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The Russian Ballet at the CAS Ad Hoc Division in Rio - Act II: On being implicated

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 implicated


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 Decision.

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 sample."

The CAS went on to address this question concretely in three cases analysed below. [1]

 

A.    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 av@sochi2014.com 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”.[2] 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 "SAVE"”.[3] 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 "SAVE".”[4] 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”. [5]

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”.[6] Moreover, this “conclusion has been reinforced by the evidence made available to the Panel by Professor Mclaren” and “is justified on the standard of comfortable satisfaction”.[7] 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”.[8] 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 concluded”.[9] The 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”.[10]

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 natural justice.[11] 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”.[12]

 

B.    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.[13] 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."[14]

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 Substances”.[15] 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”.[16] The Panel rebutted this argument by pointing out that, in fact, the relevant WADA document included a threshold for Cannabinoids.[17] 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”.[18] 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 involved”.[19] 

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.[20] 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”.[21] 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”. [22] Thus, it “was not a decision under the WADA Code and was not bound by the provisions of that Code”. [23] 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 ADAMS system.[24] 

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]”[25] and added that the “matter at hand concerns eligibility for the Rio Games”.[26] The Panel concurred and concluded that the “dispute at hand concerns the Athlete’s eligibility for the Rio Games alone”.[27]

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”.[28] 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” .[29] 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”.[30] 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)”.[31] Additionally, “the instruction from the Deputy Minister was “save””[32]. 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. 


[1] CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko v. ICF; CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF; CAS OG 16/12 Ivan Balandin v. FISA & IOC. A fourth case, CAS OG 16/18 Kiril Sveshnikov et al. v. UCI & IOC, was declared inadmissible.

[2] CAS OG 16/19 Natalia Podolskaya & Alexander Dyachenko v. ICF, para. 2.11.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid., para. 7.13.

[7] Ibid., para. 7.14.

[8] Ibid., para. 7.24.

[9] Ibid., para. 7.24.

[10] Ibid., para. 7.26.

[11] Ibid., paras 7.15-7.26.

[12] Ibid., para. 7.18.

[13] CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF, para. 3.13.

[14] Ibid., para. 2.6.

[15] Ibid., para. 7.10.

[16] Ibid., para. 7.12.

[17] Ibid., paras 7.15-17.

[18] Ibid., para. 7.20.

[19] Ibid., para. 7.21.

[20] Ibid., paras 7.23-7.27.

[21] Ibid., para. 7.24.

[22] Ibid., para. 7.25.

[23] Ibid.

[24] CAS OG 16/12 Ivan Balandin v. FISA & IOC, para.2.9.

[25] Ibid., para. 7.13.

[26] Ibid.

[27] Ibid., para. 7.15.

[28] Ibid., para 7.28.

[29] Ibid., para 7.29.

[30] Ibid.

[31] Ibid., para 7.30.

[32] Ibid.

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Asser International Sports Law Blog | Nudging, not crushing, private orders - Private Ordering in Sports and the Role of States - By Branislav Hock

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Nudging, not crushing, private orders - Private Ordering in Sports and the Role of States - By Branislav Hock

Editor's note: Branislav Hock (@bran_hock)  is PhD Researcher at the Tilburg Law and Economics Center at Tilburg University. His areas of interests are transnational regulation of corruption, public procurement, extraterritoriality, compliance, law and economics, and private ordering. Author can be contacted via email: b.hock@uvt.nl.


This blog post is based on a paper co-authored with Suren Gomtsian, Annemarie Balvert, and Oguz Kirman.


