CAS 2016/A/4703
- Lyukman Adams,
- Kseniya Aksyonova,
- Tatyana Arkhipova,
- Victor Butenko,
- Timofey Chalyy,
- Elena Cherniaeva (Kozlova),
- Dmitriy Chizhikov,
- Artem Denmukhametov,
- Gulshat Fazlitdinova,
- Aleksey Fedorov,
- Ekaterina Galitskaia,
- Georgy Gorokhov,
- Elena Isinbaeva,
- Pavel Ivashko,
- Oxana Kondratyeva,
- Ekaterina Koneva,
- Vasiliy Kopeikin,
- Elena Korobkina,
- Ilia Krasnov,
- Vladimir Krasnov,
- Antonina Krivoshapka,
- Maria Kuchina,
- Denis Kudryavtsev,
- Anna Kukushkina,
- Alla Kuliatina,
- Alexandr Lesnoi,
- Sergej Litvinov,
- Danil Lysenko,
- Yuliya Maltseva,
- Alena Mamima,
- Nikolay Markov,
- Aleksandr Menkov,
- Anna Misochenko,
- Olga Mullina,
- Marina Pandakova,
- Elena (Yuelena) Panova,
- Marina Panteleyeva,
- Yulia Pidluzhnaya,
- Evgeniya Polyakova,
- Sergey Polyanskiy,
- Mariya Ponomareva,
- Alina Prokopeva,
- Vera Rebrik (Rebryk),
- Ekaterina Renzhina,
- Aleksey Reunkov,
- Vera Rudakova,
- Ilgizar Safiullin,
- Ivan Shablyuev (Shablyuyev),
- Sergey Sharypov,
- Anna Shchagina,
- Ilya Shkurenev,
- Sergey Shubenkov,
- Maksim Sidorov,
- Anzhelika Sidorova,
- Kristina Sivkova,
- Aleksei Sokirskii,
- Ekaterina Sokolenko,
- Ekaterina Strokova,
- Dmitri Tarabin,
- Irina Tarasova,
- Pavel Trenikhin,
- Sardana Trofimova,
- Daniil Tysplakov,
- Ivan Ukhov,
- Roman Yevstifeyev,
- Svetlana Vasilyeva,
- Natalia Vlasova
v. The International Association of Athletics Federations (IAAF)
Related case:
CAS 2016_O_4684 Russian Olympic Committee, Lyukman Adams [et al.] [68 Russian Athletes] vs IAAF
October 10, 2016
- Athletics
- Application of Rule 22.1A(b) IAAF Competition Rules regarding eligibility for the Olympic Games
- Arbitration agreement and choice of law
- Burden of proof in case of alleged incorrect application of a rule (Rule 22.1A(b) IAAF Competition Rules)
- Retroactive criteria
- Rule 22.1A(b) IAAF Competition Rules
1. If the parties to CAS arbitration agree in an arbitration agreement that the governing law of the arbitration shall be the general principles of law common to civil law and common law systems as referenced in an earlier CAS decision, in accordance with Article R45 of the Code of Sports-related Arbitration (the “Code”) such general principles shall apply in addition to the rules applicable according to Article R58 of the Code.
2. If in a CAS appeal of several athletes the CAS panel is requested to review the proper actual interpretation and application by a first instance body of a certain rule (here: Rule 22.1A(b) of the IAAF Competition Rules) with respect to issues common to all the athletes, and if the burden of proving that the conditions of the rule are satisfied lies with the athletes, the athletes have to provide evidence or argument that, had the rules been properly interpreted, they would have fulfilled the criteria foreseen by the rule in question. In the absence of any such evidence or argument the CAS panel cannot grant the relief of the athletes to declare that they have fulfilled the criteria.
3. In general the use of retroactive criteria (e.g. in order to determine the eligibility of an athlete to compete in international competitions) is to be avoided as unfair and contrary to fundamental notions of due process and good sportsmanship. However, a decision passed by a first instance tribunal applying the retroactive criteria is not invalid if in the individual case, the person concerned by the first instance decision does not adduce evidence that the application of differently set criteria would have been favourable for it.
4. Rule 22.1A of the IAAF Competition Rules is a permissive provision insofar as it does not impose ineligibility but rather allows eligibility to be regained if specific conditions are satisfied. As a result, its application cannot be construed as a sanction for the athlete concerned. Furthermore, according to the Guidelines as to the application of Rule 22.1A of the IAAF Competition Rules, the Doping Review Board is mandated to verify the criteria it deems relevant to the case considered, and is not requested to assess every single factor mentioned in Section 7 of the Guidelines. It is therefore possible that in a particular case e.g. only the fact whether an athlete had lived and had been tested in a specific country during the period defined as relevant turns out to be decisive in light of the specific circumstances of that case.
On 9 November 2015 the World Anti-Doping Agency published the Independent Commission Report. The WADA Independent Commission’s mandate was the examination of allegations made on television programs aired by the German television channel ARD, with particular reference to athletics in Russia and the IAAF. Amongst several recommendations made against various bodies, the report recommended that WADA should immediately declare ARAF to be non-compliant with the WADC.
