Editor's Note:  Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.  She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code.

Over the past days, we have been flooded by media reports discussing the “Caster Semenya-case”, reports rapidly relayed in social networks. Since the debate has a distinct legal component and since almost every report appears to draw significantly from the legal background, I granted myself permission – as compensation so to speak - to publish a somewhat more personal, less legal, post than I usually would.

Let me make one thing clear from the outset – I am still ‘agnostic’ about the question of how to solve the issues surrounding the male versus female divide in sports. Each time I have been asked to write or speak on the subject, I have tried to stick to describing the legal situation and its implications. I do not have the miracle solution as to how to handle this infinitely complex issue. And I am not sure anyone can claim to hold that solution at this point. Like everyone, I am doing my research and trying to be humble enough to stay within the realm of my competences.

What I do know: when discussing legal regulation, it is usually not wise to focus disproportionality on an individual case, no matter how much that case stands out. Humans are wired to respond to the particular and the concrete. Caster Semenya’s story is a compelling narrative, which can also very conveniently be supported by pictures (often in poses that – deliberately? – do not do her justice). By contrast, legal regulation is general and abstract and must be designed to address multiple potential situations. I am not naïve enough to believe that regulation is not influenced by politics and – yes - emotions. Still: law-making must be able to distance itself from the pressure of public opinion. This is especially true if the resulting regulations are to deliver satisfactory results on the long term, after the public eye has turned away.

The Court of Arbitration for Sport ruling in the Dutee Chand matter that suspended the validity of the IAAF Hyperandrogenism Regulations was based on a lack of sufficient scientific evidence. More precisely, the decisive factor for the CAS panel was that the IAAF had not adduced sufficient evidence that testosterone levels - at the threshold set in its Regulations - conferred to female athletes an advantage that would outrank any other natural characteristic, in a manner that would place them in a position comparable to male competitors. Absence of evidence is not evidence of absence. Thus, the mere fact that the IAAF – reportedly – intends to continue seeking support to regulate hyperandrogenism and related issues does not truly amount to a ‘challenge’ of the CAS’ ruling or a ‘contempt’ for the decision of the panel. Nor do the IOC recommendations to the same effect. These statements are, on the contrary, the logical sequel of the interim award and the two-year deadline given to the IAAF. I previously made the point – along with my co-author - that the rendering of an interim award was surprising, for various reasons related to legal technique and arbitration practice. But the reactions of the IAAF and the IOC to that award seem rather unsurprising. What is more significant from a legal perspective: the CAS panel placed the burden of proof on the IAAF. This means that, as long as the science is unsettled, women with hyperandrogenism will be given the benefit of the doubt.

Which leads us back to Caster Semenya. I have been reading that making history in Rio could paradoxically be career-ending for her[i]. This is because an outstanding victory would represent outstanding indication of her enjoying an unfair advantage. This may – unfortunately – hold true for public rumour. However, what the CAS panel was looking for in the Dutee Chand award is clearly scientific studies, supported by data and analysed by experts. Evidence in court may not always be rocket science, but CAS panels do not rely on purely anecdotic evidence either.

Meanwhile, the manner in which the topic is being dealt with today is fundamentally divisive, when we should be aiming for cohesion. It positions men against women, sports authorities against athletes, (presumed) non-hyperandrogenic females against (suspected) hyperandrogenic ones. The level playing field is an ever-elusive ideal – some may call it an illusion or utopia - but one worth striving for. It is one of the primary reasons humans bother to look at a couple of other humans running around a 400m loop. Perhaps regrettably, giving legal contours to the level playing field will always involve compromise of some sort, leaving out certain factors to include others.

Today, Caster Semenya is competing legitimately under the rules currently applicable to her. End of the story. And she is entitled to enjoy it - like any other individual, male or female, - who invested years of their lives into their Olympic dream. Let us continue the debate around the legitimacy of gender categories in sport, but without tarnishing the reputation of individuals in the process.

[i] See e.g. http://www.bbc.com/sport/olympics/37102204 (accessed 18.08.16): “For what greater indication of unfair advantage could there be, when the IAAF is trying to buttress its case, than a victory unlike anything history has ever seen before”.

Editor's note: This is the second part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.

