12 September 2017

Russian cyclists appeal against Rio 2016 exclusion could result in similar claims

Three Russian cyclists have filed a defamation lawsuit against the World Anti-Doping Agency (WADA) and Richard McLaren for unfairly excluding them from the Rio 2016 Olympics, which could open the floodgates to similar claims. Kirill Sveshnikov, Dmitry Strakhov and Dmitry Sokolov filed the lawsuit (Court File No: CV-17-582393) with the Ontario Superior Court of Justice yesterday claiming damages against WADA and McLaren, read a statement from McCarthy Tétrault LLP, which is representing the cyclists alongside VB & P, LLC.

“Together, WADA and Richard McLaren prevented us from reaching our life-long goal of participating in the Rio Olympics, the pinnacle of our sport, and we allege that they wrongly associated our names with cheaters and doping”, said Sveshnikov in the statement, speaking for all three plaintiffs. “We are asking the Court to review all of the evidence and to vindicate us”.

The Cyclists will also ask the Court to declare that the Defendants had no basis to conclude that the Cyclists were using performance enhancing drugs. The statement blamed a ‘rushed and compromised investigation’ for unfairly implicating them in the systemic doping scheme outlined by McLaren in the two Independent Person (IP) Reports produced for WADA.

As reported by The Sports Integrity Initiative, the cyclists originally wrote to sport’s governing bodies threatening legal action in September last year. The Court of Arbitration for Sport (CAS) rejected their appeal against an International Cycling Union (UCI) decision to exclude them from Rio 2016, but only because it found that their appeal should have been directed against the International Olympic Committee (IOC) rather than the UCI.

The CAS application initially named the IOC as a defendant, however the cyclists decided to withdraw their application against the IOC. ‘Taking into account the IOC’s position stated on its circular letter of 2 August 2016, [they] … do not consider the IOC as one of the respondents anymore in this case’, reads the CAS decision. It appears that this is because they took the view that the UCI was at fault for incorrectly interpreting the IOC circular.

The 2 August IOC circular advised IFs that an athlete should not be considered as ‘implicated’ in the WADA IP Report – the public version of which didn’t name athletes – if the ‘McLaren List’ doesn’t refer to a prohibited substance which would have given rise to an anti-doping rule violation (ADRV). The UCI statement reveals that it was informed by WADA that the three riders were ‘potentially implicated’.

However the CAS decision reveals that on 3 August, the UCI told the International Olympic Committee (IOC) that ‘These riders are eligible under the UCI Regulations to participate in the Rio 2016 Olympic Games as the information provided so far by Prof. McLaren is not sufficient to instigate disciplinary proceedings or impose provisional suspensions under the UCI Anti-Doping Rules’. A 3 August IOC response to this letter stated: ‘the three athletes Dmitri Sokolov, Dmitri Strakhov and Kirill Sveshnikov do not meet the criteria set by the IOC Executive Board and are therefore not deemed eligible for entry in the Olympic Games Rio 2016 and therefore we request for UCI to reallocate the quota places next best ranked NOC according to your qualification system’.

The CAS therefore concluded that the IOC and not the UCI took the decision to exclude the cyclists from Rio 2016, and found that their appeal was directed at the wrong defendants. As reported by The Sports Integrity Initiative, the IOC decision to refer assessment of whether Russian athletes could compete at Rio 2016 back to the International Federations (IFs) created chaos – especially when combined with WADA’s shaky guidance on meldonium adverse analytical findings (AAFs).

The IOC and WADA have yet to comment on the application by the Russian cyclists. If they are successful, the floodgates could be opened to other athletes who feel they have been defamed through unfair exclusion from the Rio 2016 Olympics. A number of examples – such as Abeba Aregawi and Ruth Kasirye – are listed in this article.

The most pertinent of these concerns Russian volleyball player Alexander Markin. He was given meldonium before it became prohibited on 1 January 2016 by the coach of his club, Dynamo Moscow, at the same time as US team mate Maxwell Holt. Holt went on to help the US secure the bronze medal by beating Russia, whilst Markin was removed from the Russian team.

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