Thinking | 1 September 2016
Decisions of the Court of Arbitration for Sport’s Ad Hoc Division at the Rio 2016 Summer Olympic Games
As with previous Olympic Games, Hall & Wilcox has prepared a summary of the decisions of the Court of Arbitration for Sport’s Ad Hoc Division at the 2016 Rio Summer Olympic Games (2016 Olympic Games).
CAS Ad Hoc Division
The Court of Arbitration for Sport (CAS) has operated an ad hoc tribunal (CAS Ad Hoc Division) at each Olympic Games since 1996.
The purpose of the CAS Ad Hoc Division is to resolve, in an expedited manner, disputes which arise during the 2016 Olympic Games and the 10 day period leading up to the Opening Ceremony.1 Where an application is made to the CAS Ad Hoc Division, the matter is heard by a tribunal of three arbitrators or by a sole arbitrator.
For the 2016 Olympic Games, a temporary office was established in Rio de Janiero to facilitate the CAS Ad Hoc Division and a panel of 14 arbitrators was appointed by CAS, including the Hon Dr Annabelle Bennett AO SC, a retired judge of the Federal Court of Australia.
The CAS Ad Hoc Division heard 20 cases in relation to the 2016 Olympic Games. This set a new record of cases for one Olympic Games (the former record was 15 for the 2000 Sydney Olympic Games), although many of the cases related to the eligibility of Russian athletes following the recent doping scandal.
CAS Anti-Doping Division
A new structure was created this year to act as the first-instance authority for doping disputes that arise during or in relation to the 2016 Olympic Games (CAS Anti-Doping Division). This role was previously undertaken by the International Olympic Committee (IOC) Disciplinary Commission, comprised of ordinary IOC members, which would convene in response to a positive doping test result. The CAS Anti-Doping Division heard a total of eight matters in relation to the 2016 Olympic Games.
This update does not summarise the decisions of the CAS Anti-Doping Division.
Summary of CAS Ad Hoc Division Decisions
The matters considered by the CAS Ad Hoc Division for the 2016 Olympic Games were of four different types:
- field of play decisions
- qualification and selection disputes
- doping matters which occurred before the 2016 Olympic Games
- disputes arising from the Russian doping scandal
A summary of the matters considered by the 2016 CAS Ad Hoc Division is set out below.
Field of play decisions
The application and interpretation by umpires, referees and officials of the rules which govern sporting competitions are known as ‘field of play’ decisions. These decisions can include pure sporting decisions, such as determining whether a foul is committed, or more technical applications, such as appeal procedures.
The CAS Ad Hoc Division has the power to review and overturn field of play decisions. However, it will only overturn such decisions if there is some evidence that the relevant rule was applied arbitrarily, in bad faith or by fraud.2 While this places a high hurdle for applicants, if the hurdle were lowered it would be much easier for any dissatisfied participant to seek the post-sporting contest review of a field of play decision.3 It would be unfair to the decision-makers and other athletes to interfere in the decisions made by officials, who are the technical experts. It also prevents the constant interruptions of sporting contests by appeals.
Behdad Salimi & NOCIRI v International Weightlifting Federation4
Mr Salimi was the defending Olympic gold medallist in the +105kg weightlifting category.
At the 2016 Olympic Games Mr Salimi set a world record in the first part of the competition; the snatch. In the clean and jerk, Mr Salimi’s first attempt at lifting 245kg was rejected by the Referees. His second attempt was accepted by three Referees but was subsequently overturned by the Jury. Mr Salimi’s third and final attempt at lifting 245kg was unsuccessful. Had Mr Salimi successfully lifted 245kg he would have at least won a silver medal.
The relevant rules under which the weightlifting competition were conducted were the International Weightlifting Federation (IWF) 2013-2016 Technical and Competitions Rules & Regulations (TCRR). Article 7.5.7 of the TCRR provides:
The Jury has the power to reverse a decision when the Referees’ decision has been judged unanimously by the Jury to be technically incorrect. In order to consider the reversal of a decision, the Jury must call the Referees in question to seek an explanation. If the explanation is accepted, no action is taken, if the explanation is not accepted the Jury will reverse the decision. Such decision and its reason must be communication to the athlete/Team official concerned via the Technical Controller or any other TO, as directed by the President of the Jury, and announced by the Speaker.
