C. Sanctions
1. Disqualification of Results
complicity” under the 2009 WADC. Article 2.8 of the WADC does not capture a situation where an athlete covers up his/her own ADRV.
843. The Athlete’s use of a prohibited method, i.e. the provision of clean urine in advance of the Sochi Games which facilitated the urine substitution, and the Athlete’s use of a prohibited substance, do not constitute acts by which the Athlete encouraged, assisted, or covered up, either physically or psychologically, fellow athletes to commit ADRVs. Nor did the IOC submit that the Athlete engaged in any other actions that might have assisted other athletes to commit ADRVs. The fact that, according to the IOC, many members of the Women’s Ice Hockey Team had samples with multiple T marks and/or abnormal sodium concentrations does not provide sufficient evidence to establish complicity in the sense of Article 2.8 of the WADC. The evidence does not establish that the Athlete provided assistance or encouragement “horizontally” – i.e. directly in relation to other athletes – nor did she provide assistance or encouragement “vertically” – i.e. through coaches or support personnel. Instead, it is apparent that the Athlete acted on her own behalf and in her own interest, rather than in the interests of her fellow athletes. Unlike in the Torino case, there is no evidence of cooperation between the Athlete and other athletes engaged in committing ADRVs.
844. For the reasons set out above, the Panel is not comfortably satisfied that the Athlete committed any act or omission that knowingly assisted, encouraged or covered up the commission of an ADRV under Article 2.2 to Article 2.7 of the WADC by any other athlete.
Accordingly, the Panel does not find that the Athlete committed an ADRV under Article 2.8 of the WADC.
847. According to the definitions attached to the WADC, “individual sport” is defined as “any sport that is not a team sport”. A “team sport” is described as “a sport in which the substitution of players is permitted during a competition”. Pursuant to this definition and, through its incorporation into the IOC ADR, ice hockey is a team sport and not an individual sport in the sense of Article 7.1 of the IOC ADR.
848. Therefore, Article 7.1 of the IOC ADR is not applicable to the Athlete’s result.
b. Disqualification of the Athlete’s results obtained in the Sochi Games, Article 8.1 of the IOC ADR 849. According to Article 8.1 of the IOC ADR,
“An anti-doping rule violation occurring during or in connection with the Sochi Olympic Winter Games may lead to Disqualification of all of the Athlete’s results obtained at the Sochi Olympic Winter Games with all consequences, including forfeiture of medals, points, and prizes, except as provided in Article 8.1.1”.
850. The Athlete’s sample (number 2889455) was collected on 18 February 2014, the day of the last game that her team played with her participation.
851. As the Athlete did not submit that she bore no fault or negligence, Article 8.1.1 of the IOC ADR, which would allow her results obtained during the Sochi Games to be maintained, does not apply. Hence, her personal result as a team member “may” be disqualified.
852. According to Article 8.1 of the IOC ADR, it lies within the discretion of the IOC and its competent bodies to make the determination of whether or not to disqualify the Athlete’s results. Even though, according to Article R57 of the Code, the Panel has “the full power to review the facts and the law”, the Panel does not find that the IOC DC, in its appealed decision, exceeded the scope of its discretion and, therefore, rules that the Athlete’s results from the Women’s Ice Hockey Event at the Sochi Games shall be disqualified with all resulting consequences, in particular the withdrawal and return of her diploma.
c. Consequences to teams, Article 9 of the IOC ADR
853. In addition to the disqualification of the Athlete’s results, there are consequences to the team in which she participated. Article 9 of the IOC ADR provides for the consequences of individual ADRVs committed by team members to the team, and distinguishes between “team sports” and “sports which are not team sports but where awards are given to teams”.
854. According to the definitions attached to the WADC as Appendix 1, a “team sport” is described as “a sport in which the substitution of players is permitted during a competition”. Thus, ice hockey clearly qualifies as a “team sport” under Appendix 1 of the 2009 WADC.
855. For “team sports”, Article 9.1, 2d paragraph of the IOC ADR provides:
“In Team Sports, if more than one team member is found to have committed an anti-doping rule violation during the Period of the Sochi Olympic Winter Games, the team may be subject to Disqualification or other disciplinary action, as provided in the applicable rules of the relevant International Federation”.
856. According to that rule, in order to trigger consequences to a team, more than one member of a team must have been found to have committed an ADRV.
857. Article 9.1, 2d paragraph of the IOC ADR refers to the applicable rules of the relevant IF, which in this case are the 2014 Disciplinary Regulations of the International Ice Hockey Federation (“IIHF DR”). Article 5.9 thereof provides the following:
“If more than two members of a team are found to have committed an anti-doping rule violation during an IIHF competition, the team will be disqualified and relegated into the lower division”.
