Since it was first introduced at the Atlanta Games in 1996,Footnote 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.Footnote 81
The Efimova case: saved by the Osaka déjà-vu
Yulia Efimova, a top-level Russian swimmer, had a difficult time in Rio as her peers and the press heavily criticized her. Yet, as a sweet revenge, she did win two silver medals. Her achievement was made possible by a decision of the CAS ad hoc Division that enabled her to compete, although she had been sanctioned previously for doping and fell under paragraph 3 of the IOC Decision.Footnote 82 In principle, Efimova, like the rowers Anastasia Karabelshikova and Ivan Podshivalov, did not comply with the criteria imposed by the IOC. However, in two separate awards, the CAS Panels, relying primarily on the concept of ‘natural justice’ and referring to the established CAS jurisprudence regarding the so-called ‘Osaka rule’,Footnote 83 sided with the Russian athletes against the IOC. The ‘Osaka rule’, which was adopted by the IOC in June 2008 in Osaka, foresaw that any person sanctioned with a doping ban of more than 6 months would be ineligible for the Olympic Games following the date of expiry of the ban. In 2011, the CAS found that rule to be contrary to the WADC and the IOC’s Olympic Charter.Footnote 84
In both awards, the CAS ad hoc Division clearly identified that the “issues before the Panel focused primarily upon the legality of paragraph 3 of the IOC Decision.”Footnote 85 The arbitrators emphasized that the IOC had acted in “good faith and with the best intentions”Footnote 86 in addressing the release of the IP Report. However, the Panels also stressed that the IOC Decision recognised the “right of the individual athletes to natural justice.”Footnote 87 In this regard, both Panels challenged the legality of paragraph 3 of the IOC Decision. Thus, it is argued that this paragraph “contains simple, unqualified and absolute criterion.”Footnote 88 Furthermore, “there is no recourse for such an athlete, no criteria that considers the promotion by the athlete of clean athletics (as the IAAF consider by way of an example) or any other criteria at all.”Footnote 89 Therefore, the arbitrators struggled “to reconcile this paragraph  with the stated aim to provide the athletes with an opportunity to rebut the presumption of guilt and to recognise the right to natural justice.”Footnote 90 Consequently, “this denial of the rules of natural justice renders paragraph 3 as unenforceable.”Footnote 91 Another related question was whether paragraph 3 should be treated as an eligibility rule or an additional sanction on athletes that had already been sanctioned for positive doping test. Though they deemed it a moot point, both Panels referred to the well-known case law of the CAS on the ‘Osaka rule’ to find that paragraph 3 constituted an additional sanction.Footnote 92
While Efimova went on to win two medals, both Karabelshikova and Podshivalov were barred from participating to the Rio Games on other grounds.Footnote 93 The fact that paragraph 3 of the IOC Decision is deemed unenforceable should come as no surprise to anybody involved in international sports law. The CAS jurisprudence on this matter is very much a principle stand, meaning that under the current WADC there is simply no room for an Olympic ban in addition to a doping ban. This is a lesson often lost on the media and general public during Olympic days, but non bis in idem is a cornerstone principle of our legal systems and cannot be discarded lightly. Why the IOC decided to ignore this jurisprudence is open to interrogation.
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.Footnote 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. It reads as follows:
“In view of the recent appeals filed by Russian Athletes with GAS, the IOC considers it necessary to clarify the meaning of the notion “implicated” in the EB Decision.
The IOC does not consider that each athlete referred to in the McLaren Lists shall be considered per se “implicated”. It is for each International federation to assess, on the basis of the information provided in the McLaren lists and the Independent Person Report, whether it is satisfied that the Athlete in question was implicated in the Russian State-controlled doping scheme.
To assist the International Federations in assessing each individual case, the IOC wishes to provide some information. In the IOC’s opinion, an athlete should not be considered as “implicated” where:
The order was a “quarantine.”
The McLaren List does not refer to a prohibited substance which would
have given rise to an anti-doping rule violation or;
The McLaren List does not refer to any prohibited substance with respect
to a given sample.”