Mr Salimi and the National Olympic Committee of the Islamic Republic of Iran (NOCIRI) made an application to the CAS Ad Hoc Division for relief on the basis that:
- the Jury overturned the Referees’ decision without consulting with the three Referees and did not communicate the reasons for the decision to Mr Salimi, as required by Article 7.5.7 of the TCRR
- changing the start list the night before the competition by replacing one of the jurors with the technical controller contravened Article 7.5.3 of the TCRR.
To support their submissions, Mr Salimi and the NOCIRI provided a video of Mr Salimi’s three lifts. The CAS Ad Hoc Division panel hearing the case (Panel) found that the video was not helpful in establishing any contravention as it focussed on the warm up area and the lifts themselves and did not show the decision making process or any other aspect of the Jury deliberation process. In coming to this conclusion, the Panel noted that reversal of the Referees’ decision by the Jury is not unusual in weightlifting and had in fact already occurred seven times at the 2016 Olympic Games.
In respect of any failure to communicate the decision, the Panel was not persuaded that the Jury’s decision was not communicated to Mr Salimi. In particular, the fact that there was no evidence that Mr Salimi had registered a protest before proceeding to his third lift supported the IWF’s submission that the reasons were properly communicated.
The Panel therefore found that Mr Salimi had been treated fairly.
The Panel also noted that Article 7.5.9 of the TCRR, which expressly provides that there is no appeal against the Jury’s decision, reflected the finality of the Jury’s decision. As such, the Panel could not interfere with the Jury’s decision absent evidence of bad faith, fraud or arbitrariness.
The Panel was unable to find a breach of Article 7.5.3 of the TCRR or that the IWF had acted in bad faith by replacing one juror with a technical controller. The Panel accepted that all of the officials were qualified and that the replacement of officials is not unusual.
Application unsuccessful – no evidence the relevant rules were applied arbitrarily or in bad faith.
Aurélie Müller v International Swimming Federation
French swimmer Aurélie Müller challenged her disqualification from the Women’s 10km open water race at the 2016 Olympic Games by the International Swimming Federation (ISF). Ms Müller’s disqualification followed an incident at the end of the race, where she pushed Italy’s Rachele Bruni under water and went over her in an attempt to touch the finishing pad. Had she not been disqualified Müller would have finished with the silver medal.
At the time of publication of this update5 the full award and grounds had not been published by CAS.
Application unsuccessful – no evidence the relevant rules were applied arbitrarily or in bad faith.
Qualification and selection disputes
Participation in the Olympic Games is a career highlight for many athletes. However, as stated in Rule 44.3 of the Olympic Charter:6
‘nobody is entitled to any right of any kind to participate in the Olympic Games’.
Athletes who satisfy the applicable citizenship criteria for a country may be nominated by their national Olympic association (NOC) to the IOC to participate in the Olympic Games, usually following a recommendation by the national federations (NF) for the relevant sport and after consideration of the qualification criteria for the relevant events determined by the international federation (IF) for that sport.
Most disputes regarding qualification and selection are resolved in advance of the Olympic Games. Sometimes those disputes are heard by CAS’s ‘ordinary’ tribunal. For example, in June 2016 the CAS Oceania Registry heard a selection dispute relating to the non-selection of an athlete in the Australian Olympic shooting team.7
However, in some instances qualification and selection disputes are still active in the immediate lead up to the Olympic Games and result in applications to the CAS Ad Hoc Division.
Mangur Makur Chep v South Sudan Olympic Committee; South Sudan Athletics Federation v South Sudan Olympic Committee8
This matter related to the non-selection by the South Sudan Olympic Committee (SSOC) of Mr Chep, an athlete in the sport of athletics.
