International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (RUSAF), Vera Ganeeva

V. JURISDICTION

38. The IAAF ADR, which are applicable because the Request for Arbitration was filed on 26 April 2018, expressly permit ADRV cases to be filed directly with the CAS and referred to a single arbitrator appointed by the CAS. In this regard, IAAF ADR Rule 38.3 provides as follows:

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

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

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

VI. ADMISSIBILITY

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

42. The Sole Arbitrator further notes that the Request for Arbitration, to be considered as combined Statement of Appeal and Appeal Brief for the purposes of articles R47 and R51 of the Code, complies with the formal requirements set out by the Code. In addition, there are no objections as to the admissibility of the IAAF’s claims.

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

VII. APPLICABLE LAW

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

45. Thus, the provisions of the Code applicable to the appeal arbitration procedure are relevant in the present procedure.

46. 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”.

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

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

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

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

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

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

52. The IAAF argues that the Athlete’s alleged ADRVs occurred in the years 2012 and 2013 and that, as the substantive anti-doping provisions were the same in the IAAF Rules in place between 2012 and 2013, the 2012-2013 IAAF Rules should apply to the present case.

53. The Athlete not having objected to the IAAF assertions, the Sole Arbitrator considers that the Parties agreed that the substantive aspects of the present procedure are to be governed by the 2012-2013 IAAF Rules. He further considers that in view of the wording of Rule 21.3 of the IAAF ADR the sanction should be determined on basis of the lex mitior, which could be the IAAF ADR.

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

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

55. The IAAF claims that the Athlete breached Rule 32.2(b) of the 2012-2013 IAAF Rules, which prohibits the Use or Attempted Use of a Prohibited Substance or a Prohibited Method.

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

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

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

58. As regards the other alleged Use Violation (violation of Rule 32.2(b) of the 2012-2013 IAAF Rules), considering the very large scope of elements that could be admitted as evidence, the Sole Arbitrator holds that the McLaren Evidence has to be considered as evidence in the sense of the 2016-2017 IAAF Rules and that if considered as reliable, this evidence can be relied upon for the purpose of establishing facts related to an ADRV.

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

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

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

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

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

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

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

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

63. This inference is not called into question by the allegation that Dr. Rodchenkov, from whose hard disk the Moscow Washout Schedule has been, according to the IAAF, extracted, would not be a reliable witness because he allegedly would make sure that the doping tests turned out positive without the athletes having used any of the prohibited substances found in order to extort money from the said athletes. Indeed, this allegation is not corroborated by any objective or material evidence and has therefore to be considered to be without any grounds. In this respect, the Sole Arbitrator notes that the allegations brought against Dr. Rodchenkov cannot be compared to the ones put forward by Russian track and field athletes against other Russian Officials, as in those cases there was reliable and substantiated evidence corroborating the accusations (CAS 2016/A/4417-4419-4420). This allegation does moreover not seem convincing as an extortion scheme does not require the establishment of said Washout Schedules and certainly does not require, first, the presence of athletes whose samples did not show any adverse analytical finding in the initial testing procedure (“ITP”) of the Moscow Laboratory and, second, the details and comments which can be found on the Washout Schedules. The fact that, according to the information found in ADAMS, all official samples provided by the Athlete in the lead up to the 2012 London Olympic Games were negative, does not, in the view of the Sole Arbitrator, overturn this conclusion. Indeed, no evidential weight can be attributed to the results reported in ADAMS in the relevant time period and in 2013 as samples tested by the Moscow Laboratory have been, according to the McLaren Evidence been automatically reported as negative in ADAMS by Dr. Rodchenkov or one of his colleagues/substitutes at the Moscow Laboratory.

