The decision of the Court of Arbitration for Sport in Lausanne. The decision of the Court of Arbitration for Sport in Lausanne is a direct violation of human rights. CAS sends a signal to the IOC: experts comment on the Lausanne court decision

DOPING

In the eyes of Russian fans, the Court of Arbitration for Sport (CAS) in Lausanne appears as a cold, cynical judicial body, initially hostile to Russian athletes accused of doping. However, on February 29, CAS completely acquitted cyclist Alexander Kolobnev, who proved his innocence. Sports lawyer Viktor BEREZOV, who was directly related to the “Kolobnev case,” told SE about why CAS acquitted a Russian athlete for the first time in its history.

KEYS TO SUCCESS

“Like you, I cannot remember a doping case where the punishment of a Russian athlete for a positive test would be reduced to a warning,” said Viktor Berezov. It was he who represented the interests of the Federation in CAS cycling Russia (FVSR), which issued a warning to Kolobnev, after which the International Cycling Union (UCI) challenged this decision of the Russian side.

Not many high-profile cases in which Russians were involved went through CAS. “The case of Lazutina/Danilova”, “the case of Chepalova”, “the case of Yuryeva/Akhatova/Yaroshenko”, “the case of seven”, where the defendants were Russian athletes, - Berezov began to list, forgetting to mention only the “Kabaeva/Chashchina case”. - In the “seven”, I represented the All-Russian Federation in CAS athletics. In ARAF the athletes were given two years, in the IAAF they demanded four. CAS decided - 2 years and 9 months. Our deadline turned out to be closer than that of the IAAF, but to consider that case won is disingenuous. Frankly speaking, we went to Lausanne with one goal: to achieve such terms of disqualification so that the athletes could compete at the Olympics in London. Fortunately, we succeeded.

- Each doping case is individual. But still, what does it take to win a CAS case?

Speaking from the point of view of a lawyer, it is very important to forget how the courts work in Russia. Because CAS has nothing to do with our justice system. The work of lawyer Kucherena in Lausanne in the “Lazutina/Danilova case” in 2002 became textbook. The first thing he did at the very beginning of the hearings was to challenge the entire court, including the arbitrator he had chosen. When he was denied this, rhetoric familiar to many began - “a provocation against Russia”, “a political conspiracy”. But how Kucherena could theoretically put pressure on the court in Russia is simply impossible in Lausanne. And as a result, the case, of course, was lost. Moreover, CAS took a rare step: in the final decision, it ordered Lazutin to pay 25 thousand Swiss francs to the IOC for the defiant behavior of his representative.

CAS has adopted a much more democratic procedure for providing evidence than in Russia. We cannot, relatively speaking, simply print out text from the Internet and present it as evidence. In CAS you can. In that case, of course, when the other side does not protest.

Another feature of CAS is that everything is transparent there from the very beginning. Before a certain period of time, you must disclose all your evidence, disclose the names of all witnesses and outline their position and the essence of the information that they would like to convey to the court. Russian lawyers often prepare for something completely different. They write a statement of claim and then wait for the trial, during which they pull out new evidence to stump the other side.

- Does CAS deliberately nullify the lawyer's debates?

There is debate, but within certain limits. Any lawyer who is presented with a mountain of new evidence will immediately require time to prepare a response. The matter is dragging on. There is no such thing in CAS. The parties arrive fully prepared for the hearing. And the CAS arbitrators themselves have the opportunity to become familiar with the essence of the case, at least in general terms.

For almost 20 years of activity of the Higher Sports arbitration court he handled a huge number of cases. And in one, two, five cases you can definitely find similar points. In general, studying CAS practice for a lawyer is the first key to success. For example, in the decision on the Kolobnev case, CAS has references to about twenty decisions made by this court earlier.

- What about the rest of the keys?

It is imperative to study the practice of specific arbitrators appointed to consider the case. We found a couple of decisions by the chairman of the jury, Italian Luigi Fumagalli, and in our answer to the “Kolobnev case” we referred to him in moments that were advantageous for us. I think any person is pleased when his decisions are known and referred to.

Together with Kolobnev and his lawyer Claude Ramoni, according to CAS rules, we chose one of the arbitrators - the American Jeffrey Benz. He was one of those who decided not to disqualify Brazilian swimmer Cesar Cielo Filho, whose high-profile case to some extent formed a precedent in the CAS. And during the meeting, Benz asked the UCI lawyer questions that made it clear that in the case of Kolobnev, he was not on the side of the international federation.