The CAS went on to address this question in three cases analysed below.Footnote 95
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 firstname.lastname@example.org 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.”Footnote 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”.”Footnote 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”.”Footnote 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.”Footnote 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.”Footnote 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.”Footnote 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.”Footnote 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.”Footnote 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.”Footnote 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.Footnote 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.”Footnote 106
CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF
Anyushina and Korovashkov are also two canoeists from Russia. Similar to Podolskaya and Dyachenko, they were suspended on 26 July 2016 by the ICF and removed from the Rio Games as they were deemed implicated in the IP report. However, Anyushina was quickly reinstated and declared eligible to compete at the Games by the IOC.Footnote 107 The procedure was, consequently, limited to Korovashkov. He was deemed implicated because, as outlined by Richard McLaren in his affidavit:
On 15 August 2014 at 09:22 h, in contravention of the International Standard for Laboratories, the Moscow Laboratory reported to Alexey Velikodniy that sample number 2916461, collected 10 August 2014 in connection with an International Competition being held in Moscow, contained a lot of marijuana that was certainly above the threshold. (The/CF website reflects that the/CF Canoe Sprint World Championships took place in Moscow from the 8–10 August 2014) Alexey Velikodniy’s response to the Laboratory on 18 August 2014 at 08:59 identified that sample number 2916461 belonged to Mr. Alexey Korovashkov and instructed that it should be a ‘SAVE.” Alexey Velikodniy also notes that Mr. Alexey sample is under investigation. Mr. Korovashkov’s sample number 2916461 was reported negative in ADAMS.
The Russian canoeist argued that the “evidence concerning the relevant sample on which the ICF relies to support its decision is unreliable”, because “there is no “threshold” provided for marijuana in WADA Technical Document TD 2013DL of 11 May 2013 concerning Decision Limits for the Confirmatory Quantification of Threshold Substances.”Footnote 109 In his view, “[i]f there is no threshold, it is unlikely that the laboratory would have provided such odd information to Alexey Velikodniy rather than reporting the threshold itself; the evidence does not resemble a laboratory report Correspondence could not have been authored by the laboratory’s employees, who are fully aware that they would be required to calculate and then state the actual result.”Footnote 110 The Panel rebutted this argument by pointing out that the relevant WADA document included a threshold for Cannabinoids.Footnote 111 The Panel concluded that “the evidence is that the state sponsored doping system was applied to the Second Applicant so as to prevent a positive report of marijuana over the threshold for that substance.”Footnote 112 Consequently, Korovashkov was deemed implicated in the IP Report. The Panel did display its sympathy with the Russian athlete, as it pointed out that “[t]he ICF indicated that marijuana is not, in its view, a performance enhancing drug and the Panel notes that there is no suggestion of any other substance involved.”Footnote 113
The Panel further rejected Korovashkov's argument that the ICF’s decision to declare him ineligible for the Rio Olympics amounted to a wrongful anti-doping sanction.Footnote 114 The applicant argued that the use of the word “suspended” in the original letter to the ICF was the terminology used under the WADC. The Panel found that even though “suspended” “is a word used, and a sanction provided for, in the WADA Code, this does not mean that its inclusion means that the decision is made under that Code.”Footnote 115 Moreover, the CAS arbitrators considered it “clear that the letter was in direct response to the IOC Executive Board’s decision and concerned the eligibility of Russian athletes to compete in the Games of the XXXI Olympiad in Rio de Janeiro Games and to be accredited to those Games.”Footnote 116 Thus, it “was not a decision under the WADA Code and was not bound by the provisions of that Code.”Footnote 117 In other words, the Decision should not and could not be misconstrued as a doping ban based on the WADC, but found its legal basis in the IOC Decision and in Article 12.3 of the ICF Anti-doping Rules.
This case demonstrates the willingness of CAS arbitrators to adopt a wide reading of the scope of the notion of implication under the IOC Decision. If an athlete benefitted from the Russian doping scheme, even in case of a relatively harmless substance like cannabis, it was considered legitimate for an IF to remove him or her from Russia’s Olympic team.
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.Footnote 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]”Footnote 119 and added that the “matter at hand concerns eligibility for the Rio Games.”Footnote 120 The Panel concurred and concluded that the “dispute at hand concerns the Athlete’s eligibility for the Rio Games alone.”Footnote 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.”Footnote 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.”Footnote 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.”Footnote 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).”Footnote 125 Additionally, “the instruction from the Deputy Minister was “save”.”Footnote 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.
