CAS OG_2018_03 | 15 Russian athletes and coaches vs IOC

CAS OG 18/03 Alexander Legkov, Maxim Vylegzhanin, Evgeniy Belov, Alexander Bessmertnykh, Evgenia Shapovalova, Natalia Matveeva, Aleksandr Tretiakov, Elena Nikitina, Maria Orlova, Olga Fatkulina, Alexander Rumyantsev, Artem Kuznetcov, Tatyana Ivanova, Albert Demchenko, Sergei Chudinov v. International Olympic Committee

Two reports commissioned by WADA, published by Prof Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample.

As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. At the same time the IOC Schmid Commission started their investigations to establish the facts on the basis of documented, independent and impartial evidence.

All the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated. The findings in the IP Reports were considererd in detail and both Commissions conclude that samples or urine collected from Russian Athletes were tampered with in Sochi in a systematic manner and as part of an organized scheme. The Commissions further conclude that it was not possible that the athletes were not fully implicated. They were also the main beneficiaries of the scheme.

The Commissions find that Prof. McLaren’s findings are not only based on the evidence provided by Dr Rodchenkov in his interviews, but on a wealth of other corroborating evidence, including other witnesses, the forensic examination of the sample bottles, the evidence showing abnormal salt results and the additional elements coming from DNA analysis. The corroborating evidence considered by Prof. McLaren included further objective elements, such as e-mails confirming that athletes were protected through different methods.

On 5 December 2017, based on the Schmid Commission’s recommendations, the IOC decided to suspend the Russian Olympic Committee (ROC) with immediate effect. An Invitation Review Panel (IRP) and the Russia Implementation Group (OAR IG) were established with the responsibility of developing a list, based on a set of guidelines and criteria, from which the IOC would ultimately issue inviations.
The ROC eventually provided a list of 169 athletes, coaches and support staff who were invited to compete as Olympic Athletes from Russia at the 2018 PyeongChang Olympic Games as approved by the IOC on 19 January 2018.

On 1 February 2018 two CAS Panels ruled in the matter of the Sochi appeals (CAS 2017/A/5379) that there was insufficient evident to conclude that the applicants, amongst others, had commited an anti-doping rule violation. Following this CAS decision the applicants as well as the ROC requested that the applicants be invited to the PyeongChang 2018 Olympic Winter Games.
Another group of applicants had learned from the press or through their federations that they had not been included in the list of Russian athletes invited to the Olympic Winter Games. They also requested the IOC to be invited to the Olympic Games. On 4 and 5 February 2018 the IOC declined the requests of both group of applicants.

On 6 and 7 February 2018 32 Russian athletes (CAS OG 18/02) and 15 Russian athletes and coaches (CAS OG 18/03) appealed the IOC decision not to invite them with the CAS Ad Hoc Division at PyeongChang.

In this case CAS OG 18/03 the 15 athletes and coaches requested the Panel to order the IOC to invite each of them to participate in the 2018 PyeongChang Olympic Winter Games. They argue that the IOC’s refusal to invite the applicants has no basis in law and discriminatory. They contended that the IOC decision not to invite the athletes and coaches is an impermissible attempt to circumvent the CAS decisions of 1 February 2018. They contended that they were cleared having committed any any anti-doping rule violations and they underwent all of the pre-games testing requirements conducted by the IOC. They asserted that it is unclear which criteria were applied, how they were applied, which factors were taken into account and how they were weighed. The lack of transparency in the selection process makes it impossible to rebut the allegations against them.

The IOC:
a.) The IOC's argued that the decision to suspend the ROC and establish a process for allowing certain Russian athletes to compete at the 2018 Olymic Games is different from proceedings relating to anti-doping rule violations;
b.) The invitation process established by the IOC, while discretionary, was justified and correctly and fairly implemented;
c.) The process was not meant to discriminate against Russian athletes; rather, it offered the possibility of participation in the 2018 Olympic Games, which had been closed to a significant number of them following the suspension of the ROC.
d.) The IOC requests the Panel to reject the Athletes' Applications.

The CAS Panel observes that it is faced with evaluating an unprecedented response to an extraordinary situation, that is, a state-sponsored doping scheme.
Considering the evidence in this case the Panel concludes that the athletes have not demonstrated that the process established by the IOC constituted a sanction, or that the manner in which the IRP or the OAR IG independently evaluated the athletes was carried out in a discriminatory, arbitrary or unfair manner. The Panel also concludes that there is no evidence the IRP or the OAR IG improperly exercised their discretion.

Therefore the Ad Hoe Division of the Court of Arbitration for Sport decides on 9 February 2018:

The Application filed by Alexander Legkov, Maxim Vylegzhanin, Evgeniy Belov, Alexander Bessmertnykh, Evgenia Shapovalova, Natalia Matveeva, Aleksandr Tretiakov, Elena Nikitina, Maria Orlova, Olga Fatkulina, Alexander Rumyantsev, Artem Kuznetcov, Tatyana Ivanova, Albert Demchenko, Sergei Chudinov on 7 February 2018 is dismissed.

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9 February 2018
Roberts, Carol L.
Steggall, Zali
Welten, Bernhard
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