Izzat Artykov v. International Olympic Committee (IOC)

VI. JURISDICTION

102. Article R47 of the Code provides as follows:

“An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body”.

1. Right to appeal

103. According to Article 12.2 in conjunction with Articles 12. 1 and 12.2 IOC ADR as well as Article 21 of the AR ADD which are the rules applicable to the present dispute (see below), the Athlete has the right to appeal the decision of the CAS ADD exclusively and directly to the permanent CAS.

104. Therefore, the CAS has jurisdiction to hear the present case. The Panel’s jurisdiction was not contested.

2. Position of the KNOC

105. The KNOC was designated as Second Respondent by the Athlete in his Appeal Brief dated 7 October 2016. In response, in its letter of 17 October 2016, the CAS Court Office advised the Appellant that “the Respondent(s) must be designated together with the Statement of Appeal or within the deadline provided for” in Article R49 of the Code. Since such deadline had expired earlier to the Appeal Brief the CAS Court Office stated that the designation of the KNOC as Respondent “shall be considered inadmissible”.

106. This clarification was not opposed by the Appellant. Nevertheless, at the hearing, procedural flaws committed by the KNOC were claimed and the Athlete consciously upheld his prayers for relief including for damages caused by the behaviour of the KNOC and for a contribution towards the legal costs to be paid by the KNOC.

107. However, for the sake of legal certainty, the Panel wishes to determine that the KNOC has no standing as a respondent in the present dispute before the Panel. The Appeal dated 21 August 2016 was lodged by using a form called “Application” issued by the CAS. In the box “Respondent” the Applicant designated the IOC exclusively. In the next box, under the heading of “Other parties, if any” and the explanation: “Since, depending on the circumstances, it may be necessary or desirable that the competent IF and/or NOC participate in the hearing, please specify their contact details”, the IWF and the KNOC were named. In the same box, under the question whether there are any athletes or teams who “may … be adversely affected by any decision of the CAS”, the Athlete had named a competitor and his NOC. It follows from this Application considered as a whole that the KNOC was not named as a formal respondent at that stage. In the following communications between the CAS Court Office and the Parties the case was referred to as “Artykov v. IOC”.

108. As the CAS Court Office stated on 17 October 2016, the designation of the KNOC as a formal respondent was late.

109. Furthermore, a participation of the KNOC as a respondent would exceed the jurisdiction of the Panel ratione personae. Though, pursuant to Article R57 of the Code, the Panel, in an appeals arbitration, has the full power to review the facts and the law, such scope of review is limited to the subject-matter and the parties of the dispute which lead to the appealed decision. Any appealed decision exclusively has legal effects towards the parties to that proceedings. The dispute before the CAS ADD was between the IOC and the Athlete and, therefore, the appealed decision rendered by the CAS ADD on 18 August 2016 pertains to the Athlete and the IOC, exclusively.

110. Finally, the IOC did not request the joinder of the KNOC nor did the latter requested its intervention in the present proceedings.

111. The Panel concludes from the above that the Appellant’s requests for relief as far as they concern the KNOC must be dismissed as exceeding the jurisdiction of the Panel.

3. Claim for damages

112. Though the Panel advised the Parties that the proceedings before it were between the Athlete and the IOC exclusively, the Appellant expressly upheld all of his prayers for relief submitted in his Appeal Brief including the claims for damages to be jointly paid by the IOC and the KNOC and submitted alleged procedural flaws committed by the KNOC.

113 The subject matter of alleged damages exceeds the jurisdiction of the Panel ratione materiae. Though the Panel has jurisdiction de novo by virtue of Article R57 of the Code, its appeal jurisdiction is limited to the extent of the jurisdiction allocated to the tribunal whose decision has to be reviewed.

114. The IOC Executive Board, pursuant to Rule 59.2.4 of the Olympic Charter, has delegated its power to decide upon any violation of the WADA Code arising from the occasion of the Olympic Games and thus established a tribunal of first instance for doping-related disputes occurring during the Olympic Games. This happened for the first time and specifically for the Rio Games and was promulgated by an IOC Circular Letter of 27 April 2016. Hence, the AR ADD in Article 1 provide:

“The CAS ADD shall be the first instance authority for doping-related matters, responsible for the conduct of the proceedings and the issuance of decisions when an alleged anti-doping rule violation has been asserted and referred to it under the IOC ADR”.

115. Article 8.2.2 IOC ADR provides:

“Pursuant to Rule 59.2.4 of the Olympic Charter, the IOC Executive Board delegates to the CAS Anti- Doping Division all powers which are necessary for it to take the measures and sanctions envisaged by these Rules including, in particular, Articles 9, 10.1, 10.2 and 11”.

Articles 9, 10.1, 10.2 and 11 IOC ADR provide for the automatic disqualification of individual results in the event of an in-competition test, the disqualification of all of the athlete’s individual results obtained in the Rio Games, the ineligibility for other competitions in the Rio Games and the exclusion from the Games as well as the withdrawal of the accreditation, and the consequences relevant for team sports.

