CAS OG 18/04 Tatyana Borodulina, Pavel Kulizhnikov, Alexander Loginov, Irina Starykh, Dimitry Vassiliev, Denis Yuskov v. International Olympic Committee
- Multiple sports
- Non-inclusion of members of support staff in the list of athletes and officials invited to participate in the Olympic Games
- Jurisdiction ratione temporis of the CAS ad hoc Division
Definition of “dispute”
1. Article 1 of the CAS Arbitration Rules for the Olympic Games provides that the CAS Ad Hoc Division only has jurisdiction if an application concerns disputes which “arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games”.
2. The definition of what constitutes a dispute given by the International Court of Justice has constantly been repeated: “A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons”. Therefore, with regard to the establishment of a list of athletes and officials who may be eligible to be invited by the IOC to the Olympic Games, the dispute arises as soon as athletes and members of the support staff not included in the list become aware of their non-inclusion.
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 IOC Decision to suspend the ROC and its athletes was challenged by the 6 athletes before the CAS:
- CAS 2017/A/5487,
- CAS 2017/A/5488,
- CAS 2017/A/5484,
- CAS 2017/A/5485,
- CAS 2017/A/5486,
- CAS 2017/A/5490.
These procedures were pending before the CAS in Lausanne.
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.
The 6 Russian Athletes were not invited to participate in the 2018 PyeongChang Olympic Winter Games on the fact that previously they had served a period of ingeligibility for committing an anti-doping rule violation. Request for Provisional Measures were dismissed by the IOC. Hereafter on 7 February 2018 the 6 Russian athletes filed an application with the CAS Ad Hoc Division at PyeongChang against the IOC regarding their non-invitation.
The CAS Ad Hoc Division holds that it has only jurisdiction if an application concerns disputes which arise during the Olympic Games or after 30 January 2018 which is 10 days before the Opening Ceremony of the Olympic Games. The CAS Panel finds that the date when the dispute arose was 19 January 2018 when the 6 athletes became aware of their non-selection. Because this was well before the 10 days before the Opening Ceremony the Panel has no jurisdiction to deal with the application of the 6 athletes.
Therefore the CAS Ad Hoc Division concludes on 9 February 2018 it does not have jurisdiction the hear the Application of the 6 Russian athletes filed on 7 February 2018.
