The International Olympic Committee (IOC) has invited 169 of the 500 Olympic Athletes from Russia (OAR) that applied to take part in the PyeongChang 2018 Winter Olympics, it told journalists (Reuters) on 27 January. The invitations were issued at the OAR Delegation Registration Meeting (DRM) in PyeongChang and are understood to be final.

The finality of the List raises questions about what will happen should any of the 39 Russians appealing against IOC sanctions be successful in their appeals before the Court of Arbitration for Sport (CAS). The IOC has been careful to emphasise that the exclusion of Russian athletes is not based on a specific doping violation, but is because Russian athletes were part of a ‘conspiracy, which infected and subverted the Olympic Games in the worst possible manner’. If the CAS rules that such an exclusion is unacceptable, the whole house of cards could come crashing down.

The finality of the list has already been underlined in two IOC statements (here and here), and was confirmed by Pavel Kolobkov, Russia’s Minister of Sport. “We have been presented with an official and final list”, he said in a statement published by the Russian Olympic Committee (ROC). “Unfortunately, despite the best efforts of some of the leading Russian athletes, their application has been refused”, continued ROC Vice President Stanislav Pozdnyakov. “Our composition is thinned, but I am sure that every athlete who goes to PyeongChang will realise that it is not only for himself, but for his comrades who, in our opinion, have been unfairly deprived of taking part in the Olympic Games”.

Legal challenge

On 25 January, following questions about the exclusion of some of Russia’s leading athletes, the IOC published a list of criteria is used to assess whether an application to compete as an OAR should be accepted. Kolobkov suggested that having studied these criteria, a legal challenge is being considered.

“We will study together the legal options for challenging those criteria and the decisions of the IOC, defending the interests of all our athletes without exception”, he continued in the statement. “We are confident that they are ‘clean’”.

The criteria included information within the Laboratory Information Management System (LIMS) used by the Moscow Laboratory, which is understood to have been supplied to the World Anti-Doping Agency (WADA) by Dr. Grigory Rodchenkov and Tim Sobolevsky. ‘Evidence of cases with highly suspicious Steroid Profile values was considered in the context of gender and sport’, read the IOC’s statement. ‘This information has been exclusively extracted from the secured LIMS database for the Panel. The complete results will be provided to the International Federations in the coming days […] Evidence of Steroid Profile manipulation by the Moscow laboratory (i.e. discrepancy between the data reported in ADAMS and LIMS) in order to hide and modify the Steroid Profile values. This information has been exclusively extracted from the secured LIMS database for the Panel. The complete results will be provided to the International Federations in the coming days.’

WADA has not clarified how it came into possession of the new database. However, the Investigative Committee of the Russian Federation (SKR) has alleged that Sobolevsky and Rodchenkov had attempted to obtain the databases on behalf of WADA and Richard McLaren from a former Director of the Moscow Anti-Doping Centre, Maria Dikunets, in exchange for a monetary reward and protection in the US or Canada. We have yet to find out whether the CAS will accept evidence from LIMS obtained under such circumstances.

House of cards

Whether the IOC can exclude an athlete from the Olympics on the premise that they may have been involved in systemic doping is a prospect that has yet to be accepted. The IOC has indicated it is aware that the prospect will be tested by the CAS in its hearings into the 39 Russians that have filed appeals against their exclusion, but a verdict will not be published until 30 January at the earliest. Yet the IOC is at pains to emphasise that the List of 169 OARs is final.

As mentioned, the IOC has been careful to clarify that the exclusion of Russian athletes is not based on a specific doping violation. However, as previously reported, it has also indicated that it is aware that the exclusion of Russian athletes previously sanctioned for doping could be considered as a double punishment, violating the legal principle of non bis in idem.

‘The Disciplinary Commission underlines that it is conscious that the decision it issues in respect of ineligibility is likely to be challenged with reference to the CAS award CAS 2011/0/2422 USOC v/ IOC’, reads page 42 of the Reasoned Decision regarding the exclusion of Evgeniy Belov from the Olympics (PDF below). ‘The Disciplinary Commission considers that the present situation is not the same as the one which was the subject matter of that award. In that case, the decision of ineligibility was not linked with a decision made in connection with violations that occurred at the Olympic Games, but rather in connection with decisions issued by other bodies in a different case. This notably raised the issue of double jeopardy. Such an issue is not at stake in the present case. In this case the ineligibility is part of one decision, addressing consequences of occurrences at the Olympic Games in application of the regulations applicable thereto.’

The legal principle non bis in idem – or double jeopardy – prevents a defendant from being punished twice for the same offence. It is a principle that the CAS has already ruled is applicable to IOC rules and regulations. In 2011, the CAS struck out (PDF of judgement below) the ‘Osaka Rule’, which was baed on Rule 45 of the Olympic Charter. The Osaka Rule prevented athletes who have been sanctioned with a doping ban of six months or more from participating in the next edition of the Olympic Games.

The IOC is therefore aware that the CAS will consider whether its decisions to exclude Russian athletes from the Olympics for life qualify as double jeopardy, or being punished twice for the same offence. Yet it is prepared to usurp CAS’s jurisdiction by publishing its final List of OARs invited to take part in the PyeongChang 2018 Winter Olympics before the CAS has had a chance to deliver its ruling. This is likely to form the basis of any Russian legal challenge to the IOC’s List of 169 athletes invited to the Games.

Choppy waters

This dilemma emphasises that the IOC is in choppy waters. It is under intense pressure from athletes and NADOs to exclude Russian athletes from PyeongChang, yet it does not have the regulations set up to do so (although WADA is making changes to that effect).

It is an accepted principle of anti-doping that an athlete who has committed an anti-doping rule violation (ADRV) should be excluded until their ban is served. Once their ban is served, they should be allowed to return. The IOC is asking is that athletes whose bans have been served should be excluded. It is also asking that athletes should be excluded where evidence exists that they were involved, but is not sufficient to bring forward an ADRV against that athlete.

Whether the CAS accepts such evidence remains to be seen. However the fact that the IOC is prepared to issue a final List of athletes before CAS rules speaks volumes about how it thinks it will rule.