Tatyana Chernova v. International Association of Athletics Federations (IAAF)

II. BACKGROUND FACTS

3. The present section sets out a summary of relevant facts as advanced by the Parties in their written submissions and accompanying exhibits. It serves the purpose of synopsis only. Additional facts are set out further below to the extent the Panel considers them necessary or relevant, but the present Award refers only to such evidence and arguments where its reasoning so requires. The Panel has nonetheless considered all facts and legal arguments placed before it.

4. The present case concerns the appeal of the Athlete against a first-instance award dated 29 November 2016 (CAS 2016/O/4469) (the “Appealed Award”), in which CAS Sole Arbitrator Michael Geistlinger deemed the Athlete in violation of Rule 32.2(b) of the IAAF Rules based on an analysis of Ms. Chernova’s Athlete Biological Passport (“ABP”). As a result of that finding, the Athlete was suspended from competition for a period of three years and eight months starting from 5 February 2016. In addition, the Appellant’s results as from 15 August 2011 were nullified to 22 July 2013, including forfeiture of all titles, awards, medals, points, and prize and appearance money obtained during this period. On appeal, the Athlete alleges

that the IAAF improperly referred the dispute to CAS rather than conducting its own firstinstance hearing in the place of ARAF (which has been suspended by the IAAF since November 2015 and, but for its current suspension, would have adjudicated the dispute). Accordingly, this appeal purely focuses on a jurisdictional issue and therefore does not require review of the Sole Arbitrator’s finding that “the Athlete engaged in blood doping practices throughout the period between August 2009 to at least July 2013”.

5. From 14 August 2009 to 13 November 2014, the Athlete provided nineteen blood samples to the Respondent for inclusion in her ABP Profile, which functions as a longitudinal logbook of an athlete’s biological indicators designed to assess whether there is an anomalous deviation from that athlete’s baseline values indicative of doping.

6. The Athlete has faced two separate and parallel investigations against her. The first of these concern a 2009 sample, re-tested in 2013, which tested positive for “oral turinabol”, a prohibited anabolic steroid. The Athlete was consequently tried and sanctioned by the Disciplinary Anti-Doping Committee of the Russian Anti-Doping Authority on 20 January 2015. The IAAF deemed the sanction to be too lenient and filed an appeal against it; that appeal is currently pending before CAS but has been suspended pending resolution of this case.

7. The present proceedings concern the Appellant’s haematological ABP; they are therefore based on longitudinal profiling and indirect analyses of the Athlete’s blood values as resulting from the collection of many samples, not on direct analytical detection of a prohibited substance in a single, discrete sample.

8. The case has its genesis in a letter dated 24 April 2015 from the IAAF to ARAF, in which the IAAF stated that it was considering bringing charges against the Athlete. Before disciplinary proceedings were commenced, ARAF was suspended from IAAF membership during the IAAF Council convention in Monaco on 26 November 2015.

9. On 5 February 2016, the IAAF notified ARAF that: (i) in its view an additional anti-doping rule violation had occurred; (ii) the Athlete was provisionally suspended with immediate effect; and (iii) the IAAF would assume responsibility for disciplinary proceedings, in light of ARAF’s own suspension.

10. The letter – whose contents the IAAF requested to be notified to the Athlete and which it forwarded to her by e-mail on 9 February 2016 – informed the Athlete that, in the event she requested a hearing, such hearing would proceed under either IAAF Rule 38.3 (“Sole Arbitrator with a right of appeal to a CAS Panel”) or Rule 38.19 (“Single CAS Hearing”). That text is excerpted below:

E. CAS Hearing

Pursuant to IAAF Rule 38.2, the Athlete has a right to request a hearing within fourteen (14) days of this notice. […]

As you will be aware, ARAF is currently suspended from membership of the IAAF. As a consequence of such suspension, the IAAF has taken over the responsibility for coordinating disciplinary proceedings in inter alia the case of the Athlete […].

If the Athlete requests a hearing […] her case will be referred to the Court of Arbitration for Sport (CAS) in Lausanne (Switzerland) for a hearing to be conducted, at her election, in accordance with one of the following two procedures:

Before a Sole Arbitrator of the CAS sitting as a first instance hearing panel pursuant to IAAF Rule 38.3. The case will be prosecuted by the IAAF and the decision will be subject to an appeal to CAS in accordance with IAAF Rule 42; or

Before a CAS Panel sitting as a single hearing, with the agreement of WADA and any other anti-doping organisations with a right of appeal, in accordance with IAAF Rule 38.19. The decision rendered will not be subject to an appeal (save to the Swiss Federal Tribunal). […]

In the event that the Athlete elects to proceed with the ABP case within the context of a single CAS hearing (on the basis of IAAF Rule 38.19) to be conducted in accordance with the rules applicable to CAS appeal arbitration procedures, the IAAF intends to request that either (i) the two cases be formally consolidated or (ii) they both be referred to the same Panel.

