The IAAF recently extended its ban on Russian athletes through the World Championships in London this summer, stating that Russian athletes should not expect to be reinstated until at least November of 2017. Here is a look back at the Court of Arbitration for Sport’s decision to uphold IAAF’s original suspension of Russian athletes.

In its decision dated October 10, 2016 (CAS 2016/O/4684), the CAS was called upon to decide the legality of the application of certain IAAF rules and their consequences with respect to the 2016 Olympic Games.

Background

On November 9, 2015, an independent commission submitted a report to the President of the World Anti-Doping Agency recommending that it immediately declare the Russian Athletics Federation to be non-compliant with the World Anti-Doping Code. On November 13, 2015, the IAAF Council preliminarily suspended RusAF and on November 26, 2015, the IAAF Council confirmed the full suspension.

On June 17, 2016, the IAAF decided not to reinstate RusAF to IAAF membership and passed a new Competition Rule (Rule 22.1A) that allowed certain Russian athletes who could clearly and convincingly show that they were not tainted by the Russian system to compete in international competitions.

In this arbitration, RusAF did not challenge the IAAF’s suspension despite that the fact that it had the opportunity to do so under the IAAF Constitution. Rather, claimants disputed the application of certain IAAF Competition Rules with the hope of finding an exception to the rule that would allow Russian athletes to compete despite RusAF’s suspension.

Specifically, claimants disputed the application of IAAF Competition Rules 22.1(a) and 22.1A. Rule 22.1(a) states that any person whose National Federation is currently suspended by the IAAF shall be ineligible for international competitions. Rule 22.1A provides athletes whose National Federation is suspended by the IAAF an escape by satisfying certain criteria.

The panel considered four specific issues: (i) whether IAAF Competition Rule 22.1(a) was valid and enforceable; (ii) whether IAAF Competition Rule 22.1A was valid and enforceable; (iii) whether the ROC was entitled to nominate and whether the IOC was entitled to accept the entry of Russian track and field athletes to compete in the 2016 Rio Olympic Games if they were not eligible under IAAF Competition Rule 22.1(a) and 22.1A; and (iv) whether any Russian track and field athletes eligible to compete under Rule 22.1A were entitled to compete as representatives of Russia.

Issue 1: Whether IAAF Competition Rule 22.1(a) was valid and enforceable under the circumstances.

The claimants argued that Rule 22.1(a) was not valid and enforceable under the circumstances for the following reasons: that the Rule was inconsistent with the WADC; estoppel; lack of legal certainty; proportionality; discrimination; and legitimate expectations. The panel found claimants’ arguments insufficient and determined that Rule 22.1(a) was valid and enforceable under the circumstances.

First, claimants argued that Rule 22.1(a) was invalid and unenforceable because the IAAF applied it as a sanction, in direct opposition to the WADC. According to claimants, because Rule 22.1(a) trespassed and altered the effects of the mandatory provisions of the WADC, it should have come under the ambit of the WADC and not the IAAF.

In its introductory remarks, however, the panel noted that Rule 22.1(a) is not a doping sanction for athletes, but a rule that affects the eligibility of athletes to enter international competitions. In that regard, the panel found it important to consider Rule 22.1(a) separately from Rule 22.1A, because the fact that the consequences of Rule 22.1(a) could be escaped by Rule 22.1A does not mean that the effect produced by Rule 22.1(a) is a doping sanction. Thus, the athletes were ineligible because RusAF had been sanctioned and had accepted that sanction, not because of the athletes’ actions. In other words, Rule 22.1(a) is a rule of general application that is not specific to doping cases and applies equally to athletes who were members of federations that breach other obligations to the IAAF.

Moreover, the panel noted, even if the Rule was interpreted as a sanction, Rule 22.1(a) is consistent with Articles 20.3.2, 12, and 12.3 of the WADC. Accordingly, the panel found claimants’ argument that Rule 22.1(a) was inconsistent with the WADC insufficient.

Next, claimants argued that because IAAF representatives were complicit in RusAF’s failures leading to its suspension, the IAAF should be estopped from imposing Article 22.1(a) on the athletes. The panel quickly dismissed this argument and found that the conduct of some IAAF officers, although reprehensible, was not the cause of the issues within RusAF but rather an incident of them.

The panel also dismissed claimants’ proportionality arguments. First, the panel noted that because Rule 22.1(a) is not a sanction, it does not have to pass a proportionality test. Nonetheless, the panel determined that even if the Rule was a sanction, the effect on the athletes registered with a national federation suspended by the IAAF is a proportionate consequence of the federation’s suspension for its failure to put in place an adequate system to protect and promote clean athletes, fair play, and the integrity of sport.

Finally, the court quickly dismissed claimants’ arguments that Rule 22.1(a) lacked legal certainty, was discriminatory, and that the Rule was contrary to their legitimate expectations.

Accordingly, the panel found that IAAF Competition Rule 22.1(a) was valid and enforceable.

