Editor's note: This is the third part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.
Act III: On being
sufficiently tested
Paragraph 2 of the IOC Decision: “The IFs should carry out an individual
analysis of each athlete’s anti-doping record, taking into account only
reliable adequate international tests, and the specificities of the athlete’s
sport and its rules, in order to ensure a level playing field.”
Daniil Andienko and 16 other members
of the Russian rowing team challenged the decision of the World Rowing
Federation (FISA) to declare them ineligible for the Rio Olympics. The FISA
Executive Committee took the decision on 24 July 2016 because they had not “undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow
laboratory and registered in ADAMS
from 1 January 2015 for an 18 month period”.[1] In
their submissions, the Russian applicants did not challenge the IOC Decision,
and thus the criteria enshrined in paragraph 2, but only its application by
FISA.[2] The
Russian athletes argued that FISA’s decision deviated from the IOC Decision in
that it was imposing as an additional requirement that rowers must “have
undergone a minimum of three anti-doping tests analysed by a WADA accredited
laboratory other than the Moscow laboratory and registered in ADAMS from 1
January 2015 for an 18-month period”.[3] The Panel
acknowledged that “the IOC Executive Board decision does not refer explicitly
to the requirement of three tests or to a period of 18 months”.[4]
Nonetheless, it “finds that the Challenged Decision is in line with the
criteria established by the IOC Executive Board decision”.[5]
Indeed, the IOC’s Decision “provides that in order to examine whether the level
playing field is affected or not (when admitting a Russian athlete to the Rio
Olympic Games), the federation must look at the athlete's respective
anti-doping record, i.e. examine the athlete's anti-doping tests” and that
“[i]n doing so, the IOC Executive Board decision specifies that only "reliable
adequate international tests" may be taken into account”.[6] In
this regard, the Panel, and FISA, share the view that “a reliable adequate
international test can only be assumed if the sample has been analyzed in a
WADA-accredited laboratory outside Russia”.[7]More...
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 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. More...
Since it was first introduced at
the Atlanta Games in 1996,[1]
the CAS ad hoc Division has never been as crowded as it was during this year’s Rio
Olympics. This is mainly due to the Russian doping scandal, which has fuelled the CAS with Russian athletes challenging their
ineligibility to compete at the Games. The CAS recently revealed that out
of 28 awards rendered, 16 involved Russian athletes challenging their
ineligibility. This Russian ballet is
a direct result of the shocking findings of Richard McLaren’s Independent Person (IP) Report ordered by the World Anti-Doping Agency (WADA).
McLaren’s investigation demonstrated that the Russian State was coordinating a
sophisticated doping system. The revelation triggered an outrage in the media
and amongst other competitors. Numerous calls (especially by WADA and various National Anti-Doping Organisations) were heard urging the IOC to ban the entire Russian
delegation from the Olympics. The IAAF decided to exclude
the whole Russian athletics team, [2]
with the exception of Darya Klishina, but, to the disappointment of many, the IOC refused to heed these calls and decided, instead,
to put in place a specific procedure to assess on a case-by-case basis the
eligibility of Russian athletes.
The IOC’s Decision (IOC
Decision) of 24 July foresees that the International Federations (IFs) are
competent to determine whether each Russian athlete put forward by the Russian
Olympic Committee (ROC) to participate in the Olympics meets a specific set of
conditions. Moreover, the ROC was also barred from entering athletes who were
sanctioned for doping in the past, even if they have already served their
doping sanction. In the end, a majority of the Russian athletes (278 out of 389 submitted by the ROC) cleared the IOC’s bar relatively easily, but some
of them did not, and many of the latter ended up fighting for their right to
compete at the Rio Olympics before the CAS ad hoc Division.[3]
In the following blogs, I will analyse the ten published CAS awards related to
Russian athletes.[4] It
is these legal fights that I suggest to chronicle in the following parts of this
blog. To do so, I have divided them in five different (and analytically coherent)
Acts:
Editor's Note: Ryan is Assistant Professor at Thompson Rivers University, he defended his PhD at Erasmus University Rotterdam in December 2015. His dissertation examined human rights violations caused by international sporting events, and how international sporting organisations may be held accountable for these violations.
Introduction
On Sunday, August
21, the 2016 Summer Olympic Games in Rio de Janeiro will end. The spotlight
will dim not only on the athletes who return to their home countries to ply their
trade in relative obscurity, but also on the country of Brazil.[1]
Once the Games have ended, life will go ‘back to normal’, although for many
residents of Rio de Janeiro, what is ‘normal’ is anything but. More...