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

65. The Sole Arbitrator holds that no element has been brought forward to validly contest the argument that Dr. Rodchenkov or one of his colleagues from the Moscow Laboratory, in particular Mr. Tim Sobolevsky, set up the London and the Moscow Washout Schedules for the purpose of assuring that the athletes on the list would not test positive at the events they were preparing. In particular, the Sole Arbitrator’s notes that no convincing element has been brought forward that would explain how Dr. Rodchenkov could have established, after having left his position of/as director of the Moscow Laboratory but before the publication of the results of the London Retests, a list with the names of athletes that allegedly had used prohibited substances, list which then turned out to be largely in line with the list of athletes whose samples, provided at the 2012 London Olympic Games and the 2013 IAAF World Championships, retested positive for exactly those substances referenced in the said Schedules. The fact that the McLaren Evidence contains, as Prof. McLaren has acknowledged during a hearing in other cases (CAS 2017/A/5379 and CAS 2017/A/5422), some errors does not invalidate the reliability of the whole findings as such, as an occasional error in the

allocation of the codes in some cases does not affect the veracity of all the codes and the content of the samples allocated to the athletes. In any event, as already mentioned above, in the present matter, the evidence submitted by the IAAF does not contain the code number attributed to the Athlete, but the Athlete’s name.

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

67. The circumstance, that in other cases (CAS 2017/A/5379 and CAS 2017/A/5422) a Panel held that the mere fact that an athlete was on the Duchess List is not itself sufficient for the Panel to be comfortably satisfied that said athlete used prohibited substance cannot, in the view of the Sole Arbitrator, be transposed to the present or other cases in connection with the Washout Schedules as some of these Washout Schedules refer to samples given on a specific day, by a specific athlete in the context of an official anti-doping test. The fact that said athlete was tested can therefore not be contested. The only element that could be contested is the positive finding by the Moscow Laboratory in its initial testing procedure (“ITP”) related to the sample. However, as already mentioned above, the Sole Arbitrator considers that there is no convincing explanation other than then the one that the Washout Schedules have been established in a contemporaneous manner and on basis of the findings in the ITP carried out by the Moscow Laboratory as to how Dr. Rodchenkov could have, ex post, established a list of fictive positive tests belonging to a large number of athletes out of which a relatively big part had, as it would turn out later, provided samples at the 2012 London Olympic Games and the 2013 IAAF World Championships that contained the Prohibited Substances that are to be found on the Washout Schedules.

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

C. Discussion on liability

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

70. In regard to the specific case of the Athlete, the Sole Arbitrator notes that the London Washout Schedule contains one (1) entry related to the Athlete that shows the presence of Oral Turinabol or “DHCMT” which is an exogenous anabolic steroid in relation with an official sample provided on 25 July 2012. In this regard, it has to be recalled that it is not contested that the name on the London Washout Schedule refers to the Athlete. Further, it is not contested that on the date of this entry the Athlete underwent an official anti-doping control test although said sample was reported as negative on ADAMS.

71. Given that the presence of DHCMT, also detected by the ITP performed by the Moscow Laboratory in the sample provided on 25 July 2012, was established by the retest of the sample taken on 3 August 2012 the Sole Arbitrator considers that the AAF at the 2012 London Olympic Games confirms the evidence according to which the Athlete used a prohibited substance to prepare for this competition.

72. As regards the Moscow Washout Schedule, the Sole Arbitrator recalls that the said Schedule refers to the Athlete on three (3) occasions, in relation to samples provided on 14, 25 and 30 July 2013 in the lead up to the 2013 IAAF World Championships in Moscow. The Washout Schedule indicates, inter alia, that the first and second sample contained 4-OH-Testosterone or 4-Hydroxytestosterone and showed a respective T/E ratio of 9 and 3,5. Further, for the first of these samples there is a reference to “Prohormones”. The third entry contains the indication: “appears clear”. 4-Hydroxytestosterone is an exogenous androgenic anabolic steroid listed in the 2012 WADA Prohibited List and prohibited both in- and out-of-competition.

