CAS 2016/A/4770 Margarita Goncharova et al. v. International Paralympic Committee (IPC)
- Paralympics
- Eligibility of paralympic athletes for the Rio 2016 Paralympic Games
- Principle of competence-competence
- Incompetence of CAS resulting of an absence of arbitration
- agreement between the relevant parties
1. According to art. 186 of the Swiss Private International Law (PILA), CAS has the power to decide on its own jurisdiction. If it makes an error in so doing then art. 190(2) of the PILA confers a right of appeal to the Swiss Federal Tribunal.
2. CAS is incompetent to deal with an appeal lodged by a Paralympic athlete against an International Paralympic Committee (IPC)’s decision rejecting to exercise its discretion to enter said athlete as “neutral” athlete in the Rio 2016 Paralympic Games. Paralympic athletes only become bound by the arbitration agreement contained in art. 2.8 of the IPC Handbook if and when, having submitted their respective applications for accreditation, they are eligible to compete or participate in the Paralympic Games.
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 paralympic athletes were excluded for the Rio 2016 Paralympic Games.
On 15 August 2016 the RPC appealed the IPC decision of 7 August with the Court of Arbitration for Sport (CAS). However the CAS Panel decided on 30 August 2016 (CAS 2016/A/4745) to dismiss the RPC appeal and to confirm the IPC decision of 7 August 2016. Next the RPC appealed the CAS decision of 30 August 2016 with the Swiss Federal Court, however the Court rejects the RPC’s arguments and decided on 3 April 2017 to dismiss the RPC appeal.
All 34 Appellants in this case are Russian para-athletes of international level who are affiliated to the Russian Paralympic Committee (RPC).
Following the aforementioned events the IPC received approximately 227 individual athlete requests from Russian athletes to be entered as such neutral athletes, including requests, from each of the 34 Russian Para-athletes. None of those requests were received prior to 25 August 2016 and, as the Rio Paralympics were scheduled to start on 7 September 2016, those applications had to be considered under considerable time pressure.
On 31 August 2016 the IPC submitted to the 34 Para-athletes that it refused to exercise its “discretion” to enter each of them as a “neutral” athlete in the Rio 2016 Paralympic Games. On the same day the 34 Russian Para-athletes appealed the IPC refusal of their request with the Court of Arbitration for Sport.
Applying the relevant legal principles to the dealings between the parties, a majority of the Panel concludes that it has no jurisdiction to hear or determine these appeals. In these circumstances, it is unnecessary and inappropriate for the Panel to express any views upon the issues of mootness or the “merits” of the appeal.
Therefore the Court of Arbitration for Sport decides on 20 October 2017 that:
1.) CAS has no jurisdiction to deal with the appeal filed on 31 August 2016 by Margarita Goncharova and the 33 other people listed in the Schedule hereto.
2.) (…).
3.) (…).
4.) All other motions or prayers for relief are dismissed.