For the avoidance of doubt, the comments in this [section] are made without any prejudice to the Athlete’s freedom to choose to proceed under either IAAF Rule 38.3 or IAAF Rule 38.19. However, as that choice will inform the manner in which the IAAF seeks to pursue both sets of proceedings, the IAAF wished to give the Athlete fair warning of the possible procedural consequences of her choice.

11. The Athlete, through her representative, responded by e-mail on 19 February 2016. The relevant part of the response reads:

Regarding you[r] letter dated February 05, 2016 (received by Tatyana Chernova and her representative on February 09, 2016), which concerns Tatyana Chernova (the Athlete) violating anti-doping provisions, in particular IAAF Rule 32.2 (b), and suspending the Athlete from all competition until the court passes a final disposition under her case[.]

We hereby inform you that Athlete requests a hearing, as per IAAF Rule 38.2, according to the requirements of the Code of Sports-Related Arbitration (CAS) because the Athlete denies the accusation presented in terms of the Athlete’s Biological Passport.

According to your letter dated 05.02.2016, Athlete’s case shall be transferred to the Court of Arbitration for Sport in Lausanne (Switzerland), should the Athlete request a hearing within the period specified in paragraph 10 of the letter.

III. THE ARBITRAL PROCEEDINGS

12. The following section summarizes the proceedings before the CAS Sole Arbitrator and in the present appeal.

A. Proceedings before the CAS Sole Arbitrator

13. On 23 February 2016, the IAAF filed its Request for Arbitration with CAS and requested that the matter be referred to a Sole Arbitrator. Two days later, on 25 February 2016, the CAS Court Office confirmed that the case had been transferred to the CAS Ordinary Arbitration Division but would be dealt with according to the Appeals Arbitration Division Rules.

14. The Athlete filed her Answer on 1 April 2016. Ms. Chernova requested, inter alia, that the “Appeal of IAAF […] be rejected as inadmissible because of lack of jurisdiction”.

15. On 11 April 2016, the IAAF informed the CAS Court Office that CAS was “effectively acting as a substitute for the ARAF because of the ARAF’s inability to conduct disciplinary proceedings in Russia in due time”. In the Respondent’s view, therefore, the IAAF Rules called for the costs of proceedings to be borne by ARAF.

16. On 19 April 2016, the IAAF filed a Submission on Jurisdiction, requesting that the Athlete’s objections to the jurisdiction of CAS and to the admissibility of the claim be dismissed.

17. Following his appointment, the CAS Sole Arbitrator rendered the Appealed Award on 29 November 2016, upholding jurisdiction and partially granting the relief sought by the IAAF. As to jurisdiction, which is the only matter of relevance at present, he concluded the following:

(a) Article R47 of the Code of Sports-related Arbitration (“CAS Code”) permits the submission of a “case” to CAS either “by application of a statutory rule providing for jurisdiction” or “by an arbitration agreement”. CAS had jurisdiction by virtue of the “statutory rule” found in IAAF Rule 38.3.

(b) The Parties’ correspondence made clear that the IAAF “would refer the matter to CAS”. The response of the Athlete’s legal counsel, of 19 February 2016, “can only be understood as requesting” a hearing before CAS, “and not as requesting […] a hearing before the IAAF as alleged”. This correspondence, moreover, rendered the Athlete’s arguments as to the interpretation of IAAF Rule 38.3 “not consistent and not convincing”.

Accordingly, the Sole Arbitrator dismissed the Athlete’s objections to jurisdiction.

B. The Appeal

18. On 12 January 2017, the Appellant filed her Statement of Appeal in accordance with Article R47 et seq. of the CAS Code, challenging the jurisdiction of the Sole Arbitrator and nominating Mr. Mika Palmgren, Attorney-at-Law in Turku, Finland, as arbitrator.

19. The Appellant submitted her Appeal Brief, including various legal and factual exhibits enclosed thereto, on 20 January 2017, in accordance with Article R51 of the CAS Code.

20. On 30 January 2017, the Respondent nominated Professor Massimo Coccia, Attorney-at-Law in Rome, Italy, as arbitrator.