116. Rule 59.2 of the Olympic Charter establishes the disciplinary power of the IOC Executive Board and limits the range of sanctions strictly to the sphere of the Olympic Games and, therefore, to what falls under the authority of the IOC:

“In the context of the Olympic Games, in the case of any violation of the Olympic Charter, of the World Anti- Doping Code, or of any other decision or applicable regulation issued by the IOC or any IF or NOC, including but not limited to the IOC Code of Ethics, or of any applicable public law or regulation, or in case of any form of misbehaviour:

2.1 with regard to individual competitors and teams: temporary or permanent ineligibility or exclusion from the Olympic Games, disqualification or withdrawal of accreditation; in the case of disqualification or exclusion, the medals and diplomas obtained in relation to the relevant infringement of the Olympic Charter shall be returned to the IOC. In addition, at the discretion of the IOC Executive Board, a competitor or a team may lose the benefit of any ranking obtained in relation to other events at the Olympic Games at which he or it was disqualified or excluded; in such case the medals and diplomas won be him or it shall be returned to the IOC Executive board;

2.2 …”.

The transfer of such power, envisaged in Rule 59.2.4 of the Olympic Charter, which was made towards the CAS ADD cannot extend to more powers than granted to the IOC Executive Board by virtue to Rule 59.2 of the Olympic Charter.

117. Rule 59.2 of the Olympic Charter, in conjunction with the IOC ADR and the AR ADD which implement the transfer of competence from the IOC Executive Board to the CAS ADD, display that the jurisdictional power of the CAS ADD including, in particular, the extent of the sanctions is confined to the range of the Olympic Games. This is mirrored in Article 8.2.2 IOC ADR. Accordingly, the CAS ADD, in its appealed decision, correctly confined itself to rule that the Athlete committed an ADRV, his result be disqualified, the Athlete be excluded from the Games, and his accreditation be withdrawn. Consequently, at the end of its Conclusion the CAS ADD states that the results management is referred to the IWF which means that the sanctions beyond the jurisdiction of the CAS ADD fall under the responsibility of the competent international federation. This clearly demonstrates the limits of the jurisdiction of the CAS ADD.

118. Accordingly, the Panel rules that the Appellant’s requests for relief with regard to damages must be dismissed as exceeding the Panel’s jurisdiction.

VII. ADMISSIBILITY

119. Article R49 of the Code provides as follows:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. After having consulted the parties, the Division President may refuse to entertain an appeal if it is manifestly late”.

120. By virtue of Articles 12.2, 12.2.1, 12.2.2 and 12.5 IOC ADR which are the rules applicable to the present dispute (see below), the Athlete is entitled to appeal from the decision of the CAS ADD to the permanent CAS within “twenty-one days from the date of the receipt of the decision by the appealing party”.

121. The Athlete’s “Application” dated “21 July/August 2016”, was received by the CAS Court Office on 22 August 2016 followed by a “Statement of Appeal” dated 29 August 2016. Therefore, the appeal against the decision rendered on 18 August 2016 was lodged within the time limit of twenty-one days irrespective of when the Athlete received the decision. The admissibility of the appeal was not challenged by the Parties.

VIII. APPLICABLE LAW

122. Article R58 of the Code provides as follows:

“The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

123. Pursuant to the introductory Scope of the IOC ADR,

“These Rules shall, without limitation apply automatically to (a) the IOC; (b) all Athletes entered in the Olympic Games Rio 2016 … Athletes entered in the Olympic Games Rio 2016 … are bound by these Rules as a condition of eligibility to participate in the Olympic Games Rio 2016”.

124. The Athlete was entered into the Rio Games by the KNOC and signed the Entry Form. This fact was expressly acknowledged by the Athlete and in the Application form; it was confirmed that the jurisdiction of the CAS was “based on the arbitration clause inserted in the official entry form for the O.G”.

125. The complete set of the Olympic regulations including, in particular, the Olympic Charter, the IOC ADR and, by reference, the AR ADD, therefore, constitute the applicable rules of law for the dispute before the Panel. The application of those rules which, pursuant to Article 17 AR ADD, had been applied by the CAS ADD in its appealed decision, was not contested by the Parties

IX. MERITS

126. The CAS ADD, in its decision of 18 August 2016, relied on the results of the B sample analysis which confirmed the findings of the A sample analysis. The B sample analysis was not challenged in substance or procedurally before the CAS ADD.

127. However, in this appeal proceedings, according to Article R57 of the Code, the Panel has the power to review the facts and the law de novo.

1. Presence of a prohibited substance, Article 2.1 IOC ADR

128. The analysis of the B sample which was conducted on 13 August 2016 revealed the presence of strychnine which is a stimulant and a specified substance prohibited in-competition under S6 of the 2016 WADA Prohibited List. Thus, the B sample analysis confirmed the results of the A sample analysis. No applicable TUE nor any apparent departure from the ISL were revealed nor were the results of both the A and B samples analysis challenged by the Appellant at any stage of the proceedings.

