Weightlifting Federation of the Republic of Kazakhstan (WFRK) v. International Weightlifting Federation (IWF)

II. FACTUAL BACKGROUND

3. The International Olympic Committee (“IOC”) decided in 2016 to re-analyse the samples collected during the 2008 and 2012 Olympic Games, in order to detect with improved analytical methods any prohibited substances, which could not be found previously.

4. This reanalysis resulted in 90 samples testing positive for prohibited substances, including 46 belonging to weightlifters, 10 of which from Kazakhstan. More than 20% of the positive samples recorded were from athletes affiliated with the WFRK.

5. Five Kazakh weightlifters competing in the 2008 Beijing Olympics tested positive for stanozol, a prohibited steroid. Another five athletes participating in the 2012 London Olympics tested positive for stanozol (along with other steroids for some of the weightlifters).

6. On the 22-23 June 2016, the IWF Executive Board had a two day meeting in Tbilisi, Georgia.

7. During the course of the meeting, the IWF Executive Board adopted a decision, which it published on the IWF official website, stating the following:

8. “5. The IWF Executive Board has decided that National Federations confirmed to have produced 3 or more Anti-Doping Rule Violations in the combined re-analysis process of the 2008 and 2012 Olympic Games shall be suspended for 1 year. Countries thus subject are: KAZ, RUS, BLR”.

9. On 5 July 2016, the WFRK wrote to the IWF requesting confirmation that the suspension decided by the IWF Executive Board on 22 June 2016 would not come into force prior to the CAS delivering its decision on the validity of the ban.

10. On 8 July 2016, the IWF responded that no measures would be taken prior to finalization of the pending procedures before the IOC and CAS, and that the IWF Executive Board decision was not a decision appealable to CAS. On the same day, the WFRK responded to the IWF stating that it did not agree with the IWF’s conclusion that the IWF Executive Board’s decision was not a decision subject to a possible appeal.

11. On 14 August 2016, during the 2016 Olympic Games in Rio, an extraordinary IWF Executive Board meeting was convened in order to further discuss the IWF’s decision, where the Executive Board decided that, in case of three or more anti-doping rule violations in the combined reanalyses process of the 2008 and 2012 Olympic Games, the following rights of national member federations shall be suspended:

- Right to participate at IWF Events with Athletes and Technical Officials;

• Right to organize IWF Events, IWF Congress, IWF Executive Board meetings, meetings of IWF Commissions and Committees;

• Right to participate in the Congress with voting right;

• Right to submit proposals for inclusion in the Agenda of the Congress;

• Right to take part in and benefit from the IWF Development program apart from Education and Anti-Doping Seminars;

• Right to submit proposals if any for the modification of the IWF Constitution, Technical and Competition Rules & Regulations whenever requested.

12. Further, the IWF Executive Board decided that all the member federations which were suspended would nevertheless keep the right to nominate candidates for elections, so as to guarantee that such federations would not face an extended suspension beyond the envisaged one-year suspension due to the IWF elections for the period 2017-2021 being scheduled for May 2017.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

13. On 11 July 2016, the Appellant filed its Statement of Appeal with the Court of Arbitration for Sport (the “CAS”) against the decision issued by the IWF Executive Board on 22 June 2016, in accordance with Article R47 of the Code of Sports-related Arbitration (the “Code”).

14. On 29 July 2016, the Appellant submitted its Appeal Brief with the CAS, in accordance with Article R51 of the Code.

15. On 24 August 2016, the Respondent filed its answer with the CAS, in accordance with Article

16. On 20 September 2016, the CAS Court Office, on behalf of the President of the Appeals Arbitration Division, confirmed that the Panel was constituted pursuant to Article R54 of the Code as follows:

President: Mr Romano F. Subiotto Q.C., Solicitor-Advocate in Brussels Belgium and London, United Kingdom. Arbitrators: Mr Michele Bernasconi, Attorney-at-law in Zurich, Switzerland. Mr Hans Nater, Attorney-at-law in Zurich, Switzerland.

