Editor's Note: Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code. Her latest book Evidence in Anti-Doping at
the Intersection of Science & Law was published in 2016 in the International Sports Law Book Series of T.M.C. ASSER Press.
On 30 September 2016, a panel of the Court
of Arbitration for Sport (“CAS”) rendered its award
in the matter opposing high-profile tennis player Maria Sharapova to the
International Tennis Federation (“ITF”). Maria Sharapova was appealing the
two-year ban imposed on
her by the ITF Tribunal in June 2016 for her use of Meldonium, a substance
newly added to the WADA Prohibited List 2016.
Since neither the ITF nor WADA had chosen to challenge the Tribunal’s decision,
the stakes of the case were rather simple: would the player convince the CAS
panel that she should benefit from a finding of “No Significant Fault or
thereby allowing for a reduction of the sanction down to a minimum of one year,
or should the decision of the Tribunal be upheld? In its award, the CAS panel
decided to grant such finding and reduced the sanction to 15 months.
This blog does not purport to be a ‘comment’
on the CAS award. Rather, it seeks to place the Sharapova matter into a broader
context with respect to a specific issue: the expectations on Athletes when it
comes to their awareness of the prohibited character of a substance,
specifically when taking a medication.
In July 2016, I presented at the T.M.C Asser Institute in The Hague various current
challenges of anti-doping that the Meldonium cases exposed (see the video here). One of these
challenges concerned the modalities for including new substances onto the
Prohibited List. This blog represents a follow-up on my presentation, in the
light of the findings contained in the CAS award. More...
Football intermediaries, or agents, are again under attack in the news. For some, corrupt behaviour has become endemic in football’s culture. It is always dangerous to scapegoat a whole profession or a group of
people. Many intermediaries are trying their best to lawfully defend the
interests of their clients, but some are not. The key focus should be on
providing an adequate legal and administrative framework to limit the
opportunities for corrupt behaviour in the profession. This is easier said than
done, however. We are dealing with an intrinsically transnationalized business,
often conducted by intermediaries who are not subjected to the disciplinary
power of federations. Sports governing bodies are lacking the police power and
human resources necessary to force the intermediaries to abide by their private
standards. In this context, this blog aims to review a recent case in front of
the regional court of Frankfurt in Germany, which highlights the legal
challenges facing (and leeway available to) national federations when
regulating the profession. More...
Editor's note: This is the (belated) fifth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio. The other acts are available at:
Act V: Saving the
last (Russian) woman standing: The Klishina miracle
Darya Klishina is now an Olympic
celebrity. She will enter the history books not because she won a gold medal or
beat a world record. Instead, her idiosyncrasy lies in her nationality: she was
the sole Russian athlete authorized to stand in the athletics competitions at
the Rio Olympics. And yet, a few days before the start of the long jumping contest
in which she was due to take part, the IAAF surprisingly decided to revoke her eligibility (‘And Then There Were None’). But Klishina
appealed the decision to the CAS ad hoc Division and, as all of you
well-informed sports lawyers will know, she was allowed to compete at the
Olympics and finished at a decent ninth place of the long jump finals.
Two important questions are raised
by this case:
- Why did the IAAF
changed its mind and decide to retract Klishina’s authorization to participate?
- Why did the CAS
overturn this decision? More...
Editor's note: This is the fourth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.
Act IV: On
Bringing a sport into disrepute
Paragraph 2 of the IOC Decision: “The IFs will also have to apply their
respective rules in relation to the sanctioning of entire NFs.”
In paragraph 2 of its Decision,
the IOC mentioned the possibility for IFs to “apply their respective rules in relation to the sanctioning of entire
NF's”.This is exactly what the International Weightlifting Federation (IWF) did
when it decided on 29 July 2016 to exclude the whole Russian Weightlifting
Federation (RWF) from the Rio Olympics for having brought the sport into
disrepute. Indeed, Article 12. 4 of the IWF Anti-doping Policy, foresees that:
“If any Member
federation or members or officials thereof, by reason of conduct connected with
or associated with doping or anti-doping rule violations, brings the sport of
weightlifting into disrepute, the IWF Executive Board may, in its discretion,
take such action as it deems fit to protect the reputation and integrity of the
Editor's note: This is the third part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.
Act III: On being
Paragraph 2 of the IOC Decision: “The IFs should carry out an individual
analysis of each athlete’s anti-doping record, taking into account only
reliable adequate international tests, and the specificities of the athlete’s
sport and its rules, in order to ensure a level playing field.”
Daniil Andienko and 16 other members
of the Russian rowing team challenged the decision of the World Rowing
Federation (FISA) to declare them ineligible for the Rio Olympics. The FISA
Executive Committee took the decision on 24 July 2016 because they had not “undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow
laboratory and registered in ADAMS
from 1 January 2015 for an 18 month period”. In
their submissions, the Russian applicants did not challenge the IOC Decision,
and thus the criteria enshrined in paragraph 2, but only its application by
Russian athletes argued that FISA’s decision deviated from the IOC Decision in
that it was imposing as an additional requirement that rowers must “have
undergone a minimum of three anti-doping tests analysed by a WADA accredited
laboratory other than the Moscow laboratory and registered in ADAMS from 1
January 2015 for an 18-month period”. The Panel
acknowledged that “the IOC Executive Board decision does not refer explicitly
to the requirement of three tests or to a period of 18 months”.
