3rd July 2018

Russians sanctioned with two year bans despite one being a second offence

Decisions issued by the Court of Arbitration for Sport (CAS) show that two Russian distance runners who tested positive for the same prohibited substance have been sanctioned with two year bans, despite one case representing a second offence. When samples were taken from Yelizaveta Grechishnikova (Елизавета Гречишникова) and Ksenia Agafonova [Ксения Агафонова] at the Berlin 2009 International Association of Athletics Federations (IAAF) World Championships, no adverse analytical findings (AAFs) were reported. However, reanalysis of both samples undertaken by the IAAF during 2017 returned AAFs for exogenous AAS/dehydrochloromethyl-testosterone metabolite 4-chloro-17-hydroxymethy1-17- methyl-18-nor-5-androst-13-ene-3-ol (DHCMT). 

Yelizaveta Grechishnikova 

In Greshishnikova’s case, the AAF represented a second offence. The CAS award in her case (PDF below) reveals that she previously accepted a two year ban from 16 October 2013 for a separate anti-doping rule violation (ADRV) based on her Athlete Biological Passport (ABP).

‘As the present violation occurred in August 2009, i.e. before the notification of the ABP Violation, both violations must be considered together for determining the applicable sanction in application of Rule 40.7(d)(ii) of the 2009 IAAF Rules’, reads the CAS award. ‘Thus, 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. The Sole Arbitrator notes that the Athlete committed multiple anti-doping violations using different methods (anabolic steroids and EPO/blood transfusion), which justifies the increase of the period of Ineligibility otherwise applicable up to a maximum of four years in application of Rule 40.6 of the 2009 IAAF Rules.’

Detail from the Grechishnikova award…

Under the 2009 IAAF Rules, if an ADRV is discovered that took place prior to an ADRV for which an athlete has already been sanctioned, any additional sanction must be considered as if the two cases were adjudicated together (see explanation on right). Rule 40.7(d)(i) of the 2009 IAAF Rules specifies that ‘the occurrence of multiple violations may be considered as a factor in determining aggravating circumstances’, under which a ban can be increased to four years. 

As the CAS Panel considered the two ADRVs attributable to Greshishnikova together, it ruled that ‘aggravating circumstances’ were applicable, which under Article 40.6 of the 2009 IAAF Rules allowed it to increase her ban up to a maximum of four years. This encompasses the two year ban already served, and an additional two year ban applicable from 18 May 2017. So although two offences have been committed and two substances are involved, the maximum ban that can be imposed is four years, under 2009 rules.

The CAS award reveals that Greshishnikova did not contest the case against her. Greshishnikova’s IAAF profile shows that she most recently competed in February 2017. 

Ksenia Agafonova

Although Agafonova’s AAF represented a first offence, the CAS award in her case (PDF below) confirms she was also issued with a two year ban for an ADRV involving the same substance (DHCMT) as Greshishnikova at the same event. It also reveals that the Russian Athletics Federation (RusAF) sent an email to the IAAF on 20 October 2017 stating that Agafonova had received all correspondence relating to her case, but had refused to sign acceptance of the IAAF’s sanction, arguing that she had not used any prohibited substance.

‘In order to establish the Athlete’s anti-doping rule violation, the IAAF relies on the adverse analytical finding in the Athlete’s A Sample collected on 15 August 2009 as well as on the facts that the Athlete has waived her right to the analysis of the B Sample and thus is deemed to have accepted the A Sample finding’, reads the CAS decision. ‘The IAAF has produced a report issued by the Cologne laboratory on 11 September 2017 confirming the presence of DHCMT metabolites in the Athlete’s A Sample. Considering that the Athlete has not disputed the laboratory’s finding, the Sole Arbitrator is comfortably satisfied that the Athlete has violated Rule 32.2(a) of the 2009 IAAF Rules and thus has committed an anti-doping rule violation.’ 

The CAS Panel ruled that Agafonova should serve a two year ban from 29 September 2017, the date of her provisional suspension. Agafonova won the Fukuoka International Cross Country in March 2009. As the Berlin 2009 Worlds did not take place until August, her results have been annulled from 15 August 2009 until 14 August 2011, which means she retains her victory in Fukuoka.

Turinabol

In May this year, RusAF announced that Greshishnikova, Agafonova and two other athletes had been disqualified due to ADRVs involving turinabol, which is a brand name for dehydrochloromethyl-testosterone metabolite 4-chloro-17-hydroxymethy1-17- methyl-18-nor-5-androst-13-ene-3-ol (DHCMT). Dr. Grigory Rodchenkov, Director of the Moscow and Sochi 2014 anti-doping laboratories, developed the science behind the test for turinabol used by the IAAF and International Olympic Committee (IOC) to retest samples given at past events. 

In May 2017, the World Anti-Doping Agency (WADA) was forced to defend its retesting programme, after Russian Deputy Prime Minister (and former Russian Minister of Sport) Vitaly Mutko claimed that the test is unreliable. It is understood that two Russian athletes are putting forward similar arguments in support of cyclist Ekaterina Gnidenko, who has been allowed to return to competition by the International Cycling Union (UCI) whilst a CAS appeal against her sanction continues. 

Gnidenko case: subterfuge?

It would appear that the Gnidenko case is key. It is unlikely that the CAS would find that the test developed by Dr. Rodchenkov is unreliable, as WADA is likely to provide the CAS with evidence in support of its claim that the test has been independently verified by laboratory experts. However, if a CAS Panel did find the test to be unreliable, then the retesting programmes implemented by the IAAF and IOC could fall apart. 

The two cases above also illustrate concerns about sport’s jurisdiction over athlete cases. As an adjudicatory arbitration body, the CAS can only rule on whether sport’s rules have been applied correctly. In the cases of Greshishnikova and Agafonova, it does appear that the 2009 IAAF Rules have been correctly applied, despite the fact that the 2009 World Anti-Doping Code points towards an additional four year ban for a second offence.

What the 2009 IAAF rules mandate is that two ADRVs involving the same substance at the same event should be issued with the same sanction, irrespective of whether one represents a second offence. As previously highlighted by The Sports Integrity Initiative, there are arguments for and against whether a second offence should result in an increased sanction, but it does appear unfair to Agafonova that she was sanctioned with the same ban as Greshishnikova.

Given the circumstances of the Gnidenko case, it is also of concern that the CAS is able to ignore RusAF’s notification that Agafonova did not accept the IAAF’s finding. Once again, sport’s rules have been correctly applied, as Article 7.3 of the World Anti-Doping Code mandates that if the athlete does not request analysis of their B sample, then it is deemed that they are satisfied that analysis of the A sample is correct.

However, if – as Gnidenko and other Russian athletes argue – the test is flawed, then analysis of the B sample will not help your case. It would appear that the CAS Panel did not take this anomaly into consideration.

Last month, the National Assembly of Quebec granted WADA civil jurisdiction immunity for its decisions. Its Director General, Olivier Niggli, said that the Agency was facing “costly civil lawsuits brought by individuals and organisations whose questionable activities we have brought to light”. A spokesman confirmed that there are a number of “live cases” pending and as such, WADA cannot provide the details.

Gnidenko’s argument that the test developed by Dr. Rodchenkov is flawed would appear to fit that description. Whether the CAS will rule that this argument represents further Russian subterfuge remains to be seen.

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