South Sudan is a new nation, having gained its independence in 2011. The 2016 Olympic Games was the first time South Sudan has participated in the Olympic Games.9
No athlete from South Sudan attained the qualifying times to participate in the 2016 Olympic Games. However, under the rules of the IF for athletics, the International Association of Athletics Federations (IAAF), where a NOC does not have any male or female athletes qualify for the Olypmic Games the NOC, in this case the SSOC, is entitled to enter their best male athlete and female athlete in one athletic event at the Olympic Games.10
Despite being nominated by the relevant NF, the South Sudan Athletics Federation (SSAF), and being informed by the President of the SSOC that he would be attending the 2016 Olympic Games (including representations made as late as 20 July 2016, just over two weeks before the Opening Ceremony), Mr Chep was not nominated by SSOC to represent South Sudan.
Mr Chep and the SSAF sought an order from CAS that SSOC had unlawfully excluded Mr Chep from the 2016 Olympic Games.
Although the Panel found that Mr Chep had been misled by the President of the SSOC to believe he would be representing South Sudan at the 2016 Olympic Games,11 the Panel was unable to find that the decision to nominate other athletes to represent South Sudan was contrary to the Olympic Charter or the IAAF rules.12 The applications by Mr Chep and the SSAF were unsuccessful and Mr Chep did not participate in the 2016 Olympic Games.
Application unsuccessful – no breach of Olympic Charter or IF qualification rules.
Tjipekapora Herunga v Namibian National Olympic Committee13
Ms Herunga made an application to the CAS Ad Hoc Division in relation to the decision of the Namibian National Olympic Committee (NNOC) not to select her to represent Namibia in the Women’s 400 metres at the 2016 Olympic Games.
Ms Herunga submitted she had met the qualifying time at the All Africa Games in September 2015. The NNOC argued that this event was not a qualifying event.
The jurisdiction of the CAS Ad Hoc Division is limited to disputes:
‘insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic games’.14
The Panel found that this dispute arose well before the time limit of ten days prior to the Opening Ceremony for the 2016 Olympics Games and therefore the application was inadmissible.15 In any event, the CAS arbitrator noted that even if the application had proceeded, it would have failed on its merits for various reasons.16
Application unsuccessful – no jurisdiction.
VANASOC & Vanuatu Beach Volleyball Federation v FIVB & Rio 2016 Organizing Committee17
The Vanuatu Association of Sports and National Olympic Committee (VANASOC) and the Vanuatu beach volleyball NF, the Vanuatu Beach Volleyball Association (VBVA), made an urgent application to the CAS Ad Hoc Division on the day of Opening Ceremony seeking:
- exclusion of the Italian female beach volleyball team from the 2016 Olympics Games
- a declaration that the Vanuatu female beach volleyball team be entitled to compete at the Rio 2016 Olympics.
The application by VANASOC and VBVA arose because, Viktoria Orsi Toth, one of the two athletes that the Italian NOC, the Comitato Olimpico Nazionale Italiano (CONI), had nominated to be part of the Italian Women’s volleyball team, tested positive for a prohibited anabolic substance on 19 July 2016. Following this positive result Ms Toth was excluded from the 2016 Olympic Games.
The relevant regulations for beach volleyball provide:
- that joint liability is imposed on both members of the team if one member denies testing positive for doping and the team is disqualified18
- the replacement of an athlete “will only occur where there are urgent medical conditions preventing participation of an Athlete, or otherwise on a case-by-case basis for exceptional circumstances”.19
The IF for beach volleyball, the Federation Internationale de Volleyball (FIVB), had approved CONI replacing Ms Toth with another player in the Italian female beach volleyball team under the Late Player Replacement Policy for the 2016 Olympic Games, published by the Rio 2016 Organizing Committee (Policy).20
The Policy provided that the Rio 2016 Organizing Committee could authorize a permanent replacement of an athlete by another athlete in the same sport, discipline and event and stated, in part:
Such replacement will only occur where there are urgent medical conditions preventing participation of an Athlete, or otherwise on a case-by-case basis for exceptional circumstances.21
VANASOC and VBVA argued that use of an anabolic substance by Ms Toth was not an ‘urgent medical conditional’ or ‘exceptional circumstances’.
Interestingly and, as noted by the arbitrator, unfortunately, neither the FIVB or the Rio 2016 Organizing Committee responded to, or engaged in, the application before the CAS Ad Hoc Division.