17. On 20 January 2017, the Appellant signed and returned the order of procedure to the CAS Court Office. On 23 January 2017, the Respondent signed and returned the order of procedure to the CAS Court Office.

18. In accordance with Article R56 of the Code, an oral hearing was held in Lausanne, Switzerland, on 27 January 2017. The panel was assisted by Mr Brent J. Nowicki, CAS Managing counsel, and Mr Magnus Wallsten, ad hoc Clerk, and joined by the following persons:

For the WFRK:

• Mr Claude Ramoni, Counsel.

• Ms Natalie St Cyr Clarke, Counsel.

• Mr Omar Mustafin, WFRK Secretary General.

• Mr Vibhu Malaviya.

• Ms Tioana Zivkovic.

For the IWF:

• Mr Ross Wenzel, Counsel.

• Mr Nicolas Zbinden, Counsel.

• Ms Eva Nyirfa, IWF Legal Counsel.

19. Before the hearing was concluded, all parties confirmed that they did not have any objection to the constitution and conduct of the Panel or to the procedure adopted by the Panel and that their right to be heard has been respected.

20. The Panel has carefully taken into account in its decision all of the submissions, evidence, and arguments presented by the parties, even if they have not been specifically summarised or referred to in the present arbitral award.

VIII. SUBMISSIONS OF THE PARTIES — A. Appellant’s Submissions and Requests for Relief

i. Submissions

35. The WFRK argues that the decision under appeal violates the IWF’s Constitution and the principle of proportionality. No disciplinary process was initiated or finalised against the WFRK, the WFRK did not breach any of the IWF’s rules, and the IWF could not impose a strict liability on the WFRK for things outside its control.

Non-adherence to the IWF Constitution

36. The WFRK submits that the first criterion for a federation to impose sanctions is the principle of legality. This requires the federation to adhere to its own laws and is derived from Article 75 of the Swiss Civil Code (“Swiss CC”). Article 75 of the Swiss CC is a mandatory provision and is intended to safeguard membership rights from unlawful infringements by the association. The rights and obligations of the WFRK are enshrined in Article 3 of the IWF Constitution.

37. The WFRK argues that the IWF Executive Board has the authority to suspend a national federation and, pursuant to Article 3.1.4 IWF Constitution, a federation can only be suspended from the IWF by a resolution of the IWF Executive Board. This provision does not give the IWF Executive Board the unfettered capacity to suspend a member federation. Rather, suspension is permitted either when a federation violates Article 3.4 of the IWF Constitution (in accordance with Article 38 of the IWF Constitution) or when there has been interference from a national government and a suspension is necessary to protect weightlifting under Article 3.9 of the IWF Constitution.

38. The suspension must be based on Article 3.8 of the IWF Constitution to be in line with the IWF Constitution, and Article 12.4 IWF ADP must conform to Article 3.8 of the IWF Constitution.

39. The WFRK submits that the national federations’ obligations contained in Article 3.4 IWF Constitution does not include explicit obligations on the part of the WFRK to seek out and identify anti-doping violations, test athletes, or re-test athletes. A breach of Article 3.4 of the IWF Constitution does include the non-compliance with the IWF ADP but the IWF ADP itself does not contain any obligations on the part of the national federation with regard to testing. According to Article 5.2.1 of the IWF ADP, it is the responsibility of the IWF to conduct such tests as they have in- and out-of-competition testing authority. The WFRK had no possibility to detect any positive samples from the athletes concerned.

40. Article 12.4 of the IWF ADP is only breached if the conduct of the member federation has led or contributed to the commitment of the anti-doping violation. The WFRK argues that there has been no alleged conduct on the part of the WFRK that has led to the commitment of the anti-doping violations. Consequently, the sole reason for the suspension would be the fact of having more than three anti-doping violations resulting from the IOC retesting procedure. Yet, having more than three anti-doping violations does not per se violate the IWF ADP. The

WFRK argues that it has fulfilled all its obligations under Article 3.4 IWF Constitution, including accepting and fully complying with the IWF ADP. As a result, the IWF Executive Board could not legally suspend the WFRK.

