International Association of Athletics Federations (IAAF) v. Mariya Bespalova, Russian Athletic Federation (RUSAF)

V. JURISDICTION

41. The IAAF ADR, which are applicable because the Request for Arbitration was filed on 6 April 2018, expressly permit ADRV cases to be filed directly with the CAS and referred to a single arbitrator appointed by the CAS. In this regard, IAAF ADR Rule 38.3 provides as follows:

“If a hearing is requested by an Athlete, it shall be convened without delay and the hearing completed within two months of the date of notification of the Athlete’s request to the Member. Members shall keep the IAAF fully informed as to the status of all cases pending hearing and of all hearing dates as soon as they are fixed. The IAAF shall have the right to attend all hearings as an observer. However, the IAAF’s attendance at a hearing, or any other involvement in a case, shall not affect its right to appeal the Member’s decision to CAS pursuant to Rule 42. If the Member fails to complete a hearing within two months, or, if having completed a hearing, fails to render a decision within a reasonable time period thereafter, the IAAF may impose a deadline for such event. If in either case the deadline is not met, the IAAF may elect, if the Athlete is an International- Level Athlete, to have the case referred directly to a single arbitrator appointed by CAS. The case shall be handled in accordance with CAS rules (those applicable to the appeal arbitration procedure without reference to any time limit for appeal). The hearing shall proceed at the responsibility and expense of the Member and the decision of the single arbitrator shall be subject to appeal to CAS in accordance with Rule 42. A failure of a Member to hold a hearing for an Athlete within two months under this Rule may further result in the imposition of a sanction under Rule 45”.

42. In this case, RUSAF was suspended and could therefore not hold a hearing in the deadline set out in Rule 38.3 of the IAAF ADR. Further, it is established that the Athlete is an International-Level Athlete in the sense of the IAAF ADR.

43. In the light of the foregoing, the Sole Arbitrator finds that the CAS has jurisdiction in this procedure. In addition, the jurisdiction of CAS was not contested by the Respondents.

VI. ADMISSIBILITY

44. Although the present procedure is a first-instance procedure and has, thus, been assigned to the Ordinary Arbitration Division, pursuant to Rule 38.3 of the IAAF ADR cited above, the rules of the appeal arbitration procedure set out in the Code shall apply. It has however to be noted that Rule 38.3 clearly states that this application is “without reference to any time limit for appeal”. Thus, the Request for Arbitration in the present case has to be considered made in a timely manner.

45. The Sole Arbitrator further notes that the Request for Arbitration, to be considered as combined Statement of Appeal and Appeal Brief for the purposes of articles R47 and R51 of

the Code, complies with the formal requirements set out by the Code. In addition, there are no objections as to the admissibility of the IAAF’s claims.

46. In these conditions, the Sole Arbitrator finds that the Request for Arbitration is admissible.

VII. APPLICABLE LAW

47. The present procedure is based on Rule 38.3 of the IAAF ADR. As already mentioned above, it follows from that rule that in a case directly referred to CAS “the case shall be handled in accordance with CAS rules (those applicable to the appeal arbitration procedure without reference to any time of limit for appeal)”.

48. Thus, the Code provisions applicable to the appeal arbitration procedure are applicable in the present procedure.

49. Article R58 of the Code provides 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”.

50. Rule 13.9.4 of the IAAF ADR provides as follows:

“In all CAS appeals involving the IAAF, CAS and the CAS Panel shall be bound by the IAAF Constitution, Rules and Regulations (including the Anti-Doping Regulations). In the case of any conflict between the CAS rules currently in force and the IAAF Constitution, Rules and Regulations, the IAAF Constitution, Rules and Regulations shall take precedence”.

51. This case is not an appeal. However, the purpose of the direct hearing at the CAS is to shortcut the otherwise applicable procedure. The substantive outcome of the shortcut should not differ from the outcome of the otherwise applicable procedure. Therefore, Rule 13.9.4 must apply by analogy.

52. Pursuant to Rule 13.9.5 of the IAAF ADR, the governing law shall be Monegasque law. However, the IAAF rules in question are to be interpreted in a manner harmonious with other WADC compliant rules.

