Alemitu Bekele Degfa v. International Association of Athletics Federations (IAAF), Turkish Athletics Federation (TAF)

III. PROCEDURAL HISTORY

19. By a statement of appeal dated 8 February 2013, Ms Bekele appealed against the underlying decision to the Court of Arbitration for Sport (“CAS”), naming the TAF as Respondent pursuant to Article R48 of the Code of Sports-related Arbitration (the “Code”). She also appealed at a national level to the national appeal body, the Arbitration Panel of the Turkish Directorate of Youth and Sport. At this stage she offered a further series of explanations for her apparently abnormal test results. That body decided to refer her medical case to an expert medical committee established by the Anti-Doping Commission of the Turkish National Olympic Committee.

20. In her statement of appeal, Ms Bekele nominated Prof Ulrich Haas as arbitrator.

21. On 22 March 2013, the IAAF having become aware of the appeal to the CAS, asserted the right to intervene as a party pursuant to Articles R41.3 and R54 of the Code.

22. On 12 April 2013, (after having been given various extensions of time) Ms Bekele filed her appeal brief pursuant to Article R51 of the Code. By it she sought both to set aside the decision of the Penal Board and (even if unsuccessful in that regard) to set aside the sanction of a fouryear period of ineligibility and to substitute it with a period of two years.

23. The appeal brief raised a number of issues which may be summarised as follows: (1) the possibility of incorrect flagging of abnormality; (2) alleged flaws in the sampling process, the analysis of the samples, and the conclusions which could be drawn from the analysis; and (3) the effects of severe malaria on the values found in some of the samples.

24. On 2 May 2013, shortly after the appeal brief was filed with the CAS, the Turkish national appeal body, having received the report of the expert committee to which it had referred Ms Bekele’s medical case, rejected Ms Bekele’s appeal and upheld the decision of the Penal Board.

25. On 6 May 2013, the TAF filed its “Statement of Defense” pursuant to Article R55 of the Code

26. On 13 May 2013, Ms Bekele and the TAF were notified of the constitution of the Panel to decide this appeal as follows:

President: His Honour James Robert Reid QC Arbitrators: Mr Ulrich Hass Mr Daniel Visoiu

27. Neither party objected to the composition of the Panel.

28. On 3 July 2013, having considered representations by the parties as to whether the IAAF should be joined as a party to the appeal, the Panel allowed the IAAF’s application to be joined as a Respondent. Reference is made to the grounds in that Order.

29. On 24 July 2013, the IAAF filed its Answer to the Appeal pursuant to Article R55 of the Code.

30. On 16 September 2013, in accordance with directions given by the Panel and having been allowed extensions of time, Ms Bekele filed her Reply to the IAAF’s Answer.

31. On 11 October 2013, in accordance with directions given by the Panel and having been given an extension of time, the IAAF filed its Rejoinder to Ms Bekele’s Reply.

32. By letter dated 9 December 2013, Ms Bekele, by her lawyers, informed the CAS that she was limiting the scope of her appeal to the length of the sanction imposed on her. In doing so she stated that this was not intended to be an admission of guilt to the anti-doping rule violation but that the decision was one taken in the light of her inability to afford further expert evidence intended to be adduced by the IAAF and the fact that if she were to succeed in having the length of the sanction reduced to two years, that sanction would have been served by 3 April 2014.

33. Ms Bekele and the IAAF signed the Order of Procedure on 13 December 2013. The TAF did not sign the Order of Procedure.

V. JURISDICTION OF THE CAS AND ADMISSIBILITY

39. The CAS has jurisdiction to decide the present dispute between the parties. This jurisdiction is not disputed by the parties and has been confirmed by the signing of the Order of Procedure. In addition, it is contemplated by Article R47 of the Code that:

“An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body”.

40. By Article 42.3 of the IAAF Competition Rules that:

“Appeals Involving International-Level Athletes: in cases involving International-Level Athletes or their Athlete Support Personnel, the first instance decision of the relevant body of the Member shall not be subject to further review or appeal at national level and shall be appealed only to CAS in accordance with the provisions set out below”.

