Closing of the Hearing

628. In summary, it was clear from the evidence that samples had been swapped in Sochi. That swapping scheme did not operate in a vacuum; for the scheme to work, the protected athletes had to provide clean urine. It could also safely be assumed that the athletes were aware of the transmission of their DCFs. In short, the Sochi Appellants knew that they were protected athletes, and knowingly participated in the urine swapping scheme.

629. With regard to the ADRV of tampering, once the act of urine substitution had been established, it was not necessary to demonstrate knowledge or intent on the part of the athlete.

630. With regard to the ADRV of use of a prohibited substance, the IOC DC drew an inference of use from the fact that because an athlete was protected, this allowed him or her to use the prohibited substance, i.e. the Duchess Cocktail. It was conceded that this conclusion “may be, in general, a bit far-fetched”.

631. With regard to the ADRV of cover-up / complicity, this was an apt way to describe what had happened in respect of the swapping scheme at the Sochi Games.

632. Finally, with regard to the issue of sanctions, what had happened in Sochi was catastrophic for the Olympic Games. The victims were the clean athletes, who had been “deprived of their Games, of their medals”.

633. In conclusion, the Respondent submitted that there was sufficient evidence that samples were swapped at the Sochi laboratory. The sodium evidence is conclusive in itself. There is sufficient evidence that bottles were opened. The DNA evidence has supporting value. Most athletes included on the Duchess List are implicated in one or more of the pieces of forensic evidence. The Panel has to draw its conclusions from the whole of the evidence.

634. The Respondent submitted that the urine substitution met the requirements of Article 2.2 WADC in connection with M2.1 of the Prohibited List; Article 2.5 of the WADC has only subsidiary application. Under Article 2.2 of the WADC, no knowledge or intent was necessary.

The elements of Article 2.8 of the WADC, i.e. cover up and conspiracy, are also satisfied.

635. The Respondent referred to its request for relief (see supra para. 56), which was forwarded in writing to the Panel in advance of the final pleadings. The Respondent applied for a contribution towards the Respondent’s legal fees and expenses in accordance with the general policy of CAS panels, but deferred to the Panel’s discretion.

VI. JURISDICTION

637. Article R47 of the Code provides as follows:

“An appeal against the decision of a federation, association or sports-related body may be filed with the CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of that body”.

638. Article 11.2 of the IOC ADR provides as follows:

“Appeals from Decisions Regarding Anti-Doping Rule Violations, Consequences, and Provisional Suspensions

…

11.2.1 In all cases arising from the Sochi Olympic Winter Games, the decision may be appealed exclusively to the Court of Arbitration for Sport ("CAS") in accordance with the provisions applicable before such court.

11.2.2 In cases under Article 11.2.1, only the following parties shall have the right to appeal to CAS: (a) the Athlete or other Person who is the subject of the decision being appealed; (b) the relevant International Federation and any other Anti-Doping Organisation under whose rules a sanction could have been imposed; and (c) WADA”.

639. The Respondent did not object to the application of Article 11.2 of the IOC ADR and the Parties expressly confirmed that the CAS had jurisdiction to decide this appeal at the outset of the hearing.

640. In consideration of the foregoing, the Panel rules that CAS has jurisdiction to decide this appeal. By virtue of the Procedural Agreement, the Parties agreed to refer the appeals to the CAS.

VII. ADMISSIBILITY

641. Article R49 of the Code provides as follows:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against.

642. Article 11.5 of the IOC ADR provides that:

“The time to file an appeal to CAS shall be within twenty-one (21) days from the date of receipt of the decision by the appealing party”.

643. The Decision of the IOC DC with respect to the Athlete was rendered, in operative part only form, on 11 December 2017. The IOC DC did not issue a fully-reasoned award in this case;

rather, the reasons it relied on generally in reaching its decisions were explained in the IOC DC Principles.

644. The Athlete filed her Statement of Appeal with the CAS on 19 December 2017 and her Appeal Brief in the form of a Joint Appeal Brief and Individual Appeal Brief was filed on 5 January 2018.

645. The Parties did not contest the admissibility of the appeals. In consideration of the foregoing, and with specific reference to the time limits set forth in the Parties’ Procedural Agreement, the Panel rules that the Athlete’s appeal was timely and is therefore admissible.

VIII. APPLICABLE LAW

646. Article R58 of the Code provides as follows:

“The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

647. For the participants of the Sochi Games, the IOC ADR and the provisions of the Olympic Charter were mandatory and accepted by them as a condition of participation. These provisions, therefore, are “the applicable regulations” and constitute the law applicable to the present dispute. The application of these rules was not contested by the Parties.

648. Article 1 of the IOC ADR states:

“Application of the Code – Definition of Doping – Breach of the Rules 1.1 The commission of an anti-doping rule violation is a breach of these Rules.

1.2 Subject to the specific following provisions of the Rules below, the provisions of the Code and of the International Standards apply mutatis mutandis in relation to the Sochi Olympic Winter Games”.

649. The Preamble to the IOC ADR explains that references to “the Code” refer to the WADC.

Therefore, according to Article 1.2 of the IOC ADR, the WADC is applicable to this appeal save to the extent that the ADR contain specific regulations dealing with particular matters.

650. More specifically, according to Article 2 of the IOC ADR, “Article 2 of the Code applies to determine anti-doping rule violations …”. Pursuant to this specific incorporation, for the purposes of the Sochi Games, ADRVs are defined pursuant to Article 2 of the WADC.

651. Furthermore, by virtue of Article 3.1 of the IOC ADR, the WADA Prohibited List “in force during the Period of the Sochi Olympic Winter Games”, i.e. the 2014 WADA Prohibited List, is also applicable. At the outset of the hearing, the Parties confirmed their agreement with respect to the applicable law.