41. Furthermore, the WFRK submits that there was no recommendation on the part of the Membership Commission to suspend it, a requirement under Article 3.8.1 of the IWF Constitution. The absence of this requirement in Article 12.4 IWF ADP does not mean that the decision under challenge is valid. Rather, in such case Article 12.4 IWF ADP does not adhere to Article 3.8.1 IWF Constitution, which is the basis for sanctioning member federations with suspensions for violations or non-compliance with the IWF ADP.

42. The WFRK submits that Article 12.4 IWF ADP should be declared null and void, or at least inapplicable, to the extent it does not comply with the IWF Constitution. The IWF Executive Board violated the IWF Constitution when it decided to suspend the WFRK without a recommendation from the Membership Commission.

43. Additionally, the By-law to Article 3.8 of the IWF Constitution states that any decision must be notified to the relevant party in writing. The IWF thus violated its own constitution when it failed to notify its decision to the WFRK, whether in writing or otherwise. A news article on its website does not suffice, as the by-law to Article 3.8 of the IWF Constitution implies that the decision communicated will be accompanied by some reasoning.

44. Therefore, the WFRK submits that the IWF decision violates the IWF Constitution and should be declared null and void.

Non-adherence to general legal principles – No disciplinary process

45. The WFRK argues that Swiss law provides that a sanction can only be imposed if the rights to be heard and to be treated equally are respected. The WFRK had no opportunity to defend itself as the IWF did not initiate or conduct a disciplinary process. As a result, the WFRK’s right to be heard was violated.

46. The WFRK further notes that the IWF ADP of 2015 is itself in violation of Article 29 of the Swiss Constitution with respect to the right to be heard. Article 12.4 IWF ADP 2015 which provides for the imposition of discretionary sanctions does not envisage disciplinary proceedings prior to the imposition of sanctions.

47. The lack of disciplinary process also violates the principle of equal treatment. The WFRK argues that the IWF took one criteria for sanctioning and failed to consider the separate circumstances and culpability of the federations implicated under the IWF’s decision. This constitutes a violation of the principle of equal treatment and a violation of Article 29 of the Swiss Constitution.

Non-adherence to general legal principles – No violation of Article 12.4 IWF ADP

48. Article 12.4 IWF ADP states:

“If any Member Federation or members or officials thereof, by reason of conduct connected with or associated with doping or anti-doping rule violations, brings the sport of weightlifting into disrepute, the IWF Executive Board may, in its discretion, take such action as it deems fit to protect the reputation and integrity of the sport”.

49. The WFRK submits that the elements of the offence must be: 1) the conduct of the member federation or its members or officials, which; 2) brings the sport of weightlifting into disrepute. These criteria are cumulative and both must be satisfied in order for the IWF Executive Board to consider a sanction.

50. The wording of the first element implies that there must be some behaviour or action on the part of the federation, its members, or officials that is more than the mere commitment of an anti-doping violation by an athlete or other person affiliated with the federation. It implies some involvement on the part of the federation in the commitment of an anti-doping violation, such as a cover-up for a positive test or systematic doping that is supported by the federation. Article 12.4 IWF ADP does not permit the punishment of a federation merely for having anti-doping violations associated with it, without any other additional or aggravating conduct or circumstances. The decision under challenge did not take such additional conduct or circumstances into account.

51. The WFRK also submits that in recent years there have been substantial changes within the WFRK, and no officials and management members of the WFRK, who were in place during the 2008 and 2012 Olympic Games, are currently part of the WFRK. Additionally, the Kazakh National Anti-Doping Centre was established in 2013 with information and education being provided at national level to Kazakh athletes and it is deemed compliant by the World Anti- Doping Agency (“WADA”). In 2014, a new law prohibiting doping and providing for the necessary legal and regulatory framework for an efficient fight against doping in Kazakhstan was promulgated, and the WFRK is doing its best to ensure that its athletes are regularly tested. Therefore, the WFRK finds that is conduct and that of its officials is no way associated or connected with doping practices.

52. The first condition of Article 12.4 IWF ADP is not met and the allegation that the sport of weightlifting has been brought into disrepute should also fail. It is wrong and unfair to put the blame on the WFRK as it has done nothing which could bring the sport of weightlifting into disrepute.