858. The Women’s Ice Hockey Event at the Sochi Games was a competition organised under the IIHF rules.
859. The Panel recognizes that Article 9.1, 2d paragraph of the IOC ADR and Article 5.9 IIHF DR differ in two important respects:
Under the IOC ADR, the sanctioning power sets in if “more than one team member is found to have committed” an ADRV, while pursuant to the IIHF DR “more than two members of a team” must have committed an ADRV.
Under the IOC ADR, sanctioning is discretionary (“may be subject to”), while it is mandatory pursuant to the IIHF DR (“the team will be disqualified”).
860. The first question, therefore, is the interpretation of the IOC ADR, in particular, the question whether the reference in the Article 9.1, 2d paragraph to the “applicable rules of the relevant International Federation” puts such IF in charge of sanctioning during the Olympic Games or whether such sanctioning power remains the exclusive authority of the IOC.
861. In accordance with the rules of interpretation under Swiss law which applies to the IOC ADR, the Panel must consider “the wording of the rule” and “the meaning of the rule, looking at the language used, and the appropriate grammar and syntax” (CAS, 2017/A/4927 Aloyan v. IOC, para. 74 with further references) and “may also take into account … the entire regulatory context in which the particular rule is located” (CAS, ibidem). Thus, the Panel is inspired in its construction of Article 9.1, 2d paragraph of the IOC ADR by the general context of that provision including the allocation of responsibility and jurisdiction between the IOC and the IFs with respect to the Olympic Games.
862. Taking into account the whole of the IOC ADR, it is the IOC Disciplinary Commission set up pursuant to Article 6.2.5 of the IOC ADR, that, in the event of an ADRV committed during the Sochi Games, according to Article 7.2.and 7.3 of the IOC ADR, declares athletes ineligible to compete at the Sochi Games including their exclusion from the Games and
ineligible to participate in the subsequent editions of Olympic Games as well as, according to Article 8.1 of the IOC ADR, disqualifies the results obtained by an athlete at the Sochi Games.
Article 8.3 of the IOC ADR clearly delineates the delimitation of the respective spheres of jurisdiction of the IOC and the IFs: only “sanctions over and above those relating to the Sochi Olympic Winter Games, shall be managed by the relevant International Federation”. In this context, Article 9.1, 2d paragraph of the IOC ADR enables the IOC and its subsidiary institutions as the competent bodies to apply the consequences to teams as set forth in that provision.
863. In applying the foregoing principles of interpretation and having regard to the general recognition of the IOC’s unrestricted authority over the Olympic Games, the Panel has no problem coming to the conclusion that the “disqualification” from the entire Olympic Games and the imposition of “other disciplinary action” to teams for reasons of an ADRV during the Olympic Games in general, and during the Sochi Games in particular, is the exclusive prerogative of the IOC.
864. Having found that, as far as the Olympic Games are concerned, it is the IOC’s exclusive authority to impose the sanctions provided for in the IOC ADR, the Panel has to turn to the question of whether, as a result of the IOC’s reference to the “applicable Rules of the relevant International Federation”, in the circumstances of this case, the sanctioning requires “more than two” (Article 5.9 IIHF DR) or merely “more than one” (Article 9.1, 2d paragraph of the IOC ADR) ADRVs, and whether the IOC does (Article 9.1, 2d paragraph of the IOC ADR) or does not (Article 5.9 IIHF DR) have discretion in its decision making on sanctions.
865. Although the Panel previously, in comparable circumstances, had decided that the
“disqualification” from the Sochi Games lies within the exclusive power of the IOC and is justified by the fulfilment of the elements provided for in Article 9.1, 3d paragraph of the IOC ADR (CAS 2017/A/5468, para. 860 et seq., heard in partial consolidation with this case), both of the questions above ultimately can remain open in the Athlete’s case because the appealed IOC DC’s decision complies with the rules of both the IOC ADR and the IIHF DR, as discussed below.
866. In total, three members of the Russian Women’s Ice Hockey Team have been found to have committed ADRVs at the Sochi Games including the Athlete (see also CAS 2017/A/5474 and CAS 2017/A/5471, heard in partial consolidation with this case). Thus, the threshold of players under Article 5.9 of the 2014 IIHF DR of “more than two members of a team” and the threshold of players under Article 9.1, 2d paragraph of the IOC ADR of “more than one team member” have been met.
