Introduction 

The first part of this two-part blog on multi-club ownership in European football outlined the circumstances leading to the adoption of the initial rule(s) aimed at ensuring the integrity of the UEFA club competitions (Original Rule) and retraced the early existence of such rule(s), focusing primarily on the complaints brought before the Court of Arbitration for Sport and the European Commission by the English company ENIC plc. This second part will, in turn, introduce the relevant rule as it is currently enshrined in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (Current Rule). It will then explore how the UEFA Club Financial Control Body (CFCB) interpreted and applied the Current Rule in the Red Bull case, before drawing some concluding remarks. 

The Red Bull case: The concept of decisive influence

Background 

The company Red Bull GmbH (Red Bull) started building its football empire[1] in 2005 by transforming the Austrian club SV Wüstenrot Salzburg[2] into what would henceforth be known as FC Red Bull Salzburg (RB Salzburg). As regards its legal form, RB Salzburg is currently a limited liability company (GmbH) wholly owned by the association FC Red Bull Salzburg e.V. Until 2015, when the club began a disengagement process from Red Bull, the statutes of FC Red Bull Salzburg e.V. conferred on Red Bull the right to appoint and remove the members of the association's board.

In 2009, with the objective of playing the top-flight Bundesliga within a decade, Red Bull invested in the German club SSV Markranstädt, at that time competing in the fifth tier of German football. The club was subsequently rechristened as RasenBallsport[3] Leipzig (RB Leipzig) and rebranded. Although RB Leipzig thrived on the pitch, it attracted much criticism off the pitch for attempting to circumvent the so-called '50+1 rule', according to which German football clubs may not allow investors to acquire a majority of their voting rights.

Since Red Bull's takeover of RB Leipzig in 2009, the two clubs have maintained a close cooperation involving an increased transfer activity which has seen players moving from one club to the other on a regular basis. With the help of players like Naby Keïta, who moved from RB Salzburg to RB Leipzig in the summer of 2016, the German club finished second in the 2016/17 Bundesliga season, its first-ever in the top flight, and qualified for the 2017/18 UCL group stage. RB Salzburg, for their part, added in the 2016/17 campaign another domestic title to their collection and secured a spot in the 2017/18 UCL second qualifying round.

The Current Rule  

As mentioned above, the Current Rule is encapsulated in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (UCL Regulations). It preserves the structure of the Original Rule, making admission to the UEFA club competitions conditional upon fulfilment of three specific criteria. In terms of substance, however, the Current Rule differs in two important aspects. First, unlike the Original Rule which outlawed ownership, personal and other links only between clubs participating in the same UEFA club competition, the Current Rule extends this prohibition to clubs participating both in the UCL and the UEFA Europe League. Second, an individual or legal entity is now deemed to have control over a club not only if he/she/it (i) holds a majority of the shareholders' voting rights; (ii) is authorized to appoint or remove a majority of the members of the administrative, management or supervisory body; or (iii) is a shareholder and single-handedly controls a majority of the shareholders' voting rights, but also if he/she/it (iv) is able to exercise by any means a decisive influence in the decision-making of the club.[4] The purpose of this latter change is to address situations where an individual or legal entity falls short of having de jure control over a club, but nevertheless remains able to exercise such an influence that may, if exercised in more than one club, jeopardize the integrity of the UEFA club competitions. As will be discussed in the next section, the concept of decisive influence played a pivotal role in the Red Bull case.

Furthermore, the club coefficient no longer serves as a principal criterion in determining which of the two or more commonly owned clubs should participate in a UEFA club competition. Under the Current Rule, the club which qualifies on sporting merit for the more prestigious UEFA club competition is to be favoured.[5] If two or more commonly owned clubs qualify for the same UEFA club competition, then the club which was best-ranked in its domestic championship should be admitted.[6]

Proceedings before the CFCB

On 15 May 2017, soon after RB Salzburg and RB Leipzig had both secured their place in the 2017/18 UCL, the UEFA General Secretary dispatched a letter to the CFCB, expressing his concern that the clubs might not fulfil the criteria enshrined in the Current Rule. The subsequent investigation conducted by the CFCB Investigatory Chamber relied to a great extent on compliance reports prepared by independent auditors. On 26 May 2017, the CFCB Chief Investigator referred the case to the CFCB Adjudicatory Chamber, concluding that the clubs had failed to satisfy the criteria set out in the Current Rule and, as a result, only RB Salzburg should be admitted to the 2017/18 UCL.[7] In particular, the CFCB Chief Investigator suggested that Red Bull exercised decisive influence in the decision-making of both RB Salzburg and RB Leipzig, and identified several ways in which this influence manifested itself. For instance, the CFCB Chief Investigator drew attention to the presence of certain individuals allegedly linked to Red Bull in the decision-making bodies of both clubs or an unusually high level of income received by the clubs from Red Bull via sponsorship agreements.[8]

