CAS OG 16/11 Daniil Andrienko et al v.s FISA & IOC
CAS OG 16/11 Russian rowers vs FISA & IOC:
- Daniil Andrienko
- Aleksander Bogdashin
- Alexandra Fedorova
- Anastasiia lanina
- Alexander Kornilov
- Aleksandr Kulesh
- Dmitry Kuznetsov
- Elena Lebedeva
- Elena Oriabinskaia
- Julia Popova
- Ekaterina Potapova
- Alevtina Savkina
- Alena Shatagina
- Maksim Telitcyn
- Anastasiia Tikhanova
- Aleksei Vikulin
- Semen Yaganov
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.
As a consequence of the finding in the McLaren Report and the IOC decision the FISA Executive Committee decides on 24 July that the 17 Russian rowers were declared ineligible for the Rio Olympic Games, 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".
Hereafter on 1 August 2016 the 17 Russian rowers appealed the FISA decision with the CAS Ad Hoc Division in Rio de Janeiro. The Athletes requested the CAS Ad hoc Division Panel to set aside the FISA decision of 25 July 2016 and to allow the athletes to participate to the Rio 2016 Olympic Games. FISA requested the Panel to reject the appeal.
Considering the filed arguments of the athletes and considering the findings in the McLaren Report, the CAS Panel finds that a reliable adequate international test can only be assumed if the sample has been analyzed in a WADA-accredited laboratory outside Russia. The Panel rules that 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. This has been also acknowledged by the IOC in the hearing.
The Panel notes that the testing history (i.e. the number of tests to which a single athlete has submitted) is not a rule, but a piece of evidence with the help of which the respective international federation shall establish whether or not in the case at hand the level playing field is affected. FISA determined - in line with the applicable criteria - that the level playing field is only ensured if Russian athletes are admitted to competition that have been tested on three different days in the past 18 months. No issues of retroactivity arise here, since the principle of tempus regit actum is not applicabe to questions of evidence.
The Panel finds that FISA did not change the eligibility criteria. Instead, it was the IOC (that governs and administers the Rio Olympic Games) who imposed the additional eligibility criteria specifically on Russian athletes. FISA only implemented and applied these criteria to its Russian athletes. This neither constitutes a breach of the principle of venire factum propium nor a breach of good faith.
Furthermore, the Panel finds that FISA did not act in bad faith when it refused the request of the RRF on 28 July 2016 to do additional testing on the Russian athletes. Last minute testing is not likely to contribute to establishing a level playing field with other competitors that have been under the umbrella of reliable testing over a longer period of time.
Finally, the Panel notes that this is a de novo procedure and that consequently, procedural mistakes that might have occurred at a prior instance fade to the periphery. The Athletes had an opportunity to state their case before this Panel. Thus, any alleged breach of the right to be heard at a prior instance must be considered healed.
The CAS Ad Hoc Division Panel concludes that the FISA decision must be upheld and decides on 5 Augustus 2016 that the appeal is of the Russian athletes Daniil Andrienko, Aleksander Bogdashin, Alexandra Fedorova, Anastasiia lanina, Alexander Kornilov, Aleksandr Kulesh, Dmitry Kuznetsov, Elena Lebedeva, Elena Oriabinskaia, Julia Popova, Ekaterina Potapova, Alevtina Savkina, Alena Shatagina, Maksim Telitcyn, Anastasiia Tikhanova, Aleksei Vikulin, Semen Yaganov is dismissed.
