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.