However, the Panel found that FIVB was aware of the requirement under the Policy allowing for replacement of an athlete in exceptional circumstances;22 that the applicants bore the onus of establishing that there were no applicable exceptional circumstances under the Policy23 and that;
‘the facts were not sufficient to establish an inevitable conclusion of lack of exceptional circumstances.’24
The application was unsuccessful and the Vanuatu female beach volleyball team did not participate in the 2016 Olympic Games.
Application unsuccessful – lack of evidence there was no exceptional circumstances to justify replacement of athlete under the policy of the Organizing Committee for the replacement of athletes.
Karen Pavicic v Federation Equestre Internationale25
Ms Pavicic is an equestrian rider from Canada.
Ms Pavicic alleged that in June 2016 at the final North American qualifying event for dressage for the 2016 Rio Olympics one of the judges, Elizabeth McMullen, gave artificially high scores to another athlete, Ms Lane, to ensure that Ms Lane qualified ahead of Ms Pavicic for selection for the Olympic Games.26
Ms Lane was subsequently selected ahead of Ms Pavicic to represent Canada at the 2016 Olympic Games.
The following then occurred:
- On 8 July 2016 Ms Pavicic made a complaint to the IF for the sport of equestrian, Federation Equestre Internationale (FEI).
- On 13 July 2016 Ms Pavicic appealed the decision of the NF for equestrian in Canada, Equine Canada, to nominate Ms Lane ahead of her for the 2016 Olympics Games.
- On 15 July 2016 a committee from the FEI (FEI Committee) considered the results for the qualifying event and Ms McMullen’s judging at that event. The FEI Committee unanimously found that the original results should stand, as there were insufficient grounds for annulling or changing the results.27 The FEI Committee also determined to make further enquiries into Ms McMullen’s behaviour.28 This decision was communicated to Ms Pavicic on 17 July 2016.
- On 16 July 2016 an arbitration was conducted by the Sport Dispute Resolution Centre of Canada in relation to the selection decision of Equine Canada. The arbitrator dismissed Ms Pavicic’s challenge to her non-selection.
- On 2 August 2016 Ms Pavicic filed an application with the CAS Ad Hoc Division seeking that Ms Lane’s score should be annulled and that Ms Pavicic should represent Canada at the 2016 Olympic Games in place of Ms Lane.
The threshold issue in this proceeding was whether the CAS Ad Hoc Division had jurisdiction to hear the application.
As noted above, the CAS Ad Hoc Division has jurisdiction in respect of disputes arising during the Olympic Games or the 10 days before the Opening Ceremony.
Further, the CAS Ad Hoc Division Rules require applicants to exhaust all internal remedies available to them before making an application to CAS. This condition is qualified if the time needed to exhaust the internal remedies would make the appeal to the CAS Ad Hoc Division ineffective.29
Ms Pavicic’s application related to a decision made by the FEI Committee on 17 July 2016. Ms Pavicic had not appealed that decision to the relevant FEI tribunal under the FEI Rules, but had waited 2 weeks and then sought to take the matter direct to CAS.
In circumstances where Ms Pavicic had not exhausted her internal remedies under the FEI Rules, the arbitrator found that the CAS Ad Hoc Division had no jurisdiction to hear the application.30
Application unsuccessful – no jurisdiction.
Carvin Nkanata v International Olympic Committee31
On 5 August 2016 Mr Nkanata was refused access to the Olympic Games Village (OGV) as he could not provide the appropriate identification to IOC officials to verify his Kenyan citizenship. Mr Nkanata had used his United States passport and National Olympic Committee Kenya (NOCK) Accreditation to enter Brazil.
On 14 August 2016 Mr Nkanata filed an application to the CAS Ad Hoc Division seeking:
- the immediate withdrawal of the IOC’s decision to deny Mr Nkanata to the OGV
- the confirmation of Mr Nkanata’s place in the heats of the men’s 200 metre race, scheduled for 16 August 2016.
