CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko vs ICF
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 findings in the McLaren Report and the IOC Decision the International Canoe Federation (ICF) decided on 25 July 2016 to impose an immediate suspension on five Russian Canoe Sprint athletes, including the Athletes in this case, and removed them from the Rio 2016 Olympic Games.
Hereafter on 4 August 2016 the two Russian Athletes appealed the ICF decision with the CAS Ad Hoc Division in Rio de Janeiro. The Athlete requested the CAS Ad hoc Division Panel to set aside the ICF decision of 25 July 2016 and to allow the athletes to participate to the Rio 2016 Olympic Games. ICF requested the Panel to reject the appeal.
On 5 August 2016, pursuant to directions made by the Ad Hoc Division Professor McLaren submitted an affidavit in this proceeding about the Disappearing Positive Metholology by the Moscow Laboratory, the Sochi Laboratory and the Ministry of Sport. Professor McLaren stated that in July and August 2013 the Athletes’ samples tested positive in the Moscow Laboratory. Afterwards the test results were reviewed and labelled as “SAVE” cases and reported as negative in ADAMS.
The CAS Panel notes that the Athletes did not submit any evidence to the Panel by way of affidavit with respect to the issue of natural justice, or submit that they were denied procedural fairness by the Panel. Further, as the Panel put to the Athletes at the hearing, they did not seek an adjournment of the hearing in order to obtain evidence, although the events in which the Athletes seek to participate are not imminent and relevant decisions by the ICF as to entry are not to be taken for approximately one week.
The Panel is satisfied that the IOC acted in good faith and with the best of intentions and that the criteria for eligibility as set out in that decision, and as subsequently clarified by the IOC, were warranted in light of the McLaren Report and its timing with respect to the Rio 2016 Olympic Games.
Considering the Athlete’s arguments the Panel finds that the Athletes have not been denied natural justice or procedural fairness and arguments about the Osaka Rule are misplaced. This is not a case where there has been a sanction for an ADRV and the IOC Executive Board has imposed an additional consequence of that ADRV, or even proceedings for an ADRV. Here, there has been a decision as to eligibility of the Athletes and that decision is within the power of the IOC.
The Panel notes that this conclusion, that the present matter concerns the eligibility of the athletes and the need for the athlete to overcome "an additional hurdle" to be permitted to compete, and not an impermissible sanction, is consistent with the conclusion of the Panel in CAS OG 16/12.
Considering the findings in the McLaren Report and the IOC Decision the Panel finds that the ICF was entitled to conclude that the Athletes failed to meet the IOC criteria in paragraph 2.
That conclusion has been reinforced by the evidence made available to the Panel by Professor McLaren. That conclusion is justified on the standard of comfortable satisfaction, that is, to a higher standard than the balance of probabilities.
The Athletes argued that they have never been sanctioned for an ADRV and that their samples have been tested with negative results as reported in ADAMS. However the Panel finds that this outcome, following a positive screen, is precisely the consequence of the system described in the McLaren Report was applied to the Athletes, as set out in the evidence relating specifically to the Applicants as set out in Professor McLaren's affidavit.
The Panel concludes that the Athletes have been implicated in the State-sponsored Antidoping scheme as described in the McLaren Report and they do not satisfy the eligibility criteria as set out in the IOC Executive Board Decision.
Therefore the CAS Ad Hoc Division Panel decides on 8 August 2016 that the application by Natalia Podolskaya and Alexander Dyachenko is dismissed.