73. The arguments, raised by the Athlete, according to which she had never provided any unofficial sample nor taken part in a scheme and that the Moscow Washout Schedule is inconsistent cannot, in the eyes of the Sole Arbitrator, be followed. Indeed, first, as already mentioned above, the Athlete did not offer any valid explanation as to why her name appeared on the Moscow Washout Schedule, the simple allegation that it appears by mistake having been rejected as being without grounds. Second, the allegation that the Washout Schedule is inconsistent or has been compiled in order to blackmail athletes is contradicted by the fact that the analytical results of the different samples do show a pattern according to which the values found dropped more and more the closer the start of the World Championships came. This is confirmed by the fact that the level of the T/E ratio, which is commonly used and referred to in the WADA documents, i.e. WADA Technical Document TD 2004EAAS, for measuring the production and ratio of Testosterone to Epitestosterone (CAS 2017/O/5039), declined from 9 (sample of 14 July 2013) to 3,5 (sample of 25 July 2013). The Sole Arbitrator adheres to the view expressed by the Sole Arbitrator in the latter case that such a decline supports the assertion that the Athlete used 4-Hydroxytestosterone to prepare for the 2013 IAAF World Championships in Moscow. Moreover, there is not only no proof that Dr. Rodchenkov tried to blackmail the Athlete but it is clear that in order to do so, it was not necessary to establish a detailed list like the Moscow Washout Schedule which contains references to tests/analyses that show no use of prohibited substances. Further, the Athlete offered no explanation whatsoever as the why the Washout Schedule would contain remarks like “appears clear”. Third, in the view of the Sole Arbitrator, the mere protestation of the Athlete that she never used a Prohibited Substance and/or that she never provided a sample in another container than an official one does not affect the status of the Moscow Washout

Schedule as reliable evidence. Indeed, in the present case, the only violation that is reproached to the Athlete is the use of a prohibited substance, and not the provision of clean urine in non-official containers for the purpose of enabling her positive urine samples to be swapped at a later stage.

74. In the present case, the Sole Arbitrator thus considers that the Moscow Washout Schedule constitutes reliable evidence that the Athlete used a Prohibited Substance, i.e. 4- Hydroxytestosterone, to prepare for the 2013 IAAF World Championships in Moscow.

75. In the light of these considerations, the Sole Arbitrator is comfortably satisfied that the Athlete is guilty of having used a Prohibited Substance in the lead up to the 2012 London Olympic Games. In particular, the Sole Arbitrator is comfortably satisfied that the Athlete used Oral Turinabol (DHCMT) during her preparation for this major event as is shown by the results of the sample (2729827) as listed in the London Washout Schedule and dated 25 July 2012. The Sole Arbitrator is further comfortably satisfied that the Athlete is guilty of having used a Prohibited Substance in the lead up to the 2013 IAAF World Championships in Moscow. In particular, the Sole Arbitrator is comfortably satisfied that the Athlete used 4- Hydroxytestosterone during her preparation for this major event as is shown by the results of the samples respectively provided on 14 and 25 July 2013 as listed in the Moscow Washout Schedule.

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

D. Decision on sanction

77. In the present case, it is uncontested that the Athlete has served a period of ineligibility of two (2) years for the violation of Rules 32.2(a) of the 2012-2013 IAAF Rules as a result of the AAF in the retest of the sample provided on 3 August 2012 at the 2012 London Olympic Games.

78. Pursuant to Rule 40.7(d)(ii) of the 2012-2013 IAAF Rules, “[i]f, after the resolution of a first antidoping rule violation, facts are discovered involving an anti-doping rule violation by the Athlete or other Person which occurred prior to notification of the first violation, then an additional sanction shall be imposed based on the sanction that could have been imposed if the two violations would have been adjudicated at the same time. Results in all events dating back to the earlier anti-doping rule violation will be Disqualified as provided in Rule 40.8. To avoid the possibility of a finding of aggravating circumstances (Rule 40.6) on account of the earlier-in-time but later-discovered violation, the Athlete or other Person must voluntarily admit the earlier anti-doping rule violation on a timely basis after notice of the violation for which he is first charged (which means no later than the deadline to provide a written explanation in accordance with Rule 37.4(c) and, in all events, before the Athlete competes again). The same rule shall also apply when facts are discovered involving another prior violation after the resolution of a second anti-doping rule violation”.

79. Rule 40.2 of the 2012-2013 IAAF Rules provides that the period of ineligibility for violation of Rule 32.2(b) shall be two years, unless the conditions for eliminating or reducing the period of ineligibility (Rules 40.4 and 40.5 of the 2012-2013 IAAF Rules) or for increasing it (Rule 40.6 of the 2012-2013 IAAF Rules) are met.

