Arbitrage Chambre ad hoc du TAS (JO Londres) 12/009 Nour-Eddine Gezzar c. Fédération Française d’Athlétisme (FFA)

CAS OG 12/09 M. Nour-Eddine Gezzar & Féderation Française d'Athlétisme (FFA)

• Athletics (middle distance)
• Request for suspension of the contested decisions and readmission to the Olympic Games
• Competence rationae personae of CAS
• Conditions for suspension of the execution of a sanction rationae personae vis-à-vis these entities

1. National Federations sending their athletes to the Olympic Games are subjected to the provisions of the Olympic Charter, including the arbitration clause therein. The National Olympic Committees (NOCs) and the International Federations (IFs) are also subjected to the Olympic Charter. As a consequence, the CAS Ad Hoc Division is competence rationae personae vis-à-vis these entities.

2. In order to decide whether or not to suspend the execution of a sanction, the following should be taken into consideration:

• (i) Whether the plaintiff is liable to serious and irreparable damage;
• (ii) When the plaintiff establish prima facie reasonable chances of success; and
• (iii) When interest prevails of the plaintiff liable to damage over the party that is liable to maintain the status quo.

These conditions are in principle cumulative, however CAS must have the necessary latitude to assess the overall situation using the above three criteria, while it is not necessary or useful to provide strict conditions which could create more difficulties than the actual legal certainty.

The ad hoc Division of the Court of Arbitration for Sport (CAS) rejected the urgent application filed by the French runner Nour-Eddine Gezzar (3000m steeple) who was challenging the provisional suspension which had been imposed on him by the French Athletics Federation (FFA) further to a positive doping test with EPO at the French Championships on 17 June 2012.

The decision of temporary suspension was issued by the FFA on 12 July 2012 and confirmed on 25 July 2012, then was confirmed again by the IAAF on 27 July 2012, which immediately extended it at the international level. Nour-Eddine Gezzar had been then removed from the French Athletics team for the London Olympics and his accreditation had been removed by the French NOC.

The athlete contended that some errors have been committed during the anti-doping control procedure and requested to be readmitted in the start list of the 3000m steeplechase heats of 3 August 2012.

The CAS Panel concludes that the athlete did not provide sufficient elements to persuade the Panel to lift the provisional suspension pronounced by the FFA and confirmed by the IAAF.
Therefore on 3 August 2012 the CAS Panel decides to reject the application of Nour-Eddine Gezzar,

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.

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 16/11 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 16/12 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.

CAS OG 16/13 Anastasia Karabelshikova & Ivan Podshivalov vs FISA & IOC

Related cases:
- FISA 2008 FISA vs Alexander Litvintchev, Evgeny Luzyanin & Ivan Podshivalov
January 14, 2008
- FISA 2008 FISA vs Anastasia Fatina & Anastasia Karabelshchikova
February 5, 2008

On 14 January 2008 the FISA Doping Hearing Panel decided to impose a 2 year period of ineligibility on the Russian rower Ivan Podshivalov and on 5 February 2008 the Panel imposed a 2 year period of ineligibility on the Russian rower Anastasia Karabelshikova for their anti-doping rule violations.

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".

On 25 July 2016, the FISA Executive Committee met to evaluate the conditions for participation established by the IOC and to comply with the IOC Decision. It issued conditions (the "FISA Statement") for the Russian rowers:

1.) A Russian rower must have 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.
2.) FISA considers a urine test, a blood test, or a urine and blood test or multiple tests taken on the same day to constitute one anti-doping test for this evaluation."

Additionally, the FISA Statement stated as follows: "The FISA Executive Committee underlines that the above evaluation does not mean that it has been established that the remaining entered rowers would have committed a doping offence, rather that they do not meet the conditions established by the IOC in their decision of 24 July 2016 for their entry to be accepted for the Rio 2016 Olympic Games.
The FISA Executive Committee decision was made as appropriate to the circumstances and based on the available information at the time, in the interests of the sport of rowing."

On 27 July 2016, the Russian Rowing Federation (RRF) was notified of the FISA Statement.
Hereafter on 2 August 2016 the two Russian rowers Anastasia Karabelshikova and Ivan Podshivalov appealed the IOC Decision and FISA Statement 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 FISA Statement of 25 July 2016 and to allow the rowers to participate to the Rio 2016 Olympic Games. IOC and FISA requested the Panel to reject the appeals.

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 sees no reason to depart from the line of CAS jurisprudence and determines that while it fully understands the exceptional circumstances that led the Executive Board to issue the IOC Decision, paragraph 3 results in an additional sanction. However this debate is largely moot, as the Panel finds that paragraph 3 does not respect the athletes' right of natural justice. In conclusion, the Panel determines that paragraph 3 of the IOC Decision is unenforceable, as it does not respect the rules of natural justice.

For the avoidance of doubt, the Panel supports the approach taken by the IOC at paragraph 2. As paragraph 3 is unenforceable, the Applicants should be considered by FISA pursuant to paragraph 2 of the IOC Decision to determine their eligibility or not without delay.

Therefore the Panel concludes that the appeals filed on 2 August 2016 shall be partially upheld and paragraph 3 of the IOC Executive Board's Decision dated 24 July 2016 is unenforceable.

The ad hoe Division of the Court of Arbitration for Sport decides on 4 August 2016:
1.) The application filed by Anastasia Karabelshikova and Ivan Podshivalov on 2 August 2016 is partially upheld.
2.) Paragraph 3 of the IOC Executive Board's Decision dated 24 July 2016 is unenforceable.
3.) All other prayers for relief are rejected.

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 16/19 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.