21. On 23 February 2017, the IAAF submitted its Answer in accordance with Article R55 of the CAS Code.

22. On 9 March 2017, the CAS Court Office, on behalf of the President of the Appeals Arbitration Division, constituted the Panel as follows:

President: Professor Jan Paulsson, Attorney-at-Law in Washington, D.C., USA

Arbitrators: Mr. Mika Palmgren, Attorney-at-Law in Turku, Finland

Professor Massimo Coccia, Attorney-at-Law in Rome, Italy

23. On 26 April 2017, the Parties were informed that Mr. Philipp Kotlaba, Attorney-at-Law in Washington, D.C., USA had been appointed as ad hoc clerk.

24. On 4 May 2017, the CAS Court Office informed the Parties that the Panel, having considered the Parties’ positions concerning the need for a hearing and upon review of the Parties’ submissions in this procedure, deemed itself sufficiently well informed to render a decision in the proceedings without a hearing and on the basis of the Parties’ written submissions only.

25. An Order of Procedure was circulated on 11 May 2017. The Appellant and the Respondent returned signed copies to the CAS Court Office on 12 and 16 May 2017, respectively.

IV. POSITIONS OF THE PARTIES

26. This section serves only as a summary of the Parties’ positions. It does not necessarily include every submission advanced in pleadings and other correspondence. The Panel has, however, considered all arguments presented to it in rendering the present Award.

A. The Appellant’s Position

27. The Appellant asserts that the Respondent erred in failing to hold its own first-instance hearing, substituting for the suspended ARAF, prior to referring the dispute to CAS. Absent first-instance adjudication by the IAAF, Ms. Chernova submits, there was no agreement to arbitrate the matter before CAS, either as a matter of the IAAF Rules or by virtue of the Parties’ correspondence.

(i) Article R47 of the CAS Code imposes threshold requirements which the IAAF did not meet.

28. In the view of the Appellant, Article R47 of the CAS Code applies and imposes threshold procedural requirements that were unsatisfied when the IAAF referred the dispute to a CAS Sole Arbitrator.

29. Article R47 is titled “Appeal” and appears directly below the heading “Special Provisions Applicable to the Appeal Arbitration Procedure”. It reads:

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.

30. The requirements of Article R47, in the Appellant’s view, include the existence of a firstinstance decision against which an appeal is sought, exhaustion of legal remedies, and, finally, either “statutes or regulations” or a “specific arbitration agreement” vesting CAS with jurisdiction. She submits that the IAAF failed all of these:

(a) No Appeal – The Appellant considers that, by definition, no appeal can exist where there is no prior, first-instance decision issued by ARAF or the IAAF (in light of Russia’s suspension and as analyzed in detail below).

(b) No Exhaustion – Similarly, the IAAF failed to exhaust legal remedies by failing to conduct its own first-instance hearing. The Appellant argues that CAS jurisprudence places great weight on the exhaustion requirement (see, e.g., CAS 2007/A/1373, providing that Article R47 contemplates that CAS “cannot hear an appeal if all internal legal remedies have not been exhausted without effectively depriving the Athlete of his/her right to [a] first-instance hearing from which she would have the right to appeal”) and draws attention to the IAAF’s letter of 5 February 2016, in which the Respondent indicated it had “taken over responsibility for coordinating the disciplinary proceedings” from Russia. One such “responsibility” which the IAAF must be understood as taking over, the Appellant submits, is the responsibility for conducting a hearing. Since the IAAF immediately referred the matter to CAS upon suspending Russia’s membership, it failed, in essence, to exhaust a remedy expressly contemplated under its own rules.

(c) No Agreement – Third, Article R47 only permits the referral of an appeal to CAS “if the statutes or regulations of said body so provide or if the parties have concluded a specific arbitration agreement”. There is no jurisdictional basis capable of satisfying this requirement, in the Appellant’s view, either by statute or separate arbitration agreement. Specifically, she alleges that Rule 38.3 of the IAAF Rules fails this purpose and that the Parties did not otherwise agree to refer the matter to CAS through their correspondence.

(ii) IAAF Rule 38.3 did not confer jurisdiction to CAS over a first-instance hearing.

31. As a preliminary matter, the Appellant argues that any arbitration agreement must be specific and unequivocal, with ambiguities to be construed against the drafting party.

