International Association of Athletics Federations (IAAF) v. Anna Nazarova-Klyashtornaya, Russian Athletic Federation (RUSAF)

I. THE PARTIES

1. The International Association of Athletics Federations (the “Claimant” or “IAAF”), is the international federation governing the sport of Athletics worldwide. For such purposes, IAAF has enacted various regulations, including the IAAF Anti-Doping Rules to implement the provisions of the World Anti-Doping Code (the “WADC”) established by the World Anti- Doping Agency (“WADA”). IAAF has its registered seat in Monaco.

2. The Russian Athletics Federation (the “First Respondent” or “RUSAF”), is the national governing body for the sport of Athletics in Russia and has its registered seat in Moscow, Russia. RUSAF is a member federation of the IAAF but at all relevant times was suspended from membership.

3. Mrs Anna Nazarova-Klyashtornaya (the “Second Respondent” or the “Athlete”), born on 3 February 1986, is a Russian track and field athlete specialising in the Athletics discipline of longjump. At the relevant times the Athlete was a member of RUSAF. The Athlete represented Russia at international competitions including European and World Championships, as well as at the XXX Olympiad, London 2012 (the “2012 Olympic Games”).

4. The First Respondent and the Second Respondent are hereinafter referred to as the “Respondents”. The Claimant and the Respondents are hereinafter referred to as the “Parties”.

V. JURISDICTION

37. Rule 38.3 of the 2016 IAAF Rules 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 (…). 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”.

38. The suspension of RUSAF’s membership of the IAAF was confirmed during the IAAF Council meeting in Monaco on 26 November 2015.

39. On 17 June 2016, 1 December 2016, 31 July 2017, 26 November 2017, 27 July 2018 and on 4 December 2018, the IAAF Council decided that RUSAF had not met the conditions for reinstatement to membership. Therefore, the suspension of RUSAF remained in place when these proceedings were initiated.

40. As a consequence of the suspension of its membership, RUSAF was not in a position to conduct the hearing process of the Athlete’s case by way of delegated authority from the IAAF pursuant to Rule 38 of the 2016 IAAF Rules. Consequently, RUSAF was not in a position to convene and complete a hearing within the two month time period set out in Rule 38.3 of the 2016 IAAF Rules. The Sole Arbitrator confirms IAAF’s position that in the circumstances it was plainly not necessary for the IAAF to impose any deadline on RUSAF for that purpose and that IAAF acted in accordance with Rule 38.3 of the 2016 IAAF Rules in initiating these proceedings before CAS.

41. In view of the inability of RUSAF to conduct a hearing process within the requisite timeframe and the Athlete’s status as an International-Level Athlete, the IAAF was entitled pursuant to Rule 38.3 of the 2016 IAAF Rules to refer the case of the Athlete to CAS to be heard in the first instance by a sole arbitrator. This has also been confirmed in different CAS awards, including CAS 2016/0/4463 at para. 48 et seq. and CAS 2016/0/4464, at para. 62 et seq. and by the Swiss Federal Tribunal (in the matter 4A_490/2017).

42. Consequently, CAS has jurisdiction over the present case.

VI. ADMISSIBILITY

43. Rule 38.3 of the IAAF Competition Rules provides in its pertinent part:

“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”.

44. Thus, Rule 38.3 of the 2016 IAAF Rules which states that the CAS procedure shall be governed by the procedural rules governing CAS appeal arbitrations, specifically highlights that any time limits to initiate the proceedings before CAS do not apply to proceedings under this Rule.

45. The finding of an ADRV by the Athlete was made by the IOC Disciplinary Commission on 16 October 2017. Thereafter, the AIU notified the Athlete, by a letter dated 15 November 2017, that the IOC had referred the decision of the IOC Disciplinary Commission to the IAAF to determine the further consequences that should be imposed for the Re-testing Violation, reiterating that the case would be referred to CAS for adjudication. The Athlete did not respond to this letter. A similar notification was sent to the Athlete by the AIU on 17 December 2018, over a year from the first notification and some fourteen (14) months from the decision of the IOC Disciplinary Commission. These proceedings were then initiated only on 6 February 2019.

46. The Sole Arbitrator finds that this delay in the initiation of these proceedings does not limit their admissibility, since neither the Code nor the applicable IAAF Rules provide a specific time limit within which to file this first instance procedure or identify the date on which it could have been filed and since the delay was at least in part designated to provide an ample opportunity for the Athlete to address the matters raised by the AIU. The Athlete has failed to respond to the earlier notifications, despite the numerous approaches. The Athlete has also not indicated that she suffered any hardship due to this delay.

