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Arbitral a Ward Court of Arbitration for Sport Tribunal Arbitral du Sport Court of Arbitration for Sport CAS 2018/0/5822 International Association of Athletics Federations (IAAF) v. Russian Athletic Federation (RUSAF) & Mariya Ponomareva ARBITRAL A WARD rendered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: Sole Arbitrator: Dr. Hans Nater, Attorney-at-Law, Zurich, Switzerland Ad hoe Clerk: Dr Maiiin Rauber, Attorney-at-Law, Zurich, Switzerland in the arbitral proceeding between International Associations of Athletics Federations (IAAF), Monaco Represented by Mr Ross Wenzel and Mr Anton Sotir, Attorneys-at-Law, Kellerhals Ca1Tard, Lausanne, Switzerland Claimant and Russian Athletics Federation (RUSAF), Moscow, Russia First Respondent Ms Mariya Ponomareva, Russia Represented by Mr ArtemPatsev, Attorney-at-Law, CleverConsult, Moscow, Russia Second Respondent Ch!t,au de B"h"'Y Av, d, B,aumont2 CH-1012lausa one T;i,,41 21 61350 00 '" , +41 21 613 50 01 www.tas-oas.o,g CAS 2018/O/5822 International Association of Athletics Federations (IAAF) v. Tribunal Arbitral du Sport Russian Athletic Federation (RUSAF) & Mariya Ponomareva - Page 2 Court of Arbitration for Sport I. PARTIES 1. The International Association of Athletics Federations (the "Claimant" or the "IAAF") is the world governing body for the sport of Athletics, established for an indefinite period with legal status as an association under the laws of Monaco. The IAAF has its registered seat in Monaco. 2. The Russian Athletic Federation (the "First Respondent" or the "RUSAF") is the national governing body for the sport of Athletics in Russia, with its registered seat in Moscow, Russia. The RUSAF is a member federation of the IAAF and currently suspended from membership. 3. Ms Mariya Ponomareva (the "Second Respondent" or the "Athlete") is a Russian long­ distance athlete. She is an International-Level Athlete according to the IAAF Competition Rules 2016-2017 (the "2016 IAAF Rules"). 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. III. FACTUAL BACKGROUND 6. Below is a summary of the main relevant facts, as established on the basis of the Parties' written and oral submissions and the evidence examined in the course of the present arbitration proceedings and during the hearing. This background is set out for the sole purpose of providing a synopsis of the matter in dispute. Additional facts may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, he refers in his award only to the submissions and evidence he considers necessary to explain his reasoning. 7. The Athlete has been charged with violating Rule 32.2(b) of the IAAF Rules "Use or Attempted Use by an Athlete of a Prohibited Substance or a Prohibited Method". 8. The evidence of the Athlete's alleged anti-doping rule violation(s) is based on the following pieces of evidence: 9. The ABP of the Athlete. i) Two expe1t reports from the experts appointed by the IAAF. CAS 2018/O/5822 International Association of Athletics Federations (IAAF) v. Tribunal Arbitral du Sport Russian Athletic Federation (RUSAF) & Mariya Ponomareva - Page 3 Court of Arbitration for Sport ii) The testimonies of the experts appointed by the IAAF during the hearing. 10. From 14 December 2014 until 18 October 2017, the IAAF collected 19 ABP blood samples from the Athlete, 15 of which were valid and used in the evaluation process. Each of the samples was analysed by a laboratory accredited by the World Anti-Doping Agency ("WADA") and logged in the Anti-Doping Administration & Management System ("ADAMS") using the Adaptive Model, a statistical model that calculates whether the repo1ted HGB (haemoglobin concentration), RET% (percentage of immature red blood cells reticulocytes) and OFF-score (a combination of HGB and RET%) values fall within an athlete's expected distribution. 11. The registered values for HGB, RET% and OFF-score in the Athlete's respective samples are as follows: 1. 13.5 2.25 45.00 2. 12.7 2.64 29.50 3. 14.6 1.34 76.50 4. 15.0 0.66 101.30 8. 13.2 1.31 63.30 9. 24 June 2016 13.6 1.20 70.30 10. 19 July 2016 13.6 1.18 70.80 11. 21 September 2016 13.3 2.73 33.90 12. 28 October 2016 13.5 1.59 59.30 13. 30 November 2016 11.9 1.81 38.30 17. 14.0 1.00 80.00 18. 13.4 1.66 56.70 19. 11.3 1.05 51.50 12. According to the IAAF, sample 5 of 11 October 2015, sample 7 of 18 February 2016, sample 14 of 9 January 2017 and sample 16 of 20 February 2017, all shaded in light grey in the above table, are invalid. 