Finally, another key to success is fluency English language. From my own experience, I can assure you that not a single translator is fluent in legal, sports, or doping vocabulary. Therefore, coming to CAS with a translator for a lawyer means automatically reducing your chances.

At first, Russian lawyers came to CAS and did not know how to behave. The court's attitude towards them was clearly projected onto other Russian lawyers. When did the change in their perception occur?

It seems to me that this happened after 2004, when my immediate supervisor Alexandra Brilliantova (head legal management OCD. - Note S.B.) became a CAS arbitrator, and we began to attend meetings frequently. It was in 2004 that the first non-doping case won by Russia in CAS happened. Then the International Equestrian Federation incorrectly calculated its own rating, and instead of our girl (Alexandra Karelova. - Note S.B.) others were allowed to attend the Athens Olympics.

The day before our flight to Athens, we filed an appeal; the day before the opening ceremony, it was considered at a meeting of the CAS temporary visiting group at Olympic Games. The appeal was granted, and Karelova spoke in Athens.

KOLOBNEV - A FIND FOR A LAWYER

Negative experience accumulated sports Russia in relations with CAS, he taught everyone to believe that since some international federation decides to sue a Russian athlete, then he doesn’t have much of a chance. It seemed so in the “Kolobnev case.”

Federation federation discord. The IAAF, for example, uses the services of British lawyers highly qualified. And in all this time, this federation seems to have lost only one case. For the UCI, the “Kolobnev case” is also one of the few lost ones. But there are also opposite examples. International Federation wrestling led by President Martinetti regularly loses cases. Moreover, the mere intention of going to CAS may cause FILA to change its own decision.

- How did Kolobnev behave from a legal point of view?

If one can imagine the ideal behavior of an athlete in such a situation, then this is the case. I just don't know what else he could have done. Alexander understood perfectly well what his chances were and how to act. He spent a lot of money (estimated from 50 to 100 thousand dollars. - Note S.B.), time and effort, and I’m honestly glad that it paid off. He was advised to have a good lawyer - the Swiss Claude Ramoni, who did a great job.

Kolobnev represented the FVSR anti-doping commission at the hearings (Berezov is one of its members. - Note S.B.) all necessary explanations and evidence. As a result, the commission had almost no doubt when it issued a warning to Alexander, although such a decision is always a huge risk for the federation. And then, reading the CAS decision, it was very pleasant to see on almost every page the phrase that the court completely agrees with the conclusions of the FVSR.

So, what explanation did Kolobnev give, who was diagnosed with the diuretic hydrochlorothiazide at the 2011 Tour de France, which can be used as a masking agent?

In the late 1990s, Kolobnev underwent two vein surgeries. He was periodically examined by his attending physician in Nizhny Novgorod Sergei Petrov, who prescribed treatment to the racer, including the dietary supplements “Capilar” or “Capilarprotector”. More often Kolobnev used “Capilar”. Last time The racer visited Dr. Petrov in 2009.

In June 2011, he came to the Russian Championship in Ufa. I went to the pharmacy of the "36.6" chain and asked for "Capilar". He was told that in all of Ufa in “36.6” there is no “Capilar”, but there is a “Capilarprotector”. He bought it because he had used it before.

Kolobnev took these supplements and brought them with him to the Tour de France, where he tested positive. The concentration of hydrochlorothiazide in the sample was so insignificant that Kolobnev was able to obtain the opinion of an extremely authoritative doctor, Roland Rivier from Lausanne. The essence of the conclusion is that at this concentration hydrochlorothiazide has no masking effect at all.

- Does anyone know how hydrochlorothiazide ended up in the supplement?

Most likely, this is just an accident. It can be assumed that in the production vat where Capilarprotector was prepared, there were particles of another drug containing hydrochlorothiazide. The athlete does not have to prove exactly how this happened. He needs to prove how the substance entered the body, and for this he needs to know where the substance was contained. Kolobnev sent all the dietary supplements he had for examination to England. The examination took about three months, and in the end hydrochlorothiazide was found in Capilarprotector. The second condition for the athlete is to prove that the intake of the substance was not associated with the purpose of enhancing athletic performance. But here it was obvious! From this moment Kolobnev could build his position.

In fact, CAS quickly agreed that Kolobnev had met these two conditions, and the athlete's degree of guilt was then simply determined. If we were talking about anabolic steroids or EPO, then there would be little chance of avoiding a two-year disqualification. But hydrochlorothiazide is included in the list of “special substances”, where the punishment range can vary from 0 to 24 months.

- What was the position of the International Cycling Union?

