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

II. OVERVIEW OF THE CASE

4. This case concerns a claim by the IAAF against an International-Level Russian Athlete for violating IAAF Rule 32.2(b) of the 2016 IAAF Rules (“Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method”). The RUSAF has been included in the claim as the First Respondent, as the RUSAF has not been able to conduct the hearing process due to its suspension.

5. The case raises complex evidentiary issues in relation to the Athlete’s Biological Passport (“ABP”). The Parties’ submissions in particular draw upon the reliability of the reports from the experts appointed by the IAAF analysing the abnormalities in the ABP.

VI. JURISDICTION

56. Article R47 of the CAS Code determines as follows:

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

57. Article 1.5 of the 2018 IAAF ADR provides the following:

“The IAAF shall also establish a Disciplinary Tribunal to hear Anti-Doping Rule Violations under these Anti-Doping Rules occurring after the Effective Date”.

58. The term “Effective Date” is defined in Article 1.13 of the 2018 IAAF ADR as follows:

“The effective date of these Anti-Doping Rules is 6 March 2018”.

59. The Claimant’s Request for Arbitration dates from 2 July 2018, i.e. after the Effective Date of the 2018 IAAF ADR. Consequently, the 2018 IAAF ADR apply to this case.

60. Article 21.3 of the 2018 IAAF ADR reads as follows:

“Any case pending prior to the Effective Date, or brought after the Effective Date but based on an Anti- Doping Rule Violation that occurred before the Effective Date, shall be governed, with respect to substantive matters, by the predecessor version of the anti-doping rules in force at the time the Anti-Doping Rule Violation occurred and, with respect to procedural matters by (i) for Anti-Doping Rule Violations committed on or after 3 April 2017, these Anti-Doping Rules and (ii) for Anti-Doping Rule Violations committed prior to 3 April 2017, the 2016-2017 IAAF Competition Rules. Notwithstanding the foregoing, (i) Article 10.7.5 of these Rules shall apply retroactively, (ii) Article 18 of these Rules shall also apply retroactively, unless the statute of limitations applicable under the predecessor version of the Rules had already expired by the Effective Date; and (iii) the relevant tribunal may decide it appropriate to apply the principle of lex mitior in the circumstances of the case”.

A. Principle “tempus regit actum” non-applicable

61. The Athlete objects to the jurisdiction of CAS, arguing in essence that the relevant part of Article 21.3 of the 2018 IAAF ADR is unenforceable pursuant to the principle “tempus regit actum”. The Athlete submits that the procedural rules in force at the time of the procedural act in question, i.e. the 2018 IAAF ADR without this transitional provision, should apply. Consequently, her case should be heard by the IAAF’s Disciplinary Tribunal acting as the first instance body, subject to the right of any party and WADA to appeal this decision to the CAS.

62. The IAAF maintains that the jurisdiction of CAS derives from Rule 38.3 of the 2016 IAAF Rules, which are applicable based on the transitional provision of the IAAF regulations currently governing anti-doping matters.

63. The principle of “tempus regit actum” provides – as a general rule – that the substantive aspects of a contract keep being governed by the law in force at the time when the contract was signed, while any claim should be brought and any dispute should be settled in accordance with the procedural rules in force at the time of the claim (e.g. CAS 2017/O/4980 para. 48; CAS

64. However, the principle of “tempus regit actum” does not apply if transitional provisions provide otherwise. The Sole Arbitrator notes that this question has been addressed in CAS case law as well, in particular in CAS 2006/A/1008, para 10, which reads as follows:

“In accordance with the CAS jurisprudence (CAS 2004/A/635), the Panel underscores that, as a general rule, transitional or inter-temporal issues are governed by the principle “tempus regit actum”, holding that any deed should be regulated in accordance with the law in force at the time it occurred. As a consequence, procedural actions, such as the filing of an appeal, should be done in compliance with rules and time limits in force when they are performed, unless a transitory rule provide otherwise”.

65. Contrary to the Athlete’s submission, the Sole Arbitrator holds that the 2016 IAAF Rules apply based on the express transitional Article 21.3 of the 2018 IAAF ADR, i.e. of the procedural rules in force at the time when the Claimant initiated the proceedings against the Second Respondent.

66. Moreover, the Sole Arbitrator takes the view that the predominant principle with regard to transitional provisions in procedural rules is the one of legal certainty. The parties of legal proceedings must have confidence that procedural rules do not change during the course of the proceedings. A party who intends to initiate new proceedings must, therefore, be aware of the procedural rules that apply to these proceedings. This is why the principle “tempus regit actum” is considered to be more appropriate for defining the law to the merits and not for defining the law to the proceedings (MAVROMATI/REEB, The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials, 2015, Article R67 para. 2).

67. Last but not least, the Sole Arbitrator points to the fact that the transitional provisions contained in Article 21 of the 2018 IAAF ADR are part of the arbitration agreement between the Claimant and the two Respondents. The 2018 IAAF ADR do not only define in what circumstances disputes arising out of or in connection with the 2018 IAAF ADR shall be referred to the CAS, but – via the transitional provisions – define which procedural rules apply to a specific case. The Swiss Federal Supreme Court has repeatedly found that there is, in a sports context, a sufficient “consent” to arbitrate, even though such provisions are not negotiated between the parties, i.e. as in the case at hand between the sports federation and the individual athlete, at eye level, provided that the arbitral institution is independent from the parties (BGE 133 III 235, para. 4.3.2.2), what it confirmed several times with regard to the para. 4.1).

68. The Sole Arbitrator concludes that, based on the transitional provisions in the 2018 IAAF ADR, the procedural aspects of these proceedings are governed by the 2016 IAAF Rules.

B. CAS jurisdiction affirmed based on the 2016 IAAF Rules

69. Rule 38.3 of the 2016 IAAF Rules determines 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”.

70. The Sole Arbitrator notes that the Athlete is an International-Level Athlete and that the RUSAF is prevented from conducting a hearing in the Athlete’s case within the deadline set by Rule 38.3 of the 2016 IAAF Rules. The Sole Arbitrator confirms that the IAAF was therefore permitted to refer the matter directly to a single arbitrator appointed by CAS, subject to an appeal to CAS in accordance with Rule 42 of the 2016 IAAF Rules. The jurisdiction of CAS must therefore be affirmed pursuant to Rule 38.3 of the 2016 IAAF Rules, and the CAS Rules applicable to the Appeal Arbitration Procedure shall apply.

71. Additionally, the Sole Arbitrator finds that the Athlete does not incur any hardship from the fact that these proceedings before CAS are not free of charge as opposed to the proceedings before RUSAF, because the costs of these proceedings will in any event not be for her to bear, but for the IAAF and/or for RUSAF. In view of the clear wording of Rule 38.3 of the 2016 IAAF Rules, the Athlete’s objection against the jurisdiction of CAS is to be dismissed.

72. It follows that CAS has jurisdiction to adjudicate and decide on the present matter. Consequently, the issue whether the Athlete accepted the jurisdiction of CAS previous to the initiation of these proceedings by the IAAF may remain undecided.

