SII Focus 5th August 2016

Federations face chaos & uncertainty regarding Rio 2016

The International Olympic Committee’s (IOC) decision on the participation of Russian athletes at the Rio 2016 Olympics created mass confusion amongst international federations (IFs) over the eligibility of Russian athletes, and appears to have created a bonanza for lawyers. This article is intended to set out the position of each international federation assessing whether Russia can send athletes to Rio, as well as discuss the potential legal issues they now face.

In the 24 July decision, the IOC required IFs to assess whether Russian athletes are eligible for Rio based on a list of criteria. IFs were required to analyse each athlete’s anti-doping record, only taking into account reliable international tests. They are not permitted to accept the entry of any athlete implicated in the WADA IP Report prepared by Richard McLaren, or accept the entry of any Russian athlete that has been sanctioned for doping at any point in the past.

The IOC said it would accept the IFs entry if those criteria had been met. Following the confusion created amongst IFs, the IOC then created an additional three-person panel on 1 August, which would assess whether the IFs had met the criteria outlined for them by the IOC. Then, on 2 August, the IOC sent a letter to IFs advising that an athlete should not be considered as ‘implicated’ in the WADA IP Report – the public version of which didn’t specifically name athletes – if the ‘McLaren List’ doesn’t refer to prohibited substance which would have given rise to an anti-doping rule violation (ADRV).

One of the criteria said that the Russian Olympic Committee (ROC) was not allowed to enter any athlete for the Rio 2016 Olympics who had previously been sanctioned for doping, however the IOC required IFs to make this assessment. On 4 August, the Court of Arbitration for Sport (CAS) ruled that this requirement was ‘unenforceable’.

On 4 August, the three-person IOC Review Panel announced that 271 of 389 Russians had been approved for entry to the Rio 2016 Olympics, meaning that 118 Russians have been excluded. Perhaps understandably, due to the changing circumstances outlined above, many IFs have been left wondering whether they have done the right thing on the eve of the Olympics. Perhaps more importantly for them, they are also concerned that such action may have left them open to legal action from athletes whom they should not have excluded.

IF confusion

From the start, there were signs of confusion about how the IOC’s decision should be applied by IFs. Team sports face a difficult task. Under the strict liability principles applicable under the World Anti-Doping Code, if more than two members of a team are found to have committed an anti-doping rule violation (ADRV), the entire team is sanctioned (Article 11.2). If two Russian team members fail to meet the IOC’s requirements regarding eligibility for Rio, is the entire team required to be excluded?

The International Canoe Federation (ICF) said that Russia had selected five-times world champion Alexey Korovashkov over Viktor Melantyev, who had secured the C2M 1000m Canoe Double quota along with Ilya Pervukhin, neither of whom ‘were connected to the McLaren Report or have any previous violations of ICF Anti-doping regulations’. The ICF did not give a reason for the ban, however it is assumed that Korovashkov was judged to have been ‘tainted’ by Russian systemic doping.

The ICF said that Russia’s quota for the C2M 1,000m event had been removed ‘and as things stand, the quota will be removed and not reallocated’. The ICF said that Korovashkov’s partner, Pervukhin, was not connected to the WADA IP Report and that he had not committed any previous violation of ICF anti-doping rules. Yet he has been banned from the Rio Olympics despite doing nothing wrong. Similar issues have arisen in rowing, where four boats containing 22 Russians were initially withdrawn, despite only 20 Russians being excluded.

A pragmatic approach appeared to have been adopted by World Sailing, which excluded Pavel Sozykin due to the findings of the McLaren Investigation Report. World Sailing allowed the Russian Olympic Committee (ROC) to nominate a replacement, who would presumably also have to be assessed. However on 2 August, its plans were thrown into disarray and it was forced to perform a u-turn over Sozykin’s place, due to additional guidance issued by the IOC, three days before the Olympics.

‘The IOC provided the new guidance yesterday (2 August) in a circular letter to all summer International Federations’, read a statement. ‘Specifically, with respect to the McLaren Independent Investigations Report commissioned by the World Anti-Doping Agency (WADA), the IOC has indicated that an athlete should not be considered as “implicated” if the McLaren list does not refer to a prohibited substance which would have given rise to an anti-doping rules violation.’

‘In the case of Mr. Sozykin, though he was identified in the McLaren Report in connection with the Disappearing Positive Methodology, the report did not include specific information as to whether the positive test occurred in-competition or out-of-competition’, continued the statement. ‘Further, the substance for which he tested positive is not prohibited out-of-competition and, if the sample had been taken out-of-competition, would not have resulted in a sanction’.

