Russian doping scandal
From Advocatespedia, The Law Encyclopedia
The Russian doping scandal that rocked the sporting world during the past 2 years is far from over. The World Anti-Doping Agency (WADA) is still in turmoil over its failure to discover the Russian doping scheme and the International Olympic Committee (IOC) and other Sports Governing Bodies (SGBs) are still struggling to find the appropriate response to Russia’s disregard of the spirit and letter of the World Anti-Doping Code (WADC). Yet the recent publications of a string of awards related to the scandal by the Court of Arbitration for Sport (CAS) provide us with the opportunity to offer some preliminary reflections on the role of the CAS in dealing with the consequences of the scandal for the world anti-doping system at large.
|Russian doping scandal|
Since December 2014, and the broadcasting of an alarming documentary by the German public broadcaster,1 much happened. The documentary triggered the Pound investigation financed by the WADA,2 which led to two damaging reports for the Russian anti-doping system and the International Association of Athletics Federations (IAAF).3 Yet, this was only the beginning. Shortly after, the former head of Moscow’s anti-doping laboratory provided a detailed sketch to the New York Times of the operation of a general state-led doping scheme in Russia.4 The system was designed to avert any positive doping tests for top-level Russian sportspeople and was going far beyond athletics. These allegations were later largely confirmed and reinforced by the McLaren investigation initiated by WADA in May 2016,5 and which led to the publication of a first report in July 2016 shortly before the Rio Olympics.6 The second and final report of the McLaren investigation was released in December 2016.7 Based on this influx of information and investigations, the facts are relatively straightforward: the Russian state organized a fail-proof system to protect ‘its’ athletes from failing anti-doping tests. Thus, as the IOC’s litany of retroactive decisions sanctioning Russian Olympic medallists for past anti-doping violations demonstrate, it secured the success of its athletes in recent Olympiads. The revelation of such a sophisticated state-led system to circumvent the world anti-doping system could not be left unsanctioned. Otherwise, the WADC would be deprived of the little efficacy it had left. Hence, the IAAF, first, and subsequently the IOC (even though in an indirect fashion as will be explained in section II) and the International Paralympic Committee (IPC) issued sanctions against their Russian members and, thus, indirectly also against Russian athletes.
The IAAF quickly suspended the Russian Athletics Federation in November 2015 and declared its athletes ineligible for IAAF competitions. This controversial decision was later confirmed in June 2016 before the Rio Olympics, and barred Russian athletes access to the Olympic Games. The IAAF did, however, foresee a narrow exception for Russian athletes able to show that they were properly tested outside of Russia. Nonetheless, the athletes using this exception were to compete under a neutral flag at the Olympics. Unsurprisingly, Russian athletes led by pole superstar (and now IOC member), Yelena Isinbayeva, and the Russian Olympic Committee decided to challenge this decision in front of the CAS. Unlike the IAAF, the IOC’s decided not to decide on 24 July 2016 and, instead, granted to the International Federations (IFs) the competence to determine whether each Russian athlete put forward by the Russian Olympic Committee (ROC) to participate in the Olympics meets a limited set of conditions.8 Moreover, the ROC was also barred from entering athletes who were sanctioned for doping in the past, even if they have already served their doping sanction. In the end, a majority of the Russian athletes (278 out of 389 submitted by the ROC9) cleared the IOC’s bar relatively easily. However, this also meant that a considerable number of Russian athletes (111) did not fulfil the IOC’s conditions, leading many of them to fight for their right to compete at the Rio Olympics before the CAS ad hoc Division.10
Finally, on 22 July, the IPC decided to open suspension proceedings against the National Paralympic Committee of Russia (NPC Russia) in light of its apparent inability to fulfil its IPC membership responsibilities and obligations.11 A few weeks later, on 7 August, the IPC Governing Board decided to suspend the Russian Paralympic Committee with immediate effect.12 Consequently, the Russian Paralympic Committee lost all rights and privileges of IPC membership. Specifically, it was not entitled to enter athletes in competitions sanctioned by the IPC, and/or to participate in IPC activities. This was an obvious blow to Russia’s Paralympic team and, as was to be expected, the RPC decided to challenge the decision at the CAS.