VII. APPLICABLE LAW

73. The IAAF maintains that the substantive aspects of the asserted anti-doping rule violations shall be governed by the 2015 IAAF Rules. To the extent that the IAAF Rules do not deal with a relevant issue, Monegasque law shall apply (on a subsidiary basis) to such issue.

74. The RUSAF did not put forward any specific position in respect of the applicable law.

75. The Athlete agrees with the IAAF’s position whereas the 2015 IAAF Rules apply to the substantive aspects of the present case.

76. 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”.

77. The Sole Arbitrator finds that the IAAF indeed replaces the RUSAF in prosecuting the Athlete for an alleged anti-doping rule violation and that the regulations to be applied are in principle the regulations that would have to be applied by the RUSAF.

78. It is undisputed that in possible appeal proceedings before CAS the IAAF Rules would be applicable pursuant to Rule 42.23 of the 2015 IAAF Rules, which reads 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”.

79. Furthermore, in the IAAF charge letter dated 8 March 2017, reference was already made to an anti-doping rule violation under the 2015 IAAF Rules. The Athlete, at that time, did not object to the application of the 2015 IAAF Rules.

80. The Sole Arbitrator will therefore primarily apply the 2015 IAAF Rules and, subsidiarily, Monegasque law, as the IAAF is seated in Monaco.

81. If follows that the Sole Arbitrator is satisfied that the substantive issues of this case are governed by the 2015 IAAF Rules.

VIII. MERITS — A. The Rules

82. The Athlete has been charged with violating Rule 32.2(b) of the 2015 IAAF Rules which reads as follows:

“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”.

83. Rule 33.1, 33.2 and 33.3 of the 2015 IAAF Rules determines the following:

“Burdens and Standards of Proof

1. The IAAF, the Member or other prosecuting authority shall have the burden of establishing that an anti-doping 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.

Methods of Establishing Facts and Presumptions

3. 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, experts reports, documentary evidence, conclusions drawn from longitudinal profiling such as the Athlete Biological Passport and other analytical information”.

B. The Main Issues

84. The main issues to be resolved by the Sole Arbitrator are:

i) Did the Athlete violate Rule 32.2(b) of the 2015 IAAF Rules? a) The Athlete’s ABP is an appropriate means of evidence which needs to be interpreted b) Interpretation of the Athlete’s ABP by IAAF’s experts ba) Do the IAAF’s experts lack independence and impartiality? bb) The abnormalities in the Athlete’s ABP and the explanations of the IAAF’s experts c) The explanations and evidence submitted by the Athlete ca) The effects on the Athlete’s ABP when excluding Samples 1 and 2 cb) The Athlete’s (alleged) sojourn at 1700 m and use of a hypoxic tent as explanation for the abnormalities in Sample 4 as well as between Samples 3 and 4 cc) The Athlete’s medical records and excessive menstruation as explanation for the abnormalities in Samples 11, 13 and 19 d) Overall conclusion in respect of the Athlete’s alleged violation of Rule 32.2(b) of the 2015 IAAF Rules

ii) If Rule 32.2(b) of the 2015 IAAF Rules has been violated, what sanction shall be imposed on the Athlete?

i) Did the Athlete violate Rule 32.2(b) of the 2015 IAAF Rules?

a) The Athlete’s ABP is an appropriate means of evidence which needs to be interpreted

85. The IAAF principally relies on several abnormalities in the Athlete’s ABP profile that constitute evidence that she has committed anti-doping rule violations in breach of Rule 32.2(b) of the 2015 IAAF Rules. The IAAF summarized its positions as follows:

“(i) Sample 4 is a clear example of the so-called OFF-phase, combining a high HGB value (15.0 g/dL) and low RET% (0.66), resulting in a high OFF-score value (101.30). As explained by the Expert Panel, these values are symptomatic of the use and discontinuation of an erythropoietic stimulant (ESA). Sample 4 was taken two days before a major competition (10th European Championships U23) where the Athlete placed first in her even.

(ii) The overall variation in RET% of more than 50% from 1.34 to 0.66 (between samples 3 and 4) is further evidence of a blood manipulation, a fortiori when one considers that these two extreme values arose within only five days, and just before the major competition for the Athlete.

(iii) The ABP sequence is abnormal with multiple abnormalities at both at 99.0% and the 99.9% specificity for different parameters, while the probability of sequence abnormality is in excess of 99.9% for both the OFF-score and RET% profiles.

(iv) In total, the Athlete’s ABP displays at minimum four outliers, viz. one for sample 11 (upper limit of reticulocytes values, above 2%), two for samples 13 and 19 (lower limit of haemoglobin concentration, below 12.0 g/dL) and one for sample 4 (upper limit of OFF-score)”.

86. In a preliminary finding, the Sole Arbitrator accepts that the ABP is a reliable and accepted means of evidence to assist in establishing anti-doping rule violations and feels comforted in this conclusion by CAS jurisprudence (see CAS 2010/A/2174, para. 9.8.

87. The Sole Arbitrator is however mindful of the warnings expressed by the Second Respondent that, if the observed blood values of an athlete’s ABP deviate from normal values and if they cannot be explained pathologically, there is not automatically a high probability of doping.

88. A CAS panel brought it nicely to the point by stating that “abnormal values are (for the purposes of the ABP) a necessary but not a sufficient proof of a doping violation” (CAS 2010/A/2235, para. 86). In the referenced case, the panel noted a coincidence of the levels with the athlete’s racing schedule and stated the following:

“As Dr Sottas convincingly explained, in the same way as the weight of DNA evidence said to inculpate a criminal is enhanced if the person whose sample is matched was in the vicinity of the crime, so the inference to be drawn from abnormal blood values is enhanced where the ascertainment of such values occurs at a time when the Athlete in question could benefit from blood manipulation” (CAS 2010/A/2235, para. 102).

89. The Sole Arbitrator takes the view that from the mere fact that an athlete cannot provide a credible explanation for the deviations in his or her ABP it cannot automatically be concluded that an anti-doping rule violation has been committed. The deviations in the ABP are to be interpreted by experts called to put into the balance various hypothesis and circumstances that could explain the abnormality in the profile values. In other words, a distinction should be made between a mere “quantitative” evaluation and a “qualitative” assessment of the evidence.

90. The Sole Arbitrator also agrees to the Athlete Counsel’s statement made during the hearing that a low credibility of an athlete does not strengthen the doping scenario submitted by the

sports federation. The legal burden to proof a doping scenario remains with the sports federation or anti-doping organisation.

