CAS OG 18/02 Victor Ahn, Vladimir Grigorev, Anton Shipulin, Evgeniy Garanichev, Ruslan Murashov, Ekaterina Shikhova, Sergei Ustyugov, Ksenia Stolbova, Ekaterina Urlova-Percht, Maksim Tcvetkov, Irina Uslugina, Yulia Shokshueva, Daria Virolainen, Dmitri Popov, Roman Koshelev, Mikhail Naumenkov, Alexei Bereglasov, Valeri Nichushkin, Anton Belov, Sergei Plotnikov, Evgeniya Zakharova, Ruslan Zakharov, Anna lurakova, Alexey Esin, Yulia Skokova, Elizaveta Kazelina, Sergey Gryaztsov, Ivan Bukin, Denis Arapetyan, Artem Kozlov, Gleb Retivikh, Alexey Volkov 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 established 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 evidence 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 2018 Olympic Winter 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 18/02 the 32 athletes requested the Panel to order the IOC to invite each of the applicants 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 is hightly discriminatory. They stated that they have never committed 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. They argued that the lack of transparency in the selection process makes it impossible to rebut the allegations against them.

The IOC:
a.) The IOC's contended 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 Victor Ahn, Vladimir Grigorev, Anton Shipulin, Evgeniy Garanichev, Ruslan Murashov, Ekaterina Shikhova, Sergei Ustyugov, Ksenia Stolbova, Ekaterina Urlova-Percht, Maksim Tcvetkov, Irina Uslugina, Yulia Shokshueva, Daria Virolainen. Dmitri Popov, Roman Koshelev, Mikhail Naumenkov, Alexei Bereglasov, Valeri Nichushkin, Anton Belov, Sergei Plotnikov, Evgeniya Zakharova, Ruslan Zakharov, Anna lurakova, Alexey Esin, Yulia Skokova, Elizaveta Kazelina, Sergey Gryaztsov, Ivan Bukin, Denis Arapetyan, Artem Kozlov, Gleb Retivikh, Alexey Volkov on 6 February 2018 is dismissed.

CAS ad hoc Division (OG Rio) 16/025 World Anti Doping Agency (WADA) v. Narsingh Yadav & National Anti-Doping Agency (NADA)

• Wrestling
• Doping (metandienone)
• Time when the dispute arises
• Dispute “in connection with” the Olympic Games
• Type and weighing of evidence

1. When WADA is challenging with the ad hoc Division the decision of a national anti-doping organisation’s anti-doping body to exonerate an athlete from the charges of violating the anti-doping rules of the national anti-doping organisation, it is the day of that decision that triggers the time when the dispute arises. It is not the date of the out-of-competition testing that led to the decision or of the decision to provisionally suspend the athlete.

2. The decision to exonerate an athlete from the charges of violating the anti-doping rules of the national anti-doping organisation and to allow him or her to participate in the Olympic Games is clearly “in connection with” the Olympic Games.

3. A CAS panel can accept both circumstantial evidence and witness evidence and, indeed, other evidence, but it is for the panel to determine what weight to attach to all the evidence before it and the panel can only be guided by the evidence proffered by each party in support of its case.

Mr. Narsingh Yadav is an Indian Athlete qualified to compete the 74 kg Men's Free Style Wrestling event at the Rio 2016 Olympic Games.

On 15 July 2016 the India National Anti-Doping Agency (INADA) has reported an anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance Metandienone.

After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Indian Anti-Doping Disciplinary Panel (ADDP). The Athlete's food and supplements were tested without result and he filed a complaint with the police alleging he has been the victim of sabotage.

The Athlete Narsingh Yadav had an ongoing issue with his wrestling competitor and rival Sushil Kumar. The Athlete asserted, sustained by witnesses, that Mr. Jithesh (a junior wrestler and member of Kumar's entourage) attempted in June 2016 to contaminate the food in the kitchen of his team.
Also in June 2016 Mr. Sushil Kumar's appeal was dismissed by the High Court of Delhi against Mr. Yadav's selection for the Rio 2016 Olympic Games. Later in June 2016 the Athlete alleged that Mr. Jithesh had contaminated his energy drink.

Considering the circumstances in this case the Indian ADDP Panel convened 4 hearings before the Panel ruled that there is no fault or negligence on his part due to the Athlete being the victim of sabotage done by a competitor. Therefore the ADDP decided on 1 August 2016 for the acquittal of the Athlete.

Hereafter on 13 August 2016 the World Anti-Doping Agency (WADA) appealed the ADDP decision of 1 August 2016 with the CAS Ad Hoc Division in Rio. After a provisional suspension was ordered the Athlete and INADA filed evidence with affidavits in their defence.