Game-changers that lead to financial success, political revolutions, or innovation, do not come “out of the blue”; they come from a logical sequence of events supported by well-functioning institutions. Many of these game changers originate from transnational private actors—such as business and sport associations—that produce positive spillover effects on the economy. In a recent paper forthcoming in the Yale Journal of International Law, using the example of FIFA, football’s world-governing body, with co-authors Suren Gomtsian, Annemarie Balvert, and Oguz Kirman, we show that the success of private associations in creating and maintaining private legal order depends on the ability to offer better institutions than their public alternatives do. While financial scandals and other global problems that relate to the functioning of these private member associations may call for public interventions, such interventions, in most cases, should aim to improve private orders rather than replace them.

FIFA example – from gentlemen’s agreements to a rich global regulator

FIFA is the governing body for football (or soccer, as it is known in some countries). Founded in 1904 under Swiss law by seven football associations, just 40 years ago, FIFA was a small gentlemen's club with a staff of 11, far from politics, which produced little cash. Since then, it has evolved into a powerful organization generating billions of dollars in annual revenues through sales of media and marketing rights; now it employs hundreds. The rise of FIFA has been a continuous process that was made possible by the reluctance of states and supra-national organizations such as the European Union (EU) to intervene in the governance of sport, particularly football. Hence, supported by and benefitting from the special treatment of sports, FIFA filled the regulatory gap and strengthened its status as a private regulator.

Besides the rules of the game, FIFA’s legal order includes privately-designed rules of cooperation and a complex organizational structure that spans every involved party including players, clubs, coaches, managers, club investors, officials, sponsors, and spectators. The centerpiece of the relations regulated by the rules of FIFA are employment-related questions. Most importantly, FIFA’s Transfer Regulations create strong tensions between FIFA’s regulatory autonomy and public orders such as the sovereign jurisdictions of FIFA’s member associations and supra-national organizations. Tensions between different levels of employment rules are especially visible in matters related to equality and/or non-discrimination of workers, the treatment and qualification of minors, the freedom to choose employment, and the freedom of movement. For example, the inability of players to terminate their contracts without cause, before expiry and without paying compensation, is in stark contrast with traditional employment laws, according to which employees are free to end employment without cause by prior notice. Figure below illustrates the relationships between the different levels of “football ordering” and public ordering when it comes to labor rules.

The Relationship of Labor Rules in Football

Furthermore, FIFA has also private dispute resolution venues and sophisticated system of sanctions and incentives promoting compliance with the decisions of the private order’s dispute resolution bodies. Possible sanctions vary but they are leveraged by the monopoly power of FIFA. Consider the right of FIFA to suspend a member association for a specific period or expel it fully from FIFA for failure to comply with its obligations, including an obligation to comply with FIFA or CAS decisions. Given FIFA's monopoly, this, in fact, means that national teams and licensed clubs from the suspended or expelled country cannot participate in any organized game. As a consequence, FIFA has been able to maintain cooperation among all involved actors, yet, along with the increasing commercial dimension, the incentives of states and other public orders, particularly the EU, to intervene have grown.

Integrity vs. legal order

The fact that FIFA is undermined by corruption is nothing surprising. Prof. Alina Mungiu-Pippidi shows that the average public integrity in more than 200 countries whose soccer associations are the FIFA constituents “is just 5, on a scale where New Zealand has ten and Somalia 1” […] “Were FIFA a country, it would clearly not be in the upper half, but somewhere near Brazil, whose officials seem to have been waist deep in its corruption, and which ranks around 121, with a 4.2”. FIFA’s administrative structure, certainly, needs reforms that will improve its financial stability and decrease corruption risks within the organization. These reforms, indeed, may require “public nudge” by the enforcement of extraterritorial “anti-mafia” statutes such as the US Racketeer Influenced and Corrupt Organization Act (RICO) that played the central role in the so-called FIFAGate. Moreover, in the light of “the second FIFAGate”—six months after the original scandal, a number of FIFA officials that replaced the old leadership were charged with a 92-count indictment—and after the recent neutralization of its internal corruption investigations (see here), more radical “public nudge” may be desirable. Indeed, these developments, as was discussed in this blog some time ago, may call for a more powerful intervention by, for example, the EU, to impose ‘certain basic “constitutional” requirements’ to FIFA.

