International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (RUSAF), Yulia Gushchina

I. THE PARTIES

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

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

3. Mrs Yulia Gushchina (the “Second Respondent” or the “Athlete”), born on 4 March 1983, is a Russian athlete, specializing as a sprinter. At the relevant times the Athlete was a member of RUSAF. The Athlete represented Russia at international competitions, Olympic Games and World and European Championships, including at the 13th IAAF World Championships in Athletics in Daegu, South Korea during 2011 (the “2011 WC”) and at the XXX Olympiad, London 2012 (the “2012 Olympic Games”).

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

V. JURISDICTION

55. Rule 38.3 of the 2016 IAAF Rules provides as follows:

“If a hearing is requested by an Athlete, it shall be convened without delay and the hearing completed within two months of the date of notification of the Athlete’s request to the Member (…) If the Member fails to complete a hearing within two months, or, if having completed a hearing, fails to render a decision within a reasonable time period thereafter, the IAAF may impose a deadline for such event. If in either case the deadline is not met, the IAAF may elect, if the Athlete is an International-Level Athlete, to have the case referred directly to a single arbitrator appointed by CAS. The case shall be handled in accordance with CAS rules (those applicable to the appeal arbitration procedure without reference to any time limit for appeal). The hearing shall proceed at the responsibility and expense of the Member and the decision of the single arbitrator shall be subject to appeal to CAS in accordance with Rule 42”.

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

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

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

that IAAF acted in accordance with Rule 38.3 of the 2016 IAAF Rules in initiating these proceedings before CAS.

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

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

VI. ADMISSIBILITY

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

“If the Member fails to complete a hearing within two months, or, if having completed a hearing, fails to render a decision within a reasonable time period thereafter, the IAAF may impose a deadline for such event. If in either case the deadline is not met, the IAAF may elect, if the Athlete is an International-Level Athlete, to have the case referred directly to a single arbitrator appointed by CAS. The case shall be handled in accordance with CAS rules (those applicable to the appeal arbitration procedure without reference to any time limit for appeal). The hearing shall proceed at the responsibility and expense of the Member and the decision of the single arbitrator shall be subject to appeal to CAS in accordance with Rule 42”.

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

63. The finding of the 2012 ADRV by the Athlete was made by the IOC Disciplinary Commission on 16 October 2017. Thereafter, the AIU notified the Athlete, by a letter dated 15 November 2017, that the IOC had referred the decision of the IOC Disciplinary Commission to the IAAF to determine the further consequences that should be imposed for the 2012 ADRV, reiterating that the case would be referred to CAS for adjudication. The Athlete did not respond to this letter. A similar notification was sent to the Athlete by the AIU on 17 December 2018, over a year from the first notification and some fourteen (14) months from the Decision of the IOC Disciplinary Commission. These proceedings were then initiated only on 6 February 2019.

64. Similarly, the proceedings in relation to the 2011 Sample were diligently processed by the IAAF. On 12 May 2017, IAAF decided to stay the results management procedures in respect of the 2011 Sample until the case arising from the 2012 Sample was decided. The 2011 Sample case then proceeded as from 15 November 2017, with the same delay between 15 November 2017 and 17 December 2018.

65. The Sole Arbitrator finds that this delay in the initiation of these proceedings does not limit their admissibility, since neither the Code nor the applicable IAAF Rules provide a specific time

limit within which to file this first instance procedure or identify the date on which it could have been filed and since the delay was at least in part designated to provide an ample opportunity for the Athlete to address the matters raised by the AIU. The Athlete has failed to respond to the earlier notifications, despite the numerous approaches. The Athlete has also not indicated that she suffered any hardship due to this delay.