The International Fencing Federation (FIE) said that it was reanalysing all tests conducted on Russian athletes, both in and outside of Russia. The International Handball Federation (IHF) said that it had informed the Russian handball federation that it wants to conduct out-of-competition tests on the Russian team, which has qualified for Rio. Both of these statements appear to have missed the point of the IOC statement and the WADA IP Report, which appears to be that Russian athletes ‘tainted’ by the systemic doping system set up via the Moscow laboratory by the Russian Ministry of Sport should not be admitted to Rio. Although the IOC’s 2 August letter and the CAS’s 4 August rulings confuse this matter even further.

Legal issues

Swimmer Yuliya Efimova finds herself in an unusual situation. Having recently overturned an international swimming federation (FINA) ban after testing positive for meldonium, she thought she was going to Rio. However the IOC decision – which does not allow any Russian who has previously served a ban to compete at the Rio Olympics – means she cannot compete. Efimova was disqualified in 2014 for 16 months following a positive test for steroid hormone DHEA, which she claimed was due to taking a contaminated supplement.

On 4 August, the CAS ‘partially upheld’ her appeal, based on its previous ruling in the case of the Russian rowers, which found that excluding athletes who have previously served a doping ban from Rio is ‘unenforceable’. However, it she going to Rio? The CAS ruled that ‘all other prayers for relief have been rejected, including 1) the request that Yulia Efimova be directly declared eligible to participate in the Rio 2016 Olympic Games and 2) the request to oblige the IOC to accept the entry of Yulia Efimova to compete in the Rio 2016 Olympic Games.’ Presumably, FINA will have to decide – and soon.

As previously reported by The Sports Integrity Initiative, the IOC decision banning athletes who have served a doping ban from competing in Rio goes against legal precedent. “The IOC’s decision to permit some Russian athletes to compete in the Olympics but not those who have previously tested positive seems based on politics and not what the law demands,” Paul Greene of Global Sports Advocates told World Sports Law Report. “The IOC’s decision on its face violates the 2011 USOC v. IOC CAS decision since it is an impermissible second sanction for the group being excluded from the Games on the basis of their prior doping violation.”

Mike Morgan of Morgan Sports Law LLP agrees. “One of the major problems with the IOC’s decision is the Russians who were named in McLaren’s report as being protected have been withdrawn from the Olympics without having their cases tested in court”, he told The Guardian. “It circumvents the athletes due-process rights. Simply being named as a protected athlete does not mean they have taken a banned substance. Let’s say the IOC and their individual federations kick them out and in a few months we discover these athletes are not found to have committed an anti-doping violation? We are going to end up with athletes who should have gone to the Games. The harm done to them will be irreparable and the only way to make up for it would be a claim for substantial damages.”

It does appear odd that the IOC would go against legal precedent established in cases it was directly involved in. In a 2011 ruling, the CAS struck out the IOC’s Osaka Rule (Rule 45 of the Olympic Charter), which mandated that any athlete serving a doping ban of six months or longer would be prohibited from taking part in the next edition of the Olympic Games. ‘The IOC Regulation provides for an additional disciplinary sanction […] after the ineligibility sanction for an anti-doping rule violation under the WADA Code has been served’, it said.

As expected, the CAS has ruled that such a ban is unenforceable. But then, perhaps that was always the plan. When WADA was set up at the World Conference on Doping in Sport in Lausanne in 1999, the meeting was convened by the International Olympic Committee (IOC), which initially funded WADA and still provides half its budget today (the other half comes from government donations). It is perhaps a more ‘separate’ body from the IOC than had been envisaged at that 1999 meeting. The IOC has already announced that sanctioning at Rio will be ‘independent’, however whether sanctions issued by the CAS – which is funded by sport and whose arbitrators mostly have links to the sporting bodies that fund it – is truly independent is a debate for another article.

Either way, the CAS anticipated the extra case load and opened two temporary offices to deal with doping issues at Rio 2016. Listed below is the current status of the IFs regarding participation of Russian athletes at Rio 2016. This list is (still) intended to be a ‘living’ document, and will be updated as IFs confirm the status of Russian athletes.

Archery

World Archery has approved the selection of all three Russian athletes (Tuiana Dashidorzhieva, Ksenia Perova and Inna Stepanova) for the Rio 2016 Olympics.

