, contrary to the view held by the Respondent, the CAS determine that intent is required, then the Respondent submits that the threshold should not be set too high. It suffices that the Appellant acted with indirect intent. According to the Respondent this threshold is met in the given case, because “the Appellant was on notice that there was a significant risk that Red Rum would contain a prohibited substance, and manifestly disregarded that risk, so that she is taken to have accepted that risk and so to have ’indirectly’ intended to administer a prohibited substance to Ms Kozlova”. 8) Thus, even if the ITFT arbitrator wrongfully found (quod non) that Article 2.8 TADP is a strict liability offence, the Appellant would nonetheless have the required intent to be charged with an ADRV according to Article 2.8 TADP.

70. The Respondent finds that none of the Appellant’s arguments have any merit, nor provide sufficient basis to disturb the decision. In particular, the Respondent submits that: 1) The Appellant is bound by the TADP: a. According to Article 1.15 of the TADP a “Player Support Person” is automatically bound by and required to comply with the TADP”. The term “Player Support Personnel” is defined broadly to cover “[a]ny coach, trainer, manager, agent, team staff, official, medical or paramedical personnel, parent or other Person working with, treating or assisting a Player in his /her sporting capacity”. There is no doubt that the Appellant, as a medical doctor treating and assisting Ms Kozlova, falls within the definition of “Player Support Person”. b. The submission of the Appellant that she has never been part of the Athlete’s team because of lack of a written contract, as required under Ukrainian law, is without merit. In order to fall under the definition of “Player Support Person”, the Appellant need not be employed by the Athlete and there is no requirement for a written contract or any formal agreement under the applicable rules.

2) Being a PSP the Appellant is subject to the jurisdiction of the ITFT and to English law. In particular, a PSP is bound by the Articles 1.3.5 and 8 TADP. These articles provide for the jurisdiction of the ITFT. Furthermore, Article 1.8 of the TADP provides for the application of English law. It is commonly held that anybody that participates in elite sports is deemed to know that strict anti-doping rules exist and that they must be complied with. This hold true irrespective of whether or not the addressee of said rules has explicitly signed up to them, or even read them. 3) By accepting jurisdiction the ITFT did not breach natural justice: a. The ITFT has been installed by the ITF and was expressly required under the TADP to act independently and was careful to abide by this principle. The Appellant did not object to the appointment of the ITFT arbitrator, even though she had the right to do so. Accordingly, the Appellant has waived her right to challenge the ITFT. b. The fact that the ITFT arbitrator is being compensated by the ITF does not make the arbitrator any less independent. Instead, what matters according to the Respondent is that the ITFT arbitrator was never instructed by the ITF. c. Even if there had been any procedural defects (quod non) in the proceedings before the ITFT, these defects are cured by a de novo hearing before the CAS. 4) No breaches of Articles 6 or 8 of the ECHR have occurred, since a. the ECHR is not applicable to these proceedings and, b. in any case, the Appellant’s right to a fair trial has not been infringed, because the comments made by the Ukrainian Tennis Federation (“UTF”) are not legally attributable to the ITF. c. Moreover, the ITFT is entirely independent of the ITF. d. Concerning the alleged violation of Article 8 ECHR, the Respondent argues that “the Appellant does not have any right to privacy in relation to emails and documents that she sent to Mses Kozlova and Moiseeva; but even if she did, that right would be outweighed by the public interest in effective enforcement of the anti-doping rules”. 5) The Appellant’s allegations regarding fabricated evidence are wholly unsubstantiated. In particular, the Respondent argues that a. there is no evidence that the Appellant’s e-mails were fabricated and, b. that “the Appellant’s argument that the principle of alienus dolus nocere alteri non debet

(which the ITF understands translates roughly to ’no one should be charged for someone else’s trick’) has been violated because her emails have been fabricated must also fail ”. c. According to the Respondent, the documents filed by the Appellant are all entirely irrelevant to this case and do not suggest fabrication of the evidence submitted by the Respondent. 6) The Respondent rejects the Appellant’s allegation that the ITF or the ITFT concealed evidence. a. The requirements for participating in national-level tournaments run in Ukraine under the UTF are not relevant for these proceedings as Ms Kozlova is a WTA