• Act I: Saved by the Osaka Déjà-Vu

Act II: On being implicated

Paragraph 2 of the IOC Decision: “The IFs to examine the information contained in the IP Report, and for such purpose seek from WADA the names of athletes and National Federations (NFs) implicated. Nobody implicated, be it an athlete, an official, or an NF, may be accepted for entry or accreditation for the Olympic Games.”

The second, and by far largest, wave of complaints involved Russian athletes barred from the game under paragraph 2 of the IOC Decision. None of those were successful in their appeals as the CAS sided with those IFs which took a tough stance with regard to the Russian State doping system. The first set of cases turned on the definition of the word “implicated” in the sense of paragraph 2 of the IOC Decision. In this regard, on 2 August the IOC sent a communication to the IFs aiming at providing some general guidelines. It reads as follows:

"In view of the recent appeals filed by Russian Athletes with CAS, the IOC considers it necessary to clarify the meaning of the notion "implicated" in the EB Decision.

The IOC does not consider that each athlete referred to in the McLaren Lists shall be considered per se "implicated. It is for each International federation to assess, on the basis of the information provided in the McLaren lists and the Independent Person Report, whether it is satisfied that the Athlete in question was implicated in the Russian State-controlled doping scheme.

To assist the International Federations in assessing each individual case, the IOC wishes to provide some information. In the IOC's opinion, an athlete should not be considered as "implicated" where:

·       The order was a "quarantine".

·       The McLaren List does not refer to a prohibited substance which would 
have given rise to an anti-doping rule violation or;

·       The McLaren List does not refer to any prohibited substance with respect 
to a given sample."

The CAS went on to address this question concretely in three cases analysed below. [1]

A.    CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko v. ICF

Podolskaya and Dyachenko are two canoeists from Russia who were suspended by the International Canoe Federation (ICF) and removed from the Rio Games as they were deemed implicated in the IP Report. In an affidavit to the CAS, referred to in the award, Richard McLaren disclosed the facts that led to both athletes being considered implicated.

Regarding Podolskaya, McLaren indicated that he has retrieved electronic evidence that “reveals that on 31 July 2013 at 00:50 hours, in contravention of the International Standard for Laboratories, the Moscow Laboratory reported to email address av@sochi2014.com that sample member 2780289, belonging to a female canoe athlete taken at the Russian Championships in Moscow, was suspected for EPO and further inquired what should be done”.[2] In a quick response on 1 August 2013, Alexey Velikodniy, then vice-minister for sports, “communicated back to Laboratory that the sample number 2780289 belonged to Ms. Natalia Podolskaya and instructed the Laboratory to "SAVE"”.[3] Similarly, as far as Dyachenko is concerned, the “electronic evidence reveals that on 5 August 2014 at 12:09 hours, in contravention of the International Standard Laboratories, the Moscow Laboratory reported to Alexey Velikodniy that pre-departure sample number 2917734, collected at a Training Camp on 3 August 2014, contained a lot oftrenbolone and a little methenolone. Alexey Velikodny's response to the laboratory on 6 August 2014 at 1%:26 [sic] was that sample number 2917734 from 3 August 2014 pre-departure test belonging to Mr Alexander Dyachenko, and on instruction from "llR", should be a "SAVE".”[4] McLaren concludes that for both “Ms. Natalia Podolskaya and Alexander Dyachenko, the "SAVE" instruction signalled to the Laboratory that no further analytical bench work was to be done on the samples and the Laboratory filed a negative ADAMS report for each athlete”. [5]

In its assessment of the application of paragraph 2 of the IOC Decision by the ICF, the CAS Panel finds that the “Applicants were among five athletes so [as implicated in the IP Report] named” and that the “ICF was entitled to conclude that the Applicants failed to meet the criteria in paragraph 2”.[6] Moreover, this “conclusion has been reinforced by the evidence made available to the Panel by Professor Mclaren” and “is justified on the standard of comfortable satisfaction”.[7] The applicants, unsuccessfully, argued that they were never sanctioned for an anti-doping rule violation, and that the samples referred to in the IP Report cannot be tested anymore to prove their innocence. They also claimed that other contemporary samples returned negative and “that if they had used prohibited substances, all the tests would have returned positive”.[8] Nonetheless, WADA pointed out that “due to the nature of the substances concerned and the timing of the provision of the samples, this cannot be concluded”.[9] The Panel accepted “WADA's submission, not contradicted by the Applicants, that there are explanations consistent with the Applicant's assertion but also consistent with the taking of the prohibited substances at the relevant time”.[10]