On 26 November 2015, the IAAF Council fully suspended ARAF and it was decided that in order to regain full membership ARAF would need to satisfy a list of criteria, to be verified by a Task Force specifically appointed for such purpose.
On 17 June 2016 after recommendations of the Task Force the IAAF Council decided not to reinstate RusAF to IAAF membership. The consequence was that Russian athletes remained ineligible under IAAF rules to compete in international competitions, as defined in the IAAF Competition Rules, edition 2015-2016, including the European Championships and the track-and-field events at the 2016 Olympic Games in Rio de Janeiro, Brazil.
On the same day, the IAAF Council passed a rule amendment to the effect that if there were any individual athletes who can clearly and convincingly show that they were not tainted by the Russian system because they had 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.
Further, the IAAF Council recommended that any individual athlete who had made an extraordinary contribution to the fight against doping in sport should also be able to apply for permission to compete in International Competitions (as a neutral athlete). The IAAF implemented a new rule in its Competition Rules, namely Rule 22.1A, and a new definition of “Neutral Athlete”.
On 9 July 2016, the IAAF Doping Review Board (DRB) decided to reject the applications of 67 Russian athletes. Only the application of the Russian athlete Darya Klishina was accepted by the DRB. Hereafter in July 2016 the 67 Russian athletes appealed the DRB decisions against the Russian Athletes with the Court of Arbitration for Sport (CAS).
The objects of the Appeal are the Decisions rendered by the DRB, which denied the Athletes’ application to be granted eligibility to compete at the Rio Olympic Games under Rule 22.1A of the Competition Rules. The Athletes dispute this conclusion, and request that the Decisions be set aside. The IAAF wishes the Decisions to be confirmed.
In light of the parties’ submissions, the issues that the CAS Panel has to determine with respect to the Appeal are those which are not covered by the award rendered in respect of the Claim (CAS 2016/O/4684). In such award, the Panel confirmed inter alia the validity and enforceability of the Contested Rules. As a result, also the validity and enforceability vis-à-vis the Athletes of Rule 22.1A(b) of the Competition Rules was confirmed.
The main question left for the Panel’s decision in this award, therefore, concerns the actual application of Rule 22.1A(b) to the Appellants: it is the Appellants’ case, in fact, that such rule, if held to be valid, was improperly interpreted and applied.
The Panel finds that the Russian athletes did not provide evidence or even argument that, had the rules (Rule 22.1A and the Guidelines) been properly interpreted, they would have passed the test set by Rule 22.1A of the Competition Rules. In those circumstances, it is impossible to grant the relief sought by the athletes, which is a declaration that they are eligible to participate in the 2016 Olympic Games.
All the Russian athletes’ contentions cannot be accepted. As a result, the Appeal has to be dismissed. The DRB Decisions are confirmed, primarily on the basis of the decision of this Panel in the companion case (CAS 2016/O/4684).
Therefor the Court of Arbitration for Sport decides on 14 October 2016 that:
1.) The Appeal filed by Lyukman Adams, Kseniya Aksyonova, Tatyana Arkhipova, Victor Butenko, Timofey Chalyy, Elena Cherniaeva (Kozlova), Dmitriy Chizhikov, Artem Denmukhametov, Gulshat Fazlitdinova, Aleksey Fedorov, Ekaterina Galitskaia, Georgy Gorokhov, Elena Isinbaeva, Pavel Ivashko, Oxana Kondratyeva, Ekaterina Koneva, Vasiliy Kopeikin, Elena Korobkina, Ilia Krasnov, Vladimir Krasnov, Antonina Krivoshapka, Maria Kuchina, Denis Kudryavtsev, Anna Kukushkina, Alla Kuliatina, Alexandr Lesnoi, Sergej Litvinov, Danil Lysenko, Yuliya Maltseva, Alena Mamima, Nikolay Markov, Aleksandr Menkov, Anna Misochenko, Olga Mullina, Marina Pandakova, Elena (Yuelena) Panova, Marina Panteleyeva, Yulia Pidluzhnaya, Evgeniya Polyakova, Sergey Polyanskiy, Mariya Ponomareva, Alina Prokopeva, Vera Rebrik (Rebryk), Ekaterina Renzhina, Aleksey Reunkov, Vera Rudakova, Ilgizar Safiullin, Ivan Shablyuev (Shablyuyev), Sergey Sharypov, Anna Shchagina, Ilya Shkurenev, Sergey Shubenkov, Maksim Sidorov, Anzhelika Sidorova, Kristina Sivkova, Aleksei Sokirskii, Ekaterina Sokolenko, Ekaterina Strokova, Dmitri Tarabin, Irina Tarasova, Pavel Trenikhin, Sardana Trofimova, Daniil Tysplakov, Ivan Ukhov, Roman Yevstifeyev, Svetlana Vasilyeva and Natalia Vlasova on 15 July 2016 concerning the decisions rendered by the IAAF Doping Review Board on 9 July 2016 is dismissed.
2.) The DRB’s Decisions are affirmed.
3.) The Appellants are ineligible to participate at the 2016 Olympic Games.
(…)
6.) All further claims and prayers for relief are dismissed.