91. Applying the above to the matter at hand, even in the absence of a credible non-doping related explanation for the abnormal values and sequence in her ABP, the abnormal values may not necessarily be explained by doping. In order to affirm a doping violation pursuant to Rule 32.2(b) of the 2015 IAAF Rules, the Sole Arbitrator needs to be convinced to his comfortable satisfaction that the abnormal values are caused by a “doping scenario”, which does not necessarily derive from the quantitative information provided by the ABP, but requires a qualitative interpretation of the experts and possible further evidence.

b) Interpretation of the Athlete’s ABP by the IAAF’s experts

92. In its attempt to establish an anti-doping rule violation of the Athlete pursuant to Rule 32.2(b) of the 2015 IAAF Rules, the IAAF relies on conclusions drawn from longitudinal profiling as shown by the Athlete’s ABP. The IAAF focuses on the following evidence:

(i) In their First and Second Joint Expert Opinions, the experts Prof. d’Onofrio, Prof. Audran and Prof. Schumacher identified various abnormalities within the Athlete’s ABP, i.e. (a) four individual outliers at a specificity of 99% (low and high OFF-scores, low and high HGB) (b) abnormal sequences in HGB, RET% and OFF-score values in the Athlete’s ABP with a probability in excess of 99.9%, and (c) indications of blood withdrawal. The experts came to the unanimous conclusion that it is highly unlikely that these abnormalities are the result of a normal physiological or pathological condition, and that it is highly likely that they were caused by the use of prohibited substances or prohibited methods.

(ii) The rejection of each of the physiological and non-physiological explanations put forward by the Athlete.

(iii) The testimonies of Prof. d’Onofrio and Prof. Schumacher during the hearing.

93. The Sole Arbitrator notes that the Athlete does not deny that blood manipulation, namely the artificial increase of red cell mass using erythropoiesis stimulating substances or blood transfusions, is a plausible explanation for the abnormalities in an ABP profile. The Athlete, however, submits that, although blood manipulation may be the most likely explanation, other normal physiological explanations are possible and must be considered.

94. In a first step, the Sole Arbitrator deals with the interpretation of the IAAF’s evidence and, in a second step, he will deal with the arguments put forward by the Athlete.

ba) Do the IAAF’s experts lack independence and impartiality?

95. The Athlete challenged the independence and impartiality of the IAAF’s experts at the hearing. In particular, she submitted that the Claimant’s experts, and in particular Prof. d’Onofrio, have

never provided an expertise in favour of an athlete but rather wrote whatever the IAAF wanted them to write.

96. The Sole Arbitrator is not prepared to follow the Athlete’s challenge on the IAAF experts’ independence and impartiality for various reasons:

97. First, Prof. d’Onofrio explained at the hearing in detail the procedure followed when providing the expert opinions. Important to note that, according to standard practice, the IAAF is not involved in the activities of the experts which lead to the First and Second Joint Expert Opinion. In following this practice, the communication in the present case with the experts was conducted through the AIU, without the involvement of the IAAF.

98. Second, Prof. d’Onofrio and Prof. Schumacher testified at the hearing that only a very small percentage of the ABP profiles submitted to them are actually forwarded to the IAAF. The experts explained the various reasons that may lead the experts to refuse to forward an ABP profile to the IAAF. For example, the three experts do not reach an unanimous conclusion (either with regard to their first or second joint written expert opinion), or the athlete provided explanations based on which the experts conclude that there are or may be alternative reasons for the abnormalities in the athlete’s ABP profile other than doping, or abnormalities flagged by the adaptive model of the ABP simply remain unexplained.

99. Third, the experts testified that they are mindful of any new explanations brought forward by an athlete during the disciplinary proceedings. Prof. d’Onofrio in his testimony has not excluded that he might come to a different conclusion in case new compelling evidence were to be submitted by the athlete.

100. In the case at hand, the Athlete did not submit any new explanations for the abnormalities in her ABP profile, but confirmed her explanations made to the AIU. Hence, there were no arguments submitted by the Athlete which were ignored by the experts.

101. Fourth, the experts receive a flat fee for providing their expertise to the IAAF, independently of whether an ABP profile is forwarded to the IAAF or not. This practice related to the First and Second Expert Opinion has been followed in the case at hand.

102. Based on the foregoing, the Sole Arbitrator has no reason to question the IAAF experts’ independence and/or impartiality with regard to their joint expert opinions and their testimonies on the Athlete’s ABP profile provided at the hearing.

bb) The abnormalities in the Athlete’s ABP and the explanations of the IAAF’s experts

103. Sample 4 shows the highest level of haemoglobin and the lowest RET% which results in the highest OFF-score value of the Athlete’s ABP profile. This high level of haemoglobin is above the ABP’s “normality” threshold at a specificity of 99%. The Sole Arbitrator notes the quick decrease of the RET% between Samples 3 and 4 which occurred within five days while the level of haemoglobin remained stable.

104. The Sole Arbitrator accepts the Expert Panel’s finding in the First Joint Expert Opinion that “such pattern, known as an ’OFF-phase’, is typically observed when red blood cell mass is supra-physiologically elevated (high HB concentration) and leads to downregulation of the erythropoiesis (relatively low reticulocytes, low IFR) as a consequence of use and subsequent discontinuation of an erythropoietic stimulant or the recent application of a blood transfusion”.

105. Sample 4 was taken on 8 July 2018, two days before the 10th European Championships U23 which she won. Sample 3 was taken on 3 July 2018, i.e. five days prior to Sample 4. During the hearing, Prof. d’Onofrio convincingly explained the effects of an athlete’s use of EPO or other stimulating substances prior to a major competition, underlining the development of the RET% between Samples 3 and 4. The Sole Arbitrator is convinced that a high haemoglobin level combined with a low RET% is an abnormal pattern and may be explained by a doping scenario, taking into account that upon stopping the use of EPO or other stimulating substances the haemoglobin level stays high due to the long lifetime of red cells. At the same time, the athlete’s body, without the influence of EPO or other stimulating substances, senses that the haemoglobin level is too high and consequently suppresses the production of red cells. This suppression is reflected in the low RET%. The Sole Arbitrator follows Prof. d’Onofrio’s statement that the immediate and considerable drop of the RET% between Samples 3 and 4 within only five days indicates the suppression development after the use of EPO or other stimulating substances.

106. In the absence of plausible explanations for these abnormalities other than the IAAF’s doping scenario, the Sole Arbitrator is convinced that the Athlete used prohibited substances or prohibited methods before the taking of Sample 4.

107. The Sole Arbitrator also notes that Samples 1, 2 and 11 show high percentages of reticulocytes. Given that the IAAF does not rely on Samples 1 and 2 to establish an anti-doping rule violation of the Athlete, the Sole Arbitrator therefore does not deem it necessary to look into these two samples in further detail but rather limits his assessment to Sample 11. The Sole Arbitrator further notes that the Athlete’s HGB in Sample 11 shows normal values.

108. A high RET% value indicates an increased production of red cells. Under normal circumstances, this is necessary to compensate an athlete’s decreased HGB. Given that the Athlete’s HGB in Sample 11 is not decreased, the Sole Arbitrator agrees with the Expert Panel’s explanations provided in the First Joint Expert Opinion: “In the absence of decreased HGB, blood loss (not declared) or another pathological condition, these samples are also suspicious for an unduly stimulated red cell production in the bone marrow. The use of erythropoiesis stimulating substances (ESA) is a possible explanation”. Prof. d’Onofrio supported these explanations during the hearing, stating that such a high RET% value is explained with an anaemia situation, i.e. an (athlete’s) body is not able to transport enough oxygen. Prof. d’Onofrio further explained that a high RET% value combined with a normal HGB is not physiological, cannot be related to any diagnosis and is clearly likely an effect of external stimulation.