Finally, the Russian applicants tried to fight their ineligibility under the implication criteria laid down in paragraph 2 of the IOC Decision by arguing that it was not compatible with natural justice.[11] Yet, The CAS refused to follow this line of reasoning. Instead, the Panel found that the “Applicants have challenged that decision in the CAS and have been given the opportunity to rebut that evidence”, thus they “have not been denied natural justice or procedural fairness”.[12]

B.    CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF 

Anyushina and Korovashkov are also two canoeists from Russia. Similar to Podolskaya and Dyachenko, they were suspended on 26 July 2016 by the ICF and removed from the Rio Games as they were deemed implicated in the IP report. However, Anyushina was quickly reinstated and declared eligible to compete at the Games by the IOC.[13] The procedure was, consequently, limited to Korovashkov. He was deemed implicated because, as outlined by Richard McLaren in his affidavit:

"On 15 August 2014 at 09:22 hours, in contravention of the International Standard for Laboratories, the Moscow Laboratory reported to Alexey Velikodniy that sample number 2916461, collected 10 August 2014 in connection with an International Competition being held in Moscow, contained a lot of marijuana that was certainly above the threshold. (The /CF website reflects that the /CF Canoe Sprint World Championships took place in Moscow from the 8-10 August 2014)Alexey Velikodniy's response to the Laboratory on 18 August 2014 at 08:59 identified that sample number 2916461 belonged to Mr. Alexey Korovashkov and instructed that it should be a 'SAVE." Alexey Velikodniy also notes that Mr. Alexey sample is under investigation. Mr. Korovashkov's sample number 2916461 was reported negative in ADAMS."[14]

The Russian canoeist argued that the “evidence concerning the relevant sample on which the ICF relies to support its decision is unreliable”, because “there is no "threshold" provided for marijuana in WADA Technical Document TD 2013DL of 11 May 2013 concerning Decision Limits for the Confirmatory Quantification of Threshold Substances”.[15] In his view, “[i]f there is no threshold, it is unlikely that the laboratory would have provided such odd information to Alexey Velikodniy rather than reporting the threshold itself; the evidence does not resemble a laboratory report
Correspondence could not have been authored by the laboratory's employees, who are fully aware that they would be required to calculate and then state the actual result”.[16] The Panel rebutted this argument by pointing out that, in fact, the relevant WADA document included a threshold for Cannabinoids.[17] The Panel concluded that “the evidence is that the State sponsored doping system was applied to the Second Applicant so as to prevent a positive report of marijuana over the threshold for that substance”.[18] Consequently, Korovashkov was deemed implicated in the IP Report. The Panel did display its sympathy with the Russian athlete, as it pointed out that “[t]he ICF indicated that marijuana is not, in its view, a performance enhancing drug and the Panel notes that there is no suggestion of any other substance involved”.[19] 

The Panel further rejected Korovashkov argument that the ICF’s decision to declare him ineligible for the Rio Olympics amounted to a wrongful anti-doping sanction.[20] The applicant argued that the use of the word “suspended” in the original letter to the ICF was the terminology used under the WADA Code. The Panel finds that even though “suspended” “is a word used, and a sanction provided for, in the WADA Code, this does not mean that its inclusion means that the decision is made under that Code”.[21] Moreover, the CAS arbitrators consider it “clear that the letter was in direct response to the IOC Executive Board’s decision and concerned the eligibility of Russian athletes to compete in the Games of the XXXI Olympiad in Rio de Janeiro Games and to be accredited to those Games”. [22] Thus, it “was not a decision under the WADA Code and was not bound by the provisions of that Code”. [23] In other words, the Decision should not and could not be misconstrued as a doping ban based on the WADA Code, but found its legal basis in the IOC Decision and in Article 12.3 of the ICF Anti-doping Rules.

This case demonstrates the willingness of CAS arbitrators to adopt an objective reading of the notion of implication. If an athlete benefitted from the Russian doping scheme, even in case of a relatively harmless substance like cannabis, it was considered legitimate for an IF to remove him or her from Russia’s Olympic team.