32. The Appellant submits in particular that Rule 38.3 of the IAAF Rules did not vest CAS with jurisdiction. That rule operates hand in hand with Rule 38.2, which guarantees athletes the right to request a hearing in respect of anti-doping rule violation allegations against them. Rule 38.3, in turn, specifies that, where an athlete so requests, a hearing is to be held and completed by a national member federation within two months. Should the member federation fail to hold a hearing, or where it “fail[s] to complete” one within two months, the IAAF “may elect” to refer the matter to a CAS Sole Arbitrator operating under the rules applicable to appeal arbitrations (Article R47 et seq. of the CAS Code).

33. In the Appellant’s view, Rule 38.3 fails to serve as a valid “arbitration agreement” providing for CAS jurisdiction in the first instance. She draws attention to the following language (emphasis in pleadings):

If the Member [ARAF] 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 […] to have the case referred directly to a single arbitrator appointed by CAS.

34. The Appellant considers that ARAF’s suspension has effectively deprived ARAF of the opportunity to comply with its obligation under the IAAF Rules to conduct a hearing. Absent such an opportunity, she submits, it is impossible for the express precondition to a CAS referral, as provided under Rule 38.3, to have been satisfied:

As ARAF has been suspended by IAAF it has not been able to fulfill its obligations stated in the article 38.3 of IAAF Rules. […] As ARAF has not even been given a possibility to fulfill its responsibilities according to the Rule 38.3 and IAAF can only have the case referred to a single arbitrator appointed by CAS when a Member has failed to complete a hearing or render a decision in time, IAAF has no right to refer the case to CAS.

35. The Appellant further considers the IAAF’s own correspondence to strengthen her interpretation of Rule 38.3. On 5 February 2016, the IAAF informed the Athlete, through ARAF, of the charges against her and observed that it had “taken over responsibility for coordinating the disciplinary proceedings” in light of ARAF’s suspension. This wording suggests that IAAF would “take over” the core responsibility of adjudication of her case, as would ordinarily be required of ARAF under Rule 38.3: “It is a fact that IAAF cannot ‘take over’ any other responsibilities than those of ARAF”.

36. The Appellant’s position is therefore grounded both on a textual reading of the applicable law and on the IAAF’s conduct. To the extent the text of Rule 38.3 is ambiguous, however, the Athlete submits that Rule 38.3 should be construed in her favor and against the IAAF (the party that proffered it), in accordance with the principle of contra proferentem. The Appellant recalls, in this regard, that she “has had no possibility to influence the content of the arbitration clause”. As a prudential matter, moreover, the Appellant takes issue with the implications of permitting the IAAF to proceed to CAS directly where, were ARAF not suspended, it would have lacked the ability to do so:

ARAF was suspended by IAAF. By suspending a Member by its own actions IAAF cannot expand its own rights as a contractual party and get the right to appeal to CAS as a first instance. IAAF’s interpretation leads exactly to that.

37. Finally, the Appellant denies that her arguments with respect to Rule 38.3 lack credibility or are estopped – as the Sole Arbitrator appeared to conclude – by virtue of her representative’s correspondence with the IAAF. (As Ms. Chernova’s arguments in relation to the import of her counsel’s letter of 19 February 2016 are primarily relevant to whether a separate arbitration agreement was formed between the Parties, they are treated below.)

(iii) The Parties’ correspondence did not otherwise create an arbitration agreement.

38. Having sought to establish that Rule 38.3 of the IAAF Rules cannot serve as an arbitration agreement endowing CAS with jurisdiction over a first-instance hearing, the Appellant additionally argues that the Parties have not otherwise agreed to submit the matter to CAS, including by their correspondence of February 2016.

39. The Athlete responded via e-mail sent by her counsel on 19 February 2016, responding to the IAAF’s letter concerning referral of the matter to CAS. The message reads, in relevant part:

We hereby inform you that Athlete requests a hearing, as per IAAF Rule 38.2, according to the requirements of the Code of Sports-Related Arbitration (CAS) because the Athlete denies the accusation presented in terms of the Athlete’s Biological Passport.

According to your letter dated 05.02.2016, Athlete’s case shall be transferred to the Court of Arbitration for Sport in Lausanne (Switzerland), should the Athlete request a hearing within the period specified in paragraph 10 of the letter.

40. The Appellant denies that this response evinces acquiescence to CAS jurisdiction. First, she notes the response’s explicit, and exclusive, reference to Rule 38.2 of the IAAF Rules. That rule provides athletes with the general “right to request a hearing”; it does not mention CAS (as does Rule 38.3).