WADA requested the CAS Panel to to set aside the Indian ADDP decision of 1 August 2016 and to impose a 4 year period of ineligibility on the Athlete. The Athlete argued that he is the victim of sabotage because one of the Athlete's competitor mixed the prohibited substance in his drink in June 2016.

The Panel finds that due to the positive test results the Athlete has committed an anti-doping rule violation. The Panel rules that the Athlete had failed to satisfy his burden of proof and the Panel was satisfied that the most likely explanation was that the Athlete simply and intentionally ingested the prohibited substance in tablet form on more than one occasion.

Therefore the CAS Ad Hoc Division Panel decides on 21 Augustus 2016:

1.) The ad hoe Division of the Court of Arbitration for Sport has jurisdiction to hear the application filed by the World Anti-Doping Agency on 13 August 2016.

2.) The application filed by the World Anti-Doping Agency on 13 August 2016 is partially upheld.

3.) The decision rendered by the Anti-Doping Disciplinary Panel of the National Anti-Doping Agency on 1 August 2016 is set aside.

4.) Mr Narsingh Yadav is sanctioned with a four-year ineligibility period starting today. Any period of provisional suspension or ineligibility effectively served by Mr Narsingh Yadav before the entry into force of this award shall be credited against the total period of ineligibility to be served.

5.) All competitive results obtained by Mr Narsingh Yadav from and including 25 June 2016 are disqualified, with all resulting consequences (including forfeiture of medals, points and prizes).

6.) All other motions or prayers for relief are dismissed.

CAS OG 16/24 Darya Klishina vs IAAF

In November 2015, the World Anti-Doping Agency (WADA) Independent Commission issued a detailed report upholding allegations about systemic, state-sponsored doping in Russian track & field.

Based on findings the IAAF Council decided on 13 November 2015 to order a provisional suspension of the All Russian Athletics Federation (ARAF) and on 17 June 2016 the IAAF Council decided that ARAF remains suspended, with the result that its athletes remain ineligible to compete in international competitions.

Also on 17 June 2016, the IAAF Council also resolved to adopt IAAF Competition Rule 22.1A (the Rule) and delegated authority to a Doping Review Board (DRB) to consider applications made by athletes affiliated to RusAF for exceptional eligibility pursuant to the Rule to compete in international competitions notwithstanding RusAF's continued suspension from membership of the IAAF.

On 28 June 2016, the Russian Athlete Darya Klishina applied to the IAAF to restore her eligibility pursuant to the Rule.
On 9 July 2016, the DRB accepted the Applicant's application under the Rule for exceptional eligibility to compete in international competitions, including the Athletics competition in the Rio 2016 Olympic. The Athlete was found eligible to compete in an individual capacity as a Neutral Athlete.

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.

As a consequence of the findings in the McLaren Report the DRB revoked on 10 August 2016 (and issued on 12 August 2016) to its previous grant of exceptional eligibility pursuant to the First Decision and decided (the Second Decision) that the Athlete Darya Klishina was "not eligible to compete at or otherwise take part in International Competitions, including the athletics competition at the 2016 Olympic Games".

The DRB found that, within a relevant period of time defined to be between 1 January 2014 to date, there was evidence in an affidavit sworn by Professor McLaren on 7 August 2016 (the McLaren Affidavit) that the Athlete had been directly affected and tainted by the State-organised doping scheme described in the McLaren Report. The evidence also recorded that some samples of the Applicant had been subject to the methods described in the McLaren Report.

After invitation the Athlete submitted on 8 August 2016 her comment on the McLaren Report and she was requested to comment on the McLaren Affidavit.

Hereafter on 13 August 2016 the Athlete appealed the DRB’s Second Decision of 12 August 2016 with the CAS Ad Hoc Division in Rio de Janeiro. The Athlete requested the CAS Panel to set aside the IAAF’s Second Decision and to allow the Athletes to participate to the Rio 2016 Olympic Games.

The Athlete argued that she had been subject to a fully adequate system outside of Russia for "a sufficiently long period", determined by the DRB to be since 1 January 2014, to satisfy the criteria of the Rule. This involved being subject to drug testing out of Russia.

She has been training in the United States since October 2013 and has been a permanent resident of the United States since March 2014. She says that she has been tested "almost exclusively outside Russia". Her tests, as shown on ADAMS, support this.

Considering the circumstances and the evidence the Panel finds that the Athlete has not established a basis for concluding that the DRB, which expressly reserved the right to reconsider its decision if new evidence was brought to its attention, was precluded from that course. The Athlete has not explained why this was precluded as a matter of law. The Athlete says that the DRB did not expressly include in the heading that the decision was interim in nature but that was the effect of the decision.

