21st March 2018

Possible legal challenge to RUSADA’s suspension

Russia’s Minister of Sport, Pavel Kolobkov, has said that a legal challenge against the continued suspension of the Russian Anti-Doping Agency (RUSADA) is a “possible option”. He said that such an action could challenge “the level of information that is presented as evidence” in an interview with TASS, published by the Ministry of Sport, but added that “this is only the opinion of a few people”.

He added that the acquittal of 28 of 43 Russian athletes charged with an anti-doping rule violation (ADRV) by the International Olympic Committee (IOC) at the Court of Arbitration for Sport (CAS) “speaks for itself […] And if we are required to recognise McLaren’s Report, it says that there is no evidence. It turns out that the real requirements of proof are replaced. There is a substitution of concepts. Because of that, Russian sport has been held hostage. Our willingness to cooperate, to work together constructively, must not be perceived as weakness.”

The CAS later dismissed appeals from 32 of the athletes against an IOC decision not to invite them to the PyeongChang 2018 Winter Olympics. It argued that the IOC’s decision represented an ‘eligibility decision’ rather than a sanction.

Kolobkov also said he is “outraged” over the sanctioning of Aleksandr Krushelnitckii for an ADRV, which resulted in the disqualification of the bronze medal he won in the mixed doubles curling with his wife, Anastasia Bryzgalova. “I have no explanation as to how such a thing could happen”, he said, adding that Krushelnitckii had been tested between six and eight times. “That Krushelnitckii and Seergeva would dope is completely pointless. And, by the way, this is understandable to international federations, which is why their reaction has been restrained.”

As previously reported by The Sports Integrity Initiative, neither Krushelnitckii or Nadezhda Seergeva have accepted responsibility for their ADRV. Both have reserved the right to seek the elimination or reduction of the ineligibility period after the Games. Although Seergeva’s ADRV involved trimetazidine, she was provisionally suspended by RUSADA after testing positive for meldonium in 2016. This is the substance that Krushelnitckii tested positive for at PyeongChang 2018.

A partial award published by CAS reveals that Krushelnitckii remains provisionally suspended following a request filed by the World Curling Federation (WCF). The IOC only sought disqualification of his PyeongChang 2018 results. The CAS has yet to rule on any period of ineligibility.

‘These proceedings shall continue by and between the WCF, who joined these proceedings as Co-Applicant, and the Athlete, in regard to the consequences of the ADRV which may be imposed on the Athlete’, reads the Partial Award (PDF below). ‘The Sole Arbitrator, after consultation with the parties, shall determine the procedural directions applicable to the remaining part of the arbitration and shall issue, at the conclusion of these proceedings following the Olympic Games, a final award, all in accordance with Article 20 of the CAS ADD Rules’.

Meldonium is a ‘specified substance’ on the World Anti-Doping Agency’s (WADA) Prohibited List. This means that WADA recognises that such a substance can enter an athlete’s body inadvertently, however the burden of proof is on the athlete to establish how that happened.

The Partial Award also reveals that Krushelnitckii didn’t accept either of his two adverse analytical findings (AAFs – positive tests). Kolobkov’s statement would appear to indicate that no further information has been forthcoming about how the curler tested positive. As such, he is likely to be sanctioned with a period of ineligibility.

The IOC has already sanctioned both athletes with an ADRV and has disqualified their PyeongChang 2018 results. If evidence were to appear that either athlete is able to meet the burden of proof required to establish they were not at fault for their AAF, then the IOC could face a tricky situation.

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