CAS OG 16/18 Kiril Sveshnikov et al vs UCI & IOC

On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the "McLaren Report") describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.

On 22 July 2016, The UCI received correspondence from WADA attaching information from the McLaren Report that related specifically to the UCI.

On 24 July 2016, the IOC Executive Board issued a decision (the "IOC Decision") concerning the participation of Russian athletes in the Rio Games. According to this decision the following was stated:

"2. Entry will be accepted by the IOC only if an athlete is able to provide evidence to the full satisfaction of his or her International Federation (IF) in relation to the following criteria:
[. . .]
The IFs should carry out an individual analysis of each athlete's anti-doping record, taking into account only reliable adequate international tests, and the specificities of the athlete's sport and its rules, in order to ensure a level playing field.
[. . .]
3. The ROC is not allowed to enter any athlete for the Olympic Games Rio 2016 who has ever been sanctioned for doping, even if he or she has served the sanction".

On 27 July 2016, the UCI responded to the IOC by confirming that, under the UCI Rules, all riders on the provisional list would be eligible to participate in the 2016 Olympic Games.

On 28 July 2016 the UCI issued a statement that three Russian riders in this case had been withdrawn by the ROC because they have been sanctioned previously for Anti-Doping Rule Violations and UCI passed the names of these three Athletes to the IOC.

On 3 August 2016, the IOC sent a letter to the UCI indicating that, in accordance with the IOC Criteria, the IOC Executive Board has subsequently delegated the final review of entries of Russian athletes to a Review Panel composed of three IOC Executive Board members operating in the light of point 4 of the IOC Criteria.

The IOC Review Panel confirmed the eligibility of the 13 Russian athletes as mentioned on the UCI list of 27 July 2016. The Panel submitted to the UCI: “the three athletes Dmitrii Sokolov, Dmitrii Strakhov and Kirill Sveshnikov do not meet the criteria set by the IOC Executive Committee Board and are therefore not deemed eligible for entry in the Olympic Games Rio 2016 and therefore we request for UCI to reallocate the quota places next best ranked NOC according to your qualification system.”

Hereafter on 3 August 2016 the three excluded Russian Athletes filed their application against UCI and IOC with the CAS Ad Hoc Division in Rio de Janeiro. On the same day the Athletes submitted to the CAS Ad Hoc Division that their application was only addressed against the UCI Decision and not against the IOC anymore as one of the respondents. The Athlete requested the CAS Ad hoc Division Panel to set aside the IOC Decision of 24 July 2016 and the UCI decision of 28 July 2016 and to allow the athletes to participate to the Rio 2016 Olympic Games. UCI requested the Panel to reject the appeal.

The Panel finds that the Athletes have no such standing to appeal with CAS, because UCI did not take any decision that adversely affected the legal position of the Applicants. The only decision taken that aggrieved the Applicants was the IOC Decision of 3 August 2016, which explicitly stated that “the three athletes Dmitrii Sokolov, Dmitrii Strakhov and Kirill Sveshnikov do not meet the criteria set by the IOC Executive Committee Board and are therefore not deemed eligible for entry in the Olympic Games Rio 2016 and therefore we request for UCI to reallocate the quota places next best ranked NOC according to your qualification system.”
It was, thus, the IOC and not the UCI that excluded the Applicants from the participation in the RIO 2016 Olympic Games. It is apparent that the Applicants are aggrieved by the IOC Decision and not the UCI Statement. The Applicants cannot maintain an appeal against a decision made by the IOC, when it is not a party to these proceedings. The Panel concludes that the Appeal or application must be dismissed because the Applicants lack standing to sue.

Therefore the CAS Ad Hoc Division Panel decides on 6 August 2016 that the application filed by Kirill Sveshnikov, Dmitry Sokolov and Dmitry Strakhov on 3 August 2016 is dismissed.

CAS OG 16/12 Ivan Balandin vs FISA & IOC

On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the "McLaren Report") describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.

FISA received from WADA information from the McLaren Report confirming that 11 rowers had their samples tested and then reviewed by the Russian Deputy Minister of Sport. Six (6) of these were “SAVE” cases, including the Athlete Ivan Balandin.

FISA additionally checked on the ADAMS system and noted that the test was reported as negative. As the date of sample collection was missing (or marked “N/A”) on the information supplied to it, Matthew Smith, from FISA, additionally spoke to Emma Price from UK Anti-Doping, who was reviewing the testing results and procedures at the Moscow Laboratory, who confirmed to him that the sample had been collected on 21 May 2013.