They believed that Kolobnev’s degree of guilt was maximum. The main reason is that he did not have the right to change the additive, although Alexander did not change it, but used both “Capilar” and “Capilarprotector”. The UCI also, in particular, disputed that Alexander bought Kapilarprotector in June 2011 in Ufa. But Kolobnev did not go to the pharmacy alone, but with his wife and nanny. The wife acted as a witness, CAS treated this absolutely normally. They decided not to question the nanny at all.

- Who else was a witness?

Kolobnev's Katyusha teammates as of July 2011 are Yegor Silin and Yuri Trofimov. Doctor Petrov. Roland Rivier. The court had problems with video communication, so they spoke with witnesses by phone.

- At the end of the hearings, was it already possible to draw any conclusions about the court’s position?

This is impossible. At CAS they are always emphatically friendly towards everyone, but in most cases it ends badly. Confidence that we have a good position - yes. In our hearts, we, including Kolobnev himself, agreed to a 3-month disqualification, but the full acquittal came as a surprise to everyone.

Why did the UCI decide to go to court against Kolobnev? Were they confident that they were right or was it purely an image decision?

I think it's an image thing. The warning issued to Kolobnev by the FVSR became a international union challenge. Their position is an irreconcilable fight against doping, and it was important for them not to let things slide, but to indicate their position, and then, they say, let CAS sort it out. And further. If in the case of the “Contador case” the decision of the Spanish federation, in addition to the UCI, was also challenged by the World Anti-Doping Agency (WADA), then he had no complaints against Kolobnev. Apparently, they did not want to enter into a business in which the chances of winning looked unfavorable.

Sergey BUTOV

The Court of Arbitration for Sport in Lausanne (CAS) rejected the appeal Russian athletes, filed against the IOC's decision not to allow them to participate in the Olympic Games. Thus, the Russian team will be missing 47 athletes

CAS refused to consider the decision to exclude athletes as a sanction. The consideration of the remaining cases took place on the night of February 9. In total, 47 people wrote applications to arbitration; all their appeals were rejected, according to the decision of the Arbitration for Sports, published on the CAS website.

“The CAS arbitrators consider that the process organized by the IOC to create a list of invited Russian athletes to participate in the Olympic Games from Russia cannot be called sanctions [against them],” CAS said.

The court took into account the broad gesture of the IOC to give some Russian athletes the opportunity to compete at the Olympics, albeit under neutral flag. CAS considered this decision a step “designed to balance the interests of some athletes from Russia and the interests of the IOC aimed at the global fight against doping.”

“CAS also found that the applicants failed to demonstrate that the manner in which two IOC ad hoc panels assessed them [for the ineligibility decision] was discriminatory or unfair,” the court’s decision said.

It is separately noted that illegal actions are not seen in the actions of the Olympic Committee.

The IOC received this news without a hint of joy.

“We welcome the CAS decision, it supports the fight against doping and provides clarity [regarding participation in the Games] to all athletes,” the IOC said in a statement on its official Twitter channel.

IOC Statement on CAS: We welcome this decision which supports the fight against doping and brings clarity for all athletes.

WADA criticized the decision sports arbitration for Russian athletes. Officials even allowed an appeal against this verdict. Thus, the agency supported the position of the International Olympic Committee, which stated that the CAS decision "could have a serious impact on the future fight against doping." The lifting of sanctions from Russian athletes has become one of the main topics in the world press. How foreign media evaluate the decision of the Court of Arbitration for Sport in Lausanne - in a review of the foreign press on Kommersant FM.

“The decision of the arbitration court in Lausanne plunges olympic movement into chaos on the eve of a major international sporting event", writes the British The Guardian. There are many questions for CAS: “It seems that the cases of Russian athletes were considered as ordinary cases of doping, that is, each was investigated individually. At the same time, the court did not take into account the national scale of the doping scam in Russia. Obviously, this court decision gives Russia a powerful argument in the propaganda war,” the publication concludes.

“The Olympic movement is in a swamp,” writes the German Frankfurter Allgemeine Zeitung. “Assessing only the personal responsibility of athletes, without taking into account the state scale of doping violations in Russia, shows that the fight of international sports associations with a well-organized state doping system is completely ineffective.”

“The CAS decision is another blow to the leadership of the International Olympic Committee,” writes The New York Times. “Clean sport is dead,” the publication quotes Jim Walden, Grigory Rodchenkov’s lawyer. According to him, this position of the court justifies fraudulent athletes and demoralizes honest athletes. But most importantly, it protects the Russian doping system.