80. Pursuant to Rule 40.6 (a) of the 2012-2013 IAAF:

“If it is established in an individual case involving an anti-doping rule violation other than violations under Rule 32.2(g) (Trafficking or Attempted Trafficking) and Rule 32.2(h) (Administration or Attempted Administration) that aggravating circumstances are present which justify the imposition of a period of Ineligibility greater than the standard sanction, then the period of Ineligibility otherwise applicable shall be increased up to a maximum of four (4) years unless the Athlete or other Person can prove to the comfortable satisfaction of the hearing panel that he did not knowingly commit the anti-doping rule violation.

(a) Examples of aggravating circumstances which may justify the imposition of a period of Ineligibility greater than the standard sanction are: the Athlete or other Person committed the anti-doping rule violation as a part of a doping plan or scheme, either individually or involving a conspiracy or common enterprise to commit anti-doping rule violations; the Athlete or other Person used or possessed multiple Prohibited Substances or Prohibited Methods on multiple occasions; a normal individual would be likely to enjoy performance-enhancing effects of the anti-doping rule violation(s) beyond the otherwise applicable period of Ineligibility; the Athlete or other Person engaged in deceptive or obstructing conduct to avoid detection or adjudication of an anti-doping rule violation. For the avoidance of doubt, the examples of aggravating circumstances referred to above are not exclusive and other aggravating factors may also justify the imposition of a longer period of Ineligibility”.

81. In relation to violations that have to be considered as one single violation, Rule 40.7(d)(i) of the 2012-2013 IAAF Rules provides that “the sanction imposed shall be based on the violation that carries the more severe sanction; however, the occurrence of multiple violations may be considered as a factor in determining aggravating circumstances (Rule 40.6)”.

82. In the present case, the Sole Arbitrator agrees with the IAAF that if the violations in the centre of the present proceedings had been assessed together with the ADRV for which the Athlete has already accepted and served a period of ineligibility of two (2) years, all violations would have been considered, together, as single first violation and Rule 40.7(d)(i) would have applied.

83. The IAAF argues, that in the present case a certain number of aggravating factors set out in Rules 40.6 of the 2012-2013 IAAF Rules are relevant, namely (1) the Athlete used multiple exogenous anabolic steroids in the lead up to the 2012 London Olympic Games and the 2013 IAAF World Championships; (2) the Athlete was part of a centralised doping scheme, she provided unofficial samples for washout testing and those of her official samples that tested positive for prohibited substances were falsely reported as being clean.

84. The Sole Arbitrator notes (1) that the London Washout Schedule shows that the Athlete used one prohibited substance (DHCMT) in the lead up to the 2012 London Olympics Games; (2) that the Moscow Washout Schedule shows that the Athlete used another prohibited substance (4-Hydroxytestosterone ) in the lead up to the 2013 IAAF World Championships; (3) that the Athlete committed a violation of Rule 32.2(a) of the 2012-2013 IAAF Rules sanctioned with a two (2) year period of ineligibility and (4) that all of these ADRV were committed as part of a (centralised) doping plan or scheme as the Athlete’s name appears with the name of other athletes on the Washout Schedules and that one of her official samples (25 July 2012) that tested positive for a prohibited substance in the ITP was registered as negative in ADAMS.

85. In view of these aggravating circumstances and in absence of any mitigating circumstances, the Sole Arbitrator is comfortably satisfied that if the violations of Rule 32.2(b) of the 2012- 2013 IAAF Rules in the centre of the present proceeding had been assessed together with the violation of Rule 32.2(a) of the 2012-2013 IAAF Rules, this would have led to the imposition of an increased period of ineligibility. Indeed, the Sole Arbitrator finds that the Athlete used multiple prohibited substances and that she used a prohibited substance (exogenous anabolic steroids) on multiple occasions. Given that, on top, the Athlete was part of a doping scheme or plan, the Sole Arbitrator considers that a period of ineligibility of four (4) years would have been appropriate. Thus, considering the seriousness of the Athlete’s ADRV, the Sole Arbitrator finds that Rule 40.6(a) shall apply and that the period of ineligibility of two (2) years already served by the Athlete should be prolonged with an additional period of ineligibility of two (2) years.

