26 November 2021

Lasitskene Decision: can an athlete challenge blanket exclusion?

Competing as an Authorised Neutral Athlete (ANA), Maria Lasitskene (Мария Ласицкене) won High Jump Gold at the postponed Tokyo 2020 Olympics in August this year. However up until 18 March, when the World Athletics Council reinstated the ANA process, she didn’t know if she would be able to compete at all.

It was alleged that Lysenko was intimidated…

The ANA process allows Russian athletes who can prove they have been adequately tested and that they were untouched by Russian State doping to compete in international competitions. Stung by the involvement of senior Russian Athletics Federation (RusAF) officials in falsifying documents in an attempt to prevent fellow High Jumper and Tokyo 2020 medal prospect Danil Lysenko (Данил Лысенко) from being sanctioned, World Athletics suspended the ANA process completely on 2 December 2020.

Lasitskene had been openly critical of senior RusAF and Russian Olympic officials about their involvement in such manipulations on more than one occasion. She saw it as unfair that young, clean athletes who were not competing when Russian State doping was taking place were paying for the actions of corrupt officials.

As such, in January 2021 she financed an appeal against World Athletics’ Decision to suspend the ANA process. In an unpublished 8 November Decision (PDF below), the Court of Arbitration for Sport (CAS) ruled that as World Athletics’ Rules and Decisions hadn’t directly affected her, she had no standing to appeal a sanction issued against a member federation. As such, the CAS didn’t consider the merits of her case.

‘The CAS ruled that these limitations were not directed against me personally, but against RusAF, and my chances of losing the ANA status were theoretical’, writes Lasitskene in the above Instagram post. ‘Therefore, the appeal was declared inadmissible because my rights have never been infringed. This is really hilarious to hear for an athlete who has already missed three years of international competitions in the last six years. Moreover, the appeal was filed at the time when I could not compete for a year already and could not defend my title at the European indoor championships and was close to missing the second Olympics in a row. All these issues have been ignored by the so called independent arbitration panel and they found the necessary legal tools to support their decision. 

‘In recent years, Russia has been accused of creating a certain ‘system’ within the sport. In the nine months of the appeal proceedings, I had a feeling that maybe the international sport has it own ‘system’. Maybe, a part of that ‘system’ is that the sport federations can, with impunity, ban even clean athletes because of the ‘wrong’ nationality, while other authorities remain silent and allow this to happen. The vulnerability of the clean athletes is the main issue of the international sports now. This is outrageous especially if you consider the ongoing struggle for the equality of men and women and the BLM [Black Lives Matter] movement. 

‘Rest assured, if at any time before my career is over there is a ‘theoretical’ possibility to miss one more time at least one international competition, I will sue again. I have always campaigned for the clean sport, but I will never support a struggle against clean athletes based on their nationality.’

On the one hand, the CAS Decision does set a worrying precedent. It could be argued that it shows sport’s governing bodies prioritise politics above issues that affect athletes. Such concerns were raised regarding the International Olympic Committee’s (IOC) handling of the Peng Shuai situation (see below); and over Governance Reforms discussed by the World Anti-Doping Agency (WADA) at its recent Foundation Board meeting.

On the other hand, sport has little leverage in forcing member federations to change. It can sanction officials, as it did those involved with the Lysenko case. However this can lead to accusations of “rearranging the deckchairs on the Titanic” – an accusation that could be levelled at the Russian Anti-Doping Agency (RUSADA) today. Preventing a member federation’s athletes from competing internationally is an effective method of forcing meaningful federation reform. 

As it is likely that at least some of the member federation’s athletes have done nothing wrong, taking such a decision is a delicate balance. One must weigh up whether preventing a member federation’s athletes from competing internationally is a proportional response, based on the gravity of the member federation’s offence. 