867. As to the existence or absence of discretion in the IOC’s decision making, according to Article 9.1, 2d paragraph of the IOC ADR, the relevant team results “may” be disqualified from the Sochi Games. By contrast, disqualification is mandatory pursuant to Article 5.9 of the IIHF DR (“the team will be disqualified” (emphasis added)). Thus, the Panel finds that the IOC DC, in its appealed decision, imposed a sanction which complies with both the IOC ADR and the IIHF DR. As far as the IOC ADR are concerned the Panel considers that the decision to disqualify the Russian Women’s Ice Hockey Team from the Sochi Games did not exceed the
scope of its discretion granted to it pursuant to Article 9.1, 2d paragraph of the IOC and, thus, was entirely justified in the circumstances. The disqualification of the entire Russian Women’s Ice Hockey Team is the unavoidable consequence of the Athlete and two other members of the Russian Women’s Ice Hockey Team whose cases were heard by the Panel having been found to have committed ADRVs.
868. Therefore, the Panel confirms that the Russian Women’s Ice Hockey Team that participated at the Sochi Games is disqualified, with all resulting consequences, in particular the withdrawal and return of diplomas.
2. Ineligibility for future editions of the Olympic Games, Article 7.3 of the IOC ADR 869. According to Article 7.3 of the IOC ADR:
“The Disciplinary Commission or the IOC Executive Board, as the case may be, may declare the Athlete, as well other Persons concerned, temporarily or permanently ineligible for editions of the Games of the Olympiad and the Winter Olympic Games subsequent to the Sochi Olympic Winter Games”.
870. Article 7.3 of the IOC ADR corresponds to and is in line with Rule 59 § 2.1 of the Olympic Charter as in force as of 9 September 2013 which generally provides for sanctions related to the Olympic Games:
“In the context of the Olympic Games, in the case of any violation of the Olympic Charter, of the World Anti-Doping Code, or of any other decision or applicable regulation issued by the IOC or any IF or NOC, including but not limited to the IOC Code of Ethics, or of any applicable public law or regulation, or in case of any form of misbehavior:
2.1 with regard to individual competitors and teams: temporary or permanent ineligibility or exclusion from the Olympic Games …”.
871. Based on these provisions, the IOC DC, in its appealed decision, imposed on the Athlete an ineligibility for all subsequent editions of the Games of the Olympiad and the Olympic Winter Games in whatever capacity. The Athlete was:
“declared ineligible to be accredited in any capacity for all editions of the Games of the Olympiad and the Olympic Winter Games subsequent to the Sochi Olympic Winter Games”.
a. Validity of Article 7.3 ADR
872. Interestingly, the IOC DC noted that it is conscious that its decision in respect of the ineligibility “is likely to be challenged” with reference to the award CAS 2011/O/2422 on the validity of the so-called “Osaka Rule”.
873. As the IOC anticipated, the Athlete did in fact challenge the validity of the above IOC rules in reference to the Osaka decision wherein, on the basis of a specific arbitration agreement between the parties, an IOC rule that prohibited an athlete from participating in the next Olympic Games if she/he had previously been sanctioned for an ADRV with, and had served a suspension of, more than six months was declared “invalid and unenforceable” by the CAS. The CAS panel, in the Osaka decision:
found that the said rule had the effect of a disciplinary sanction and was not an eligibility rule;
made reference to the WADA Code which provides that the Signatories to the Code, which includes the IOC, must implement “without substantive change” inter alia Article 10 of the WADC on “Sanctions on Individuals”; and
found that the challenged IOC rule constituted a “substantive change” to the WADC sanctioning regime and was thus “invalid and unenforceable”.
874. The Athlete argued that the Osaka decision must apply mutatis mutandis to the present case so that the above-mentioned rules of the IOC ADR and the Olympic Charter are invalid and cannot serve as a basis for sanctioning the Athlete.
875. The Panel disagrees. While it is correct that the declaration of ineligibility under Article 7.3 of the IOC ADR and Rule 59 § 2.1 of the Olympic Charter operates as a disciplinary sanction and thus arguably violates the IOC’s undertaking not to change the WADC’s sanctioning regime, such violation would simply constitute a breach of the IOC’s contract with WADA pursuant to which the IOC would implement the WADC’s sanctioning regime “without any substantive change”. In this context, it needs to be stressed that the WADC is not a law but simply an instrument of a private organisation, the implementation of which into another body’s regulations requires a contractual agreement to this effect. As can be gleaned from Article 75 of the Swiss Code of Obligations, under Swiss law the said breach does not lead to an invalidity of the breaching rule but merely to it being voidable. Only in rare cases are decisions of a Swiss association void ab initio, i.e. when they are affected by a serious formal or material flaw (La Rochefoucauld, Standing to sue, a procedural issue before the CAS, CAS Bulletin 1, 2011, p. 15, with further references). This is not the case here.