13. The Athlete's ABP was submitted to a panel of experts for review on an anonymous basis. The expert panel comprised three experts with knowledge in the field of clinical haematology (diagnosis of blood pathological conditions), laboratory medicine and haematology (assessment of quality control data, analytical and biological variability and instrument calibration) and sports medicine and exercise physiology: Prof. Yorck Olaf Schumacher, Prof. Giuseppe d'Onofrio and Prof. Michel Audran (the "Expert CAS 2018/O/5822 International Association of Athletics Federations (IAAF) v. Tribunal Arbitral du Sport Russian Athletic Federation (RUSAF) & Mariya Ponomareva - Page 4 Court of Arbitration for Sport Panel"). The Expert Panel issued a first joint opinion dated 12 December 2017 (the "First Joint Expert Opinion") and concluded as follows after having analysed the Athlete's ABP profile on an anonymous basis: "Based on these facts and the information available to date, it is our unanimous opinion that in the absence of an appropriate physiological explanation, the likelihood of the abnormalities described above being due to blood manipulation, namely the artificial increase of red cell mass using erythropoiesis stimulating substances and blood transfusion strategy, is high. On the contrary, the likelihood of environmental factors or a medical condition causing the described pattern is low. We therefore conclude that it is highly likely that a prohibited substance or a prohibited method has been used and that it is highly unlikely that the passport is the result ofany other cause." 14. On 14 December 2017, the Anti-Doping Administrator of the IAAF Athletics Integrity Unit ("AIU") infonned the Athlete that the AIU has initiated an investigation against her on behalf of the IAAF into a potential anti-doping mle violation following receipt of an Adverse Passport Finding report issued by the IAAF's Athlete Passport Management Unit (APMU) pursuant to IAAF Anti-Doping Regulations. The Athlete was also informed of the Expert Panel's unanimously expressed opinion upon reviewing her ABP that it was highly likely that the Athlete have used a prohibited substance or a prohibited method and unlikely that the ABP was the result of any other cause. Consequently, the AIU informed the Athlete that it is considering bringing charges against the Athlete for an anti-doping rule violation under Article 2.2 of the IAAF Anti­ Doping Rule (ADR) (use or attempted use of a prohibited substance or a prohibited method) but that such charges would not be brought until she had been given the oppmtunity to provide an explanation for the alleged abnormalities. A deadline until 28 December 2017 was granted for the Athlete to provide her explanations. 15. On 17 January 2018, and within the deadline extended upon the Athlete's request, the Athlete sent her explanations for the abno1malities in her ABP profile together with related medical documentation. The Athlete submitted the following claims explaining her blood values: (i) Variations in her haemoglobin level since childhood, exacerbated by various pathologies. (ii) Possible analytical inconsistencies in the analysis of samples 3 and 4. (iii) Menstrual and other gynaecological disorders at the time of samples 1, 2 and 13 and in September 2016. (iv) Cytomegalo Virus diagnosis in December 2017. 16. On 22 February 2018, the Expert Panel issued a second joint report (the "Second Joint Expert Opinion"), in which the Athlete's explanations were considered, concluding as follows: CAS 2018/O/5822 International Association of Athletics Federations (IAAF) v. Tribunal Arbitral du Sport Russian Athletic Federation (RUSAF) & Mariya Ponomareva - Page 5 Court of Arbitration for Sport "In summary the explanations provided by the Athlete at this stage do not explain the abnormalities in her passport. We therefore confirm our previous opinion that it is highly unlikely that this profile is the result of a normal physiological or pathological condition, and that it is highly likely that it was caused by the use of prohibited substances or prohibited methods." 17. On 8 March 2018, the AIU, on behalf of the Claimant, asserted to the Athlete that there was sufficient evidence that the Athlete had committed an anti-doping rule violation by using prohibited substances and charged her with a violation of Rule 32.2(b) of the 2016 IAAF Rules.
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