Proportionality of a doping sanction imposed on a minor athlete – the SFT Judgment in the case of Kamila Valieva
SFT Judgment 4A_136/2024 of 5 September 2024, motion to set aside CAS 2023/A/9451, CAS 2023/A/9455 and CAS 2023/A/9456
By Dr. Despina Mavromati
This case relates to the motion filed by Russian figure skater Kamilla Valieva (the Athlete), born in 2006, who was disqualified from the OG in Beijing for the presence of the prohibited substance Trimétazidine in her sample. In January 2024, the CAS issued its final decision sanctioning the Athlete for anti-doping regulations, issuing a four-year ineligibility period starting from 25 December 2021 and ordering a disqualification of all results obtained since then.
In essence, the Panel had considered that the substance found in her sample was a non-specified substance, which would entail a four-year ban, unless the athlete could establish, based on the balance of probabilities, that the violation was unintentional. The Panel considered that it was not necessary to treat protected persons (as minor athletes) differently when considering the intentional character of the violation. The Panel also considered the three scenarios for the origin of the adverse analytical finding namely a) sabotage, b) a contaminated supplement and c) a strawberry dessert prepared by her grandfather and concluded that the Athlete could not establish the origin based on the balance of probabilities. The Panel concluded that the Athlete could not establish that the ADRV was unintentional and imposed 4 years of ineligibility, however considering the delays in the antidoping procedure, it exceptionally backdated the ineligibility period to the date of the sample collection and disqualified all results since that date.
With respect to the proportionality principle, the Panel considered that the case law of CAS is not favourable to reducing even more the ineligibility period from the minimal suspension provided for in the WADA Code and concluded that if an additional protection of young athletes is deemed necessary, it should be for the WADA governing bodies to edict the necessary rules and modify them respectively (Award par. 421-425).
Lack of jurisdiction as the first ground for challenge – the issue of good faith
The Athlete raised an argument similar to the one raised already before the CAS Ad Hoc division regarding the lack of jurisdiction of the CAS to hear the case in appeal. The SFT drew the distinction between an athlete who had never consented to an arbitration clause and an athlete who signed a document referring to the CAS, without having another choice.
The SFT also held that the new Art. 178 par. 4 PILA provides that the 12th chapter also applies by analogy to statutory arbitration clauses (enshrined in the statutes of federations, which could led some authors to support that athletes could be bound by those statutes even if they did not sign the entry form to those statutes. The SFT left however this question unanswered finding that the CAS had, in any event, jurisdiction.
In this case, the applicable regulations provided that appeals against decisions involving international level athletes could be brought to the CAS. In the CAS Ad Hoc Proceedings, the Athlete had contested the jurisdiction of the Ad Hoc Division holding that art. 15.2 referred to the CAS Appeals division in Lausanne. The SFT considered that these statements confirmed the jurisdiction of the CAS in Lausanne and that her conduct was contrary to the rules of good faith.
The SFT further dismissed the Athlete’s grievance of violation of public policy for not considering the young age of the athlete as inadmissible appellatory criticism and confirmed the fact that imposing a less severe sanction on athletes merely based on their young age would go against the fight against doping and WADA’s objectives.
In another grievance founded on jurisdictional grounds, (at 6) the Athlete held that the panel issued a decision on a non-arbitrable matter, which would entail the nullity of the CAS award or the annulment as the sanctions had been issued based on public Russian law and not a private sports federation regulation. The SFT held that the arbitrability check follows the same rules as jurisdiction and left open the question of whether arbitrability had to be examined by the panel ex officio or not (ATF 143 III 578), considering that her conduct was again contrary to the rules of good faith (since she had not raised this before the previous instance). In any event, the simple fact that the Russian state chose to codify the WADA Code into state legislation would not render the dispute inarbitrable, as the contrary would endanger the fight against doping.
The SFT further dismissed the Athlete’s grievance of violation of public policy for not considering the young age of the athlete as inadmissible appellatory criticism and confirmed the fact that imposing a less severe sanction on athletes merely based on their young age would go against the fight against doping and WADA’s objectives.
Finally, the SFT dismissed the argument on the excessive mediatization of the case by the CAS (at 7.5), which had failed to preserve the confidentiality, to the extent that Art. 14.3.7 WADA Code explicitly allows the publication of a case involving a protected person, but it has to be adapted to the circumstances. The CAS did so as there was an excessive publicity of the case during the Beijing Olympic Games in 2022 and the Athlete was widely known at that moment.