109. The Sole Arbitrator agrees that the high RET% value combined with a normal HGB in Sample 11 is not physiological. However, he is not convinced that these abnormal values are caused by a doping scenario. As outlined by Prof. Schumacher during the hearing, the life cycle of

red cells is usually 120 days. A high RET% value of 2.73 in Sample 11 on 21 September 2016 would therefore expect to find increased HGB values in subsequent samples within the next 120 days. This is, however, not the case in the Athlete’s ABP. The Sole Arbitrator notes, as Dr. Krotov submitted in his expert opinion as well as during the hearing, that the HGB values rather remained stable or decreased during the months after the taking of Sample 11. Neither the Expert Panel in their Joint Expert Opinions nor the IAAF’s experts during the hearing provided (convincing) explanations as to why no increased HGB values were registered before and after the taking of Sample 11.

110. Consequently, the Sole Arbitrator accepts that the blood values in Sample 11 are abnormal and raise suspicion. However, he is – based on the evidence submitted by the Claimant – not convinced that the Athlete used prohibited substances or prohibited methods before the taking of Sample 11.

111. The Sole Arbitrator finally notes that Samples 13 and 19 show the lowest HGB in the Athlete’s ABP profile.

112. As maintained by the Expert Panel in the First Joint Expert Opinion, the Sole Arbitrator is willing to accept that the low HGB combined with an increase of RET% in Sample 13 provides “evidence of accelerated erythropoietic regeneration” which combination “is typical of blood loss or withdrawal”. He also accepts the Expert Panel’s statement in the First Joint Expert Opinion whereas the even lower RET% in Sample 19 “in the absence of an evident reticulocyte reaction, and associated with leucocytosis and neutrophilia” raises the suspect of blood withdrawal carried out by the Athlete at the end of the two competitive seasons.

113. The Sole Arbitrator finds that the low HGB combined with the high RET% value in Sample 13 supports the Expert Panel’s opinion. The significant increase of the RET% value shows that the Athlete’s body increased the production of red cell since her body could not transport enough oxygen due to the low HGB.

114. With regard to Sample 19, the Sole Arbitrator notes that the Athlete’s ABP again shows a low HGB combined, however, with a low RET% as well. The Sole Arbitrator is not convinced that this constellation in itself proves a blood withdrawal and a doping scenario. However, the Sole Arbitrator is convinced by Prof. d’Onofrio’s explanations provided during the hearing, that such development of the HGB and RET% within around 20 days between Samples 18 and 19 cannot be explained with any normal blood loss situation but renders a blood withdrawal and therefore a doping scenario very likely.

115. The Sole Arbitrator further finds that the undisputed fact that Samples 13 and 19 were taken after the end of the competitive seasons 2016 and 2017, which also results from the Athlete’s own life schedule, further supports the doping scenario established by the IAAF. In fact, blood withdrawal, in particular in an amount necessary to cause such deviations in the blood parameters, during the competitive season is very unlikely since it would necessarily weaken an athlete’s performance.

116. Based on the above and subject to plausible explanations by the Athlete for the abnormal low HGB in Samples 13 and 19, the Sole Arbitrator is convinced that the Athlete used blood doping practices after the end of the competitive seasons 2016 and 2017.

117. Based on the evidence taken from the Athlete’s ABP profile, the First and Second Joint Expert Opinions as well as the testimonies of Prof. d’Onofrio and Prof. Schumacher, the Sole Arbitrator concludes that the Athlete’s ABP profile shows various abnormalities with regard to Samples 4, 11, 13 and 19 and the sequence between Samples 3 and 4. The Sole Arbitrator is satisfied that the high level of haemoglobin in Sample 4, the quick decrease of the percentage of reticulocytes between Samples 3 and 4, as well as the low level of haemoglobin in Samples13 and 19 of the Athlete’s ABP profile may result from the use of blood doping. With regard to the high percentage of reticulocytes in Sample 11, the Sole Arbitrator is prepared to accept that a doping scenario is a plausible explanation. He is, however, not convinced that sample 11 provides proof of a doping scenario.

118. In the absence of convincing explanations by the Athlete, the Sole Arbitrator is satisfied that the IAAF has established a “doping scenario” by using blood doping during the time period from 8 July 2015 (Sample 4) to 18 October 2017 (Sample 19).

c) The explanations and evidence submitted by the Athlete

119. In her Answer on the merits, the Athlete relied on the expert reports of Prof. Vorobiev and Dr. Krotov, and submits that there can be multiple explanations for the unusual characteristics of some of her blood samples in the ABP. The Athlete reiterated some of her arguments submitted in her initial explanations for the abnormalities in her ABP profile filed to the AIU together with related medical documentation.

ca) The effect on the Athlete’s ABP when excluding Samples 1 and 2

120. The Athlete submits that Samples 1 and 2 cannot be taken into consideration since the external quality control of these samples was poorly performed. Consequently and taking into account the exclusion of Samples 1 and 2, the Athlete submits that the reference values of her individual parameter limits change and remain within normal thresholds. Prof. Vorobiev expressly concludes in his written expert opinion that “none of the haemoglobin and reticulocyte values go beyond the limits of the reference values”.

121. The Sole Arbitrator notes that Samples 1 and 2 were analysed by the Antidoping Centre in Moscow, Russia. Dr. Krotov, one of the Athlete’s experts, confirmed during the hearing that he was in charge as head of this laboratory until 2016, i.e. at the time when the Athlete’s ABP Samples 1 and 2 were analysed. Asked by the IAAF’s counsel whether he signed off the analysis of Samples 1 and 2, Dr. Krotov avoided a direct answer and testified that the document with the results of the analysis of Samples 1 and 2 do not contain his signature. The Sole Arbitrator concludes that Dr. Krotov has not provided a reasonable explanation why he did not raise any concern regarding the analysis of Samples 1 and 2.

122. The Claimant submitted a recalculated ABP profile during the hearing, excluding the Samples 1 and 2 for the purpose of calculating the reference values of the individual parameter limits for the Athlete. Pursuant to this recalculated ABP, the same abnormalities were shown as in the original ABP. This was confirmed by Prof. d’Onofrio, who testified that only excluding Samples 1 and 2 from the ABP might slightly modify the Athlete’s individual thresholds in the ABP. However, the ABP would still be flagged, since it would nonetheless show the same abnormalities as if samples 1 and 2 were included in the analysis.

123. Dr. Krotov submitted in his expert opinion that Samples 1 and 2 “should be excluded from the athlete’s haematological profile, as they affect an individual range of reference values in one way or another for all subsequent samples of this particular haematological profile”, without, however, drawing any conclusions. Consequently, Dr. Krotov’s statement regarding Samples 1 and 2 cannot be relied on.

124. Prof. Vorobiev stated in his expert opinion that “if we recalculate the individual limits established by the ABP Model (taking into account the exclusion of samples No. 1 and 2), none of the haemoglobin and reticulocyte values go beyond the limits of the reference values”. At the hearing, Prof. Vorobiev confirmed that the Athlete’s HGB level and RET% values would remain within her individual thresholds if Samples 1 and 2 from the ABP profile were excluded. Confronted with the recalculated Athlete’s ABP profile submitted by Claimant, Prof. Vorobiev, however, expressly acknowledged deviations from the Athlete’s individual parameters, albeit no major ones. Moreover, Prof. Vorobiev expressly admitted that his statement was a „guess“. He explained his guess at the time with the non-availability of the recalculated ABP profile.

