Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Pistorius revisited: A comment on the CAS award in Blake Leeper v. IAAF - By Marjolaine Viret

On 23 October 2020, a panel of the Court of Arbitration for Sport (‘CAS’) rendered an award in the matter opposing Mr Blake Leeper (‘Mr Leeper’ or ‘the Athlete’) to the International Association of Athletics Federation (‘IAAF’).[1] The CAS panel was asked to make a ruling on the validity of the IAAF rule that places on a disabled athlete the burden to prove that a mechanical aid used to compete in IAAF-sanctioned competitions does not give such athlete an overall competitive advantage.

The award is remarkable in that it declared the shift of the burden of proof on the athlete invalid, and reworded the rule so that the burden is shifted back on the IAAF to show the existence of a competitive advantage. Thus, while the IAAF won its case against Blake Leeper as the panel found that the sport governing body had discharged its burden in casu, the outcome can be viewed as a victory for disabled athletes looking to participate in IAAF-sanctioned events. It remains to be seen how this victory will play out in practice. Beyond the immediate issue at stake, the case further presents an illustration of how – all things equal – assigning the burden of proof can be decisive for the real-life impact of a policy involving complex scientific matters, as much as the actual legal prerequisites of the underlying rules.

This article focuses on some key aspects of the award that relate to proof issues in the context of assessing competitive advantage. Specifically, the article seeks to provide some food for thought regarding burden and degree of proof of an overall advantage, the contours of the test of ‘overall advantage’ designed by the CAS panel and its possible bearing in practice, and potential impact of the ruling on other areas of sports regulations such as anti-doping.

The award also analyses broader questions regarding the prohibition of discrimination in the regulation of sports, as well as the interplay with international human rights instruments such as the European Convention on Human Rights (‘ECHR’), which are not explored in depth here. More...

Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 2: The African Reality – By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.


Having considered the history and justifications for the FIFA training compensation and solidarity mechanisms in my previous blog, I will now consider these systems in the African context. This appears to be a worthwhile undertaking given these global mechanisms were largely a result of European influence, so understanding their (extraterritorial) impact beyond the EU seems particularly important. Moreover, much has been written about the “muscle drain” affecting African football and the need for such drain to either be brought to a halt, or, more likely and perhaps more practical, to put in place an adequate system of redistribution to ensure the flourishing of African football that has essentially acted as a nursery for European football for at least a century. In the present blog, I intend to draw on my experiences as a football agent to expand on how FIFA’s redistributive mechanisms function in practice when an African player signs in Europe via one of the many kinds of entities that develop or purport to develop talent in Africa. I will throughout address the question of whether these mechanisms are effective in a general sense and more specifically in relation to their operation in Africa.More...



International and European Sports Law – Monthly Report – October 2020 - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.


The Headlines

Aguero and Massey-Ellis incident: An Opportunity for Change and Education?

In mid-October a clip went viral of Argentinian star Sergio Aguero putting his hands on sideline referee, Sian Massey-Ellis. A heated debate ensued in many circles, some claiming that Aguero’s conduct was commonplace, others taking aim at the appropriateness of the action, around players touching official and a male touching a female with an unsolicited arm around the back, the squeeze and pull in. Putting the normative arguments aside for a moment, the irony of the debate was that all sides had a point. Football, almost exclusively, has grown a culture of acceptance for touching officials despite the regulations. Male officials who have let such conduct slide, have arguably let their female colleague down in this instance.

Whilst a partial defence of Aguero might be that this kind of conduct takes place regularly, the incident could serve as a learning experience. If Massey-Ellis’ reaction was not enough, the backlash from some of the public might provide Aguero and other players the lesson, that touching a woman in this way is not acceptable.

Returning to football, the respect and protection of officials in sport, the key here appears to be cracking down on touching officials entirely. This is not a foreign concept and football need only look at the rugby codes. Under no circumstances does the regulations or the culture permit that a player from the rugby codes touch a referee. It is likely the case that the obvious extra level of respect for officials in these sports derives from a firm culture of no touching, no crowding officials, communicating with officials through the team captain only, with harsh sanctions if one does not comply.

The Football Association of England has decided no action was necessary, raising questions of how seriously they take the safety of officials, and gender issues. This is ultimately a global football issue though, so the confederations or international bodies may need step in to ensure the protections that appear at best fragile.  


Rugby Trans issue

The World Rugby Transgender guideline has been released and contains a comprehensive unpacking of the science behind much of the regulatory framework. Despite many experts applauding World Rugby on the guidelines and the extensive project to reach them, the England Rugby Football Union is the first to defy the World Rugby ruling and transgender women will still be allowed to play women’s rugby at all non-international levels of the game in England for the foreseeable future. This clash between national bodies and the international body on an important issue is concerning and will undoubtedly be one to keep an eye on.

 

CAS rejects the appeal of Munir El Haddadi and the Fédération Royale Marocaine de Football (FRMF)

The refusal to authorise a footballer to change national federation is in the headlines with the CAS dismissing the appeal of the player and Moroccan federation, confirming the original determination of the FIFA Players’ Status Committee.

This has been given considerable recent attention and seemingly worth following, perhaps best summed up by FIFA Director of Football Regulatory, James Kitching, where in a tweet he notes: “The new eligibility rules adopted by the FIFA Congress on 18 September 2020 have passed their first test. We will be publishing our commentary on the rules in the next fortnight. Watch this space.” More...



Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part.1: The historical, legal and political foundations - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.


In 2019, training compensation and solidarity contributions based on FIFA’s Regulations on the Status and Transfer of Players (RSTP) amounted to US$ 75,5 million. This transfer of wealth from the clubs in the core of the football hierarchy to the clubs where the professional players originated is a peculiar arrangement unknown in other global industries. Beyond briefly pointing out or reminding the reader of how these systems work and the history behind them, this blog series aims to revisit the justifications for FIFA-imposed training compensation and the solidarity mechanism, assess their efficacy and effects through a case study of their operation in the African context, and finally analyse the potential impact of upcoming reforms of the FIFA RSTP in this context.