2. Proof of an Anti-Doping Rule Violation, Article 2.1.2 IOC ADR

129. According to Article 2.1.2 IOC ADR

“Sufficient proof of an anti-doping rule violation is established by any of the following: presence of a Prohibited Substance … in the Athlete’s A sample where the Athlete waives analysis of the B sample and the B sample is not analysed: or, where the Athlete’s B sample is analysed and the analysis of the B sample confirms the presence of the Prohibited Substance; or …”.

130. The Athlete submitted that, due to various procedural flaws, the B sample analysis was invalidated and, therefore, the ADRV was not proven. According to him, neither the first no the second condition set forth by Article 2.1.2 IOC ADR were met.

131. In support of his submission, the Athlete claims that he was not able to exercise his rights effectively and relies on seven arguments:

- first, the Athlete claims that he was not duly communicated the A sample results; Mr. Maratov, the Chef de Mission, did not do his best efforts to duly notify the Athlete of the AAF; instead, the Athlete, via his coach, was informed by Mr. Amankuloy who, at that time, had no power to act;

- second, Mr. Maratov had no authorization to sign the letter from the IOC, to request the B sample opening and to nominate Mr. Ergeshov, the Secretary General of the KNOC, and himself as representing the Athlete at the B sample opening;

- third, the Athlete was never communicated the proceedings before the CAS ADD;

- fourth, the Athlete was not “notified by any official means” of the opening of the B sample;

- fifth, the B sample opening happened without the Athlete or his duly appointed representative being present;

. sixth, the Athlete became aware of the results of the B sample analysis and the decision of the CAS ADD on 18 August 2016 only via media reports;

- seventh, the Athlete did not obtain official information about his situation after the decision and did not receive all relevant documents from the KNOC.

132. The common legal core of these arguments is the twofold question whether or not the Athlete was (1) duly notified of the various steps of the procedures, and (2) duly represented at the B sample opening. In any event, his non-participation before the CAS ADD (third argument above) is cured by these appeal proceedings. With respect to the seventh argument, the Panel concludes that this allegation is a matter of the internal relationship between the Athlete and the KNOC and, therefore, beyond the Panel’s jurisdiction.

a. Notification of the Athlete

133. Article 13.1 IOC ADR which pertains to, inter alia, the information concerning AAFs in general provides that the notice to the athletes

“shall occur as provided under Articles 7 and 13 of these Anti-Doping Rules”.

With respect to the Notification of an AAF by the IOC Article 7.2.4 IOC ADR provides

“that (the IOC) … shall notify (d) the Athlete; (e) the Athlete’s NOC … of the existence of the [AAF], and the essential details available …” and “the notification specified above under (d) to (g) shall be done in the manner set out in Article 13.1 …”.

Article 7.2.4 IOC ADR further stipulates:

“It shall be the responsibility of the NOC to notify the Athlete … [of the AAF]”.

134. Article 13.1 IOC ADR specifies technical and substantial aspects for the notification of an AAF which have no meaning for the present case. Article 13.5 IOC ADR, under the heading of “Deemed notifications”, applies to any notification to the athletes:

“Any notification under these Rules to an Athlete … may be accomplished by delivery of the notification to that NOC”.

“Notifications under these Rules to an NOC may be accomplished by delivery of the notification to either the President, or the Secretary General, or the chef de mission, or the deputy chef de mission or another representative of the NOC in question designated for that purpose”.

135. The Notification of the alleged ADRV issued by the IOC on 12 August 2016 was expressly addressed, inter alia, to “Izzat Artikov – Athlete” and “Tologon Maratov, Chef de Mission …” An

asterisk attached to the box where Mr. Maratov countersigned the Notification reads as follows:

“Best efforts will be exercised in order that this letter be countersigned by the athlete concerned. However, countersignature by the Chef de Mission of the athlete concerned shall be deemed to be equivalent to notice of the contents of such letter to the athlete concerned (Article 13.5 of the IOC Anti-Doping Rules)”.

136. The Notification in question informed not only about the AAF but also about the right to request the B sample be opened in the presence of the Athlete and/or his representative and that, in case of no such request, the Athlete will be deemed to have waived the right to have the B sample analysed. Furthermore, the Notification informed about the task and jurisdiction of the CAS ADD and that the IOC files an application with the CAS ADD and that the Athlete’s right to be heard will be exercised before the CAS ADD.

137. According to the undisputed facts, the Notification of the AAF including the information about the rights concerning the B sample analysis was addressed to both the Athlete and the Chef de Mission of the KNOC and was countersigned by the latter. Therefore, the Panel concludes that the IOC acted in full accordance with the rules applicable to notifications to the athletes, in general, and to the Notification to the Athlete, in particular. Furthermore, in the Notification itself, the IOC explained what follows from the IOC ADR, i.e. the obligation of the countersigned person, in the particular case the Chef de Mission, to exercise best efforts that the letter be countersigned by the Athlete and that the countersignature will be deemed to be equivalent to “the notice of the contents” of the letter.