125. Based on the above, the Sole Arbitrator does not rely on Prof. Vorobiev’s statement in his export report that no HGB and RET% values would exceed the Athlete’s individual thresholds.

126. Consequently, the Sole Arbitrator concludes that the Athlete’s ABP profile show abnormalities irrespective of whether Samples 1 and 2 are included into the calculation of the Athlete’s individual thresholds or not.

cb) The Athlete’s (alleged) sojourn at 1700 m and use of a hypoxic tent as explanation for the abnormalities in Sample 4 as well as between Samples 3 and 4

127. The Athlete submits that the abnormalities identified by the Claimant in Sample 4 as well as between the taking of Samples 3 and 4 were the result of a sojourn at 1700 m and the use of a hypoxic tent. Prof. Vorobiev opined that, in contrast to the Expert Panel’s opinion, the high altitude training and the stay in the hypoxic tent may very well explain the Athlete’s values in the ABP. Dr. Krotov confirmed this view by stating that the ABP values of Sample 4 were perfectly explicable by the Athlete’s stay in high altitude and the use of a hypoxic tent.

128. The Sole Arbitrator agrees with the Claimant’s submission that the Athlete’s allegations regarding her sojourn at high altitude and the use of a hypoxic tent contain various contradictions. First, the Athlete indicated in the Doping Control From (“DCF”) for Sample 3 that she stayed in Kislovodsk at an altitude of 1700 m from 5 May 2015 until 3 July 2015. In

the DCF for Sample 4, taken only five days later, she indicated that she used a hypoxic tent, allegedly simulating an altitude of 2000 m from 11 June until 30 June 2015. These explanations in the DCFs are not consistent. It is difficult to understand why the Athlete did not provide the same explanations in both DCFs. Second, the Athlete indicated in her own life schedule that she was in Saransk Plain in May 2015, in Izhevsk in June 2015 and participated in the All- Russian Championship in Cheboksary on 12 June 2015. In her life schedule, however, the Athlete did not mention a stay in altitude and/or the use of a hypoxic tent at all. Third, the Sole Arbitrator agrees with the Claimant’s submission whereas the Athlete’s Instagram profile indicates that she was not in Kislovodsk, as indicated on the DCF for Sample 3, for the entirety of the period from 5 May 2015 until 3 July 2015, but at least on occasion in Saransk on 25 May 2015 and in Cheboksary on 15 June 2015.

129. The Athlete’s counsel stated during the hearing that, despite the indications on the DCF for Sample 3, the Athlete in fact never stayed in the mountains, and in particular not in Kislovodsk, but rather used a hypoxic tent during the whole period indicated on the DCF, i.e. from 5 May 2015 until 3 July 2015, simulating an altitude of 1700 m from 5 May 2015 until 3 July 2015 and of 2000 m from 11 May 2015 until 30 June 2015.

130. At the hearing, the Athlete confirmed that she did not actually stay in the mountains but rather used the hypoxic tent in an adjoining room during the whole period indicated in the DCFS, i.e. from 5 May 2015 until 3 July 2015. She submitted that she stayed in the tent during the whole day and night, with the exception of the daily training session and for short periods to eat. The Sole Arbitrator agrees with the Claimant that it is implausible and difficult to understand that the Athlete spends almost 14 to 17 hours a day during almost two months in a tent where she can only stay horizontal.

131. On cross-examination by the Claimant’s Counsel, the Athlete testified that she did not mention in the DCF for Sample 3 the use of the hypoxic tent but a stay at an altitude of 1700 m in Kislovodsk. In the Sole Arbitrator’s view, this statement is not plausible. There is neither an indication of the use of a hypoxic tent nor an indication of any simulation whatsoever in the DCF for Sample 3. The Athlete merely mentioned a stay at an altitude of 1700 m in Kislovodsk without further details.

132. The aforementioned implausibility is further supported by the fact that the Athlete indicated the use of a hypoxic tent in the DCF for Sample 4, but not the many hours – 14 to 17 hours during a day – she (allegedly) stayed in the tent.

133. The Sole Arbitrator agrees with Prof. d’Onofrio’s statement during the hearing that it is implausible that the Athlete did not mention this (alleged) long and intensive stay in a hypoxic tent – almost 14 to 17 hours a day during almost two months –when providing the AIU with her explanations for the abnormalities in her ABP profile on 17 January 2018.

134. Based on the above, the Sole Arbitrator has serious doubts as to whether the Athlete used a hypoxic tent during the period indicated by her. Consequently, the Sole Arbitrator notes that the Athlete’s experts drafted their reports based on an inaccurate basis.

135. However and even if it were to assume that the Athlete used a hypoxic tent simulating an altitude of 1700 m from 5 May 2015 until 3 July 2015 and of 2000 m from 11 May 2015 until 30 June 2015, the Sole Arbitrator is not convinced that such a stay could explain the abnormalities in the ABP’s Sample 4 and between Samples 3 and 4 for the following reasons:

136. The Sole Arbitrator notes that the Expert Panel in its First Joint Expert Opinion expressed its view that staying in altitude with an appropriate strength of the stimulus causes changes in the markers of the ABP, in particular a slight decrease in the RET%. Based on the explanations provided by the Expert Panel, the Sole Arbitrator is convinced that the Athlete’s purported stay at 1700 m during almost two months and the use of a hypoxic tent during around one and a half months at 2000 m do not cause a sufficient strength explaining the abnormalities of her ABP. Consequently, the Sole Arbitrator is convinced that it is very unlikely that the Athlete’s indicated stay at the relatively low altitude as well as the relatively short stay in a hypoxic tent caused the magnitude of the observed changes in Sample 4 as well as during the period between the taking of the Samples 3 and 4 of the ABP.

137. As stated by Prof. Schumacher during the hearing, the Sole Arbitrator is willing to accept that there is a significant difference whether an athlete actually stays at an altitude of 1700 m or 2000 m during several weeks or whether an athlete simply tries to simulate the effect of a stay in altitude by using a hypoxic tent. The Sole Arbitrator is convinced that such a simulation cannot reach the magnitude of changes of the Athlete’s blood values necessary to explain the abnormalities in Sample 4 of the ABP.

138. In addition, the Sole Arbitrator agrees with Prof. Schumacher’s statements during the hearing that interrupting the stay in a hypoxic tent for training and eating further diminishes the effect of a simulation of an altitude training on the Athlete’s blood values.

139. Prof. Vorobiev criticised he Expert Panel’s opinion as unfounded. The Sole Arbitrator is, however, not convinced by this statement. Prof. Vorobiev outlines in his report in general terms the effects of a sojourn at high altitude and the use of an artificial hypoxic tent on the blood parameters HGB and RET%. However, he refrains from becoming more concrete as regarding the Athlete’s (alleged) sojourn as well as the altitude and/or the duration necessary to cause, in his opinion, the observed changes in Sample 4 of the ABP. Moreover, Prof. Vorobiev refers to a publication of Ashenden et al., whereas the “normalization of blood parameters after staying at an altitude of 2100 meters occurred during the first week after return of athletes to the sea level” without, however, explaining why the statements in this publication apply to the Athlete’s (alleged) sojourn at only 1700 m.