41. It follows, therefore, that the CAS has jurisdiction to hear this appeal.

42. Moreover, the Panel notes that by virtue of IAAF Rule 42.13, Ms Bekele had forty-five (45) days in which to file her statement of appeal, beginning on the date the written reasoning of the underlying decision was provided to her. In this regard, the Panel notes that the reasoned underlying decision was notified to Ms Bekele on 25 December 2012. The filing of her

statement of appeal on 8 February 2013 is, therefore, timely and consequently this appeal is admissible.

VI. APPLICABLE LAW

43. By Article R57 of the Code, the Panel has full power to review the facts and the law.

44. Article R58 provides as follows:

“The Panel shall decide the dispute according to the applicable regulations and 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, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

45. By Rule 42.23 of the IAAF Competition Rules in all CAS appeals involving the IAAF, the governing law shall be Monegasque law and the arbitration shall be conducted in English, unless the parties agree otherwise. The relevant IAAF Rules and subsidiarily Monegasque law shall therefore be applied.

VII. THE RELEVANT COMPETITION RULES

46. The following IAAF Competition Rules are most material to this appeal and are set forth below, where relevant, as the framework for this award.

47. By Rule 32.2 of the IAAF Competition Rules:

“2. Athletes or other Persons shall be responsible for knowing what constitutes an anti-doping rule violation and the substances and methods which have been included on the Prohibited List. The following constitute anti-doping rule violations: (b) Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method. (i) it is each Athlete’s personal duty to ensure that no Prohibited Substance enters his body. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation for Use of a Prohibited Substance or a Prohibited Method. (ii) the success or failure of the Use or Attempted Use of a Prohibited Substance or Prohibited Method is not material. It is sufficient that the Prohibited Substance or Prohibited Method was Used, or Attempted to be Used, for an anti-doping rule violation to be committed”.

48. By Rule 33.1 and 2:

“1. The IAAF, the Member or other prosecuting authority shall have the burden of establishing that an antidoping rule violation has occurred. The standard of proof shall be whether the IAAF, the Member or other prosecuting authority has established an anti-doping rule violation to the comfortable satisfaction of the relevant hearing panel, bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt.

2. Where these Anti-Doping Rules place the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability, except as provided in Rules 40.4 (Specified Substances) and 40.6 (aggravating circumstances) where the Athlete must satisfy a higher burden of proof”.

49. By Rule 40.2:

“The period of Ineligibility imposed for a violation of Rules 32.2(a) (Presence of a Prohibited Substance or its Metabolites or Markers), 32.2(b) (Use or Attempted Use of a Prohibited Substances or Prohibited Method) or 32.2(f) (Possession of Prohibited Substances and Prohibited Methods), unless the conditions for eliminating or reducing the period of Ineligibility as provided in Rules 40.4 and 40.5, or the conditions for increasing the period of Ineligibility as provided in Rule 40.6 are met, shall be as follows: First Violation: Two (2) years’ Ineligibility”.

50. By Rule 40.6:

“If it is established in an individual case involving an anti-doping rule violation other than violations under Rule 32.2(g) (Trafficking or Attempted Trafficking) and Rule 32.2(h) (Administration or Attempted Administration) that aggravating circumstances are present which justify the imposition of a period of Ineligibility greater than the standard sanction, then the period of Ineligibility otherwise applicable shall be increased up to a maximum of four (4) years unless the Athlete or other Person can prove to the comfortable satisfaction of the hearing panel that he did not knowingly commit the anti-doping rule violation. (a) Examples of aggravating circumstances which may justify the imposition of a period of Ineligibility greater than the standard sanction are: the Athlete or other Person committed the anti-doping rule violation as part of a doping plan or scheme, either individually or involving a conspiracy or common enterprise to commit antidoping rule violations; the Athlete or other Person used or possessed multiple Prohibited Substances or Prohibited Methods or used or possessed a Prohibited Substance or Prohibited Method on multiple occasions; a normal individual would be likely to enjoy performance-enhancing effects of the anti-doping rule violation(s) beyond the otherwise applicable period of Ineligibility; the Athlete or other Person engaged in deceptive or obstructing conduct to avoid the detection or adjudication of an anti-doping rule violation. For the avoidance of doubt, the examples of aggravating circumstances referred to above are not exclusive and other aggravating factors may also justify the imposition of a longer period of Ineligibility. (b) An Athlete or other Person can avoid the application of this Rule by admitting the anti-doping rule violation as asserted promptly after being confronted with the anti-doping rule violation (which means no later than the date of the deadline given to provide a written explanation in accordance with Rule 37.4(c) and, in all events, before the Athlete competes again)”.