Mr Nkanata relied on Article 41 and 52 of the Olympic Charter which prescribes that an athlete must be a national of the country of the NOC, which is entering the competitor and that the Olympic Identity and Accreditation is a document which establishes the identity of its holder and confers upon the athlete a right to take part in the Olympic Games, together with a passport or other official travel documents.32
Mr Nkanata submitted that his United States passport and his Accreditation card satisfied the requirement of Article 52 of the Olympic Charter. In response, the IOC argued that it was not clear that Mr Nkanata was a Kenyan National as he could only provide an identity card number and was unable to produce the official identity card. Accordingly, the IOC maintained that Mr Nkanata was rightly refused entry into the OGV.
The Panel determined that Article 41 and Article 52 must be read together. Accordingly, Mr Nkanata had interpreted Article 52 in isolation of Article 41 and had incorrectly ignored the requirement that an athlete must be a national of the country of the NOC which is entering the competitor.
In the circumstances, the CAS Ad Hoc Division Panel determined that the IOC and the NOCK did not have proof of Mr Nkanata’s identity. Accordingly, Mr Nkanata’s appeal was dismissed.
Application unsuccessful – citizenship-athlete accreditation – athlete unable to establish citizenship – refusal of entry to 2016 Olympic Games justified.
Jason Morgan v Jamaican Athletic Administrative Association33
Mr Morgan applied to the CAS Ad Hoc Division in relation to the decision of the Jamaican Athletic Administrative Association (JAAA) not to select him to represent Jamaica in the men’s discus at the 2016 Olympic Games.
Mr Morgan was one of two Jamaicans who had thrown the qualifying distance specified by the IAAF, however he did not achieve a top three finish at the JAAA national championships which would have guaranteed him selection at the 2016 Olympic Games. Mr Morgan submitted that JAAA unfairly exercised its discretion in not selecting him for the 2016 Olympic Games.
The JAAA argued that CAS Ad Hoc Division did not have jurisdiction to resolve the dispute as Mr Morgan became aware of the selection decision on 21 July 2016. Further, JAAA submitted that they had exercised their discretion fairly and reasonably during the selection process.
As noted above, the CAS Ad Hoc Division has jurisdiction in respect of disputes arising during the Olympic Games or the 10 days before the Opening Ceremony. Also, CAS requires applicants to exhaust all internal remedies available to them before making an application to CAS.
The CAS Ad Hoc Division found that this dispute arose before the time limit of 10 days prior to the Opening Ceremony for the 2016 Olympics Games. In addition, there was no evidence Mr Morgan had exhausted all internal remedies available to them before making an application to CAS.
In the circumstances the CAS Ad Hoc Division held that it had no jurisdiction to hear the application.
Application unsuccessful – no jurisdiction.
Czech Olympic Committee & Czech Cycling Federation v Union Cycliste Internationale34
On 1 June 2016 the Union Cycliste Internationale (UCI) released its list of athletes quota for the road cycling Women’s events at the 2016 Olympic Games. The Czech Olympic Committee (COC) received no allocation under this quota. The COC and Czech Cycling Federation (CCF) expressed their concern regarding this decision and asserted that a mistake had been made by the UCI, requesting an explanation for the decision and providing statements regarding their differing interpretations of the ‘Rio 2016 – Road Cycling – Qualification System’.
On 6 August 2016 COC and CCF applied to the CAS Ad Hoc Division seeking an order that a Czech athlete be permitted to compete in the 2016 Olympic Games.
The UCI contended that the CAS Ad Hoc Division did not have the jurisdiction to hear the dispute as it arose outside the mandated 10 day period immediately before the Opening Ceremony.
The Panel considered the initial communications between the parties and found that those communications did not give rise to an actual dispute. The Panel accepted the COC and CCF’s argument that for a time they were simply seeking an explanation of the reasons which led to the decision by the UCI.
The Panel found that the dispute actually arose on 18 July 2016 when, in response to a further request by the CCF for an explanation from the UCI, the UCI stated that the matter was ‘closed’.35 This meant that the dispute arose outside the mandated 10 day period.
In coming to this decision the CAS Ad Hoc Division Panel considered the previous case of Joseph Ward v IOC, AIBA & ANOC36 where it was held that a dispute does not arise until an athlete has clearly taken issue with a decision, or the basis on which it was made. Where an athlete formally objects to a decision it will be clear that a dispute has arisen, however, this is a determination to be made on the facts of each case.