On 24 July 2016, the IOC Executive Board issued a decision (the "IOC Decision") concerning the participation of Russian athletes in the Rio Games. According to this decision the following was stated:

"2. Entry will be accepted by the IOC only if an athlete is able to provide evidence to the full satisfaction of his or her International Federation (IF) in relation to the following criteria:
[. . .]
The IFs should carry out an individual analysis of each athlete's anti-doping record, taking into account only reliable adequate international tests, and the specificities of the athlete's sport and its rules, in order to ensure a level playing field.
[. . .]
3. The ROC is not allowed to enter any athlete for the Olympic Games Rio 2016 who has ever been sanctioned for doping, even if he or she has served the sanction".

As a consequence of the finding in the McLaren Report and the IOC decision the FISA Executive Committee decides on 25 July that the 11 Russian rowers were declared ineligible for the Rio Olympic Games and on 27 July 2016 FISA issued the statement that the Athlete Ivan Balandin will not be included in the list of rowers declared eligible as it understood that the IOC will not accept his entry.

Hereafter on 2 August 2016 the Russian Athlete appealed the FISA decision with the CAS Ad Hoc Division in Rio de Janeiro. The Athlete requested the CAS Ad hoc Division Panel to set aside the IOC Decision and the FISA Decision of 25 July 2016 and to allow the athletes to participate to the Rio 2016 Olympic Games. FISA and IOC requested the Panel to reject the appeal.

The Panel agrees that the matter at hand is eligibility. The IOC Decision was borne out of the need to respond to the government directed scheme to protect Russian athletes from ADRVs. All Russian athletes were to be analysed individually to see if they could rebut the presumption that they had benefited from this government scheme. Put simply, only if the Athlete could show he had not benefited, then he would be eligible for the Rio Games. There was an additional hurdle for those implicated in the McLaren Report, which was clarified by the IOC in its submission to the Panel.

The Panel has no doubts at all that the IOC acted in good faith and with the best of intentions when issuing such decision. The IOC confirmed that the aim of these criteria was to give an opportunity to those Russian athletes who were not implicated in the State-organised scheme to participate in the Rio Games.

Considering the Athlete’s arguments the Panel finds that there was no breach of good faith, procedural fairness, venire contra factum proprium or the right to be heard.
The Panel is satisfied that the information, provided to FISA and the additional checks it took with UKAD, were sufficient to conclude that the Athlete was implicated in the state-sponsored anti-doping scheme in Russia and by being “saved” he avoided likely doping sanctions and cannot satisfy the IOC’s eligibility criteria to rebut the presumption of guilt and, as such, assumes responsibility for his part in the scheme.

Therefore the CAS Ad Hoc Division Panel decides on 6 August 2016 that the application filed by Ivan Balandin on 2 August 2016 is dismissed.

In November 2015 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Swimmer Vitalina Simonova after her sample tested positive for the prohibited substance testosterone.

After notification a provisional suspension was ordered. The Swimmer filed a statement in her defence and she was heard for the FINA Doping Panel. The Swimmer gave a prompt admission and stated that she non intentionally had used the product Testosterol purchased in a local athlete’s store during her stay in a traing camp in Greece. Test results afterwards from the Testosterol capsules showed the presence of deydroepiandrosterone (DHEA). The Swimmer asserted that she researched the ingredients of the product before using. The prohibited substance was not mentioned as ingredient on the label of the product and she mentioned the use of the product on the Doping Control Form.

Considering the Swimmer’s statement the Panel concludes that the Swimmer was careless and intentionally took the risk of ingesting a product which contained a prohibited substance.
Without grounds for reduction under the Rules the FINA Doping Panel decides on 6 July 2016 to impose a 4 year period of ineligibility on the Swimmer starting on the date of the sample collection, i.e. on 29 June 2015, including forfeiture of medals/prizes, reimbursement of prize-money.

Related case:
CAS 2016_A_4631 William Brothers vs FINA
March 21, 2017

In September 2015 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Swimmer for his refusal to provide a sample out-of-competition for drug testing.

In August 2015 the Swimmer initially cooperated with the two Doping Control Officers (DCO) at his residence. However after a phone call from his father under observation of the DCOs the Swimmer notified the DCOs that he will not take the blood test due to health reasons and that he will retire from sport. Also the Swimmer mentioned his reason on the Doping Control Form.