“At WADA, the Lausanne verdict caused serious concern,” writes The Washington Post. Independent expert Richard McLaren said it would cause concern and disappointment among other athletes. According to him, the agency supports the IOC's intention to carefully analyze these CAS decisions and is considering all options, including an appeal to the Swiss Federal Court.

Artem Patsev, sports lawyer:

The Swiss Supreme Court does not consider issues on the merits - issues of assessing evidence, sufficiency of evidence, and so on. The only basis for applying to the Swiss Supreme Court to overturn the CAS decision is a gross violation of some procedural rules, which, obviously, did not and could not exist in this case. And I, frankly, do not see any real chance of a successful appeal in this case.

News, 15:05 02/01/2018

CAS sends a signal to the IOC: experts comment on the Lausanne court decision

Context

MOSCOW, February 1 - RAPSI, Diana Gutsul.

On Thursday, CAS fully upheld 28 and partially upheld 11 out of 39 complaints Russian athletes, banned for life from participating in the Olympic Games due to suspicions of doping, the court said in a press release. The court examined each of the cases individually and fully satisfied the complaints of 28 athletes, recognizing the evidence collected regarding them as insufficient. At the same time, CAS agreed with the accusations against 11 athletes, but decided to cancel the lifelong disqualification and limit it to a ban on participation in upcoming games In Korea.

Not united by the report

Lawyer Artem Patsev, who represents the interests of Russian athletes in court, believes that today's decision confirms the lack of support from the court's independent arbitrators for the IOC's approach.

“Apparently, the CAS arbitrators are thereby calling on the IOC, when making decisions, to be guided by the fundamental principles of Olympism and the legal principles enshrined in the Olympic Charter. This is such a clear and powerful signal from the highest authority that a free interpretation of the charter is unacceptable. I hope the IOC’s approach will change, and the guys who are acquitted will quickly receive an invitation to the games and will be able to go there and perform,” Patsev told RAPSI.

Lawyer Svetlana Gromadskaya recalls that when considering complaints, the court examined evidence regarding each athlete, including the report of Grigory Rodchenkov (director of the Federal State Unitary Enterprise Anti-Doping Center - approx. RAPSI). “Obviously, the evidence presented by the Russian side was enough to conclude that our athletes were not involved in the charges. Of course, this decision indicates a positive trend. I really hope that our athletes will still be in time for the games. The IOC decision initially raised questions. It is good that it is not final, and there is a court that is guided by the principle of individual responsibility. Moreover, the question arises to what extent, in general, the figure of Rodchenkov inspires confidence. The court is not bound only by his report and the report of McLaren (Richard McLaren - approx. RAPSI), I’m sure now everyone has a chance to prove their innocence,” Hromadska said.

Without guilt and punishment

Lawyer Maxim Rovinsky notes that the decision of the appellate court has nothing to do with whether there was a system to support doping in Russia or not. “The court considers each case individually and the evidence separately for each case, so we see that the principle of collective responsibility in the Lausanne court did not find support, this is very important. And this suggests that all athletes who were sanctioned must try to appeal to the courts of sports jurisdiction. This is an example for our other athletes; filing an appeal is not hopeless,” the expert said.

In turn, lawyer Alexey Melnikov is convinced that the whole situation with the exclusion of Russian athletes from participation in competitions was clearly of a political nature and, from a legal point of view, initially did not seem sufficiently justified.

"Arguments sports organizations sounded extremely unconvincing from a legal point of view. This was not about individual claims, but a collective imputation of guilt to an entire group of athletes, which is unacceptable in law, since the Latin principle “no guilt, no punishment” applies. I assume that in the event of a complete acquittal, the court considered the mere mention of someone somewhere absolutely insufficient. Sorry, but this is a joke: “One thing is written on the fence, but there is firewood there.” Evidence is specific documents, analyzes or at least testimony. And in this case, can the testimony of one fugitive and offended official, who also organized everything himself, be considered sufficient? (Rodchenkova - approx. RAPSI) I believe there are extremely not enough of them. His testimony is general in nature; he talks about “everyone” and “many”. In the case of partial satisfaction of complaints, I think that the principle of equality was violated. It turned out that Canadian or Norwegian athletes, who were once convicted of the same violation, will now, after the expiration of the term, be able to participate in the games, while Russian athletes will be deprived of this right for life? This is a discriminatory approach based on nationality and is unacceptable. The court — that’s what the court is for — to see whether there is a situation where an athlete is maliciously using doping, or a situation where a substance is detected in the tests, but the substance entered the athlete’s body by accident,” Melnikov explained.

