CAS 2020/O/6689 World Anti-Doping Agency V. Russian Anti-Doping Agency
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CAS 2020/O/6689 World Anti-Doping Agency v. Russian Anti-Doping Agency ARBITRAL AWARD delivered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: President: Judge Mark L. Williams SC, Judge, Sydney, Australia Arbitrators: Prof. Avv. Luigi Fumagalli, Professor and Attorney-at-Law, Milan, Italy Dr Hamid Gharavi, Attorney-at-Law, Paris, France Ad hoc Clerk: Mr Alistair Oakes, Barrister, Sydney, Australia in the arbitration between World Anti-Doping Agency, Canada Represented by Mr Ross Wenzel and Mr Nicolas Zbinden, Attorneys-at-Law with Kellerhals Carrard in Lausanne, Switzerland and Dr Tom Hickman QC, Barrister in London, United Kingdom Claimant and Russian Anti-Doping Agency, Russia Represented by Mr Philippe Bärtsch, Dr Christopher Boog, Dr Anna Kozmenko, and Ms Anya George, Attorneys-at-Law with Schellenberg Wittmer in Geneva, Switzerland Respondent and CAS 2020/O/6689 – Page 2 International Olympic Committee, Switzerland Represented by Prof. Antonio Rigozzi, Attorney-at-Law with Levy Kaufmann-Kohler in Geneva, Switzerland International Paralympic Committee, Germany Represented by Prof. Antonio Rigozzi, Attorney-at-Law with Levy Kaufmann-Kohler in Geneva, Switzerland Russia Olympic Committee, Russia Represented by Dr Claude Ramoni, Attorney-at-Law with Libra Law in Lausanne, Switzerland Russia Paralympic Committee, Russia Represented by Dr Fabrice Robert-Tissot, Attorney-at-Law with Bonnard Lawson in Geneva, Switzerland European Olympic Committees, Italy Represented by Mr Marc Theisen, Attorney-at-Law with Theisen & Marques in Lëtzebuerg, Luxembourg International Ice Hockey Federation, Switzerland Represented by Ms Ashley Elhert, Esq., Legal Counsel Russian Ice Hockey Federation, Russia Represented by Mr Marc Cavaliero and Ms Carol Etter, Attorneys-at-Law with Cavaliero & Associates in Zurich, Switzerland Lilya Akhaimova, Regina Isachkina, Elena Osipova, Arina Averina, Olga Ivanova, Yana Pavlova, Dina Averina, Yulia Kaplina, Alexey Rubtsov, Ilya Borodin, Evgeniya Kosetskaya, Ekatarina Selezneva, Artur Dalaloyan, Elena Krasovskaia, Nikita Shleikher, Alina Davletova, Evgeny Kuznetsov, Vladimir Sidorenko, Evgenija Davydova, Sayana Lee, Inna Stepanova, Inna Deriglazova, Vladimir Malkov, Maria Tolkacheva, Yana Egorian, Polina Mikhailova, Dmitry Ushakov, Vladislav Grinev, Andrei Minakov, Sofiya Velikaya, Kristina Ilinykh, Nikita Nagornyy, and Andrey Yudin, Russia Represented by Mr Mike Morgan and Mr William Sternheimer, Attorneys-at-Law with Morgan Sports Law in London, United Kingdom and Lausanne, Switzerland and Mr Ali Malek QC, Barrister in London, United Kingdom Sasha Gusev, Daniil Sotnikov, Ilya Borisov, Igor Ovsyannikov, Nachyn Coular, Valeria Koblova, Elizaveta Sorokina, Ivan Golubkov, Elena Krutova, and Viktoria Potapova, Russia Represented by Mr Marc Cavaliero and Ms Carol Etter, Attorneys-at-Law with Cavaliero & Associates in Zurich, Switzerland Intervening Parties CAS 2020/O/6689 – Page 3 I. PARTIES 1. The World Anti-Doping Agency (“WADA” or the “Claimant”) is a private law foundation constituted under Swiss law in 1999 to promote and coordinate at international level the fight against doping in sport. WADA has its registered seat in Lausanne, Switzerland, and its headquarters in Montreal, Canada. 2. The Russian Anti-Doping Agency (“RUSADA” or the “Respondent”) is the National Anti-Doping Organisation in Russia and a signatory to the World Anti-Doping Code (“WADC”). Its registered office is in Moscow, Russia. 3. WADA and RUSADA are collectively referred to as the “Parties”. 4. The International Olympic Committee (“IOC”) is the world governing body of Olympic sport having its registered office in Lausanne, Switzerland. 5. The International Paralympic Committee (“IPC”) is the world governing body of the Paralympic Movement having its registered office in Bonn, Germany. 6. The Russia Olympic Committee (“ROC”) is the National Olympic Committee representing the Russian Federation within the Olympic Movement having its registered office in Moscow, Russia. 7. The Russia Paralympic Committee (“RPC”) is the National Paralympic Committee representing the Russian Federation having its registered office in Moscow, Russia. It is a recognized a member of the IPC. 8. The European Olympic Committees (“EOC”) is an organisation consisting of National Olympic Committees from Europe (including the ROC). 9. The International Ice Hockey Federation (“IIHF”) is the world governing body administering the sport of ice hockey. Its registered office is in Zurich, Switzerland. 10. The Russian Ice Hockey Federation (“RIHF”) is the governing body overseeing ice hockey in Russia. It is a recognized member of the IIHF. Its registered office is in Moscow, Russia. 