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. More...
Editor’s note: Yann Hafner is a Phd researcher at the University of Neuchâtel specialized
in sports and nationality issues. He is also Legal Affairs Manager at the Fédération
Internationale de Volleyball. Yann is
an editor of the ASSER International Sports Law Blog and has previously
published on the blog on nationality conundrums at the FIFA World Cup 2014 in
Brazil (see here).
This contribution aims to decipher
the relationship between sporting nationality and the Olympic Games. To this
end, the author will first define sporting nationality and discuss athletes’
eligibility in national team in the context of the Olympic Games. Then,
selected issues in relation with sporting nationality and the Olympic Games
(with an emphasis on issues related to the Rio 2016 Olympic Games) will be investigated.
More...
Editor's note: Marjolaine Viret and Emily Wisnosky are both editors of the ASSER International Sports Law Blog specialized in anti-doping matters, they are also involved in the World Anti-Doping Commentary project funded by the Swiss National Science Fund.
Introduction
A remarkable aspect of the run-up to the 2016
Rio Olympic Games was the stream of negative media reports portraying
broad-scale public mistrust in sport, with the most prominent topic being the doping
scandals in athletics and questions surrounding the participation of Russia.
A different controversy, but one also
directed at the credibility of sports, has exposed a few female Olympians to
repeated, and at times rather intrusive, media scrutiny. In June 2016, it was reported
that Indian track-and-field athlete Dutee Chand had qualified for the Rio
Olympic Games by breaking the national record, thus to become the first Indian
athlete to run the 100m at the Olympics since 1980. The attention that Dutee
Chand’s qualification attracted within international media, however, was not
related only to her outstanding results. It came as part of a medical, ethical
and legal controversy that has existed for many years relating to ‘policing’
the male versus female divide in sports. Another athlete who has found herself
in the midst of this controversy is South African runner Semenya Caster, whose
participation in the Olympics has been the object of much
conjecture.
The divide between male and female athletes
forms the core of most sports’ competition rules, including athletics. The
justification for this basic divide has rarely been questioned as such, but has
been a matter for debate when it comes to handling atypical situations on both
sides of the ‘dividing line’ such as ‘transgender’ or ‘intersex’ athletes. A category of
athletes that has, especially, been viewed as a challenge to the divide is composed
of female athletes affected by ‘hyperandrogenism’, a health condition that
results in naturally elevated androgen levels, including testosterone levels.
On 24 July 2015, a CAS panel rendered a decision
involving Dutee Chand (“Dutee Chand” or “the Athlete”) that has fuelled the
ongoing debate about the policies regulating hyperandrogenism in sport. Much
has been reported in the media about the case: controversial issues include
whether the CAS was the appropriate forum to assess these questions; whether
the decision was appropriate, both on the merits and on the procedure; and what
the consequences of the CAS award would be, for the parties, for athletics and
for the sporting community at large.
Much like the current crisis surrounding
doping in sports, the public attention on women with (proven or suspected) hyperandrogenism
is driven by a concern that an athlete’s physiology – natural or artificially
induced could distort competition, destroying the ‘level playing field’
that supports the Olympic ideal. Both topics are also often brought back to the
goal of protecting an athlete’s health. Parallels are further found in the
strong reactions both topics evoke, and the steps taken by the regulating
authorities to convince the public that everything in their power is being done
to preserve a level playing field.
A less obvious but equally important point
of comparison can be found in the issues both topics raise concerning the legal
validity of decisions made by sports organizations, especially in a
science-related context. This blog focuses on those more ‘legal’ aspects,
through the prism of the decision of the CAS in the Dutee Chand matter and its
legal implications. After touching briefly on the
background of the case, we will comment on two aspects of the Chand award with
respect to challenges in regulating hyperandrogenism in sport within the
confines of the law: First from the viewpoint of a CAS panel called upon to
evaluate the validity of a set of regulations, and second from the viewpoint of
the sports organizations seeking to both adequately protect fairness in sport
and to provide a legally valid (and effective) regulatory solution.[1]
More...
Editor’s note: This
report compiles all relevant news, events and materials on International and
European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the
comments section below, feel free to add links to important cases, documents
and articles we have overlooked.
