17 December 2020

Russia gets early Christmas present from CAS

Russia’s athletes will be able to compete at the Tokyo 2020 & Beijing 2022 Olympics and the 2022 Qatar World Cup if they can demonstrate that they are ‘clean’, after the Court of Arbitration for Sport (CAS) handed the country an early Christmas present. The CAS ruling outlines that Russian athletes can ‘participate in or attend the Olympic and Paralympic Games (winter or summer) and any world championships organised or sanctioned by a signatory to the World Anti-Doping Code, on the condition that they are not subject to a suspension imposed by a competent authority, that the uniform worn does not contain the flag of the Russian Federation and contains the words “neutral athlete”’.

The ruling specifies that Russian athletes are permitted to display ‘Russia’ on their uniform, so long as the words ‘neutral athlete’ are displayed ‘in a position and size that is no less prominent than the name “Russia”’. The colours of the Russian flag are also permitted, but not the flag itself. So although it looks like a duck and quacks like a duck and has ‘duck’ written on it, a duck is not permitted to identify itself as a duck and must also display ‘neutral waterfowl’ on itself.

The World Anti-Doping Agency’s (WADA) initial Decision required any athlete wishing to compete internationally to demonstrate that they are not implicated in: the McLaren Reports into Russian State doping; the 2015 Moscow Laboratory Information Management System (LIMS) database; or the additional data retrieved from the Moscow Laboratory in January 2019. It also required them to demonstrate that they had been subject to adequate testing prior to the event in question (see right).

In comparison, the CAS has decided that Russians can compete internationally as neutrals as long as they are not ‘subject to suspension, restriction, condition or exclusion imposed by a competent authority in any past or future proceedings which remains in force at the time of the specified event’. In simpler language, if you are not banned, you can compete. But as the Russian Anti-Doping Agency (RUSADA) will be suspended for the next two years, it is understood that Russian athletes seeking to compete during this period will have to demonstrate that they have been adequately tested.

The CAS ruling specifies that ‘this order does not impose restrictions in respect of any events other than the specified events’. So in all events other than the Olympics, Paralympics and World Championships, none of the above applies and Russia can compete freely. A duck can call itself a duck and compete for Duck Nation under the Duck flag, and enjoy the Duck Anthem if it wins. 

Except in athletics. World Athletics still maintains a limit of ten Authorised Neutral Athletes (ANAs) at international events, including the Tokyo 2020 Olympics. It plans to revisit its decision in March 2021.

A second present

The CAS has also offered Russia a second, perhaps unexpected, present. It has halved WADA’s attempt to declare RUSADA non-compliant with the World Anti-Doping Code for a four year period. Why it has done this is not immediately clear, although it would appear that the Olympic Movement played a hand (more on this later). Perhaps the 186 page Decision will clarify this. If it is ever published. 

The ISCCS specifies that CAS Decisions should be published three months after the Panelists are appointed…

‘The full award may be published on the CAS website after consultation with the parties’, reads CAS’s ruling, raising the possibility that it may not be published if RUSADA doesn’t give consent. WADA has already indicated that it expects the Decision to be published before Christmas. ‘As per Article 10.4.1 of the ISCCS [see right], WADA expects the full reasoned decision will be publicly reported by CAS next week’, read a statement, perhaps terse at the idea that Russia should get a say in this. As the ISCCS outlines that CAS Decisions should be published three months after CAS Panelists are appointed, this suggests that the CAS Panel was appointed in mid-October.

It’s about the Russian State…unless they’re an IOC Member

To refresh memories, WADA sanctioned RUSADA due to its failure to procure the delivery of the authentic Moscow Laboratory Information Management System (LIMS) and underlying analytical data to WADA. Analysis of the Moscow LIMS found that it had been manipulated by agents of the Russian State in order to hide State doping on numerous occasions until 16 January 2019, the day before it was retrieved by WADA.

WADA cannot sanction State officials, so it sanctioned RUSADA. But in cases of non-compliance, it can ban State officials from sporting events. As the ISCCS was largely drawn up to equip WADA with the tools to sanction State doping, WADA’s initial Decision was tough on this point. 

It mandated that Russian State officials may not be appointed to sit and may not sit as members of Boards, Committees, or other bodies of Code signatories; Russian State officials may not attend the Olympics, World Championships, or Major Events. It would appear that the CAS has removed ‘Major Events’ from this, and has added a caveat.

None of the above applies if the Russian State official is an IOC Member! It also doesn’t apply if the Russian State official is invited to attend an event! It doesn’t apply if the Russian State official is an athlete or athlete support personnel! And no action will be taken against any Russian State official that breaches any of the above conditions unless it can be established that they did so ‘knowingly’.

