CAS OG 16/12 Ivan Balandin vs FISA & IOC
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.
FISA received from WADA information from the McLaren Report confirming that 11 rowers had their samples tested and then reviewed by the Russian Deputy Minister of Sport. Six (6) of these were “SAVE” cases, including the Athlete Ivan Balandin.
FISA additionally checked on the ADAMS system and noted that the test was reported as negative. As the date of sample collection was missing (or marked “N/A”) on the information supplied to it, Matthew Smith, from FISA, additionally spoke to Emma Price from UK Anti-Doping, who was reviewing the testing results and procedures at the Moscow Laboratory, who confirmed to him that the sample had been collected on 21 May 2013.
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 finding in the McLaren Report and the IOC decision the FISA Executive Committee decides on 25 July that the 11 Russian rowers were declared ineligible for the Rio Olympic Games and on 27 July 2016 FISA issued the statement that the Athlete Ivan Balandin will not be included in the list of rowers declared eligible as it understood that the IOC will not accept his entry.
Hereafter on 2 August 2016 the Russian Athlete appealed the FISA decision with the CAS Ad Hoc Division in Rio de Janeiro. The Athlete requested the CAS Ad hoc Division Panel to set aside the IOC Decision and the FISA Decision of 25 July 2016 and to allow the athletes to participate to the Rio 2016 Olympic Games. FISA and IOC requested the Panel to reject the appeal.
The Panel agrees that the matter at hand is eligibility. The IOC Decision was borne out of the need to respond to the government directed scheme to protect Russian athletes from ADRVs. All Russian athletes were to be analysed individually to see if they could rebut the presumption that they had benefited from this government scheme. Put simply, only if the Athlete could show he had not benefited, then he would be eligible for the Rio Games. There was an additional hurdle for those implicated in the McLaren Report, which was clarified by the IOC in its submission to the Panel.
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.
Considering the Athlete’s arguments the Panel finds that there was no breach of good faith, procedural fairness, venire contra factum proprium or the right to be heard.
The Panel is satisfied that the information, provided to FISA and the additional checks it took with UKAD, were sufficient to conclude that the Athlete was implicated in the state-sponsored anti-doping scheme in Russia and by being “saved” he avoided likely doping sanctions and cannot satisfy the IOC’s eligibility criteria to rebut the presumption of guilt and, as such, assumes responsibility for his part in the scheme.
Therefore the CAS Ad Hoc Division Panel decides on 6 August 2016 that the application filed by Ivan Balandin on 2 August 2016 is dismissed.