Thereafter, the CAS became the central legal playing field where the cases involving decisions of the SGBs due to the Russian doping scandal were challenged and fought on.13 Henceforth, it also had the future shape of the world anti-doping system in its hands. Would it favour the right of athletes to participate in the Olympics, and thus, weaken the effectiveness of the sanctions issued by the SGBs, and through them of the WADC? Or would it choose to uphold the sanctions, and risk depriving innocent Russian athletes from the once-in-a-life-time chance to shine at the Olympics? There is no easy answer to this delicate balancing exercise, and the CAS was up for a series of hard cases, which would define the operation of the world anti-doping system for years to come. In the end, as this article will show, the CAS sided with the tough stance adopted by some SGBs and decided that shoring up the world anti-doping system was worth depriving some of the Russian athletes from their Rio perch.
This article will analyse the CAS awards in a chronological order. It will start with the ‘IAAF Award’,14 before turning to the awards rendered by the CAS ad hoc Division in Rio,15 and finishing with the ‘IPC award’.16 The modest ambition of this paper is to retrace the reasoning used by the CAS panels and to analyse its broader consequences for the practical operation of the world anti-doping system.
- 1 DEFINITION
- 2 HISTORY
- 3 Public reaction turned against such trials, whether individual races or in teams of two. One report said:
- 4 Events
- 5 DOPING ISSUE
- 6 Why is Russia's Olympic Committee banned?
- 7 The Russian doping scandal at the CAS ad hoc Division
- 8 On being implicated under the IOC Decision
- 9 What else has the IOC ruled?
- 10 Other decisions:
- 11 How has Russia reacted?
- 12 Other reaction
- 13 RELEVANT CASES
- 14 REFERENCE
In competitive sports, doping is the use of banned athletic performance-enhancing drugs by athletic competitors. The term doping is widely used by organizations that regulate sporting competitions. The use of drugs to enhance performance is considered unethical, and therefore prohibited, by most international sports organizations, including the International Olympic Committee. Furthermore, athletes (or athletic programs) taking explicit measures to evade detection exacerbates the ethical violation with overt deception and cheating.
Doping is a phenomenon that occupies a particular place in high performance sport. The use of doping contradicts to the basic principles of sport, ideals, and values of the philosophy of Olympism. It is quite natural that the International Olympic Committee for more than half a century has fought against this phenomenon, and, in 1999, initiated the establishment of the World Anti-Doping Agency (WADA), a special international organization designed to fight doping, particularly on the World Olympic stage. However, the Agency’s years-long effort, along with the constantly increasing legal, financial, and human capabilities, continuous improvement and revision of main documents, active information and propaganda activities, expansion and tightening of sanctions not only have not solved the issue of the fight against doping, but have made it more severe. The number of doping scandals and acute conflicts in various Olympic sports only increase, charges and penalties may be imposed not only on the athletes, but also on the coaches, physicians, attendants, and officials. The UN, UNESCO, Council of Europe, leaders and high-ranking representatives of legislative and governmental bodies of many countries are involved in the issue. In the media, doping scandals overshadow the sporting events itself that adversely affects the credibility and popularity of the Olympics and compromises the Olympic movement in public consciousness by associating it with widespread fraud and corruption.
Historically speaking, the origins of doping in sports go back to the very creation of sport itself. From ancient usage of substances in chariot racing to more recent controversies in baseball and cycling, popular views among athletes have varied widely from country to country over the years. The general trend among authorities and sporting organizations over the past several decades has been to strictly regulate the use of drugs in sport. The reasons for the ban are mainly the health risks of performance-enhancing drugs, the equality of opportunity for athletes, and the exemplary effect of drug-free sport for the public. Anti-doping authorities state that using performance-enhancing drugs goes against the "spirit of sport". The use of drugs in sports goes back centuries, about all the way back to the very invention of the concept of sports. In ancient times, when the fittest of a nation were selected as athletes or combatants, they were fed diets and given treatments considered beneficial to help increase muscle. For instance, Scandinavian mythology says Berserkers could drink a mixture called "butotens", to greatly increase their physical power at the risk of insanity. One theory is that the mixture was prepared from the Amanita muscaria mushroom, though this has been disputed.