Nevertheless, while FIFA may need “public help” to clean its house and improve some areas of its legal order, no public order is a better alternative. Common rules spanning across borders, predictable contractual relations, and incentives to invest in training young players are only some advantages made possible by FIFA’s tailored rules of behavior. These advantages would be lost if public interventions would crash the FIFA order and replace it by a patchwork of national laws, unstable contractual relations, more costly dispute resolution and enforcement mechanisms, and limited ability to encourage talent development. Therefore, while FIFA as an administrative organization may generally be considered as more corrupt than an average government, it has been able to offer harmonized institutions that in many cases are better accustomed to the needs of the involved parties than their state-made alternatives, which often are based on one-size-fits-all approach and lack certainty of application.

Public orders as the reversed civil society

It does not mean that public orders such as the EU and nation states should do nothing. Private entities often need a “public nudge” not only to prevent excesses, but also to maintain incentives to produce rules that reflect new economic and social developments. In numerous writings (for an overview see Katz), law-and economics scholars indicate that while in principle private orders should be best left alone, states should limit the potential of powerful interest groups to undermine the roots of private orders such as FIFA. Who, how, and when should determine the benchmark of what is excessive is difficult, and law-and economics has declined to offer a general theory of the role of public orders in nudging private orders to limit interest groups’ power. Nevertheless, determining the role of public orders is no more difficult than the question what civil society should do when it comes to the performance of nation states.

In the context of nation states, the key role in limiting the power of elites belongs to the civil society. In case of monopolistic orders such as FIFA’s, however, there is often no direct representation of various actors inside such orders. Shouldn’t, then, states and the EU assume the role of a reversed civil society when interacting with large and successful private orders? In practice, particularly the EU is more and more involved in an informal co-determination of football-related regulation (for similar argument see here). For example, the recent social dialogue in European football, brokered by the EU Commission, is an example how public orders can fulfill their role as reversed civil society. The EU Commission, instead of intervening directly and regulating sports, encouraged, and should do so much more, various stakeholder groups, such as the European Club Association and FIFPro, to engage in a dialogue with the purpose of improving the practices of player protection (however, it is true that the EU Commission had a way deeper impact through EU competition law, see Duval). For the private order itself participation in this dialogue and active encouragement of the enforcement of its results is the best way to guarantee its role as a supplier of rules (see generally Colucci & Geeraert). In contrary, refusal to accommodate certain mechanisms, and mainly these that effectively limit FIFA’s executives’ power (e.g. Ethics Committee), may lead to a forceful, but legitimate, public intervention with possibly tragic consequences for the world of football.

Conclusion: Taking over fallen FIFA

What is so fascinating about FIFA is that it exemplifies how a very small number of enthusiastic people could set a mechanism that is ultimately able to create institutions that aim to regulate behavior of involved actors globally as well as to keep them away from regular courts. FIFA is an example of an order that has created huge economic and social value by being able to overcome many hurdles that prevented countless other member associations from creating their own orders (think of lawyers or investment bankers, for example). The fact that such order locks-in all involved football actors, despite some, such as small teams, benefiting significantly less by their participation than others, suggests that there is a value, despite FIFA’s monopoly power, that alternatives cannot offer. Some of them, such as increased certainty, are in the interests of all involved actors, whereas others, such as commitment to enforce contractual practices or training compensation awards, are more preferred by sophisticated actors (i.e. clubs and prominent footballers) and small clubs, respectively. This, though not allowing to state plainly that the private order is maximizing the welfare of all involved actors, also does not justify arguments for abandoning the current system in favor of state laws. In contrary, failure to accommodate mechanisms that limit the power of inside interest groups might undermine the order by giving incentives to interest groups to advocate public orders’ involvement, thereby putting an end to the monopoly of FIFA’s order, and possibly its destruction.

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