41. The Appellant concedes that the IAAF’s letter, to which her representative was responding, also outlined procedural options for handling the case, both of which involved CAS in some capacity: either a CAS Sole Arbitrator sitting in the first instance but governed by the appeals arbitration rules (as was to be the case) or before a CAS Panel sitting as a single hearing, with narrower options for subsequent appeal. Rule 38.3 was cited by the IAAF in connection with the first option; Rule 38.19 was cited in connection with the second. Nevertheless, the Athlete notes that her response was limited to Rule 38.2 only, and considers the IAAF’s interpretation of and reference to Rules 38.3 or 38.19, in any event, to be “false”.

42. Second, the Appellant denies that the e-mail’s reference to the IAAF’s statement that the case would be “transferred to the Court of Arbitration for Sport” constitutes an agreement to do so. Terming the IAAF’s letter “misleading to say the least”, the Athlete considers that her

representative “was not able to give a bona fide answer to the alternatives that were based on [a] false interpretation of Rule 38.3”.

43. Accordingly, the Appellant submits that the CAS Sole Arbitrator lacked jurisdiction. She seeks the Panel to find as follows:

(i) The Appeal of Ms Chernova is admissible.

(ii) The decision rendered by the CAS sole arbitrator 2016/O/4469 is set aside.

(iii) Ms Chernova is granted an award for costs in this case and also in the case 2016/O/4469.

B. The Respondent’s Position

44. The IAAF submits that the CAS Sole Arbitrator had jurisdiction to resolve the Parties’ dispute in the first instance, considering the suspension of ARAF and the consequent “impossibility” of conducting a first-instance hearing in Russia. In its view, Article R47 of the CAS Code does not apply in the manner sought by the Appellant as IAAF Rule 38.3 created a valid arbitration agreement for referral of the matter to CAS. The IAAF claims it agreed only to “coordinate proceedings” in place of ARAF, not to hold a hearing – an ability the IAAF, in any event, does not have. The Athlete, it adds, expressly agreed to a CAS hearing through her correspondence. These submissions merit a more detailed review, as follows.

(i) Article R47 of the CAS Code is inapplicable and does not require a first-instance hearing.

45. In contrast to the Appellant, the IAAF disputes the applicability of Article R47 of the CAS Code as a jurisdictional gatekeeper. As before the CAS Sole Arbitrator in this instance, IAAF charges were brought against a Russian track-and-field athlete at a time when the Russian national member federation, ARAF, was suspended. In these circumstances, the Respondent submits, no first-instance hearing by the IAAF was required under Article R47, whether to establish an “appealable decision” or to show exhaustion of remedies.

46. First, the IAAF submits that its referral of the dispute to CAS should not be considered an “appeal”; instead, the procedure is essentially an ordinary, first-instance arbitration (the IAAF Rules’ reference to CAS appeal arbitration procedural rules notwithstanding). The IAAF notes that it submitted a Request for Arbitration – and not a Statement of Appeal – in accordance with Article R38 of the CAS Code, which relates to the ordinary arbitration procedure. Similarly, the CAS Court Office “submitted the case to the Ordinary Division”, as evident in the assignment of an Ordinary Division case number to the matter (2016/O/4469).

47. The Respondent concedes that IAAF Rule 38.3 also makes reference to the rules “applicable to the appeal arbitration procedure” (which include Article R47) as governing a dispute referred to CAS. This choice of procedural law, however, has “been accepted by numerous CAS arbitrators”, without their finding any contradiction with the actual cases’ fundamental nature as firstinstance proceedings. Indeed, to find otherwise would be to render the IAAF Rules without

effect, as any reference to the appeal arbitration procedure would then lead to such procedure invariably disqualifying the case. This, the IAAF maintains, cannot be:

If it were necessary that a [first-instance] decision be rendered in order to proceed on the basis of Rule 38.3, the provision would be completely meaningless. It is aimed precisely at allowing the IAAF to proceed before CAS at first instance where no decision has been made and without exhausting any further channels within the Member’s disciplinary system.

48. Because, in the IAAF’s view, Article R47 of the CAS Code does not impose any threshold requirements for jurisdiction, the Appellant’s arguments with regard to the exhaustion of legal remedies and the requirement of an appealable decision are irrelevant to the question of CAS jurisdiction.

49. The IAAF adds that it lacks a regulatory basis to conduct its own adjudications in any event. The Appellant’s suggestion that IAAF should “itself have convened a hearing and rendered a first decision instead of [ARAF] ignores the fact that the IAAF has no basis” under its constitution and other applicable regulations to do so, as this is the responsibility of national member federations.