After notification of the violation the Athlete filed a statement with medical files in his defence and he was heard for the FINA Doping Panel. The Athlete acknowledged his refusal of sample collection but explained that he was dealing with a serious medical problem in August 2015 and found his situation as a result of that stressful. He explained he already had decided to retire but had not filled out the relevant documentation at the time the DCOs arrived at his home.

Considering the Swimmers statement the Panel finds that the Swimmers’s medical condition was no ground to refuse the sample collection. The Panel concludes that the Swimmer’s refusal was intentional after he followed his father’s instruction not to cooperate with the DCOs.
Therefore on17 May 2016 the FINA Doping Panel decides to impose a 4 year period of ineligibility on the Swimmer starting on the date of the sample collection, including forfeiture of medals/prizes, reimbursement of prize-money.

Related cases:

CAS 2016_A_4534 Maurico Fiol Villanueva vs FINA
March 16, 2017

FINA 2019 FINA vs Mauricio Fiol Villanueva
August 19, 2020

In July 2015 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Swimmer Mauricio Fiol Villanueva after his A and B samples tested positive for the prohibited substance stanozol.

After notification a provisional suspension was ordered. The Swimmer filed a statement in his defence and he was heard for the FINA Doping Panel.

The Swimmer accepted the test results. denied the intentional use of the substance and stated that he only had used supplements which also tested negative for stanozolol contamination.
The Swimmer suggested that other possible sources for the stanozolol could be the consumption of meat; injections of vitamin B and prescribed anti-inflammatory drug Norflex administered by a sports doctor; or other supplements from the United States.

The Panel finds that the Swimmer failed to prove the absence of intention and how the substance came into his body. Without grounds for reduction under the Rules the FINA Doping Panel decides on 14 March 2016 to impose a 4 year period of ineligibility on the Swimmer starting on the date of the sample collection, i.e. on 12 July 2015, including forfeiture of medals/prizes, reimbursement of prize-money.

The World Anti-Doping Code 2015 : ASSER International Sports Law Blog symposium / Antoine Duval, Herman Ram, Marjolaine Viret, Emily Wisnosky, Howard L. Jacobs, Mike Morgan. – (International Sports Law Journal 16 (2016) 1 (July) : page 99-117). - DOI: 10.1007/s40318-016-0097-9

Abstract:

This article brings together the contributions to a blog symposium on the new World Anti-Doping Code 2015 published on the ASSER International Sports Law Blog in October 2015. The contributions cover a variety of subjects, including the new sanctioning regime, the role of national anti-doping authorities, the working of therapeutic use exemptions and the increasing role played by the notion of intent under the WADC 2015.

Content:

1. Introduction
1.1 The WADA and its code: a schort history
1.2 Making the code 2015: the legislative process
1.3 The blog symposium on the WADA code 2015
2. The impact of the revised WADC on the work of NADOs
2.1 Introduction
2.2 Sanctions
2.3 Proportionality and human rights
2.4 Investigation and intelligence
2.5 Athlete support personnel (ASP)
2.6 Smart testing and analyzing
2.7 International federations and NADOs
2.8 A clearer and shorter code
2.9 Miscellaneous
3. The “Athlete Patient” and the 2015 Code: competing under medical treatment
3.1 Introduction
3.2 Obtaining clearance to compete – therapeutic use exemptions and conditional prohibitions
3.2.1 Amendments to procedural requirements for granting a TUE
3.2.2 Amendments to substantive requirements for granting a TUE
3.2.3 Transparency for conditionally prohibited substances
3.3 Sanctons for legitimate medical treatment without a TUE
3.4 Conclusion – remember health considerations behind anti-doping
4. “Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code”
4.1 Why intent matters under the 2015 World Anti-Doping Code
4.2 How will the NADO/IF prove “intent” in cases involving “specified substance”
4.3 How does the athlete prove “no intent” in cases not involving “specified substances”?
5. Conclusion
6. Ensuring proportionate sanctions under the 2015 WADA Code
6.1 Introduction
6.2 Context
6.2.1 The Katrin Krabbe case
6.2.2 Specified substances
6.2.3 The rise and fall of “aggravating circumstances”
6.2.4 Proportionality
6.3 Comment
6.4 Concluding remark

CAS OG 16/20 VANASOC & Vanuatu Beach Volleyball Federation vs FIVB & Rio 2016 Organizing Committee

On 19 July 2016 the Italian athlete Viktoria Orsi tested positive for the prohibited substance clostebol and was finally excluded on 2 August 2016 from the Rio 2016 Olympic Games.