47. Finally, it is noted that pursuant to Rule 46 of the IAAF Competition Rules 2012 – 2013 (the “2012 IAAF Rules”), the statute of limitation for ADRV proceedings is “eight (8) years from the date on which the anti-doping rule violation occurred” and that pursuant to Rule 47 of the 2016 IAAF Rules, the statute of limitation for ADRV proceedings is “ten years from the date on which the antidoping rule violation is asserted to have occurred”. These proceedings relate to certain consequences of an ADRV at the 2012 Olympic Games and have been initiated within less than eight years of the collection of the sample.

VII. APPLICABLE LAW AND REGULATIONS

48. Article R58 of the CAS Code provides the following:

“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”.

49. Article 13.9.4 of the 2019 IAAF Rules states:

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

50. Further, Article 13.9.5 of the IAAF Rules provides as follows:

“In all CAS appeals involving the IAAF, the governing law shall be Monegasque law and the appeal shall be conducted in English, unless the parties agree otherwise”.

51. Consequently, the Sole Arbitrator considers that the IAAF rules and regulations apply to the present matter and Monegasque law shall apply on a subsidiary basis.

52. Pursuant to Article 21.3 of the 2019 IAAF Rules, ADRVs committed prior to 3 April 2017 are subject, for substantive matters, to the rules in place at the time of the alleged ADRV and, for procedural matters, to the 2016 IAAF Rules.

53. As the Re-testing Violation occurred in 2012, the 2012 IAAF Rules shall apply to the substantive matters and the 2016 IAAF Rules to procedural matters.

VIII. MERITS — A. ADRV in regard to the 2012 Sample

54. In accordance with Article 5.1 of the IOC Anti-Doping Rules, the IOC is entitled to re-analyse samples collected during the period of the 2012 Olympic Games, including the Athlete’s sample.

55. The IOC had decided to conduct further analyses of a number of the samples collected at the 2012 Olympic Games, including the Athlete’s sample collected on 8 August 2012.

56. Accordingly and as part of this process and pursuant to Article 5.2.2.12.10 of the 2016 International Standard for Laboratories, an analysis of the remaining part of the A-Sample of the Athlete’s urine sample collected during the 2012 Olympic Games had been performed by the Laboratory.

57. The Laboratory’s analytical results evidenced the presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s sample, thus constituting an Adverse Analytical Finding, which was notified to the Athlete.

58. The AIU, acting on behalf of the IAAF, processed this case throughout these proceedings and from May 2017. This was done in line with the provisions of Article 1.2 of the 2019 IAAF Rules which states as follows:

“In accordance with Article 16.1 of the IAAF Constitution, the IAAF has established an Athletics Integrity Unit (“Integrity Unit”) with effect from 3 April 2017 whose role is to protect the Integrity of Athletics, including fulfilling the IAAF’s obligations as a Signatory to the Code. The IAAF has delegated implementation of these Anti-Doping Rules to the Integrity Unit, including, but not limited to the following activities in respect of International-Level Athletes and Athlete Support Personnel: Education, Testing, Investigations, Results Management, Hearings, Sanction and Appeals. The references in these Anti-Doping Rules to the IAAF shall, where applicable, be references to the Integrity Unit (or to the relevant person, body or functional area within the Unit)”.

59. The presence of DHCMT metabolites was detected in the Athlete’s sample from the 2012 Olympic Games.

60. DHCMT is a non-specified substance that is prohibited in- and out-of-competition under section S1.1.a of the Prohibited List.

61. Accordingly, the IOC Disciplinary Commission has determined that the Athlete committed an ADRV for the presence of metabolites of DHCMT.

62. The Athlete did not appeal the 16 October 2017 Decision of the IOC Disciplinary Commission, with the consequence that the decision, including the finding of the ADRV, is final and binding.

63. The Athlete has, therefore, committed an ADRV in connection with the presence of DHCMT metabolites in the sample taken at the 2012 Olympic Games.

B. The sanction

64. Rule 40.2 of the 2012 IAAF Rules sets out the following:

“The period of Ineligibility imposed for a violation of Rules 32.2(a) (…), unless the conditions for eliminating or reducing the period of Ineligibility as provided for 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”.