140. Dr. Krotov also submits that “the version of haemoglobin concentration increase in samples 3 and 4 due to hypoxia exposure seems to me much more likely to be the real reason for the variations in blood parameters observed than the use of ESAs or some prohibited method (in particular, a blood transfusion)”. However, the Sole Arbitrator takes the view that Dr. Krotov’s explanations are not sufficiently detailed enough to convince him that the abnormalities in Sample 4 and between Samples 3 and 4 of the ABP are a result of the Athlete’s (alleged) sojourn at an altitude of 1700 m. First, the Sole Arbitrator notes that Dr. Krotov does not outline what altitude during which period would be sufficient and necessary to cause the observed effects in the ABP. Second, Dr. Krotok does

not explain why, in his opinion, the Athlete’s (alleged) sojourn at an altitude of 1700 m during two months could cause the increased MCV parameter of 95.6 fL, in particular taking into consideration the immediate drop of this value to 80.9 fL observed in Sample 4, taken five days after the end of the Athlete’s (alleged) sojourn. Third, Dr. Krotov does not substantiate at all why “no increase in the MCV parameter would have been observed” assuming that the Athlete used “recombinant erythropoietin […] for erythropoiesis’ stimulation”.

141. Based on the above, the Sole Arbitrator is convinced that (i) the IAAF established a doping scenario with regard to Sample 4 and during the time period between taking of the Samples 3 and 4 of the ABP and that (ii) there are no other likely explanations for the identified abnormalities in the ABP.

cc) The Athlete’s medical records and excessive menstruation as explanation for the abnormalities in Samples 11, 13 and 19

142. As outlined above, the Sole Arbitrator is, based on the evidence submitted by the Claimant, not convinced that Sample 11 constitutes a sufficient evidence for a doping scenario (see above, para 108-110). The Sole Arbitrator, therefore, does not deem it necessary to look into this Sample in further detail, in particular with regard to the findings of the Athlete’s experts.

143. With regard to Samples 13 and 19, the Sole Arbitrator notes that Dr. Krotov confirms the Expert Panel’s view that “some blood loss took place”, but argues that – different to the Expert Panel’s findings – a conclusion that the blood “was a use of a prohibited method (blood collection for transfusion purposes) may not be made based on the balance of probabilities (still less based on comfortable satisfaction of the tribunal) standard”. Dr. Krotov rather explains the pattern in Samples 13 and 19 as a result of blood loss due to a disease or blood donation and interprets the low haemoglobin concentrations as a result of heavy menstruation and/or bleeding.

144. The Sole Arbitrator notes that the Expert Panel as well as the Second Respondent’s experts agree that the low HGB values must result from blood loss. The Sole Arbitrator further notes that Dr. Krotov does not provide any details why and based on which considerations and/or references he comes to his conclusion. Consequently, the Sole Arbitrator is of the opinion that in view of the lack of further explanations Dr. Krotov’s expert opinion should not be followed, in particular given that the Claimant’s experts were able to support their considerations with more detailed explanations and scientific references.

145. The Sole Arbitrator further agrees with Prof. d’Onofrio’s statements – confirmed by Prof. Schumacher – during the hearing that the particularly low HGB value below 12.0 g/dl indicate a volume of blood loss which cannot result from menstruation and iron deficiency where the dynamics in the HGB parameters would be much lower. In fact, the Expert Panel stated in its Second Joint Expert Opinion that during normal menstruation, approximately 40 ml of blood is lost and that the variation of haemoglobin concentration during the menstrual cycle ranges within 0.7 g/dl of an individual baseline (for the Athlete, the Expert Panel considers a baseline “which probably ranges around 13.5 g/dl” as likely). In the ABP, the HGB value in Samples 13 and 19 amount to only 11.9 g/dl and 11.3 g/dl and therefore much lower than the abovementioned threshold of 0.7 g/dl. The Expert Panel further outline that even heavy

menstruation, which can cause blood loss up to 80 ml per month, would only cause relatively minor changes to the haemoglobin level, far from being comparable to the large variations visible in the ABP. Moreover, the Sole Arbitrator relies on Prof. d’Onofrio’s statement that for several months before the taking of Samples 13 and 19, the HGB parameters were normal. In fact, the Athlete’s HGB parameters show – apart the HGB values in Samples 13 and 19 – values between 13.2 and 14.0 from June 2016, i.e. around five months before the taking of Sample 13, and October 2017, i.e. the taking of Sample 19. The Sole Arbitrator is convinced that much higher fluctuations would appear if the Athlete were to suffer from regular blood losses due to menstruation and iron deficiency resulting in variations in the HGB values.

146. The Sole Arbitrator further concurs with the Expert Panel’s view expressed in the Second Joint Expert Opinion – confirmed by Prof. Schumacher during the hearing –, that Samples 13 and 19 show no features of iron deficiency since “both samples in question here show normal MCV and MCH and is thus unlikely to be affected by any relevant iron deficiency caused by chronic blood loss”. In addition, the Expert Panel correctly refer to the fact that “no signs of chronic blood loss such as block stools etc. were ever reported by the athlete or otherwise documented in any form”.

147. Moreover, the Sole Arbitrator notes that the Expert Panel, referring to scientific references, explain convincingly that “all authors attribute the observed changes mainly to hormone induced plasma volume shifts and not to variations in red cell mass itself. Thus, the variation caused by the monthly bleeding is not very important and certainly smaller than the variations that might be induced by plasma volume shifts caused by different modalities of exercise”. Consequently, the Sole Arbitrator is convinced to his comfortable satisfaction that the low HGB values in Samples 13 and 19 evidence a significant blood loss that cannot be explained by normal or heavy menstruation or iron deficiency which would mainly result in plasma volume variations.

148. Dr. Krotov further submits that the “Expert Panel’s suggestion that blood parameters for sample 19 speak for blood collection for subsequent autologous transfusion are not confirmed by the results of the blood samples’ analyses collected after Sample 19 which could show high haemoglobin concentration along with low (<1) reticulocytes’ concentration”. The Sole Arbitrator takes the view that Dr. Krotov statement is not plausible. In fact, Dr. Krotov first argues that the Expert Panel’s conclusion is not confirmed by the blood samples collected after Sample 19. He then, however, reveals that his statement is based on assumptions on the values such blood samples collected after Sample 19 could show. The fact that Dr. Krotov apparently is not able to provide any details as to the HGB and/or RET% values of the samples collected after Sample 19 further confirms that he is not able to provide a scientific, factual-based statement but rather provided assumptions.

