CAS OG 22/11 Evan Bates, Karen Chen, Nathan Chen, Madison Chock, Zachary Donohue, Brandon Frazier, Madison Hubbell, Alexa Knierim, and Vincent Zhou vs International Olympic Committee (IOC)

Related case:

CAS OG_2022_08 IOC, WADA, ISU vs RUSADA, Kamila Valieva & ROC
February 17, 2022

Evan Bates, Karen Chen, Nathan Chen, Madison Chock, Zachary Donohue, Brandon Frazier, Madison Hubbell, Alexa Knierim and Vincent Zhou are members of the United States Figur Skating Team who placed second in the Figure Skating Team Event at the 2022 Beijing Olympic Winter Games.

In February 2022 the Russian Anti-Doping Agency (RUSADA) reported an anti-doping rule violation against the Russian figure skater Kamila Valieva (15) after her sample, collected on 25 December 2021, tested positive for the prohibited substance Trimetazidine.

After notification a provisional suspension was ordered on 8 February 2022 and consequently the Athlete was prohibited from participation in the 2022 Beijing Olympic Games.

Yet the RUSADA Disciplinary Anti-Doping Committee (DADC) decided on 9 February 2022 to lift the Athlete's provisional suspension as it established that under the Russian ADR and the WADC 2021 the minor Athlete is a Protected Person.

On 14 February 2022, the CAS Ad Hoc Division dismissed all three applications in the consolidated proceedings (CAS OG 22/8-22/9-22/10). The Panel deemed that the Athlete has the status of a protected person and that the Provisional Suspension in question should remain lifted whether or not the Athlete committed an anti-doping rule violation.

On 14 February 2022 the IOC decided In the interest of fairness to all athletes and the NOCs concerned, it would not be appropriate to hold the medal ceremony for the figure skating team event during the Beijing Olympic Winter Games as it would include an athlete who on the one hand has a positive A-sample, but whose violation of the anti-doping rules has not yet been established on the other hand.

After deliberations with the IOC about the postponement of the medal ceremony the members of the United States Figure Skating Team appealed the IOC Decision of 14 February 2022 with the CAS AD Hoc Division.

The Applicants argued that they are innocent bystanders and completely uninvolved in the ongoing doping case related to the Athlete and the Olympic Figure Skating Team Event. The Applicants earned their second place in the Figure Skating Team Event and they cannot be deprive of being awarde their silver medals in a publice ceremony.

Accordingly the Applicants requested that the IOC be ordered to present to them the silver medals in a public ceremony to be held prior to the close of the Winter Olympic Games.

In this case the Panel finds that the Appealed Decision was neither abusive nor arbitrary, nor does the Panel find that the IOC exceeded its powers. Also the Panel fully understands the interests of the Applicants in having medals awarde to them in public during the Games.

However, and as confirmed during the hearing, none of the Parties ever expected a situation like the one at hand to arise, which is why the Panel finds no legal basis for concluding that the Appealed Decision did in fact breach any legal rights of the Applicants.

The Panel recognises the sole discretion of the IOC to decide on issues regarding, inter alia, the medal ceremonies as set out in Rule 56 of the Olympic Charter.

As such, and based on the circumstances of this case, the Panel finds no legal basis for ordering the IOC to organise a medal ceremony for the Figure Skating Team Event during the Olympic Winter Games. Consequently, the Applicants’ Application of 18 February 2022 is therefore dismissed and the Appealed Decision stands.

Therefore the Ad Hoc Division of the Court of Arbitration for Sport decides on 30 March 2022 that:

The Application filed by Evan Bates, Karen Chen, Nathan Chen, Madison Chock, Zachary Donohue, Brandon Frazier, Madison Hubbell, Alexa Knierim and Vincent Zhou is dismissed.

CAS OG 22/08 - CAS OG 22/09 - CAS OG 22/10 International Olympic Committee (IOC), World Anti-Doping Agency (WADA) & International Skating Union (ISU) v. Russian Anti-Doping Agency (RUSADA), Kamila Valieva, Russian Olympic Committee (ROC)

• Skating (figure skating)
• Lifting of a provisional suspension imposed on an athlete for doping
• Jurisdiction ratione materiae of the CAS ad hoc Division
• Jurisdiction ratione temporis of the CAS ad hoc Division
• Protected Person
• Mandatory provisional suspension for Protected Persons
• Filling of a lacuna in the World Anti-Doping Code
• Treatment of provisional suspensions for Protected Persons as optional provisional suspensions
• Irreparable harm
• Delay in the process of samples