65. The Decision of the IOC Disciplinary Commission found that the Athlete had committed an ADRV for the “presence, and/or use, of Prohibited Substances or its Metabolites or Markers in an athlete’s bodily specimen” which is a violation of Rule 32.2(a) of the 2012 IAAF Rules.

66. Accordingly, the starting point for the sanction to be imposed on the Athlete is an ineligibility period of two (2) years.

67. The Athlete has not argued and the record does not evidence any fact which may give rise to a reduction of this sanction pursuant to Rules 40.4 or 40.5 of the 2012 IAAF Rules, or otherwise.

68. The Sole Arbitrator concludes that, in accordance with Rule 40.2 of the 2012 IAAF Rules, the sanction to be imposed on the Athlete shall be a sanction of two (2) years of ineligibility.

69. Rule 40.10 of the 2012 IAAF Rules specifies that:

“Except as provided below, the period of Ineligibility shall start on date of the hearing decision providing for Ineligibility (…)

(b) If a Provisional Suspension is imposed and respected by the Athlete, then the Athlete shall receive a credit for such period of Provisional Suspension against any period of Ineligibility which may ultimately be imposed”.

70. The Athlete has been subject to a provisional suspension since 17 May 2017. The IAAF did not allege nor evidence that the Athlete has not complied with the terms of that provisional suspension.

71. The Sole Arbitrator concludes that the period of ineligibility imposed on the Athlete shall thus begin on the date of this Award, but the Athlete shall receive credit for the period from 17 May 2017 against the total period of ineligibility imposed.

C. Disqualification

72. The IAAF requested to disqualify all competitive results obtained by the Athlete from and including 8 August 2012 and until her provisional suspension on 17 May 2017, together with the forfeiture of any prizes, medals, prize money and appearance money, pursuant to the applicable IAAF Rules.

73. The IOC Disciplinary Commission has disqualified the Athlete’s results obtained in the women’s long-jump at the 2012 Olympic Games. In that respect, the requirement of Rule 39 of the 2012 IAAF Rules has been met.

74. Rule 40.8 of the 2012 IAAF Rules sets out further provisions relevant to the disqualification of results in competitions subsequent to sample collection as follows:

“In addition to the automatic disqualification of the results in the Competition which produced the positive sample under Rules 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”.

75. The rationale behind this rule was explained in the article “Unless Fairness Requires Otherwise” - A Review of Exceptions to Retroactive Disqualification of Competitive Results for Doping Offenses, by NOWICKI/MANNINEN, CAS Bulletin 2/2017 at p. 7:

“Retroactive disqualification of competitive results is a vital part of a credible anti-doping regime for various reasons. It has a deterrent effect on doping, particularly when combined with increased use of Athlete Biological Passports (“ABP”) and re-testing of samples. Moreover, from the clean athletes’ point of view, retroactive rerankings and re-allocation of medals may have intangible significance and considerable economic effects as successful athletes are awarded substantial amounts of monetary compensation based on their results”.

76. The Sole Arbitrator observes that neither of the Respondents filed an Answer in these proceedings, and thus the Athlete did not submit arguments with respect to the disqualification of her results from the date of sample collection to the date of the provisional suspension.

77. Rule 40.8 of the 2012 IAAF Rules does not explicitly contain a “fairness exception”. The Sole Arbitrator notes that the 2008 version of the IAAF Rules contained a “fairness exception” (worded “unless fairness requires otherwise”), but that this exception was removed for all versions of

the IAAF Rules from 2009 to 31 December 2014. It was only in the 2015 version of the IAAF Rules that the IAAF reintroduced the “fairness exception”.

78. The Sole Arbitrator accepts the logic of CAS 2015/A/4007 which states at para. 115 as follows:

“The Panel sees the force of the IAAF argument that specific rules cannot be picked from different systems. The lex mitior principle prevents the continued applicability of a disciplinary rule after it has been replaced by a more lenient one, and reflects, in favour of the accused, the evolution of a legislative policy, which translates into rules the opinion that the same infringement is less severe than it was previously perceived. However, this principle cannot be applied in a way that creates a law that never existed, composed of a mixture of old and new rules and upsetting the rationale of both systems”.