The Headlines
The McLaren Report on Russia’s State Doping System
It is difficult not to start this monthly
report without referring to the never-ending Russian doping investigation that
is shaking the sporting world. On 18 July, the independent investigation on
Sochi 2014 winter Olympics led by Prof. McLaren, a Canadian law professor, and requested
by the World Anti-Doping Agency (“WADA”), released its report. It confirmed
evidence of widespread, State-sponsored doping in Russian sports and called for
a full ban on the country from the next Rio Olympics. In response to the report,
the International Olympic Committee (“IOC”) vowed to take the “toughest sanctions available”. However, and despite the race against time in the
run-up to Rio 2016, the IOC delayed its decision for several days amid a WADA statement and several press articles
calling for a ban of Russia from Rio Olympics. Meanwhile, it did open an investigation
against Russia’s sports minister, Vitaly Mutko, the head official who allegedly supervised the overall doping cover up and explored all possible
legal actions against Russia. On 21 July, the Court of Arbitration for Sport (“CAS”) rejected the
appeal of the Russian Olympic Committee and 68
Russian athletes against the International Association of Athletics Federations
(“IAAF”) decisions to suspend All Russia Athletics Federation (ARAF) from IAAF
membership given the evidence of a state-sponsored doping system. As a
consequence, Russian track and field athletes were also banned from Rio 2016
Olympics. With the IAAF
welcoming this decision, one could think that nothing was standing in the way
of a full Olympic ban for all Russian athletes. While some Russian athletes announced
that they would appeal the CAS award to the Swiss Federal Court. Yelena
Isinbayeva, the banned pole vault champion, even took it a step further by
claiming that she would challenge the IAAF decision as far as the European Court of
Human Rights. Yet, it is very improbable that any of
these challenges be decided in time for the Rio Games.More...
The decision of the
Bundesgerichtshof (BGH), the Highest Civil Court in Germany, in the Pechstein case was eagerly awaited. At
the hearing in March, the Court decided it would pronounce itself on 7 June,
and so it did. Let’s cut things short: it is a striking victory for the Court
of Arbitration for Sport (CAS) and a bitter (provisory?) ending for Claudia
Pechstein. The BGH’s press
release is abundantly clear that the German judges endorsed the CAS
uncritically on the two main legal questions: validity of forced CAS
arbitration and the independence of the CAS. The CAS and ISU are surely right
to rejoice and celebrate the ruling in their respective press releases that
quickly ensued (here
and here).
At first glance, this ruling will be comforting the CAS’ jurisdiction for years
to come. Claudia Pechstein’s dire financial fate - she faces up to 300 000€ in
legal fees – will serve as a powerful repellent for any athlete willing to
challenge the CAS.More...
Editor's note: Laura Donnellan is a lecturer at University of Limerick. You can find her latest publications here.
Introduction
On Tuesday
the 12th of April, João
Carvalho passed away in the Beaumont Hospital after sustaining serious injuries
from a mixed martial arts (MMA) event in Dublin on the previous Saturday. The
fighter was knocked out in the third round of a welterweight fight against
Charlie Ward. Aside from the tragic loss of life, the death of Carvalho raises
a number of interesting legal issues. This opinion piece will discuss the
possible civil and criminal liability that may result from the untimely death
of the Portuguese fighter.
It is
important to note at the outset that MMA has few rules and permits wrestling
holds, punching, marital arts throws and kicking. MMA appears to have little
regulation and a lack of universally accepted, standardised rules. There is no
international federation or governing body that regulates MMA. It is largely
self-regulated. MMA is not recognised under the sports and governing bodies
listed by Sport
Ireland, the statutory body established by the Sport
Ireland Act 2015 which replaced the Irish
Sports Council. MMA is considered a properly constituted sport so long as the
rules and regulations are adhered to, there are appropriate safety procedures,
the rules are enforced by independent referees, and it appropriately
administered.
The
Acting Minister for Sport, Michael Ring, has called for the regulation
of MMA. Currently there are no minimum requirements
when it comes to medical personnel; nor are there any particular requirements
as to training of medical personnel. The promoter decides how many doctors and
paramedics are to be stationed at events. In February 2014 Minister Ring wrote to 17
MMA promoters in Ireland requesting that they implement safety precautions in
line with those used by other sports including boxing and rugby.
Despite
this lack of regulation, this does not exempt MMA from legal liability as the
discussion below demonstrates.More...