31 January 2018

Why the CAS cannot support the IOC ban on Russian athletes

The Court of Arbitration for Sport (CAS) cannot support the International Olympic Committee’s (IOC) ban on Russians ever sanctioned from doping from competing at the PyeongChang 2018 Winter Olympics, unless it goes against its own jurisprudence. The CAS will announce its decisions on the 39 athletes that have appealed against IOC decisions to exclude them from PyeongChang 2018 tomorrow, however it has already ruled on similar cases ahead of the Rio 2016 Olympics.

The CAS cleared swimmer Yuliya Efimova to compete in Rio after ruling that the IOC couldn’t ban athletes previously sanctioned for doping from the Olympics. It ruled that ‘Point 3 of the IOC Executive Board’s decision, dated 24 July 2016, is unenforceable’. The CAS ruled the same way in the appeal of Russian rowers Anastasia Karabelshikova and Ivan Podshivalov against the same IOC decision.

‘The ROC is not allowed to enter any athlete for the Olympic Games Rio 2016 who has ever been sanctioned for doping, even if he or she has served the sanction’, reads Point 3 of the IOC decision on the participation of Russian athletes at Rio 2016. It is remarkably similar to the line stating that athletes sanctioned for doping by the IOC’s Oswald Commission are ‘declared ineligible to be accredited in any capacity for all editions of the Games of the Olympiad and the Olympic Winter Games subsequent to the Olympic Winter Games Sochi 2014’. Such a line is present in decisions here, here, here, here, here and here.

As previously reported, the IOC 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.

Yet despite extensive CAS jurisprudence, it appears that the IOC is again trying to exclude athletes who have already been sanctioned for doping from the Olympics. Rule 45 of the Olympic Charter, on which the Osaka Rule was based, remains in place.

Bye-law 3.3 of Rule 45 OC states that the IOC may ‘exclude from the programme any sport, at any time, if the relevant IF governing such sport does not comply with the Olympic Charter or the World Anti-Doping Code’. Bye-law 3.3 also refers to Rule 59.2.1 of the Charter, which states that the IOC may impose ‘temporary or permanent exclusion from the Olympic Games’ upon an athlete who violates the World Anti-Doping Code.

Rule 60 of the Charter states that ‘no decision taken by the IOC concerning an edition of the Olympic Games, including but not limited to competitions and their consequences such as rankings or results, can be challenged by anyone after a period of three years from the day of the closing ceremony of such Games’. As Sochi 2014 took place in February, the stipulated three years have expired, meaning that according to the IOC Charter’s rules, its decision to exclude Russian athletes from future editions of the Olympics cannot be challenged. ‘Any entry is subject to acceptance by the IOC, which may at its discretion, at any time, refuse any entry, without indication of grounds’, reads Article 44.3 of the Olympic Charter. ‘Nobody is entitled as of right to participate in the Olympic Games’.

“You may remember how disappointed we all were that CAS obliged the IOC in Rio to allow Ms. [Yulia] Efimova to participate”, said IOC President Thomas Bach in a media conference given on 5 December (video below). “Legally speaking, this decision is a different one. Here, we decide whom we want to invite. This is not about an exclusion or a sanction. This is about the discretion the IOC has with regard to the invitation of clean athletes.” It appears that in terms of the Olympic Charter’s wording, the IOC has prepared the ground. Whether the CAS will tell it to call a spade a spade tomorrow remains to be seen.

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