Editor's note: This is the second part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.
Act II: On being
Paragraph 2 of the IOC Decision: “The IFs to
examine the information contained in the IP Report, and for such purpose seek
from WADA the names of athletes and National Federations (NFs) implicated.
Nobody implicated, be it an athlete, an official, or an NF, may be accepted for
entry or accreditation for the Olympic Games.”
The second, and by far largest,
wave of complaints involved Russian athletes barred from the game under
paragraph 2 of the IOC Decision. None of those were successful in their appeals
as the CAS sided with those IFs which took a tough stance with regard to the
Russian State doping system. The first set of cases turned on the definition of
the word “implicated” in the sense of paragraph 2 of the IOC Decision. In this
regard, on 2 August the IOC sent a communication to the IFs aiming at providing
some general guidelines. It reads as follows:
"In view of
the recent appeals filed by Russian Athletes with CAS, the IOC considers it
necessary to clarify the meaning of the notion "implicated" in the EB
The IOC does not
consider that each athlete referred to in the McLaren Lists shall be considered
per se "implicated. It is for each International federation to assess, on
the basis of the information provided in the McLaren lists and the Independent
Person Report, whether it is satisfied that the Athlete in question was
implicated in the Russian State-controlled doping scheme.
To assist the
International Federations in assessing each individual case, the IOC wishes to
provide some information. In the IOC's opinion, an athlete should not be
considered as "implicated" where:
The order was a "quarantine".
The McLaren List
does not refer to a prohibited
substance which would
have given rise
to an anti-doping rule violation or;
The McLaren List
does not refer to any prohibited substance with respect ���to a given
The CAS went on to address this
question concretely in three cases analysed below. 
CAS OG 16/19
Natalia Podolskaya & Alexander Dyachenko v. ICF
Podolskaya and Dyachenko are two
canoeists from Russia who were suspended by the International Canoe Federation
(ICF) and removed from the Rio Games as they were deemed implicated in the IP
Report. In an affidavit to the CAS, referred to in the award, Richard McLaren
disclosed the facts that led to both athletes being considered implicated.
Regarding Podolskaya, McLaren
indicated that he has retrieved electronic evidence that “reveals that on 31 July 2013 at 00:50 hours,
in contravention of the International Standard for Laboratories, the Moscow
Laboratory reported to email address firstname.lastname@example.org that sample member
2780289, belonging to a female canoe athlete taken at the Russian Championships
in Moscow, was suspected for EPO and further inquired what should be done”. In a
quick response on 1 August 2013, Alexey Velikodniy, then vice-minister for
sports, “communicated back to Laboratory that the sample number 2780289
belonged to Ms. Natalia Podolskaya and instructed the Laboratory to
Similarly, as far as Dyachenko is concerned, the “electronic evidence reveals that on 5 August
2014 at 12:09 hours, in contravention of the International Standard
Laboratories, the Moscow Laboratory reported to Alexey Velikodniy that
pre-departure sample number 2917734, collected at a Training Camp on 3 August
2014, contained a lot oftrenbolone and a little methenolone. Alexey Velikodny's
response to the laboratory on 6 August 2014 at 1%:26 [sic] was that sample
number 2917734 from 3 August 2014 pre-departure test belonging to Mr Alexander
Dyachenko, and on instruction from "llR", should be a
McLaren concludes that for both “Ms. Natalia Podolskaya and Alexander
Dyachenko, the "SAVE" instruction signalled to the Laboratory that no
further analytical bench work was to be done on the samples and the Laboratory
filed a negative ADAMS report for each athlete”. 
In its assessment of the
application of paragraph 2 of the IOC Decision by the ICF, the CAS Panel finds
that the “Applicants were among five athletes so [as implicated in the IP
Report] named” and that the “ICF was entitled to conclude that the Applicants
failed to meet the criteria in paragraph 2”.
Moreover, this “conclusion has been reinforced by the evidence made available
to the Panel by Professor Mclaren” and “is justified on the standard of
The applicants, unsuccessfully, argued that they were never sanctioned for an anti-doping
rule violation, and that the samples referred to in the IP Report cannot be
tested anymore to prove their innocence. They also claimed that other
contemporary samples returned negative and “that if they had used prohibited
substances, all the tests would have returned positive”.
Nonetheless, WADA pointed out that “due to the nature of the substances
concerned and the timing of the provision of the samples, this cannot be
Panel accepted “WADA's submission, not contradicted by the Applicants, that
there are explanations consistent with the Applicant's assertion but also
consistent with the taking of the prohibited substances at the relevant time”.
Finally, the Russian applicants tried
to fight their ineligibility under the implication criteria laid down in
paragraph 2 of the IOC Decision by arguing that it was not compatible with
Yet, The CAS refused to follow this line of reasoning. Instead, the Panel found
that the “Applicants have challenged that decision in the CAS and have been
given the opportunity to rebut that evidence”, thus they “have not been denied
natural justice or procedural fairness”.
CAS OG 16/21
Elena Anyushina & Alexey Korovashkov v. ICF & RCF
Anyushina and Korovashkov are also
two canoeists from Russia. Similar to Podolskaya and Dyachenko, they were
suspended on 26 July 2016 by the ICF and removed from the Rio Games as they
were deemed implicated in the IP report. However, Anyushina was quickly
reinstated and declared eligible to compete at the Games by the IOC.