53. Pursuant to Rule 21.3 of the IAAF ADR, anti-doping rule violations committed prior to 3 April 2017 are subject, for substantive matters, to the rules in place at the time of the alleged anti-doping rule violation. With respect to the procedural matters, Rule 21.3 of the IAAF ADR provides that “for Anti-Doping Rule Violations committed on or after 3 April 2017, these Anti-Doping Rules” shall apply and that “for Anti-Doping Rule Violations committed prior to 3 April 2017, the 2016-2017 IAAF Competition Rules” shall apply. Thus the procedural issues of the present arbitration shall be governed by the 2016-2017 IAAF Competition Rules.

54. According to Rule 21.3 of the IAAF ADR: “the relevant tribunal may decide it appropriate to apply the principle of lex mitior in the circumstances of the case”.

55. The IAAF argues that the Athlete’s alleged ADRVs occurred in 2012 and that the 2012-2013 IAAF Rules should, thus, apply.

56. Given that the alleged ADRV’s are believed to have taken place in the year 2012, the Sole Arbitrator holds that the substantive aspects of the present procedure are to be governed by the 2012-2013 IAAF Rules. He further considers that in view of the wording of Rule 21.3 of the IAAF ADR the sanction should be determined on basis of the lex mitior, which could be the IAAF ADR.

57. The Sole Arbitrator notes that, pursuant to Rules 33.1 of the 2012-2013 IAAF Rules, the burden of proof that an ADRV has occurred is on the IAAF and that the relevant standard of proof is that he must be comfortably satisfied that the Athlete committed an ADRV before making a finding against said athlete (see, e.g. CAS 2015/A/4163; CAS 2015/A/4129 and

VIII. MERITS — A. The Anti-Doping Rule Violations

58. The IAAF claims that the Athlete breached Rule 32.2(a) of the 2012-2013 IAAF Rules, prohibiting the Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete Sample, and Rule 32.2(b) of the 2012-2013 IAAF Rules, which prohibits the Use or Attempted Use of a Prohibited Substance or a Prohibited Method.

B. Discussion on the evidence taken into account by the Sole Arbitrator

59. In reaching his decision, the Sole Arbitrator has accepted into evidence all the evidence provided by the IAAF, in particular the McLaren Evidence.

60. In this regard, the Sole Arbitrator recalls that the admittance of evidence is subject to procedural laws. Given that the 2016-2017 IAAF Rules govern the admittance of evidence, the Sole Arbitrator has to refer to Rule 33(3) of these rules, which provides: “Facts related to anti-doping rule violations may be established by any reliable means, including but not limited to admissions, evidence of third Persons, witness statements, expert reports, documentary evidence, conclusions drawn from longitudinal profiling such as the Athlete Biological Passport and other analytical information”.

61. Regarding the alleged Presence Violation in the year 2012, the Sole Arbitrator notes that the sample provided by the Athlete on 7 August 2012 at the London Olympic Games tested positive for DHCMT and that the Athlete did not appeal the IOC Decision.

62. As regards the other alleged ADRV, considering the very large scope of elements that could be admitted as evidence, the Sole Arbitrator holds that the McLaren Evidence has to be

considered as evidence in the sense of the 2016-2017 IAAF Rules and that if considered as reliable, this evidence can be relied upon for the purpose of establishing facts related to an ADRV.

63. Further, when evaluating whether he was comfortably satisfied that an ADRV had occurred, the Sole Arbitrator did take into consideration all relevant circumstances of the case. In the context of the present case, and by analogy to other cases handled by the CAS concerning similar issues relating to similar evidence (CAS 2017/A/5379 and CAS 2017/A/5422), the relevant circumstances include, but are not limited, to the following:

- the IAAF is not a national or international law enforcement agency. Its investigatory powers are substantially more limited than the powers available to such bodies. Since the IAAF cannot compel the provision of documents or testimony, it must place greater reliance on the consensual provision of information and evidence and on evidence that is already in the public domain. The evidence that it is able to present before the CAS necessarily reflects these inherent limitations in the IAAF’s investigatory powers. The Sole Arbitrator’s assessment of the evidence must respect those limitations. In particular, it must not be premised on unrealistic expectations concerning the evidence that the IAAF is able to obtain from reluctant or evasive witnesses and other source.