In its decision handed down on 16 June 2017, the CFCB Adjudicatory Chamber paid attention mainly to the changes made by RB Salzburg as part of the club's disengagement process from Red Bull. As noted above, Red Bull ceased to have the right to appoint and remove the board members of FC Red Bull Salzburg e.V. in 2015, when the association's statutes were amended accordingly. With this in mind, the CFCB Adjudicatory Chamber had to examine whether Red Bull was not able to exercise decisive influence in the decision-making of RB Salzburg (and RB Leipzig) by any other means.

The CFCB Adjudicatory Chamber was confronted with an onerous task, in particular because the UCL Regulations do not specify when an individual or legal entity is deemed to have decisive influence in the decision-making of a club. Nor do these regulations clarify how such a level of influence could be attained. Having examined the wording and purpose of the Current Rule, the CFCB Adjudicatory Chamber asserted that ''the benchmark for establishing decisive influence is a high one'',[9] finding support for its conclusion in the EU Merger Regulation.[10] For the avoidance of doubt, the Chamber further noted that the concept of decisive influence is not to be confused with that of significant influence which features in the UEFA Club Licensing and Financial Fair Play Regulations, Edition 2015.[11]

In determining whether Red Bull was indeed capable of exercising decisive influence in the decision-making of both clubs, the CFCB Adjudicatory Chamber observed from the aforementioned compliance reports that RB Salzburg had removed certain individuals allegedly linked to Red Bull from the club's decision-making bodies and terminated certain loan agreements entered into with the beverage company.[12] With the aim of refuting the CFCB Chief Investigator's allegations, RB Salzburg presented additional documentary evidence. According to the CFCB Adjudicatory Chamber, it followed from such evidence, inter alia, that Red Bull had reduced the amount of sponsorship money paid to the Austrian club or that a cooperation agreement between the two clubs had been terminated.[13] This evidence alleviated the CFCB Chief Investigator's concerns to such an extent that he eventually decided to withdraw his objection to the admission of RB Salzburg and RB Leipzig to the 2017/18 UCL.[14] Consequently, the CFCB Adjudicatory Chamber held that, at the time of its decision, Red Bull's relationship with RB Salzburg resembled ''only a standard sponsorship relationship''.[15] Having concluded that Red Bull did not have decisive influence in the decision-making of RB Salzburg, there was no need for the Chamber to consider Red Bull's relationship with RB Leipzig.[16]

Furthermore, the CFCB Adjudicatory Chamber verified whether one of the clubs did not exercise decisive influence over the other. In this regard, the Chamber referred to the cooperation agreement and the increased transfer activity between the clubs. Nonetheless, the Chamber eventually stated that there was insufficient evidence to arrive at the conclusion that RB Salzburg exercised decisive influence over RB Leipzig or vice versa.[17]

Further implications and concluding remarks

Rules aimed at ensuring the integrity of club competitions also exist at the national level. In England, the Rules of the Premier League stipulate, inter alia, that a person[18] – be it either natural person, legal entity, firm or unincorporated association – may not (i) be involved in or have any power to determine or influence the management or administration of more than one club participating either in the Premier League or the English Football League;[19] and (ii) hold or acquire any significant interest in more than one club participating in the Premier League. A person is deemed to have acquired significant interest in a club if he/she/it holds 10 per cent or more of the shareholders' voting rights.[20] In Spain, an individual or legal entity may not hold 5 per cent or more of the shareholders' voting rights in more than one club participating in a professional competition at the state level.[21]

It follows that both in England and Spain, the pertinent regulations set a relatively low threshold of the shareholders' voting rights that an individual or legal entity may not exceed in more than one club participating in the same domestic club competition. Moving back to UEFA, the Current Rule sets the relevant threshold at 50 per cent (majority of the shareholders' voting rights), but complements it with the 'catch-all' notion of decisive influence.

I believe that the CFCB Adjudicatory Chamber may have missed a golden opportunity in the Red Bull case to clarify further the rather vague concept of decisive influence. Unfortunately, the Chamber limited itself to stating that ''the benchmark for establishing decisive influence is a high one'',[22] without providing any concrete examples of how such a level of influence could be attained or manifested in practice.[23] The concept of decisive influence therefore remains shrouded in legal uncertainty. Moreover, in order to avoid speculations, the Chamber could have provided more details about the changes made by RB Salzburg. For instance, it could have specified which individuals allegedly linked to Red Bull were removed from the club's decision-making bodies or how the amount of sponsorship money paid to the club was reduced. Such details become particularly important if the concept of decisive influence plays a central role, because in this context the general public will not be able to access most of the relevant information via commercial registers. In contrast, this will not be the case with legal systems in England or Spain which employ a threshold of the shareholders' voting rights as a key criterion. Thus, if UEFA fails to provide such details (subject to confidentiality rules) in its decisions, its credibility might suffer.