First, it is important to go back to the roots of this, arguably, strange practice. The current transfer system and the legal mechanisms constituting it were largely the result of a complex negotiation between European football’s main stakeholders and the European Commission dating back to 2001. The conclusion of these negotiations led to a new regulatory system enshrined in Article 20 and Annex 4 of the RSTP in the case of training compensation, and at Article 21 and Annex 5 in the case of the solidarity mechanism. Before paying some attention to the historical influences and how we arrived at these changes, as well as the justifications from the relevant bodies for their existence, let us briefly recall what training compensation and the solidarity mechanisms actually are. More...



Invalidity of forced arbitration clauses in organised sport…Germany strikes back! - By Björn Hessert

Editor's note: Björn Hessert is a research assistant at the University of Zurich and a lawyer admitted to the German bar.

 

The discussion revolving around the invalidity of arbitration clauses in organised sport in favour of national and international sports arbitral tribunals has been at the centre of the discussion in German courtrooms.[1] After the decisions of the German Federal Tribunal[2] (“BGH”) and the European Court of Human Rights[3] (“ECtHR”) in the infamous Pechstein case, this discussion seemed to have finally come to an end. Well…not according to the District Court (LG) of Frankfurt.[4] On 7 October 2020, the District Court rendered a press release in which the court confirmed its jurisdiction due to the invalidity of the arbitration clause contained in the contracts between two beach volleyball players and the German Volleyball Federation[5] (“DVV”) – but one step at a time. More...

International and European Sports Law – Monthly Report – September - October 2020 - By Rhys Lenarduzzi


The Headlines


Human rights and sport  

Caster Semenya

Human rights issues are taking the headlines in the sporting world at present. A short time ago, Caster Semenya’s appeal at the Swiss Federal Tribunal against the CAS decision was dismissed, perhaps raising more questions than answering them. Within the last few days however, the message from the Semenya camp has been that this is not over (see here).  See the contributions from a range of authors at Asser International Sports Law Blog for a comprehensive analysis of the Semenya case(s) to date.

Navid Afkari

As the sporting world heard of the execution of Iranian Wrestler Navid Afkari, a multitude of legal and ethical questions bubbled to the surface. Not least of all and not a new question: what is the responsibility of sport and the governing bodies therein, in the space of human rights?  And, if an athlete is to acquire a high profile through sporting excellence, does that render athletes vulnerable to be made an example of and therefore in need of greater protection than is currently afforded to them? There are differing views on how to proceed. Consider the following from the World Players Association (Navid Afkari: How sport must respond) and that from the IOC (IOC Statement on the execution of wrestler Navid Afkari) which shows no indication through this press releases and other commentary, of undertaking the measures demanded by World Players Association and other socially active organisations. (See also, Benjamin Weinthal - Olympics refuses to discuss Iranian regime’s murder of wrestler).

Yelena Leuchanka

As this is written and relevant to the above, Yelena Leuchanka is behind bars for her participation in protests, resulting in several sporting bodies calling for her immediate release and for reform in the sporting world around how it ought to deal with these issues. As a member of the “Belarus women's national basketball team, a former player at several WNBA clubs in the United States and a two-time Olympian”, Leuchanka has quite the profile and it is alleged that she is being made an example of. (see here)

Uighur Muslims and Beijing Winter Olympics

British Foreign Secretary, Dominic Raab does not rule out Winter Olympics boycott over Uighur Muslims. ‘The foreign secretary said it was his "instinct to separate sport from diplomacy and politics" but that there "comes a point where that might not be possible".’ Though Raab’s comments are fresh, this issue is shaping as a “watch this space” scenario, as other governments might echo a similar sentiment as a result of mounting pressure from human rights activist groups and similar, in lead up to the Winter Games. More...



The Specificity of Sport - Comparing the Case-Law of the European Court of Justice and of the Court of Arbitration for Sport - Part 2 - By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar.


1. EU law and the CAS case-law

Bearing in mind these questions, it is possible to affirm that under EU law, the specificity of sport

i) refers to the inherent characteristics of sport that set it apart from other economic and social activities and which have to be taken into account in assessing the compatibility of sporting rules with EU law; and

ii) under EU law these inherent characteristics of sport must be  considered on a case by case  basis, per the Wouters test as developed by the ECJ in the Meca Medina ruling.

Both aspects can be found in the CAS case-law too, although the CAS case-law shows some remarkable differences and peculiarities. From a general point of view, the application of the principle of specificity of sport in the CAS case-law represents an aspect of the more general issue related to the application of EU law by the CAS. However, the purpose of this paper is not to fully examine if and to what extent the CAS arbitrators apply EU law rules on free movement and competition; rather, the aim is to analyse the way the CAS deals with the concept of the specificity of sport, highlighting similarities and differences compared to the ECJ.

Taking for granted that ‘a CAS panel is not only allowed, but also obliged to deal with the issues involving the application of [EU] law’,[1] as far as the compatibility of sporting rules with EU law is concerned the CAS case-law shows different degrees of engagement. For instance, in the ENIC award concerning the so-called UEFA integrity rule, the CAS panel went through a complete competition-law analysis in perfect harmony with the Wouters et al. ruling by the ECJ.[2] On the contrary, in the above-quoted Mutu case, the issue of compatibility of the FIFA’s transfer regulations with EU competition law was analysed in a rather simple way, merely stating that the FIFA rules at stake were not anti-competitive under EU competition law without giving any reason to support this conclusion. More recently, in the Galatasaray and Milan A.C. awards, concerning the UEFA’s financial fair-play regulations, the CAS  applied a detailed analysis of EU competition law. However, in both cases, according to the CAS the proportionate character of sanctions listed in the UEFA’s financial fair-play regulations cannot affect the evaluation of the legitimacy of these regulations under Art. 101 TFEU. This conclusion represents a clear breaking point with respect to the ECJ case-law, according to which the evaluation of the restrictive effects of a rule necessarily presupposes the analysis of the proportionate character of the sanction imposed in the event of a violation of that rule as well.[3]   In regard to EU free movement, the CAS case-law tends to be less analytical in terms of the principle of proportionality. For instance, in the RFC Seraing award  which concerned both EU free movement and competition law, the CAS panel mainly focused on the legitimate objectives of the contested rule (FIFA’s ban on Third-Party Ownership – TPO), merely affirming that the restrictive measures under EU free movement were justified and inherent in the pursuit of those objectives.More...