Non-adherence to general legal principles – Breach of the principle of legality

53. The WFRK argues that the decision under challenge distinguishes between offences discovered further to the retesting of samples provided on the occasion of the Olympic Games and other offences discovered on other occasions.

54. The positive doping tests conducted as part of the IOC’s re-testing measures do not result from sophisticated new doping methods which were undetectable at the time of the 2008 and 2012

Olympic Games but concern well-known steroids. The detection methods for steroids have been the same for at least the past 20 years. However, the devices used by the laboratories are much more sensitive today, with the minimum limit for most anabolic steroids being reduced from 10ng/mL to 5ng/ml as of 1 January 2013. A reason for the different outcome of the retested samples is the greater sensitivity of the testing apparatus. Additionally, the testing apparatus is also able to identify new metabolites of said prohibited substances, which can be detected for a longer period than other metabolites.

55. The positive cases resulting from the retesting procedure show a very low concentration of prohibited substances or metabolites. The WFRK argues that such low concentrations are compatible with the inadvertent intake of a prohibited substance by the use of a contaminated supplement. The 2015 World Anti-Doping Code (the “WADC”) and the 2015 IWF ADP took this into consideration by implementing a new specific regulation allowing a substantially reduced sanction for contaminated supplements, down to a warning only, even if the prohibited substance is an anabolic steroid. The IWF ADP contains no provision that offences discovered upon the retesting of samples should result in harsher sanctions than other offences.

56. Further, the WADC expressly requires its signatories to accept the mandatory parts of the code without any substantive changes. This includes the definition of doping, Anti-Doping Rule Violations (“ADRVs”), and the sanctions for such offences. There is no provision under the World-Anti Doping Code providing for any distinction based on the type of competition during which a sample is taken. On the contrary, the whole concept of the WADC is to fix a strict and harmonised set of sanctions to be imposed in all circumstances.

57. The WFRK submits that the decision challenged imposes an additional sanction in the case of the retesting of samples collected on the occasion of the 2008 and 2012 Olympic Games, breaching the principle of legality and the WADC.

Non-adherence to general legal principles – Impermissible substantive changes from the World Anti-Doping Code

58. The WFRK submits that the changes made by the IWF to the IWF ADP are not compatible with the mandatory rules of the WADC, and should therefore be deemed null and void. The Appellant concedes that the text of Article 12 of the WADC gives some freedom to signatories to impose sanctions on national federations. However, the sanctions imposed on individuals and on teams are included in the mandatory sections of the WADC.

59. The decision under challenge bans all athletes affiliated with the WFRK, no matter their age, level, gender, or doping record, from any and all IWF activities for a period of one year. This constitutes a sanction imposed on individuals and teams.

60. The WFRK argues that nothing in the WADC permits the imposition of a period of ineligibility on an individual for the wrongdoing of another individual. Article 11 of the WADC provides for target testing or disqualification, loss of points and the like in the case of several positive doping tests within a team in a team sport.

61. Even if weightlifting is not a team sport within the meaning of the WADC, sanctioning a full federation, including all its affiliated athletes and officials, in the case of positive doping tests of some athletes affiliated with this federation, would constitute an unauthorised substantive change of the fixed set of sanctions provided for by the WADC. The WFRK argues that the decision is not about imposing a sanction on the Appellant due to its own wrongdoing, but rather to make the Appellant and its affiliated members liable for ADRVs committed years ago by some affiliated athletes.

Non-adherence to general legal principles – Proportionality

62. The decision challenged fails in any event to comply with the principle of proportionality, even if it were found that the IWF Executive Board could impose a sanction pursuant to Article 12.4 IWF ADP.

63. A sanction is proportionate if it does not exceed what is reasonably required to achieve a legitimate aim. The sanction must be capable of achieving the envisaged goal; be necessary to reach the envisaged goal; and the constraints which the affected person will suffer as a consequence of the sanction must be justified by the overall interest in achieving the envisaged goal.

