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.