11. Lilya Akhaimova, Regina Isachkina, Elena Osipova, Arina Averina, Olga Ivanova, Yana Pavlova, Dina Averina, Yulia Kaplina, Alexey Rubtsov, Ilya Borodin, Evgeniya Kosetskaya, Ekatarina Selezneva, Artur Dalaloyan, Elena Krasovskaia, Nikita Shleikher, Alina Davletova, Evgeny Kuznetsov, Vladimir Sidorenko, Evgenija Davydova, Sayana Lee, Inna Stepanova, Inna Deriglazova, Vladimir Malkov, Maria Tolkacheva, Yana Egorian, Polina Mikhailova, Dmitry Ushakov, Vladislav Grinev, Andrei Minakov, Sofiya Velikaya, Kristina Ilinykh, Nikita Nagornyy, and Andrey Yudin are a collective group of 33 elite, internationally-ranked Russian athletes who have qualified, or are likely to qualify, for participation at 2020 Tokyo Olympic Games and/or World Championship events in the next four years (the “33 Athletes Group”). 12. Sasha Gusev, Daniil Sotnikov, Ilya Borisov, Igor Ovsyannikov, Nachyn Coular, Valeria Koblova, Elizaveta Sorokina, Ivan Golubkov, Elena Krutova, and Viktoria Potapova CAS 2020/O/6689 – Page 4 are a similar collective group of 11 elite, internationally-ranked Russian athletes who have qualified, or are likely to qualify, for participation at the 2020 Tokyo Olympic and Paralympic Games and/or World Championship events in the next four years (the “11 Athletes Group”). 13. The IOC, IPC, ROC, RPC, EOC, IIHF, RIHF, 33 Athletes Group and 11 Athletes Group are collectively referred to as the “Intervening Parties”. II. FACTUAL BACKGROUND 14. Below is a summary of the relevant facts and allegations based on the written submissions, pleadings and evidence adduced by the Parties and Intervening Parties prior to, and at, the hearing. Additional facts and allegations found in the written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. 15. WADA, RUSADA and the Intervening Parties provided the Panel with extensive pleadings and written submissions, totalling more than 1,500 pages. In total, the submissions, statements, expert reports, and factual and legal exhibits exceeded 48,000 pages. While the Panel has considered all submissions and evidence in the present proceedings, it refers in this Award only to the submissions and evidence it considers necessary to explain its reasoning. 16. Relevantly, while the background facts relating to this Award concern a lengthy narrative of allegations of, and investigations into, systemic doping within Russian sport, this Award primarily concerns RUSADA’s alleged non-compliance of a critical requirement under the International Standard for Code Compliance by Signatories (the “ISCCS”) to procure the delivery to WADA of authentic data from the Moscow Anti- Doping Laboratory (the “Moscow Laboratory”). 17. In these proceedings, WADA has sought a finding of such non-compliance and the imposition of a number of consequences (the “Signatory Consequences”) deriving therefrom. RUSADA opposed WADA’s claims. It denies that the data retrieved by WADA from the Moscow Laboratory was manipulated and, in the alternative, denies any responsibility for manipulations and challenges the validity of the Signatory Consequences sought by WADA. As a result of the Parties’ submissions, the issues examined by the Panel in this Award can be broadly summarised as: a. the validity of the ISCCS and WADA’s requirement that RUSADA procure the delivery to WADA of authentic data from the Moscow Laboratory; b. whether RUSADA complied with that requirement; and c. if not, what Signatory Consequences can and should be imposed. A. The World Anti-Doping Code and the International Standards 18. A significant issue in these proceedings is the validity of amendments to the WADC adopted by the WADA Foundation Board in November 2017 and the associated CAS 2020/O/6689 – Page 5 approval of the ISCCS by the WADA Executive Committee. It is therefore useful to set out a brief history of the WADC and the International Standards. a. The World Anti-Doping Code 19. The WADC is, according to its terms, “the fundamental and universal document upon which the World Anti-Doping Program in sport is based. The purpose of the Code is to advance the anti-doping effort through universal harmonization of core anti-doping elements.” It was first adopted by the WADA Foundation Board on 5 March 2003 and took effect on 1 January 2004 (the “2003 WADC”). The 2003 WADC was the version of the WADC in effect when RUSADA signed its declaration of acceptance on 27 September 2008. 20. Article 23.6 of the 2003 WADC permitted amendments to the WADC after appropriate consultation with athletes, Signatories and governments, to be approved by a two-thirds majority of the WADA Foundation Board. As set out below, such amendments have been made on a number of occasions (and similar amendment provisions have been contained in those subsequent versions).