- in view of the nature of the alleged doping scheme and the IAAF’s limited investigatory powers, the IAAF may properly invite the Sole Arbitrator to draw inferences from the established facts that seek to fill in gaps in the direct evidence. The Sole Arbitrator may accede to that invitation where he considers that the established facts reasonably support the drawing of the inferences. So long as the Sole Arbitrator is comfortably satisfied about the underlying factual basis for an inference that the Athlete has committed a particular ADRV, he may conclude that the IAAF has established an ADRV notwithstanding that it is not possible to reach that conclusion by direct evidence alone.

- at the same time, however, the Sole Arbitrator is mindful that the allegations asserted against the Athlete are of the utmost seriousness. The Athlete is accused, inter alia, of having used Prohibited Substances and having knowingly benefitted from a doping scheme and system that was covering up her positive doping results and registered them as negative in ADAMS. Given the gravity of the alleged wrongdoing, it is incumbent on the IAAF to adduce particularly cogent evidence of the Athlete’s deliberate personal involvement in that wrongdoing. In particular, it is insufficient for the IAAF merely to establish the existence of an overarching doping scheme to the comfortable satisfaction of the Sole Arbitrator. Instead, the IAAF must go further and establish, in each individual case, that the individual athlete knowingly engaged in particular conduct that involved the commission of a specific and identifiable ADRV. In other words, the Sole Arbitrator must be comfortably satisfied that the Athlete personally committed a specific violation of a specific provision of the 2012-2013 IAAF Rules.

- in considering whether the IAAF has discharged its burden of proof to the requisite standard of proof, the Sole Arbitrator will consider any admissible “reliable” evidence adduced by the IAAF. This includes any admissions by the Athlete, any “credible testimony” by third parties and any “reliable” documentary evidence or scientific evidence. Ultimately, the Sole Arbitrator has the task of weighing the evidence adduced by the Parties in support of their respective allegations. If, in the Sole Arbitrator’s view, both sides’ evidence carries the same weight, the rules on the burden of proof must break the tie.

64. As to the reliability of the McLaren Evidence, the Sole Arbitrator, notes, first, that the findings of the Second McLaren Report in relation to the “Disappearing Positive Methodology”, meet – according to the report – a high threshold, as the standard of proof that was applied was “beyond reasonable doubt” and, thus, can be considered as sufficiently reliable (OG AD 16/009, and CAS 2017/O/5039). In this regard, the Sole Arbitrator further notices that Dr. Rodchenkov has, on several occasions, testified that the results that were supposed to be reported in ADAMS have been systematically registered as negative and that said testimony has, until now, not been proven wrong.

65. Second, neither Prof. McLaren’s credibility nor his independence when establishing his reports have been objectively contested. The simple fact that he has been appointed as arbitrator by the WADA in cases at the CAS and has been during a certain period of time member of the WADA board does not affect the finding in his Reports as it is not even alleged that the WADA could have had an interest in seeing Prof. McLaren make the findings he did in his Reports. This is even more so as the said findings put WADA and its management of the whole anti-doping system in a bad light.

66. Third, a mere allegation, such as the one brought forward by the Athlete in her letter to the IAAF dated 17 November 2017, that Prof. McLaren’s findings are biased, not proven and/or are not reliable, does not constitute a substantiated contestations of the facts, such allegation being purely generic.

67. Fourth, the Sole Arbitrator considers that given the important number of athletes whose names were on the London Washout Schedule and whose samples provided at the 2012 London Olympic Games retested positive, said Schedule appears to be reliable evidence. This is further corroborated by the fact that the substances found in many of the retested samples provided at the 2012 London Olympic Games correspond to the substances listed, for the same athletes, on the London Washout Schedule.