On 4 August 2016 the International Volleyball Federation (FIVB) informed the President of the Vanuatu Volleyball about the allowed replacement of the Italian athlete Viktoria Orsi Toth by the athlete Laura Giombini.

On 5 August 2016 the Vanuatu Association of Sports and National Olympic Committee (VANASOC) and the Vanuatu Beach Volleyball Association filed their application with the CAS Ad Hoc Division Panel against the FIVB and the Rio 2016 Organizing Committee.

The Applicants requested the CAS Panel to set aside the 4 August 2016 decision of the FIVB and the Rio 2016 Organizing Committee which accepted the replacement of the Italian athlete Viktoria Orsi Toth by the Italian athlete Laura Giombini.
The Applicants requested the Panel to exclude the Italian female beach volleyball team and to allow the Vanuatu team to compete in the Women Beach Volleyball at the Rio 2016 Olympic Games.

The Sole Arbitrator Panel finds that the FIVB decision is scant to allow the Italian team to replace the Italian athlete Toth. The Panel notes that the Late Player Replacement Policy provides for a discretion on the part of the Rio 2016 Organizing Committee for the Olympic Games (Rio 2016) to authorise a replacement on a case-by-case basis for exceptional circumstances. The FIVB letter states that the replacement was authorised under this Policy. It cannot be said, for example, that the FIVB ignored the Policy, nor has it been suggested that it was unaware of its contents. Also the Respondents failed to file a statement in their defence.

The Arbitrator rules that the Applicants did not establish that the Late Player Replacement Policy was not complied with. This would involve establishing that the discretion miscarried or that there were no exceptional circumstances.

The Panel cannot conclude that the Applicant has satisfied this onus of proof. The facts are not sufficient to establish an inevitable conclusion of lack of exceptional circumstances. For example, the Panel notes the chronology as set forth in the Application and observes that it has not been shown that surrounding circumstances did not constitute or amount to exceptional circumstances. It follows that the Application should be refused.

Therefore the Ad Hoe Division of the Court of Arbitration for Sport rules on 5 August 2016 that the application filed by the Vanuatu Association of Sports and National Olympic Committee (VANASOC) and the Vanuatu Beach Volleyball Association is dismissed.

CAS OG 16/11 Daniil Andrienko et al v.s FISA & IOC

CAS OG 16/11 Russian rowers vs FISA & IOC:
- Daniil Andrienko
- Aleksander Bogdashin
- Alexandra Fedorova
- Anastasiia lanina
- Alexander Kornilov
- Aleksandr Kulesh
- Dmitry Kuznetsov
- Elena Lebedeva
- Elena Oriabinskaia
- Julia Popova
- Ekaterina Potapova
- Alevtina Savkina
- Alena Shatagina
- Maksim Telitcyn
- Anastasiia Tikhanova
- Aleksei Vikulin
- Semen Yaganov

On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the "McLaren Report") describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.

On 24 July 2016, the IOC Executive Board issued a decision (the "IOC Decision") concerning the participation of Russian athletes in the Rio Games.

As a consequence of the finding in the McLaren Report and the IOC decision the FISA Executive Committee decides on 24 July that the 17 Russian rowers were declared ineligible for the Rio Olympic Games, because they had not "undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow laboratory and registered in ADAMS from 1 January 2015 for an 18 month period".

Hereafter on 1 August 2016 the 17 Russian rowers appealed the FISA decision with the CAS Ad Hoc Division in Rio de Janeiro. The Athletes requested the CAS Ad hoc Division Panel to set aside the FISA decision of 25 July 2016 and to allow the athletes to participate to the Rio 2016 Olympic Games. FISA requested the Panel to reject the appeal.

Considering the filed arguments of the athletes and considering the findings in the McLaren Report, the CAS Panel finds that a reliable adequate international test can only be assumed if the sample has been analyzed in a WADA-accredited laboratory outside Russia. The Panel rules that FISA's implementation and application of the criteria listed in the IOC Executive Board decision is consistent and fully compliant with the wording and the spirit of the IOC's decision. This has been also acknowledged by the IOC in the hearing.