79. However, and as also recognized in CAS 2015/A/4007 and numerous other CAS cases, at the very least it cannot be excluded that a general principle of “fairness” may be applied under Swiss and Monaco laws including in regard to Rule 40.8 of the 2011 IAAF Rules and the 2012 IAAF Rules or its equivalents in deciding whether some results are to be left untouched even in the absence of an explicit rule to this effect (e.g., CAS 2016/O/4464; CAS 2017/O/4980; CAS

80. The Sole Arbitrator in CAS 2018/O/5666 stated in this regard at para. 156:

“Fairness exception is an embodiment of the principle of proportionality, which according to the established CAS case law must be applied in doping cases. The sanction to be imposed for an ADRV must be proportional considering the length of the ineligibility period and the disqualification of results, together and alone. Indeed, although the main purpose of the disqualification of results is not to punish the transgressor, but rather to correct any unfair advantage and to remove any tainted performances from the record (cf. CAS having regard to the fact that the disqualification of results embraces the forfeiture of any titles, awards, medals, points, and prizes, as well as appearance money, disqualification may be considered equal to a retroactive ineligibility period and therefore a sanction (CAS 2016/A/4469 para. 176)”.

81. Indeed, according to established CAS jurisprudence, the principle of proportionality requires to assess whether a sanction is appropriate to the violation committed and excessive sanctions are prohibited (e.g., CAS 2005/A/830, at paras. 10.21 ff.; CAS 2006/A/1025, at paras 75 ff.).

82. The Sole Arbitrator finds that in line with these CAS cases he should consider the proportionality of the sought period of disqualification and whether it would be fair to disqualify the Athlete’s results for a period of over four (4) years and nine (9) months, on top of the two (2) years’ period on ineligibility. While the burden of proof in this regard is on the Athlete and, in the absence of the Athlete’s position some circumstances which may have assisted the Athlete’s case cannot and should not be assumed, there may still be relevant criteria enabling the Sole Arbitrator to decide whether the requested period of disqualification is fair or whether it should be limited.

83. The Sole Arbitrator accepts that pursuant to the applicable IAAF Rules, the disqualification of results is the main rule and that the “fairness exception” is indeed only an exception. This is the

reading of the 2015 IAAF Rules (which do not apply here) and clearly apply to the application of general principles of law which add an additional layer to the applicable enacted rules.

84. Therefore, in principle, all the Athlete’s results from the date of sampling at the 2012 Olympic Games to the commencement of her provisional suspension should be disqualified. However, results may remain valid if fairness so requires in the circumstances of each case. Among factors which CAS panels assessed in the application of the fairness test are the athlete’s degree of fault (evidenced by, among others, the athlete’s intent, the number and period of violations, the substances involved, being part of an evidenced doping scheme and more), the affected sporting results (the athlete being able to establish that results which may be disqualified are not affected such as by evidencing a negative test result during the period; although as this case evidences negative results may later be found positive), significant consequences of disqualification of results (such as a substantial financial impact), Athlete’s Blood Passport (“ABP”), specific issues, additional ineligibility period in the second instance, delays in results management, the overall length of the disqualification and longer periods of disqualification specifically associated with re-testing.

85. In the absence of evidence by the Athlete, who carries the burden of proof in regard to the “fairness exception”, the Sole Arbitrator cannot assess or assume factors such as unaffected results or financial hardship stemming from the disqualification. The Sole Arbitrator is able, however, to review the Athlete’s degree of fault and issues such as delays in results management and the overall length of the disqualification relevant in particular to a re-testing situation.

86. In regard to re-testing cases concerning a single positive sample such as the present one some cases connected the disqualification period to the length of the period of ineligibility (e.g., CAS The argument in this regard is that had the case been brought immediately following the violation, the athlete would not have been able to compete for such a period.

87. Most CAS panels reviewing this issue applied the “fairness exception” and allowed results to remain partly in force, even in cases involving multiple violations, potent substances and a higher degree of fault, when the potential disqualification period extended over a long period of years and there was no evidence that the athlete had committed ADRVs over that entire

88. The “fairness exception” was often applied by CAS panels both in cases relating to the version of the rules which did not include the “fairness exception” (e.g., CAS 2017/O/5332 at paras. 82 ff.; CAS 2018/O/5666 at paras. 149 ff.; CAS 2018/O/5672) and to re-analysis cases where the applicable version of the IAAF Rules did contain the “unless fairness requires otherwise” language or where other IAAF regulations were applied as lex mitior (e.g., CAS 2017/O/5331 at para 70; CAS 2018/O/5673 at paras. 104 ff.; CAS 2018/O/5674 at paras. 108 ff.; CAS 2018/O/5675 at paras. 105 ff.; CAS 2018/O/5676 at paras. 88 ff.; CAS 2018/O/5704 at paras. 91 ff.; CAS 2017/O/5039). Other cases relate specifically to cases involving an ABP which inherently involve a long period of testing without necessarily an exact date for the first violation. These (which include as an example cases such as CAS 2018/O/5667 at paras. 219 ff. and CAS 2016/O/4481 at paras. 182 ff.) support the consideration of fairness but are less relevant to our

specific analysis due to their special nature.