138. The task to notify the athletes is, by virtue of the applicable rules, assigned to the NOCs. The “responsibility of the NOC to notify the Athlete” set forth in Article 7.2.4 IOC ADR which is mirrored in the Notification as the duty “to exercise best efforts” is the only obligation imposed upon the KNOC by virtue of the IOC ADR. The applicable rules, however, do not provide any requirement for how the athletes must be notified or contacted by their NOCs. Instead, throughout the Olympic Charter and related rules, in general, and the IOC ADR, in particular, it is provided that the IOC communicates not directly with the athletes rather than via the NOCs as intermediary and leaves the further steps to the responsible NOC. This is in line with the general provision set forth in sec. 4 of the Bye-law to Rules 27 and 28 of the Olympic Charter (of the 2015 version while Appellant referred to Rule 37 of the previous version of the Olympic Charter which, however, was identical) according to which, during the Olympic Games, the Athletes “are placed under the responsibility of the Chef de Mission” appointed by the NOC whose task it is “to liaise with the IOC”. According to Article 13.1.4 IOC ADR, it is another task of the NOC also to notify the NADO of the AAF which shows that the NOCs operate as intermediaries.

139. According to the rules, the obligation to exercise best efforts means to take any appropriate and possible action under the given circumstances of the case in order to forward the information to the athletes. There is no “official” means of communication between the KNOC and the Athlete required by the applicable rules. On 12 August 2016 and the following days, the Athlete was no longer present in Rio de Janeiro and it was not possible to inform him in persona and to get his countersignature. Especially, the applicable rules do not foresee

restrictions as to who within the KNOC has the authority to communicate with the athletes. Article 13.5 IOC ADR which designates the President, the Secretary General, the Chef or Deputy Chef de Mission or any other person designated by the NOC for the purpose of validly receiving notifications, only relates to a particular aspect of the external representation of the NOC towards the IOC, i.e. the receipt of a notification.

140. In the present case, shortly after the delivery of the IOC Notification to the KNOC, the Chef de Mission, the Secretary General and Mr. Amankulov met and took action to contact the Athlete. They used the channels of communication available to them. Mr. Amankulov, irrespective of whether he was an officially appointed member or even the head of the Kyrgyz delegation, contacted the Athlete’s coach via the National Weightlifting Federation while the Athlete himself was not reachable. The coach then informed the Athlete. The coach, Mr. Mainazanow, was in charge of the Athlete for many years and very close to him. He also acted as representative of the Athlete as shown by the fact that he signed the DCF of the Athlete as his “representative”.

141. The Athlete actually was informed about the AAF and the opportunity to have the B sample analysed on 12 August 2016. This fact was acknowledged throughout the proceedings and confirmed by the Athlete in his examination at the hearing and the evidence heard from the witnesses. The Athlete rather claims that the Chef de Mission did not do “his best efforts to duly notify the Athlete” and he, the Athlete, was “not duly notified by any official means”. However, he was unable to specify a legal basis to the effect that either the IOC must notify the Athlete directly or the KNOC contact him by the Secretary General or the Chef de Mission, exclusively or in whatever “official” way. As determined above, there is no such rule.

142. From the foregoing the Panel concludes that, with regard to the Notification, the IOC fully adhered to the applicable rules of the IOC ADR and did not violate any right the Athlete may have under the IOC ADR or other applicable rules.

b. Representation of the Athlete at the B sample opening

143. The Athlete submits that he gave no authorization to the Chef de Mission, Mr. Maratov, to sign the Notification of the IOC, to require the B sample opening, to nominate himself and the Secretary General, Mr. Ergeshov, as representatives of the Athlete and that Mr. Ergeshov eventually attended the B sample opening in the capacity of representing the Athlete. He concludes that he was not duly and validly represented at the B sample analysis which, therefore, was invalidated. According to the Athlete, neither Rule 37 par. 2 of the Olympic Charter on the role of the Chef de Mission and Article 13.5 IOC ADR on the notification nor any other rule granted the power to represent the Athlete.

144. The Athlete’s right to a B sample analysis and the consequences thereof are laid down in Article 7.2.5 to 7.2.8 IOC ADR. Article 7.2.5 IOC ADR provides for the right to request the opening of the B sample and Article 7.2.6.IOC ADR stipulates:

“The Athlete and/or his or her representative shall be allowed to be present at the analysis of the B Sample”.

This right is also provided for in Article 5.2.4.3.2.6 of the WADA International Standard Laboratories (ISL):

“The Athlete and/or his/her representative … shall be authorized to attend the “B” confirmation”.