66. Finally, it is noted that pursuant to Rule 46 of the 2011 IAAF Rules and Rule 46 of the IAAF Competition Rules 2012 – 2013 (the “2012 IAAF Rules”), the statute of limitation for ADRV proceedings is “eight (8) years from the date on which the anti-doping rule violation occurred” and that pursuant to Rule 47 of the 2016 IAAF Rules, the statute of limitation for ADRV proceedings is “ten years from the date on which the anti-doping rule violation is asserted to have occurred”. These proceedings relate to certain consequences of ADRVs at the 2011 WC and the 2012 Olympic Games, respectively, and have been initiated within less than eight years of the collection of the respective samples.

VII. APPLICABLE LAW AND REGULATIONS

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

“The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

68. Article 13.9.4 of the 2019 IAAF Rules states:

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

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

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

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

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

72. As the 2011 Sample was collected in 2011, the 2011 IAAF Rules shall apply to the substantive

matters in relation to the positive test at the 2011 WC.

73. As the 2012 Sample was collected in 2012, the 2012 IAAF Rules shall apply to the substantive matters in relation to the positive test at the 2012 Olympic Games.

74. The 2016 IAAF Rules shall apply as to all procedural matters.

VIII. MERITS — A. ADRV in regard to the 2011 Sample

75. Rule 32.2(a) of the 2011 IAAF Rules states in its pertinent part that:

“2. (…) The following constitute anti-doping rule violations:

(a) Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample.

(i) it is each Athlete’s personal duty to ensure that no Prohibited Substance enters his body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. 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 under Rule 32.2(a).

(ii) sufficient proof of an anti-doping rule violation under Rule 32.2(a) is established by either of the following: presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample where the Athlete waives analysis of the B Sample and the B Sample is not analysed; or, where the Athlete’s B Sample is analysed and the analysis of the Athlete’s B Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the Athlete’s A Sample”.

76. Rule 32.2(a) of the 2011 IAAF Rules thus forbids the Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample.

77. Rule 32.2(b) of the 2011 IAAF Rules states in its pertinent part that:

“2. (…) The following constitute anti-doping rule violations:

(b) 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”.

78. Rule 32.2(b) of the 2011 IAAF Rules thus also forbids the Use or Attempted Use of a Prohibited Substance or a Prohibited Method.

79. The presence of DHCMT metabolites was detected in the 2011 Sample and confirmed by the Laboratory.

80. DHCMT is a non-specified substance that is prohibited in- and out-of-competition under section S1.I.a of the 2011 Prohibited List.

81. The Athlete has, therefore, committed an ADRV in connection with the presence of DHCMT metabolites in the 2011 Sample.

B. ADRV in regard to the 2012 Sample

82. In accordance with Article 5.1 of The International Olympic Committee Anti-Doping Rules applicable to the Games of the XXX Olympiad, London 2012 (the “IOC Anti-Doping Rules”), the IOC is entitled to re-analyse samples collected during the period of the 2012 Olympic Games, including the Athlete’s sample.

83. The presence of DHCMT metabolites was detected in the 2012 Sample.

84. DHCMT is a non-specified substance that is prohibited in- and out-of-competition under section S1.1.a of the 2012 Prohibited List.

85. The Decision has determined that the Athlete had committed the 2012 ADRV for the presence of metabolites of DHCMT in the 2012 Sample, in violation of Article 2 of the IOC Anti-Doping Rules.

86. The Athlete did not appeal the Decision, with the consequence that the Decision, including the finding of the 2012 ADRV, is final and binding.

87. The Athlete has, therefore, committed the 2012 ADRV in connection with the presence of DHCMT metabolites in the 2012 Sample.

C. The sanction

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

“In accordance with Article 16.1 of the IAAF Constitution, the IAAF has established an Athletics Integrity Unit (“Integrity Unit”) with effect from 3 April 2017 whose role is to protect the Integrity of Athletics, including fulfilling the IAAF’s obligations as a Signatory to the Code. The IAAF has delegated implementation of these Anti-Doping Rules to the Integrity Unit, including, but not limited to the following

activities in respect of International-Level Athletes and Athlete Support Personnel: Education, Testing, Investigations, Results Management, Hearings, Sanction and Appeals. The references in these Anti-Doping Rules to the IAAF shall, where applicable, be references to the Integrity Unit (or to the relevant person, body or functional area within the Unit)”.