Despite the fact that this post has identified certain flaws of the concept of decisive influence, I do not believe that a modification of the Current Rule should be a matter of urgency. As suggested above, a well-reasoned decision may foster UEFA's credibility and help reduce the legal uncertainty emanating from the concept of decisive influence. Bearing in mind the recent revitalization of multi-club ownership in European football, UEFA might soon get another opportunity to deliver such decision.

[1]   It should be noted that in addition to FC Red Bull Salzburg and RasenBallsport Leipzig, Red Bull also owns the U.S. club New York Red Bulls and the Brazilian club Red Bull Brasil.

[2]   It was often referred to as SV Austria Salzburg, a name that was given to the club at its foundation in 1933.

[3]   In fact, due to the rules prohibiting clubs to be named after their sponsors, the abbreviation 'RB' does not officially stand for Red Bull, but rather for RasenBallsport which can be roughly translated as 'lawn ball sports'.

[4]   UCL Regulations, Article 5.01(c).

[5]   Ibid. Article 5.02(a).

[6]   Ibid. Article 5.02(b).

[7]   As the Austrian club finished first in its domestic championship (whilst RB Leipzig finished second).

[8]   CFCB Adjudicatory Chamber AC-01/2017 RasenBallsport Leipzig GmbH and FC Red Bull Salzburg GmbH, Decision of 16 June 2017, para. 11.

[9]   Ibid. para. 41.

[10] Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings, Article 3(2). See also Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings.

[11] CFCB Adjudicatory Chamber decision (n 8) para. 40.

[12] Ibid. para. 50.

[13] Ibid. para. 51.        

[14] Ibid. para. 52.

[15] Ibid. para. 55.

[16] Ibid. para. 57.

[17] Ibid. para. 58.

[18] Rules of the Premier League to be found in the Premier League Handbook, Season 2017/18, Rule A.1.122.

[19] Ibid. Rule F.1.2. This provision in essence corresponds to Article 5.01(b) of the UCL Regulations.

[20] Rules of the Premier League, Rule F.1.3.

[21] Royal Decree No 1251/1999 on Sports Limited Liability Companies, Article 17(1) and (2). Professional football competitions at the state level include only La Liga and Segunda División A.

[22] See CFCB Adjudicatory Chamber decision (n 8) para. 41.

[23] Such examples could only be inferred from the changes made by RB Salzburg.

Since the release of the earth-shattering ARD documentary two years ago, the athletics world has been in a permanent turmoil. The International Athletics Association Federation (IAAF) is faced with both a never-ending corruption scandal (playing out in front of the French police authorities) and the related systematic doping of Russian athletes. The situation escalated in different phases led by the revelations of Russian insiders. First, in December 2014 with the ARD documentary, which demonstrated how widespread (and organized) the recourse to doping was in Russian athletics. It triggered the Pound investigation financed by the World Anti-Doping Agency (WADA), which led to two damaging reports (available here and here) for the Russian anti-doping system and the IAAF itself. Thereafter, in November 2015, the IAAF had no other choice but to provisionally suspend the Russian athletics federation (ARAF then RusAF) and its members from IAAF competitions. Yet, this was only the beginning as shortly after the former head of Moscow’s anti-doping laboratory provided a detailed sketch to the New York Times of the operation of a general state-led doping scheme in Russia. The system was designed to avert any positive doping tests for top-level Russian sportspeople and was going way beyond athletics. These allegations were later largely confirmed and reinforced by the McLaren investigation initiated by WADA in May 2016, and which published its first report in July 2016 shortly before the Rio Olympics. In June 2016, the IAAF anticipated the conclusions of the report (it had received most of McLaren’s evidence beforehand) and decided to maintain the ineligibility of Russian athletes for IAAF competitions, and for the Rio Olympics. It did, however, foresee a narrow exception for Russian athletes able to show that they were properly tested outside of Russia. Nonetheless, the athletes using this exception were to compete under a neutral flag at the Olympics. Unsurprisingly, Russian athletes led by pole superstar (and now IOC member), Yelena Isinbayeva, and the Russian Olympic Committee decided to challenge this decision in front of the Court of Arbitration for Sport (CAS). Interestingly, while the decision was rendered on 21 July 2016, the full text of the award was publically released only on 10 October 2016. In September, I analysed the Rio CAS Ad Hoc Decisions involving Russian athletes aiming to participate to the Olympics. I will now turn to the IAAF decision, which is of great importance to the future of the anti-doping system. Indeed, it lays out the fundamental legal boundaries of the capacity of international federations to impose sanctions on their members (and their members) in order to support the world anti-doping fight.