On being sufficiently tested under the IOC Decision
Paragraph 2 of the IOC Decision also directed the IFs to verify the athletes’ individual anti-doping record.Footnote 127 This part of the IOC Decision was central to a case involving Daniil Andrienko and 16 other members of the Russian rowing team, who challenged a decision of the World Rowing Federation (FISA) to declare them ineligible for the Rio Olympics. The FISA Executive Committee took the decision on 24 July 2016, 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.”Footnote 128 In their submissions, the Russian applicants did not challenge the IOC Decision, and thus the criteria enshrined in paragraph 2, but only its application by FISA.Footnote 129 The Russian athletes argued that FISA’s decision deviated from the IOC Decision in that it was imposing as an additional requirement that rowers 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.”Footnote 130 The Panel acknowledged “the IOC Executive Board decision does not refer explicitly to the requirement of three tests or to a period of 18 months.”Footnote 131 Nonetheless, it found “that the Challenged Decision is in line with the criteria established by the IOC Executive Board decision.”Footnote 132 Indeed, the IOC’s Decision provided “that in order to examine whether the level playing field is affected or not (when admitting a Russian athlete to the Rio Olympic Games), the federation must look at the athlete’s respective anti-doping record, i.e. examine the athlete’s anti-doping tests” and that “[i]n doing so, the IOC Executive Board decision specifies that only “reliable adequate international tests” may be taken into account.”Footnote 133 In this regard, the Panel, and FISA, shared the view that “a reliable adequate international test can only be assumed if the sample has been analyzed in a WADA-accredited laboratory outside Russia.”Footnote 134
Finally, with regard to the need of having three tests, the “relevant paragraph in the IOC Executive Board decision further refers to “adequate international tests” and, consequently, makes it clear that - in principle - a single test is not sufficient to rebut the presumption of “collective responsibility”.”Footnote 135 This follows “from the word “tests” being used in the plural form, but also from the word “adequate”, since a single negative anti-doping test can hardly be adequate to rebut the presumption of “collective responsibility”.”Footnote 136 The CAS also points out a number of other reasons why three tests are a rational benchmark:
“[…]rowing is at the same time a sport requiring strength and endurance and, thus, is exposed to a significant doping threat”;
There is “a history of doping cases in the Russian Rowing Federation”;
FISA “took also into consideration WADA’s “Guidelines Implementing an Effective Testing Programme”, which refers to a minimum of three tests per year for Registered Testing Pool athletes”;
“FISA also bore in mind that it only provides for a relatively small number of events where tests can be carried out compared to other sports.”Footnote 137
Hence, “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.”Footnote 138 The CAS Panel rejected the pleas brought forward by the athletes on the basis of natural justice and fundamental procedural principles, as they did not challenge the IOC Decision directly but only its implementation.
Surprisingly, FISA was the only Federation (alongside the IAAF), which systematically refused entry to Russian athletes because they were not exposed to proper independent anti-doping testing. If each IF had imposed similar standards, it is unlikely that many Russian athletes would have been able to participate in the Rio Games. Furthermore, the case also highlights once again that the CAS was ready to endorse strict conditions for the eligibility of Russian athletes. Here again, the IOC could very well have decided to impose a similar condition across the board instead of leaving each federation decide for itself and, thus, promote differentiated treatments depending on the sporting discipline.
On bringing weightlifting into disrepute
In paragraph 2 of its Decision, the IOC mentioned the possibility for IFs to “apply their respective rules in relation to the sanctioning of entire NF’s.” This is exactly what the International Weightlifting Federation (IWF) did when it decided on 29 July 2016 to exclude the whole Russian Weightlifting Federation (RWF) from the Rio Olympics for having brought the sport into disrepute. Indeed, Article 12. 4 of the IWF Anti-doping Policy, foresees that:
“If any Member federation or members or officials thereof, by reason of conduct connected with or associated with doping or anti-doping rule violations, brings the sport of weightlifting into disrepute, the IWF Executive Board may, in its discretion, take such action as it deems fit to protect the reputation and integrity of the sport.”
The Russian Federation first disputed, to no avail, that there was sufficient legal basis in the IWF regulations for such a blanket ban. The Panel found that “Article 12.4 ADP constitutes a sufficient legal basis.”Footnote 139 Moreover, it added that the “power of the IWF Executive Board, in its discretion, to take such action as it deems fit to protect the reputation and integrity of the sport, was not challenged by RWF.”Footnote 140
There were subsequently two main questions related to application of Article 12.4 ADP to be discussed:
Based on the information available, could the IWF reasonably conclude that there was a “conduct connected with or associated with doping”?