The ancient Olympics in Greece have been alleged to have had forms of doping. In ancient Rome, where chariot racing had become a huge part of their culture, athletes drank herbal infusions to strengthen them before chariot races.
More recently, a participant in an endurance walking race in Britain, Abraham Wood, said in 1807 that he had used laudanum (which contains opiates) to keep him awake for 24 hours while competing against Robert Barclay Allardyce. By April 1877, walking races had stretched to 500 miles and the following year, also at the Agricultural Hall in Islington, London, to 520 miles. The Illustrated London News chided:
It may be an advantage to know that a man can travel 520 miles in 138 hours, and manage to live through a week with an infinitesimal amount of rest, though we fail to perceive that anyone could possibly be placed in a position where his ability in this respect would be of any use to him [and] what is to be gained by a constant repetition of the fact.
The event proved popular, however, with 20,000 spectators attending each day. Encouraged, the promoters developed the idea and soon held similar races for cyclists. "...and much more likely to endure their miseries publicly; a tired walker, after all, merely sits down – a tired cyclist falls off and possibly brings others crashing down as well. That's much more fun". The fascination with six-day bicycle races spread across the Atlantic and the same appeal brought in the crowds in America as well. And the more spectators paid at the gate, the higher the prizes could be and the greater was the incentive of riders to stay awake—or be kept awake—to ride the greatest distance. Their exhaustion was countered by soigneurs (the French word for "carers"), helpers akin to seconds in boxing. Among the treatments they supplied was nitroglycerine, a drug used to stimulate the heart after cardiac attacks and which was credited with improving riders' breathing. Riders suffered hallucinations from the exhaustion and perhaps the drugs. The American champion Major Taylor refused to continue the New York race, saying: "I cannot go on with safety, for there is a man chasing me around the ring with a knife in his hand."
Public reaction turned against such trials, whether individual races or in teams of two. One report said:
An athletic contest in which the participants 'go queer' in their heads, and strain their powers until their faces become hideous with the tortures that rack them, is not sport, it is brutality. It appears from the reports of this singular performance that some of the bicycle riders have actually become temporarily insane during the contest... Days and weeks of recuperation will be needed to put the racers in condition, and it is likely that some of them will never recover from the strain.
The father of anabolic steroids in the United States was John Ziegler (1917–1983), a physician for the U.S. weightlifting team in the mid-20th century. In 1954, on his tour to Vienna with his team for the world championship, Ziegler learned from his Russian colleague that the Soviet weightlifting team's success was due to their use of testosterone as a performance-enhancing drug. Deciding that U.S. athletes needed chemical assistance to remain competitive, Ziegler worked with the CIBA Pharmaceutical Company to develop an oral anabolic steroid. This resulted in the creation of methandrostenolone, which appeared on the market in 1960. During the Olympics that year, the Danish cyclist Knud Enemark Jensen collapsed and died while competing in the 100-kilometer (62-mile) race. An autopsy later revealed the presence of amphetamines and a drug called nicotinyl tartrate in his system.
The American specialist in doping, Max M. Novich, wrote: "Trainers of the old school who supplied treatments which had cocaine as their base declared with assurance that a rider tired by a six-day race would get his second breath after absorbing these mixtures." John Hoberman, a professor at the University of Texas in Austin, Texas, said six-day races were "de facto experiments investigating the physiology of stress as well as the substances that might alleviate exhaustion."
On 18 July 2016, an independent investigation commissioned by World Anti-Doping Agency concluded that it was shown "beyond a reasonable doubt" that the RUSADA, the Ministry of Sport, the Federal Security Service (FSB) and the Centre of Sports Preparation of the National Teams of Russia had "operated for the protection of doped Russian athletes" within a "state-directed failsafe system" using "the disappearing positive [test] methodology." According to the McLaren Report, the Disappearing Positive Methodology operated from "at least late 2011 to August 2015." It was used on 643 positive samples, a number that the authors consider "only a minimum" due to limited access to Russian records. Based on these finding the International Olympic Committee called for an emergency meeting to consider banning Russia from the Summer Olympics. On 24 July, the IOC rejected WADA's recommendation to ban Russia from the Summer Olympics and announced that a decision would be made by each sport federation. With each positive decision having to be approved by a CAS arbitrator. On 7 August 2016, the IOC cleared 278 athletes, while 111 were removed because of the scandal On 7 August 2016, the International Paralympic Committee announced that it had voted unanimously to ban the entire Russian Paralympic team from competing in the 2016 Summer Paralympics, in the wake of a larger scandal that exposed the participation of Russian Olympic and Paralympic athletes in a state-sponsored doping program.
