By Joanna Wall Tweedie
No Russian athletes have competed at this year’s Paralympic Games held in Rio de Janeiro on 7-18th September, following a Court of Arbitration for Sport (CAS) decision to uphold the International Paralympic Committee’s (IPC) blanket ban in response to revelations relating to systematic doping in Russia. The CAS decision is the latest blow for Russian sport and followed the release of a report commissioned by WADA on 18 July that detailed sophisticated state-sponsored doping in Russia. CAS dismissed an appeal filed by the Russian Paralympic Committee (RPC) against the IPC in an expedited hearing in Rio de Janeiro on 22 August.
The three-person CAS Panel was led by Australian Barrister, Hon. Dr. Annabelle Bennett A.O. S.C. CAS outlined that the Panel concluded “the IPC did not violate any procedural rule in dealing with the disciplinary process leading to the RPC’s suspension and that the decision to ban the RPC was made in accordance with the IPC rules and was proportionate to the circumstances.”[1]
The IPC operates as the global governing body of the Paralympic Movement and suspended the RPC’s membership on 7 August 2016 due to an asserted inability to fulfil its responsibilities and obligations to comply with the IPC Anti-doping Code and the World Anti-doping Code. The report commissioned by WADA that prompted the IPC’s action was delivered by Professor McLaren whom had concluded that the Russian Government developed, implemented and controlled a sophisticated doping program over a time period of, at least, 2011 to August 2015. Professor McLaren’s report detailed that the doping program had benefitted Russian athletes from Olympic and Paralympic sports.
Following the IPC decision, a statement of appeal was filed by the RPC with CAS on 15 August. With the Paralympic Games approaching, all parties had agreed to an expedited arbitration procedure that resulted in the hearing in Rio de Janeiro. The full award and grounds were contained in a 24-page report issued on 30 August.[2]
According to the CAS report, the issues considered at the hearing were: whether the RPC had violated its membership obligations; whether the IPC had complied with correct procedures to affect the RPC suspension; and whether the suspension decision, with consequential impact on Russian Paralympic athletes, was proportionate.
Considering whether the RPC had failed to comply with its IPC membership obligations, the CAS Panel utilized evidence provided in the initial report from Professor McLaren and an additional sworn affidavit provided by him. The CAS report recounted the key findings from Professor McLaren’s initial report regarding the nature of the Russian state-directed doping system including the “Disappearing Positive Methodology” in a Moscow Laboratory and the swapping of athlete urine samples in a Sochi Laboratory. Professor McLaren’s affidavit emphasized that Russian Paralympic athletes benefited from the doping system. He confirmed, “I can state with confidence beyond a reasonable doubt that Russian Paralympic athletes were included in the same Disappearing Positive Methodology system as able-bodied Russian athletes and were treated in exactly the same way by the[Ministry of Sport] MofS as were the able-bodied Russian athletes” (p.10).
The CAS Panel concluded that “within the structure of the IPC as stipulated in the Constitution, the RPC is the responsible entity having the obligation to the IPC as well as to the IPCs’ members to ensure no violation of the anti-doping system occurred within Russia. The existence of the system as described in the IP Report and in the McLaren affidavit means that the RPC breached its obligations and conditions of membership of the IPC” (p.12). Furthermore, CAS confirmed that the IPC had complied with the procedural provisions of its Policy of Suspension.
The question of the proportionality of the IPC decision was reported as the more difficult decision for consideration by the CAS Panel. In suggesting the IPC decision was disproportionate, the appellant emphasized the impact on the individual athletes. “[T]he effect on innocent third parties who have already had to overcome significant obstacles in their lives. The RPC called three athletes to give evidence to the Panel. Each spoke of the effect of impairment, life before sport and the effect of sport on his or her life now” (p.15). The CAS Panel did not deny the impact of the athlete’s accounts, however stressed that the arbitration concerned the IPC and RPC exclusively. “The matter for review by this Panel is thus not the legitimacy of a ‘collective sanction’ of athletes, but whether the IPC was entitled to suspend one of its (direct) members… . In particular, the collective member cannot hide behind those individuals that it represents” (p.16).
Finally, the CAS Panel concluded that the IPC decision was proportionate in the circumstances. The CAS report acknowledged that the IPC had been faced with “probative evidence of widespread systematic doping under the RPC’s ‘watch’” (p.17), and was within its power and had proper legislative basis to suspend the RPC. CAS outlined that the IPC had a legitimate aim to send a strong message via its decision, to demonstrate a lack of tolerance to such systematic failure, to prompt behavior change and to restore public trust.
Following the CAS decision to dismiss the RPC’s appeal, over 250 Russian athletes originally selected for the National Paralympic Team competed at an alternative event. The “All Russian Open Paralympic Competition” were held just outside of Moscow on September 7-10.
Joanna Wall Tweedie is a doctoral student at Florida State University.
Reference: CAS 2016/A/4745 Russian Paralympic Committee v. International Paralympic Committee
[1] http://www.tas-cas.org/fileadmin/user_upload/Media_Release_RPC_IPC.pdf
[2] CAS 2016/A/4745 Russian Paralympic Committee v. International Paralympic Committee