149. In his expert opinion, Prof. Vorobiev, referring to the Athlete’s medical records, submits that the haemoglobin level of people who have latent chronic blood losses due to stomach disease may decrease, sometimes quite significantly. He further refers to the Athlete’s explanations, where she “points to these repeated facts: her haemoglobin level repeatedly decreased below the normal one, she was diagnosed with anemia”. The Sole Arbitrator is, however, not convinced by these statements. In her explanations, the Athlete submitted that she had excessive menstruation at the time when Sample 13 was taken, i.e. on 30 November 2016. She did, however and in contrast to Prof. Vorobiev’s statements in his expert report, not claim in her explanations to

have suffered from stomach disease in November 2016. The Athlete further submitted in her explanations that “DNA of Chlamydia trachomati was revealed” during tests in November 2016, i.e. in the month of the taking of Sample 13, whereupon the Athlete “started antibiotic, antivirals, antifungals and antibacterial treatment in the middle of November”. It remains, however, unclear to what extent this treatment influenced the Athlete’s blood values and in particular caused the low HGB value in Sample 13. In particular, the Athlete’s experts both did not explain in their reports the connection between the Athlete’s treatment in November 2016 and the low HGB value in Sample 13 of the ABP. Moreover, it remains unclear from the Athlete’s explanations and Prof. Vorobiev’s expert opinion when, i.e. at what dates, the Athlete’s haemoglobin level (allegedly) decreased below the normal level. The Sole Arbitrator is, therefore, not in the position to assess whether the Athlete’s explanations are accurate and, in particular, whether the alleged decreases of the Athlete’s haemoglobin level are in line with the HGB values contained in the ABP.

150. The Sole Arbitrator refers again to the Expert Panel’s conclusive statements in the Second Joint Expert Opinion that the Athlete’s (alleged) pathologies almost inevitably develop an iron deficiency. However, the Sole Arbitrator agrees with the Expert Panel’s conclusion that, when cross checking the facts with Samples 13 and 19 of the ABP, there are no features of iron deficiency in neither of the samples (see above, para 146).

151. The Sole Arbitrator is neither able to confirm nor to negate Dr. Krotov’s submissions regarding the alleged iron deficiency, as no values of the Athlete’s blood samples from the ABP collected after 18 October 2017, i.e. after the taking of Sample 19, have been submitted in the CAS proceedings.

152. Based on the above, the Sole Arbitrator reaches the conclusion that the explanations provided by the Athlete and her experts with regard to Samples 13 and 19 are unfounded and that it is unlikely that chronic blood loss caused the abnormalities visible in these samples of the ABP. The Sole Arbitrator remains convinced that there are no likely explanations for the identified abnormalities in Samples 13 and 19 of the ABP other than the doping scenario established by the IAAF.

153. As the Sole Arbitrator holds that the explanations of the Athlete are unfounded, he does not need to address whether the blood tests submitted by the Athlete present several shortcomings and can only be taken into consideration with caution.

d) Overall conclusion in respect of the Athlete’s alleged violation of Rule 32.2(b) of the 2015 IAAF Rules

154. In view of all the above, taking into account the evidence submitted by the IAAF as well as the explanations and submissions provided by the Athlete, the Sole Arbitrator holds that the IAAF has established to his comfortable satisfaction a “doping scenario” regarding the Athlete’s ABP profile.

155. The Sole Arbitrator holds that Sample 4 (taken on 8 July 2015), the sequence between Samples 3 and 4, Sample 13 (taken after the competitive season on 30 November 2016), and Sample 19 (taken after the competitive season on 18 October 2017) in the Athlete’s ABP profile

constitute evidence of a doping rule violation in breach of Rule 32.2(b) of the 2015 IAAF Rules.

156. Consequently, the Sole Arbitrator finds that the Athlete violated Rule 32.2(b) of the 2015 IAAF Rules by using prohibited substances or prohibited methods from 8 July 2015 through to 18 October 2017, i.e. a period of more than two years.

ii) If Rule 32.2 (b) of the 2015 IAAF Rules has been violated, what sanction shall be imposed on the Athlete?

157. Rule 40.2 of the 2015 IAAF Rules determines as follows:

“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 Substance or Prohibited Method) or 32.2(f) (Possession of a Prohibited Substance or Prohibited Method) shall be as follows, subject to potential reduction or suspension pursuant to Rules 40.5, 40.6 or 40.7:

(a) The period of Ineligibility shall be four years where:

(i) The anti-doping rule violation does not involve a Specified Substance, unless the Athlete or other Person can establish that the anti-doping rule violation was not intentional;

(ii) The anti-doping rule violation involves a Specified Substance and it can be established that the violation was intentional.

(b) If Rule 40.2(a) does not apply, the period of Ineligibility shall be two years”.

158. The Sole Arbitrator agrees with the IAAF’s submission that blood doping practices can only be committed intentionally. Moreover, the Sole Arbitrator agrees with the IAAF’s submission that blood manipulation by using prohibited substances or prohibited methods do not constitute Specified Substances within the meaning of the 2015 IAAF Rules. The Sole Arbitrator further notes that the Athlete fails to establish that the conditions of Rule 40.2(a)(i) of the 2015 IAAF Rules to apply a sanction of two years in case of an anti-doping rule violation are met.

159. Consequently, the Sole Arbitrator finds that a period of ineligibility of four years is to be imposed on the Athlete for violating Rule 32.2(a) of the 2015 IAAF Rules.

160. The remaining question to be examined by the Sole Arbitrator is therefore whether there are circumstances that should lead to a reduction or suspension of the standard sanction pursuant to Rules 40.5, 40.6 or 40.7 of the 2015 IAAF Rules.

161. Rule 40.5 of the 2015 IAAF Rules (Elimination or Reduction of Period of Ineligibility Based on Exceptional Circumstances) determines as follows:

“If an Athlete or other Person establishes in an individual case that he bears No Fault or Negligence, the otherwise applicable period of Ineligibility shall be eliminated. Except in the case of a Minor, for an Athlete to establish No Fault or No Negligence in a case where a Prohibited Substance or its Markers or Metabolites is detected in an Athlete’s Sample in violation of Rule 32.2(a) (Presence of a Prohibited Substance), the Athlete must establish how the Prohibited Substance entered his system in order to have his period of Ineligibility eliminated”.

162. The Sole Arbitrator finds that Rule 40.5 of the 2015 IAAF Rules is not applicable in the matter at hand since the Athlete contested to have committed an anti-doping rule violation in the proceedings before the IAAF or the CAS, without putting forward any arguments that could justify a reduction of the otherwise applicable sanction of a four year period of ineligibility in case an anti-doping rule violation would be established.

163. Moreover, the Sole Arbitrator agrees with the IAAF that blood manipulation, either by using non-specified prohibited substances such as EPO or using prohibited methods such as blood transfusions,, is an intentional form of doping and cannot occur by negligence.

164. Rule 40.6 of the 2015 IAAF Rules (Reduction of Period of Ineligibility where there is No Significant Fault or Negligence) determines as follows:

“(a) Reduction of Sanctions for Specified Substances or Contaminated Products for violations of Rules 32.2(a), (b) or (f):

(i) Specified Substances: where the anti-doping rule violation involves a Specified Substance and the Athlete or other Person can establish No Significant Fault or Negligence, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility and, at a maximum, two years’ Ineligibility, depending on the Athlete’s or other Person’s degree of Fault.

(ii) Contaminated Products: in cases where the Athlete or other Person can establish No Significant Fault or Negligence and that the detected Prohibited Substance came from a Contaminated Product, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility and, at a maximum, two years’ Ineligibility, depending on the Athlete’s or other Person’s degree of Fault.

