Editor's note: This is the third part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.
Act III: On being
sufficiently tested
Paragraph 2 of the IOC Decision: “The IFs should carry out an individual
analysis of each athlete’s anti-doping record, taking into account only
reliable adequate international tests, and the specificities of the athlete’s
sport and its rules, in order to ensure a level playing field.”
Daniil Andienko and 16 other members
of the Russian rowing team challenged the decision of the World Rowing
Federation (FISA) to declare them ineligible for the Rio Olympics. The FISA
Executive Committee took the decision on 24 July 2016 because they had not “undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow
laboratory and registered in ADAMS
from 1 January 2015 for an 18 month period”.[1] In
their submissions, the Russian applicants did not challenge the IOC Decision,
and thus the criteria enshrined in paragraph 2, but only its application by
FISA.[2] The
Russian athletes argued that FISA’s decision deviated from the IOC Decision in
that it was imposing as an additional requirement that rowers must “have
undergone a minimum of three anti-doping tests analysed by a WADA accredited
laboratory other than the Moscow laboratory and registered in ADAMS from 1
January 2015 for an 18-month period”.[3] The Panel
acknowledged that “the IOC Executive Board decision does not refer explicitly
to the requirement of three tests or to a period of 18 months”.[4]
Nonetheless, it “finds that the Challenged Decision is in line with the
criteria established by the IOC Executive Board decision”.[5]
Indeed, the IOC’s Decision “provides that in order to examine whether the level
playing field is affected or not (when admitting a Russian athlete to the Rio
Olympic Games), the federation must look at the athlete's respective
anti-doping record, i.e. examine the athlete's anti-doping tests” and that
“[i]n doing so, the IOC Executive Board decision specifies that only "reliable
adequate international tests" may be taken into account”.[6] In
this regard, the Panel, and FISA, share the view that “a reliable adequate
international test can only be assumed if the sample has been analyzed in a
WADA-accredited laboratory outside Russia”.[7]More...
Editor's note: This is the second part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.
Act II: On being
implicated
Paragraph 2 of the IOC Decision: “The IFs to
examine the information contained in the IP Report, and for such purpose seek
from WADA the names of athletes and National Federations (NFs) implicated.
Nobody implicated, be it an athlete, an official, or an NF, may be accepted for
entry or accreditation for the Olympic Games.”
The second, and by far largest,
wave of complaints involved Russian athletes barred from the game under
paragraph 2 of the IOC Decision. None of those were successful in their appeals
as the CAS sided with those IFs which took a tough stance with regard to the
Russian State doping system. The first set of cases turned on the definition of
the word “implicated” in the sense of paragraph 2 of the IOC Decision. In this
regard, on 2 August the IOC sent a communication to the IFs aiming at providing
some general guidelines. It reads as follows:
"In view of
the recent appeals filed by Russian Athletes with CAS, the IOC considers it
necessary to clarify the meaning of the notion "implicated" in the EB
Decision.
The IOC does not
consider that each athlete referred to in the McLaren Lists shall be considered
per se "implicated. It is for each International federation to assess, on
the basis of the information provided in the McLaren lists and the Independent
Person Report, whether it is satisfied that the Athlete in question was
implicated in the Russian State-controlled doping scheme.
To assist the
International Federations in assessing each individual case, the IOC wishes to
provide some information. In the IOC's opinion, an athlete should not be
considered as "implicated" where:
·
The order was a "quarantine".
·
The McLaren List
does not refer to a prohibited
substance which would
have given rise
to an anti-doping rule violation or;
·
The McLaren List
does not refer to any prohibited substance with respect
to a given
sample."
The CAS went on to address this
question concretely in three cases analysed below. More...
Since it was first introduced at
the Atlanta Games in 1996,[1]
the CAS ad hoc Division has never been as crowded as it was during this year’s Rio
Olympics. This is mainly due to the Russian doping scandal, which has fuelled the CAS with Russian athletes challenging their
ineligibility to compete at the Games. The CAS recently revealed that out
of 28 awards rendered, 16 involved Russian athletes challenging their
ineligibility. This Russian ballet is
a direct result of the shocking findings of Richard McLaren’s Independent Person (IP) Report ordered by the World Anti-Doping Agency (WADA).
McLaren’s investigation demonstrated that the Russian State was coordinating a
sophisticated doping system. The revelation triggered an outrage in the media
and amongst other competitors. Numerous calls (especially by WADA and various National Anti-Doping Organisations) were heard urging the IOC to ban the entire Russian
delegation from the Olympics. The IAAF decided to exclude
the whole Russian athletics team, [2]
with the exception of Darya Klishina, but, to the disappointment of many, the IOC refused to heed these calls and decided, instead,
to put in place a specific procedure to assess on a case-by-case basis the
eligibility of Russian athletes.
The IOC’s Decision (IOC
Decision) of 24 July foresees that the International Federations (IFs) are
competent to determine whether each Russian athlete put forward by the Russian
Olympic Committee (ROC) to participate in the Olympics meets a specific set of
conditions. Moreover, the ROC was also barred from entering athletes who were
sanctioned for doping in the past, even if they have already served their
doping sanction. In the end, a majority of the Russian athletes (278 out of 389 submitted by the ROC) cleared the IOC’s bar relatively easily, but some
of them did not, and many of the latter ended up fighting for their right to
compete at the Rio Olympics before the CAS ad hoc Division.[3]
In the following blogs, I will analyse the ten published CAS awards related to
Russian athletes.[4] It
is these legal fights that I suggest to chronicle in the following parts of this
blog. To do so, I have divided them in five different (and analytically coherent)
Acts:
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For the world of Sport, the elsewhere known “sleepy month” of August
turned out to be the or">Oskar van Maren
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