Issue 2: Whether IAAF Competition Rule 22.1A was valid and enforceable under the circumstances.

Claimants argued that Rule 22.1A was invalid and unenforceable under the circumstances because the Rule: was inconsistent with the WADC; lacked legal certainty; was not proportionate; was discriminatory; and was contrary to claimants’ legitimate expectations. Like their Rule 22.1(a) arguments, the panel found claimants’ arguments insufficient and determined that Rule 22.1A was valid and enforceable.

Claimants first submitted that Rule 22.1A should be read in conjunction with Rule 22.1(a) and that if one Rule was determined invalid then both rules must be invalid, and consequently any suspensions based on those Rules could not stand.

Claimants submitted that in the event Rule 22.1A was set aside and/or declared inapplicable, the conditions for the Russian athletes to regain eligibility could be found in Section 5.3 of the verification criteria in the conditions IAAF had set out for RusAF’s reinstatement.

The panel disagreed and noted that: (i) the legality of Rule 22.1(a) and its applicability had already been confirmed: (ii) claimants’ submissions as to the legality of Rule 22.1A had no merit; and (iii) Section 5.3 of the verification criteria explicitly made the possibility for the Russian athletes to compete dependent not only on the satisfaction of individual criteria, but also on the lifting of the suspension of the Russian federation, which had clearly not been satisfied.

Next, the panel quickly dismissed all of claimants’ remaining arguments except its claim that Rule 22.1A lacked legal certainty. There, the panel stated its belief that an issue could arise due to the Rule’s vagueness and retroactive nature, specifically in regards to its lack of definition for a “sufficiently long period” for an athlete to be subject to an “adequate system” in order to regain eligibility. Nonetheless, the panel determined that despite the vagueness of the terms allowing for retroactive application, the argument did not help claimants in having the application of the Rule set aside under the circumstances.

Accordingly, the panel found that IAAF Competition Rule 22.1A was valid and enforceable.

Issue 3: Whether the ROC was entitled to nominate and whether the IOC was entitled to accept the entry of Russian track and field athletes to compete in the 2016 Rio Olympic Games if they were not eligible under IAAF Competition Rule 22.1(a) and 22.1A.

Claimants next argued that no provisions in the Olympic Charter prevented the ROC from entering Russian athletes to compete at the 2016 Olympic Games, and that the Olympic Charter (specifically, Rule 40) governs the admissions process over and above the IAAF Rules.

The Panel disagreed with the claimants’ submissions. Although Rule 40 of the Olympic Charter confirms that “the competitor . . . must be entered by his NOC,” it also restricts participation in the Olympic Games to those who comply with the Olympic Charter and the WADC, including the conditions of participation established by the IOC, “as well as the rules of the relevant [International Federation] as approved by the IOC.”

Additionally, the panel noted, the Olympic Charter is clear that as a condition precedent to participation in the Olympic Games, every competitor has to comply not only with the Olympic Charter, but also with “the rules of the IF governing his sport” (Bye-law 4 to Rule 44). Thus, to ensure that NOCs do not contravene the Olympic Charter, they can only exercise their right to send athletes to the Olympic Games if they comply with the rules of the relevant IF. Because RusAF was suspended for non-compliance with IAAF Rules, the ROC would contravene Rule 40 of the Olympic Charter if it was allowed to exercise its right to send athletes to the Olympic Games.

As a result, the panel determined that the ROC could not enter into the 2016 Olympic Games athletes who did not comply with IAAF rules, including those athletes who were not eligible under Competition Rules 22.1(a) and 22.1A.

Issue 4: Whether any Russian track and field athletes eligible to compete under Rule 22.1A were entitled to compete as representatives of Russia.

Finally, claimants argued that even if the panel found IAAF Competition Rules 22.1(a) and 22.1A valid and enforceable, the claimant athletes must compete as representatives of Russia and not as a “Neutral Athlete” as suggested by Rule 22.1A. The panel agreed.

Under the Olympic Charter, the fact that a national federation is suspended is irrelevant to the question of whether the athlete must compete as a “Neutral Athlete” or for his or her NOC because an athlete does not represent a national federation, but instead represents an NOC. Thus, an IF does not have the right to determine whether an athlete, eligible for entry to the Olympic Games, has to compete as a “Neutral Athlete” or as an athlete representing the NOC that entered the athlete.

Accordingly, the panel found that if any Russian track and field athletes were eligible to compete under IAAF Competition Rule 22.1A, the ROC was entitled to enter them to compete as representatives of Russia.

The panel noted, however, that its finding that the ROC was entitled to enter athletes as representatives of Russia did not mean that the IOC was bound to accept such designations. The IOC declined to participate in this arbitration and therefore the Panel had no jurisdiction to determine whether the IOC was entitled to accept or refuse the entry of representatives of Russia who were eligible to compete at the Olympic Games under Rule 22.1A.