CAS releases decisions on final three Russian rowers’ appeals

Following the hearing that took place on 3 August 2016, CAS determined the following: 

“BALANDIN Ivan v. FISA and IOC”:  The CAS Ad Hoc Panel dismissed the case of Ivan Balandin who was not proposed by FISA for participation in the Rio2016 Olympic Games because he was implicated in the McLaren report. More details below.

 “KORABELSCHIKOVA & PODSHIVALOV v. FISA and IOC”: The CAS Ad Hoc Panel upheld the appeal of Anastasia Karabelshikova and Ivan Podshivalov who had been denied participation due to a previous doping suspension, according to the IOC Executive Board decision point 3, and therefore IOC’s condition 3 was ruled to be “unenforceable”.

Details on the Karabelshikova and Podshivalov case:

The IOC Decision, from the 24 of July, was to deprive the Russian athletes of the presumption of innocence and established a presumption of guilt, therefore requiring athletes to prove their innocence on an individual basis.

The CAS Panel focused upon the legality of paragraph 3 of the IOC Decision, in which it was stated that any athlete who has been convicted of a prior ADRV (Anti Doping Rule Violation) is not allowed to be entered for the Rio Games. The CAS determined that this condition is unenforceable as it does not respect the athletes’ right of natural justice. 

Therefore, the appeal has been partially upheld on that limited ground, but all other prayers for relief have been rejected, including the request to oblige FISA to allow the Applicants to participate at the Rio 2016 Olympic regatta and the request to oblige the IOC to accept entry of the athletes in the 2016 Rio Olympic Games.

The CAS Panel supported the approach taken by the IOC in paragraph 2. As paragraph 3 was deemed unenforceable, the two athletes should be considered by FISA, pursuant to paragraph 2 of the IOC Decision, to determine their eligibility or not, without delay.

FISA has already communicated to the IOC that Anastasia Karabelshikova does not meet the IOC conditions for “reliable adequate international tests…etc.” and will not be proposed to the IOC. However, Ivan Podshivalov does meet the IOC conditions and will be proposed to the IOC for participation at the Games.

The Russian Rowing Federation has confirmed that they will not change the line up of the Men’s Four and Ivan Podshivalov will stay in Moscow.

The FISA Process to meet the Requirements of the IOC in the case of Ivan Balandin

1. Upon the announcement of the McLaren Report on 18 July, FISA wrote immediately to WADA requesting the information related to 11 cases alleged to have been subject to the Disappearing Positive Methodology, as described in the McLaren report.
2. The FISA Executive Committee, anticipating the IOC EB meeting date of 24 July, set a telephone conference call for the evening of 25 July in order to be in a position to react immediately.
3. FISA received the individual report on the 11 cases affecting 10 rowers that Prof. McLaren reports to have been subjected to review by the Russian Deputy Minister of Sport. Of these 11 cases, six were “Save” cases, in other words, the Russian Deputy Minister of Sport decided that the Adverse Analytical Finding (AAF) should be changed to a negative, and five cases were (“Quarantine”) and the AAF was allowed to go forward.
4. FISA reviewed the list and noted that one rower, Ivan Baladin, had been entered for the Rio 2016 Olympic Games by the Russian Olympic Committee.
5. FISA then noted that Ivan Balandin was alleged to have tested positive for the steroid “GW1516” which is a prohibited substance, and benefited from a “Save” decision by the Russian Deputy Minister of Sport, which changed it to a negative.
6. FISA accessed all anti-doping records on Russian rowers from the ADAMS system, WADA’s online anti-doping data base, and noted that the test on Ivan Balandin was dated 21 May 2013 and was indeed reported as negative.
7. FISA noted that on 2 August 2016 the IOC issued a follow up document to guide the IFs on interpretation of the IP report, but that the case of Ivan Balandin does not apply to this document. Mr. Balandin was a clear “Save” decision by the Russian Deputy Minister of Sport, the substance was clearly stated “GW1516” which is a prohibited steroid and the test was reported as negative in ADAMS.

In its decision of 25 July the FISA Executive Committee noted the very clear instructions from the IOC Executive Board decision, point 2, bullet point 4, that “Nobody implicated [in the IP report]…may be accepted for entry or accreditation for the Olympic Games.” and FISA did not subject Ivan Balandin to any other criteria for eligibility.

Background

On 18 July 2016, WADA’s Independent Person “McLaren” report revealed that the Russian Ministry of Sport was systematically intervening in the anti-doping process to decide or not to change positive analytical samples to negative ones, thus nullifying the credibility of any result from the Moscow laboratory since 2011.

On page 32 of this report, Professor McLaren identified what he called the “Disappearing Positive Methodology” whereby Deputy Minister of Sport Yury Nagornykh would be presented with an Adverse Analytical Finding of an athlete’s A sample, and then decide if it would be confirmed (“Quarantined”) or changed to negative (“Save”). On page 39, Prof McLaren states “..Given that it was impossible for the IP to achieve full access to Russian records or the LIMS system, this number is only a minimum.”

On 24 July 2016, the IOC Executive Board issued the following statement regarding the participation of Russian athletes at the 2016 Rio Olympic Games: “all Russian athletes seeking entry to the Olympic Games Rio 2016 are considered to be affected by a system subverting and manipulating the anti-doping system.” It continues to read that “…the IP report has ‘only skimmed the surface of the extensive data available.” “Under these exceptional circumstances, Russian athletes in any of the 28 Olympic summer sports have to assume the consequences of what amounts to a collective responsibility in order to protect the credibility of the Olympic competitions, and the ‘presumption of innocence’ cannot be applied to them.”

The IOC EB decision, point 2, states “Entry will only be accepted by the IOC only if an athlete is able to provide evidence to the full satisfaction of his or her International Federation (IF) in relation to the following criteria:”.

Further, point 2, bullet point 4, which applies to Russian rower Ivan Balandin states “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.”