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The Russian Ballet at the CAS Ad Hoc Division in Rio - Act III: On being sufficiently tested

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]

Finally, with regard to the need of having three tests, the “relevant paragraph in the IOC Executive Board decision further refers to "adequate international tests" and, consequently, makes it clear that - in principle - a single test is not sufficient to rebut the presumption of “collective responsibility””.[8] This follows “from the word “tests” being used in the plural form, but also from the word "adequate", since a single negative anti-doping test can hardly be adequate to rebut the presumption of “collective responsibility””.[9] The CAS also points out a number of other reasons why three tests is a rational benchmark: 

  • “[…]rowing is at the same time a sport requiring strength and endurance and, thus, is exposed to a significant doping threat”;
  • There is “a history of doping cases in the Russian Rowing Federation”;
  • FISA “took also into consideration WADA's "Guidelines Implementing an Effective TestingProgramme'', which refers to a minimum of three tests per year for Registered Testing Pool athletes”;
  • “FISA also bore in mind that it only provides for a relatively small number of events where tests can be carried out compared to other sports”.[10] 

Hence, “FISA's implementation and application of the criteria listed in the IOC Executive Board decision is consistent and fully compliant with the wording and the spirit of the IOC's decision”.[11] The CAS Panel rejected the pleas brought forward by the athletes on the basis of natural justice and fundamental procedural principles, as they did not challenge the IOC Decision directly but only its implementation.

Surprisingly, FISA was the only Federation (alongside the IAAF), which systematically refused entry to Russian athletes because they were not exposed to proper independent anti-doping testing. It is likely that, had each IF imposed similar standards, few Russian athletes would have been able to participate in the Rio Games. Furthermore, the case also highlights once again that the CAS was ready to endorse a strict standards of eligibility for Russian athletes. Here again, the IOC could very well have decided to impose a similar condition across the board, instead of leaving each federation decide for itself and, thus, indirectly promoting differentiated treatments depending on the sporting discipline.

[1]CAS OG 16/11 Daniil Andrienko et al. v. FISA & IOC, para. 2.6.

[2] Ibid., para. 7.3.

[3] Ibid., para.7.4.

[4] Ibid., para.7.5.

[5] Ibid.

[6] Ibid., para. 7.6.

[7] Ibid.

[8] Ibid., para. 7.7.

[9] Ibid.

[10] Ibid.

[11] Ibid.

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