member who does not compete in national-level events, but rather in international-level events. b. By not referencing the UTF player certificate in the Appealed Decision, the arbitrator of the ITFT has in no way hidden evidence, as he is not obliged to discuss all of the arguments raised by the Parties. 7) Each of the Appellant’s motions in the proceedings before the ITFT was carefully considered and properly rejected a. In particular, Respondent submits that the ITFT was right in rejecting the Appellant’s motion to dismiss the case because the preliminary hearing was held more than 21 days after the notice of charge was sent. b. It would be contrary to the public interest to dismiss an anti-doping charge without considering the merits. c. The Respondent also argues that the wording in Article 8.4.1 of the TADP is not mandatory. d. According to the Respondent, the Appellant did not claim or prove “that she had suffered any prejudice from the delay in convening the preliminary hearing. Absent such prejudice, the delay gives no cause to dismiss the charge”.

V. JURISDICTION OF THE CAS

71. Article R47 of the CAS Code provides as follows: “An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body”.

72. The jurisdiction of the CAS has been expressly consented to by the Parties in their submission to the CAS, confirmed by the Parties’ signing of the Order of Procedure and reconfirmed at the hearing on 22 December 2016. Accordingly, the Sole Arbitrator is satisfied that he is competent to hear this dispute.

VI. ADMISSIBILITY OF THE APPEAL

73. According to Article R49 of the CAS Code the time limit for appeal amounts to 21 days from the date of receipt of the Appealed Decision.

74. The Appealed Decision was issued on 9 June 2016 and the Statement of Appeal was filed on 30 June 2016. Consequently, the appeal was filed within the 21-day deadline set out above. The Appeal, thus, is admissible.

VII. APPLICABLE LAW

75. Article 187 of the Swiss Private International Law Act (hereinafter referred to as “PILA”) provides – inter alia – that “the arbitral tribunal shall rule according to the law chosen by the parties or, in absence of such a choice, according to the law with which the action is most closely connected”. This provision establishes a regime concerning the applicable law that is specific to arbitration and different from the principles instituted by the general conflict-of-law rules of the PILA.

76. In particular, the provisions enable the parties to mandate the arbitrators to resolve the dispute in application of provisions of law that do not originate in any particular national law, such as sports regulations of an international federation (cf. KAUFMANN-KOHLER/RIGOZZI, Arbitrage international, 2nd ed. 2010, paras. 597, 636 et seq.; POUDRET/BESSON, Comparative Law of International Arbitration, 2007, para. 679; RIGOZZI A., L’arbitrage international en matière de sport, 2005, paras. 1177 et seq.).

77. According to the legal doctrine, the choice of law made by the parties can be tacit (Zürcher Kommentar zum IPRG-HEINI, 2nd ed. 2004, Art 187 para. 11; BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 3rd ed., 2015, para. 1387; KAUFMANN- KOHLER/RIGOZZI, Arbitrage international, 2nd ed. 2010, para. 609) and/or indirect, by reference to the rules of an arbitral institution (RIGOZZI A., L’arbitrage international en matière de sport, 2005, para. 1172; KAUFMANN-KOHLER/STUCKI, International Arbitration in Switzerland, 2004, p. 118 et seq.). Thus, in agreeing to arbitrate the present dispute according to the CAS Code, the Parties have submitted to the conflict-of-law rules contained therein, in particular to Article R58 of the CAS Code.

78. Article R58 of the CAS Code states in respect of the applicable law to the merits as follows: “The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

79. Article R58 of the CAS Code refers first and foremost to the “applicable regulations”. These are, in principle the TADP. However, in order for the TADP to be qualified as the “applicable regulations”, the TADP must have been agreed by the Parties, i.e. the Appellant must have submitted to these rules either explicitly or implicitly. Absent any law chosen by the Parties, the Sole Arbitrator will decide the issue whether or not the Appellant has submitted to the TADP according to the law of the country in which the ITF is domiciled, i.e. English law. In doing so, the Sole Arbitrator takes into account the submission of the Respondent in its letter to the CAS dated 12 December 2016, according to which “the requirements of the common and civil law are effectively the same on this issue”, i.e. whether or not there is an agreement between the Parties to apply the TADP.

VIII. SCOPE OF REVIEW

80. Article R57 of the CAS Code provides: “The Panel has full power to review the facts and the law. It may issue a new decision which r eplaces the decision challenged or annul the decision and refer the case back to the previous instance. (…)” .

