SII Focus 14 September 2016

Analysis: Russian cyclists threaten legal action over Rio 2016 ban

Russian cyclists Dmitry Sokolov, Kirill Sveshnikov and Dmitry Strakhov have reportedly written a letter to sport’s governing bodies threatening further legal action, after the Court of Arbitration for Sport (CAS) rejected their appeal against the Union Cycliste Internationale’s (UCI) decision to exclude them from the Rio 2016 Olympic Games. The CAS rejected the appeal as it found that the International Olympic Committee (IOC) was responsible for the final decision to exclude the three cyclists, and not the UCI.

‘These riders are eligible under the UCI Regulations to participate in the Rio 2016 Olympic Games as the information provided so far by Prof. McLaren is not sufficient to instigate disciplinary proceedings or impose provisional suspensions under the UCI Anti-Doping Rules’, wrote the UCI to the IOC in a 3 August letter. However in a same-day response, the IOC determined: ‘The three athletes Dmitri Sokolov, Dmitri Strakhov and Kirill Sveshnikov do not meet the criteria set by the IOC Executive Board and are therefore not deemed eligible for entry in the Olympic Games Rio 2016’.

As the cyclists decided to exclude the IOC from their appeal at the CAS, the CAS determined that the case was inadmissible, as the IOC had taken the final decision to exclude the cyclists. ‘The Applicants cannot maintain an appeal against a decision made by the IOC, when it is not a party to these proceedings’, reads the decision. ‘The position taken by the Panel in this case is that the Appeal or application must be dismissed because the Applicants lack standing to sue’.

In practice this means that despite the fact that the merits of their case have not been heard, the three Russian cyclists are left with no avenue of appeal. This is because as part of the ‘athlete agreement’, elite athletes have to recognise the CAS as the final court of appeal, and promise to keep disputes out of ordinary courts of law. This is stipulated in Article 74 of the UCI Constitution, and stems from Article 61 of the Olympic Charter. It will therefore be interesting to see what form an appeal might take.

The CAS decision does not reveal what the athletes had been accused of taking, but according to the letter, which has been obtained by Inside The Games, information obtained from the WADA Independent Person (IP) Report led to a claim that there was a ‘probability of [the] presence of EPO [erythropoietin] allegedly detected in our urine samples’.

Professor Richard McLaren wrote the WADA IP Report, which the IOC required international federations to use in order to ascertain whether their athletes had been implicated in systemic Russian doping. International federations were required to ‘examine the information contained in the IP Report, and for such purpose seek from WADA the names of athletes and National Federations (NFs) implicated’, by a 25 July IOC decision. ‘Nobody implicated, be it an athlete, an official, or an NF, may be accepted for entry or accreditation for the Olympic Games’.

Dr. Grigory Rochenkov was Director of the Moscow & Sochi Labs

The cyclists allege that McLaren’s evidence of their EPO use was based solely on the testimony of Dr. Grigory Rodchenkov, who they assert is unreliable. ‘We cannot understand why we were banned from the Olympics due to this insane criminal’s testimony, in violation of the World Anti-Doping Code’s provisions’, reads the letter obtained by Inside The Games. ‘We evidently were deprived of any fair possibility just to present our explanations in relation to these unfounded and false allegations made by such a persistent offender like Mr. Rodchenkov.’

The first Independent Commission Report, released in November last year, found that Rodchenkov’s explanation regarding the destruction of samples at the Moscow laboratory was ‘not credible’, and that he had extorted money in return for covering up drug tests. The WADA IP Report also appears to contain two different versions about how ‘protected’ Russian samples were identified at the Moscow laboratory.

Rodchenkov is also understood to have been arrested in 2011 for alleged involvement in a doping ring, along with his sister. Evidence also exists that following this, he was committed by the Russian authorities to an asylum after a suicide attempt, and was spared punishment for involvement in the doping ring so that he could play a crucial role at the Sochi 2014 Winter Olympics.

That role was subsequently revealed in the WADA IP Report. Questions remain over how international federations used the information supplied by Rodchenkov to McLaren to sanction Russian athletes, and whether such information was reliable. The Investigative Commission of the Russian federation (SKR) is pursuing legal action against Rodchenkov for acting alone, and one of the perceived failings of the WADA IP Report was that it didn’t talk to the Russian authorities concerning its findings.

The second part of the WADA IP Report will be published at the end of October. It appears that by failing to publicly verify Rodchenkov’s evidence, WADA may have opened itself up to similar attempts at legal action by athletes. McLaren is a respected international lawyer, so must have had confidence that his evidence was irrefutable. It could simply be the case that we have yet to see it.

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