CAS OG AD 16/01 Pavel Sozykin & RYF vs World Sailing & IOC
- Sailing
- Decision of an International Federation to reject the entry of an athlete for the Olympic Games
- Jurisdiction of the CAS anti-doping Division
- Transfer to the competent jurisdiction
1. It is a sine qua non of the jurisdiction of the CAS anti-doping Division (ADD) that an alleged anti-doping rule violation (ADRV) has been asserted and referred to it under the IOC anti-doping regulations (ADR). A decision that simply states conditions of eligibility to be satisfied by Russian athletes who wish to compete in Rio and is addressed to IFs and the ROC, not to CAS ADD, cannot be construed as such an assertion or reference. Furthermore, from Article 1 of the CAS ADD rules read as a coherent whole and in the context of the IOC ADR which apply only to doping controls “over which the IOC has jurisdiction in connection with the Olympic Games Rio 2016” and are part of the legal matrix of the CAS ADD Rules, it is clear that the alleged ADRV must have occurred “on the occasion of the OG”. A date of sample collection in October 2014 falls far outside the occasion or period of Rio 2016.
2. Even if principles of Swiss law, according to the Swiss Federal Tribunal, demand transfer by a (jurisdictionally) incompetent judge to a competent one, such principles are not shown to be applicable directly if at all to the two CAS Divisions at the Olympic Games, in a structure which is sui generis. While a specific rule exists for the transfer of an arbitration case from the CAS Ordinary Division to the CAS Appeals Division and vice-versa, it does not exist for the transfer of a case from the CAS ADD to the CAS ad hoc Division (AHD). Such silence in the CAS rules cannot be construed as a gap, given that the CAS AHD is clearly identified as the appeals body of the CAS ADD in the CAS ADD Rules. It is therefore for the applicant to redirect the application to the other CAS Division who can itself determine whether to accept it. The absence of an automatic transfer within the CAS Divisions does not affect the rights of any applicant to file the same application to both the CAS ADD and the CAS AHD, either simultaneously, to ensure that at least one of them would retain jurisdiction, or following an award denying jurisdiction by the first of the two Divisions, given that there is no particular time limit to refer a case to the CAS ADD and/or the CAS AHD during the Olympic Games.
On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the "McLaren Report") describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.
The McLaren report had identified one Russian positive sailing test result said to be suppressed by the Moscow laboratory. WADA informed World Sailing that this pertained to Mr. Sozykin and came from a sample collected on 4 October 2014. The substance said to be detected was JWH 018, a cannibanoid.
On 24 July 2016 the IOC Executive Board issued a decision that no athlete implicated in the McLaren report would be permitted to compete in the Rio 2016 Olympic Games.
As a consequence of the findings in the McLaren Report and the IOC Decision of 24 July 2016 World Sailing decided that the entry of the Russian Athlete Pavel Sozykin was rejected for the Rio 2016 Olympic Games.
Hereafter on 2 August 2016 the Athlete and the Russian Yachting Federation (RYF) appealed the decisions issued by the IOC and World Sailing with the CAS Anti-Doping Division (CAS ADD). The Athlete and RYF requested the CAS ADD Panel to set aside the IOC and World Sailing decisions and to allow him to compete at the Rio 2016 Olympic Games.
IOC and World Sailing requested the Panel to reject the appeal because the CAS Ad Hoc Division (CAS AHD) has jurisdiction and not CAS Anti-Doping Division.
The CAS ADD Panel rules on 14 August 2016 that CAS AHD has jurisdiction and not CAS ADD and declines to make any order for transfer of the Athlete’s appeal to CAS AHD.