145. With respect to the receiving and countersigning of the Notification, the Panel concludes that Mr. Maratov was authorized to do so by virtue of the applicable rules. Contrary to the Athlete’s submission, Mr. Maratov acting in his capacity as Chef de Mission did not need a particular authorization by the Athlete to sign the receipt of the Notification. He was authorized to receive the Notification on behalf of the KNOC by law, i.e. Article 13.5 IOC ADR.

146. With respect to the B sample opening, the Panel, based upon the facts established in the written submissions and confirmed by the evidence provided by the Athlete and the witnesses at the hearing, concludes that the Athlete was validly represented at the B sample opening. As determined above, the Athlete, when he was called by his coach by phone on 12 August 2016, was sufficiently notified and in fact informed about the AAF and the opportunity of and the conditions for the B sample analysis which was scheduled to take place in the morning of 13 August 2016.

147. The Athlete did know that the B sample would be analysed upon request by and with the presence of the Chef de Mission of the KNOC. In his Affidavit dated 4 October 2016, he described the situation as follows:

“My coach told me to calm down and wait for the situation to be clarified by the NOC. I was anxious but decided that it would be the best to do what my NOC advised me”.

At the hearing, the Athlete gave testimony and was interrogated by the Respondent and the Panel in order to explain that situation. He confirmed his statement in the Affidavit and, in response to the Panel’s question why he did not express disagreement, testified:

“I was not asked about the B sample. It was not a question to me”.

In reply to a question posed by the Panel, he declared that there was no threat or advice and he was “not intimated”.

148. At no stage of the proceedings including the hearing did the Athlete submit that, at the moment when he was informed about the Notification, he disagreed with the B sample to be analysed and be represented by officials from the KNOC nor did he explain what he would have required otherwise. Nor did his coach acting as his representative, in the course of the communications with the KNOC, express any disagreement on behalf of the Athlete.

149. The Panel concludes from those statements that the Athlete deliberately accepted the actions taken by the KNOC and, thus, at least implicitly or even openly authorized the opening of the B sample in the presence of Mr. Ergeshow, Secretary General of the KNOC, acting as his representative. The Panel finds that the Athlete was informed of his rights related to the B sample analysis and exercised these rights by accepting what the KNOC already had initiated to do.

c. Apparent authority of the KNOC during Olympic Games

150. Furthermore and independent of whether there was an authorization by the Athlete, the Panel, based on the rules governing the Olympic Games, finds that the IOC validly could have relied on the behaviour shown by the KNOC without violating the applicable regulations. In the absence of any information to the contrary, made known to the IOC by or on behalf of the Athlete, it appeared to the IOC that the B sample opening was requested by the Chef de Mission on behalf of the Athlete and the Secretary General of the KNOC acted as representative of the Athlete at the B sample opening. The IOC, acting as the competent Anti- Doping Organization (ADO), under the applicable rules of the IOC ADR and the Olympic Charter, could reasonably and lawfully understand and actually did understand the situation to the effect that the Athlete had requested the B sample opening and appointed Mrs. Maratov and Ergeshov to represent him at the B sample analysis.

151. The IOC was entitled to rely on the action taken by the Chef de Mission, Mr. Ergeshov, as representing the Athlete because, according to sec. 4 of the Bye-law to Rules 27 and 28 of the Olympic Charter,

“(d)uring the Olympic Games, the competitors … of each NOC are placed under the responsibility of a chef de mission appointed by his NOC and whose task … is to liaise with the IOC, the IFs and the OCOG”.

152. According to the Rules of the Olympic Charter, in general, and of the IOC ADR, in particular, during the Olympic Games, the NOCs act as a kind of intermediary between the IOC and the athletes. This is clearly demonstrated by the fact that the competitors are entered to the Olympic Games by their NOCs and that it is the “right” of the NOCs to “send competitors, team officials or other team personnel to the Olympic Games” according to Rules 44 and 27.7.2 of the Olympic Charter. There is a general principle that in relation to and during Olympic Games the competitors – and other personnel of the delegations as well - do not enter into direct contact with the IOC but are addressed through their respective NOC. This is reflected in the position and task of the Chef de Mission, as laid down in the Bye-law to Rules 27 and 28 of the Olympic Charter. For the purpose of the Olympic Games, the Chef de Mission not only performs the role of liaison with the IOC but also “the competitors [are] placed under (his) responsibility”.

153. However, this does not mean that the applicable rules grant to the Chefs de Mission a general power to represent the Athletes of their delegations. It may have been the general understanding of the IOC and the KNOC that sec. 4 of the Bye-law to Rules 27 and 28 of the Olympic Charter suggest that the Chef de Mission was not only the go-between but was authorized to represent the athletes under their “responsibility” vis-á-vis the IOC. Having in depth considered the interpretation of sec. 4 of the Bye-law to rules 27 and 28 of the Olympic Charter the Panel comes to the view that the terms of that provision are not sufficiently precise in order to provide to the NOCs the authority to serve as a general legal representative, or agent, of the athletes. This remains a matter of the legal regulations and other arrangements which govern the relationship between the athletes and their respective NOCs.