89. This matter concerns two occasions where prohibited substances were detected in samples provided by the Athlete, in regard to both the 2011 Sample and 2012 Sample.

90. In order to determine whether the 2012 ADRV may be considered a second violation, the 2012 IAAF Rules govern. Rule 40.7(d) of the 2012 IAAF Rules specifies:

“(d) Additional Rules for Certain Multiple Violations

(i) For the purposes of imposing sanctions under Rule 40. 7, an anti-doping rule violation will only be considered a second violation if it can be established that the Athlete or other Person committed the second anti- doping rule violation after the Athlete or other Person received notice pursuant to Rule 37 (Results Management) or after reasonable efforts were made to give notice of the first antidoping rule violation; if this cannot be established, the violations shall be considered together as one single first violation and 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)”.

91. The IAAF provided the Athlete with notice of the first ADRV in relation to the 2011 Sample on 16 December 2016. The 2012 ADRV occurred on 3 August 2012. The Athlete, therefore, committed the second ADRV before receiving notice of the first. Pursuant to Rule 40.7(d) of the 2012 IAAF Rules, the two violations shall, therefore, be considered together as one single first violation.

92. Rule 40.2 of both the 2011 IAAF Rules and 2012 IAAF Rules sets out the following:

“The period of Ineligibility imposed for a violation of Rules 32.2(a) (…), unless the conditions for eliminating or reducing the period of Ineligibility as provided for in Rules 40.4 and 40.5, or the conditions for increasing the period of Ineligibility as provided in Rule 40.6 are met, shall be as follows:

First violation: Two (2) years’ Ineligibility”.

93. The Athlete has committed an ADRV in connection with the presence of DHCMT metabolites in the 2011 Sample.

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

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

96. This sanction of two years of ineligibility is subject to any mitigation or, alternatively, the

presence of any “aggravating circumstances” pursuant to both the 2011 IAAF Rules and the 2012 IAAF Rules.

97. The Athlete has not argued and the record does not evidence any fact which may give rise to a reduction of this sanction pursuant to Rules 40.4 or 40.5 of both the 2011 IAAF Rules and the 2012 IAAF Rules, or otherwise.

98. Rule 40.6 of both the 2011 IAAF Rules and 2012 IAAF Rules provides for an increase in the mandatory two-year period of ineligibility, up to a maximum of four years, where it can be demonstrated that aggravating circumstances are present which justify the imposition of an increased period of ineligibility.

99. Rule 40.6 (a) of both the 2011 IAAF Rules and 2012 IAAF Rules provides:

“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 part of a doping plan or scheme, either individually or involving conspiracy or common enterprise to commit antidoping rule violations; the Athlete or other Person used or possessed multiple Prohibited Substances or Prohibited Methods or used or possessed a Prohibited Substance or Prohibited Method on multiple occasions; (…). 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”.

100. The Athlete “used or possessed a Prohibited Substance (…) on multiple occasions”. The ADRVs occurred at major competitions: World Championships and Olympic Games, by an experienced athlete, on successive years. This is a clear aggravating factor pursuant to Rule 40.6 (a) of both the 2011 IAAF Rules and 2012 IAAF Rules. Pursuant to Rule 40.7(d)(i) of the 2012 IAAF Rules “the occurrence of multiple violations may be considered as a factor in determining aggravating circumstances (Rule 40.6)”.

101. The Athlete did not present and the file does not include any fact which establishes that the period of ineligibility should not be increased to the maximal period under Rule 40.6 of the applicable IAAF Rules in the circumstances of the case.

102. The Sole Arbitrator concludes that, in accordance with Rule 40.2 and Rule 40.6(a) of both the 2011 IAAF Rules and 2012 IAAF Rules, the sanction to be imposed on the Athlete for the ADRVs shall be a sanction of four (4) years of ineligibility.