My blog will provide first a chronological narrative of the decisions taken by the IAAF to sanction the RusAF and its athletes. Thereafter, I will analyse the key aspects of the scope of the review of the IAAF’s ineligibility decision by the CAS.

I.              From the ARD documentary to the ineligibility of Russian athletes for the Rio Olympics

The IAAF started acting upon the suspicions of doping in Russian athletics only after the publication of the first part of the Pound report on 9 November 2015. In its first press release after the publication of the report, the president of the IAAF, Sebastian Coe, announced that he had “taken the urgent step of seeking approval from his fellow IAAF Council Members to consider sanctions against the Russian Athletics Federation (ARAF)”. He was considering “provisional and full suspension and the removal of future IAAF events”. This announcement was quickly followed on 13 November 2015 with the provisional suspension of the ARAF by the Council of the IAAF. Consequently, Russian athletes, and athlete support personnel were banned from competing in international competitions including World Athletics Series competitions and the Olympic Games. Furthermore, Russia lost the right to host the 2016 World Race Walking Team Championships (Cheboksary) and 2016 World Junior Championships (Kazan), while ARAF were to delegate the conduct of all outstanding doping cases to CAS. The provisory ban was based on IAAF Constitution Article 6.11(b) and Article 14.7. The ARAF could have challenged the decision of the Council but declined to do so (as is explained in a letter accessible here) and accepted the sanctions. Simultaneously, the decision also included a specific procedure for RusAF to regain IAAF membership. It foresaw that an inspection team led by an Independent Chair, Rune Andersen, would verify whether RusAF complies with a long list of precise criteria.

In early 2016, the IAAF taskforce started its verifications based on the aforementioned criteria. In March 2016, after its first visit to Moscow in January, the taskforce considered that “the Russian delegates have made significant progress towards meeting many of the Verification Criteria established by IAAF Council”. Yet, it also added that “there is significant work still to be done to satisfy the Reinstatement Conditions and so RusAF should not be reinstated to membership at this stage”. However, after the revelations of the New York Times in May 2016, the IAAF taskforce recommended in June that “RusAF should not be reinstated to membership at this stage, because several important Verification Criteria have not been met”. The taskforce considered that:

• The deep-seated culture of tolerance (or worse) for doping that led to RusAF being suspended in the first place appears not to have changed materially to date.
• A strong and effective anti-doping infrastructure capable of detecting and deterring doping has still not been created. 
• There are detailed allegations, which are already partly substantiated, that the Russian authorities, far from supporting the anti-doping effort, have in fact orchestrated systematic doping and the covering up of adverse analytical findings.

This meant “that Russian athletes remain[ed] ineligible under IAAF Rules to compete in International Competitions including the European Championships and the Rio 2016 Olympic Games”. The taskforce also recommended that RusAF remains suspended, i.e. that no “representatives of RusAF (i.e. officials, athlete support personnel, etc.) should take part in International Competition or in the affairs of the IAAF”. The IAAF Council unanimously endorsed the recommendations. At the same meeting, and also upon recommendation of the taskforce, the IAAF Council passed a rule amendment “to the effect that if there are any individual athletes who can clearly and convincingly show that they are not tainted by the Russian system because they have been outside the country, and subject to other, effective anti-doping systems, including effective drug-testing, then they should be able to apply for permission to compete in International Competitions, not for Russia but as a neutral athlete”. These changes were introduced in Rule 22.1A IAAF Competition Rules (Rule 22.1A).[1] Finally, the IAAF also decided to let Yuliya Stepanova compete due to her “extraordinary contribution to the fight against doping in sport”.

On 23 June, the IAAF published a set of guidelines on the basis of which Russian athletes could request a permission to compete in IAAF events (and the Olympics) if they could demonstrate not being tainted by the Russian state doping system as provided under the exception enshrined in Rule 22.1A. However, athletes using this exception would be allowed to compete only as neutral athlete. Stepanova was the first athlete authorized to compete at the Rio Games by the IAAF (ironically, she would later be blocked by the IOC) based on the rule 22.1A. She was joined only by Darya Klishina (the IAAF later rescinded this eligibility in light of her involvement in the McLaren Report, but the CAS decided against all odds to let her compete in Rio).