Athletics

The International Association of Athletics Federations (IAAF) has suspended the Russian Athletics Federation (RusAF), which means that its 68 athletes are ineligible to compete in the Rio 2016 Olympics. The CAS rejected an request for arbitration from the 68 athletes and the Russian Olympic Committee (ROC), and an appeal against the decision from 67 of the athletes. The IOC recently ruled that Yuliya Stepanova (the 68th athlete), whom the IAAF had cleared to compete, is not eligible to compete. The Stepanovs dispute the IOC’s decision.

Badminton

The Russian badminton federation (NBFR) issued a statement saying that it had received a letter from the Badminton World Federation (BWF) clearing its four players and two reserves to participate in Rio. They are Vladimir Malkov (men’s singles), Natalia Perminov (women’s singles), Vladimir Ivanov and Ivan Sozonov (men’s doubles category). The  first reserves are Vitalij Durkin and Nina Vislova (mixed doubles).

Boxing

On 4 August, the International Boxing Federation (AIBA) announced that all 11 Russian boxers selected for Rio 2016 would be eligible. The Russian boxers travelled to Rio without knowing whether they could compete. Prior to 4 August, the Executive Director of the Boxing Federation of Russia, Evgeny Sudakov, has said that the Russian boxers were in Rio, yet he was still awaiting a formal decision.

Canoe/Kayak

The International Canoeing Federation (ICF) has removed five of 19 Russian athletes selected for Rio 2016. These are:

• Elena Aniushina (Kayak Double K2W 500m);
• Natalia Podolskaia (Kayak Single K1W 200m);
• Alexander Dyachenko (Kayak Double K2M 200m);
• Andrey Kraitor (Canoe Single C1M 200m);
• Alexey Korovashkov (Canoe Double C2M 1000m).

The first four of these spots will be reallocated as follows:

• Austria – Kayak Double (K2W) 500m Women;
• Germany – Kayak Single (K1W) 200m Women;
• Sweden – Kayak Double (K2M) 200m Men;
• Iran – Canoe Single (C1M) 200m Men.

The final fifth spot will not be reallocated due to the reasons outlined in the introduction above.

Cycling

The Union Cycliste Internationale (UCI) announced that three cyclists named by the ROC to compete at Rio 2016 are implicated in the WADA IP Report, and three have been removed for previous doping offences. It also cleared the other 11 remaining cyclists named by the ROC as part of the Russian team for Rio.

Equestrian events

On 4 August, the Fédération Equestre Internationale (FEI) announced that all five equestrian athletes had been cleared to compete.

Fencing

The International Fencing Federation (FIE) has cleared 16 Russian fencers and four reserve athletes selected to compete at Rio 2016. The FIE said it had ‘re-examined’ 197 tests taken by Russian fencers in 35 countries, including Russia. ‘They were all negative’, read a statement.

Golf

One golfer, Maria Verchenova, is scheduled to compete at Rio 2016. A 3 August post on her Facebook page said she was ‘getting ready’ for Rio, suggesting that she will be competing. A ‘field list‘ of athletes competing at Rio, updated on 1 August, confirms that Verchenova will be competing at Rio. On 4 August, a statement from the International Golf Federation (IGF) confirmed that she has been cleared to compete.

Gymnastics

Shortly after the IOC’s decision, the International Gymnastics Federation (FIG) said it would rule ‘as soon as possible’ on the 21 gymnasts selected to take the floor at Rio 2016. On 4 August, it announced that all 20 gymnasts had been cleared to compete, but that a decision on the seven reserve gymnasts is due today.

Handball

The International Handball Federation (IHF) immediately announced that it had sent a letter to the Russian handball federation ‘in order to conduct out-of-competition tests of the Russian women’s team’, which has qualified for Rio 2016. ‘The samples will be analysed by one of the WADA accredited laboratories which will integrate the results directly into ADAMS [Anti-Doping Administration & Management System]’. On 4 August, the IHF announced that the women’s handball team had been approved to participate in Rio. The Russian men’s team did not qualify.

Judo

The International Judo Federation (IJF) has cleared all eleven judoka scheduled to compete at Rio 2016. Russian President, Vladimir Putin, is an Honorary President of the IJF.

Modern Pentathlon

The Union Internationale de Pentathlon Moderne (UPIM) has established that samples taken from Maksim Kustov and Ilia Frolov (reserve) were part of the ‘Disappearing Positive Methodology’ outlined in the WADA IP Report. ‘According to the McLaren Report, both athletes tested positive for trenbolone, methenolone and oxandrolone when the samples were analysed in a Moscow laboratory in August 2014 but the findings were not reported as such’, reads a UPIM statement.