Nonetheless, it “finds that the Challenged Decision is in line with the
criteria established by the IOC Executive Board decision”.
Indeed, the IOC’s Decision “provides that in order to examine whether the level
playing field is affected or not (when admitting a Russian athlete to the Rio
Olympic Games), the federation must look at the athlete's respective
anti-doping record, i.e. examine the athlete's anti-doping tests” and that
“[i]n doing so, the IOC Executive Board decision specifies that only "reliable
adequate international tests" may be taken into account”. In
this regard, the Panel, and FISA, share the view that “a reliable adequate
international test can only be assumed if the sample has been analyzed in a
WADA-accredited laboratory outside Russia”.More...
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. More...
Since it was first introduced at
the Atlanta Games in 1996,
the CAS ad hoc Division has never been as crowded as it was during this year’s Rio
Olympics. This is mainly due to the Russian doping scandal, which has fuelled the CAS with Russian athletes challenging their
ineligibility to compete at the Games. The CAS recently revealed that out
of 28 awards rendered, 16 involved Russian athletes challenging their
ineligibility. This Russian ballet is
a direct result of the shocking findings of Richard McLaren’s Independent Person (IP) Report ordered by the World Anti-Doping Agency (WADA).
McLaren’s investigation demonstrated that the Russian State was coordinating a
sophisticated doping system. The revelation triggered an outrage in the media
and amongst other competitors. Numerous calls (especially by WADA and various National Anti-Doping Organisations) were heard urging the IOC to ban the entire Russian
delegation from the Olympics. The IAAF decided to exclude
the whole Russian athletics team, 
with the exception of Darya Klishina, but, to the disappointment of many, the IOC refused to heed these calls and decided, instead,
to put in place a specific procedure to assess on a case-by-case basis the
eligibility of Russian athletes.
The IOC’s Decision (IOC
Decision) of 24 July foresees that the International Federations (IFs) are
competent to determine whether each Russian athlete put forward by the Russian
Olympic Committee (ROC) to participate in the Olympics meets a specific set of
conditions. Moreover, the ROC was also barred from entering athletes who were
sanctioned for doping in the past, even if they have already served their
doping sanction. In the end, a majority of the Russian athletes (278 out of 389 submitted by the ROC) cleared the IOC’s bar relatively easily, but some
of them did not, and many of the latter ended up fighting for their right to
compete at the Rio Olympics before the CAS ad hoc Division.
In the following blogs, I will analyse the ten published CAS awards related to
Russian athletes. It
is these legal fights that I suggest to chronicle in the following parts of this
blog. To do so, I have divided them in five different (and analytically coherent)
Editor's Note: Ryan is Assistant Professor at Thompson Rivers University, he defended his PhD at Erasmus University Rotterdam in December 2015. His dissertation examined human rights violations caused by international sporting events, and how international sporting organisations may be held accountable for these violations.
On Sunday, August
21, the 2016 Summer Olympic Games in Rio de Janeiro will end. The spotlight
will dim not only on the athletes who return to their home countries to ply their
trade in relative obscurity, but also on the country of Brazil.
Once the Games have ended, life will go ‘back to normal’, although for many
residents of Rio de Janeiro, what is ‘normal’ is anything but. More...
Editor's Note: Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code.
Over the past days, we have been flooded by
media reports discussing the “Caster Semenya-case”, reports rapidly relayed in
social networks. Since the debate has a distinct legal component and since
almost every report appears to draw significantly from the legal background, I granted
myself permission – as compensation so to speak - to publish a somewhat more personal,
less legal, post than I usually would.
Let me make one thing clear from the outset
– I am still ‘agnostic’ about the question of how to solve the issues
surrounding the male versus female divide in sports. Each time I have been
asked to write or speak on the subject, I have tried to stick to describing the
legal situation and its implications. I do not have the miracle solution as to
how to handle this infinitely complex issue. And I am not sure anyone can claim
to hold that solution at this point. Like everyone, I am doing my research and
trying to be humble enough to stay within the realm of my competences. More...
Editor’s note: Yann Hafner is a Phd researcher at the University of Neuchâtel specialized
in sports and nationality issues. He is also Legal Affairs Manager at the Fédération
Internationale de Volleyball. Yann is
an editor of the ASSER International Sports Law Blog and has previously
published on the blog on nationality conundrums at the FIFA World Cup 2014 in
Brazil (see here).
This contribution aims to decipher
the relationship between sporting nationality and the Olympic Games. To this
end, the author will first define sporting nationality and discuss athletes’
eligibility in national team in the context of the Olympic Games. Then,
selected issues in relation with sporting nationality and the Olympic Games
(with an emphasis on issues related to the Rio 2016 Olympic Games) will be investigated.