1. The CAS ad hoc Division has jurisdiction over disputes envisaged under Article 61(2) of the Olympic Charter, i.e. dispute “arising on the occasion or in connection with the Olympic Games” which means that attention should be paid to the dispute and what the dispute is about. Therefore, even if an alleged anti-doping violation has not been committed on the occasion or in connection with the Olympic Games and the provisional suspension imposed as a result of the alleged anti-doping violation does not specifically target the Olympic Games, the dispute might nevertheless be directly connected with the Olympic Games if the dispute is about whether or not the decision to lift such provisional suspension should be confirmed and the outcome of the dispute is relevant for the athlete’s further participation in the Olympic Games.

2. If the decision which gave rise to the dispute was rendered during the period considered to be relevant under Article 1 of the CAS Ad Hoc Rules, the CAS ad hoc Division has jurisdiction ratione temporis over the dispute. In this respect, it is irrelevant whether the initial facts at the basis of the dispute may have arisen at a previous stage.

3. The World Anti-Doping Code (WADC) 2021 intends to treat Protected Persons differently than other Athletes or Persons in certain circumstances based on the understanding that, below a certain age or intellectual capacity, an Athlete or other Person may not possess the mental capacity to understand and appreciate the prohibitions against conduct contained in the Code.

4. The WADC does not provide an exemption to a mandatory Provisional Suspension for a non-specified substance used by a Protected Person even though the ultimate sanction range for the Protected Person is the same as for other categories of athletes who can avoid a mandatory Provisional Suspension. Put differently, a Protected Person is subject to the same ultimate sanction as other athletes who avoid a mandatory Provisional Suspension. But only Protected Persons can potentially receive a public reprimand and no period of ineligibility and yet be subject to a mandatory Provisional Suspension preventing them from competing for months while their case is being handled. This different and harsher treatment for Protected Persons is inconsistent with the oft-expressed intent of the Code drafters to make the Code apply more leniently and flexibly to Protected Persons in light of their age and inexperience, and their diminished responsibility for rule violations. Exempting older athletes from mandatory Provisional Suspensions in most instances in which they might ultimately be able to establish basis for a short sanction or reprimand but not exempting younger, legally incapable, and immature Protected Persons who might be entitled to a short sanction or reprimand appears clearly to be an unintended gap in the Code.

5. When CAS panels find a lacuna, or a gap, in the WADC, this has been the basis for a CAS panel to find a gap filling construct that would ameliorate an overly harsh or inconsistent outcome applying the overarching principle of justice and proportionality on which all systems of law, and the WADC itself, is based. This is an exercise in interpretation, not in rewriting rules or making policies that are better made by sporting bodies exercising proper governance.

6. In cases involving Protected Persons, Provisional Suspensions should be evaluated as optional Provisional Suspensions under the WADC 2021 and its progeny.

7. While it is not in itself sufficient that an athlete is prevented from competing in sports events to justify a stay in itself, given the finite and brief career of most athletes, a suspension (subsequently found to be unjustified) can cause irreparable harm, especially when it bars the athlete from participating in a major sports event.

8. While athletes are held to a high standard in meeting their anti-doping obligations, at the same time, the anti-doping authorities are subject to mere recommendations on time deadlines that are designed to protect athletes from late- or inconveniently-arising claims. The flexibility of the recommendations and guidelines applicable to WADA-accredited labs contrasts with the stringency of the rules on Provisional Suspensions. Although all athletes’ samples are anonymous, it should be possible for anti-doping laboratories and authorities to handle anti-doping tests in a swift manner when the samples are collected at significant pre-events that may constitute selection events for the Olympic Games.

In February 2022 the Russian Anti-Doping Agency (RUSADA) has reported an anti-doping rule violation against the Russian figure skater Kamila Valieva (15) after her sample, collected on 25 December 2021, tested positive for the prohibited substance Trimetazidine.

After notification a provisional suspension was ordered on 8 Februay 2022 and consequently the Athlete was prohibited from participation in the 2022 Beijing Olympic Games.

Yet the RUSADA Disciplinary Anti-Doping Committee (DADC) decided on 9 February 2022 to lift the Athlete's provisional suspension as it established that under the Russian ADR and the WADC 2021 the minor Athlete is a Protected Person.

The DADC accepted the explanation and evidence that the prohibited substance entered the Athlete's system through the use of a contaminated product, i.e. the medication used by her grandfather.