86. In the present case, the IAAF argues that the period of ineligibility should start on the date of the CAS Award.

87. According to Rule 40.10 of the 2012-2013 IAAF Rules, the period of ineligibility shall, as a general rule, “start on the date of the hearing decision providing for Ineligibility”. In the present case, none of the exceptions provided for in Rule 40.10 is applicable. Thus, the period of ineligibility should start at the date of the Award.

88. However, the Sole Arbitrator considers that in the present case Rule 10.10.2 of the IAAF ADR, which can be considered as lex mitior, should apply. According to this provision: “where there have been substantial delays in the hearing process or other aspects of Doping Control not attributable to the Athlete or other Person, the period of Ineligibility may be deemed to have started at an earlier date, commencing as early as the date the Anti-Doping Rule Violation last occurred (e.g., under Article 2.1, the date of Sample collection). All competitive results achieved during the period of Ineligibility, including retroactive Ineligibility, shall be Disqualified”.

89. In the present case, the period of time that elapsed between the publication of the Second McLaren Report on 9 December 2016 and the introduction of the present proceeding on 26 April 2018 seems significant. Moreover, the Sole Arbitrator notes that almost one year elapsed after the publication of the said Report before the IAAF contacted the Athlete to inform her that it had had the opportunity to review and investigate the First and Second McLaren Reports and that it intended to refer the McLaren Evidence against the Athlete to the CAS. This delay is even more surprising as the IAAF was aware not only of the fact that the Athlete was amongst the athletes whose sample provided at the 2012 London Olympics had retested positive for DHMCT but also of the fact that the Athlete had signed, on 10 April 2017, an acceptance of sanction form according to which her two years period of ineligibility would come to an end on 1 July 2018.

90. Under these conditions, the Sole Arbitrator holds that the supplementary two (2) year period of ineligibility shall start on 2 July 2018 with all the consequences, including disqualification of all the competitive results achieved by the Athlete between the 2 July 2018 and the notification of the present Award.

E. Disqualification

91. This case concerns ADRVs committed in 2013 and 2014 and the applicable rules should, according to the Parties, be the 2012-2013 IAAF Rules. Rule 40.8 of these Rules provides:

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

92. Although the IAAF sought, in its written submissions, that the Athlete’s competitive results should be disqualified from the date of the proof of the earliest ADRV, i.e. 25 July 2012, until the date of her additional period of ineligibility to the extent not already disqualified by the acceptance of sanction signed by the Athlete on 10 April 2017, i.e. from 3 August 2012 to 2 August 2014, it acknowledged, at the hearing, that the Sole Arbitrator could, on the basis of the fairness exception set out in Rule 10.8 of the IAAF ADR, reduce that period.

93. The Sole Arbitrator notes that according to the wording of Rule 10.8 of the IAAF ADR, all the competitive results of the Athlete as from the moment of the earliest violation, i.e. 25 July 2012, until the start of her additional period of ineligibility, i.e. 1 (or 2) July 2018, would have to be disqualified, unless fairness requires otherwise.

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

95. In the present case, the Sole Arbitrator considers that as the earliest prove of the violation of Rule 32.2(b) of the 2013-2013 IAAF Rules dates back to 25 July 2012 and as the Athlete has already accepted the disqualification of all of her competitive results obtained from 3 August 2012 to 2 August 2014, it is fair and appropriate to limit the disqualification of all competitive results achieved by the Athlete to the period between 25 July 2012, date of the first entry in the London Washout Schedule, and 2 August 2014. Indeed, although having held, when assessing the appropriate sanction, that the ADRVs committed in the years 2012 and 2013 were severe as he has accepted the existence of aggravating circumstances according to Rule 40.6 of the 2012-2013 IAAF Rules, the Sole Arbitrator, in the absence of any evidence that the Athlete used prohibited substances or methods after 30 July 2013, i.e. the last entry on the Moscow Washout List, the Sole Arbitrator does not consider it fair to disqualify the results achieved by the Athlete between 3 August 2014, date of the end of the disqualification period already accepted by the Athlete, and the 1 (2) July 2018, date of the beginning of her additional two (2) year period of ineligibility.