(iii) Except in the case of a Minor, for an Athlete to establish No Significant Fault or Negligence in a case where a Prohibited Substance or its Markers or Metabolites is detected in an Athlete’s Sample in violation of Rule 32.2(a) (Presence of a Prohibited Substance), the Athlete must establish how the Prohibited Substance entered his system in order to have his period of Ineligibility reduced.

(b) Application of No Significant Fault or Negligence beyond the application of Rule 40.6(a): If an Athlete or other Person establishes in an individual case where Rule 40.6(a) is not applicable that he bears No Significant Fault or Negligence, then, subject to the further reduction or elimination as provided in Rule 40.7, the otherwise applicable period of Ineligibility may be reduced based on the Athlete’s or other Person’s degree of Fault, but the reduced period of Ineligibility may not be less than one-half of the period of Ineligibility otherwise applicable. If the otherwise applicable period of Ineligibility is a lifetime, the reduced period under this Rule may be no less than eight years. Except in the case of a Minor, when a Prohibited Substance or its Markers or Metabolites is detected in an Athlete’s Sample in violation of Rule 32.2(a) (Presence of a Prohibited

Substance), the Athlete must establish how the Prohibited Substance entered his system in order to have his period of Ineligibility reduced”.

165. The Sole Arbitrator finds that Rule 40.6 of the 2015 IAAF Rules is not applicable in the matter at hand. The IAAF does not submit that the Athlete used any specified substances to commit the anti-doping rule violations. In addition, the Athlete does not contend the use of contaminated products.

166. With regard to Rule 40.7 of the 2015 IAAF Rules (Elimination, Reduction or Suspension of Period of Ineligibility or other Consequences for Reasons Other than Fault), the Sole Arbitrator also finds that this rule is not applicable in the matter at hand. The Athlete has neither provided a substantial assistance in discovering or establishing an anti-doping rule violations (Rule 40.7(a) of the 2015 IAAF Rules) nor admitted an anti-doping rule violation in the proceedings before the IAAF or the CAS (Rule 40.7(b) and Rule 40.7(c) of the 2015 IAAF Rules).

167. It results from the above that there are no grounds for a reduction of the sanction in the case at hand. The Sole Arbitrator, therefore, concludes that a period of ineligibility of four years is to be imposed on the Athlete.

168. What remains is to determine the starting date of the period of ineligibility and the determination of the disqualification of the results.

169. Rule 40.11 of the 2015 IAAF Rules (Commencement of Period of Ineligibility) determines as follows:

“Except as provided below, the period of Ineligibility shall start on the date of the final hearing decision providing for Ineligibility or, if the hearing is waived or there is no hearing, on the date the Ineligibility is accepted or otherwise imposed.

[…]

(c) Credit for Provisional Suspension or Period of Ineligibility Served: If a Provisional Suspension is imposed and respected by the Athlete or other Person, then the Athlete or other Person shall receive a credit for such period of Provisional Suspension against any period of Ineligibility which may ultimately be imposed. If a period of Ineligibility is served pursuant to a decision that is subsequently appealed, then the Athlete or other Person shall receive a credit for such period of Ineligibility served against any period of Ineligibility which may ultimately imposed on appeal.

[…]”.

170. The Sole Arbitrator finds that, for practical reasons and in order to avoid any eventual misunderstanding in the calculation of the period of ineligibility, the period of ineligibility should start on 8 March 2018, the date of commencement of the provisional suspension and not of the date of the Award. The IAAF did not submit that the Athlete has not respected her provisional suspension. Consequently, the period of provisional suspension is to be credited against the four-year suspension period beginning on the date of the Award.

171. Turning to the disqualification of the Athlete’s results, the Sole Arbitrator observes that Rule 40.9 of the 2015 IAAF Rules (Disqualification of Individual Results in Competitions subsequent to Sample Collection or Commission of an Anti-Doping Rule Violation) determines as follows:

“In addition to the automatic Disqualification of the Athlete’s individual results in the Competition which produced the positive sample under Rules 39 and 40, all other competitive results obtained by the Athlete from the date the positive Sample was Collected (whether In-Competition or Out-of-Competition) or other antidoping rule violation occurred, through to the commencement of any Provisional Suspension or Ineligibility period shall, unless fairness requires otherwise, 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”.

172. The IAAF submits that all of the Athlete’s results from the date of her first violation, i.e. from 8 July 2015, when Sample 4 was taken, until the date of her provisional suspension on 8 March 2018 must be disqualified pursuant to the aforementioned provision.

173. The Sole Arbitrator notes that pursuant to the literal wording of Rule 40.9 of the 2015 IAAF Rules all the competitive results of the Athlete as from the moment the positive sample was collected until her provisional suspension was pronounced would have to be disqualified.

174. The Sole Arbitrator observes that the present facts are not a case of a specific “positive sample”. It is a case that falls under Rule 40 of the 2015 IAAF Rules. Consequently, the Athlete’s competitive results are nevertheless subject to disqualification. A complicating factor in this respect is that an anti-doping rule violation established on the basis of an ABP can normally not be determined on a specific date but merely for a certain period. This difficulty has been identified in CAS jurisprudence (CAS 2010/A/2235, para. 116).

175. Therefore, based on a literal reading of Rule 40.9 of the 2015 IAAF Rules, all results of the Athlete as from this date until 8 March 2018 (the date the Athlete was provisionally suspended) have to be disqualified.

176. Moreover, the Sole Arbitrator agrees with the IAAF that there is no room for the application of the “fairness exception” under Rule 40.9 of the 2015 IAAF Rules, which has not been raised by the Athlete.

177. The Sole Arbitrator finds that the general principle of fairness must prevail in order to avoid disproportional sanctions. According to established CAS jurisprudence, 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; CAS 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; CAS 2010/A/2268 at paras. 141 f.; all of them referring to and analysing previous awards and doctrine).

178. The Sole Arbitrator considers it fair to disqualify any results of the Athlete between 8 July 2015 and 8 March 2018 considering that there is enough evidence that the Athlete used prohibited methods during this period and committed a serious anti-doping rule violation.

179. Consequently, the Sole Arbitrator holds that a period of ineligibility of four years is to be imposed on the Athlete from 8 March 2018 and that the results of the Athlete from 8 July 2015 until 8 March 2018 are to be disqualified, including the forfeiture of any titles, awards, medals, points and prize and appearance money.

C. Conclusion

180. Based on the foregoing, and after taking into due consideration all the evidence produced and all arguments made, the Sole Arbitrator finds that:

i. The Athlete violated Rule 32.2(b) of the 2015 IAAF Rules (Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method). ii. The Athlete engaged in using doping from 8 July 2015 (the eve of the European Championship U23) through to 18 October 2017 (after the end of the competitive season 2017), i.e. a period of more than two years. iii. A period of ineligibility of four years as from 8 March 2018 is to be imposed on the Athlete and all results of the Athlete from 8 July 2015 until 8 March 2018 are to be disqualified, including the forfeiture of any titles, awards, medals, points and prize and appearance money.