IX. MERITS OF THE APPEAL

63. The submissions of the parties were considered by the Panel in their totality. This Award, however, only sets out those matters which are necessary to the determination of the appeal.

64. The Panel has full power to review the facts and the law. Thus it is not necessary for Ms Bekele to go so far as to show that the decision of the Penal Board was one which no reasonable tribunal could have reached or that the decision was defective either in taking into account matters which it should not have done or failing to take into account matters which it should have done. The Panel is comforted in its view by CAS jurisprudence.

65. The Panel, however, has paid proper attention and given proper respect to the careful decisions of the Penal Board and the Arbitration Panel of the Turkish Directorate of Youth and Sport.

66. The Panel is comfortably satisfied that Ms Bekele committed anti-doping rule violations ahead of both the IAAF Indoor World Championships in Doha and the IAAF European

Championships in Barcelona in 2010. The unrebutted and strong evidence of Prof Schumacher and Prof D’Onofrio demonstrated clearly the commission of doping offences contrary to the IAAF Competition Rules. The Panel, like Prof Schumacher and Prof D’Onofrio, has suspicions that the results shown by Sample 1 demonstrate a further doping offence, but that suspicion is not enough to comfortably satisfy the Panel as to Ms Bekele’s guilt in relation to that sample.

67. The Panel is also comfortably satisfied that there are in this case aggravating circumstances which bring Competition Rule 40.6 into play. Conversely, Ms Bekele has failed to prove to the comfortable satisfaction of the Panel that she did not knowingly commit anti-doping rule violations. The Panel found her assertions that she had never engaged in any doping practice or method entirely unconvincing.

68. The Panel is comfortably satisfied that her conduct in advance of the taking of Samples 2 and 3, involving as it did a course of conduct over a considerable period, amounted to a doping plan or scheme. Whilst this was not a sophisticated conspiracy (such, for example, as that found in CAS 2008/A/1718-1724) this was not a case of an athlete taking a banned substance on a single occasion. It was a repetitive and planned application of drugs (rhEPO) or sophisticated, premeditated reinfusion techniques. Likewise, under these circumstances it is difficult to conceive that Ms Bekele acted without the help or assistance of others.

69. Furthermore, the Panel is comfortably satisfied that she used or possessed a Prohibited Substance or Prohibited Method on multiple occasions, in line with Rule 40.6(a) which states, in part: “Examples of aggravating circumstances which may justify the imposition of a period of Ineligibility greater than the standard sanction are: … the Athlete or other Person used or possessed multiple Prohibited Substances or Prohibited Methods or used or possessed a Prohibited Substance or Prohibited Method on multiple occasions…”. The nature of the findings by Prof Schumacher and Prof D’Onofrio make it clear that she must have repeatedly so acted.

70. As to the question whether Ms Bekele has been shown to have engaged in deceptive or obstructing conduct to avoid the detection or adjudication of an anti-doping rule violation, the view of the Panel is that for this factor to be brought into play an athlete must have done more than put the prosecuting authority to proof of its case. In light of the above, the Panel deems that it is not sufficient to establish an aggravating circumstance the mere fact that an athlete has relied on factors which are found not to be sufficient to explain the anomalies in his or her APB. If there were circumstances which showed to the comfortable satisfaction of the Panel that the threshold of what can be deemed to be a legitimate procedural defence is clearly exceeded, then this factor would be relevant. However, it was not suggested during the appeal that there was any principle of Monegasque law (the relevant law) which rendered it unlawful to take such a defence into account as an aggravating factor.