Balancing act

Under the International Standard of Code Compliance by Signatories (ISCCS) operated by WADA, anti-doping organisations (ADOs) must consider whether sanctions are proportionate and do not go further than is needed to achieve the stated objectives. As World Athletics’ Anti-Doping Rules (ADR) contain similar sanctions against athletes to those applicable in the ISCCS, Lasitskene’s legal team argued that World Athletics also needs to consider whether its Decision to suspend the ANA approval process was a proportionate sanction. They argued that as the contested Rules 16.2.6/16.2.8 of the ADR and the suspension of the ANA process are disproportionate, they are unenforceable.

The basic argument is that the contested provisions in the ADR and World Athletics’ application of them go beyond what CAS considered proportional in its Decision to partially uphold WADA’s sanction against RUSADA. This imposed limited restrictions on Russian athletes participating in international events. Lasitskene’s legal team argued that World Athletics’ contested Rules and suspension of the ANA approval process exceeded these limited restrictions.

At the time the appeal was filed, this was accurate. No athlete affiliated to RusAF could compete internationally, but Russian athletes in other sports could compete so long as they were not subject to suspensions. However before the 11 June hearing, on 18 March 2021, World Athletics reinstated the ANA approval process. As such, the CAS didn’t get round to considering this technical legal question.

The CAS Panel determined that Lasitskene’s appeal equated to an athlete challenging a Decision taken against a member federation by the World Athletics Council. It found that the World Athletics Constitution says nothing about whether an athlete can challenge a Decision taken by the World Athletics Council against a member federation.

It therefore examined Monegasque law and the Private International Law Act (PILA) for guidance. It found that as none of the contested provisions had been directly applied to or affected Lasitskene, her arguments were ‘purely theoretical’, as they were based around whether her ANA Status could be rescinded in the future. The appeal was therefore dismissed.

What’s the issue?

Lasitskene argues that her appeal wasn’t ‘purely theoretical’ at the time it was filed in January 2021. At that point in time, the ANA process was suspended. In March, World Athletics reinstated the ANA process. At the end of June, shortly after the 11 June hearing, Lasitskene was included on the RusAF team for Tokyo 2020. She was one of ten Russian athletes permitted to compete at the postponed Olympics under the CAS Ruling in the RUSADA case.

The CAS didn’t issue its ruling until 8 November. If World Athletics hadn’t granted Lasitskene ANA status and she hadn’t been included in the Tokyo 2020 team prior to its Decision, would CAS have been able to come to the same conclusion? It would certainly have not been able to claim that her arguments were theoretical and didn’t directly affect her.

Whether the CAS Panel would have been able to dismiss the case in the same way is subject to debate. A hearing on the merits could have been embarrassing for World Athletics. Did the CAS deliberately delay its ruling?

Is there a problem?

The AIU was very critical of Artem Patsev’s role in the Danil Lysenko case…

Whether this CAS Decision is an issue depends on your point of view. International federations need an effective mechanism to punish member federations who flout anti-doping procedures. RusAF’s offences have been particularly egregious and as such, preventing Russia’s athletes from competing internationally could be viewed as a proportionate sanction. The Lysenko case illustrated that systemic manipulation of the doping control process was still going on in 2018/19.

Lasitskene with Mikhail Butov, former RusAF General Secretary…

Lasitskene was a successful athlete prior to this. Her choice of legal representation is also interesting. Sergei Lisin, a former speed skater, was sanctioned with a two year ban back in 2012. But that perhaps means he is well placed to represent athletes in disputes with international federations at CAS.

Track and field athletes have a relatively short window where they are at the top of their game. It is likely that the vast majority of today’s Russian track and field athletes are untouched by previous manipulations of the doping control system, or by the actions of corrupt RusAF officials. Is it fair to completely exclude such athletes from international competition? Does such a blanket ban infringe their human rights?

Thanks to the way in which the CAS has handled this Decision, we are none the wiser. As such, this conundrum is likely to trouble international sport for the foreseeable future.

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