The procedure was, consequently, limited to Korovashkov. He was deemed implicated
because, as outlined by Richard McLaren in his affidavit:
"On 15 August 2014
at 09:22 hours, in contravention of the International Standard for
Laboratories, the Moscow Laboratory reported to Alexey Velikodniy that sample
number 2916461, collected 10 August 2014 in connection with an International
Competition being held in Moscow, contained a lot of marijuana that was certainly above the threshold. (The /CF
website reflects that the /CF Canoe Sprint World Championships took place in
Moscow from the 8-10 August 2014)Alexey Velikodniy's response to the Laboratory
on 18 August 2014 at 08:59 identified that sample number 2916461 belonged to
Mr. Alexey Korovashkov and instructed that it should be a 'SAVE."
Alexey Velikodniy also notes that Mr. Alexey sample is under investigation. Mr.
Korovashkov's sample number 2916461 was reported negative in ADAMS."
The Russian canoeist argued that
the “evidence concerning the relevant sample on which the ICF relies to support
its decision is unreliable”, because “there is no "threshold"
provided for marijuana in WADA Technical Document TD 2013DL of 11 May 2013
concerning Decision Limits for the Confirmatory Quantification of Threshold
In his view, “[i]f there is no threshold, it is unlikely that the laboratory
would have provided such odd information to Alexey Velikodniy rather than
reporting the threshold itself; the evidence does not resemble a laboratory report
Correspondence could not have been authored by the
laboratory's employees, who are fully aware that they would be required to
calculate and then state the actual result”.
The Panel rebutted this argument by pointing out that, in fact, the relevant
WADA document included a threshold for Cannabinoids.
The Panel concluded that “the evidence is that the State sponsored doping
system was applied to the Second Applicant so as to prevent a positive report
of marijuana over the threshold for that substance”.
Consequently, Korovashkov was deemed implicated in the IP Report. The Panel did
display its sympathy with the Russian athlete, as it pointed out that “[t]he
ICF indicated that marijuana is not, in its view, a performance enhancing drug
and the Panel notes that there is no suggestion of any other substance
The Panel further rejected
Korovashkov argument that the ICF’s decision to declare him ineligible for the
Rio Olympics amounted to a wrongful anti-doping sanction.
The applicant argued that the use of the word “suspended” in the original
letter to the ICF was the terminology used under the WADA Code. The Panel finds
that even though “suspended” “is a word used, and a sanction provided for, in
the WADA Code, this does not mean that its inclusion means that the decision is
made under that Code”.
Moreover, the CAS arbitrators consider it “clear that the letter was in direct
response to the IOC Executive Board’s decision and concerned the eligibility of
Russian athletes to compete in the Games of the XXXI Olympiad in Rio de Janeiro
Games and to be accredited to those Games”. 
Thus, it “was not a decision under the WADA Code and was not bound by the
provisions of that Code”. 
In other words, the Decision should not and could not be misconstrued as a
doping ban based on the WADA Code, but found its legal basis in the IOC Decision
and in Article 12.3 of the ICF Anti-doping Rules.
This case demonstrates the
willingness of CAS arbitrators to adopt an objective reading of the notion of
implication. If an athlete benefitted from the Russian doping scheme, even in
case of a relatively harmless substance like cannabis, it was considered legitimate
for an IF to remove him or her from Russia’s Olympic team.
C. CAS OG 16/12 Ivan
Balandin v. FISA & IOC
Ivan Balandin is a rower from
Russia who was declared ineligible to compete at the Rio Olympics by the World
Rowing Federation (FISA) on 27 July 2016, due to his implication in the IP
Report. More precisely, he appears in the Report as having been “saved” by the Russian
Deputy Minister of Sport and his test was later reported as negative in the
The athlete first argued, as did Korovashkov,
that this was an anti-doping sanction, which did not follow the appropriate procedure.
WADA clarified “that the Athlete may yet face proceedings relating to an ADRV,
however, the nature of these could yet to be determined [sic]”
and added that the “matter at hand concerns eligibility for the Rio Games”.
The Panel concurred and concluded that the “dispute at hand concerns the
Athlete’s eligibility for the Rio Games alone”.
The next question was whether
Balandin was implicated in the IP Report. The Panel notes, as pointed out in
the IOC letter from 2 August 2016, that a simple implication in the Report does
not necessarily indicate that an athlete benefited from the State-doping
scheme. In his defence, the athlete singled out that a date of collection was
missing for the sample, in order to attack the validity of the information
provided by McLaren. FISA responded that it had taken “the necessary steps to
establish this date by calling UKAD”.
Moreover, Richard McLaren revealed in his amicus curiae “the exact date and
times of the message from the Moscow Laboratory that the screen of the
Athlete’s A sample revealed positive for the prohibited substance GW 1516 and
the response from the Deputy Minister to change the positive into a negative,
following the DPM” .
In any event, “the Panel is satisfied that the information provided to FISA and
the additional checks it took with UKAD, were sufficient to show the Athlete
was “implicated” in this scheme”.
The athlete was deemed implicated, but did he actually benefit from the scheme?
The Panel “notes that the substance GW 1516 is a metabolic modulator and a
non-specified substance and is prohibited at all times (without a threshold)”.
Additionally, “the instruction from the Deputy Minister was “save””.
Thus, the CAS arbitrators were “comfortably satisfied” that Balandin had
benefitted from the scheme.
In all three cases, the athletes
mentioned in the Report as ‘saved’ were recognized as implicated by the CAS.
The court clearly distinguished the notion of implication from the fact that
the athletes committed an anti-doping violation as defined by the WADA Code. However,
it is unclear whether the arbitrators would have deemed an athlete implicated,
if he or she was not named in the evidence provided by McLaren. As the
disappearing positive methodology implemented by the Moscow laboratory was an ultima ratio, this still entails that
many Russian athletes competing in Rio might have profited from Russia’s State
doping scheme by escaping a positive test altogether. Hence, the IOC’s choice
to narrow down on implicated athletes seems rather inadequate to tackle the
generalized doping system unveiled by the IC and IP reports.