And, was it sufficient to “bring the sport of weightlifting into disrepute”?
First, the CAS Panel noted that in assessing whether there was a “conduct connected with or associated with doping”, IWF “referred to various sources of information.”Footnote 141 It relied on the IP Report that “submits that 117 Russian weightlifters were included in this centrally dictated program”Footnote 142 and “on the results from the retesting of the London and Beijing Olympics”,Footnote 143 which “turned out nine AAFs for Russian weightlifters.”Footnote 144 The Panel held that this “information constitutes “conduct connected with or associated with doping”” that “on its face is sufficiently reliable.”Footnote 145 Indeed, it reminds that the IP Report applied a standard of proof of “beyond reasonable doubt.” Furthermore, the Panel adds that “the findings of the McLaren Report were taken seriously by the IOC and lead to the IOC Executive Board’s decision dated 24 July 2016 that enacted eligibility criteria specifically for Russian athletes, which is unique in the history of the Olympic Games”Footnote 146 and “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.”Footnote 147 Finally, “the information contained in the McLaren Report is also corroborated by the reanalysis of the athlete’s samples at the London and Beijing Olympics.”Footnote 148 The fact that all nine Russian athletes retested were positive for the same substance, Turinabol, is deemed “a strong indication that they were part of a centrally dictated program.”Footnote 149
Are these findings enough to bring weightlifting into disrepute? For the Panel, disrepute “refers to loss of reputation or dishonour.”Footnote 150 Thus, “the IWF’s conclusion that the above facts bring the sport of weightlifting in disrepute is neither incompatible with the applicable provisions nor arbitrary.”Footnote 151 The Russian doping scandal is “one of the biggest doping scandals in sports history”, and “paired with the findings from the retesting of samples led the IWF to consider that the actions of the RWF and the Russian weightlifters brought the sport of weightlifting into disrepute, because it draws a picture of this sport as being doping infested.”Footnote 152 Consequently, the CAS arbitrators considered that “the Applicant has 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.”Footnote 153
Lastly, the RWF brought forward the much-used ‘we were not the only ones!’ argument. Indeed, it highlighted that the “retesting of the London and Beijing samples has not only resulted in AAFs [Adverse Analytical Findings or positive doping test] for Russian athletes, but also revealed AAFs for other member federations.”Footnote 154 Yet, the Panel rebuked this argument by stating “that the situation in Russian weightlifting is - apparently - of a different dimension”, as it “has not been reported nor submitted that other member federations are involved in a centrally dictated and managed doping program.”Footnote 155 In this regard, it noted “the impressive number of 61 Russian weightlifters benefitted from the Disappearing Positive Methodology” and the fact “that the whole Russian delegation for the London Olympics was - according to the information provided - involved in doping.”Footnote 156
Once again, an IF taking a strong stance and barring the whole Russian team to participate in the Rio Olympics is vindicated by the CAS.
Saving the last Russian woman standing: the Klishina miracle
Darya Klishina is now an Olympic celebrity. She will not enter the history books for winning a gold medal or setting a world record, however. Instead, her idiosyncrasy lies in her nationality: she was the sole Russian athlete authorized to stand in the athletics competitions at the Rio Olympics. And yet, a few days before the start of the long jump contest in which she was due to take part, the IAAF surprisingly decided to revoke her eligibility.Footnote 157 Klishina successfully appealed the decision to the CAS ad hoc Division and, as a result, was allowed to compete at the Olympics.
Two important questions are raised by this case:
The IAAF’s second thoughts over the implication of Klishina
So, what happened between 9 July, when Klishina was first green lighted by the IAAF Doping Review Board (IAAF DRB) and 10 August when the IAAF DRB revoked its previous decision to let her compete? Basically, the publication of the McLaren Report, and the communication of evidence showing “that the Applicant had been directly affected and tainted by the state-organised doping scheme described in the IP Report.”Footnote 158 More concretely, according to the Report, Klishina was affected in the following three ways:
“a sample collected on 26 February 2014, yielding a T/E ratio of 8.5, had been subject to a “SAVE” order by the Ministry of Sport on 3 March 2014;
a sample collected on 17 October 2014 and subsequently seized by WADA on December 2014 was found to bear marks and scratches consistent with the removal of the cap and contained urine from the Applicant but also from another female athlete; and
a sample collected on the occasion of the 2013 IAAF World Championships in Moscow was also found to bear marks and scratches consistent with the removal of the cap.”Footnote 159
In its original decision, the IAAF DRB had reserved its right “to reconsider the Applicant’s case should information ever be brought to its attention (including but not limited to as a result of the current investigation being conducted by Professor McLaren on behalf of WADA) that the Doping Review Board considers is such as to undermine the basis upon which the application was accepted.”Footnote 160 Thus, unsurprisingly, the CAS acknowledged that the IAAF DRB had the competence to reconsider the eligibility granted to the athlete. Nonetheless, unexpectedly, it found that such reconsideration was not legitimate.