154. Nevertheless, under the specific circumstances during the Olympic Games and given the interaction of the IOC and NOCs, it is the Panel’s view, that, in the light of the applicable rules, in particular sec. 4 of the Bye-law to Rules 27 and 28 of the Olympic Charter, there is an apparent authority of the NOCs which, independent of the internal legal relations between the athletes and their respective NOCs, exclusively and formally applies in external terms visá-vis the IOC. This authority, however, solely applies when there is no will or intention to the contrary expressed by the athlete in question or any indication that the athlete does not agree. In the case before the Panel, there were no signs available to the IOC which would indicate that the Athlete was not represented by the Chef de Mission of the KNOC. In such situation, the IOC was entitled to rely on the actions taken by the KNOC and, in so proceeding, the IOC’s good faith was protected by the applicable rules. The IOC acted in conformity with the applicable rules.

155 The Panel finds that there is a clear delimitation of responsibilities between the IOC, on the one hand, and the NOCs, on the another hand, in the relations between NOCs and their athletes. According to the applicable Olympic rules, the IOC acts vis-à-vis the NOCs and, in case the athletes are not available in persona at the venue of the Olympic Games, the NOC must ensure the communication and coordination with the athletes. The IOC is not concerned by the internal rules of the NOCs and does not have any knowledge of and cannot be aware of the internal situation of any NOC participating in the Olympic Games. In the present case the IOC did what the applicable rules required to be done and what sec. 4 of the Bye-law to Rules 27 and 28 of the Olympic Charter allowed to do.

156. As a supporting argument, the Panel takes into account that the IOC when it relied on the actions taken by the KNOC proceeded to the presumed benefit of the Athlete because otherwise, assuming that the Athlete would not have requested the B sample analysis, the results of the A sample analysis would have provided sufficient proof of an ADRV. As a matter of fact, both the IOC and the KNOC, in the absence of any direction to the contrary issued by the Athlete, acted in the Athlete’s best interest.

157. Lastly, contrary to the Athlete’s allegation that he was treated by the IOC and the KNOC in a discretionary and unfair manner, his doping procedure was conducted like any other doping case during the 2016 Olympic Games according to common practice.

d. Adherence by the IOC to the rules

158. The Panel concludes from the above considerations that, firstly, the KNOC was entitled to receive the Notification on behalf of the Athlete; secondly, the Athlete was sufficiently informed about the AAF and his rights with regard to the B sample analysis; thirdly, he accepted what the KNOC was doing in his case and, hence, at least implicitly if not expressly, authorized the Chef de Mission to represent him at the B sample opening; and fourthly, the IOC, in the absence of any indication to the contrary, was entitled by law to rely on the behaviour of the KNOC. Under these circumstances, the IOC fully adhered to the applicable rules and did not violate the Athlete’s rights in relation to the B sample analysis and, thus, the results of that analysis are not invalidated. Therefore, since a valid B sample analysis requested on behalf of the Athlete and attended by a representative confirmed the findings of the A

sample, sufficient proof of an ADRV was established by the IOC as required by Article 2.1.2 IOC ADR.

159. The Panel wishes to emphasize that these conclusions take into consideration the particular situation present at the Olympic Games and do not necessarily apply to doping-related disputes, in general. The IOC ADR applicable at the Rio Games for the first time are intended to resolve the matter of alleged ADRVs by a specially established tribunal, external to the IOC, in an efficient and speedy manner in order to enable the IOC to award the medals to clean athletes at the place and time of the Games. Therefore, short deadlines, deemed notifications and representation of athletes by their respective Chefs de Mission are justified and this does not reflect any change to past practice of the IOC.

e. Case law invoked by the Athlete

160. The conclusion reached by the Panel is in line with the precedents invoked by the Appellant. The facts as established above clearly distinguish the case at hand from the case law referred to by the Appellant. In all of these judgements, it was emphasised that the right to request the B sample to be analysed and to be present or represented at the opening of the B sample is a “fundamental” one and must be strictly adhered to. Failing to respect these rights the B sample analysis is invalidated and the ADRV not sufficiently proven under Article 2.1.2 IOC ADR or other relevant ADR. However, in all of the precedential cases the ADO was in direct contact with the athletes, or with those responsible for the horse, and the athletes in fact opposed or did not openly request the B sample opening or were not informed about the B sample analysis and the ADOs did not fully adhere to the applicable rules.

161. In its Sheikh Hazzan Bin Sultan Bin Zayed decision of 25 May 2007, the Judicial Committee of the FEI, in the matter of a protest against the award ceremony at the Endurance World Championship, emphasised the “basic right” character of the rights related to the B sample but there are no precedential similarities with the case before the Panel. In the case of the Welsh Rugby Union v. Hopkins and Jones (National Anti-Doping Panel, Decision of 25 May 2010), the ADO was in direct contact with the athletes concerned and the dispute was about the interpretation of letters by the athletes who did not openly request the B sample opening but denied the charge of an ADRV.