64. The WFRK contends that the decision challenged contains no reasoning and no evidence as to the conduct of the federation or its member or officials. Rather, the basis of the ban is only three or more ADRVs by member athletes as a result of the IOC retesting procedure. The WFRK also claims there is a complete lack of evidence of the IWF being brought into disrepute, let alone by any conduct of the WFRK.

65. In contrast, the WFRK states that the possible ADRVs taken into account by the IWF Executive Board occurred either four or eight years ago. Some of the athletes currently competing for the WFRK were not competing at the time of these alleged violations and consequently have nothing to do with the violations. There are provisions to deal with antidoping violations by individual athletes. However, in this instance the athletes who have not committed any anti-doping violations will be paying for the conduct of other athletes unrelated to them.

66. The WFRK further argues that the IWF Executive Board decision is disproportionate compared to the sanctions imposed by the IWF in other doping cases. The IWF imposes proportionate sanctions for “light” doping offences, which last for a couple of months, but less than one year. It would therefore be unfair and disproportionate that clean Kazakh weightlifters would be subject to a longer period of ineligibility despite having no positive doping tests.

67. Additionally, where systematic doping is suspected, it would be prudent to immediately suspend a national federation until the extent of the doping is revealed, based on its failure to comply with its anti-doping obligations and its obligations in the IWF Constitution. However, no such system has been alleged in this case and there is no professed need to prevent continued doping.

68. The purpose of the decision is not to punish the conduct of the federation, as required by Article 12.4 IWF ADP and neither is it to prevent systematic doping. The sole purpose of the

decision, according to the WFRK, is to fulfil a political agenda and appear to be tough in the face of the issues that are consuming the world of sport at the moment.

69. The WFRK argues that this case can be distinguished from the ban on the Bulgarian weightlifting team which was prevented from taking part in the 2016 Rio Olympics, a single event, for having more than nine positive doping tests. That decision was made pursuant to the Special Anti-Doping Policy for the Olympic Games of Rio 2016 and does not prevent weightlifters from Bulgaria from participating in other competitions.

70. The WFRK contrasts this with the decision challenged. No IWF rule provides that a positive doping result from a re-test should produce a more serious sanction than if an anti-doping violation is detected at the time of the sample collection. Under the decision, the WFRK would not just be banned from taking part in one competition but suspended from all competitions and other IWF activities for one year.

71. According to the WFRK the IWF Executive Board decision does nothing to aid anti-doping compliance in Kazakhstan. The WFRK should not be sanctioned for the inability of the IOC and relevant laboratories to detect prohibited substances at the relevant time (2008 and 2012). Therefore, the decision should be annulled or the sanction envisaged significantly reduced.

Strict liability

72. The WFRK also submits that the challenged decision would violate Swiss public policy on the basis of the illegality of strict liability.

73. Article 12.4 IWF ADP requires the conduct of the federation, and the WFRK argues that such conduct was not taken into account by the IWF. Therefore, the challenged decision is tantamount to strict liability as, without demonstrating any fault, the WFRK was sanctioned based on positive doping tests of its affiliated athletes.

74. Strict liability violates the fundamental principle nulla poena sine culpa. The Appellant concedes that the CAS has admitted in several instances that strict liability may be imposed in many circumstances. However, an athlete having committed an ADRV can benefit from a reduced sanction or no sanction at all, other than the disqualification of results, if the athlete can prove no fault or negligence. Strict liability of the Appellant under the decision breaches the IWF ADP and the principles deriving from the WADC. Additionally, the challenged decision would also be contrary to the principle of nulla poena sine culpa under Swiss law for any sanction other than the disqualification of results.

ii. Requests for Relief

75. In accordance with the amendments made to its requests for relief at the oral hearing, the Appellant requests the Panel to rule that:

1) The decision of the International Weightlifting Federation Executive Board of 22 June 2016, that National Federations confirmed to have produced 3 or more Anti-Doping Rule Violations in the

combined re-analysis process of the 2008 and 2012 Olympic Games shall be suspended for 1 year, is annulled. 2) The Weightlifting Federation of the Republic of Kazakhstan is not subject to any suspension. 3) The International Weightlifting Federation shall be ordered to reimburse the Weightlifting Federation of the Republic of Kazakhstan the minimum CAS court office fee of CHF 1000. 4) The International Weightlifting Federation shall be ordered to pay the Weightlifting Federation of the Republic of Kazakhstan a contribution towards the legal and other costs incurred in the framework of these proceedings in an amount to be determined at the discretion of the Panel.