The place left vacant in the Men’s Individual event has been reallocated to Latvian athlete, Ruslan Nakonechnyi. The other three athletes entered on the Russia team – Aleksandr Lesun, Donata Rimshaite and Gulnaz Gubaydullina – are eligible to compete.

Rowing

World Rowing (FISA) said that six Russian rowers have met the conditions required to compete at Rio 2016, but 20 others are not eligible. It decided this through two decisions. The first decision disqualified three rowers. Anastasiia Karabelshchikova and Ivan Podshivalov were disqualified for prior doping offences in 2007/8. FISA received information on 22 July that 11 tests on ten rowers had been manipulated by Russia, one of which was Ivan Balandin from the Russian Men’s eight.

The second decision found that while six rowers are eligible for Rio, 17 rowers are not. The six eligible Russians are:

• Aleksandr Chaukin
• Georgy Efremenko
• Artem Kosoc
• Nikita Morgachev
• Vladislav Ryabcev
• Anton Zarutskiy

As a result of the disqualifications, four Russian boats (LM4-, LW2x, M8+ and W8+) have been withdrawn from Rio. Russia has an opportunity to form a men’s four (M4-) from the six eligible rowers, an opportunity that World Rowing confirmed it had accepted, on 28 July. The four withdrawn boats have been reallocated to the next-placing crews as follows:

• LM4- to Greece, the Hellenic Rowing Federation;
• M8+ to the Italian Rowing Federation;
• W8+ to the Australian Rowing Federation;

And in the 2016 European Continental Qualification Regatta in Lucerne, Switzerland:

• LW2x to the Italian Rowing Federation.

On 3 August, the CAS dismissed an appeal from 17 Russian rowers against their suspension. On 4 August, the CAS ruled that FISA would have to reconsider its ban on Karabelshikova and Podshivalov, since excluding athletes from Rio on the basis that they have previously served a doping ban is ‘unenforceable’.

Sailing

World Sailing decided that six sailors are eligible to take part at Rio 2016, but one Sozykin is not. ‘Pavel Sozykin was denied eligibility, based upon the findings of the McLaren Investigation Report’, read a statement. ‘As Sozykin competes in the 470 Men’s Class, which is a two-person racing classification, World Sailing has recommended that the Russian Olympic Committee will have the opportunity to nominate a late athlete replacement’.

The six athletes that have been cleared to compete are:

• Stefania Elfutina (RS:X Women);
• Maksim Oberemko (RS:X Men);
• Liudmila Dmitrieva (470 Women);
• Alisa Kirilyuk (470 Women);
• Sergey Komissarov (Laser Men);
• Denis Gribanov (470 Men).

Since then, things have taken a bizarre turn. On 4 August, World Sailing confirmed that it had received confirmation from the IOC that the six athletes named above have been cleared to compete, however it said it was still awaiting confirmation regarding Sozykin. A day earlier, it had changed its mind over his participation, recommending that he be allowed to compete. ‘The IOC provided the new guidance yesterday (2 August) in a circular letter to all summer International Federations’, read a statement. ‘Specifically, with respect to the McLaren Independent Investigations Report commissioned by the World Anti-Doping Agency (WADA), the IOC has indicated that an athlete should not be considered as “implicated” if the McLaren list does not refer to a prohibited substance which would have given rise to an anti-doping rules violation.’

‘In the case of Mr. Sozykin, though he was identified in the McLaren Report in connection with the Disappearing Positive Methodology, the report did not include specific information as to whether the positive test occurred in-competition or out-of-competition’, continued the statement. ‘Further, the substance for which he tested positive is not prohibited out-of-competition and, if the sample had been taken out-of-competition, would not have resulted in a sanction’.

Shooting

The International Shooting Sport Federation has cleared all 18 Russians selected for Rio 2016. ‘The 18 Russian shooters who have been entered by the ROC to participate in the Rio 2016 Olympic Games are neither mentioned in the McLaren Report nor have they tested positive further to a doping control according to the information we possess’, read a statement. ‘Further, all Russian athletes are being carefully monitored as part of ISSF’s intelligence based testing program’.

Swimming

The Fédération Internationale de Natation (FINA) instantly declared that seven swimmers are ineligible for Rio 2016. Four athletes that have previously been sanctioned for doping have been withdrawn by the ROC, while three further athletes appear in the McLaren IP Report.

Athletes withdrawn by the ROC:

• Mikhail Dovgalyuk;
• Yulia Efimova;
• Natalia Lovtcova;
• Anastasia Krapivina (Marathon Swimming).

Athletes appearing in the WADA IP Report:

• Nikita Lobintsev;
• Vladimir Morozov;
• Daria Ustinova.

