Revue - Les Cahiers de l'Arbitrage N°1 - 2024 - 47

ARBITRAGE ET OLYMPISME : LES CHAMBRES AD HOC DU TAS
The CAS Ad Hoc Division also held that there was no issue of retroactivity,
because the principle tempus regit actum is a legal principle that applies to rules
and regulations, whereas the IOC criteria were not rules but a standard of evidence
to assess whether an athlete's admission endangers the " level playing field. "
The evidentiary requirements, although lawful, were not easy to meet. In order
to present a record of doping tests that would meet the standard, the athletes
would have had to leave their country, or at least their city, on various occasions
in the past to do international anti-doping tests, without knowing that they were
required to do so.
The issue becomes even more complex in the case of athletes who compete
in sports that, by their nature, are more susceptible to the appeal of performanceenhancing
substances. After all, the rule established by the International Olympic
Committee provided that in determining the eligibility of Russian athletes, the
relevant Federation had to consider " the specificities of the athlete's sport and its
rules. "
One case where the CAS took the specificities of the sport into consideration
was OG 16/11, where it observed that ''rowing is at the same time a sport requiring
strength and endurance and, thus, is exposed to a significant doping threat. "
But perhaps the most typical - or archetypical - case in which the specificities
of the sport must be considered is weightlifting. Here, the International
Weightlifting Federation (IWF) banned the entire Russian Weightlifting Federation
(RWF) from participating in the Rio Olympic Games 2016, and in CAS OG 16/09,
the CAS upheld the IWF's decision. In the CAS's view, the IWF had sufficient
legal basis to take action against the RWF for conduct connected or associated
with doping or anti-doping rule violations that brought the sport of weightlifting
into disrepute.
The CAS took into consideration the fact that the information examined by the
IWF, namely the McLaren Report and the reanalysis of samples, was sufficiently
reliable and constituted conduct connected or associated with doping that
could be attributed to Russian weightlifting: in fact, the IP Report submitted that
117 Russian weightlifters were included in the centrally dictated program, which
demanded an especially attentive examination of the situation, in light of the
specific circumstances of the sport. These factors led the CAS to the conclusion
that the IWF had not violated the principle of equal treatment, as the situation of
Russian weightlifting was of an entirely different dimension, and no other member
federation was involved in a similar doping scheme.
To sum up, for the Russian athletes, presenting reliable, adequate evidence
was an arduous task. In some cases, however, the athlete was able to clear the
evidentiary hurdle and prove their innocence, and one of those cases was Darya
Klishina's.
In CAS OG 16/24, the CAS ruled in favour of Klishina's application, allowing
her to remain eligible to compete in the Olympics. The CAS panel applied the IAAF
Competition Rules and concluded that Klishina met the criteria for proof because
of her permanent residence outside Russia and her exposure to fully compliant
drug testing in and out of competition during the relevant period. The CAS panel
found that the new evidence provided by Professor McLaren was not sufficient to
establish that Klishina was involved in or benefited from the doping scheme.
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Revue - Les Cahiers de l'Arbitrage N°1 - 2024

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