The IAAF felt comforted in its decisions by the release of the McLaren Report on 18 July. Yet, the Russian athletes and the Russian Olympic Committee were obviously extremely dissatisfied with this outcome. Both sides agreed to submit the matter, through the ordinary arbitral procedure, to the CAS, which held a quick hearing on 19 July.

II.            The Key Legal Questions at the CAS

While the decision to reject the demands of the Russian athletes was publicized immediately (on 21 July) on the CAS’ website, it is only three months later that the full text of the award was made available for all to see. For analytical purposes, and following the award’s internal structure, I will deal with the following four key questions:

1. Does the suspension of the RusAF extend to the eligibility of the Russian athletes?
2. Is the new IAAF rule 22.1.A a sanction?
3. Can the ROC nominate athletes to the Olympic Games without the assent of the IAAF?
4. Will the Russian athletes falling under rule 22.1.A compete as neutral athletes in Rio?

1.     Does the suspension of the RusAF under Rule 22.1(a) extend to the eligibility of the Russian athletes?

The Russian athletes challenged first the application by IAAF of Rule 22.1(a) IAAF Competition rules. The Rule provides for the IAAF-wide ineligibility of “[a]ny athlete, athlete support personnel or other person whose National Federation is currently suspended by the IAAF”. In other words, the claimants “want an exception to the rule for doping cases, so that the ineligibility for the athletes affiliated to a suspended national federation, a member of the IAAF, would not apply if the suspension is imposed for the federation’s failure to ensure an effective doping control system”[2]. 

i.               Rule 22.1(a) is a valid rule extending the ineligibility of a federation to its athletes

The Panel rejects this challenge.

First, it considers that it is not its duty to rewrite the IAAF’s rules. Instead, the “rule- making power, and the balance to be struck in its exercise between the competing interests involved, is conferred on the competent bodies of the sport entity, which shall exercise it taking into account also the overall legislative framework”[3].

Second, it highlights “that the suspension of the Russian track and field federation is not disputed in this arbitration”[4]. This is due to the fact that ARAF did not contest the original decision of IAAF in November 2015. Consequently, “the dispute heard by the Panel regards only the consequences for the athletes affiliated to the Russian federation of the suspension imposed on their federation and not the reasons for the suspension”[5].

Thirdly, the Panel rejects the view that Rule 22.1(a) is a doping sanction. Rather, “it is a rule which affects the eligibility of athletes to enter into International Competitions and is a consequence of the organizational structure of international sport; national federations are members of international federations, and have the duty to respect the obligations deriving from such membership; athletes participate in organized sport, as controlled by an international federation, only on the basis of their registration with a national federation, which is a member of the international federation in question”[6]. Thus, “Rule 22.1(a) is a rule of general application, not specific to doping cases, and would apply equally to athletes who are members of federations that fail to pay their membership dues as to athletes who are members of federations that engage in other breaches of federation obligations to the IAAF as a member thereof” [7]. The claimants sought to frame Rule 22.1.(a) and Rule 22.1A as a package applying specifically to anti-doping cases. But the Panel disagreed, highlighting instead that “Rule 22.1(a) is not part of a new package of rules”, as it “has existed since at least 2000, whereas Rule 22.1A is a recent amendment”.[8] The Panel sees Rule 22.1(a) as “a necessary consequence of the sanction imposed on RusAF”. [9] In sum, the “athletes are ineligible because RusAF has been sanctioned, and accepted that sanction, not because of what the athletes have done”. [10]

ii.              Rule 22.1(a) is not contrary to the World Anti-Doping Code

The Panel also rejects the argument that Rule 22.1(a) would be contrary to the World Anti-Doping Code (WADC). First, because it is not an additional doping sanction (and therefore is not covered by the Osaka rule jurisprudence of the CAS[11]) and second because it is consistent with the WADC’s mandate to international federations to introduce sanctions in case their members do not comply with the Code.[12] Furthermore, “it is a fundamental principle of the law of associations in all applicable jurisdictions that members of associations have an obligation to satisfy the requirements for membership in the association and if they fail to do so those members may have their association membership adversely affected”[13]. The Panel refuses to “disturb these well-accepted principles” [14].

iii.            IAAF is not estopped to enforce Rule 22.1(a) on the Russian athletes