B. The Respondent’s Submissions and Requests for Relief

i. Submissions

76. The IWF submits that the decision under appeal (the IWF Executive Board’s decision of 22 June 2016) was in fact a policy (the “Policy”), or an expression of a standard practice, which was not intended to be applied against the Appellant before the IOC issues final and binding decisions sanctioning at least three Kazakh athletes further to ADRVs committed on the occasion of the 2008 and 2012 Olympic Games. The IWF intended to notify a proper and reasoned decision to the Appellant only if and when three Kazakh weightlifters were definitely found to have committed ADRVs.

The autonomy of the association

77. The IWF claims that the Policy is fully justified, but also that it has the autonomy – as a Swiss association – to adopt such Policy, without interference from a Court. Furthermore, the Policy is fully compliant with the IWF Constitution and the IWF Anti-Doping Policy, and must be upheld.

78. The IWF is a Swiss association regulated by Article 60 et seq. of the Swiss CC. Under Swiss law, associations benefit from significant autonomy. Article 23 of the Federal Constitution of the Swiss Confederation creates a margin of autonomy enabling persons or entities to regulate themselves and exercise an activity within social organizations outside the scope of State interference. Associations are autonomous and can adopt binding rules for their members, almost without any restrictions. Under Swiss law, associations have been granted an extremely high measure of freedom, with the term “freedom of association” having particular significance under Swiss law.

79. In particular, an association may issue rules relating to the creation of an autonomous order, which constitutes one of the expressions of the private autonomy of associations. The association may regulate every matter related to the association’s purpose. The right to regulate and determine its own affairs is considered essential for an association.

80. The IWF argues that a ruling authority must review a challenge to a decision taken by an association with a certain restraint when the matter is related to technical issues or when the association is granted discretion in the decision making process. As a result, the freedom of an

association to take decisions must be preserved to the highest possible extent, provided of course that such decisions remain within the limits of the law.

81. Any restriction must have a legal basis because the freedom of association is protected by the Swiss Constitution. Significant restrictions must have their basis in a federal act, and any restriction must be justified in the public interest. In the case at hand, the Policy was adopted sovereignly by the IWF. The Appellant cannot invoke any public interest to claim the annulment of the Policy. On the contrary, the Policy is justified by a public interest: the fight against doping.

82. In view of the above, the IWF submits that there is no reason to set aside or declare null and void the Policy.

The compliance with the IWF Constitution

83. The IWF submits that the Appellant’s claim with regard to the Policy and its compliance with the IWF Constitution is flawed because disciplinary sanctions, like a suspension of membership, can also derive from the IWF ADP, whose application the IWF Constitution expressly reserves.

84. The fight against doping is a fundamental objective of the IWF and it is duly enshrined in its statutes, namely Article 2.1.2 of the IWF Constitution. Pursuant to Article 3.3.2 of the IWF Constitution, a mandatory requirement for membership is the complete recognition of the IWF Constitution and by-laws, technical rules and regulations, competition rules and regulations, and the IWF ADP. As a member federation, the WFRK has the duty to recognize the IWF ADP and to comply with it.

85. A member federation is subject to disciplinary procedures when it violates anti-doping rules. These procedures are not those found in the IWF Constitution, but rather those foreseen in the IWF ADP. Article 12.1 of the IWF Constitution specifies “violations of anti-doping regulations are not subject to the disciplinary procedures set forth hereunder”. The IWF Constitution fully refers to the IWF ADP within the context of the fight against doping. Contrary to the Appellant’s submission, membership can be suspended not only pursuant to Article 3.4 of the IWF Constitution, but also pursuant to the IWF ADP.

