Editor's note: This is the (belated) fifth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio. The other acts are available at:
Act V: Saving the
last (Russian) woman standing: The Klishina miracle
Darya Klishina is now an Olympic
celebrity. She will enter the history books not because she won a gold medal or
beat a world record. Instead, her idiosyncrasy lies in her nationality: she was
the sole Russian athlete authorized to stand in the athletics competitions at
the Rio Olympics. And yet, a few days before the start of the long jumping contest
in which she was due to take part, the IAAF surprisingly decided to revoke her eligibility (‘And Then There Were None’). But Klishina
appealed the decision to the CAS ad hoc Division and, as all of you
well-informed sports lawyers will know, she was allowed to compete at the
Olympics and finished at a decent ninth place of the long jump finals.
Two important questions are raised
by this case:
- Why did the IAAF
changed its mind and decide to retract Klishina’s authorization to participate?
- Why did the CAS
overturn this decision?
A. The IAAF’s second
thoughts over the implication of Klishina
What happened between 9 July, when
Klishina was first green lighted by the IAAF Doping Review Board (DRB) and 10 August when the DRB
revoked its previous decision to let her compete? Basically, the publication of
the McLaren Report, and especially evidence showing “that the Applicant had
been directly affected and tainted by the State-organised doping scheme
described in the IP Report”.[1]
More concretely, according to the Report, Klishina was affected in the
following three ways:
i.
“a sample
collected on 26 February 2014, yielding a T/E ratio of 8.5, had been subject to
a "SAVE" order by the Ministry of Sport on 3 March 2014;
ii. a sample
collected on 17 October 2014 and subsequently seized by WADA December 2014 was
found to bear marks and scratches consistent with the removal of the cap and
contained urine from the Applicant but also from another female athlete; and
iii. a sample
collected on the occasion of the 2013 IAAF World Championships in Moscow was
also found to bear marks and scratches consistent with the removal of the cap.”[2]
In its original decision, the DRB
had reserved its right “to reconsider
the Applicant’s case should information ever be brought to its attention
(including but not limited to as a result of the current investigation being conducted by Professor
McLaren on behalf of WADA) that the Doping Review Board considers is such as to
undermine the basis upon which the application was accepted”.[3] Thus,
unsurprisingly, the CAS acknowledged that the DRB had the competence to
reconsider the eligibility granted to the athlete. Nonetheless, surprisingly,
it found that such reconsideration was not legitimate in light of the new
information gathered.
B. The surprising
decision of CAS to let Klishina jump
Klishina won in front of the CAS.
From the outset this is a surprising decision, since she was at least as
implicated in the IP Report as numerous other Russian athletes who were barred
from entering the Games.[4]
Indeed, she had clearly profited from being “saved” by the Russian Ministry of
Sport. So why on earth would the CAS decide to let her jump?
This decision is intimately linked
with the legal basis of the original decision of the DRB. Despite the repeated
view of the IOC that the IAAF policy was stricter than its own,[5]
the Klishina case demonstrates that
this is not universally true in practice. The main point was that the IAAF’s
DRB had recognized that since 1 January 2014, Klishina “had been subject to
fully compliant drug testing in- and out-of-competition”[6]
and therefore fulfilled the criteria enshrined in the IAAF Competition rule 22.1A(b). This was based on the following factual findings:
- “The fact that
she had spent 632 days out of Russia, being 86.6% of her time, in the Relevant
Period;
- She had relocated
permanently to the United States in March 2014 and had been trained under a US
coach since October 2013;
- She regularly
competes in competitions on the international circuit;
- A total of 11
samples had been collected from the Applicant outside of Russia in the Relevant
Period;
- 1 sample had been
collected by the IAAF since June 2016 and sent for analysis by a laboratory
outside of Russia.”[7]
The question is then whether the
new information, indicating that Klishina was implicated and benefitted from
the Russian doping scheme, recognized as valid by the Panel[8],
could justify revisiting the first decision. In other words, could this new
information lead to reconsidering the eligibility of Klishina under the regime
of IAAF Competition rule 22.1A(b) on which the original decision was based? To
assess this, the Panel starts by pointing out that the rule “is not the same as the decision of
the IOC Executive Board made after the publication of the IP Report. (…) As the
parties agreed, the IOC Executive Board decision is not in evidence in this
case and decisions of the Ad hoc Panel of the CAS for the Games of the XXXI
Olympiad in Rio de Janeiro as to the application of, or the terms of, the IOC
Executive Board decision are not applicable”.[9]
The CAS Panel insists that the IAAF’s
DRB “was comfortably satisfied that during the Relevant Period the Applicant
satisfied each of the criteria set out in the Rule for exceptional eligibility,
notwithstanding the suspension of the National Federation”.[10]
Furthermore, “in making its findings, the DRB was aware of, and took no account
of, tests conducted in Russia and that it was cognisant of inadequacies in the
system of testing in Russia, for which RusAF had been suspended”.[11]
Those are decisive conclusions that will lead to the second decision being set
aside. The CAS Panel was of the view “that the conclusion reached in the Second
Decision, and the basis for that decision, are not in accordance with the Rule
which was purportedly invoked”.[12]
It is so, because “the further evidence considered by the DRB for the purposes
of the Second Decision did not undermine its finding in the First Decision that
the Applicant was eligible to compete by reason of her compliance with the
Rule”.[13]
This analysis leads to an unfair solution as the undisputed evidence points at
Klishina profiting not once but on three occasions from the Russian doping
scheme and still this evidence is not considered as relevant to reconsider the
IAAF’s original decision to let her jump.