A duck can play in the goose pond so long as the geese approve. And even if the geese don’t approve, no action can be taken unless it can be proven that the duck’s entry into the pond wasn’t accidental. In case you haven’t already guessed, the CAS registered the International Olympic Committee (IOC), the International Paralympic Committee (IPC), the European Olympic Committees (EOC), and the Russian Olympic Committee (ROC) as four of seven ‘intervening parties’ in the case.

The Olympic Movement’s hand can also be seen in other areas of the CAS ruling. Up until late 2019, Russia was considering a bid to host the 2032 Olympics, but its bid was rejected by the IOC due to WADA’s four year prohibition on Russia bidding to host the Olympics or World Championships.

The original WADA recommendation. Note the last line…

The host of the 2032 Olympics is due to be announced between 2021 and 2025. WADA initially stipulated that ‘Russia may not bid for the right to host the 2032 Olympic Games and Paralympic Games, irrespective of whether the bidding for that right takes place during or after the Four Year Period’. The CAS ruling doesn’t mention that clause at all. It would appear that the IOC can now appoint Russia as host of the 2032 Olympics in 2022, should it choose to.

The CAS largely maintained WADA’s ban on Russia hosting the Olympics or any World Championships, except that such restriction will now only last for two years. Sporting federations struggling to find hosts will be breathing a major sigh of relief, and thanking their IOC paymasters.

Although the sanctions against State officials have been weakened, the sanctions against RUSADA remain harsh. It must: 

• pay WADA US$1.27 million;
• investigate the manipulations of the Moscow LIMS and attempt to rectify them;
• support investigations into potential doping based on any findings from analysis of the Moscow LIMS data;
• carry out results management based on any adverse analytical findings (AAFs) identified through reanalysis of samples obtained by WADA from the Moscow Laboratory in April 2019;
• provide quarterly reports on how its independence is being respected;
• pay WADA any costs in full up until the date of its reinstatement.

The Olympic Movement and the Russian State benefit

The CAS ruling reveals that RUSADA’s appeal wasn’t about securing its return to compliance with the World Anti-Doping Code. That was a happy – but not unexpected – accident.

It is in everybody’s interest to have a functioning RUSADA in place. Without it, athletes cannot be tested and hosting major events becomes more complicated. 

Both the ROC and RUSADA retained Swiss law firm Schellenberg Wittmer to represent them at CAS. Schellenberg Wittmer has represented many Russian athletes, such as Yuliya Kondakova (Ю́лия Кондако́ва), Ekaterina Glazyrina (Екатерина Глазырина), and Svetlana Shkolina (Светлана Школина), in appeals to the CAS. It also represented Russian athletes involved in procedures stemming from the IOC’s Oswald Commission, such as Aleksandr Tretiakov (Александр Третьяков) and Alexandr Zubkov. It is understood that the Swiss firm also represented the Russian Athletics Federation (RusAF) in drafting its reply to charges levelled by World Athletics in connection to the Danil Lysenko (Данил Лысенко) case. 

Under Russian legislation, State bodies must hold a tender process for services they intend to contract out to commercial companies. An exception is made if the service is contracted out to a non-profit organisation. 

The International Centre for Legal Protection (ICLP) was established in 2015. It is run by Andrey Kondakov (Андрей Кондаков), and was set up to ‘defend the interests of the Russian Federation’, such as in the Yukos case. Kondakov and the ICLP have also been involved in representing Russian athletes at the CAS.

A source has alleged that Russia’s Ministry of Sport will cover the cost of any appeals by Russian athletes to the CAS through money paid to the ICLP, so long as the athletes retain Schellenberg Wittmer. This raises questions as to who is really behind RUSADA’s appeal. 

It is interesting that although RUSADA appealed WADA’s Decision, most of the concessions offered by CAS benefit the Olympic Movement or Russian State officials. RUSADA must still put in place all the reforms that WADA required – just in half the time. 

On the face of it, the CAS ruling appears to be of little benefit to RUSADA. It appears to be about keeping State officials and IOC Members happy so that the world’s largest country (by size) can continue to take part in, and host, major events that generate money for sport. However, at least clean Russian athletes are no longer suffering as a result of such political games. 

The CAS ruling is also a perfect advert for why criminal legislation is needed in anti-doping. The CAS rules allow ‘intervening bodies’ such as the Olympic Movement (and – bizarrely – the International Ice Hockey Federation and the Russian Ice Hockey Federation) to take part in the case, despite them having the obvious conflicts of interest highlighted above. The US legislators behind the Rodchenkov Anti-Doping Act (RADA) must be rubbing their hands with glee.

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