The application by COC and CC was therefore dismissed, as the CAS Ad Hoc Division did not have jurisdiction to hear the matter.
Application unsuccessful – no jurisdiction.
Pre-Olympic Games doping matters
On 8 June 2015 the IOC published anti-doping rules applicable to the 2016 Olympic Games (Anti-Doping Rules), in line with World Anti-Doping Authority’s (WADA) World Anti-Doping Code and the Prohibited Substances and Methods List (Prohibited Substances List). Under these rules, athletes cannot use prohibited substances and were subject to doping-control testing during the 2016 Olympic Games.
Where a violation of the Anti-Doping Rules is alleged by the IOC during the 2016 Olympic Games or the 10 day period immediately preceding them, the IOC is required to promptly file an application with the CAS Anti-Doping Division.37 In these applications the IOC will typically seek a finding that a violation of the Anti-Doping Rules has occurred and pursue available sanctions.
In the following cases the athletes did not test positive to prohibited substances within the appropriate timeframe to allow the matter to be heard by the CAS Anti-Doping Division. However, the disputes arising in relation to the positive tests were alleged to have arisen during the 2016 Olympic Games or the 10 day period immediately preceding them, which brought the dispute within the jurisdiction of the CAS Ad Hoc Division.38
World Anti Doping Agency v Narsingh Yadav & National Anti-Doping Agency39
Narsingh Yadav is an Indian wrestler. Mr Yadav was subject to two out-of-competition doping control tests on 25 June and 5 July 2016 respectively. These tests separately confirmed the presence of certain metabolites of the exogenous androgenic steroid methandienone, which is a non-specified substance under Article 1.1a of the Prohibited Substances List. On 16 July 2016 Mr Yadav was provisionally suspended from competition.
Mr Yadav subsequently filed a complaint with the police alleging that his energy drink had been spiked with the prohibited substance by Mr Jitesh, an associate of one of Mr Yadav’s rivals in competition. On 1 August 2016 India’s National Anti-Doping Agency (NADA) Anti-Doping Disciplinary Panel (NADA Disciplinary Panel) determined that Mr Yadav was the victim of sabotage, bearing no fault or negligence for the presence of the substance in his body. As such, the NADA Disciplinary Panel decided that there was no violation of NADA’s Anti-Doping Rules.40
On 13 August 2016 WADA filed an application with the CAS Ad Hoc Division that the decision of the NADA Disciplinary Panel be set aside.
The NADA argued that the CAS Ad Hoc Division did not have jurisdiction to determine the application by WADA as it arose outside the mandated 10 day period immediately preceding the 2016 Olympic Games. The Panel held that while the testing occurred outside this period, the NADA Disciplinary Panel’s decision was issued within this period, which is the event giving rise to the dispute.41 Therefore the CAS Ad Hoc Division had jurisdiction to hear the matter.
Additionally, NADA submitted that the CAS Ad Hoc Rules require applicants to exhaust all internal remedies available to them before making an application to CAS.42 The Panel noted that the NADA Anti-Doping Rules provide that where a decision is made under the NADA processes, such as the decision by the NADA Disciplinary Panel, and this decision has not been appealed, WADA has the right to appeal this decision to CAS.43
The Panel held that there was a clear violation by Yadav of Article 2.1 of the Anti-Doping Rules. This rule provides that an athlete will have violated the Anti-Doping Rules where they test positive to a substance on the Prohibited Substances List. There is no requirement that there be any fault or negligence on the part of the athlete. The positive tests establish this violation.
The standard sanction for a violation of this type is a four year period of ineligibility for competition, unless the athlete can demonstrate that the violation was not intentional, in which case the period will be reduced to two years.44 The burden of proof is on the athlete to establish this lack of intention, on the balance of probabilities.45
WADA presented expert evidence by Professor Christiane Ayotte, which argued that the test results indicated multiple ingestions of the prohibited substance and in large quantities, which would occur through the ingestion of tablets rather than powder mixed with water. This was inconsistent with Mr Yadav’s claims that his drink was contaminated. The Panel noted that Mr Yadav’s theory was ‘possible, but not probably and certainly not grounded in any real evidence’46 and the more likely explanation was that suggested by Professor Ayotte’s evidence. As such, Mr Yadav failed to satisfy the burden of proof.