The surprising decision of the CAS to let Klishina jump
Klishina won in front of the CAS. From an outsider’s perspective this must be a surprising decision, since she was at least as implicated in the IP Report as numerous other Russian athletes who were barred from entering the Games. Indeed, she had clearly profited from being “saved” by the Russian Ministry of Sport. So why did the CAS decide to let her jump?
This decision is intimately linked with the legal basis of the original decision of the IAAF DRB. Despite the repeated view of the IOC that the IAAF policy was stricter than its own,Footnote 161 the Klishina case demonstrates that this is not universally true in practice. The main point was that in its previous decision the IAAF DRB had recognized that since 1 January 2014, Klishina “had been subject to fully compliant drug testing in- and out-of-competition”Footnote 162 and therefore fulfilled the criteria enshrined in the IAAF Competition rule 22.1A(b). This was based on the following factual findings:
“The fact that she had spent 632 days out of Russia, being 86.6% of her time, in the Relevant Period;
She had relocated permanently to the United States in March 2014 and had been trained under a US coach since October 2013;
She regularly competes in competitions on the international circuit;
A total of 11 samples had been collected from the Applicant outside of Russia in the Relevant Period;
1 sample had been collected by the IAAF since June 2016 and sent for analysis by a laboratory outside of Russia.”Footnote 163
The question is then whether the new information, indicating that Klishina was implicated and benefitted from the Russian doping scheme, recognized as valid by the Panel,Footnote 164 could justify revisiting the first decision. In other words, could this new information lead to reconsidering the eligibility of Klishina under the regime of IAAF Competition rule 22.1A(b) on which the original decision was based? To assess this, the Panel started by pointing out that the rule “is not the same as the decision of the IOC Executive Board made after the publication of the IP Report. (…) As the parties agreed, the IOC Executive Board decision is not in evidence in this case and decisions of the Ad hoc Panel of the CAS for the Games of the XXXI Olympiad in Rio de Janeiro as to the application of, or the terms of, the IOC Executive Board decision are not applicable.”Footnote 165
The CAS Panel insisted that the IAAF’s DRB “was comfortably satisfied that during the Relevant Period the Applicant satisfied each of the criteria set out in the Rule for exceptional eligibility, notwithstanding the suspension of the National Federation.”Footnote 166 Furthermore, “in making its findings, the DRB was aware of, and took no account of, tests conducted in Russia and that it was cognisant of inadequacies in the system of testing in Russia, for which RusAF had been suspended.”Footnote 167 Those are decisive conclusions that will lead to the second decision being set aside. The CAS Panel was of the view “that the conclusion reached in the Second Decision, and the basis for that decision, are not in accordance with the Rule which was purportedly invoked.”Footnote 168 It is so, because “the further evidence considered by the DRB for the purposes of the Second Decision did not undermine its finding in the First Decision that the Applicant was eligible to compete by reason of her compliance with the Rule.”Footnote 169 This analysis led to a seemingly unfair solution as the undisputed evidence pointed at Klishina profiting not once but on three occasions from the Russian doping scheme.