81. Thus, the Sole Arbitrator has the authority to provide a de novo review of the issues determined by the ITFT. As a consequence, even if the Appellant’s right to a fair trial had been violated in the proceedings before the ITFT acting as a first instance tribunal, a de novo hearing before the CAS cures these violations. The same holds true for the Appellant’s claim of an alleged violation of the procedural principle of “nemo iudex in causa sua”.

IX. MERITS OF THE APPEAL

82. The Appellant has filed several requests which the Sole Arbitrator will examine thereafter:

A. The request to declare the Appealed Decision null and void

83. The Appellant requests that the Appealed Decision be declared null and void. It is undisputed between the Parties that the Appellant has standing to sue and the Respondent standing to be sued with respect to the Appealed Decision. It is equally undisputed between the Parties that the Appealed Decision must be squashed or declared null and void in case the Appellant is not submitted to the disciplinary authority of the ITF, i.e. if the ITFT had no jurisdiction to sanction the Appellant. The Respondent explicitly and rightfully submitted in its letter to the CAS dated 12 December 2016 that the ITFT’s disciplinary authority depends on the TADP being binding on the Appellant and that the TADP “are binding only on those who agree to them”. The Sole Arbitrator, therefore, must determine whether or not the Appellant accepted to be bound by the TADP and, thus, whether the Parties entered into a contract in between them. Reference is made in this respect to an article by ALAN SULLIVAN, in which the author found as follows (The World Anti-Doping Code and Contract Law, in Haas/Healey (Eds.) Doping in Sport and the Law, 2016, p 70): “If it stands for a broader proposition that a sporting organisation’s rules apply to a person who, by his or her actions, brings himself or herself within the purview of those rules, even though not contractually bound by them, then it seems inconsistent with legal principle. On what basis can it be said that “rules” are enforceable against strangers when there is no relevant contractual, proprietary or statutory power? As D enning LG, as he then was, put it colourfully but accurately: “The jurisdiction of a domestic tribunal … must be founded on a contract, express or implied. Outside the regular courts of this country, no set of men can sit in judgment on their fellows except so far as parliament authorizes it or the parties agree to it”.

84. The execution of a contract requires two concurrent declarations of intent, i.e. an offer by one party and an acceptance by the other party. Absent any specific provision to the contrary, the declaration of intent may either be expressly or tacitly. No written form requirement needs to be met. Furthermore, the declarations of intent must be corresponding in order for there to

be a valid contract. Thus, the Parties must agree on the essentialia negotii of the contract, i.e. – in this specific case – that the TADP is applicable between them.

85. It is undisputed that there is no explicit contract between the Parties declaring the TADP applicable between them. Consequently, the Arbitrator must examine whether such contract has been entered into implicitly. In doing so, the Sole Arbitrator concurs with the view expressed by his learned colleague ALAN SULLIVAN (The World Anti-Doping Code and Contract Law, in HAAS/HEALEY (Eds.) Doping in Sport and the Law, 2016, pp 68 seq.), according to which “What happens if … an athlete does not sign such a document but still participates in the sport? What happens when a sporting club brings in an outsider, such as a “sports scientist”, as a “consultant”, and that person is neither an employee of the organisation nor signs anything agreeing to be bound by its rules? … the answer will depend on the ordinary principles of contractual formation adapted to the sporting context and applied to the facts of the specific case. Even where there is no traditional offer and acceptance or where a person has not signed a document acknowledging to be bound by the rules, parties may become bound by a contract when they intend and contemplate becoming bound by such a contract. This is an objective inquiry that needs to be answered idiosyncratically on the facts of each case. In the case of a contract comprising or including anti-doping rules, the need for the conduct of the parties to be capable of proving all of the essential elements of an express contract necessarily means that the relevant conduct must show, on the balance of probabilities, that a person has agreed to participate in the particular sport at least in the knowledge that anti-doping rules exist and are intended to apply in respect of such participation. Such conduct may be hard to prove absent evidence of attendance at meetings or the like where the anti -doping policy was mentioned or discussed, or evidence of the notoriety of the existence of such rules in the sport. It is notorious, for example, that anti-doping rules, the Code, apply in respect of Olympic sports. It would be easy to infer that an athlete or support person who participates in such a sport was aware that he or she was doing so in circumstances where anti-doping rules applied in respect of such participation”.