The Panel notes that the testing history (i.e. the number of tests to which a single athlete has submitted) is not a rule, but a piece of evidence with the help of which the respective international federation shall establish whether or not in the case at hand the level playing field is affected. FISA determined - in line with the applicable criteria - that the level playing field is only ensured if Russian athletes are admitted to competition that have been tested on three different days in the past 18 months. No issues of retroactivity arise here, since the principle of tempus regit actum is not applicabe to questions of evidence.

The Panel finds that FISA did not change the eligibility criteria. Instead, it was the IOC (that governs and administers the Rio Olympic Games) who imposed the additional eligibility criteria specifically on Russian athletes. FISA only implemented and applied these criteria to its Russian athletes. This neither constitutes a breach of the principle of venire factum propium nor a breach of good faith.

Furthermore, the Panel finds that FISA did not act in bad faith when it refused the request of the RRF on 28 July 2016 to do additional testing on the Russian athletes. Last minute testing is not likely to contribute to establishing a level playing field with other competitors that have been under the umbrella of reliable testing over a longer period of time.
Finally, the Panel notes that this is a de novo procedure and that consequently, procedural mistakes that might have occurred at a prior instance fade to the periphery. The Athletes had an opportunity to state their case before this Panel. Thus, any alleged breach of the right to be heard at a prior instance must be considered healed.

The CAS Ad Hoc Division Panel concludes that the FISA decision must be upheld and decides on 5 Augustus 2016 that the appeal is of the Russian athletes Daniil Andrienko, Aleksander Bogdashin, Alexandra Fedorova, Anastasiia lanina, Alexander Kornilov, Aleksandr Kulesh, Dmitry Kuznetsov, Elena Lebedeva, Elena Oriabinskaia, Julia Popova, Ekaterina Potapova, Alevtina Savkina, Alena Shatagina, Maksim Telitcyn, Anastasiia Tikhanova, Aleksei Vikulin, Semen Yaganov is dismissed.

CAS OG 16/09 Russian Weightlifting Federation vs International Weightlifting Federation

On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the "McLaren Report") describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.

On 24 July 2016, the IOC Executive Board issued a decision (the "IOC Decision") concerning the participation of Russian athletes in the Rio Games.

As a consequence the IWF Executive Board decided on 29 July 2016 "to ban the Russian Weightlifting Federation (RWF) from recommending / entering / participating with athletes and Technical official at Rio Olympic Games 2016".

The grounds for this IWF decision were:

• World Anti-Doping Agency (WADA) 's Independent Person (IP) Report by Prof. Richard McLaren;
• IOC decision concerning the participation of Russian athletes in the Olympic Games in Rio 2016;
• Statistics (Re-analytical cases from the Beijing and London Olympic Games);
• Anti-Doping statistics concerning Russian athletes; 
• IWF Anti-Doping Policy;
• WADA Code;
• Olympic Charter;
• IOC, WADA communications.

On 1 August 2016 the Russian Weightlifting Federation (RWF) appealed the IWF-decision with the CAS Ad Hoc Division in Rio de Janeiro. The RWF requested the CAS Ad hoc Division Panel to set aside the IWF decision of 29 July 2016 and to allow the RWF and its athletes to participate to the Rio 2016 Olympic Games. The IWF requested the Panel to reject the appeal.

The Panel notes that the findings of the McLaren Report were taken seriously by the IOC and led to the IOC Executive Board's decision dated 24 July 216 that enacted eligibility criteria specifically for Russian athletes, which is unique in the history of the Olympic Games. Also the findings were endorsed by WADA, the supreme authority in the world of sport to lead and coordinate the fight against doping and by other international federations, such as the IAAF.

Furthermore, the information contained in the McLaren Report is also corroborated by the reanalysis of the athlete's samples at the London and Beijing Olympics. All nine 9 Russian athletes have tested positive for the (same) substance Turinabol. This is a strong indication that they were part of a centrally dictated program.

This is all the more true, since the substance Turinabol was described by (former head of the Moscow laboratory) Dr Rodchenko to be part of a "special cocktail" with which Russian athletes were doped. Finally, the Panel notes that the Applicant did not challenge the specific findings of the McLaren Report in relation to the Disappearing Positive Methodology.

