Mr. Vitaly Mutko, was the current Deputy Prime Minister of Russia and was the Russian Minister of Sport, Tourism and Youth Policy from 12 May 2008 until 21 May 2012 and the Russian Minister of Sport from 21 May 2012 until 19 October 2016.
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.
On 2 December 2017, the Schmid Commission published its report, confirming the systemic manipulation of the anti-doping rules and system in Russia, which caused “exceptional damage to the integrity of the IOC, the Olympic Games and the entire Olympic movement”. The Schmid Commission concluded that members of the Ministry of Sport and its subordinated entities were directly involved in the manipulation; however, the Schmid Commission did not find sufficient documented, independent and impartial evidence to decide whether the Mr Mutko was personally involved in or had knowledge of that manipulation.
Nevertheless, the Schmid Commission determined that the Mr Mutko, as the then head of the Ministry of Sport, had the “ultimate administrative responsibility for the acts perpetrated at the time within the Russian Ministry or the entities under its responsibility” and, accordingly, recommended that he bear “the major part” of that administrative responsibility. The Schmid Commission urged the IOC Executive Board (EB) to “take the appropriate measures that should be strong enough to effectively sanction the existence of a systemic manipulation of the anti-doping rules and system in Russia, as well as the legal responsibility of the various entities involved”.
Consequently the IOC EB formally approved the Schmid Report on 5 December 2017 and decided: "[…] IV. To exclude the then Minister of Sport, Mr Vitaly Mutko, […] from any participation in all future Olympic Games”. The IOC never formally notified Mr Mutko of this Decision. The IOC only published this Decision, without any grounds, in the form of a press release in both English and Russian, on its official website under the category “News”.
Hereafter in December 2017 Mr Mutko appealed the IOC EB decision of 5 December 2017 with the Court of Arbitration for Sport (CAS) and requested the Panel to set aside paragraph IV of the IOC EB Decision of 5 December 2017.
Mr Mutko argued that the Appealed Decision must be set aside because it imposed a sanction on him without a proper legal basis. The IOC, on the other hand, sought to uphold the Appealed Decision. The IOC maintained that the Appealed Decision did not impose a sanction; rather, it simply declared “in advance” the IOC’s intent to reject any future application for Mr Mutko’s participation in the Olympic Games. In the IOC’s view, such a declaration is markedly different from a decision imposing a sanction on an individual and has not affected the legal position and rights of Mr Mutko. Further, the IOC claimed that the Appealed Decision was based on a proper legal basis of the Olympic Charter.
The Panel holds that the Appealed Decision set forth a sanction against Mr Mutko. Consequently, as for any challenged sanction, the Panel must verify whether the sanction was grounded on a proper legal basis. Here the Panel established that Mr Mutko was not and is not an Olympic competitor, a member of an Olympic delegation, a referee or member of a jury, and does not hold any Olympic accreditation which might be withdrawn.
Finally, the Panel notes that the IOC has even admitted that, in the event the Panel characterized the Appealed Decision as a sanction (as it has done so) the Appealed Decision would have no legal basis due to the IOC’s lack of authority to issue any form of disciplinary sanction against Mr Mutko as an individual not subject to the IOC’s jurisdiction and regulations. In light of the foregoing, the Panel must set aside the Appealed Decision for lack of a legal basis.
Therefore the Court of Arbitration for Sport decides on 3 July 2019 that:
1.) The appeal filed by Mr. Vitaly Mutko on 26 December 2017 is upheld.
2.) The decision concerning Mr. Vitaly Mutko, adopted by the Executive Board of the International Olympic Committee on 5 December 2017, is set aside.
3.) The costs of this arbitration, to be determined and served to the parties by the CAS Court Office, shall be equally borne by both parties.
4.) Each party shall bear his or its own legal fees and other expenses incurred in connection with this arbitration.
5.) All further or different motions or prayers for relief are dismissed.