86. The Sole Arbitrator notes that according to the above author a tacit declaration of will may be deduced from a conduct of a party. A conduct from which one might typically infer that someone agrees to be bound to the rules is – as the author puts it – if the person participates in the sport. It appears evident to the Sole Arbitrator that the term “participation in sport” within the above meaning refers to entering into the “sphere of control” of the sports organisation. Such construction is also in line with the World Anti-Doping Code (WADC) that states in its introduction that “Athletes or other Persons accept these rules [anti-doping rules] as a condition for participation and shall be bound by these rules”. Only a (moral or natural) person having control over a certain sphere can set up “condition for participation”. Thus, in case an athlete participates in a competition organised by a federation the athlete agrees to be bound by the applicable rules in said competition in turn for being admitted to the federation’s sphere of control. However, in the case at hand the Appellant never participated in any of the competitions organised and governed by the ITF. The Appellant never entered the Respondent’s “sphere of control” and never had any connection to or ties with the ITF before the ITFT exercised disciplinary authority over her. Once the Appellant entered the ITF’s sphere of control she clearly and unequivocally contested the ITFT’s jurisdiction. Thus, it cannot implicitly be

inferred that the Appellant by participating in the disciplinary proceedings before the ITFT accepted to be bound by the respective provisions.

87. The Sole Arbitrator cannot accept Respondent’s argument that merely by becoming an expert in the field of sports, e.g. by becoming a more or less renowned sports physician and treating or advising professional athletes one automatically agrees to be bound by the TADP. If one were to follow this line of argument, the Appellant – by the mere fact of becoming a sport physician – would have agreed to be bound by every existing anti-doping rule of this world. Not only does it appear completely fictitious to deduce such a will from this rather neutral conduct of the Appellant. In addition, it should be noted that one of the essentialia negotii of a contract is that the parties are aware of the identity of their contractual partners. If one were to follow Respondent’s submission not only would the Appellant have entered (tacitly) into submission agreements with all anti-doping organisations around the world, but also ITF would have executed – tacitly – contracts with all sports physicians around the world. Such intent, however, cannot be followed from the Appellant’s conduct and, therefore, the Sole Arbitrator is not willing to accept such legal construction.

88. The view held here is not contradicted by any of the reference to CAS decisions or decisions by other adjudicatory panels submitted by the Respondent. There is not a single case where the panels found that there was an implied submission agreement to the rules and regulation of a federation without the person entering or participating or being admitted to a sphere of control of the federation.

89. On a side note the Sole Arbitrator wishes to state that the construction advocated by the Respondent is also contradicted by Article 2.10 WADC. The provision reads – inter alia – as follows: Association by an athlete … subject to the authority of an anti-doping organization in a professional or sportrelated capacity with any Athlete Support Person who: … If not subject to the authority of an anti-doping organization, and where Ineligibility has not been addressed in a results management process pursuant to the Code, has been convicted or found in a criminal, disciplinary or professional proceeding to have engaged in conduct which would have constituted a violation of anti-doping rules if Code-compliant rules had been applicable to such Person. The disqualifying status of such Person shall be in force for the longer of six years from the criminal, professional or disciplinary decision or the duration of the criminal, disciplinary or professional sanction imposed.

90. This provision evidences that Athlete Support Personnel – even though being involved in sport – are not automatically bound by the anti-doping rules, i.e. have not automatically executed a submission contract with respect to the WADC. It is rather telling that the WADC and the TADP differentiate between a PSP that is subject to the authority of an Anti-Doping Organisation and a PSP who is not subject to the authority of an Anti-Doping Organisation. This highlights that assisting an athlete as such is not considered “participation in sport” and thereby agreeing to the anti-doping rules.

91. More particular, the Sole Arbitrator finds that also by providing advice and medical examination to the Athlete the Appellant has not entered into a contract with the Respondent. The Appellant denies having contracted with the Athlete. However, from the abundant evidence gathered by the Respondent, it is very clear to the Sole Arbitrator that there was a contractual relationship between the Appellant and the Athlete starting in June 2013 and continuing through to early 2015. The Sole Arbitrator is convinced that the Appellant provided medical and pharmacological support to the Athlete by conducting physical examinations and recommending various medicines and products to help her manage the workload of life on the professional tennis circuit. The Appellant was reimbursed for her expenses and paid for every consultation. Moreover, the Sole Arbitrator is convinced that the Athlete agreed to pay the Appellant 10% of any prize money she won. Whether or not such contract was in writing is irrelevant from the Sole Arbitrator’s point of view.