86. The IWF argues that Article 12.4 IWF ADP does not contradict the IWF Constitution. On the contrary, the IWF constitution clearly reserves the disciplinary procedures provided for under the IWF ADP, and case CAS in OG 16/09 previously upheld a suspension from the Olympic Games based on Article 12.4 IWF ADP without any reservation due to a supposed constitutional issue.

87. Therefore, the IWF submits that the Policy and Article 12.4 IWF ADP are both valid under the IWF Constitution.

The disciplinary process

88. The IWF argues that Article 12.4 of the IWF ADP grants the IWF Executive Board full discretion to take any action it deems fit to protect the reputation and integrity of the sport. The IWF Executive Board had no requirement to hear all of its member federations before adopting

the Policy. This is particularly true here since the Policy is simple: three or more ADRVs within the context of the IOC’s reanalyses result in a one-year suspension of membership (subject to the right to nominate candidates for elections). As a result, there is no need to investigate the facts nor to hear the respective federation, which also means that the right to be heard is not relevant in this instance.

89. Additionally, the Appellant cannot complain of a violation of its right to be heard since the Appellant decided to challenge the Policy before such Policy was effectively applied through the issuance and notification of a reasoned decision.

90. The IWF states that it always made it clear that no decision would be enforced against the Appellant before the IOC’s ADRV procedure was completed. Therefore, every Kazakh weightlifter would have the opportunity to be heard before the IOC Disciplinary Commission and, therefore, prior to the implementation of the Policy.

91. Furthermore, the IWF argues that, in any event, the right to be heard in this instance is not decisive as the Appellant can test the Policy before CAS in the present proceedings. Article R57 of the Code gives the Panel full power to review the facts and the law, which cures any internal procedural deficiencies. Therefore, CAS would in any event cure any violation of the Appellant’s right to be heard, quod non, which cannot render the Policy null and void.

92. The IWF also argues that the Appellant’s argument regarding an alleged violation of the principle of equal treatment is ill-founded. The Policy is a standard practice that applies, equally, to any member federation with more than three ADRVs from the IOC re-testing procedure, which is why the IWF communicated in clear terms, at the time of the IWF’s media release on 22 June 2016, that the three members concerned were (at that stage) Russia, Belarus, and Kazakhstan. Those members, whose situations were the same, were all treated equally.

The violation of Article 12.4 IWF Anti-Doping Policy

93. The IWF submits that the Appellant’s argument that “there must be some behaviour or action on the part of the federation” in order to constitute conduct under Article 12.4 IWF ADP is contrived. At the time of the Appeal, before the completion of the IOC re-testing procedure, ten samples provided by Kazakh athletes have tested positive for prohibited substances. Moreover, of these athletes, seven were medal winners, five of whom with gold medals. The members affiliated with the WFRK were cheaters, enhancing their performance by ingesting prohibited steroids.

94. These weightlifters all tested positive for stanozolol, as well as oral turinabol or oxandrolone in some instances. The similarities in the prohibited substances ingested across the Kazakh athletes indicate, according to the IWF, that the athletes were part of centrally dictated program.

95. The WFRK was significantly negligent as it did not educate its athletes with respect to the fight against doping and did not implement any measure to fight doping amongst its members, or chose to ignore the doping methods adopted by its athletes.

96. The conduct of the Appellant may be passive or active; but in all cases the Appellant should bear a responsibility for the ADRVs committed by its member weightlifters. It is irrelevant for

the Appellant to point out that new officials are now in charge of managing weightlifting in Kazakhstan. As an association, the WFRK must bear responsibility for the past behaviour of its officials and/or athletes.

97. The IWF rejects any attempt by the WFRK to shift its responsibility onto the IWF. The samples of the Kazakh weightlifters were negative at the time of the 2008 Beijing and 2012 London Olympic Games solely due to the methods of detection being less effective than those today. In 2008 and 2012, the detection window for the steroids, when ingested in small doses, was only of a few days. Recently, new methods of detection are able to detect steroids for a much longer period. Until 2012, the Kazakh weightlifters knew that they would test negative if they stopped ingesting their prohibited substances a week before the event. However, the samples of the Kazakh weightlifters revealed the presence of steroids since long-term metabolites can now be detected.

