Can Barred Russian Athletes Appeal IOC Decision?

The waters around the Russian semi-ban from the 2016 Summer Olympic Games is still murky, but today FINA announced an initial 7 swimmers who would not be allowed to compete at the Olympic Games after the International Olympic Commitee (IOC) handed down their decision on the matter Sunday.

Catch up on the background below:

The initial conversation within swimming immediately went to the cozy relationship between the Russian Swimming Federation and FINA, the latter of whom was tasked on deciding which Russian athletes have achieved the higher standards of proving clean (because a lack of positive tests is no longer good enough) to compete in Rio. While that relationship is still a concern and a conversation in play as FINA proceeds to decide the fates of the other 29 Russian swimmers entered into this year’s Olympics, there really wasn’t ever much gray area left for swimmers like Efimova, who served a 16-month sanction in 2013. To defy the IOC’s explicit and objective instructions there would expose FINA itself to sanctions, and that’s not a fire they would be wise to play with, and the Russian Olympic Committee made the first move by pulling the previously doped-athletes themselves without FINA or other international sports federations needing to even intervene.

So now the conversation has branched into two separate, but related, conversations: the one of the 29 remaining Russian swimmers with something to prove, and the one about the 7 swimmers objective removed from the Olympics by the Russian Olympic Committee and FINA.

Here’s where the wrinkles and nuance of the Court of Arbitration for Sport will come into play. The CAS is typically the last line of defense in resolving disputes in matters of this kind, and if Russian athletes who have completed their doping suspensions, but are still being barred from the Olympics, wanted to, that is where the appeals would go to.

There are two important precedents in play here:

The CAS Striking Down of the “Osaka Rule”

In this challenge, the United States Olympic Committee (USOC) challenged a new IOC rule that stated any athlete with longer than a 6 month doping sanction would be barred from competing in the next Olympics. The USOC challenged that rule in the case of LaShawn Merritt, a track & field athlete, and the CAS ruled that to hand out an Olympic ban after the completion of the suspension awarded by the relevant doping authority would amount to double jeopardy. While the CAS editorialized that they didn’t necessarily think an Olympic ban was a bad idea, they said that by the rules of the World Anti-Doping Code, which was signed by both the USOC and the IOC (and FINA and the Russian Olympic Commitee, for that matter) doesn’t allow it.

This is likely the logic that Russian athletes would argue in their case to the CAS – that this additional ban for the first 4 athletes named by FINA – Yulia EfimovaMikhail DovgalyukNatalia Lovtcova, and Anastasia Krapivina – was a double jeopardy. This same argument won’t be available to the other 3 who were banned for being named in the McLaren report – Nikita LobintsevVlad Morozov, and Daria Ustinova.

One would presume that to handle all of the cases in the 2 weeks before the Olympics start, the CAS would have to make some equivalent of a “class action decision” for the Russian athletes who have previously been sanctioned for positive doping tests.

The CAS Denying the Appeal of Russian Track & Field

Here’s the follow-up, however. Two weeks ago, the CAS upheld the ban by the International Association of Athletics Federations (IAAF) that governs track, field, and road race events to bar the Russian Federation from the Olympics, unless athletes showed a “higher standard of proof.”

On it’s face, that ruling seems like it would only be relevant to the other branch – the fate of the 29 athletes, still to be decided by FINA, who are not named in the McLaren report and have not tested positive in the past.

But here’s why it’s relevant to the “previous dopers” group as well – the Russian Olympic Committee, by withdrawing those athletes names, have shown that they are not planning on appealing on behalf of their athletes like the USOC did for the Leshawn Merritt before London. This implies (though we have no information of such) that the IOC opting to not wholesale ban Russia from the Olympics was on the understanding that there would be no successful appeals by any previously doped athletes or athletes named in the McLaren report.

Even if that agreement weren’t made behind closed doors, it by default was made anyway, because if the IOC feels that its ruling on previously-suspended Russian athletes will be overturned by the IOC, they have a silver bullet: ban the entire Russian Olympic Committee under the same terms that the CAS already upheld with regard to the IAAF.

This gives the IOC the ultimate ace, if they choose to play it, to enforce their edict from Sunday.

TLDR;

For those who are not as interested in the legal nuance of the matter or are still confused by the winding road above, the ultimate conclusion is that by one road or another, it appears that unless the CAS changes course, or unless someone makes a new argument that hasn’t been heard before, whether or not the 4 Russian swimmers named to their 2016 Olympic Team who have been previously sanctioned for doping will win an appeal comes down to one issue and one issue only: whether or not the IOC is willing to play their trump card on any appeals and ban the entire Russian Olympic Committee. So far, they’ve been hesitant to do so, but when pushed to the edge, we might see a different reaction.

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Steve Nolan

*LaShawn

He failed for taking ExtenZe. Which, even if it was just a cover, is hilarious in its own right.

Taa

if thats true that is just awesome

Brad Flood

I see this as being a different matter from the Osaka Rule. As i understand it, the Osaka Rule was a blanket ban of the next Olympics after serving a ban for doping. The IOC decision is stating that any Russian athlete who has been charged with a doping offense is banned for Rio 2016, because their doping was likely part of the State run doping system. This is an over simplified explanation, however, I believe a lawyer could present a case, based on this interpretation, that the CAS could possibly uphold the bans under the IOC decision.

Thor Klamet

I hope CAS finds in favor of Efimova. She seems to have been unfairly targeted here. Her DHEA violation came from L Carnitine from GNC which legally has DHEA in it. She’d been taking L Carnitine for years and listed it on her official documents as a supplement she was taking. She didn’t notice that GNC was lacing their L Carnitine with DHEA and she got nailed and paid dearly. DHEA doesn’t do anything for anyone although it is a steroid and should not be avaliable over the counter. The only reason it is available without prescription in the U.S. is bad politics (politicians bought by companies making money on DHEA). Efimova was also using meldonium until it was banned.… Read more »

CanSwim

I’m not going to comment on the tainted substance stuff… because that can happen with anybody and anything.

However, athletes need to be responsible for what they put in their bodies. As a financially struggling canadian athlete who has taken supplements for years, I always ensure my supplements are clean by only purchasing third-party or batch tested supplements. For over the counter stuff, I always check GlobalDRO for reference (against, I understand contamination happens sometimes).

There’s no excuse for an athlete to not know – there are ways to ensure you’re getting the cleanest stuff. Contamination cases are treated in a separate light by doping organizations by allowed short, retroactive bans to be served quietly.

About Braden Keith

Braden Keith

Braden Keith is the Editor-in-Chief and a co-founder of SwimSwam.com. He first got his feet wet by building The Swimmers' Circle beginning in January 2010, and now comes to SwimSwam to use that experience and help build a new leader in the sport of swimming. Aside from his life on the InterWet, …

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