103. Rule 40.10 of both the 2011 IAAF Rules and the 2012 IAAF Rules specifies:

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

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

104. The Athlete has been subject to a provisional suspension since 28 March 2017. The IAAF did

not allege nor evidence that the Athlete has not complied with the terms of that provisional suspension.

105. The Sole Arbitrator concludes that the period of ineligibility imposed on the Athlete shall thus begin on the date of this Award, but the Athlete shall receive credit for the period from 28 March 2017 against the total period of ineligibility imposed.

D. Disqualification

106. The IAAF requested to disqualify all competitive results obtained by the Athlete from and including 1 September 2011 and until her provisional suspension on 28 March 2017, together with the forfeiture of any prizes, medals, prize money and appearance money, pursuant to the applicable IAAF Rules.

107. Rule 39 of the 2011 IAAF Rules requires the automatic disqualification of the Athlete’s results obtained in connection with the in-competition test at the 2011 WC on 1 September 2011. The Sole Arbitrator concludes that the Athlete’s results in the women’s 200m and 4x100m at the 2011 WC shall be disqualified, including the forfeiture of all titles, awards, medals, points and prize and appearance money.

108. The IOC Disciplinary Commission in its Decision has disqualified the Athlete’s results obtained in the women’s 400m and 4x400m events at the 2012 Olympic Games. In that respect, the requirements of Rule 39 of the 2012 IAAF Rules have been met with respect to the 2012 Sample.

109. Rule 40.8 of both the 2011 IAAF Rules and the 2012 IAAF Rules sets out further provisions relevant to the disqualification of results in competitions subsequent to sample collection as follows:

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

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

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

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

112. Rule 40.8 of both the 2011 IAAF Rules and the 2012 IAAF Rules does not explicitly contain a “fairness exception”. The Sole Arbitrator notes that the 2008 version of the IAAF Rules contained a “fairness exception” (worded “unless fairness requires otherwise”), but that this exception was removed for all versions of the IAAF Rules from 2009 to 31 December 2014. It was only in the 2015 version of the IAAF Rules that the IAAF reintroduced the “fairness exception”.

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

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

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

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

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

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

117. The Sole Arbitrator finds that in line with these CAS cases he should consider the proportionality of the sought period of disqualification and whether it would be fair to disqualify the Athlete’s results for a period of well over five (5) years, on top of the four (4) years’ period on ineligibility. While the burden of proof in this regard is on the Athlete and, in the absence

of the Athlete’s position some circumstances which may have assisted the Athlete’s case cannot and should not be assumed, there may still be relevant criteria enabling the Sole Arbitrator to decide whether the requested period of disqualification is fair or whether it should be limited.

118. The Sole Arbitrator accepts that pursuant to the applicable IAAF Rules, the disqualification of results is the main rule and that the “fairness exception” is indeed only an exception. This is the reading of the 2015 IAAF Rules (which do not apply here) and clearly apply to the application of general principles of law which add an additional layer to the applicable enacted rules.

119. Therefore, in principle, all the Athlete’s results from the 2011 ADRV to the commencement of her provisional suspension should be disqualified. However, results may remain valid if fairness so requires in the circumstances of each case. Among factors which CAS panels assessed in the application of the fairness test are the athlete’s degree of fault (evidenced by, among others, the athlete’s intent, the number and period of violations, the substances involved, being part of an evidenced doping scheme and more), the affected sporting results (the athlete being able to establish that results which may be disqualified are not affected such as by evidencing a negative test result during the period; although as this case evidences negative results may later be found positive), significant consequences of disqualification of results (such as a substantial financial impact), Athlete’s Blood Passport (“ABP”), specific issues, additional ineligibility period in the second instance, delays in results management, the overall length of the disqualification and longer periods of disqualification specifically associated with re-testing.