According to the expert, the decision of the court in Lausanne is legal, and therefore can be welcomed. “This confirms that not everyone is ready to spit on the law just to please the political situation,” Melnikov concluded.

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The decision of the Court of Arbitration for Sport (CAS) in Lausanne on complaints from Russian athletes is a clear signal to the International Olympic Committee (IOC) that a free interpretation of the charter is inadmissible, experts interviewed by RAPSI believe.

15:05 01.02.2018

How will it look like:

TASS DOSSIER. On February 1, 2018, the Court of Arbitration for Sport decided to uphold the appeals of 28 Russian athletes banned for life from the Olympic Games due to anti-doping rule violations at XXII winter Olympic Games 2014 in Sochi.

The TASS-DOSSIER editors have prepared material about the Court of Arbitration for Sport.

Two international organizations are involved in resolving disputes related to sports: the International Council of Arbitration for Sport (ICAS) and the Court of Arbitration for Sport (CAS). ICAS manages the organizational and financial affairs of CAS, ensures the independence of CAS and respects the rights of stakeholders. The CAS directly deals with financial and disciplinary disputes.

In 1981, IOC President Juan Antonio Samaranch proposed the idea of creating a sports legal body. In 1982, a working group led by IOC member Keba Mbaye developed the organization's charter. The document was ratified by the IOC in 1983 and entered into force on June 20, 1984. This day is considered the founding day of the CAS, and Mbaye became the first president of the organization.

In February 1992, the German equestrian Elmar Gundel appealed to CAS the decision of the International Equestrian Federation, which disqualified him because doping was found in the blood of his horse. CAS reviewed Gundel's case and partially upheld his challenge, reducing the athlete's period of ineligibility.

Gundel did not agree with the CAS decision and appealed to the Swiss Supreme Court with a complaint that the CAS was not an independent organization. In March 1993, the Swiss Supreme Court recognized the independence of the CAS from the International Equestrian Federation. At the same time, he noted that CAS is accountable to the IOC, financed primarily from IOC funds, and that the IOC is authorized to make changes to the CAS charter and appoint judges.

This decision provided the impetus for CAS reform. The organization's charter was completely revised. The main change was the creation of the International Council of Arbitration for Sport, an organization that began to handle the administrative activities and finances of the CAS instead of the IOC. Another important result of the reform was the adoption of the Sports Arbitration Code, which came into force on November 22, 1994 and was subsequently updated in 2004.

Since the CAS reform in 1994, its jurisdiction has been recognized by all international Olympic associations and many national Olympic committees. Since 2003, CAS has also been the final authority in international doping disputes under the World Anti-Doping Agency code.

Structure

The working languages of CAS are English and French. The organization's main office is located in Lausanne. Two additional regional offices have also been created: in Sydney and New York. During major competitions (since 1996 at the Olympic Games, since 1998 at the Commonwealth Games, at the World and European Football Championships since 2006 and 2000, respectively, since 2014 at Asian Games) temporary tribunals are created.

ICAS structure

ICAS consists of 20 qualified lawyers. Four of them are appointed by international sports federations (three from the Association of International Summer Federations Olympic events sports, one from the Association of International Winter Olympic Sports Federations); four - the Association of National Olympic committees; four are IOC. The 12 ICAS members in question appoint four additional members responsible for upholding the rights of athletes. These 16 members appoint four more members from among individuals independent of the organizations listed above.

ICAS members are appointed for a four-year term. They cannot be included in the CAS lists of judges or mediators. ICAS can amend the Code of Arbitration for Sports, appoints and removes CAS judges and mediators, is responsible for financing CAS, appoints the Secretary General of CAS, etc. From among its members, ICAS elects a president and two vice-presidents for a term of four years, the presidents of both CAS chambers and their deputies. ICAS meets as often as required by CAS activities, but at least once a year.

The President elected by ICAS is also the President of CAS. He can hold meetings of the ICAS board (the board, in addition to the president, includes vice-presidents and presidents of both chambers of CAS). Since 2010, this position has been held by Australian John Coates.

Structure of the CAS The CAS consists of at least 150 judges and 50 mediators (neutral intermediaries who help parties resolve a conflict) appointed by ICAS.

The CAS consists of two chambers: the Ordinary Arbitration Chamber and the Appellate Arbitration Chamber. The Ordinary Arbitration Chamber creates panels of arbitrators whose task is to resolve disputes in the ordinary arbitration procedure. The Chamber of Appeal Arbitration creates groups of arbitrators to consider protests against decisions of disciplinary courts or similar bodies of federations, associations, and other sports organizations.