Further, there is a right to revisit a decision where new facts and evidence, not previously available, are presented to the decision maker. Under Swiss law and the laws of many other countries, such a reversal is valid in law if new circumstances have arisen (or possibly have since come to light) which would have entitled the authority to refrain from issuing the original decision had the circumstances been known at the time of its issuance, or if the decision is not final when the new decision is to be taken.

Also the Panel finds that the Athlete was provided with sufficient opportunity to present her case to the DRB and now to the CAS Panel. She was not denied procedural fairness.

The Panel rules that the relevant question is not whether the athlete was affected by the Russian System, or how, or whether she had knowledge of the way in which the system worked. The question is whether she fulfilled the criteria of the Rule. If she could establish that she was outside the country and subject to the compliant drug testing as specified, the "affect or taint" that would otherwise follow from the failure of her National Federation would not apply.

This is not a reference to the "affect or taint" arising from specific information concerning testing of the athlete's samples. Indeed, the IAAF emphasised that this case did not concern doping but concerned eligibility. Further, the IAAF did not assert that the evidence established that the Applicant had engaged in doping or other wrongful actions within the Russian System. The conclusion follows that the Athlete’s application should be upheld.

Therefore the CAS Ad Hoc Division Panel decides on 16 August 2016:

1.) The application filed on 13 August 2016 by Ms Darya Klishina is upheld.

2.) The decision issued on 10 August 2016 by the Doping Review Board of the IAAF to revoke its previous grant of exceptional eligibility to Ms Darya Klishina is set aside.

3.) Darya Klishina remains eligible to compete in international competitions, including the Olympic Games 2016, pursuant to the IAAF regulations.

CAS OG 16/23 Ihab Abdelrahman vs Egyptian NADO

Related case:
CAS 2017_A_5016 Ihab Abdelrahman vs WADA & EGY-NADO
December 18, 2017

Mr. Ihab Abdelrahman is an Egyptian Athlete qualified to compete in the javeling throw event at the Rio 2016 Olympic Games.

On 20 July 2016 the Egyptian Anti-Doping Organization (EGY-NADO) has reported an anti-doping rule violation against the Athlete after his A sample tested positive for the prohibited substance testosterone.
After notification a provisional suspension was ordered and the Athlete requested analysis of the B sample which was scheduled on 30 August 2016 due to the Barcelona laboratory being closed during the summer holidays.

Because of the provisional suspension and the pending analysis of his B sample Athlete appealed his suspension with the CAS Ad Hoc Division in Rio.
The Athlete requested the CAS Panel for suspension of the ineligibility period; lift of the provisional suspension until the analysis results of the B Sample were available; and to allow him to compete at the Rio 2016 Olympic Games. EGY-NADO submitted that it was bound by the provisions of the World Anti-Doping Code and requested the Panel to reject the appeal.

The Panel finds that the sole issue for this Panel is to determine whether the Athlete has established a legal basis for the lifting of the provisional suspension. In the Panel’s view, he has not. In assessing the remedy sought by the Athlete, the Panel must consider factors including the Athlete’s reasonable chance of success on appeal following the testing of the B sample, irreparable harm and the balance of interests.

The Panel also finds that the substantial delay between the date of B-sample testing and the communication of the results, while unfortunate for the Athlete, is not unusual in view of the case load of the various laboratories and the complexity of the analysis. Even though it is preferable that the time between the taking of the sample and its analysis be a short one, the Panel also notes that the Athlete was able to compete during that time period. The Panel does not ignore that the specific time line in this case (notification of the AAF shortly before the Rio Olympic Games) made it difficult for the Athlete to defend his case. However, this aspect in relation to the competition schedule and the delay in the analysis of the sample, in and of itself, is not a sufficient reason to stay or suspend the mandatory provisional suspension.

Therefore the CAS Ad Hoc Division Panel concludes that the Athlete has not met the requirements to lift the provisional suspension and decides on 16 August 2016 to dismiss the appeal.

CAS OG 16/21 Elena Anyushina & Elexey Korovashkov v. ICF & RCF

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. Also Professor McLaren provided specific pieces of evidence related to the two Athletes and he filed an affidavit in this case with the CAS Ad Hoc Division.

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 findings in the McLaren Report and the IOC Decision the ICF decided on 26 July 2016 to impose an immediate suspension on five Russian Canoe Sprint athletes, including the athletes Elena Anyushina and Alexey Korovashkov, and removed them from the Rio 2016 Olympic Games.

Hereafter on 6 August 2016 the two Russian Athletes appealed the ICF decision with the CAS Ad Hoc Division in Rio.

On 9 Augustus the ICF submitted that due to additional information about the athlete Elena Ayushina’s samples and the need for further investigation the ICF had agreed to withdraw the athlete’s suspension. Therefore the Athlete is eligible to compete at de Rio 2016 Olympic Games should she meet the IOC’s requirements on anti-doping testing and that the ROC select her.
On 11 August 2016 the IOC confirmed that the Athlete Elena Ayshina was eligible to compete at the Rio 2016 Olympic Games and she withdrew her application with CAS.