However, an ad-hoc commission created by FINA is investigating the other 29 Russian swimmers that have qualified for Rio 2016. Eight divers, nine synchronised swimmers and 13 water-polo players will also have to be assessed. FINA was forced to deny that it had cleared Morozov and Lobintsev to compete in Rio, after Lobintsev was cleared by the US Anti-Doping Agency (USADA), having reported an AAF for meldonium. Both swimmers have appealed to the Court of Arbitration for Sport (CAS) against their exclusion, along with Efimova.

On 4 August, the CAS ruled that banning Efimova from Rio on the basis that she has previously served a doping ban is ‘unenforceable’, however her status will need to be confirmed by FINA.

Table tennis

On 27 July, the International Table Tennis Federation (ITTF) announced that all three Russians who had qualified for Rio would be allowed to compete. The ITTF said that Alexander Shibaev, Polina Mikhailova and Maria Dolgikh had not been implicated in the WADA IP Report.

Taekwondo

There has been no statement from the World Taekwondo Federation (WTF) on the three Russians scheduled to compete at Rio 2016. However Anatoly Terekhov, head of the Russian Taekwondo Union, told RSport that WTF had cleared the three Russian athletes to compete.

Tennis

The International Tennis Federation (ITF) announced on 24 July that all eight Russians qualifying for Rio 2016 would be eligible to compete. ‘The eight Russian tennis players who have been nominated to compete in Rio have been subject to a rigorous anti-doping testing programme outside Russia’, read a statement.

Triathlon

The International Triathlon Union (ITU) has cleared all six Russians that qualified to compete at Rio 2016, as can be seen from the men’s and women’s start lists. Russia will be sending the maximum quota of triathletes to the Games.

Volleyball

Although no official announcement was made by the Fédération Internationale de Volleyball (FIVB), both a men’s and women’s team are listed on the Rio 2016 official website. In beach volleyball, one female pair and two male pairs are listed. It has been reported that Alexander Markin has been banned from competing by the FIVB due to a historic positive test for meldonium.

Weightlifting

The International Weightlifting Federation (IWF) decided to ban both Russian athletes and officials from the Rio 2016 Games on 29 July, judging that under Article 12.4 of the IWF Anti-Doping Policy, as ‘the Russian Weightlifting Federation and Russian weightlifters brought the weightlifting sport into disrepute’. The IWF said that eight Russian weightlifters were scheduled to compete in Rio, after it withdrew two quota places at the end of June.

The IWF said that Tatiana Kashirina and Anastasiia Romanova’s nominations were withdrawn by the ROC due to prior anti-doping rule violations. Four additional athletes were listed in the WADA IP Report as beneficiaries of the ‘disappearing positive’ methodology outlined. That leaves two weightlifters who have been banned despite not having previously reported a doping positive, or being implicated in the WADA IP Report.

To replace the eight removed Russians, the IWF has offered one quota place each to women from Albania, Georgia and Moldova. Male quota places have been offered to one weightlifter from Belgium, Croatia, Spain, Mongolia and Serbia. On 3 August, the CAS dismissed an appeal from the Russian Weightlifting Federation (RWF) against the suspension.

The IWF has already banned Bulgaria from the Rio Olympics, after its national federation reported 11 positives in March. It could do this due to its unique rules – Under Article 12.3 of its anti-doping policy, the IWF can ban all ‘team officials’ from IWF activities for a period of up to two years if a member federation reports over nine positives in a year. It can also suspend a member federation if it refuses to pay a fine after reporting over three positives in a year.

On July 27, the IWF reported that four additional Russians had tested returned an adverse analytical finding (AAF) from the IOC’s ‘second wave’ reanalysis of samples taken at the London 2012 Olympic Games. The following table lists the 25 weightlifters who have tested positive due to the IOC’s retests of samples given at the Beijing 2008 and London 2012 Olympics – including seven Russians.

Wrestling

United World Wrestling (UWW) cleared 16 of 17 Russians named by the ROC as qualifying for the Rio 2016 Olympics. ‘None of the wrestlers entered in the Olympic Games – or who qualified a place for their NOC – was included in the McLaren report’, read a UWW statement. ‘Per regulations set by the International Olympic Committee (IOC), Viktor Lebedev (Freestyle, 57kg) was not cleared for consideration due to a positive doping test at the 2006 Junior World Championships’.

Lebedev has served his ban and has since won the World Championships twice, as well as a number of other titles. As previously reported by The Sports Integrity Initiative, he could argue – like many other athletes – that he is being punished twice for the same offence.

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