On 8 December 2016, silver medalist Misha Aloyan was found to have committed an anti-doping rule violation after testing positive for Tuaminoheptane, a specified stimulant, prohibited in-competition under S6 on the WADA Prohibited List, during an in-competition doping control on 21 August 2016. The results obtained by the athlete in the Rio 2016 Olympic Games were disqualified. On 9 December 2016, Canadian lawyer Richard McLaren published the second part of his independent report. The investigation found that from 2011 to 2015, more than 1,000 Russian competitors in various sports (including summer, winter, and Paralympic sports) benefited from the cover-up. Emails indicate that they included five blind powerlifters, who may have been given drugs without their knowledge, and a fifteen-year-old.
Media attention began growing in December 2014 when German broadcaster ARD reported on state-sponsored doping in Russia, comparing it to doping in East Germany. In November 2015, the World Anti-Doping Agency (WADA) published a report and the International Association of Athletics Federations (IAAF) suspended Russia indefinitely from world track and field events. The United Kingdom Anti-Doping agency later assisted WADA with testing in Russia. In June 2016, they reported that they were unable to fully carry out their work and noted intimidation by armed Federal Security Service (FSB) agents. After a Russian former lab director made allegations about the 2014 Winter Olympics in Sochi, WADA commissioned an independent investigation led by Richard McLaren. McLaren's investigation found corroborating evidence, concluding in a report published in July 2016 that the Ministry of Sport and the FSB had operated a "state-directed failsafe system" using a "disappearing positive [test] methodology" (DPM) from "at least late 2011 to August 2015"
In response to these findings, WADA announced that RUSADA should be regarded as non-compliant with respect to the World Anti-Doping Code and recommended that Russia be banned from competing at the 2016 Summer Olympics. The International Olympic Commission (IOC) rejected the recommendation, stating that the IOC and each sport's international federation would make decisions on each athlete's individual basis. One day prior to the opening ceremony, 278 athletes were cleared to compete under the Russian flag, while 111 were removed because of doping. In contrast, the entire Kuwaiti team was banned from competing under their own flag (for a non-doping related matter). Unlike the IOC, the International Paralympic Committee voted unanimously to ban the entire Russian team from the 2016 Summer Paralympics and suspended the Russian Paralympic Committee, having found evidence that the DPM was also in operation at the 2014 Winter Paralympics. The IOC's decision on 24 July 2016 was widely criticized by both athletes and writers, as well as members of the Olympic Committee. WADA's president Craig Reedie said, "WADA is disappointed that the IOC did not heed WADA's Executive Committee recommendations that were based on the outcomes of the McLaren Investigation and would have ensured a straight-forward, strong and harmonized approach." On the IOC's decision to exclude Stepanova, WADA director general Olivier Niggli stated that his agency was "very concerned by the message that this sends whistleblowers for the future." A member of the IOC Athletes' Commission, Hayley Wickenheiser, wrote, "I ask myself if we were not dealing with Russia would this decision to ban a nation [have] been an easier one? I fear the answer is yes". Writing for Deutsche Welle in Germany, Olivia Gerstenberger said that the head of the IOC, Thomas Bach had "flunked" his first serious test, adding, "With this decision, the credibility of the organization is shattered once more, while that of state-sponsored doping actually receives a minor boost". Bild (Germany) described Bach as "Putin's poodle".
The positive evaluation of every eligible participant is to be confirmed by a CAS arbitrator, which is "independent from any sports organization involved in the Olympic Games Rio 2016". On 30 July 2016, the IOC specified that following each federation's positive evaluation and its arbitration approval, a three-person IOC panel would be making the final decision. Originally Russia submitted a list of 389 athletes for competition. On 7 August 2016, the IOC cleared 278 athletes, while 111 were removed because of the scandal.