The Panel further refused to find that the IAAF was estopped from considering the Russian athletes ineligible based on Rule 22.1(a).[15] It is true that some IAAF employees/executives might have been involved in a corruption scheme to cover-up doping cases, however “[t]here is no suggestion that the IAAF officials were involved in the systemic doping of Russian athletes” [16]. Moreover, “none of the Claimant Athletes has argued that they knew about the IAAF’s wrongdoing and relied on it to their detriment, or that they believed that RusAF would not be suspended in the event of misconduct” [17]. The arbitrators also deny that the Rule 22.1(a) was too uncertain. In particular, the fact that the length of the ineligibility is indeterminate is deemed a “simple consequence of the fact that it is contingent on the National Federation (“NF”) being reinstated”.[18]

iv.            The ineligibility of Russian athletes under Rule 22.1(a) is proportionate

Finally, even though it considers that “Rule 22.1(a) is not a sanction”, and, therefore, “it does not have to pass any test of proportionality”[19], the Panel engages in a very interesting exercise to assess its putative proportionality. It finds “that the effect (ineligibility to compete at International Competitions) on the athletes registered with a national federation suspended by IAAF is a proportionate consequence of the national federation’s suspension for its failure to put in place an adequate system to protect and promote clean athletes, fair play and integrity of sport”. [20] In the view of the arbitrators, “eradication of doping in sport, protection and promotion of clean athletes, fair play and integrity are undeniably legitimate objectives of extreme importance for the viability of sport at any level”.[21] In this regard, “the measure taken by IAAF, and the effect it produces, is capable of achieving those objectives, as it prevents athletes under the jurisdiction of the suspended national federation (for having failed to promote a doping-free environment) from competing with athletes registered with federations that have not been the subject of an exclusion”. [22] Furthermore, “the measure taken by IAAF is necessary to reach the envisaged goal: if the IAAF could not take a step having the mentioned effect, the suspension of the Russian federation would have no meaningful impact”. [23] Thus, “the constraints which the affected athletes, including the Claimant Athletes, will suffer as a consequence of the measure are justified by the overall interest to achieve the envisaged goal, which outweighs them, and do not go beyond what is necessary to achieve it”. [24] Finally, the Panel highlight the role played by Rule 22.1A. This provisions shows “that the effect produced by the suspension of a national federation (in force since at least 2000) was recently made more flexible, to take into account individual cases, in a way consistent with the sought purpose of eradication of doping, protection and promotion of clean athletes, fair play and integrity”. [25]

The Panel, thus, concludes “that IAAF Competition Rule 22.1(a) is valid and enforceable in the circumstances of the present dispute”. [26]

2.     Is IAAF Competition Rule 22.1A valid and enforceable in the circumstances of the present dispute?

The Claimants were also challenging the validity of Rule 22.1A, as they were constructing the rule as an unforeseeable sanction against athletes who would not comply with the requirements enshrined in it. Yet, the Panel wondered from the outset “what interest the Claimants would have in seeing it set aside, given that it is a rule which allows athletes to be included, not excluded”[27]. Indeed, if the Panel “struck down Rule 22.1A, the only consequence for the Claimants would be that any athlete who made him/herself eligible pursuant to Rule 22.1A would still be ineligible: the Claimant Athletes, on the other hand, would not regain the eligibility denied by Rule 22.1(a)”[28]. The Claimants argued that both rules were intimately connected and amounted to one sanction: if one would be deemed invalid the other would fall too.[29] However, the Panel noted in response to this argument “that (i) the legality of Rule 22.1(a) and its applicability in the present circumstances has already been confirmed, as per the considerations above, [and] (ii) the Claimants’ submissions as to the legality of Rule 22.1A have no merit […]”[30]. Thus, the Panel finds Rule 22.1.A not to be inconsistent with the WADC as it does not constitute a sanction. Similarly, not being a sanction its proportionality is not into doubt, nor does it appear to be discriminatory. The Claimant Athletes could not rely on any legitimate expectations to be eligible if they met the Verification Criteria published on 11 December 2015, as “they would have also known that RusAF would have to be reinstated before they became eligible”[31]. Indeed, “Rule 22.1A did not change the way in which the Claimant Athletes could make themselves eligible”, rather “it provided another route to eligibility, one which could be pursued even though RusAF had not been reinstated in accordance with the Reinstatement Conditions”.[32]

In the end, the Panel only criticized the lack of legal certainty provided by “Rule 22.1A(b), as its terms may appear vague and retroactive in nature”[33]. Nonetheless, “no matter how concerning it may be for the Panel that the vague terms of Rule 22.1A(b) allow for retroactive application, this does not help the Claimants in having the application of this rule set aside in the given case”[34]. Even if “retroactive criteria in general are to be avoided as unfair and contrary to fundamental notions of due process and good sportsmanship” [35], the Panel notes that “Rule 22.1A is an inclusionary rule, and only created an opportunity, not a bar, for the Claimant Athletes”. [36] Hence, disapplying it “would only have the effect of harming any other Russian athlete who satisfied Rule 22.1A(b)”. [37]