In light of the above findings, the Panel ordered that:
- the decision of the NADA Disciplinary Panel on 1 August 2016 be set aside
- Mr Yadav be sanctioned with a four-year ineligibility period, with his term of suspension beginning 16 July 2016 to be credited against this period
- all results obtained by Mr Yadav from 25 July 2016 be disqualified and all medals, points and prizes be forfeited.
Application successful – violation of the Anti-Doping Rules – athlete unable to demonstrate lack of intention to ingest prohibited substance.
Ihab Abdelrahman v Egyptian National Anti-Doping Organization47
Ihab Abdelrahman is an Egyptian javelin athlete. On 17 April 2016 Mr Abdelrahman was subject to an out-of-competition doping control test. The A Sample revealed the presence of testosterone consistent with an exogenous origin, which is a non-specified substance in Article 1.1a of the Prohibited Substances List. Mr Abdelrahman was verbally notified of the test results on 24 July 2016 and was provisionally suspended from competition.
Mr Abdelrahman subsequently requested analysis of his B Sample. On 27 July 2016 Mr Abdelrahman received a letter from the IAAF advising that he had been suspended.
Mr Abdelrahman applied to the CAS Ad Hoc Division to have the provisional suspension lifted until the analysis of his B Sample and a declaration allowing him to compete in the 2016 Olympic Games.
The Egyptian National Anti-Doping Organisation (ENADO) contended that Mr Abdelrahman’s application to the CAS Ad Hoc Division was inadmissible as it arose on 24 July 2016, outside the 10 day period immediately preceding the 2016 Olympic Games and therefore the CAS Ad Hoc Division did not have jurisdiction to hear the matter.48
The Panel found that the relevant dispute arose on 27 July 2016, when Mr Abdelrahman was properly notified of the consequences of the test results.49 In making this decision the Panel referred to Joseph Ward v IOC, AIBA & ANOC.50 The effect of this finding was that the CAS Ad Hoc Division had jurisdiction to hear Mr Abdelrahman’s application.
Mr Abdelrahman contended that in light of his unblemished record, the mismanagement of testing procedures by the ENADO and delays involved in his case, the provisional suspension should be lifted until his B Sample could be tested and the matter resolved.
The CAS Ad Hoc Division Panel found that the test results demonstrate, on a prima facie basis, the presence of the prohibited substance in Mr Abdelrahman’s body and the mere assertion that an athlete had not ingested a prohibited substance, is not a sufficient basis on which to contest the test results. While Mr Abdelrahman raised concerns about the testing procedures, he could not demonstrate any failure by the laboratory to adhere to the appropriate regulations or standards. The CAS Ad Hoc Division Panel also noted that, while the delays Mr Abdelrahman experienced in testing and the communication of these test results were unfortunate, this was not a sufficient reason to stay or suspend his provisional suspension. Mr Abdelrahman’s application was therefore dismissed.
Application unsuccessful – athlete could not demonstrate that provisional suspension should be stayed pending final resolution of dispute.
Russian pre-Olympic Games doping matters
In November 2015 the WADA Independent Commission issued a report detailing allegations of widespread, state-sponsored doping in Russian athletics. As a result, the Russian Athletics Federation was banned from participating in the 2016 Olympic Games by the IAAF. Subsequently on 16 July 2016, Professor Richard McLaren released an independent report commissioned by WADA (McLaren Report) following an investigation into the allegations.
On 24 July 2016 the IOC determined that eligibility of any Russian athlete for the 2016 Olympic Games will only be granted by an IF, where the athlete can provide evidence to satisfy the following criteria:51
- when establishing the pool of eligible Russian athletes, the IF is to apply the World Anti-Doping Code
- the absence of a positive national anti-doping test cannot be considered sufficient
- an individual analysis of each athlete’s anti-doping record should be conducted, 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
- any person implicated in the McLaren Report was banned from entry into the 2016 Olympic Games
- the IFs will have to apply their respective rules in relation to the sanctioning of NFs where necessary.
The IOC made further determinations, including that the Russian Olympic Committee (ROC) cannot enter an athlete in the 2016 Olympic Games where they have previously been sanctioned for doping, even where they have served the sanction.