89. The Sole Arbitrator is also aware of three CAS cases which found that the “fairness exception” was not applicable. These are CAS 2015/A/4005 at paras. 108 ff. (the total two periods of additional disqualification extended to less than 2.5 years); CAS 2015/A/4006 at paras. 89 ff. (the total period of additional disqualification extended to just over 2 years); and CAS 2015/A/4007 at paras. 108 ff. (the total period of additional disqualification extended to less than 2 years).

90. In CAS 2016/O/4469 the applicable version of the IAAF Rules did not contain the “unless fairness requires otherwise” language, but still the applied disqualification did not cover the full period from testing to provisional suspension. The sole arbitrator in that case recognised the principles of fairness and proportionality stating at para. 172:

“Established CAS jurisprudence is aware of this obligation and holds that the principle of proportionality requires to assess whether a sanction is appropriate to the violation committed in the case at stake. Excessive sanctions are prohibited (see e.g. CAS 2005/A/830, at paras. 10.21 – 10.31; 2005/C/976 & 986, at paras. 139, 140, 143, 145 – 158; CAS 2006/A/1025, at paras 75 –103; TAS 2007/A/1252, at paras. 33 – 40, all of them referring to and analysing previous awards and doctrine). The Sole Arbitrator does not see that any more recent arbitral award referred to by the IAAF in its observations has deviated from this requirement. These more recent awards simply come to the conclusion that there was no issue with regard to proportionality in the facts of these cases. One arbitral award discussed only fairness”.

91. The Athlete has committed an ADRV at least once at the 2012 Olympic Games, and one cannot preclude that she might have used this or other substances also on other occasions. However, there is no evidence of such administration, although the Sole Arbitrator is also fully aware that negative samples do not always signify that an athlete has not administered prohibited substances – as this particular case shows. The Athlete has administered a substance that could not be traced easily in 2012, and she has not contributed to the uncovering of her ADRVs.

92. The re-testing of the Athlete’s 2012 sample took place over four (4) years and eight (8) months following the collection of the 2012 sample. The Sole Arbitrator recognises that anti-doping organisations are entitled to re-test samples at any time within the applicable statutes of limitations, and that they tend to await a later period as re-testing is typically done once and they want to benefit from the most advanced science and testing process available. Nevertheless, the Athlete should not be penalized by and disqualified for an excessive period merely as a result of a decision of the anti-doping organisations not to proceed with the re-testing at an earlier date. The Sole Arbitrator notes that once the Sample was re-tested the anti-doping organisation has acted diligently and without delay.

93. In this regard, the article “Unless Fairness Requires Otherwise” - A Review of Exceptions to Retroactive Disqualification of Competitive Results for Doping Offenses, by NOWICKI/MANNINEN, CAS Bulletin 2/2017 at p. 16 states:

“Re-testing cases and ADRVs based on non-analytical evidence may cover a considerable period of time between the commission of an ADRV and the imposition of a provisional suspension or an ineligibility

period. In such cases, a strict application of the main rule of Art. 10.8 may lead to an unjust result”.

94. This has to be weighed against the notion that refraining from disqualifying the results would run against the rationale of re-testing stored samples, disqualifying the results of cheating athletes and preventing an athlete from gaining the advantage sought by severe doping violations over other competitors who competed without the use of prohibited substances.

95. CAS case law confirms the broad discretion of panels in adjusting the disqualification period to the circumstances of a specific case. Taking into account, on the one hand, the severity of the usage of the prohibited substance at the 2012 Olympic Games and the argued degree of fault by the Athlete and, on the other hand, being a single ADRV and the period of over four years and nine months of requested disqualification without evidence of use of prohibited substances (but for the one confirmed result) when the governing body could have theoretically brought this case earlier, as well as the sanction already imposed, the Sole Arbitrator finds that the principles of proportionality and fairness in line with vast CAS jurisprudence do not support disqualification of results for such an extended period of time.

96. Pursuant to the foregoing, the Sole Arbitrator concludes that the results obtained by the Athlete in the period between 8 August 2012 and 31 August 2014 shall be disqualified.