3.     Can the ROC nominate athletes to the Olympic Games without the assent of the IAAF?

The third question raised by the Claimants was whether the Russian Olympic Committee could bypass the IAAF’s decision and nominate athletes without its approval to participate in the Rio Olympics. Here again the Panel from the outsets finds “that, under the Olympic Charter, the ROC is not entitled to nominate athletes who are not eligible under IAAF Competition Rules 22.1(a) and 22.1A”[38]. To come to this conclusion the Panel focuses on the Olympic Charter, it notes that “Rule 40 of the Olympic Charter restricts participation in the Olympic Games to those who comply with the Olympic Charter and the WADC, including the conditions of participation established by the IOC, “as well as the rules of the relevant IF as approved by the IOC””.[39] It interprets the latter sentence as implying “mandatory compliance with IF rules”^[40]. Furthermore, the Panel finds that “the Olympic Charter makes it clear that an NOC shall only enter competitors upon the recommendations for entries given by national federations (Rule 44.4), and that as a condition precedent to participation in the Olympic Games every competitor has to comply not only with the provisions of the Olympic Charter, but also with “the rules of the IF governing his sport” (Bye-law 4 to Rule 44)”^[41]. It concluded that “the NOCs can only exercise their right to send personnel to the Olympic Games if they comply with the rules of the relevant International Federation (“IF”) because otherwise they would be contravening Rule 40 of the Olympic Charter”.[42] Consequently, “ROC cannot enter into the 2016 Olympic Games athletes who do not comply with the IAAF’s rules, including those athletes who are not eligible under Competition Rules 22.1(a) and 22.1A.” [43] Even in the unlikely event RusAF is deemed not to exist anymore for the purpose of the application of the Olympic Charter, and Bye-law 5 to Rule 44[44] of the Olympic Charter is deemed applicable, “the ROC would need the IAAF’s, and IOC Executive Board’s, approval to send competitors”[45].

Therefore, with or without RusAF, “the ROC cannot enter athletes who are ineligible pursuant to the IAAF’s rules”[46].

4.     Will the Russian athletes enjoying the exception enshrined in Rule 22.1A compete as neutral athletes?

Finally, the last interrogation posed by the claimants is whether Russian athletes regaining eligibility through Rule 22.1.A can compete as representatives of Russia. It is the only point on which the claimants are found by the Panel to prevail. Indeed, it finds “that, under the Olympic Charter, if there are any Russian track and field athletes who are eligible to compete at the 2016 Olympic Games under IAAF Competition Rule 22.1A, the ROC is entitled to enter them to compete as representatives of Russia”[47]. In its view, “under the Olympic Charter it is not for an IF to determine whether an athlete, eligible for entry to the Olympic Games, has to compete as a “neutral” athlete, or as an athlete representing the NOC that entered him or her” [48]. In other words, “athletes which are sent to the Olympic Games are not entered as neutrals, but are sent by an NOC” [49]. Moreover, “an athlete does not represent his/her national federation; the federation’s suspension does not prevent an athlete from being entered into the Olympic Games as a representative of his/her NOC” [50].

The Panel does recognize, however, that the fact “that the ROC is entitled, under the Olympic Charter, to enter into the Olympic Games as representatives of Russia any Russian track and field athletes who are eligible to compete under IAAF Competition Rule 22.1A does not mean that the IOC is bound to accept such designation as athletes representing Russia” [51]. In sum, it was not IAAF’s job to declare the athletes neutral but the IOC’s and it declined to do so.

Conclusion

The IAAF has faced a hurricane of negative news in the last two years. Its former president, Lamine Diack, is under investigation in France on corruption charges, its internal anti-doping activities have been shown to be at best inefficient and at worse corrupted, and Russia, one of its biggest suppliers of talents and legends, is exposed as engaged in a State sponsored doping programme. The least one can say is that cleaning these ‘Augean Stables’ was, and still is, an awful task. However, unlike the IOC, which has shown little willingness to seriously crack down on Russia after the scandal, the IAAF has adopted a tough line. It sidelined Russia’s athletics federation as soon as the suspicions voiced by whistle-blowers were substantiated. Furthermore, it refused to let Russian athletes participate in the Rio Olympics, thus reinforcing the anti-doping fight with a symbolically important sanction. Indeed, the world anti-doping system will remain a paper tiger if Russia’s systematic breach of anti-doping rules and spirit is not followed by truly deterrent sanctions. Surely, the system as a whole deserves a comprehensive reform addressing the massive deficiencies highlighted by the Russian scandal.

