The Court of Arbitration for Sport (CAS) has ruled that as the Russian Olympic Committee (ROC) is suspended, the International Olympic Committee (IOC) did not discriminate against 32 Russian athletes by not inviting them to the PyeongChang 2018 Winter Olympics. Although the CAS has previously ruled that there was not sufficient evidence to bring forward evidence of an anti-doping rule violation (ADRV) against 28 of the 32 athletes, it decided that the IOC decision to exclude them was an eligibility decision and not a sanction. It ruled that the 32 applicants had not demonstrated that the IOC’s decision regarding their eligibility for the Winter Olympics was carried out in a discriminatory manner.

‘CAS arbitrators have considered that the process created by the IOC to establish an invitation list of Russian athletes to compete as Olympic Athletes from Russia (OAR) could not be described as a sanction but rather as an eligibility decision’, read a statement. ‘Although the Russian Olympic Committee (ROC) was suspended, the IOC nevertheless chose to offer individual athletes the opportunity to participate in the Winter Games under prescribed conditions – a process that was designed to balance the IOC’s interest in the global fight against doping and the interests of individual athletes from Russia.

‘At the hearing, the Applicants acknowledged that the IOC had the ability to institute such process. The CAS Panel found that the Applicants did not demonstrate that the manner in which the two special commissions (the Invitation Review Panel (IRP) and the Olympic Athlete from Russia Implementation Group (OAR IG) independently evaluated the Applicants was carried out in a discriminatory, arbitrary or unfair manner. The Panel also concluded that there was no evidence the IRP or the OAR IG improperly exercised their discretion.’

The decision means that Sochi 2014 gold medal winners such as Alexander Tretiakov (skeleton) and Alexander Legkov will not be able to defend their Olympic titles, despite the CAS ruling that evidence was not sufficient to bring an ADRV against them, and restoring their Olympic titles. “Of course, the athletes and us consider the decision of the CAS unfair”, said Russian Minister of Sport Pavel Kolobkov in a statement. “They are now with their lawyers and are studying various options”.

As the CAS’s reasoned decisions reveal, the key point is that the IOC had suspended the ROC, and that the decision to exclude the Russians was not considered a sanction. As such, the CAS Panel reasoned that constituted a different situation than that presented in the Yuliya Efimova case, when the ROC was not suspended and a decision to exclude the swimmer from the Rio 2016 Olympics was struck out as an additional sanction.

‘Once the IOC suspended the ROC, the ROC no longer had any right to enter athletes and support staff into the Olympic Games. As a result, no Russian athlete could, in normal circumstances, be entered into the Olympic Games‘, reads the CAS OG 18/03 decision (PDF below). ‘It may be that non-sanctioned individual athletes, including the Applicants, are prevented from participating in the Olympic Games simply because they are citizens of a country that has been found to have engaged in a systemic manipulation of the anti-doping rules. However, in light of the IOC’s overall objective to balance the interests of individual Russian athletes, the Panel concludes that any unfairness was a consequential effect of the suspension of the ROC and that the process was neither discriminatory nor unfair.

‘The Panel appreciates the distress and disappointment expressed by the Applicants present at the hearing about their loss of opportunity to participate at the OWG 2018, particularly because they believe the CAS decisions issued 1 February 2018 proved that they were not “cheaters”. As this Panel has noted, we are only deciding whether the process implemented by the IOC, in circumstances where the ROC was suspended and has failed to rebut the evidence of systemic manipulation of the anti-doping rules and system in Russia, was permissible and provided a fair opportunity for some athletes to be offered an opportunity to participate at the Games. The Panel has determined that the process, while it may have been imperfect due to time constraints, was appropriate, independent and fairly carried out.’

In the Efimova decision, the CAS ruled that Point 3 of the IOC decision to exclude the Russian swimmer (and other Russian athletes) from the Rio 2016 Olympics was ‘a sanction additional to the sanction imposed by reasons of an anti-doping violation’. It ruled that ‘in accordance with the principle of the autonomy of the association, an international body such as the IOC is entitled to take a decision applying collective responsibility and removing the presumption of innocence, while giving to each affected athlete the opportunity to rebut the applicability of collective responsibility in his or her individual case in application of the rules of natural justice and individual justice. However, if a specific point of its decision constitutes a detail of these personal rights, it is unenforceable.’

However, as the ROC was not suspended at that point, the onus was on the IOC to show why it had deprived an individual athlete of the above principles to exclude them from the Olympics. In the case of the 32 Russian athletes hoping to compete at the PyeongChang 2018 Winter Olympics, the ROC had already been suspended. Therefore all Russians were excluded unless they were invited.

‘No appeal was taken from the IOC’s decision to suspend the ROC, to establish the IRP or the discretionary powers invested in the IRP’, reads CAS OG 18/02. The appeals at the CAS did not challenge the suspension of the ROC, but argued that the IOC decision to exclude the individual athletes from the Games was unfair. The CAS ruled that it was not. Perhaps a challenge to whether the IOC had sufficient grounds to suspend the ROC might have been more successful.