Why is Russia's Olympic Committee banned?
This entire investigation was instigated by whistleblowing doctor Grigory Rodchenkov, who was director of Russia's anti-doping laboratory during Sochi 2014. He alleged the country ran a systematic programme of doping and claimed he had created substances to enhance athletes' performances and switched urine samples to avoid detection. The World Anti Doping Agency (Wada) enlisted the services of Canadian law professor and sports lawyer Dr Richard McLaren to look into the allegations. The McLaren report concluded 1,000 athletes across 30 sports benefitted from the doping programme between 2012 and 2015. Wada obtained what it said was a Russian laboratory database which it felt corroborated McLaren's conclusions, while re-testing of Russian athletes' samples resulted in a host of retrospective bans and stripping of medals. Last week, another IOC commission, led by Swiss lawyer Denis Oswald, gave its full backing to evidence provided by Dr Rodchenkov.
The Russian doping scandal at the CAS ad hoc Division
Since it was first introduced at the Atlanta Games in 1996,80 the CAS ad hoc Division has never been as crowded as it was during this year’s Rio Olympics. This is mainly due to the Russian doping scandal, which has fuelled the CAS with Russian athletes challenging their ineligibility to compete at the Games. The CAS statistics show that out of 28 ad hoc awards rendered, 16 involved Russian athletes challenging their ineligibility. The following section will provide an analysis of the ten CAS awards related to Russian athletes.
On being implicated under the IOC Decision
The second, and by far largest, wave of complaints involved Russian athletes barred from the game under paragraph 2 of the IOC Decision.94 As will be explained in this section, the CAS sided with the Ifs’ tough stance on the Russian state-doping system. The first set of cases focussed on the definition of the word “implicated” in paragraph 2 of the IOC Decision. In this regard, on 2 August, the IOC sent a communication to the IFs aiming at providing some general guidelines .
What else has the IOC ruled?
As well as the Olympic Committee ban, the IOC has also decided to ban Russia's deputy Prime Minister and former Sports Minister Vitaly Mutko from all future Olympic Games. He is currently the lead organiser for the 2018 World Cup, which is being staged in Russia next summer. In his report to the IOC executive board, Schmid says Mutko, as the then minister for sport, "had the ultimate administrative responsibility for the acts perpetrated at the time". Responding to the report, Fifa said the IOC ruling had "no impact" on preparations for the World Cup. Football's world governing body added that it "continues to take every measure at its competitions to ensure football remains free from doping" and every player will be tested next summer and "the analysis of all doping samples will be carried out at Wada laboratories outside Russia".
• No accreditation for any official from the Russian ministry of sport for the Olympic Winter Games Pyeongchang 2018
• Former Deputy sports minister, Yuri Nagornykh, is excluded from any participation in all future Olympic Games
• Dmitry Chernyshenko, the former CEO of the organising committee Sochi 2014, is withdrawn from the Co-ordination Commission Beijing 2022
• ROC President Alexander Zhukov is suspended as an IOC member, given that his membership is linked to his position as ROC president
• The ROC is fined 15 million dollars (£11.2 million) to reimburse the costs of the investigations and to contribute to the establishment of the Independent Testing Authority (ITA)
• If Russia "respects and implements" what the IOC has called for, the sanctions may be lifted in time for the closing ceremony.
How can clean Russian athletes get to Pyeongchang?
The IOC will allow athletes from Russia to compete individually or as part of a team in South Korea, providing they wear an OAR uniform. The Olympic Anthem will be played in any ceremony. A specialist panel appointed by the IOC will decide whether an athlete can compete by following these rules:
• Athletes must have qualified according to the qualification standards of their respective sport
• Athletes must not have been disqualified or declared ineligible for any violation of anti-doping rules
• Athletes must have undergone all the pre-Games targeted tests recommended by the Pre-Games Testing Task Force
• Athletes must have undergone any other testing requirements specified by the panel to ensure a level playing field Action taken so far
• A total of 25 Russians have so far been banned from the Olympics for life on the recommendation of the IOC commission
• The first part of the McLaren report was published in July 2016, when Wada called on the IOC to ban Russia from the Rio Olympics
• The IOC decided against imposing a blanket ban, instead asking individual sporting federations to rule on their participation
• In total, 271 Russians competed in Rio
• Russia was banned from the Paralympics and remains banned from the 2018 Winter Paralympics.