92. This contractual relationship between the Appellant and the Athlete as shown above, however, does by no way mean that the Appellant also automatically entered into a concurrent legal relationship with a third party (the Respondent), thereby conferring disciplinary powers to the ITF. This would only be true if – very exceptionally – the contract between the Athlete and the Appellant had to be qualified as a contract for the benefit of a third party. There is, however, no evidence on file that the Athlete and the Appellant when executing the contract between them had in mind to confer upon the Respondent any disciplinary competence with respect to the Appellant.

93. In the light of the above, the Sole Arbitrator concludes that the Appellant never agreed or submitted to the TADP and thus cannot be bound by it. The Sole Arbitrator holds that the ITFT wrongly assumed jurisdiction over the Appellant and that, therefore, the Appealed Decision must be declared null and void.

B. The request for damages

94. In her Statement of Appeal, the Appellant claims compensatory damages in the amount of EUR 150,000 and punitive damages in the amount of EUR 250,000. The Sole Arbitrator notes that the claims submitted by the Appellant are completely unsubstantiated. The Appellant neither mentions a legal basis for the claims nor any conditions that must be fulfilled in order to be entitled to such damages. Furthermore, the Appellant neither submitted any evidence nor a skeleton calculation how she derived the figures claimed. Already for these reasons the claims must be dismissed.

95. In addition, the Sole Arbitrator notes that – in any event – there is no sufficient causal link between the Appealed Decision and the alleged damage suffered by the Appellant. In the hearing the Appellant argued that the damage suffered was due to the fact that she has been and still is associated with the Athlete’s doping case. This – according to the Appellant – damaged her reputation and caused a loss of revenues to her. Contrary to the Appellant’s explanations, the Sole Arbitrator finds that the Appellant is quite rightfully associated by the public with the Athlete’s doping case. From the evidence before the Sole Arbitrator it is crystal clear that not only there was an intense legal relationship between the Athlete and the

Appellant. In addition, it is apparent from the evidence before the Sole Arbitrator that it was the Appellant who recommended and provided the product Red Rum to the Athlete, a product that ultimately led to the adverse analytical finding. The objections by the Appellant to the Respondent’s detailed description of events and the evidence submitted by the latter are totally unreliable. There is no evidence on file that any of the e-mail correspondence between her and the Athlete have been fabricated. Nobody would have an interest in doing so. This is all the more true, since the Appellant picks and choses in relation to the Respondent’s evidence, i.e. regards some of the e-mails as authentic and others as fabricated just as it pleases her and is beneficial to her case. From the e-mail correspondence that the Appellant admits as being authentic it is apparent that she and the Athlete had a lasting, familiar and reliable professional relationship that necessarily lasted over a longer period of time. In the context of this relationship the Appellant provided nutritional and medical advice to the Athlete. This is corroborated also by the witness statement of the Athlete and her manager, whom the Appellant chose not to cross-examine. To conclude, therefore, the Sole Arbitrator finds that it was not the Appealed Decision (despite the lack of jurisdiction) that caused the Appellant damages. Instead, it was the Appellant’s ill advice to the Athlete that led the latter to ingest a product containing a prohibited substance and being sanctioned for an ADRV. The source and cause of the Appellant’s damaged reputation is solely or at least predominantly to be attributed to the Appellant’s shortcomings and unprofessional behaviour.

96. In the light of all of the above, the Sole Arbitrator concludes that the damage claims filed by the Appellant must be dismissed.

C. Declaratory Relief in respect to Articles 6, 8 ECHR

97. The Appellant does not state and explain why the ITF would be bound by the ECHR (which is primarily addressed to the contracting states) and inasmuch the Respondent breached the above articles. With respect to Article 6 ECHR it remains unclear to which of the several paragraphs the Appellant refers to. Also in respect to Art. 8 ECHR the claim is completely unsubstantiated. The Appellant was – even when being asked at the hearing – not in a position to give further guidance with respect to these claims. Consequently, these claims must be dismissed.

D. Request for a permanent injunction

98. The Appellant finally requested a permanent injunction that the Respondent “or related person” be prohibited “from using my name in doping case of Ms Katherina Kozlova”. With reference to the finding above, this request must fail from the outset, since – as previously established – the Sole Arbitrator is convinced that it was the Appellant that provided the Athlete with the product Red Rum which caused the ADRV of the Athlete.