The Panel finds that the RWF failed to demonstrate that the IWF's conclusion that, based on the evidence before it, the conduct of the RWF brought the sport of weightlifting in disrepute, was unreasonable. The Panel notes that according to the McLaren Report, the impressive number of 61 Russian weightlifters benefitted from the Disappearing Positive Methodology.

Finally, the Panel notes that the whole Russian delegation for the London Olympics was - according to the information provided - involved in doping. Also the Panel finds that the RWF has not shown to the Panel that any other member federation has been involved in a similar doping scheme of such magnitude.

Consequently, the Panel finds that there is no breach of equal treatment in the case at hand.

Therefore the ad hoc Division of the Court of Arbitration for Sport concludes that the appealed IWF decision must be upheld and decides on 5 August 2016 that the RWF appeal is dismissed.

CAS OG 16/04 Yulia Efimova v. ROC, IOC & FINA

Related cases:
- CAS OG_2016_13 Anastasia Karabelshikova & Ivan Podshivalov vs FISA & IOC
August 4, 2016
- FINA 2014 FINA vs Yulia Efimova
May 12, 2014
- FINA 2014 FINA vs Yulia Efimova
November 3, 2014

On 12 May 2014 the FINA Doping Panel decided to impose a 16 month period of ineligibility on the Russian swimmer Yulia Efimova for committing an anti-doping rule violation.

On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the "McLaren Report") describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.

On 24 July 2016, the IOC Executive Board issued a decision (the "IOC Decision") concerning the participation of Russian athletes in the Rio Games. According to this decision the following was stated:

"2. Entry will be accepted by the IOC only if an athlete is able to provide evidence to the full satisfaction of his or her International Federation (IF) in relation to the following criteria:
[. . .]
The IFs should carry out an individual analysis of each athlete's anti-doping record, taking into account only reliable adequate international tests, and the specificities of the athlete's sport and its rules, in order to ensure a level playing field.
[. . .]
3. The ROC is not allowed to enter any athlete for the Olympic Games Rio 2016 who has ever been sanctioned for doping, even if he or she has served the sanction".

As a consequence of the IOC Decision the FINA Bureau finds on 25 July 2016 that 7 Russian swimmer were not eligible to compete at the Rio 2016 Olympic Games.

On 30 July 2016 the Athlete appealed the decision of the IOC with the CAS Ad Hoc Division in Rio de Janeiro. The Athletes requested the CAS Ad hoc Division Panel to set aside the IOC decision of 24 July 2016 and the ROC’s decision to exclude her of the entire list and to allow the her to participate in the Russian national team for the Rio 2016 Olympic Games. IOC and FINA requested the Panel to reject the appeal.

The Panel has no doubts at all that the IOC acted in good faith and with the best of intentions when issuing such decision. The IOC confirmed that the aim of these criteria was to give an opportunity to those Russian athletes who were not implicated in the State-organised scheme to participate in the Rio Games.

The Panel notes that the IOC Executive Board made it clear that its decision should be understood to recognise that, where it applied collective responsibility and removed the presumption of innocence, an athlete was entitled to be accorded the rules of natural justice and individual justice. Further, it clearly stated that "each affected athlete must be given the opportunity to rebut the applicability of collective responsibility in his or her individual case".

The Panel finds that the IOC Executive Board exercised its autonomous right to accord these personal rights by reason of its decision. Thus, it bound itself in that way. Points 2 and 3 then represented the implementation of the decision. Contrary to its own decision to accord natural justice to an individual athlete, and in accordance with the Olympic Charter, point 3 constitutes a denial of that personality right.
Accordingly, the IOC Executive Board's decision which, on the one hand, seeks to implement the IOC decision to provide an opportunity to a Russian athlete to rebut the presumption of guilt of participation in the State-sponsored doping scheme but, on the other hand, by point 3 denies that opportunity, is
unenforceable.

The Panel concludes that the Athlete’s application should be partially upheld in that point 3 of the IOC Executive Board's decision dated 24 July 2016 is unenforceable. As was also stated in GAS OG 16/13, the Panel supports the approach taken by the IOC in point 2.

Therefore the ad hoe Division of the Court of Arbitration for Sport decides on 5 August 2016

1.) The application filed by Ms Yulia Efimova on 30 July 2016 is partially upheld.
2.) Point 3 of the IOC Executive Board's Decision dated 24 July 2016 is unenforceable.
3.) All other prayers for relief are rejected.