68. Fifth, in difference to the information related to London Washout Schedule made public by Prof. McLaren (and which had been made available to the athletes), in which the names of the athletes had been replaced by codes, the documents submitted as evidence by the IAAF in the present case, which are the initial documents revised by Prof. McLaren and his team, contain the names of the athletes that provided the samples. Thus, this list is not affected by the errors that might have been made by Prof. McLaren and his team when coding the information contained therein.

69. Sixth, the reliability of the metadata of the evidence relied upon by Prof. McLaren to establish his Reports and by the IAAF in the present case has, at this stage, never been successfully contested and its contemporaneous character has not been questioned by the Athlete. Thus, the Sole Arbitrator sees no reasons to do so either and follows, on this aspect, the existing CAS jurisprudence (CAS 2017/O/5039).

70. Further, the Sole Arbitrator notes that it is uncontested that Dr. Rodchenkov, as director of Moscow Laboratory, was in a position to have access to all relevant data and information necessary to establish the Washout Schedules either himself or get them established by one of his subordinates at the Laboratory. It is moreover uncontested that the Moscow Laboratory was one of the leading anti-doping laboratories in the world and that it had the capacity to detect even the slightest traces of substances in a reliable manner. Finally it is uncontested that Dr. Rodchenkov had (and still has) the scientific knowledge and experience required to establish the Washout Schedules. Thus, the evidence based on his scientific expertise can be considered reliable as well.

71. The Sole Arbitrator holds that no element has been brought forward to validly contest the argument that Dr. Rodchenkov or one of his colleagues from the Moscow Laboratory, in particular Mr. Tim Sobolevsky, set up the London and the Moscow Washout Schedules for the purpose of assuring that the athletes on the list would not test positive at the events they were preparing. In particular, the Sole Arbitrator’s notes that no convincing element has been brought forward that would explain how Dr. Rodchenkov could have established, after having left his position of/as director of the Moscow Laboratory but before the publication of the results of the London Retests, a list with the names of athletes that allegedly had used prohibited substances, list which then turned out to be largely in line with the list of athletes whose samples provided at the 2012 London Olympic Games retested positive for exactly those substances referenced in the said Schedule.

72. The fact that the EDP documentation contains, as the Athlete has argued in her letter to the IAAF dated 17 November 2017 and as Prof. McLaren has acknowledged during a hearing in another procedure cases (CAS 2017/A/5379 and CAS 2017/A/5422), some errors does not invalidate the reliability of the whole findings as such, as an occasional error in the allocation of the codes in some cases does not affect the veracity of all the codes and the content of the samples allocated to the athletes. In any event, as already mentioned above, in the present matter, the evidence submitted by the IAAF does not contain the code number attributed to the Athlete, but the Athlete’s name.

73. The circumstance, that in other cases (CAS 2017/A/5379 and CAS 2017/A/5422) a Panel held that the mere fact that an athlete was on the Duchess List is not itself sufficient for the Panel to be comfortably satisfied that said athlete used prohibited substance cannot, in the view of the Sole Arbitrator, be transposed to the present or other cases in connection with the Washout Schedules as some of these Washout Schedules refer to samples given on a specific day, by a specific athlete in the context of an official anti-doping test. The fact that said athlete was tested can therefore not be contested. The only element that could be contested is the positive finding by the Moscow Laboratory in its initial testing procedure (“ITP”) related to the sample. However, as already mentioned above, the Sole Arbitrator

considers that there is no convincing explanation other than then the one that the Washout Schedules have been established in a contemporaneous manner and on basis of the findings in the ITP carried out by the Moscow Laboratory as to how Dr. Rodchenkov could have, ex post, established a list of fictive positive tests belonging to a large number of athletes out of which a relatively big part had, as it would turn out later, provided samples at the 2012 London Olympic Games that contained the Prohibited Substances that are to be found on the London Washout Schedule.

74. Finally, with regards to the argument that the positive findings in the retesting of the sample provided at the 2012 London Olympic Games was due to the faulty detection method developed, inter alia, by Dr. Rodchenkov, the Sole Arbitrator notes that such argument has already been thoroughly analyzed and then rejected by the CAS (CAS 2016/A/4803, 4804 & 4983). As no new elements have been raised in relation to this issue, the Sole Arbitrator does not see any valid grounds to distance himself from the findings of the Panel in those three cases.