C.    CAS OG 16/12 Ivan Balandin v. FISA & IOC

Ivan Balandin is a rower from Russia who was declared ineligible to compete at the Rio Olympics by the World Rowing Federation (FISA) on 27 July 2016, due to his implication in the IP Report. More precisely, he appears in the Report as having been “saved” by the Russian Deputy Minister of Sport and his test was later reported as negative in the ADAMS system.[24] 

The athlete first argued, as did Korovashkov, that this was an anti-doping sanction, which did not follow the appropriate procedure. WADA clarified “that the Athlete may yet face proceedings relating to an ADRV, however, the nature of these could yet to be determined [sic]”[25] and added that the “matter at hand concerns eligibility for the Rio Games”.[26] The Panel concurred and concluded that the “dispute at hand concerns the Athlete’s eligibility for the Rio Games alone”.[27]

The next question was whether Balandin was implicated in the IP Report. The Panel notes, as pointed out in the IOC letter from 2 August 2016, that a simple implication in the Report does not necessarily indicate that an athlete benefited from the State-doping scheme. In his defence, the athlete singled out that a date of collection was missing for the sample, in order to attack the validity of the information provided by McLaren. FISA responded that it had taken “the necessary steps to establish this date by calling UKAD”.[28] Moreover, Richard McLaren revealed in his amicus curiae “the exact date and times of the message from the Moscow Laboratory that the screen of the Athlete’s A sample revealed positive for the prohibited substance GW 1516 and the response from the Deputy Minister to change the positive into a negative, following the DPM” .[29] In any event, “the Panel is satisfied that the information provided to FISA and the additional checks it took with UKAD, were sufficient to show the Athlete was “implicated” in this scheme”.[30] The athlete was deemed implicated, but did he actually benefit from the scheme? The Panel “notes that the substance GW 1516 is a metabolic modulator and a non-specified substance and is prohibited at all times (without a threshold)”.[31] Additionally, “the instruction from the Deputy Minister was “save””[32]. Thus, the CAS arbitrators were “comfortably satisfied” that Balandin had benefitted from the scheme.

In all three cases, the athletes mentioned in the Report as ‘saved’ were recognized as implicated by the CAS. The court clearly distinguished the notion of implication from the fact that the athletes committed an anti-doping violation as defined by the WADA Code. However, it is unclear whether the arbitrators would have deemed an athlete implicated, if he or she was not named in the evidence provided by McLaren. As the disappearing positive methodology implemented by the Moscow laboratory was an ultima ratio, this still entails that many Russian athletes competing in Rio might have profited from Russia’s State doping scheme by escaping a positive test altogether. Hence, the IOC’s choice to narrow down on implicated athletes seems rather inadequate to tackle the generalized doping system unveiled by the IC and IP reports. 

[1] CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko v. ICF; CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF; CAS OG 16/12 Ivan Balandin v. FISA & IOC. A fourth case, CAS OG 16/18 Kiril Sveshnikov et al. v. UCI & IOC, was declared inadmissible.

[2] CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko v. ICF, para. 2.11.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid., para. 7.13.

[7] Ibid., para. 7.14.

[8] Ibid., para. 7.24.

[9] Ibid., para. 7.24.

[10] Ibid., para. 7.26.

[11] Ibid., paras 7.15-7.26.

[12] Ibid., para. 7.18.

[13] CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF, para. 3.13.

[14] Ibid., para. 2.6.

[15] Ibid., para. 7.10.

[16] Ibid., para. 7.12.

[17] Ibid., paras 7.15-17.

[18] Ibid., para. 7.20.

[19] Ibid., para. 7.21.

[20] Ibid., paras 7.23-7.27.

[21] Ibid., para. 7.24.

[22] Ibid., para. 7.25.

[23] Ibid.

[24] CAS OG 16/12 Ivan Balandin v. FISA & IOC, para.2.9.

[25] Ibid., para. 7.13.

[26] Ibid.

[27] Ibid., para. 7.15.

[28] Ibid., para 7.28.

[29] Ibid., para 7.29.

[30] Ibid.

[31] Ibid., para 7.30.

[32] Ibid.