Wada has not called again for the IOC to ban Russia, but recently declared that the country remains 'non-compliant' with its code. IAAF suspension for Russian athletes remains Russia 'not to blame' for Sochi scandal. The IPC will make public its decision on the potential participation of Russian athletes at the 2018 Winter Paralympics in London on 22 December.
How has Russia reacted?
President of the ROC, Alexander Zhukov, said there was positive and negative news from the IOC's decision. He welcomed the invitation for clean athletes to compete in South Korea but does not agree with the ruling that they must compete under a neutral flag. "If, as proposed, the temporary restrictions are lifted on the last day, then on the last day Russian athletes will compete under their flag with all the athletes from the rest of the world," he told reporters in Lausanne.He said a final decision on participation is still to be made.
Russian politicians and athletes were united in their condemnation of the IOC decision. The deputy chairman of Russian parliament's defence committee, Frants Klintsevich, said Russian athletes should not take part in the Olympics in 2018 if they are not allowed to compete under the national flag. "I don't know what Russia's decision will be in the end, but in my view, a great power can't go 'incognito' to the Olympics," state-owned RIA Novosti news agency reported him saying. Igor Morozov, another politician said "hybrid war" had been declared on Russia by the IOC decision. The head of Russia's speed-skating body Alexei Kravtsov said it should be down to the athletes themselves.
"My opinion is that every athlete should decide for themselves whether to take part under a neutral flag or not," R-Sport reported. "But there is an admittance procedure, and that in itself is humiliating." Russian bobsleigh federation president Alexander Zubkov said on Tuesday he was "shocked" by the decision.
Zubkov was stripped last month of the two gold medals he won at the 2014 Sochi Games and banned from the Olympics for life over alleged doping violations. Russian state broadcaster VGTRK has said it will not broadcast the winter Olympic games if the Russian team is not participating.
• Life on the run for Russian whistleblower
• GB bobsleigh team could get Sochi bronze
John Jackson, who led Great Britain's men's bobsleigh team in Sochi in 2014, and could now be awarded a bronze medal because of Russian doping bans thanked the IOC for the ruling.
CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko v. ICF
Podolskaya and Dyachenko are two canoeists from Russia who were suspended by the International Canoe Federation (ICF) and removed from the Rio Games, because they were deemed implicated in the IP Report. In an affidavit to the CAS, referred to in the award, Richard McLaren disclosed the facts that led to both athletes being considered implicated.
Regarding Podolskaya, McLaren indicated that he has retrieved electronic evidence that “reveals that on 31 July 2013 at 00:50 h, in contravention of the International Standard for Laboratories, the Moscow Laboratory reported to email address email@example.com that sample number 2780289, belonging to a female canoe athlete taken at the Russian Championships in Moscow, was suspected for EPO and further inquired what should be done.”96 In his quick response of 1 August 2013, Alexey Velikodniy, then vice-minister for sports, “communicated back to Laboratory that the sample number 2780289 belonged to Ms. Natalia Podolskaya and instructed the Laboratory to “SAVE”.”97 Similarly, as far as Dyachenko is concerned, the “electronic evidence reveals that on 5 August 2014 at 12:09 h, in contravention of the International Standard Laboratories, the Moscow Laboratory reported to Alexey Velikodniy that pre-departure sample number 2917734, collected at a Training Camp on 3 August 2014, contained a lot of trenbolone and a little methenolone. Alexey Velikodniy’s response to the laboratory on 6 August 2014 at 1%:26 [sic] was that sample number 2917734 from 3 August 2014 pre-departure test belonging to Mr Alexander Dyachenko, and on instruction from “llR”, should be a “SAVE”.”98 McLaren concluded that for both “Ms. Natalia Podolskaya and Alexander Dyachenko, the “SAVE” instruction signalled to the Laboratory that no further analytical bench work was to be done on the samples and the Laboratory filed a negative ADAMS report for each athlete.”99