The Specificity of Sport - Comparing the Case-Law of the European Court of Justice and of the Court of Arbitration for Sport - Part 1 - By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar.*

 

1. Introduction.

The so-called specificity of sport represents one of the most debated, if not the most debated, but still undefined issue under European Union (EU) law. A noteworthy peculiarity is that the specificity of sport is frequently mentioned in several legislative and political documents issued by EU institutions, however it is not expressly referred to in any judgment by the European Court of Justice (ECJ).Conversely, the Court of Arbitration for Sport (CAS) case-law on Art. 17 of FIFA Regulations on status and transfer of players (RSTP) has repeatedly and expressly referred to the specificity of sport.[1] Apparently, the concept of specificity of sport has different meanings and purposes in the ECJ and CAS jurisprudence. In this blog (divided in two parts), I will try to analyse those two different meanings and to what extent the CAS case-law is consistent with the concept of specificity of sport as elaborated under EU law. More...

SFT rejects Semenya appeal: nothing changes - By Andy Brown

Editor's note: Andy Brown is a freelance journalist who has been writing about the governance of sport for over 15 years. He is the editor of The Sports Integrity Initiative where this blog appeared first.


For the last three days, I have been struggling with what to write regarding the Swiss Federal Tribunal’s (SFT) Decision to dismiss a challenge from Caster Semenya and Athletics South Africa (ASA) against the Court of Arbitration for Sport’s (CAS) Decision to dismiss a challenge to the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development), otherwise known as the DSD Regulations. From reading World Athletics’ statement welcoming the ruling, one could be forgiven for thinking that it had won a major trial. Sports journalists, accustomed to covering events now curtailed by Covid-19, focus on the fact that Semenya has ‘lost’ her case against the DSD Regulations. Neither assertion is strictly accurate.

The SFT’s powers to review the CAS’s ruling are severely limited. It can only consider whether the CAS Decision violates ‘widely recognised principles of public order’ on Swiss public policy grounds. The SFT has only reversed a decision based on a a violation of Swiss public policy once in 30 years.

The SFT didn’t reconsider the evidence put forward to the CAS. ‘For there to be incompatibility with public policy, it is not enough that the evidence has been poorly assessed, that a finding of fact is manifestly false or that a rule of law has been clearly violated’, its Decision reads. ‘The only question to be resolved is in fact whether or not the verdict of the CAS renders the referred award incompatible with substantive public policy’. 

There were questions about whether the appeal from Semenya and ASA qualified to be reviewed by the SFT in the first place. World Athletics is a private organisation headquartered in Monaco, and the SFT was troubled as to whether such a complaint brought by a South African athlete against an overseas private organisation is capable of violating Swiss public policy.

‘It is doubtful whether the prohibition of discriminatory measures falls within the scope of the restrictive concept of public order when the discrimination is committed by a private person and occurs in relations between individuals’, the Decision quotes from its pervious 29 July 2019 Decision, which refused the ASA’s request to provisionally suspend the application of the DSD Regulations. ‘In any event, there is no need to examine this question further here since […] the award under appeal does not in any way establish discrimination which would be contrary to public order’

The SFT ruled that the CAS was correct to uphold conditions of participation for 46 XY DSD athletes in order to guarantee fair competition for certain disciplines in female athletics. In doing so, the SFT was ruling on whether the decision taken by the CAS violates public policy, based only on the complaints brought forward by Semenya and ASA. 

Semenya and the ASA had challenged the CAS Decision based around the idea that the DSD Regulations are discriminatory. The CAS held that they are discriminatory, but agreed with the IAAF (as World Athletics was then named) that such discrimination was necessary to protect its female category. The SFT ruled that even if the discriminatory rules of a private organisation such as the IAAF were considered able to pose a threat to public order, Semenya and the ASA had failed to demonstrate that the CAS Decision was so egregious that it posed such a threat.

‘Caster Semenya essentially alleges a violation of the prohibition of discrimination’, reads the Swiss Federal Supreme Court statement. ‘The CAS has issued a binding decision based on the unanimous opinion of the experts who were consulted that testosterone is the main factor for the different performance levels of the sexes in athletics; according to the CAS, women with the “46 XY DSD” gene variant have a testosterone level comparable to men, which gives them an insurmountable competitive advantage and enables them to beat female athletes without the “46 XY DSD” variant. Based on these findings, the CAS decision cannot be challenged. Fairness in sport is a legitimate concern and forms a central principle of sporting competition. It is one of the pillars on which competition is based. The European Court of Human Rights also attaches particular importance to the aspect of fair competition. In addition to this significant public interest, the CAS rightly considered the other relevant interests, namely the private interests of the female athletes running in the “women” category.’

Such strong support for the principle behind its DSD Regulations was rightly welcomed by World Athletics. Its statement asserted that the SFT ‘acknowledged that innate characteristics can distort the fairness of competitions’. I would argue that the SFT ruling didn’t do this, but rather found that a CAS Decision asserting this didn’t violate Swiss public policy. Semantics, perhaps.

Likewise, when World Athletics quotes the SFT Decision as confirming that ‘It is above all up to the sports federations to determine to what extent a particular physical advantage is likely to distort competition and, if necessary, to introduce legally admissible eligibility rules to remedy this state of affairs’, it is paraphrasing two texts quoted in the SFT Decision. The first is ‘La qualification juridique des rules autonomes des organizations sportive’ by Jérôme Jaquier, 2004. ‘Inborn characteristics specific to athletes in a particular group can also distort the fairness of competition’, the SFT Decision quotes from Jaquier. ‘When they enact regulations, the objective of sports federations is to ensure fair and equitable competition’.

