CAS 2016/A/4777 Izzat Artykov v. International Olympic Committee (IOC)
Related case:
CAS OG_AD_2016_07 IOC vs Izzat Artykov
August 18, 2016
Weightlifting
Doping (strychnine)
Right to appeal against a decision taken by the CAS Anti-Doping Division (ADD)
Standing to be sued
Scope of jurisdiction of the panel in the context of an appeal against a decision of the CAS ADD
Notification of the Adverse Analytical Finding (AAF) to the athlete
Representation of an athlete at the B sample opening
Apparent authority of the NOC during the Olympic Games
1. According to Article 12.2 in conjunction with Article 12.1 of the IOC Anti-Doping Rules (ADR) as well as Article 21 of the Arbitration Rules (AR) of the Anti-Doping Panel (ADD), the athlete has the right to appeal the decision of the CAS ADD exclusively and directly to the permanent CAS. Therefore, the CAS has jurisdiction to hear the dispute.
2. A person or entity has no standing as a respondent in a dispute before the CAS if the deadline provided for in Article R49 of the CAS Code has expired and if the latter is not named as respondent in the “application” issued by the CAS used to fill the appeal. Such participation as a respondent would exceed the jurisdiction of the Panel ratione personae. Though, pursuant to Article R57 of the CAS Code, a CAS panel, in an appeals arbitration, has the full power to review the facts and the law, such scope of review is limited to the subject-matter and the parties of the dispute which lead to the appealed decision.
3. Though a CAS panel has jurisdiction de novo by virtue of Article R57 of the CAS Code, its appeal jurisdiction is limited to the extent of the jurisdiction allocated to the tribunal whose decision has to be reviewed. Rule 59.2 of the Olympic Charter, in conjunction with the IOC ADR and the AR ADD which implement the transfer of competence from the IOC Executive Board to the CAS ADD, display that the jurisdictional power of the CAS ADD including, in particular, the extent of the sanctions is confined to the range of the Olympic Games. Consequently, the results management should be referred to the federation which means that the sanctions beyond the jurisdiction of the CAS ADD fall under the responsibility of the competent international federation.
4. Throughout the Olympic Charter and related rules, in general, and the IOC ADR, in particular, it is provided that the IOC communicates not directly with the athletes rather than via the NOCs as intermediary and leaves the further steps to the responsible NOC. Therefore, the task to notify the athletes is, by virtue of the IOC ADR, assigned to the NOC which has the responsibility to notify the athlete and the duty “to exercise best efforts” i.e. to take any appropriate and possible action under the given circumstances of the case to forward the information to the athlete. With respect to the receiving and countersigning of the notification of an AAF, the Chef de Mission of an athlete’s NOC is authorized to do so by virtue of the applicable rules without any particular authorization by the athlete.
5. Regarding the representation of an athlete at the B sample opening, it can be concluded from an athlete’s statements that he deliberately accepted the actions taken by his NOC and, thus, at least implicitly or even openly authorized the opening of the B sample in the presence the NOC’s Secretary General, acting as his representative. An athlete duly informed of his rights related to the B sample analysis may exercise these rights by accepting what the NOC already had initiated to do.
6. According to the rules of the Olympic Charter, in general, and of the IOC ADR, in particular, during the Olympic Games, the NOCs and in particular their Chefs de Mission act as a kind of intermediary between the IOC and the athletes. However, this does not mean that the applicable rules grant to the Chefs de Mission a general power to represent the athletes or their delegations. This remains a matter of the legal regulations and other arrangements which govern the relationship between the athletes and their respective NOCs. Nevertheless, under the specific circumstances during the Olympic Games and given the interaction of the IOC and NOCs, in the light of the applicable rules, there is an apparent authority of the NOCs which, independent of the internal legal relations between the athletes and their respective NOCs, exclusively and formally applies in external terms vis-á-vis the IOC. This authority, however, solely applies when there is no will or intention to the contrary expressed by the athlete in question or any indication that the athlete does not agree.
Mr. Izzat Artykov is a Kyrgyz Athlete competing in the Men’s 69 kg Weightlifting event at the Rio 2016 Olympic Games.
On 12 August 2016 the IOC has reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance strychnine. As a result the CAS Anti-Doping Division Panel (CAS ADD) decided on 18 August 2016 to disqualify the Athlete’s results obtained at the Rio 2016 Olympic Games including forfeiture of any medal, diploma, medallist pin, points and prizes.
Hereafter in August 2016 the Athlete appealed the CAS ADD Panel decision with the Court of Arbitration for Sport (CAS).
The Athlete requested the CAS Panel to set aside the CAS ADD decision of 18 August 2016 and to be reinstated to sports participation with immediate effect. The Athlete did not challenge the test results. Rather he claimed procedural flaws committed by the Kyrgyz National Olympic Committee and the IOC invalidating the results of both the A and B samples analysis.
The CAS Panel concludes that the IOC has established to the comfortable satisfaction of the Panel that the Athlete committed an ADRV in the form of the presence of a prohibited substance under Article 2.1 IOC ADR. The valid B sample analysis which revealed the presence of strychnine in the Athlete’s body has confirmed the results of the A sample analysis. Strychnine is a prohibited substance listed under S6 of the 2016 WADA Prohibited List. Therefore, according to Articled 2.1.2 IOC ADR the IOC has sufficiently established the ADRV.
Therefore the Court of Arbitration for Sport decides on 21 April 2017 that:
1.) CAS has no jurisdiction to hear the claim for damages of Mr. Izzat Artykov against the International Olympic Committee.
2.) CAS has no jurisdiction to decide on any claims by Mr. Izzat Artykov against the National Olympic Committee of the Kyrgyz Republic.
3.) The appeal filed by Mr. Izzat Artykov on 29 August 2016 against the award of the CAS Anti-Doping Division on 18 August 2016 is dismissed.
4.) The award of the CAS Anti-Doping Division rendered on 18 August 2016 is upheld.
5.) (…).
6.) (…).
7.) All other motions or prayers for relief are dismissed.