The other Russian Athlete Alexey Korovashkov requested the CAS Panel to set aside the ICF decision of 25 July 2016; to allow him to compete at the Rio 2016 Olympic Games; and he filed several arguments in his defence.
The ICF requested the Panel to dismiss the Athlete’s appeal.

The Panel notes that it refers generally to the reasons for the decisions rendered in the procedures CAS OG 16/04, CAS OG 16/13 and CAS OG 16/19 (the earlier CAS decisions), with which this Panel agrees.
As has been stated in the earlier CAS decisions, it is accepted that the IOC has acted at all times in good faith. In the present case, the findings in the McLaren Report have not been challenged.

Considering the Athlete’s arguments the CAS Panel concludes that the Athlete failed to establish a basis for setting aside the ICF decision that he is ineligible to compete at the Rio 2016 Olympic Games.

Therefore on 11 August 2016 the CAS Ad Hoc Division Panel decides:
1.) The application filed on 6 August 2016 by Ms. Elena Anyushina is deemed withdrawn.
2.) The application filed on 6 August 2016 by Mr. Alexey Korovashkov is dismissed.

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 16/19 Natalia Podolskaya & Alexander Dyachenko vs ICF

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 findings in the McLaren Report and the IOC Decision the International Canoe Federation (ICF) decided on 25 July 2016 to impose an immediate suspension on five Russian Canoe Sprint athletes, including the Athletes in this case, and removed them from the Rio 2016 Olympic Games.

Hereafter on 4 August 2016 the two Russian Athletes appealed the ICF decision with the CAS Ad Hoc Division in Rio de Janeiro. The Athlete requested the CAS Ad hoc Division Panel to set aside the ICF decision of 25 July 2016 and to allow the athletes to participate to the Rio 2016 Olympic Games. ICF requested the Panel to reject the appeal.

On 5 August 2016, pursuant to directions made by the Ad Hoc Division Professor McLaren submitted an affidavit in this proceeding about the Disappearing Positive Metholology by the Moscow Laboratory, the Sochi Laboratory and the Ministry of Sport. Professor McLaren stated that in July and August 2013 the Athletes’ samples tested positive in the Moscow Laboratory. Afterwards the test results were reviewed and labelled as “SAVE” cases and reported as negative in ADAMS.

The CAS Panel notes that the Athletes did not submit any evidence to the Panel by way of affidavit with respect to the issue of natural justice, or submit that they were denied procedural fairness by the Panel. Further, as the Panel put to the Athletes at the hearing, they did not seek an adjournment of the hearing in order to obtain evidence, although the events in which the Athletes seek to participate are not imminent and relevant decisions by the ICF as to entry are not to be taken for approximately one week.

The Panel is satisfied that the IOC acted in good faith and with the best of intentions and that the criteria for eligibility as set out in that decision, and as subsequently clarified by the IOC, were warranted in light of the McLaren Report and its timing with respect to the Rio 2016 Olympic Games.

Considering the Athlete’s arguments the Panel finds that the Athletes have not been denied natural justice or procedural fairness and arguments about the Osaka Rule are misplaced. This is not a case where there has been a sanction for an ADRV and the IOC Executive Board has imposed an additional consequence of that ADRV, or even proceedings for an ADRV. Here, there has been a decision as to eligibility of the Athletes and that decision is within the power of the IOC.

The Panel notes that this conclusion, that the present matter concerns the eligibility of the athletes and the need for the athlete to overcome "an additional hurdle" to be permitted to compete, and not an impermissible sanction, is consistent with the conclusion of the Panel in CAS OG 16/12.

Considering the findings in the McLaren Report and the IOC Decision the Panel finds that the ICF was entitled to conclude that the Athletes failed to meet the IOC criteria in paragraph 2.
That conclusion has been reinforced by the evidence made available to the Panel by Professor McLaren. That conclusion is justified on the standard of comfortable satisfaction, that is, to a higher standard than the balance of probabilities.

The Athletes argued that they have never been sanctioned for an ADRV and that their samples have been tested with negative results as reported in ADAMS. However the Panel finds that this outcome, following a positive screen, is precisely the consequence of the system described in the McLaren Report was applied to the Athletes, as set out in the evidence relating specifically to the Applicants as set out in Professor McLaren's affidavit.

The Panel concludes that the Athletes have been implicated in the State-sponsored Antidoping scheme as described in the McLaren Report and they do not satisfy the eligibility criteria as set out in the IOC Executive Board Decision.

Therefore the CAS Ad Hoc Division Panel decides on 8 August 2016 that the application by Natalia Podolskaya and Alexander Dyachenko is dismissed.

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.