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World Sports Advocate
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Volume: 16 Issue: 2
(February 2018)

confusion caused cas ioc decisions russian athletes participation pyeongchang court arbitration sport (‘cas upheld 28 appeals partially upheld

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Confusion caused by CAS and IOC decisions on Russian athletes’ participation at Pyeongchang

The Court of Arbitration for Sport (‘CAS’) upheld 28 appeals and partially upheld the remaining 11 on 1 February 2018 in 39 of the 42 cases filed by Russian athletes against decisions taken by the International Olympic Committee’s (‘IOC’) Disciplinary Commission concerning alleged anti-doping rule violations (‘ADRV’) in relation to the Sochi 2014 Winter Olympic Games. The CAS found that in the 28 cases, the evidence collected was insufficient to establish that an ADRV was committed by the athlete concerned and as such their sanctions have been annulled and their individual results achieved in Sochi 2014 reinstated.

Following the decisions from the CAS, the Russian Olympic Committee (‘ROC’), which was suspended from participating in the 2018 Winter Olympics in Pyeongchang by the IOC due to the allegations relating to the systematic manipulation of Russia’s anti-doping system during Sochi 2014, made a request to the IOC that the 15 Russian athletes whose suspensions had been lifted by the CAS be invited to participate in Pyeongchang 2018. The Invitation Review Panel unanimously advised the IOC not to extend an invitation to the athletes requested despite the CAS ruling, as the full reasoning for the CAS decisions has not been made public yet and the Panel highlighted that its role was not to establish ADRVs, but to confirm that athletes can be considered clean for a potential invitation to the Pyeongchang Games. This application, as well as a further application filed by 32 Russian athletes against the IOC over its decision not to invite them to participate in Pyeongchang, was dismissed by the Ad hoc Division of the CAS on 9 February 2018, based on the consideration by the CAS that the process created by the IOC to establish an invitation list of Russian athletes to compete as Olympic Athletes from Russia was an eligibility decision rather than a sanction.

The press release accompanying the CAS decisions to uphold the appeal of 28 Russian athletes and partially uphold the remaining 11 stated that the CAS found that evidence put forward by the IOC, “did not have the same weight in each individual case,” and that in the 28 cases in which the athlete’s appeal was upheld “the evidence collected was found to be insufficient” to establish that an ADRV was committed by the athlete concerned. “This decision is not a surprise,” said Claude Ramoni, Partner at Libra Law. “The IOC was facing a true challenge to somehow ‘link’ the wrongdoings reported by Prof McLaren and Dr Rodchenkov with the acts of individual athletes deserving a sanction. In the case at hand, in the absence of a proper adverse analytical finding, there is no presumption of culpability; the IOC had the burden to prove the athletes’ involvement in order for an offence to be established.”

In its response to the CAS decisions the IOC commented that the confirmation of the ADRV for 11 athletes because of the manipulation of their samples “clearly demonstrates the existence of the systemic manipulation of the anti-doping system at the Olympic Winter Games Sochi 2014,” however the IOC “regrets very much that [...] the panels did not take this proven existence of the systemic manipulation of the anti-doping system into consideration for the other 28 cases. The CAS required an even higher threshold on the necessary level of evidence than the Oswald Commission and former CAS decisions.” The IOC went on to state that this may have a serious impact on the future fight against doping.

In its 5 February 2018 statement announcing its decision to decline the request by the ROC to invite 15 previously suspended Russians to Pyeongchang, the IOC stated that “While the Invitation Review Panel noted the CAS’s decision of 1 February 2018 […] its members observed that there were additional elements and/or evidence, which could not be considered by the IOC Oswald Commission because it was not available to it, that raised suspicion about the integrity of these athletes […] the decision of the CAS had not lifted the suspicion of doping or given the Panel sufficient confidence to recommend […] those 13 athletes could be considered as clean.”

“Several implications may be drawn,” notes Ramoni. “First, there are now three categories of athletes with respect to Russian doping cases; firstly, the ones who have been sanctioned and are serving a period of ineligibility; secondly, the ones who have not been sanctioned and are deemed ‘clean,’ and therefore are entitled to compete at the Olympic Games; and thirdly, the ones who have not been sanctioned, but who nevertheless are considered as being ‘suspicious’ and are therefore not invited to the Games. This is truly confusing; if anti-doping authorities have enough information against some individuals, they should immediately be provisionally suspended. If not, the concerned athletes should be deemed ‘clean’ and eligible. It is key for the credibility of Olympic sports that the eligibility of an athlete suspected of doping practices be answered in the same way for all sports and competitions. In other words, either an athlete is eligible, or they are not.”

The CAS Ad hoc Division’s decision to dismiss both the ROC’s request, as well as the application by 32 Russian athletes to overturn the IOC’s decision not to invite them to participate in Pyeongchang 2018, related to the CAS having deemed the IOC’s process to establish an invitation list of Russian athletes to compete as an eligibility decision rather than a sanction. “The subtle distinction between barring someone from competing (which would be a sanction) and not inviting them (which would then be a decision of eligibility) seems quite artificial,” adds Ramoni. “I also observe that the CAS Ad hoc Division only looked to the legality of the ‘process’ adopted by the IOC to invite athletes, but did not look into each individual case.”

“New information is coming out in relation to the Russian doping scandal, notably as the database from the Moscow laboratory has been transmitted to WADA,” said Ramoni. “There may well be new cases brought forward due to this new evidence. I believe that the best method moving forward is to follow pre-established rules, i.e. sanctioning athletes deserving a sanction and not sanctioning other athletes at all. I am convinced that athletes who have not been invited to Pyeongchang without having been sanctioned for a doping offence believe that they have been treated unfairly. It is quite awkward for an athlete to be eligible to compete at the highest level for the whole season in their sport and then not be invited to the Olympic Games.”

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