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

121. In regard to re-testing cases concerning a single positive sample some cases connect the disqualification period to the length of the period of ineligibility (e.g., CAS 2016/O/4463 at para. 138; CAS 2017/O/5330 at para. 70; CAS 2017/O/5332 at para. 93). The argument in this regard is that had the case been brought immediately following the violation, the athlete would not have been able to compete for such a period.

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

123. The “fairness exception” was often applied by CAS panels both in cases relating to the version of the rules which did not include the “fairness exception” (e.g., CAS 2017/O/5332 at paras. 82 ff.; CAS 2018/O/5666 at paras. 149 ff.; CAS 2018/O/5672) and to re-analysis cases where the applicable version of the IAAF Rules did contain the “unless fairness requires otherwise” language or where other IAAF regulations were applied as lex mitior (e.g., CAS 2017/O/5331 at para 70; CAS 2018/O/5673 at paras. 104 ff.; CAS 2018/O/5674 at paras. 108 ff.; CAS 2018/O/5675

at paras. 105 ff.; CAS 2018/O/5676 at paras. 88 ff.; CAS 2018/O/5704 at paras. 91 ff.; CAS 2017/O/5039). Other cases relate specifically to cases involving an ABP which inherently involve a long period of testing without necessarily an exact date for the first violation. These (which include as an example cases such as CAS 2018/O/5667 at paras. 219 ff. and CAS/O/4481 at paras. 182 ff.) support the consideration of fairness but are less relevant to our specific analysis due to their special nature.

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

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

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

126. The Athlete has committed ADRVs at least twice, at the 2011 WC and at the 2012 Olympic Games, and this consistent use of a similar substance suggests that she might have used this substance also on other occasions. However, there is no evidence of such administration, although the Sole Arbitrator is also fully aware that negative samples do not always signify that an athlete has not administered prohibited substances – as this particular case shows. The Athlete has administered substances that could not be traced easily in 2011 and in 2012, and she has not contributed to the uncovering of her ADRVs.

127. The re-testing of the Athlete’s 2011 Sample took place over five (5) years and three (3) months following the 2011 Sample collection and the re-testing of the Athlete’s 2012 Sample took place over four (4) years and eight (8) months following the 2012 Sample collection. The Sole Arbitrator recognises that anti-doping organisations are entitled to re-test samples at any time within the applicable statutes of limitations, and that they tend to await a later period as retesting is typically done once and they want to benefit from the most advanced science and testing process available. Nevertheless, the Athlete should not be penalized by and disqualified for an excessive period merely as a result of a decision of the anti-doping organisations not to proceed with the re-testing at an earlier date. The Sole Arbitrator notes that once the Samples were re-tested the anti-doping organisation has acted diligently and without delay.

128. In this regard, the article “Unless Fairness Requires Otherwise” - A Review of Exceptions to Retroactive Disqualification of Competitive Results for Doping Offenses, by NOWICKI/MANNINEN, CAS Bulletin 2/201 at p. 16 states:

“Re-testing cases and ADRVs based on non-analytical evidence may cover a considerable period of time between the commission of an ADRV and the imposition of a provisional suspension or an ineligibility period. In such cases, a strict application of the main rule of Art. 10.8 may lead to an unjust result”.

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

130. CAS case law confirms the broad discretion of panels in adjusting the disqualification period to the circumstances of a specific case. Taking into account, on the one hand, the seriousness of the ADRVs in the present case, the fact that multiple ADRVs occurred and the argued degree of fault by the Athlete and, on the other hand, the period of over five years of requested disqualification without evidence of use of prohibited substances (but for the two confirmed ones) when the governing body could have theoretically brought this case earlier, as well as the sanction already imposed, the Sole Arbitrator finds that the principles of proportionality and fairness in line with vast CAS jurisprudence do not support disqualification of results for such an extended period of time.

131. Pursuant to the foregoing, the Sole Arbitrator concludes that the results obtained by the Athlete in the period between 1 September 2011 and 31 December 2014 shall be disqualified.