The context of the second quote, from ‘Sportrecht – Berücksichtigung der Interessen des Sports in der Rechtsordnung’ by Martin Kaiser, 2011, is even more interesting. It is preceded with a statement from the Swiss Federal Supreme Court, which reads: ‘It is not for the Federal Court to make, abstractly, comparisons between the disciplines to assess whether a particular athlete has an advantage that makes sporting competition meaningless’

‘It is above all for the sporting federations to determine to what extent a particular physical advantage is liable to distort competition’, the SFT Decision quotes from Kaiser. ‘And, if so, to establish legally admissible eligibility rules to remedy this state of affairs’. 

Again, such details might be considered as semantics. But – I would argue – important semantics. Reading the media maelstrom that has resulted from the SFT Decision, one could be forgiven for assuming that Semenya has lost her case, and has no chance of ever defending her 800m title. However, a statement issued by her lawyers reveals that she intends to challenge the ruling in European and domestic courts.

“I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am”, the statement continues. “Excluding female athletes or endangering our health solely because of our natural abilities puts World Athletics on the wrong side of history. I will continue to fight for the human rights of female athletes, both on the track and off the track, until we can all run free the way we were born. I know what is right and will do all I can to protect basic human rights, for young girls everywhere.” More...



The Semenya Decision of the Swiss Federal Tribunal: Human Rights on the Bench - By Faraz Shahlaei

Editor's note: Faraz Shahlaei is a JSD Candidate at Loyola Law School, Los Angeles. His research and teaching interests are public international law, international sports law, international human rights and dispute resolution.

 

The issue of international human rights was a central contention in Caster Semenya case ever since the start of her legal battle against the regulations of the IAAF. However, the human rights arguments were poorly considered in the two proceedings related to this case. To put it in perspective, it is like having a key player nailed to the bench throughout the whole game; no coach ever tried to give it a chance while it had the potential to be the game changer for all parties.

In 2019, the Human Rights Council, the inter-governmental human rights body of the UN, expressed concern over issues of discrimination in sports in particular regarding IAAF female classification regulations. In June 2020, the United Nations High Commissioner for Human Rights submitted a report to the United Nations Human Rights Council on the “Intersection of Race and Gender Discrimination in Sport”. The report draws a detailed picture of how human rights in the Semenya case have been violated and also elaborates on the inherent problem of addressing human rights issues in alternative dispute resolution mechanisms favored by the sport governing bodies. However, despite an in-depth discussion of Caster Semenya’s case at both the CAS and then the SFT, the question of human rights, a key concern and a fundamental pillar of the case, hasn’t been adequately answered yet! More...


Asser International Sports Law Blog | The Russian Doping Scandal at the Court of Arbitration for Sport: The IPC’s Rio Ineligibility of Russian Paralympic Athletes

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The Russian Doping Scandal at the Court of Arbitration for Sport: The IPC’s Rio Ineligibility of Russian Paralympic Athletes

Editor's note: This blog is part of a special blog series on the Russian doping scandal at the CAS. Last year I analysed the numerous decisions rendered by the CAS ad hoc Division in Rio and earlier this year I reviewed the CAS award in the IAAF case.

Unlike the International Association of Athletics Federations (IAAF), the International Paralympic Committee (IPC) was very much unaffected by the Russian doping scandal until the publication of the first McLaren report in July 2016. The report highlighted that Russia’s doping scheme was way more comprehensive than what was previously thought. It extended beyond athletics to other disciplines, including Paralympic sports. Furthermore, unlike the International Olympic Committee (IOC) the IPC had a bit more time to deal with the matter, as the Rio Paralympic Games were due to start “only” in September.

After the release of the McLaren Report, the IPC president Sir Philip Craven was “truly shocked, appalled and deeply saddened at the extent of the state sponsored doping programme implemented in Russia”. He immediately announced the IPC’s intention to review the report’s findings and to act strongly upon them. Shortly thereafter, on 22 July, the IPC decided to open suspension proceedings against the National Paralympic Committee of Russia (NPC Russia) in light of its apparent inability to fulfil its IPC membership responsibilities and obligations. In particular, due to “the prevailing doping culture endemic within Russian sport, at the very highest levels, NPC Russia appears unable or unwilling to ensure compliance with and the enforcement of the IPC’s Anti-Doping Code within its own national jurisdiction”. A few weeks later, on 7 August, the IPC Governing Board decided to suspend the Russian Paralympic Committee with immediate effect “due to its inability to fulfil its IPC membership responsibilities and obligations, in particular its obligation to comply with the IPC Anti-Doping Code and the World Anti-Doping Code (to which it is also a signatory)”. Indeed, these “obligations are a fundamental constitutional requirement for all National Paralympic Committees (NPCs), and are vital to the IPC’s ability to ensure fair competition and to provide a level playing field for all Para athletes around the world”. Consequently, the Russian Paralympic Committee lost all rights and privileges of IPC membership. Specifically, it was not entitled to enter athletes in competitions sanctioned by the IPC, and/or to participate in IPC activities. Thus, “the Russian Paralympic Committee will not be able to enter its athletes in the Rio 2016 Paralympic Games”.

This was an obvious blow to Russia’s Paralympic team and, as was to be expected, the RPC decided to challenge the decisions. Thanks to an agreement with the IPC, the case moved directly to the Court of Arbitration for Sport (CAS), which decided in favour of the IPC on 23 August. Nonetheless, the legal battle did not end there as Russian athletes continued the fight in the German courts. In this blog I will first review the CAS award and then discuss the follow-on disputes in German courts.

 

I.              The IPC’s triumph before the CAS

At play in front of CAS was the use of clauses 9.2.2 and 9.3 of the IPC Constitution to suspend the RPC for failing to fulfil its obligations as a member. Indeed, the member’s obligation provided in clause 2 of the IPC constitution, includes the obligation “to comply with the World Anti-Doping Code”[1] and to “contribute to the creation of a drug-free sport environment for all Paralympic athletes in conjunction with the World Anti-Doping Agency (WADA)”[2]. The RPC challenged the claim that it had failed to comply with these obligations. Furthermore, it considered that in any event the sanction applied was disproportionate.