In this regard, the lessons from this CAS award rejecting the demands of the Russian athletes are threefold:

• First, the athlete’s eligibility to international sporting competitions cannot be severed from the status of his or her national federation. In other words, the athletes, as members of a national federation, bear part of the responsibility for a federation’s failure to comply with, for example, its duties under the WADC. This does not preclude the introduction of mechanisms that, as the one introduced by the IAAF, would enable athletes to discharge this responsibility in specific situations.

• Second, international federations can impose painful sanctions upon their affiliates in case of noncompliance with their duties under the WADC. The CAS recognized that in order to function properly the WADC needs to be supported at the local level, and to be supported at the local level noncompliance must be met with deterrent sanctions that will necessarily extend to the athletes affiliated with the noncompliant local body. Again, the athletes are not passive members of a national federation. They bear a share of the political (and in the end legal responsibility) attached to its governance.

• Third, and finally, the CAS has demonstrated that there was no fatality in taking a lenient road to deal with the Russian State doping scandal. The Panel even left open the possibility for the IOC to decide that Russian athletes would have to compete under a neutral flag. This is a good reminder that the IOC’s decisions to let the Russians compete at the Rio Olympics, and thus dilute the negative effects of being caught organizing a comprehensive State doping system (as was very recently evidenced by the second McLaren Report) was not a legally mandated decision but a political choice that deserves critical scrutiny. The precedent force of this award is even greater in the light of its endorsement by the Swiss Federal Tribunal, which rejected in early August the Claimants request for provisory measures against it.

[1] The rule reads as follows:

1A. Notwithstanding Rule 22.1(a), upon application, the Council (or its delegate(s)) may exceptionally grant eligibility for some or all International Competitions, under conditions defined by the Council (or its delegate(s)), to an athlete whose National Federation is currently suspended by the IAAF, if (and only if) the athlete is able to demonstrate to the comfortable satisfaction of the Council that:

(a)  the suspension of the National Federation was not due in any way to its failure to protect and promote clean athletes, fair play, and the integrity and authenticity of the sport; or                 

(b)  if the suspension of the National Federation was due in any way to its failure to put in place adequate systems to protect and promote clean athletes, fair play, and the integrity and authenticity of the sport, (i) that failure does not affect or taint the athlete in any way, because he was subject to other, fully adequate, systems outside of the country of the National Federation for a sufficiently long period to provide substantial objective assurance of integrity; and (ii) in particular the athlete has for such period been subject to fully compliant drug-testing in- and out-of-competition equivalent in quality to the testing to which his competitors in the International Competition(s) in question are subject; or

(c)  that the athlete has made a truly exceptional contribution to the protection and promotion of clean athletes, fair play, and the integrity and authenticity of the sport.

The more important the International Competition in question, the more corroborating evidence the athlete must provide in order to be granted special eligibility under this Rule 22.1A. Where such eligibility is granted, the athlete shall not represent the suspended National Federation in the International Competition(s) in question, but rather shall compete in an individual capacity, as a 'Neutral Athlete'.

[2] CAS 2016/O/4684 The Russian Olympic Committee (“ROC”) et al v.  The International Association of Athletics Federations (IAAF), 21 July 2016, para.115. [where I use Para in the following footnotes I refer to this award]

[3] para.117

[4] Para.118

[5] Ibid.

[6] Para 119.

[7] Ibid.

[8] Para 120.

[9] Para 121.

[10] Ibid.

[11] See CAS 2011/O/2422 United States Olympic Committee (USOC) v. International Olympic Committee (IOC), 4 October 2011.

[12] Para.122-124

[13] Para. 124.

[14] Ibid.

[15] Para.125-127

[16] Para. 126.

[17] Para. 127.

[18] Para.128

[19] Para. 129.

[20] Para. 131.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Para. 132.

[25] Ibid.

[26] Para. 136.

[27] Para.137.

[28] Ibid.

[29] Para.138

[30] Para.140

[31] Para. 151

[32] Para.152

[33] Para.143

[34] Para. 146

[35] Para. 146.

[36] Para. 147.

[37] Ibid.

[38] Para. 155

[39] Para. 157

[40] Para. 157

[41] Para. 158

[42] Para. 159

[43] Para. 161

[44] Stating : “Should there be no national federation for a particular sport in a country which has a recognised NOC, the latter may enter competitors individually in such sport in the Olympic Games subject to the approval of the IOC Executive Board and the IF governing such sport”

[45] para.164

[46] para.165

[47] para.167

[48] para.168

[49] para.170

[50] Ibid.

[51] ibid.