876. The Panel’s conclusion does not contradict the Osaka decision because:
first, by adopting and implementing the “Osaka Rule”, the IOC added a further sanction to a sanction already imposed by an IF, while in the case at hand the IOC applied the sanction provided for in its rules as guided by the IF’s rules;
and
second, in the Osaka decision, under the arbitration agreement between the parties, the CAS was called upon to make a ruling pro or contra the validity of the
respective IOC rule and thus was effectively empowered to decide on that very question.
877. As a result, the IOC’s sanctioning rules in question are valid and can serve as a basis for sanctions against the Athlete.
b. Non-applicability of the WADC
878. Article 1.2 of the IOC ADR provides as follows:
“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”.
879. In contrast to Article 2 of the IOC ADR in which the definition of ADRVs refers to the WADC, sanctions are expressed in Articles 7 through 10 of the IOC ADR. Therefore, with respect to sanctions for ADRVs committed during the Sochi Games, the WADC does not apply.
c. Jurisdiction of the IOC to sanction violations of its anti-doping rules during the Sochi Games
880. Instead, Article 7.3 of the IOC ADR provides for the sanctioning of ADRVs which occurred during the Sochi Games and, therefore, fall under the primordial Olympic jurisdiction of the IOC. In contrast, the IOC, vis-à-vis the “Osaka Rule”, by virtue of a regulation adopted by the IOC Executive Board, provided for an additional sanction in its Olympic realm for an ADRV which was committed outside the IOC’s jurisdiction under the responsibility of an IF or other anti-doping organisation (“ADO”). The additional Olympic sanction envisaged by the IOC was in addition to a sanction already imposed on an athlete by an IF or other ADO and, thus, beyond the range of sanctions provided for ADRVs by the rules of the IFs which implemented the WADC.
881. Under the WADC, the severity of the sanction is expressed in the time length of the period of ineligibility phrased in years. Within the jurisdiction of the IOC, which is limited to the Olympic Games, the seriousness of the sanctions imposed by the IOC can only be articulated in the number of editions of Olympic Games.
882. The Panel finds that the applicable Article 7.3 of the IOC ADR is compatible with the WADC which, according to Rules 41 and 44 of the Olympic Charter, are binding upon the IOC.
d. Length of the Olympic ineligibility, Article 7.3 of the IOC ADR
883. Article 7.3 of the IOC ADR grants discretion to the IOC to declare an athlete ineligible to participate in the Olympic Games “temporarily or permanently”, i.e. for one, several or any subsequent editions of the Games.
884. The Panel is comfortably satisfied that the Athlete committed an individual ADRV in the form of the use of a prohibited method, according to Article 2.2 of the WADC, by providing clean urine for the purpose of having her sample substituted at the Sochi Games, and an individual ADRV in the form of the use of a prohibited substance, also in violation of Article 2.2 of the WADC.
885. The Panel, however, was not required to, and did not, examine whether the ADRV committed by the Athlete was part of a cover-up scheme orchestrated during the Sochi Games with the aim of allowing Russian athletes to take the Duchess Cocktail before or during the Sochi Games and to be protected against positive findings in their samples. Therefore, the Panel is unable to base any sanction on the Athlete on the alleged scheme and the alleged involvement of the Athlete in such scheme.
886. In its appealed decision, the IOC DC considered
“that the implementation of the sample-swapping scheme was one of the worst ever blows against the integrity and reputation of the Olympic Games”
and concluded therefore that
“it would be inconceivable that the Olympic Movement would have to continue to receive in its midst any athlete or person having been howsoever implicated in such a scheme”.
887. Thus, for the determination of a lifetime ineligibility for Olympic Games, the IOC DC relied mainly if not exclusively on the fact that, according to its findings, the Athlete participated in the alleged sample-swapping scheme. The IOC DC relied not so much on the fact “that specific violations of the IOC ADR were committed”, but much more on the fact that the individual ADRVs
“were part of a conspiracy, which infected and subverted the Olympic Games in the worst possible manner”.
888. In contrast to the IOC DC’s conclusions, the Panel was only able to find to its comfortable satisfaction that the Athlete committed individual ADRVs in the form of the use of a prohibited method and of a prohibited substance under Article 2.2 of the WADC, but no ADRV of tampering under Article 2.5 of the WADC and, in particular, no individual ADRV of covering-up or complicity in violation of Article 2.8 of the WADC. Consequently, the Panel is unable to find lifetime ineligibility to be an appropriate sanction.
889. Furthermore, when considering the length of the Olympic ineligibility to be imposed on the Athlete, the Panel takes into account that the IOC, by its decision of 5 December 2017, suspended the Russian National Olympic Committee for its involvement in the scheme only for one edition of the Olympic Winter Games. The IOC opted to sanction those who are the true instigators of the alleged scheme with a minimal ban of one edition of the Olympic Games while the IOC DC sanctioned the athletes who only benefitted from the scheme with a lifetime ban.