75. In view of these considerations, the Sole Arbitrator holds that the McLaren Evidence and the London Washout Schedule are reliable elements that, taken together, form a body of concordant factors and evidence strong enough to establish an ADRV in this specific case.

C. Decision on liability

a) The occurrence of a violation of Rule 32.2(a) of the 2012-2013 IAAF Rules

76. The Sole Arbitrator notes that DHCMT has been found in the Athlete’s A- and B-sample provided on 7 August 2012 at the 2012 London Olympic Games.

77. The Sole Arbitrator further notes that the Athlete did not appeal the IOC Decision to disqualify her results obtained in the hammer throw event at the 2012 London Olympic Games and that, in the present proceeding, the Athlete did not contest the adverse analytical finding (AAF).

78. The Sole Arbitrator recalls that even the assertion, contained in the Athlete’s letter to the IAAF dated 17 November 2017, according to which the AAF would only be due to the faulty methodology developed by Dr. Rodchenkov, lacks any objective grounds and has, in substance, already been rejected by the CAS (see CAS 2017/A/5379 and CAS 2017/A/5422).

79. DHCMT is an exogenous androgenic anabolic steroid prohibited under section S1.1.a. of WADA’s 2012 Prohibited List.

80. Based on the above, the Sole Arbitrator is comfortably satisfied that the Athlete violated Rule 32.2(a) of the 2012-2013 IAAF Rules.

b) The occurrence of a violation of Rule 32.2(b) of the 2012-2013 IAAF Rules

81. In regard of the alleged violation of Rule 32.2(b) of the 2012-2013 IAAF Rules, the Sole Arbitrator, first, recalls that in the present proceedings there is no indication that the information contained in the McLaren Reports would not be reliable. Second, he shares the view, expressed by other Panels that the London Washout Schedule must be read in the context of the McLaren Reports as a whole and constitutes evidence that an athlete whose name appears on the said Washout Schedule used the prohibited substance(s) listed as having been found in his or her sample(s).

82. As regards the specific case of the Athlete, the Sole Arbitrator notes that the London Washout Schedule contains four (4) different entries related to the Athlete all of which show at least the presence of two (2) different prohibited exogenous anabolic steroids, i.e. DHCMT and Methasterone, and three (3) show the presence of a third prohibited exogenous anabolic steroid, i.e. Desoxymethyltestosterone, the first entry dating back to 17 July 2012. In this regard, it has to be recalled that it is not contested that the name on the London Washout Schedule refers to the Athlete. Further, it is not contested that on the dates of these entries the Athlete underwent official anti-doping control tests although all samples were reported as negative in ADAMS.

83. Given that the presence of one of these substances, i.e. DHCMT, detected by the ITP performed by the Moscow Laboratory in the sample provided on 17 July 2012, was established by the retest of the sample taken on 7 August 2012, the Sole Arbitrator considers that the AAF at the 2012 London Olympic Games confirms/corroborates the evidence according to which the Athlete used one or more prohibited substances to prepare for this competition.

84. In the light of these considerations, the Sole Arbitrator is comfortably satisfied that the Athlete is guilty of having used Prohibited Substances in the lead up to the 2012 London Olympic Games. In particular, the Sole Arbitrator is comfortably satisfied that the Athlete used Oral Turinabol (DHCMT), Methasterone and Desoxymethyltestosterone during her preparation for this major event as is shown by the results of the sample (2728640) as listed in the London Washout Schedule and dated 17 July 2012.

85. Based on the above, the Sole Arbitrator finds that the Athlete violated Rule 32.2(b) of the 2012-2013 IAAF Rules.

D. Decision on sanction

86. In view of the fact that, since 26 October 2015, the Athlete is serving a period of ineligibility of four (4) years further to an AAF for DHCMT in connection with an in-competition doping control on 6 September 2015, the IAAF acknowledges that the violations object of the present proceeding are not to be considered as “second violation” in the sense of the IAAF Rules. Consequently, the IAAF does not seek a further period of ineligibility against the Athlete.

