The International Bobsleigh & Skeleton Federation (IBSF) is to appeal a decision not to re-impose provisional suspensions on Alexandr Zubkov and Aleksandr Tretiakov, after its Doping Hearing Panel ruled that to do so would breach the World Anti-Doping Code and the principles of international law. Unless the Court of Arbitration for Sport (CAS) accepts the IBSF appeal, the decision will mean that the two Sochi 2014 gold medal winners are banned from the Olympics for life, but are eligible to compete in IBSF events.

The decision has particular significance for Zubkov, who was appointed as President of the Russian Bobsleigh federation in June last year. This was despite him being named by Dr. Grigory Rodchenkov, Director of the Sochi 2014 Laboratory, as one of the athletes he ‘helped’ through administration of The Duchess, his specially developed cocktail of performance enhancing drugs.

The International Olympic Committee (IOC) disqualified skeleton gold medal winner Tretiakov and banned him from any future edition of the Olympic Games on 22 November. Zubkov, who took gold in the two and four man bobsled, was issued with a similar sanction on 24 November. The IBSF gave both athletes the opportunity for a provisional hearing, which took place on 1 December. The IBSF panel found that there was not yet sufficient evidence to maintain the provisional suspensions, and invited the IOC’s Oswald Commission to present Reasoned Decisions behind both sanctions.

On 6 December, the IBSF received the Reasoned Decisions from the Oswald Commission, and the IBSF Panel reconvened on 15 December to consider whether provisional suspensions could be reasserted on both athletes. It found that as Dr. Rodchenkov had not appeared before the Disciplinary Panel, this constituted a breach of Article 10.6 of the World Anti-Doping Code, and ruled that to reimpose a provisional suspension was ‘not compatible with the principles of international law, Swiss procedural law and in particular with article 6 § 1 of the European Convention for the Protection of Human Rights regarding the right to a fair process’.

Tretiakov has been provisionally suspended by the IBSF before. On 30 December 2016, the IBSF informed Tretiakov that he was provisionally suspended due to an IOC investigation, however that provisional suspension was lifted following a provisional hearing on 8 January 2017. A panel found that ‘at this very moment there is not (yet) sufficient evidence against the Athletes that would justify the provisional suspension’, and asked the IOC to ‘share any outcome of its investigation with the IBSF in order to potentially reconsider the position of the Athletes in this respect’.

A total of 32 Russian athletes have been disqualified from the Sochi 2014 Olympic Games due to decisions of the IOC’s Oswald Commission. All have vowed to appeal to the CAS and 22 have already filed cases.

As previously reported by The Sports Integrity Initiative, all athletes sanctioned by the Oswald Commission have been banned from future editions of the Olympic Games for life. In the Reasoned Decisions published to date, the IOC argues that such bans do not violate the legal principe of non bis in idem, or double jeopardy – in other words, being punished twice for the same offence.

The violation of such principle was the reason that in 2011, the CAS struck out the ‘Osaka Rule’, which was based on Rule 45 of the Olympic Charter and prevented athletes who had been sanctioned with a doping ban of six months or more from competing in the next Olympics. ‘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 20111012422 USOC vi IOC’, reads para. 484 of the Tretiakov Reasoned Decision (PDF below).

However, it argues that the life ban from the Olympics does not qualify as non bis in idem because it is a separate sanction. ‘The participation in such conspiracy not only constitutes violations pursuant to the IOC Anti· Doping Rules, it constitutes a fundamental misbehaviour directly affecting the core values of the Olympic Games’, reads para. 480.

It will be interesting to see whether the CAS agrees. It is understood that the IBSF appeal will be heard in January.