Hereafter on 11 and 12 February the IOC, WADA and ISU appealed the DADC Decision of 9 February with the CAS Ad Hoc Division at the Beijing Olympic Games. IOC, WADA and ISU requested the Ad Hoc Panel to set aside the Appealed Decision and to re-instate the Provisional Suspension imposed by RUSADA on 8 February 2022.

The Athlete in her defence argued that:

• The source of the inadvertent contamination has been established by the DADC after careful analysis, in connection with her interacton with her grandfather, who regularly takes the medicine Trimetazidine.
• The DADC correctly had acknowledged that the Athlete is a Protected Person due to her age;
• The DADC accepted that the Athlete would not have any competitive advantages by consuming the Trimetazidine based on the medical experts' testimonies.
• Under the Rules the conditions are met in order to lift the Provisional Suspension.

RUSADA contended that the analysis in the Stockholm Lab was delayed due to pandemic-related staff shortages and is confident that the Athlete will be able to complete her submission with respect of evidenc in the proceedings before CAS whereas she has a lesser burden of proof as a Protected Person.

The ROC asserted that in the present case concrete evidence showing the source of the contamination is not required (as the Athlete is a Protected Person) and are not available (due to the undue delay in the reporting of the adverse analytical finding by the Anti-Doping Laboratory). As a result the Panel must rely on circumstantial evidence and decide to confirm the Appealed Decision if the scenario submitted by the Athlete with regard to contamination with the Prohibited Substance is more likely that the different scenario of a voluntary ingestion.

The CAS Ad Hoc Panel holds that it is uncontested that the Athlete is clearly a Protected Person under the Russian ADR and that the WADC 2021 intends to give special treatment to the Protected Persons like the Athlete.

The Panel finds that in cases involving Protected Persons, their Provisional Suspensions should be evaluated as optional Provisional Suspensions under WADC 2021 Article 7.4.2 and its progeny.

The Panel determines that the Athlete was entitled to benefit from being subject to an optional Provisional Suspension as a Protected Person and that, under the facts and circumstances, the option not to impose a Provisional Suspension should have been exercised so that she would not be prevented to compete in the Games.

Further the Panel considers in this case:

• the length of time it took for the laboratory to submit its report of an AAF involving the Athlete;
• the timing of that relative to the conduct of the Women’s Single Skating event at the Games;
• the difficulty to be faced in the Athlete not being able in
  the current situation, right in the middle of the Games, to muster proof to support her defence of the ADRV being asserted against her;
• the relatively low level of the prohibited substance found
  in her sample;
• the fact that she has tested negative in multiple tests before;
• after the test in question the case she has attempted to muster on contamination whether in a product or through domestic contamination, and the likely low level of sanction
  she will face if found to have committed an ADRV.

The Panel deems that athletes should not be subject to the risk of serious harm occasioned by anti-doping authorities’ failure to function effectively at a high level of performance and in a manner designed to protect the integrity of the operation of the Games. Accordingly the Panel finds that the Provisional Suspension should remain lifted.

Therefore the CAS Ad Hoc Division decides on 17 February 2022:

1. The Ad Hoc Division of the Court of Arbitration for Sport has jurisdiction to determine the Applications filed by the International Olympic Committee (IOC), World Anti-Doping Agency (WADA) and International Skating Union (ISU).
2. The Applications filed by the International Olympic Committee (IOC), World Anti-Doping Agency (WADA) and International Skating Union (ISU) are dismissed.

CAS OG 20/12 Nazar Kovalenko v. World Athletics & Athletics Integrity Unit

Mr Nazar Kovalenko is a Ukrainian athlete competing in the 20 km race walk discipline. He served a 3 year period of ineligibility, resumed his sporting activitity in March 2020 and started his preparatons for the qualifications for the upcoming Olympic Games.

Previously the Athletics Integrity Unit (AIU) of World Athletics (WA) had placed the Ukrainian Athletic Federation (UAF) into the category A with the highest risk of doping. Consequently  their national team athletes had to undergo at least 3 out-of-competition doping tests in the 10 months before a World Championship or Olympic Games.

This case is about the question of whether the Athlete is eligible to participate as an athlete in the 20 km Race Walk at Tokyo 2020, although it is undisputed that the Athlete failed to meet the Mandatory Testing Requirements which are issued for all athletes belonging to Category A Federations under the WA AD Rule 15.5.1 c.