A.    Did the RPC fail to comply with its membership obligations? 

The RPC contested in full the factual findings of the McLaren Report. Yet, the Panel held that the RPC failed to provide the necessary evidence to rebut McLaren’s factual claims. In particular, the RPC “decided not to cross-examine him although given the opportunity to do so”[3] and “did not call any athlete named by Professor McLaren as having been subject to the system he described”[4]. In other words, “Mc Laren’s evidence stands uncontradicted”[5]. However, in light of the lack of precise information, the Panel refused to conclude, like the IPC requested, that “the RPC and its Board Members were involved in, or complicit in, or knew of the existence of State sponsored doping of athletes and the methodologies as set out in the IP Report”.[6]

Nonetheless, the arbitrators also found that it is “undisputed that the RPC accepted the obligations imposed on it as a member of the IPC”, and amongst those obligations there is “the specific obligation under Article 20.1 of the WADA Code to adopt and implement anti-doping policies and rules for the Paralympic Games which conform with the WADA Code”.[7] Moreover, “the obligation vigorously to pursue all potential anti-doping rule violations within its jurisdiction and to investigate cases of doping (Article 20.4.10), are not passive”.[8] Thus, at a national level “the RPC is the responsible entity having the obligation to the IPC as well as to the IPCs’ members to ensure that no violations of the anti-doping system occur within Russia”.[9] Yet, the mere “existence of the system as described in the IP Report and in the McLaren affidavit means that the RPC breached its obligations and conditions of membership of the IPC”.[10]

Those are extremely important considerations to support the effectiveness of the world anti-doping system. In practice, the CAS is closing the door on national federations hiding behind the failure of other anti-doping bodies to deny their responsibility. If decided inversely, this would have led to a situation of organized irresponsibility, in which the bucket is simply passed over to a public institution (in Russia’s case RUSADA) that cannot be sanctioned under current anti-doping rules. Indeed, WADA declare RUSADA non compliant, but RUSADA is not a member of sporting associations, it does not enter athletes in international sporting competitions, thus SGBs would be hard pressed to find a way to impose any deterrent sanctions against it. If noncompliance is to be met with adequate sanctions, SGBs, which are tasked to supervise specific sports at national level, must bear the indirect responsibility for the systemic failure of the anti-doping system operating in their home country.

B.    Is the sanction imposed by the IPC proportionate?

As the Panel recognized from the outlet: “the more difficult question for consideration is whether the decision to suspend the RPC without reservation, or alleviation of the consequences to Russian Paralympic athletes, was proportionate”.[11] The RPC submited “that the IPC could have adopted a “softer measure” that still permitted clean Russian athletes to compete in the Paralympic Games in Rio”.[12] Furthermore, it argued, “that a blanket prohibition is not justified, as it has not been established that all para-athletes nominated by the RPC have ever been implicated in doping”.[13]

1.     Whose right are disproportionately affected?

The Panel considered first that as para-athletes are not parties to this appeal, “[q]uestions of athletes’ rights that may not derive from the RPC, but of which they themselves are the original holder, such as rights of natural justice, or personality rights, or the right to have the same opportunities to compete as those afforded to Russian Olympic athletes by the IOC in its decision of 24 July 2016 regarding the Olympic Games Rio 2016, are not for this Panel to consider”.[14] Instead, the “matter for review by this Panel is thus not the legitimacy of a “collective sanction” of athletes, but whether or not the IPC was entitled to suspend one of its (direct) members”.[15] Furthermore, “the collective member cannot hide behind those individuals that it represents” .[16]

Here the Panel adopts a relatively formalistic reasoning by denying the RPC the competence to invoke the potential rights of its athletes. This might contradict the idea that athletes bear a responsibility for the noncompliance of their national federation with the rules of an international federation as put forward by the Panel in the IAAF case. The RPC does, at least partly, represent the athletes, and there is a good case that can be made for it to be allowed to raise the potential infringements of the personality rights of its members in this procedure. It does not mean that the rights of the athletes were disproportionately affected, only that they should have been considered and not brushed aside as the Panel did in the present instance. 

2.     The (extraordinary) nature of the RPC’s regulatory failure

Unfortunately, the award’s analytical structure can lead to some confusion when dealing with the proportionality analysis of the IPC’s decision. There are two (implicit) steps that are key in the decision. First, an analysis of the depth (and consequences) of the RPC’s regulatory failure, and second an analysis of the proportionality of the sanction responding to this failure. The former will be dealt with in this section.

The Panel points out that the IPC “was faced with probative evidence of widespread systemic doping under the RPCs “watch””.[17] Moreover, as argued by the IPC, the RPC’s failure to act is even more acute in light of the IPC’s dependence on national members to implement its policies at national level. Thus, in particular, “the IPC relies on the RPC to ensure compliance in Russia with its zero tolerance anti-doping policy”.[18] More generally, “this federal system with complementary international and national obligations is the core back-bone of the fight against doping”.[19] In this context, the fact that the RPC claims that “it did not know what was happening and that it had no control over those involved in the system described by Professor McLaren does not relieve the RPC of its obligations but makes matters worse” [20]. Though it is unclear from the formulation used in this section of the award, the outcome of the case points undoubtedly to the fact that the Panel endorses the IPC’s understanding of the scope of responsibility of the RPC. Furthermore, the arbitrators insist that the “damage caused by the systemic, non-compliance is substantial” [21]. Finally, it finds again that the RPC “had a non-delegable responsibility with respect to implementing an anti-doping policy in conformity with the WADA Code in Russia”.[22] Thus, the RPC could not simply “delegate the consequences [of this responsibility] where other bodies within Russia acting as its agent implement a systemic system of doping and cover-up”.[23]

In this section of the award, the Panel recognizes, rightly in my view, that the effectiveness of the transnational regulation of international sports relies on the compliance of national federations and this is even more so in the case of the anti-doping fight.

3.     The proportionality of the sanction

The key question in the proportionality analysis was whether the sanction inflicted upon the RPC was adequate and necessary to attain its aim. The reasoning of the Panel is piecemeal and spread around a number of paragraphs of the award, which are regrettably not well connected together.