71. The position in this case was that the Athlete advanced various facts which she suggested could be responsible for the results found on the analysis of the various Samples. Although it was suggested that there were inconsistencies and improbabilities in the Athlete’s account of her whereabouts over the summer of 2010 and the bout or bouts of malaria she claimed to have suffered, the subject was not explored in any detail by the IAAF at the hearing. For example, it appeared at one stage that the IAAF might have been going to suggest that the supposed

medical records produced on behalf of the athlete were not what they purported to be, but this point was not pursued.

72. The further point which arose was that it could have been suggested that the cessation of the use of a Prohibited Substance or Method somewhere between one and three weeks before the events which the athlete was targeting amounted to deceptive conduct to avoid detection. The same point arose in CAS 2012/A/2773, on which the IAAF placed great reliance. The Sole Arbitrator did not find it necessary to determine the point in that particular case but observed at para 129:

“The Sole Arbitrator notes that most, if not all, doping practices are timed to avoid detection. As a result, an aggravating circumstance is likely to require a further element of deception. However, since IAAF Rule 40.6 is already engaged, this point may be left open in this case”.

The Panel respectfully agrees with the tentative view expressed by the Sole Arbitrator. Even if such conduct amounts to one aggravating circumstance something further is needed before the conduct is such as to justify an increased sanction for another additional aggravating circumstance. An example of such conduct can be found in CAS 2008/A/1718-1724 in which athletes were shown to have provided specimens which were not their own.

73. In these circumstances, the Panel is not comfortably satisfied that Ms Bekele engaged in deceptive or obstructive conduct in such a manner as to require the imposition of a per se increased sanction to be imposed on this ground.

74. The Panel, however, does reiterate its finding that Ms Bekele did demonstrate certain behaviours that lend themselves to the existence of aggravating circumstances. As previously mentioned, her course of conduct over at least a period of several months amounted to a doping plan or scheme, as well as her use or possession of a Prohibited Substance or Method on multiple occasions, thereby justifying the imposition of a period of ineligibility greater than the standard sanction of two-years ineligibility.

75. The question then is what greater period of ineligibility shall be imposed. The words of the Rule are “shall be increased up to a maximum of four (4) years”. These words impose a maximum. They do not mean that in every case in which there are aggravating circumstances a period of ineligibility of four years must be imposed.

76. The fact that the standard sanction will in the future be increased to a period of four-years ineligibility is irrelevant to the issues in this case. The case has to be decided on the rules as they stand, not on the rules as they will become in the future.

77. CAS 2012/A/2773, on which the IAAF placed great reliance, was a case in which neither Respondent filed an Answer and the Sole Arbitrator did not have the advantage of any argument on behalf of the athlete. The Sole Arbitrator found that the athlete used a Prohibited Substance as part of a structured regime between 2006 and 2009 and again in 2011. Further the athlete had used ferretin in concert with rhEPO or another ESA. The use of the additional substance to enhance the effects of a Prohibited Substance demonstrated a considerable degree of

forethought and was an additional element of planning in what was already a methodical and drawn out doping scheme. In those circumstances, the Sole Arbitrator found that there was a multiple triggering of Rule 40.6 and that the Ineligibility Period should be extended to four years. That decision reflected a greater culpability than that of Ms Bekele in the present case in which the period over which doping has been established is one year, but that fact does not of itself mean that the sanction in this case should be a lesser one. It is well arguable that the athlete in the CAS 2012/A/2773 case cleared the bar for the imposition of the maximum penalty by a considerable margin.

78. The Panel further notes that the threshold for an athlete to get a reduction from the standard sanction of two years is high, both in relation to the objective facts that have to be submitted and proven, as well as in relation to the degree of fault. Even if the conditions for a reduction or suspension of the period of ineligibility are fulfilled, panels in general are hesitant to allow for a maximum reduction, but rather tend to weight the circumstances speaking in favour of the athlete carefully and with a sense of proportion. Furthermore, the starting point for a reduction is, in principle, the standard sanction and not the lower limit of the sanction range. In the view of the Panel, the same principles should apply if – as it is the case here – an increase of the standard sanction is in question.