In its assessment of the application of paragraph 2 of the IOC Decision by the ICF, the CAS Panel found that the “Applicants were among five athletes so [as implicated in the IP Report] named” and that the “ICF was entitled to conclude that the Applicants failed to meet the criteria in paragraph 2.”100 Moreover, this “conclusion has been reinforced by the evidence made available to the Panel by Professor McLaren” and “is justified on the standard of comfortable satisfaction.”101 The applicants, unsuccessfully, argued that they were never sanctioned for an anti-doping rule violation, and that the samples referred to in the IP Report cannot be tested anymore to prove their innocence. They also claimed that other contemporary samples returned negative and “that if they had used prohibited substances, all the tests would have returned positive.”102 Nonetheless, WADA pointed out that “due to the nature of the substances concerned and the timing of the provision of the samples, this cannot be concluded.”103 The Panel accepted “WADA’s submission, not contradicted by the Applicants, that there are explanations consistent with the Applicant’s assertion but also consistent with the taking of the prohibited substances at the relevant time.”104
Finally, the Russian applicants tried to fight their ineligibility under the implication criteria laid down in paragraph 2 of the IOC Decision by arguing that it was not compatible with natural justice.105 Nevertheless, the CAS refused to follow this line of reasoning. Instead, the Panel found that the “Applicants have challenged that decision in the CAS and have been given the opportunity to rebut that evidence”, thus they “have not been denied natural justice or procedural fairness.”106
CAS OG 16/12 Ivan Balandin v. FISA & IOC
Ivan Balandin is a rower from Russia who was declared ineligible to compete at the Rio Olympics by the World Rowing Federation (FISA) on 27 July 2016, due to his implication in the IP Report. More precisely, he appears in the Report as having been “saved” by the Russian Deputy Minister of Sport and his test was later reported as negative in the ADAMS system.118
The athlete first argued, as did Korovashkov, that this was an anti-doping sanction, which did not follow the appropriate procedure. WADA clarified “that the Athlete may yet face proceedings relating to an ADRV, however, the nature of these could yet to be determined [sic]”119 and added that the “matter at hand concerns eligibility for the Rio Games.”120 The Panel concurred and concluded that the “dispute at hand concerns the Athlete’s eligibility for the Rio Games alone.”121
The next question was whether Balandin was implicated in the IP Report. The Panel noted, as pointed out in the IOC letter from 2 August 2016, that a simple implication in the Report does not necessarily indicate that an athlete benefited from the state-doping scheme. In his defence, the athlete singled out that a date of collection was missing for the sample, in order to attack the validity of the information provided by McLaren. FISA responded that it had taken “the necessary steps to establish this date by calling UKAD.”122 Moreover, Richard McLaren revealed in his amicus curiae that “the exact date and times of the message from the Moscow Laboratory that the screen of the Athlete’s A sample revealed positive for the prohibited substance GW 1516 and the response from the Deputy Minister to change the positive into a negative, following the DPM.”123 In any event, the Panel was “satisfied that the information provided to FISA and the additional checks it took with UKAD, were sufficient to show the Athlete was “implicated” in this scheme.”124 The athlete was deemed implicated, but the question remained whether he actually benefit from the scheme. The Panel noted “that the substance GW 1516 is a metabolic modulator and a non-specified substance and is prohibited at all times (without a threshold).”125 Additionally, “the instruction from the Deputy Minister was “save”.”126 Thus, the CAS arbitrators were “comfortably satisfied” that Balandin had benefitted from the scheme.
In all three cases, the athletes mentioned in the Report as ‘saved’ were recognized as implicated by the CAS. The court clearly distinguished the notion of implication from the fact that the athletes committed an anti-doping violation as defined under the WADC. However, it is unclear whether the arbitrators would have deemed an athlete implicated, if he or she was not named in the evidence provided by McLaren. As the disappearing positive methodology implemented by the Moscow laboratory was an ultima ratio, this still entails that many Russian athletes competing in Rio might have profited from Russia’s state-doping scheme by escaping a positive test altogether. Hence, the IOC’s choice to narrow down on implicated athletes seems rather inadequate to tackle the generalized doping system unveiled by the IC and IP reports.
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