The first question is whether the IPC was pursuing a legitimate objective when imposing that sanction on the RPC. On the IPC’s own account, the sanction was considered “the only way to ensure that the system, and systematised doping, in Russia no longer continued”.[24] It adds “that it was a legitimate aim to send a message that made clear the lack of tolerance on the part of the IPC to such systemic failure in a country”.[25] The Panel recognizes that the “concern that clean athletes, inside and outside of Russia, have confidence in the ability to compete on a level playing field, and the integrity and credibility of the sporting contest, represent powerful countervailing factors to the collateral or reflexive effect on Russian athletes as a result of the suspension”[26], and constitutes “an overriding public interest that the IPC was entitled to take into account in coming to the Decision”.[27]

The second question linked to the proportionality of the sanction relates to its necessity. Was there a less restrictive alternative sanction available to attain the aim pursued? The IPC argued that the suspension of the RPC’s membership was necessary for three reasons:

  • “to provoke behavioural change (for the future) within the sphere of responsibility of the RPC”
  • “the suspension took into account that the failures in the past had resulted in a distorted playing field on an international level, because the IPC anti-doping policy was not being adequately enacted and enforced vis-à-vis para-athletes affiliated to RPC”
  • “a strong message had to be issued to restore public confidence, since the Paralympic movement depends – much more than other sports – on the identification with moral values”[28]

The Panel held that the suspension was “a powerful message to restore public confidence”. It insisted also that there “was no submission to the Panel of an alternative measure that would, comparably and effectively, restore a level playing field for the present and the immediate future, affect future behavioral change and restore public trust”.[29]

Finally, the Panel concluded that “in light of the extent of the application of the system described by Professor McLaren and his findings of the system that prevailed in Russia, made beyond reasonable doubt, the Decision to suspend the national federation was not disproportionate”.[30] Moreover, it insisted that the consequences for the athletes were following logically from the suspension of the RPC and therefore proportionate, as it had decided in the IAAF case. The Panel also brushed aside the RPC’s attempt to portray the IPC’s decision as contrary to the IOC Decision dated 24 July 2016. On the one side, it found the IOC Decision to be irrelevant for the IPC and, on the other, it considered the IPC’s suspension to be in any event compatible with the IOC Decision.


II.            The Russian appeals in the German courts

The RPC’s appeal to the Swiss Federal Tribunal failed on 30 August because it could not demonstrate its ability to fulfil its obligations with regard to the anti-doping rules of the IPC and WADA, not unlike the one of the Russian athletes and RusAF in the IAAF case,. Nor could RusAF demonstrate that its interests would override those of IPC to fight effectively against doping and protect the integrity of sport. 

Yet, interestingly, new challenges against the RPC’s suspension were quickly lodged in German courts. Indeed, as the IPC is seated in Bonn, a number of Russian athletes tried to obtain provisory judgments from the Landgericht (LG) Bonn to participate in the Rio Paralympics. These cases were appealed to the Oberlandesgericht (OLG) Düsseldorf, and even ended up in front of Germany’s constitutional court, the Bundesverfassungsgericht (BVerfG). It would have been ironical if the German courts had quashed the decision of the IPC, bearing in mind that it is the German public broadcaster (ARD) which brought the Russian doping scheme to the fore in the first place.

A.    The decisions of the LG Bonn

On 5 and 6 September the LG (first instance tribunal) Bonn rendered two judgments (available here and here) on the matter. Both rejected the claims of the Russian athletes.

The first judgment found that the athletes could not rely on any contractual claims, as no contract existed between them and the IPC. This is due to the fact that the RPC is supposed to nominate them to participate in the Paralympic Games, for the court there is no contract between the IPC and the athletes.[31] Even where the IPC foresees in its rules that it can directly nominate athletes to participate in the Paralympic Games, one cannot derive that it has a contractual duty to select the claimants. Instead, it enjoys certain discretion in doing so. However, the LG recognized that the Russian athletes’ interests are affected by the IPC’s Decision of 7 August 2016, but it also acknowledged that the IPC justified its decision by the existence of a state-run doping scheme in Russia.[32] Thus, the final decision to enter or not athletes in the Paralympic Games of Rio should be left to the IPC. The fact that the IOC applied a different regime to the Russian athletes willing to participate in the Rio Games is deemed not binding upon the IPC, as it is a separate legal entity.

The second judgment, rendered the day after, follows a very similar line of reasoning. The LG added a pointed rebuttal of the claim that the Russian athletes were discriminated against. It insisted that the other countries are not suspected of running state doping schemes.[33] The court recognized that athletes cannot easily change their nationality, but it insisted that the Olympic Games are more than any other sporting competition characterized by the fact that athletes participating are not primarily representing themselves but their home country.[34] In this context, athletes must accept to face restrictions for which they might not be personally responsible.[35] Furthermore, the ineligibility of the Russian athletes was not deemed a disproportionate restriction on the freedom to work or on the fundamental personality rights of the claimants. The LG considered that authorizing specific athletes to compete under a neutral flag would not have been a milder solution to fight against doping, as the Russian public would still have identified them as Russian.[36] Instead, as members of the RPC, the claimants must accept such a restriction to their individual rights.

The LG Bonn strongly supported the decision adopted by the IPC. The court has, as the CAS did, declined to consider the suspension of the RPC, and the ensuing ineligibility of Russian athletes for the Rio Paralympic Games, as discriminatory or disproportionate.

B.    The Appeal to the Oberlandesgericht Düsseldorf

The appeal decision of the OLG Düsseldorf is probably the most interesting of the German decisions analysed here. In the first part of its judgment, the OLG criticized harshly the Russian athletes for failing to request earlier a provisory order from the German courts. Indeed, at the time of the decision, 13 September 2016, the Paralympic Games were almost one week underway (7 September). Consequently, many (if not all) of the appellants would be unable to compete at the Games anyway, even if the court were to grant the requested order.