162. In CAS 2002/A/385, the athlete was notified by the FIG of the AAF and informed of her rights in relation to the B sample. She requested the analysis of the B sample but neither the Athlete nor her National Federation were informed by the FIG of the date and time of the B sample analysis which confirmed the result of the A sample. The panel concluded that the National Federation and the athlete were deprived of the right to the B sample analysis. However, the panel left the question of the consequences thereof undecided because the ADRV was established by other evidence than the analysis of the samples.

163. In CAS 2003/A/477, a case of alleged horse-doping, the responsible for the horse, was informed about the AAF and, following various conversations between him and the FEA, the B sample was analysed and confirmed the results of the A sample. It was disputed and no clear evidence was available as to whether or not the responsible for the horse requested the

B sample opening. When he, at a later stage, eventually did request the opening of the B sample he learned that the B sample was analysed already. The single arbitrator, due to the lack of evidence to the contrary, found that the responsible for the horse did not request the B sample analysis and concluded that, therefore, the B sample had been analysed in the absence of and “without knowledge or authority” of the responsible for the horse. Therefore, the determination of an ADRV was set aside. This case is distinguished from the case before this Panel in that the responsible for the horse was in direct contact with the FEA at various occasions and the FEA was not able to evidence that he actually requested the B sample opening.

164. Also the judgement in CAS 2008/A/1607 does not establish an applicable precedent. In the course of a numerous e-mail traffic between the Athlete and the IBU, the athlete originally had requested the B sample opening but wanted to examine the documents related to the Asample previously. After the IBU had scheduled the B sample analysis for a particular date the athlete requested to postpone the opening because she wanted to be represented by an expert in biochemistry who was not available at the proposed date. She officially protested against the B sample opening which, nevertheless, was conducted as scheduled in the absence of the athlete or any representative. The panel found that the IBU, in breach of the applicable rules, failed to make reasonable attempts to accommodate with the athlete and, therefore, violated the athlete’s right. As a result, the results of the B sample analysis must not be accepted as proof of an ADRV and “the absence of any “B” Sample testing to corroborate the finding to the “A” Sample must result in the conclusion by us that the IBU has failed to establish an anti-doping rule violation on the part of the Appellant”.

165. In CAS 2010/A/2161, the panel, by reference to the judgements in CAS 2002/A/385, CAS 2008/A/1607 and CAS 2003/A/477, stated that “it is now established CAS jurisprudence that the athlete’s right to attend the opening and analysis of her B sample is fundamental and, if not respected, the B sample results must be disregarded”. More specifically, the panel ruled that this right applies irrespective of who requested the B sample analysis and even if the athlete had waived the right to the B sample analysis. Amongst other procedural mistakes committed be the IJF, the panel relied on the fact that the IJF, after the athlete had withdrawn her request for the B sample opening, requested the opening of the B sample on its own right but did not inform the athlete about the opening and her right to attend or be represented at the B sample opening. This was in clear breach of the applicable rules. This situation is dissimilar to the facts of the case before this Panel. Here, the IOC, in compliance with the rules, informed the Athlete, and he himself actually got the information about the B sample analysis and his related rights and could, according to the applicable rules, reasonably and lawfully assume that the Athlete was represented.

166. The CAS 2015/A/3977 award constitutes the most recent CAS judgement concerning the rights of the athletes related to the B sample analysis. Shortly before the Olympic Games London 2012 which were opened on 27 July 2012 and where the athlete was supposed to compete, the IAAF instructed the Lausanne laboratory to re-test the samples of the athlete collected in 2005 during the IAAF World Championships in Helsinki. The IAAF was reported by the laboratory of the AAF on 26 July 2012 and notified the AAF including the information about the rights related to the B sample analysis to the athlete via his National Federation on

30 July 2012 at 20.00 h London time. He was immediately contacted by phone at his home in Belarus at shortly after 22.00 h Belarus time. According to the notification he was granted two hours to request the B sample analysis and to appoint a representative to attend the B sample opening scheduled for the next morning to be conducted by the Lausanne laboratory. At that time the B sample would be opened and split into B1 and B2 aliquots the first of which was analysed on 30 July and confirmed the positive result of the A sample analysis. Eventually, the B2 sample was opened on 4 October 2012 in the presence of an expert appointed by the athlete.