79. So far as the cases relied upon by Ms Bekele are concerned, the rules in those cases were not those of the IAAF. But the distinction relied upon by the IAAF (that the examples lifted from the comments in the WADA Code into the IAAF Competition Rules 40.6(a) are not specifically incorporated into the rules, for example, of the ICU) is not a persuasive reason to disregard those cases, in none of which was a four-year enhanced penalty imposed. The substantive part of each rule is the same and comes from a common source, the WADA Code. The examples set out in the WADA Comments and the IAAF Rules are expressly said not to be exclusive. Like all cases on penalty, it is not correct to describe the cases as setting a precedent as to the appropriate level of penalty in other cases. They are merely examples which may offer helpful guidance, and to the extent that they do offer helpful guidance, a panel will have regard to them.

80. The IAAF relied upon the fact that a four-year period of ineligibility had been established as the norm in blood doping cases in athletics. In CAS 2012/A/2773 at para 76, the Sole Arbitrator referred to Portugese Athletics Federation v Ornelas in which a four-year period of ineligibility had been imposed for blood doping offences apparently committed over a period of one year. However, as was observed in 2010/A/2235, albeit in relation to a different set of rules, the rules do not differentiate between various forms of first offence or suggest that blood manipulation attracts ratione materiae a higher sanction than the presence of a prohibited substance. It is the circumstances of the offence, not the commission of the offence itself, which may aggravate.

81. That said, blood doping offences are by their nature repetitive and sophisticated. Aggravating features which involve a doping plan or scheme and a repetitive and sophisticated use or possession of a Prohibited Substance or Method are likely to be regarded as aggravating circumstances which require a substantial increase over the standard sanction. It is also true that it is difficult to conceive that the Appellant acted without the help or assistance of others. The IAAF itself speculated that assistance might have been given to the Appellant by an athlete

support personnel. In this respect the Panel refers to the decision in CAS 2008/A/1718-1724 where it is stated at para 216:

“On the other hand the Panel finds, that the circumstances of the case do not warrant to go to the upper limit of the range of the period of ineligibility, ie up to 4 years. The extent of the doping program of which the Athletes were undoubtedly part of has not been completely uncovered. It is hardly conceivable that the Athletes could have acted the way they did without the assistance of athlete support personnel or persons holding certain official functions within the federation. The Panel is of the view that the Appellant may not have used all efforts at its disposal to uncover the full extent of the “doping program”. … In view of these persisting uncertainties the Panel does not find it just and equitable to go to the upper limit of discretion at its disposal concerning the length of the sanctions”.

82. In the present case, the established culpability of the athlete relates only to a single year and to the targeting of two competitions within that year, though by the repeated use of a Prohibited Substance or Method. This is offending on a substantially lesser scale than that of the athlete in CAS 2012/A/2773 whose career over five of six years appears to have been built on blood doping. It is also true that although Ms Bekele has been shown to have used a Prohibited Substance or Method repeatedly in targeting two competitions, in the great majority of cases in which an athlete tests positive for a Prohibited Substance, the athlete will not have indulged in a single one-off breach of the rules and in many cases will have been targeting a specific competition or series of competitions.

83. In all these circumstances of the cases, and having taken account of all the matters placed before the Panel, the Panel’s view is this is not a case in which the period of ineligibility should be increased to the maximum available. To do so would be to suggest that in all cases of blood doping a four-year period of ineligibility would under the rules as they stand be almost de rigueur, when the rules do not make specific provision for a more severe penalty in blood doping cases. Again, each case has to be considered on its own merits and in the particular circumstances of this case, taking account of the gravity of the aggravating circumstances which have been established. As such, the Panel takes view that the appropriate period of ineligibility in this case is two years and nine months.

X. CONCLUSION

84. The result is that the appeal of Ms Bekele is allowed to the extent that the period of ineligibility which she must serve is increased over the standard sanction to a period of two years and nine months, such period to commence on the date of this decision but credit being given for the periods of ineligibility already served which commenced on 2 April 2012.