CAS OG 16/24 Darya Klishina vs IAAF
In November 2015, the World Anti-Doping Agency (WADA) Independent Commission issued a detailed report upholding allegations about systemic, state-sponsored doping in Russian track & field.
Based on findings the IAAF Council decided on 13 November 2015 to order a provisional suspension of the All Russian Athletics Federation (ARAF) and on 17 June 2016 the IAAF Council decided that ARAF remains suspended, with the result that its athletes remain ineligible to compete in international competitions.
Also on 17 June 2016, the IAAF Council also resolved to adopt IAAF Competition Rule 22.1A (the Rule) and delegated authority to a Doping Review Board (DRB) to consider applications made by athletes affiliated to RusAF for exceptional eligibility pursuant to the Rule to compete in international competitions notwithstanding RusAF's continued suspension from membership of the IAAF.
On 28 June 2016, the Russian Athlete Darya Klishina applied to the IAAF to restore her eligibility pursuant to the Rule.
On 9 July 2016, the DRB accepted the Applicant's application under the Rule for exceptional eligibility to compete in international competitions, including the Athletics competition in the Rio 2016 Olympic. The Athlete was found eligible to compete in an individual capacity as a Neutral Athlete.
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.
As a consequence of the findings in the McLaren Report the DRB revoked on 10 August 2016 (and issued on 12 August 2016) to its previous grant of exceptional eligibility pursuant to the First Decision and decided (the Second Decision) that the Athlete Darya Klishina was "not eligible to compete at or otherwise take part in International Competitions, including the athletics competition at the 2016 Olympic Games".
The DRB found that, within a relevant period of time defined to be between 1 January 2014 to date, there was evidence in an affidavit sworn by Professor McLaren on 7 August 2016 (the McLaren Affidavit) that the Athlete had been directly affected and tainted by the State-organised doping scheme described in the McLaren Report. The evidence also recorded that some samples of the Applicant had been subject to the methods described in the McLaren Report.
After invitation the Athlete submitted on 8 August 2016 her comment on the McLaren Report and she was requested to comment on the McLaren Affidavit.
Hereafter on 13 August 2016 the Athlete appealed the DRB’s Second Decision of 12 August 2016 with the CAS Ad Hoc Division in Rio de Janeiro. The Athlete requested the CAS Panel to set aside the IAAF’s Second Decision and to allow the Athletes to participate to the Rio 2016 Olympic Games.
The Athlete argued that she had been subject to a fully adequate system outside of Russia for "a sufficiently long period", determined by the DRB to be since 1 January 2014, to satisfy the criteria of the Rule. This involved being subject to drug testing out of Russia.
She has been training in the United States since October 2013 and has been a permanent resident of the United States since March 2014. She says that she has been tested "almost exclusively outside Russia". Her tests, as shown on ADAMS, support this.
Considering the circumstances and the evidence the Panel finds that the Athlete has not established a basis for concluding that the DRB, which expressly reserved the right to reconsider its decision if new evidence was brought to its attention, was precluded from that course. The Athlete has not explained why this was precluded as a matter of law. The Athlete says that the DRB did not expressly include in the heading that the decision was interim in nature but that was the effect of the decision.
Further, there is a right to revisit a decision where new facts and evidence, not previously available, are presented to the decision maker. Under Swiss law and the laws of many other countries, such a reversal is valid in law if new circumstances have arisen (or possibly have since come to light) which would have entitled the authority to refrain from issuing the original decision had the circumstances been known at the time of its issuance, or if the decision is not final when the new decision is to be taken.
Also the Panel finds that the Athlete was provided with sufficient opportunity to present her case to the DRB and now to the CAS Panel. She was not denied procedural fairness.
The Panel rules that the relevant question is not whether the athlete was affected by the Russian System, or how, or whether she had knowledge of the way in which the system worked. The question is whether she fulfilled the criteria of the Rule. If she could establish that she was outside the country and subject to the compliant drug testing as specified, the "affect or taint" that would otherwise follow from the failure of her National Federation would not apply.
This is not a reference to the "affect or taint" arising from specific information concerning testing of the athlete's samples. Indeed, the IAAF emphasised that this case did not concern doping but concerned eligibility. Further, the IAAF did not assert that the evidence established that the Applicant had engaged in doping or other wrongful actions within the Russian System. The conclusion follows that the Athlete’s application should be upheld.
Therefore the CAS Ad Hoc Division Panel decides on 16 August 2016:
1.) The application filed on 13 August 2016 by Ms Darya Klishina is upheld.
2.) The decision issued on 10 August 2016 by the Doping Review Board of the IAAF to revoke its previous grant of exceptional eligibility to Ms Darya Klishina is set aside.
3.) Darya Klishina remains eligible to compete in international competitions, including the Olympic Games 2016, pursuant to the IAAF regulations.
