CAS 2016/A/4745 Russian Paralympic Committee (RPC) v. International Paralympic Committee (IPC)
Paralympics
Validity of an IPC’s decision to suspend a member organization
Failure of the national Paralympic Committee to comply with its anti-doping obligations
Regularity of the disciplinary process leading to a membership suspension
Proportionality of the suspension from membership of a national organization
Strict liability
1. The International Paralympic Committee (IPC) Constitution and IPC Anti-Doping Code make compliance with the obligation to pursue all potential anti-doping rule violations within its jurisdiction and to investigate cases of doping a condition of each National Paralympic Committee (NPC)’s membership of the IPC. On a national level and within the structure of the IPC as stipulated in the IPC Constitution, a NPC is the responsible entity having the obligation to the IPC as well as to the IPCs’ members to ensure that no violations of the anti-doping system occur within the country. The existence of a State doping system as described in a report commissioned by the World Anti-Doping Authority (WADA) means that the relevant NPC breached its obligations and conditions of membership of the IPC.
2. The disciplinary process leading to an IPC member’s suspension may have difficulty of application in circumstances where the deadlines are imposed upon the parties by external parties and external circumstances i.e. the imminent commencement of the Paralympic Games and the magnitude of the deficiencies to be remedied by the NPC. However, a notification letter regarding formal opening of IPC membership suspension proceedings shall be considered as an “official warning” compliant with the applicable requirements. Further, by entering into an arbitration agreement, the parties can answer the practical difficulties arising in these unusual circumstances and therefore agree upon a proceeding which is different to that provided in the IPC applicable disciplinary process. Moreover, the fact to also agree within the framework of such an agreed “taylor made” legal mechanism, that in accordance with the IPC Policy on Suspension of IPC Member Organisations, the IPC provided the NPC with a full opportunity to present its case to the IPC, both in writing and in person, excludes any failure to comply with the applicable procedural provisions.
3. An international federation may, in appropriate circumstances and in accordance with its Rules, suspend without reservation, or alleviation of the consequences to the athletes, a member federation based on a breach of its Anti-Doping Policy and based on reliable information, as long as such decision is within its power, has a proper legislative basis and is not irrational, or perverse, or outside the margin of discretion open to it. It must also serve a legitimate purpose and is suitable, necessary and appropriate for the objective which it aims to achieve. The suspension of the member federation is a means of restoring a level playing field and is, in addition, a powerful tool to provoke behavioural change within the member federation’s sphere of influence. Also, it is also a powerful message to restore public confidence. In the absence of submission of an alternative measure that would, comparably and effectively, be suited to achieve the goals pursued, it must be concluded that the decision is proportionate.
4. Under German law as well as Swiss association law, a sanction issued by an association against one of its members does not necessarily require that the member violated its obligation with fault.
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. Also Professor McLaren provided CAS a sworn affidavit in this case.
By letter the International Paralympic Committee (IPC) notified on 22 July 2016 the Russian Paralympic Committee (RPC) that it had opened suspension proceedings against it, based on a list of seven, non-exhaustive facts that it believed were established according to the McLaren Report.
After deliberations between the IPC and the RPC about the suspension proceedings the IPC decided on 7 August 2016 to suspend the membership of the RPC. As a consequence of the suspension the Russian parlympic athletes were excluded for the Rio 2016 Paralympic Games.
Hereafter on 15 August 2016 the RPC appealed the IPC decision of 7 August with the Court of Arbitration for Sport (CAS).
The RPC requested the Panel to order WADA and the McLaren investigation team to file all relevant evidence related to the RPC and its athletes.
RPC requested the Panel to annul the IPC decision of 7 August 2016 and to allow Russian Paralympic athletes to compete at the Rio 2016 Paralympic Games. The IPC requested the CAS Panel to dismiss the RPC appeal and to confirm the validity of the IPC decision of 7 Augusst 2016.
The Panel finds that the existence of the Disappearing Positive Methodology system as described in the McLaren Report and in the McLaren affidavit means that the RPC has breached its obligations and conditions of membership of the IPC.
The Panel concludes that the IPC took an action which it believed was necessary, as explained in its submissions. The Panel does not find that the IPC Decision lacks proportionality and the RPC has not established that the IPC has failed to comply with the procedural provisions of the Suspension Policy. Recent actions by the RPC don’t have sufficient weight to affect the proportionality of the IPC Decision.
Considering RPC arguments the Panel notes that the IOC Decision as to the participation of Russian athletes following the McLaren Report is not in contradiction with the IPC Decision.
Therefore the Court of Arbitration for Sport rules on 30 August 2016 that:
1.) The appeal filed by the Russian Paralympic Committee on 15 August 2016 against the decision rendered by Governing Board of the International Paralympic Committee on 7 August 2016 is dismissed.
2.) The decision rendered by the Governing Board of the International Paralympic Committee on 7 August 2016 is confirmed.
3.) The costs of the arbitration, to be determined and communicated separately by the CAS Court Office, shall be borne by the Russian Paralympic Committee.
4.) Each party shall bear its legal costs and expenses incurred in connection with the present proceedings.
5.) All further claims and prayers for relief are dismissed.
