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.
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
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
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).
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.
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
- Does the
suspension of the RusAF extend to the eligibility of the Russian athletes?
- Is the new IAAF
rule 22.1.A a sanction?
- Can the ROC
nominate athletes to the Olympic Games without the assent of the IAAF?
- 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
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”.
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”.
Second, it highlights “that the
suspension of the Russian track and field federation is not disputed in 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”.
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”. 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” . 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”.
The Panel sees Rule 22.1(a) as “a necessary consequence of the sanction imposed
on RusAF”. 
In sum, the “athletes are ineligible because RusAF has been sanctioned, and
accepted that sanction, not because of what the athletes have done”. 
Rule 22.1(a) is not contrary to the World Anti-Doping
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)
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
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”.
The Panel refuses to “disturb these well-accepted principles” .
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).
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” .
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” .
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”.
The ineligibility of Russian athletes under Rule 22.1(a) is
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”,
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”.  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”.
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”. 
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”. 
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”. 
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
The Panel, thus, concludes “that
IAAF Competition Rule 22.1(a) is valid and enforceable in the circumstances of
the present dispute”. 
Competition Rule 22.1A valid and enforceable in the circumstances of the
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”.
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)”.
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.
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 […]”.
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
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”.
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”.
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
Even if “retroactive criteria in general are to be avoided as unfair and
contrary to fundamental notions of due process and good sportsmanship” ,
the Panel notes that “Rule 22.1A is an inclusionary rule, and only created an
opportunity, not a bar, for the Claimant Athletes”. 
Hence, disapplying it “would only have the effect of harming any other Russian
athlete who satisfied Rule 22.1A(b)”. 
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
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””.
It interprets the latter sentence as implying “mandatory compliance with IF
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)”.
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”.
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.”  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
of the Olympic Charter is deemed applicable, “the ROC would need the IAAF’s, and IOC Executive Board’s, approval to
Therefore, with or without RusAF,
“the ROC cannot enter athletes who are
ineligible pursuant to the IAAF’s rules”.
4. Will the Russian
athletes enjoying the exception enshrined in Rule 22.1A compete as neutral
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”.
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” . In
other words, “athletes which are sent to the Olympic Games are not entered as
neutrals, but are sent by an NOC” .
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” .
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” . In
sum, it was not IAAF’s job to declare the athletes neutral but the IOC’s and it
declined to do so.
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
- 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.