Yet, the core of the OLG’s ruling, and its most important contribution to the world anti-doping system, is its assessment of the balance of interests between the Russian athletes and the IPC. In a nutshell, the OLG found that the IPC’s interest in declaring the Russian athletes ineligible prevails because there is a legitimate suspicion that those athletes have been involved in doping in the previous years.[37] To come to this conclusion, the court conducted a fairly comprehensive assessment of the opposing interests. On the one side, the Russian athletes have an interest in participating in the Paralympic Games to secure economic revenues deriving primarily from sponsoring. On the other side, stands the IPC’s “fundamental interest in the organization of a fair sporting competition excluding athletes who have used doping or against which there is a strong suspicion of doping”.[38] In this case, the OLG held that the interest of the IPC for “clean” Paralympic Games prevails and justifies the rejection of the complaint.[39] For the Düsseldorf court, the personal guilt of the athletes is irrelevant, as the fact that they had the possibility to exercise their sport with the support of doping without risking to be discovered justifies in itself a general suspicion of doping against all Russian athletes.[40] Thus, the IPC can, for the preservation of the fairness of its competitions, declare them ineligible for the Paraympic Games. Only the athletes for whom it can be confidently demonstrated that they have not doped can be exempted from this exclusion.

Hence, the OLG considered that the factual constellation of the case justifies that each and every Russian Paralympian can be legitimately suspected of having been involved in doping over the recent years. Furthermore, Paralympic athletes were, as corroborated by the McLaren Report and his affidavit, also a target of the Russian doping system.[41] This suspicion cannot be rebutted by the oath taken by 68 (out of 84) of the appellants that they have not tested positive for doping in the last two years. Indeed, it cannot be demonstrated that the athletes have been subjected to non-manipulated doping tests.[42] In the end, the OLG fully endorsed the IPC’s decision to prioritize its objective of providing “clean Games” to the detriment of the interests of Russian Paralympians in participating.

C.    Final Stop at the Bundesverfassungsgericht

The next, and final stop, for the claimants was the BVerfG in Karlsruhe. The court, which rendered its ruling on 15 September, was faced with the demands of Russian athletes for a provisory order allowing them to participate (at least) to the closing ceremony of the Paralympic Games due to take place on 18 September.

The court’s balancing exercise between the interests of the IPC and those of the Russian athletes is favourable to the former. Thus, the BVerfG found that if it would grant the provisory order and later reject a related constitutional complaint, this would have irreparable consequences for the pending Paralympic competitions and closing ceremony and would send a (negative) signal to sport in general.[43] Even if, to their credit, the individual athletes are not directly involved in the state-run doping scheme unearthed by the McLaren Report, the Court believed that the decision of the IPC and the CAS to declare the whole Russian team ineligible must be respected. The entering of athletes through the national courts would intrude substantially on the autonomy of the IPC and of the CAS[44] and the deterring signal send by the RPC’s exclusion, which aims at scaring off national federations from supporting or tolerating systematic doping schemes, would be substantially weakened.[45]

Furthermore, if instead the provisory order is rejected and the Russian athletes prevail in a later constitutional complaint, the interests of the athletes to participate in the closing ceremony is still of significantly less weight than the IPC’s interest to ensure that the use of doping in sport is fought against effectively.[46] In particular, one cannot ignore that, besides one of the appellants, all the others will in any event not be able to participate to competitions which have already taken place.[47] Even for the only athlete potentially able to participate there are legitimate doubts regarding her material ability to compete in the Rio Paralympic Games. Therefore, the BVerfG rejected the appellants’ plea and definitely put an end to their hope in participating to the Rio Paralympic Games.


Conclusion

At the time of writing, the RPC is still suspended by the IPC and the second McLaren Report has corroborated with more evidence the extensive nature of the Russian doping scheme. The IPC has developed, in collaboration with WADA, a set of tough reinstatement criteria to be met by the RPC in order to be reinstated. The compliance of the RPC with the criteria will be monitored by a special taskforce. Thus, the IPC demonstrated its willingness to tackle head-on the Russian doping scheme. In doing so, it followed a radically different approach than the IOC and declared all Russian Paralympians to be ineligible.  

The CAS and the German courts later fully endorsed this approach. In fact, it seems that the national courts were even going beyond the findings of the CAS by emphasizing that there was a legitimate presumption from the side of IPC that all the Russian Paralympic athletes were doped. The CAS and the German courts also insisted that a balancing exercised between the interests of the athletes to participate in the Paralympic Games and the interests of the IPC to defend clean and doping free competitions, would be decided to the benefit of the latter. Even so athletes might not be directly responsible for the state-run doping scheme, they share the responsibility (as in the IAAF case) for the governance failures of their sports governing bodies. In the eyes of the German courts, this responsibility is reinforced by the fact that they are representing their country at the Paralympic Games.

In the end, the CAS (and the German courts) had to choose between:

  1. Burdening athletes for the systematic failure of the Russian sports governing bodies to comply with their anti-doping commitments and risk to sanction innocent athletes;
  2. or let the athletes compete and risk to jeopardize the already weak effectiveness of the world anti-doping system.

In general, this is the big fork-in-the-road question raised by the Russian scandal. On the one side, we can double down on anti-doping, beef up compliance mechanisms, and endure collateral damages: some innocent athletes. Or, on the other side, we acknowledge the total failure of the world anti-doping system as it is and de facto (or de jure) condone the use of doping in international sporting competitions. The CAS and the German courts clearly decided to follow the regulatory route, but this is only the beginning of a very long anti-doping journey.


[1] Clause 2.1.1.

[2] Clause 2.27.

[3] CAS 2016/A/4745, Russian Paralympic Committee v. International Paralympic Committee, award of 23 August 2016, para.43.

[4] Para.44.

[5] Para.43.

[6] Para. 54 and 55.

[7] Para. 56.

[8] Para. 59.

[9] Para. 60.

[10] Ibid.

[11] Para. 73

[12] Para. 76.

[13] Ibid.

[14] Para.79.

[15] Ibid.

[16] Ibid.

[17] Para. 81.

[18] para. 82.

[19] Ibid.

[20] Ibid.

[21] Para. 86.

[22] Para. 86.

[23] Para. 86.

[24] Para.83.

[25] Para.84.

[26] Para.84.

[27] Para.84.

[28] Para. 88.

[29] Para.89.

[30] Para. 91.

[31] „Anders als die Antragsteller meinen, kommt allein durch die Ausrichtung der Paralympics zwischen den Parteien kein Vertragsverhältnis oder vertragliches Vorverhältnis i.S.v. § 311 Abs. 2 BGB zustande. Da die Nominierung zur Teilnahme an den Paralympics im Regelfall durch das S und nicht durch den Antragsgegner erfolgt, ist nicht ersichtlich, dass die Parteien potentielle Vertragspartner wären.“ Landgericht Bonn, 20 O 323/16, at II.