In this matter the Panel believes that three main questions are presented before it:

• Whether the ineligibility of the Athlete decided by the AIU for the failure to comply with AR Rule 15 is an unenforceable sanction;
• Whether the Athlete has, in practice, complied with the testing requirements and therefore his ineligibility would be a disproportionate, unfair and illegal measure taken against him;
• Whether the Athlete has demonstrated exceptional circumstances that would allow an exemption to the strict application of AD Rule 15.

The Panel finds that the AIU decision is not a sanction and that the imposition of ineligibility is not disproportionate for the failure of a Category A Member Federation to perform sufficient regular anti-doping tests. Further the Panel deems that there are no grounds to conclude that there are exceptional circumstances to allow an exemption.

Therefore on 3 August 2021 the CAS AD Hoc Division decides:

1. The application filed by Mr. Nazar Kovalenko on 1 August 2021 is rejected.

2. The Parties bear their own costs.

• CAS OG 20/06 World Athletics v. Alex Wilson, Swiss Anti-Doping & Swiss Olympic
• CAS OG 20/08 WADA v. Alex Wilson, Swiss Anti-Doping & Swiss Olympic
  
  
• CAS ad hoc Division (OG Tokyo) 20/006 & 20/008 World Athletics (WA) & World Anti-Doping Agency (WADA) v. Alex Wilson, Swiss Anti-Doping & Swiss Olympic

• Athletics (sprint)
• Doping (epitrenbolone)
• Jurisdiction ratione temporis of the CAS ad hoc Division
  Conditions to lift a mandatory provisional suspension

1. The CAS ad hoc Division only has jurisdiction to deal with disputes which arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony. In general, the date when a dispute arises is the date of the decision with which the applicant disagrees. However, such a date can arise later, in some cases, if, for example, it is necessary for the applicant to wait until the full case file and necessary documentation is received in order to enable it to determine whether there is a dispute concerning the decision.

2. Pursuant to Article 7.4.1 of the World Anti-Doping Code (WADC), a mandatory provisional suspension may be eliminated if the athlete demonstrates to the hearing panel that the anti-doping rule violation (ADRV) is likely to have involved a contaminated product. Article 7.4.1 of the Swiss Anti-Doping Rules (Swiss ADR) reflecting the WADC provides that the mandatory provisional suspension can only be lifted if the athlete demonstrates that it was probable that the ADRV was caused by a contaminated product. Thus, the test for the hearing panel is not only whether the positive finding could have been caused by a contaminated product. The two tests are not the same and that they impose very different burdens on the athlete and necessitate very different analyses of the evidence.

In April 2021 Antidoping Switzerland reported an anti-doping rule violation against the Swiss Athlete Alex Wilson after his A and B samples tested positive for the prohibited substance Trenbolone.

After notification a provisional suspension was ordered which was callenged by the Athlete in May 2021. The Athlete requested the Disciplinary Chamber of Swiss Olympic to lift the provisional suspension in order to participate in the outdoor season and the Tokyo Olympic Games.

The Athlete argued that the source of the positive test was  contaminated meat he had ingested in a restaurant in Las Vegas, USA, in March 2021. On 2 July 2021 the Disciplinary Chamber of Swiss Olympic decided to lift the provisional suspension imposed on the Athlete.

Hereafter on 22 and 24 July 2021 both World Athletics and WADA appealed the decision of the Disciplinary Chamber with the CAS Ad Hoc Division. They requested the Panel to set aside the Appealed Decision and for the imposition of the provisional suspension with immediate effect.

The Athlete raised a number of challenges to jurisdiction of the CAS Ad Hoc Division. However the Panel deems that it has jurisdiction to hear the filed applications and that they are admissible.

Based on the evidence the Panel concludes that the Athlete has not satisfied it that, on the balance of probabilities, it is likely or probable that the Trenbolone came from contaminated meat in the circumstances presently described by the Athlete.

The Panel finds that the evidence available so far clearly shows that the provisional suspension imposed on the Athlete should not have been lifted by the Disciplinary Chamber. It follows that the decision of the Disciplinary Chamber of 2 July 2021 should not be reinstated and, thus, the mandatory provisional suspension shall be reinstated with immediate effect.

Therefore the CAS Ad Hoc Panel decides on 27 July 2021:

1. The Ad Hoc Division of the Court of Arbitration for Sport has jurisdiction to entertain the Application filed by World Athletics on 22 July 2021 and by WADA on 24 July 2021.
2. The applications filed by World Athletics and by WADA on 22 and, respectively, 24 July 2021 are upheld.
3. The Decision rendered on 2 July 2021 by the Disciplinary Chamber of Swiss Olympic is set aside.
4. The provisional suspension imposed on Mr Alex Wilson by Antidoping Switzerland on 28 April 2021 shall be reinstated with immediate effect.
5. Each Party shall bear its own legal costs and other expenses incurred by this procedure.