(ii) IAAF Rule 38.3 is sufficient to vest CAS with jurisdiction.

50. Having sought to demonstrate that Article R47 of the CAS Code does not impose independent jurisdictional requirements which are lacking in the present case, the IAAF next submits that its internal rules create a valid arbitration agreement providing for jurisdiction to refer a first-instance hearing to CAS. Specifically, the IAAF submits that Rule 38.3 of the IAAF Rules provides such an agreement.

51. As a preliminary matter, the IAAF notes that the law of Switzerland, where this arbitration is seated, provides that sports arbitration agreements be construed with “benevolence” (i.e., broadly), with a view toward “encouraging quick disposition”.

52. Turning to Rule 38.3 of its Rules, the IAAF submits that its terms create an arbitration agreement and a valid and sufficient basis for CAS jurisdiction. This conclusion flows from a literal reading as well as from a purposive reading of the rule.

53. As a textual matter, IAAF Rule 38.3 confers jurisdiction upon CAS where, as here, the relevant national member federation “fails to complete” a hearing within the applicable deadline. The IAAF notes, in response to the Appellant’s submissions, that it is immaterial under Rule 38.3 whether such failure is the result of ARAF’s “neglect[]” of its responsibilities, and that accordingly ARAF’s inability to convene a hearing due to its pre-existing suspension cannot frustrate the IAAF’s subsequent referral of the matter to CAS:

The aim of Rule 38.3 of the IAAF Rules is manifestly to ensure that, in circumstances where an athlete’s case is not dealt with by the relevant Member in due time, it can be brought to CAS for determination.

54. Accordingly, it is the IAAF’s position that Rule 38.3 should be interpreted to consider ARAF’s suspension, and the consequent “impossibility” of convening a hearing in the Athlete’s case under ARAF’s auspices, to constitute a “failure” to hold or complete a hearing for the purpose of satisfying the precondition to referral of the matter to CAS. The inability of ARAF to “conduct results management due to its suspension”, the IAAF writes, “fall[s] squarely within the wording of Rule 38.3”.

55. The IAAF further submits that this interpretation is prudentially wise. Recalling that ARAF “voluntarily” accepted its suspension, it would be “paradoxical (if not to say perverse)” for a Russian athlete to be able to avoid prosecution for the duration of the suspension:

The less [ARAF] does to correct the systemic failings that have been documented in the WADA Independent Commission and Independent Person reports, the longer its athletes would avoid the consequences of their doping.

In this regard, the IAAF recalls that “results management of the Athlete’s case had commenced well before” the suspension of ARAF in November 2015, with the Athlete having been informed of the abnormalities in her Athlete Biological Passport profile as early as 24 April 2015.

(ii) The Parties’ correspondence is consistent with a referral to CAS.

56. Finally, the IAAF considers both its letter of 5 February 2016 and the Athlete’s response of 19 February 2016 to be consistent with the Respondent’s interpretation of Rule 38.3 and its referral of the dispute to a CAS Sole Arbitrator.

57. In response to the Athlete’s arguments with regard to the IAAF’s indication that it had “taken over” the responsibilities of ARAF in coordinating Ms. Chernova’s disciplinary proceedings, the IAAF submits that this was never intended to suggest, nor could it be understood as meaning, that the IAAF would convene a hearing itself and in the place of ARAF. Indeed, this language was understood as referring to its ability to send the matter onward to CAS – an argument that the IAAF considers buttressed by references to CAS throughout its letter, including in the two procedural options which it offered the Athlete:

The IAAF did of course “coordinate the disciplinary proceedings” by doing precisely what it said it would do in the 5 February 2016 letter and precisely what is provided for in its Competition Rules i.e. by referring the matter to CAS.

58. The IAAF further submits that the Athlete was aware of this intention when her counsel acquiesced to the referral of the matter to CAS in the Appellant’s response dated 19 February 2016.

59. Accordingly, the IAAF considers the Appellant to have “explicitly accepted” to proceed before CAS in any event. As the IAAF is of the view that Rule 38.3 is a sufficient arbitration agreement for present purposes, it makes no submissions as to the existence of a separate and independent arbitration agreement.

60. The Respondent requests the following relief:

(i) The appeal and all requests for relief of Ms. Chernova are dismissed.

(ii) Ms. Chernova is ordered to bear the totality of any arbitration costs.

(iii) Ms. Chernova is ordered to make a significant contribution to the legal and other costs of the IAAF.