This decision is grounded on the
following legal reasoning: the Panel considers that the “implication [of
Klishina in the State-doping system] is not relevant to the application of
criteria which, if fulfilled, mean that for the purposes of the Rule [22 IAAF],
the Applicant is not affected or tainted by the failures of the National
Federation”.[14]
The CAS Panel is of the view that the IAAF Rule “provides for a mechanism or a
basis by which an athlete is granted exceptional eligibility”.[15]
And this “mechanism is fulfilment of the two criteria which, for this athlete,
was established by the DRB in the First Decision”.[16]
Thus, the “fact that the athlete was subjected
to or the subject of drug testing that was not fully compliant
during the Relevant Period does not derogate from the fact that she was, during
the Relevant Period (that is, ‘a sufficiently long period’), subject to fully compliant drug testing in- and out-of-
competition by reason of the fact that she was during that time training in and
resident in the United States and not in Russia”.[17]
Additionally, “there is no evidence to suggest that the testing that she was
subject to was other than equivalent in quality to the testing to which her
competitors were subject”.[18]
In other words, “an athlete may have undergone non-compliant testing while
concurrently being subject to fully
compliant testing and still fulfil the second criterion”.[19]
This is comforted by the fact “that the Rule is addressed to the suspension of
any International Federation for failure to put in place an adequate system and
the impact on the eligibility of the athlete” and the “criteria are directed to
the establishment by an athlete that he or she is outside the country of his or
her National Federation during the Relevant Period”.[20]
Hence, it “is not addressed to the implication of an athlete in a defective
system”.[21]
Instead, “it states that an athlete is taken not to be affected or tainted by
the action of the National Federation if he or she was subject to other,
compliant systems outside of the country”.[22]
In a nutshell, for the CAS Panel, the “relevant question is not whether the
athlete was affected by the Russian System, or how, or whether she had
knowledge of the way in which the system worked”.[23]
No, the only question is “whether she fulfilled the criteria of the Rule”.[24]
And the answer to that question is: she did early July; and she still does in
August!
This case is disconcerting as it contradicts
the line of cases regarding the implication of athletes in the IP Report
discussed a few days ago. The CAS relied on the ambiguous wording of the IAAF
provision to offer an escape route to Klishina. In doing so, it disregarded the
spirit and objective of the provision, which was to provide a mechanism for
athletes who were not personally tainted by the Russian doping scandal to
participate in IAAF competitions. Yet, another aspect of the case is even more
bizarre. Why did the IOC not block the eligibility of Klishina on the basis of
paragraph 2 of the IOC Decision? She was undoubtedly implicated and benefited
from the scheme. In fact, only one of the three sources of implication provided
by McLaren should (and would) have been enough for the IOC Review Panel and the CAS arbitrator reviewing her eligibility to discard her from
the Olympics. It did not happen, Zeus only knows why…
Epilogue
These five blogs have discussed the
awards rendered by the CAS ad hoc Division in Rio involving Russian athletes
wishing to compete at the Olympics. In general, the CAS has been willing, with few
exceptions (Efimova and Klishina), to approve the ineligibility of Russian
athletes. Rightfully, in my view, the CAS has supported the IFs that have opted
for a strict approach in dealing with the eligibility of Russian athletes for
the Rio Olympics. The CAS has also unsurprisingly rebutted the blunt rule of
the IOC excluding Russian athletes who were previously sanctioned for doping. But,
it has surprisingly let Klishina jump, in spite of all the factual elements
pointing at her being implicated in, and having profited from, the Russian State-doping
scheme. Overall, the CAS ad hoc Division has served its purpose as a review instance
well, forcing the IFs and the IOC to properly justify their decisions and
providing an avenue for the Russian athletes to be heard.
These cases also highlight the
variety/plurality of responses to the Russian doping scandal and its impact on
the eligibility of Russian athletes for the Rio Olympics. It seems that some
IFs have taken WADA’s call for a strong
response of the SGBs seriously. Unfortunately, and this is one of the negative
consequences of the IOC’s decision to not decide, due to a lack of information,
it is impossible to assess the different policies of the IFs which have not
faced (due to their reluctance to act or else) a challenge of their eligibility
decisions in front of the CAS ad hoc Division. In light of recent revelations concerning the International Swimming Federation (FINA) it is likely
that a number of IFs decided to interpret narrowly the IOC criteria and waved
through the overwhelming majority of Russian athletes without a proper check.
Finally, the awards show that CAS
arbitrators would have been ready to condone a general exclusion of Russian
athletes, with a narrow exception for those not tainted by the scandal or who
could not benefit from the scheme because they were residing outside of the
Russian Federation (this is very much the position adopted in the recent decision of the
CAS in the dispute between the Russian Paralympic Committee and the
International Paralympic Committee). The CAS recognized the seriousness of the
situation and the collective responsibility of Russian sports organizations. It
seemed also ready to follow up on this collective responsibility by endorsing
collective sanctions that would most likely have been found compatible with the
Russian athletes ‘natural rights’. Hence, ultimately, the IOC’s decision to let
the Russian athletes compete at the Rio Olympics may have been politically unavoidable,
but was certainly not legally mandated. I leave you to appreciate whether this
decision is compatible with the IOC’s proclaimed fundamental values and its
commitment to enforcing the World Anti-Doping Code. What is certain, however,
is that the World Anti-Doping System needs an overhaul (for some reform
proposals/directions see here) sooner rather
than later.
[5]
See CAS OG 16/13 Anastasia Karabelshikova and
Ivan Podshivalov v.
World Rowing Federation (FISA)
and
International Olympic Committee
(IOC), para. 7.14 and CAS OG 16/12 Ivan
Balandin v. FISA & IOC, para. 7.22.