87. Thus, the Sole Arbitrator does not need to address such period of ineligibility.

E. Decision on disqualification

88. This case concerns ADRVs committed in 2012 and the applicable rule on disqualification should thus be Rule 40.8 of the 2012-2013 IAAF Rules. Pursuant to this disposition:

“In addition to the automatic disqualification of the results in the Competition which produced the positive sample under Rule 39 and 40, all other competitive results obtained from the date the positive Sample was collected (whether In-Competition or Out-of-Competition) or other anti-doping rule violation occurred through to the commencement of any Provisional Suspension or Ineligibility period shall be Disqualified with all of the resulting Consequences for the Athlete including the forfeiture of any titles, awards, medals, points and prize and appearance money”.

89. However, as the IAAF argued that the lex mitior principle should apply, the Sole Arbitrator holds that Rule 10.8 of the IAAF ADR should apply as it contains an express fairness exception. Rule 10.8 of the IAAF ADR reads as follows:

“In addition to the automatic Disqualification, pursuant to Article 9, of the results in the Competition that produced the Adverse Analytical Finding (if any), all other competitive results of the Athlete obtained from the date the Sample in question was collected (whether In-Competition or Out-of-Competition) or other Anti- Doping Rule Violation occurred through to the start of any Provisional Suspension or Ineligibility period shall be Disqualified (with all of the resulting consequences, including forfeiture of any medals, titles, ranking points and prize and appearance money), unless the Disciplinary Tribunal determines that fairness requires otherwise”.

90. Although the IAAF sought, in its written submissions, that the Athlete’s results should be disqualified from the date of the proof of the earliest ADRV, i.e. 17 July 2012, until the commencement of her ineligibility period on 26 October 2015, it acknowledged, at the hearing, that the Sole Arbitrator could, on the basis of the fairness exception set out in Rule 10.8 of the IAAF ADR, reduce that period.

91. The Sole Arbitrator notes that according to the wording of Rule 10.8 of the IAAF ADR, all the competitive results of the Athlete as from the moment of the earliest violation, i.e. 17 July 2012, until the commencement of her ineligibility period on 26 October 2015 would have to be disqualified, unless fairness requires otherwise.

92. According to established CAS jurisprudence, the principle of proportionality requires a panel to assess whether a sanction is appropriate to the violation committed in the case at stake (CAS 2016/O/4481 and CAS 2017/O/5039), excessive sanctions being prohibited (CAS 2017/O/5039 and case-law cited).

93. While being aware that when assessing whether a sanction is excessive, a judge must review the type and scope of the proved rule-violation, the individual circumstances of the case, and the overall effect of the sanction on the offender (CAS 2017/O/5039), the Sole Arbitrator also notes that the question of fairness and proportionality in relation to the length of the disqualification period vis-à-vis the time which may be established as the last time that the

Athlete objectively committed a doping offence can be taken into consideration (CAS

94. In the present case, taking into consideration (1) that the Athlete has already been found guilty of having committed an ADRV on 6 September 2015, (2) that, in the present proceeding, the Athlete has been found guilty of having violated Rule 32.2 (a) as well as Rule 32.2 (b) of the 2012-2013 IAAF Rules, and (3) that the Athlete used multiple prohibited substances, i.e. three (3) different exogenous anabolic steroids, the Sole Arbitrator finds that the disqualification of all competitive results over a period of time of a bit more than three (3) years and three (39 months, i.e. from 17 July 2012 until 25 October 2015, does not seem unfair or disproportionate, even if there is no evidence that the Athlete was using a prohibited substance and/or a prohibited method between the 7 August 2012 and the 6 September 2015.

95. Consequently, in accordance with Rule 10.8 of the IAAF ADR, the Sole Arbitrator finds that all competitive results obtained by the Athlete from 17 July 2012 until 25 October 2015 shall be disqualified with all resulting consequences, including the forfeiture of any titles, awards, points, prizes and appearance money.