[32] „Das Gericht verkennt nicht, dass die russischen Para-Athleten durch die Entscheidung des Antragsgegners vom 07.08.2016 nachhaltig in ihren sportlichen und auch wirtschaftlichen Interessen betroffen werden. Jedoch hat der Antragsgegner seine Entscheidung nachvollziehbar mit dem Vorwurf des organisierten Staatsdopings in Russland begründet. Insoweit muss es dem Antragsgegner selbst überlassen bleiben, von seinem Recht zur Zulassung einzelner Athleten Gebrauch zu machen oder aber nicht.“ Ibid.

[33] „Soweit die Antragsteller auf eine Ungleichbehandlung im Vergleich zu den Para-Athleten aus anderen Ländern abstellen, ist dem entgegenzuhalten, dass diese anderen Länder nicht dem Verdacht des organisierten Staatsdopings unterliegen.“ Landgericht Bonn, 20 O 325/16,  at II.

[34] „Zwar haben die Antragsteller keine Möglichkeit, ihr Land oder ihren Verband zu wechseln. Jedoch werden die Olympischen Spiele sowie die Paralympics weit mehr als Weltmeisterschaften oder andere sportliche Wettkämpfe dadurch gekennzeichnet, dass die Athleten an ihnen nicht nur auf eigene Rechnung, sondern vor allem für ihr Land teilnehmen.“ Ibid.

[35] „Der Charakter und die Besonderheit der Spiele können so auch dazu führen, dass der einzelne Athlet von ihm selbst nicht verschuldete Einschränkungen hinnehmen muss. Insoweit ist auch kein Verstoß gegen das Diskriminierungsverbot der §§ 19, 20 und 33 GWB zu erkennen.“ Ibid.

[36] „Die Zulassung einzelner Sportler bei Beibehaltung der Suspendierung des S wäre – als die Antragsteller meinen – nicht als milderes Mittel gleichermaßen geeignet zum Kampf gegen das Doping. Zwar liefen die russischen Para-Athleten dann nicht mit ihrer Landesfahne auf und träten dabei nicht offiziell für ihr Land auf. Sie würden aber dennoch von den Zuschauern mit ihrem Land identifiziert.“ Ibid.

[37] „Die Abwägung der widerstreitenden Interessen führt zu dem Ergebnis, dass der Antragsgegner den Antragstellern eine Teilnahme an den Paralympischen Spielen 2016 in Rio de Janeiro verwehren darf, weil der begründete Verdacht gerechtfertigt ist, dass diese Sportler in den vergangenen Jahren Doping betrieben haben.“ Oberlandesgericht Düsseldorf, VI-W (Kart) 13/16, at B.2.a.

[38] „Auf der Seite des Antragsgegners, der die Paralympischen Spiele 2016 veranstaltet, steht demgegenüber das fundamentale Interesse, einen fairen und sportlichen Wettkampf zu gewährleisten und alle diejenigen Sportler von den Spielen fernzuhalten, die entweder des Dopings überführt sind oder gegen die der hinreichend begründete Verdacht des Dopings besteht.“ Ibid., at B.2.a.bb.(2).

[39] „Im Streitfall führt das überragende Interesse des Antragsgegners an „sauberen“ Paralympischen Spielen zu dem Ergebnis, dass die streitbefangenen Zulassungsbegehren abzulehnen waren.“ Ibid., at B.2.a.bb.(3).

[40] „Diese ein Doping begünstigenden Rahmenbedingungen rechtfertigen gegen alle Athleten, die unter dem System trainiert haben, einen Dopingverdacht.“ Ibid.

[41] Ibid., at B.2.a.bb.(3) (3.1)..

[42] Ibid., at B.2.a.bb.(3) (3.3)..

[43] „Würde die beantragte einstweilige Anordnung ergehen, die noch zu erhebende Verfassungsbeschwerde aber später erfolglos bleiben, hätte dies erhebliche Auswirkungen für die noch ausstehenden Wettkämpfe und die Durchführung der Abschlussfeier der Paralympischen Spiele am 18. September 2016 in Rio de Janeiro und eine Signalwirkung nicht nur für paralympischen Sport, sondern für den Sport insgesamt.“BVerfG, Beschluss der 2. Kammer des Ersten Senats vom 15. September 2016, 1 BvQ 38/16, at II.3.a).

[44] „Eine Zulassung einzelner Athletinnen und Athleten durch die staatlichen Gerichte griffe erheblich in die Verbandsautonomie des IPC und der internationalen Sportgerichtsbarkeit ein.“ Ibid.

[45] „Die mit dem Ausschluss des RPC von den Paralympischen Spielen beabsichtigte Signalwirkung, die insbesondere nationale Sportverbände von der Duldung, Unterstützung oder Organisation systematischen Dopings abschrecken soll, würde erheblich beeinträchtigt.“ Ibid.

[46] „Zwar erscheint das Interesse der Antragstellerinnen und des Antragstellers auch dann durchaus gewichtig, wenn ihnen nur die Teilnahme an der Abschlusszeremonie am 18. September 2016 möglich sein sollte. Im Vergleich zu dem Interesse des IPC, den Einsatz von Dopingmitteln im Sport nachhaltig und effektiv zu bekämpfen, hat dies jedoch deutlich weniger Gewicht.“ Ibid., at II.3.b).

[47] „Zudem kann nicht unberücksichtigt bleiben, dass - abgesehen allenfalls von der Antragstellerin zu 5) - die übrigen Antragstellerinnen und der Antragsteller wegen des inzwischen weitgehend durchgeführten Gesamtprogramms der aktuellen Paralympischen Spiele nicht mehr an den sportlichen Wettkämpfen teilnehmen können und ihnen damit insoweit nur noch ein bloßer Zuschauerstatus zukommen könnte, den sie auch ohne Erlass der einstweiligen Anordnung wahrnehmen können.“ Ibid.

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