167. The panel in CAS 2015/A/3977 considered two questions pivotal: whether, first, the athlete was actually represented at the B sample opening on 30 July 2012 and, second, did the athlete have a reasonable opportunity to be present or represented by an expert of his choosing at the B sample opening on 30 July 2012. Based upon the evidence before it, the panel found that the athlete accepted to be represented at the B sample opening on 30 July 2012 by the head of the Belarus WADA accredited laboratory who was present in Lausanne for another B sample opening. But the panel found that, in the circumstance of the case, he was not granted a reasonable opportunity to be present himself or to appoint an expert of his choice to represent him on 30 July 2012. The panel focussed on the following reasons: He was given only two hours-time to make a decision between 22.00 and midnight Belarus time. In being so strict IAAF violated the applicable rules. It was a re-test and the IAAF did not have to wait until 17 July 2012 to commission the re-analysis, nor was a fast result needed in the circumstances of the case. The IAAF received the laboratory report on 26 June 2012 and did not send out the notification before 30 July 2012 at 20.00 h London time with the B sample opening already scheduled for the next morning. Since the B sample opening can be made only once when the seal is broken the analysis of the B1 aliquot which was conducted in breach of the athlete’s rights cannot be remedied be the B2 analysis which took place in the presence of an expert appointed by the athlete.

168. The essential reasons of the panel are stated as follows in paras. 163 and 164 of the award:

“163. In the light of the above, the Athlete was required to make a decisive and possibly life-changing decision within two hours but without knowledge of all the facts, e.g. that he could reschedule the analysis of his B sample, the exact content of the IAAF Notification, what prohibited substance had been detected, etc”.

“164. In fact, the Athlete was only left with no ability to choose whether he wanted to attend in person the confirmatory procedure as, at the time of the notification, it was unreasonable to believe that he would be able to travel fromn Belarus to Lausanne in order to be present at the opening and splitting of the B sample no 691793. Likewise, with the limited time available, the Athlete was also not in a position to truly choose his own representative and had to rely on a person (i.e. Mr. Serguey Beliaev), who he did not know and who just happenend to go to the Lausanne laboratory on behalf of another athlete. Effectively the Athlete was acting under duress”.

169. Though some similarities with regard to the imminent Olympic Games can be found, in CAS 2015/A/3977 it was about a re-test matter and, as the athlete withdrew from competing in the London Olympic Games prior to the Games, there was no such urgency in respect of the scheduling of the B sample analysis which would justify the two-hour time-limit while, in the

case before this Panel, the rewarding of medals was at stake. Furthermore, the athlete was in direct communication with the IAAF.

170. The dispute before the Panel is distinguished from the cases invoked by Appellant mainly in three aspects: first, the Athlete was not in direct communication with the IOC as relevant ADO; second, the IOC followed the applicable rules and, therefore, did not violate any rights of the Athlete arising from those rules; and, third and most importantly, the Athlete, as a matter of fact, decided to accept what the KNOC already did and intended to do in his case and, therefore, implicitly or even expressly authorized the Chef de Mission and other representatives of the KNOC to request the opening of the B sample and to represent him at that occasion. As a result, the Panel, taking into account the established jurisprudence of the CAS as followed by other tribunals, finds no reason to consider the B sample analysis invalidated and, therefore, to be disregarded.

171. As already found above, the Panel rules that the Athlete committed an ADRV in the form of a presence-violation under Article 2.1 IOC ADR.

X. CONSEQUENCES

172. Pursuant to Article 9 IOC ADR, the results the Athlete has obtained in the Men’s 69kg Weightlifting competition on 9 August 2016 are disqualified with all resulting consequences, including but not limited to the forfeiture of the Bronze medal, points and prizes.

173. All other results obtained by the Athlete at the Rio Games, if any, are disqualified with all consequences including forfeiture of any medals, points, and prizes as provided for by virtue of Article 10.1 IOC ADR.

174. According to Article 10.2.1 IOC ADR, the Athlete was to have been declared ineligible to compete in further competitions at the Rio Games in which he had not yet participated. This consequence has been correctly implemented by the CAS ADD in determining that the Athlete was excluded from the Rio Games and his accreditation withdrawn as provided for in Rule 59.2.1 of the Olympic Charter. This particular power was delegated by the IOC Executive Board to the CAS ADD as provided for in Rule 59.2.4 of the Olympic Charter and as stated in the Preamble of the AR ADD.

175. Article 10. 2. 2 IOC ADR provides and, hence, the Panel rules that the responsibility for the results management and further sanction beyond the Rio Games are referred to the International Weightlifting Federation.

XI. CONCLUSION

176. Having thoroughly considered the submissions of the Parties and the written and oral testimonies as well as the explanations provided by the Athlete at the hearing, the Panel finds that the Respondent has established to the comfortable satisfaction of the Panel that the Athlete committed an ADRV in the form of the presence of a prohibited substance under

Article 2.1 IOC ADR. The valid B sample analysis which revealed the presence of strychnine in the Athlete’s body has confirmed the results of the A sample analysis. Strychnine is a prohibited substance listed under S6 of the 2016 WADA Prohibited List. Therefore, according to Articled 2.1.2 IOC ADR the IOC has sufficiently established the ADRV.

177. Therefore, the Panel comes to the conclusion that the Athlete committed an ADRV on 9 August 2016 at the Rio Games and the award of the CAS Anti-Doping Division rendered on 18 August 2016 is upheld.