Belarusian law firm wins doping case in the Court of Arbitration for Sport

COURT-OF-ARBITRATION-FOR-SPORTOn 23 January 2017 the Court of Arbitration for Sport rendered an award on doping case CAS 2016/A/4708 Belarus Canoe Association & Belarusian Senior Men’s Canoe and Kayak team members v International Canoe Federation.

The appeal filed by the Belarus Canoe Association (the “BCA“) and the Belarusian senior men’s canoe and kayak team members against the decision rendered on 15 July 2016 by the International Canoe Federation’s (the “ICF“) Executive Committee was upheld.  The decision of the Executive Committee of the ICF rendered on 15 July 2016 was set aside.

The story

On 12 April 2016, French Police and Customs raided the rooms and personal belongings of the male Belarusian canoe athletes at the training camp in Le Temple-sur-Lot (France). They confiscated various substances, medication, material and medical equipment, including meldonium, needles and other equipment for transfusions, Actovegin and iron supplements. The meldonium (16 capsules of Mildronate) were found in the room of the coach of the Belarusian women’s kayak team.

17 athletes from the Belarus canoe team underwent doping control and urine samples were taken from them. Meldonium was found in five of these samples.

On 15 July 2016, the ICF informed the BCA of the ICF Executive Committee decision following the hearing of 13 July 2016, which imposed a one year suspension of the senior men’s canoe and kayak teams including coaches, medical staff and entourage from all international competitions. This sanction started on 13 July 2016. The ICF redistributed all Olympic athlete and boat places won by Belarus Senior Men’s team for the Olympic Games in 2016. Consequently one of the strongest canoe teams became unable to participate at the Olympics in Rio 2016.

The procedure and merits

On 18 July 2016, the appellants filed a Statement of Appeal to the CAS. Local law office Danilevich & Volozhinets represented them. On 7 November 2016, a hearing took place at the CAS Court office in Lausanne, where Swiss law firm Reymond & Associes also represented the appellants.

The issues in dispute in the proceedings included: (a) whether the ICF Executive Committee was entitled to issue the appealed decision; and (b) whether the ICF Executive Committee, when adopting the appealed decision, had violated the relevant rules and procedural rights of the athletes.

The panel found that the conditions laid down by the ICF Anti-Doping Regulations (“ADR“) had not been met for two reasons: (i) unsatisfactory establishment of facts; and (ii) lack of decisions of the competent hearing body on violations of the ICF ADR by athletes or other persons affiliated with the BCA. The decision of the ICF Executive Committee thus proved premature.

The CAS found the explanations given by the Belarusian team doctor plausible and consistent. The fact that the ICF doctor did not see a need for an emergency kit and never used such kit did not convince the panel that the Belarusian doctor, bound to a different legislation and medical culture, possessed such equipment for legitimate medical use.

The ICF could not establish to the comfortable satisfaction of the Panel that the transfusion equipment and medication found at the raid of the BCA’s training camp in France, as far as disclosed to the Panel, served the aims of prohibited methods. Thus, the CAS found that no violation of the ICF ADR had taken place. There had been no possession of prohibited methods, regardless of the question of whether the ICF ADR was clear and precise enough because it did not determine under which conditions and from when a person has possession of a prohibited method.

Even were we to assume that the ICF Executive Committee had correctly established the facts, in the opinion of the panel, the premature nature of the ICF Executive Committee’s decision follows from the fact that there was no previous decision of the ICF Doping Control Panel on the alleged anti-doping rule violations of the BCA’s athletes or their entourage.

The ICF ADR provide that in the case of four or more anti-doping rule violations within a 12-month period, the ICF Executive Committee has two options: to ban all officials from the BCA from participating in any ICF activities for a period of up to two years and/or to fine the BCA for an amount up to 15,000 Euros. The appealed decision deviated from the above legal basis in three ways: it included athletes; it did not ban all officials of the BCA; and it did not ban all officials from participating in any ICF activities, but rather from participating in “all international competitions”.

The CAS thus held that, by applying the ICF ADR to persons other than officials on the one hand, and by not addressing all BCA officials on the other hand, and finally by banning them, but not from any ICF activities, the appealed decision violated its legal basis.

Conclusion

Although the athletes lost the possibility of participating at the Olympics, from a legal point of view this award is very important because it shows how a fast and well executed legal defence may lead the national sports federation to success in a dispute against an international sport organisation. This case also became the first in which a Belarusian local law office won a case against a Swiss one in the CAS.

Aliaksandr Danilevich

Law office Danilevich & Volozhinets

Posted in: sport arbitration

About the Author:

Dr Aliaksandr Danilevich is a partner at Danilevich & Volozhinets law office in Minsk, Belarus. He has a Ph.D. in law from Belarusian State University. He is an associate professor at the department of International Private and European law of the Belarusian State University in Minsk, where he teaches Private International Law, International Arbitration and International Transport law. See full profile.

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