This decision is grounded on the following legal reasoning: the Panel considered that the “implication [of Klishina in the State-doping system] is not relevant to the application of criteria which, if fulfilled, mean that for the purposes of the Rule [22 IAAF], the Applicant is not affected or tainted by the failures of the National Federation.”Footnote 170 Indeed, the IAAF Rule “provides for a mechanism or a basis by which an athlete is granted exceptional eligibility.”Footnote 171 And this “mechanism is fulfilment of the two criteria which, for this athlete, was established by the DRB in the First Decision.”Footnote 172 Thus, the “fact that the athlete was subjected to or the subject of drug testing that was not fully compliant during the Relevant Period does not derogate from the fact that she was, during the Relevant Period (that is, ‘a sufficiently long period’), subject to fully compliant drug testing in- and out-of- competition by reason of the fact that she was during that time training in and resident in the United States and not in Russia.”Footnote 173 Additionally, “there is no evidence to suggest that the testing that she was subject to was other than equivalent in quality to the testing to which her competitors were subject.”Footnote 174 In other words, “an athlete may have undergone non-compliant testing while concurrently being subject to fully compliant testing and still fulfil the second criterion.”Footnote 175 This is comforted by the fact “that the Rule is addressed to the suspension of any International Federation for failure to put in place an adequate system and the impact on the eligibility of the athlete” and the “criteria are directed to the establishment by an athlete that he or she is outside the country of his or her National Federation during the Relevant Period.”Footnote 176 Hence, it “is not addressed to the implication of an athlete in a defective system.”Footnote 177 Instead, “it states that an athlete is taken not to be affected or tainted by the action of the National Federation if he or she was subject to other, compliant systems outside of the country.”Footnote 178 In a nutshell, for the CAS Panel, 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.”Footnote 179 No, the only question is “whether she fulfilled the criteria of the Rule.”Footnote 180 And the direct answer to that question is: she did early July; and she still does in August!
This case is disconcerting as it contradicts the line of cases regarding the implication of athletes in the IP Report discussed above. The CAS relied on the ambiguous wording of the IAAF provision to offer an escape route to Klishina. In doing so, it disregarded the spirit and objective of the provision, which was to provide a mechanism for athletes who were not personally tainted by the Russian doping scandal to participate in IAAF competitions. Yet, another aspect of the case is even more bizarre. Why did the IOC not block the eligibility of Klishina on the basis of paragraph 2 of the IOC Decision? She was undoubtedly implicated and benefited from the scheme. In fact, only one of the three sources of implication provided by McLaren should (and would) have been enough for the IOC Review Panel and the CAS arbitrator reviewing her eligibility to discard her from the Olympics.Footnote 181 It did not happen, Zeus only knows…
In general, the CAS has been willing, with the exceptions of Efimova and Klishina, to approve the ineligibility of Russian athletes. Rightfully, in my view, the CAS has supported the IFs that have opted for a strict approach in dealing with the eligibility of Russian athletes for the Rio Olympics. The CAS has also unsurprisingly rebutted the blunt rule of the IOC excluding Russian athletes who were previously sanctioned for doping. Nevertheless, it has surprisingly let Klishina participate, in spite of all the factual elements pointing at her being implicated in, and having profited from, the Russian state-doping scheme. Overall, the CAS ad hoc Division has served its purpose as a review instance well, forcing the IFs and the IOC to properly justify their decisions and providing an avenue for the Russian athletes to be heard.
These cases also highlight the variety/plurality of responses to the Russian doping scandal and its impact on the eligibility of Russian athletes for the Rio Olympics. It seems that some IFs have taken WADA’s call for a strong response seriously.Footnote 182 Unfortunately, and this is one of the negative consequences of the IOC’s decision to delegate the final decision to the IFs, due to a lack of information, it is impossible to assess the different policies of the IFs which have not faced (due to their reluctance to act or else) a challenge of their eligibility decisions in front of the CAS ad hoc Division. In light of recent revelations concerning the International Swimming Federation (FINA), it is likely that a number of IFs decided to interpret narrowly the IOC criteria and waved through the overwhelming majority of Russian athletes without a proper check.Footnote 183
Finally, the awards show that CAS arbitrators would have been ready to condone a general ineligibility of Russian athletes, with a narrow exception for those capable of proving that they were not affected by the scandal or who could not benefit from the scheme because they were residing outside of the Russian Federation. The CAS recognized the seriousness of the situation and the collective responsibility of Russia’s SGBs. It seemed also ready to follow-up on this collective responsibility by endorsing collective ineligibilities that would most likely have been found compatible with the Russian athletes ‘natural rights’. The CAS emphasized also its judicial restraint and respect for the autonomy of the SGBs and their decisions with regard to the Russian athletes. Hence, ultimately, the IOC’s decision to let the Russian athletes compete at the Rio Olympics may have been politically unavoidable, but was certainly not legally mandated. I leave to the reader to appreciate whether this decision is compatible with the IOC’s proclaimed fundamental values and its commitment to enforcing the WADC.