CAS OG 20/04 Maxim Agapitov v. International Olympic Committee

Mr. Maxim Agapitov is a retired weightlifter and currently the acting President of the European Weightlifting Federation and President of the Russian Weightlifting Federation. As an Athlete he was sanctioned in 1994 for committing an anti-doping rule violation, 27 years ago.

After recent revelations on widespread doping practices at the International Weightlifiting Federation (IWF) the IOC rendered in June 2021 conditions for the accreditation for IWF officials for the Tokyo 2020 Olympic Games.

In July 2021 the IOC decided to withdraw the accreditation for the Tokyo 2020 Olympic Games due to Mr. Agapitov did not meet the criteria for IWF officials as he had “a personal history linked to any anti-doping rule violation and/or sanction”.

Hereafter on 21 July 2021 Mr. Agapitov filed an application with the CAS Ad Hoc Division against the IOC with respect to the withdrawal of his accreditation for the Tokyo 2020 Olympic Games.

Mr. Agapitov requested the Panel to set aside the IOC Decision regarding the withdrawal of his accreditation, to approve his participation and to reinstate his accreditation for the Tokyo 2020 Olympic Games.

The IOC argued that there there were 3 grounds for the withdrawal of Mr. Agapitov's accreditation:

• his 1994 anti-doping rule violation;
• the presence of his name in the IWF independent investigation report drafted by Professor Richard McLaren;
• the official functions of Mr. Agapitov within weightlifting federations at the Russian or European level.

The CAS ad Hoc Panel finds that the Mr. Agapitov's application is admissble, that it has jurisdiction of the present dispute whereas it shall review this matter de novo.

The Panel assessed the IOC criteria in question and concludes that the absence of any limitation in time with respect to the expression of “a personal history linked to any anti-doping rule violation and/or sanction”, 27 years is far beyond the time that could be reasonably considered as being part of a “personal history” likely to adversely affect the reputation of the sport of weightlifting at the Tokyo 2020 Olympic Games.

Furthermore, the Panel finds that the 1994 violation was committed by Mr. Agapitov during his athlete’s life while he is now exercising new functions as a sports official.

Finally, the Panel deems that Mr. Agapitov’s 1994 violation is not even relevant or related to the IWF’s governance problems and its officials’ reprehensible conducts towards doping, which have generated the issuance of the IOC’s criteria.

Quite to the contrary, Prof. McLaren, certainly the best positioned person to make any finding in this respect, has convincingly testified that Mr. Agapitov had an affirmative approach in fighting against doping and in restructuring the governance of the IWF.

As such, in the opinion of the Panel, the withdrawal of Mr. Agapitov's accreditation does not actually serve the purpose pursued by the IOC and could even be perceived as counterproductive in that respect.

Therefore the CAS Ad Hoc Panel decides on 24 July 2021:

1. The application filed by Mr Maxim Agapitov 21 July 2021 is admissible and upheld.
2. The decision of the IOC to withdraw the accreditation of Mr. Maxim Agapitov is set aside.
3. The accreditation delivered to Mr. Maxim Agapitov in June 2021 for the Games of the XXXII Olympiad in Tokyo shall be reinstated in full.

CAS OG 18/05 Pavel Abratkiewicz, Victor Sivkov, Anna Vychik, Evgeny Zykov, Anatoly Chelyshev, Danil Chaban, Konstantin Poltavets v. International Olympic Committee

• Multiple sports
  
• Non-inclusion of athletes in the list of athletes 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, coaches and support staff was challenged by the 7 applicants before the CAS (CAS 2017/A/5492). 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 7 Russian applicants were not invited to participate in the 2018 PyeongChang Olympic Winter Games on the fact that they are associated with athletes who have been sanctioned by the Oswald Commission.
Hereafter on 7 February 2018 the 6 Russian applicants filed an application with the CAS Ad Hoc 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 7 applicants became aware of their non-selection. Because this was well before the 10 days before the Opening Ceremony the Panel has no jurisdiction de deal with the application.

Therefore the CAS Ad Hoc Division concludes on 9 February 2018 it does not have jurisdiction the hear the Application of the 7 Russian applicants filed on 7 February 2018.

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.

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.