98. The IWF submits that it bears no blame for the advancement of testing techniques applied by WADA-accredited laboratories since the 2008 and 2012 Olympic Games.

The legality of the Policy

99. The WFRK possibly faces a one-year suspension of most of its membership rights (subject to the right to nominate candidates for elections) due to the behaviour of its athletes during the 2008 Beijing and 2012 London Olympic Games. However, in this context, the position of athletes and the position of a national federation should be distinguished.

100. The athletes’ results will be disqualified by the IOC should the adverse analytical findings be confirmed. Additionally, the athletes will be sanctioned with a period of ineligibility by the IWF. The sanctions are the same regardless of whether the athletes were tested in 2016 or at the time of the 2008 or 2012 Olympic Games.

101. The IWF submits that its position is coherent and in line with its rules. Having been made aware that ten Kazakh weightlifters were doping during the last two Olympic Games, it was legitimate for it to consider that such an extreme situation brought the sport of weightlifting into disrepute. In particular the Olympic Games is the most prestigious and most popular competition for a sport like weightlifting, with the vast majority of countries only broadcasting weightlifting on this occasion. The IWF submits that the disqualification of ten Olympic athletes affiliated with the same federation effectively brought the sport of weightlifting into disrepute.

102. Consequently, the IWF submits that the Policy complies with the principle of legality as it is clearly based on Article 12.4 IWF ADP.

The compliance with the World-Anti Doping Code

103. In a letter of 3 November 2014, WADA confirmed to the IWF that the IWF ADP was in line with the 2015 WADC. In particular, the IWF ADP fully complies with Article 10 and 11 of the WADC relating to sanctions and are implemented in the anti-doping rules of international federations without any substantive changes.

104. The IWF submits that the Appellant’s arguments are ill-founded because the Appellant assumes that suspension from membership would be similar to a period of ineligibility imposed upon individuals.

105. An athlete cannot compete in any capacity at all, and cannot train with a team or use the facilities of a club or other member organisation of the IWF when the athlete is ineligible due to an ADRV. By contrast, a suspension from membership restricts the member’s ability to exercise its rights under Article 3.5 of the IWF Constitution.

106. The WFRK affiliated weightlifters can participate in the events which are not part of the IWF calendar should the WFRK be suspended from membership (subject to the right to nominate candidates for elections). For example, they can still participate in national competitions organised by the WFRK and they can still train in the official structures of the WFRK. Effectively, the athletes are still able to practice their sport at a national level.

107. The sanctions under the Policy cannot be compared with a period of ineligibility imposed on an individual due to an ADRV. Therefore, the Policy is compliant with the WADC.

Proportionality

108. The IWF submits that the vast majority of weightlifters selected by the WFRK to enter the 2008 Beijing and 2012 London Olympic Games were dopers. These athletes behaved in a manner which fundamentally contradicts the essence of sport and is wholly unacceptable to the IWF.

109. The IWF submits that the circumstances speak for themselves, and that a one-year suspension of membership (subject to the right to nominate candidates for elections) is proportionate. The IWF also refers to the CAS award 2016/A/4745 where it was found that the ban of Russian athletes from the Paralympic Games was appropriate and proportionate given the circumstances.

The fault or negligence of the Appellant

110. The IWF rejects the Appellant’s assertion that the Policy would be tantamount to strict liability.

111. The IWF argues that the WFRK cannot shift any blame onto its affiliated weightlifters. The Policy is based on a fault of the WFRK, whether active behaviour (endorsing a doping program), or passive conduct (failing to comply with the duty to educate the weightlifters and to fight against doping).

112. In both instances, the IWF submits that the WFRK bears a responsibility for being unable to eradicate a culture of doping amongst its affiliated athletes.

ii. Requests for Relief

113. The Respondent requests the Panel to rule that:

1) The Appeal filed by the Weightlifting Federation of the Republic of Kazakhstan is dismissed.

2) The International Weightlifting Federation is granted an award for costs.