These determinations resulted in a number of applications to the CAS Ad Hoc Division in an attempt to overturn the bans.52 The circumstances relating to these matters are unique and unprecedented. We have not considered the relevant CAS Ad Hoc Division and CAS Anti-Doping Division decisions in this update.
1Article 1 of the Arbitration Rules for the Olympic Games (CAS Ad Hoc Division Rules)
2CAS OG 00/13 Segura v International Amateur Athletic Federation
3CAS OG 02/007, 17 Korean Olympic Committee v International Skating Union
4CAS OG 16/28
51 September 2016
7CAS A1/2016 Mitchell Iles v Shooting Australia
8CAS OG 16/05 & 16/07
9CAS OG 16/05 & 16/07, 6
10IAAF Qualification System – Games of the XXXI Olympiad – Rio 2016, 5
11CAS OG 16/05 & 16/07, 43
12CAS OG 16/05 & 16/07, 42
13CAS OG 16/15
14Article 1 CAS Ad Hoc Division Rules
15CAS OG 16/15, 4.5 & 4.8
16CAS OG 16/15, 4.12
17CAS OG 16/20
18Rule 19 Olympic Beach Volleyball Tournaments Specific Competition Regulations
19Rule 10 Olympic Beach Volleyball Tournaments Specific Competition Regulations
20Rule 10 Olympic Beach Volleyball Tournaments Specific Competition Regulations
21Rule 10 Olympic Beach Volleyball Tournaments Specific Competition Regulations
22CAS OG 16/20, 5.5
23CAS OG 16/20, 5.7
24CAS OG 16/20, 5.8
25CAS OG 16/14
26CAS OG 16/14, 2.2
27CAS OG 16/14, 2.7
28CAS OG 16/14, 2.7
29Article 1 CAS Ad Hoc Division Rules
30CAS OG 16/14, 6.1
31CAS OG 16/26
32Article 52 Olympic Charter
33CAS OG 16/08
34CAS OG 16/22
35CAS OG 16/22, 5.5
36CAS OG 12/02
37Article 1 Anti-Doping Rules
38Article 1 CAS Ad Hoc Division Rules
39CAS OG 16/25
40Article 10.4 of the 2015 NADA Anti-Doping Rules
41Article 1 CAS Ad Hoc Division Division Rules
42Article 1 CAS Ad Hoc Division Rules
43Article 13.1.3 CAS Ad Hoc Division Rules
44Article 10.2.1 Anti-Doping Division Rules
45Article 3.1 Anti-Doping Rules
46CAS OG 16/25, 7.27
47CAS OG 16/23
48Article 1 CAS Ad Hoc Division Rules
49CAS OG 16/25, 5.7-8
50CAS OG 12/02
51Media release from the IOC dated 24 July 2016 – https://www.olympic.org/news/decision-of-the-ioc-executive-board-concerning-the-participation-of-russian-athletes-in-the-olympic-games-rio-2016
52Yulia Efimova v ROC, IOC & FINA; Russian Weightlifting Federation v International Weightlifting Federation CAS OG 16/09; Pavel Sozykin & RYF v World Sailing & IOC CAS OG AD 16/01; Natalia Podolskaya & Alexander Dyachenko v ICF CAS OG 16/19; Kiril Sveshnikov et al v UCI & IOC CAS OG 16/18; Ivan Balandin v FISA & IOC CAS OG 16/12; Elena Anyushina & Alexey Korovashkov v ICF & RCF CAS OG 16/21; Darya Klishina v IAAF CAS OG 16/24; Daniil Adrienko et al v FISA & IOC; Anastasia Karabelshikova & Ivan Podshivalov v FISA & IOC
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Commercial | 2 Jul 2020
Directors and officers don’t get bitten: amendments to the Work Health and Safety Act 2011 (NSW) are making penalties bite
Under recent changes to the Work Health & Safety Act 2011 (NSW) (WHS Act), directors and officers cannot be insured or indemnified for penalties for WorkSafe breaches. Our Insurance and Corporate teams discuss the implications of these changes for directors and officers (and their companies), insurance providers and brokers.