Belarus Canoe Association (BCA), Raman Piatrushenka, Vitaliy Bialko, Aleh Yurenia, Pavel Miadzvedzeu, Vadzim Makhneu, Taras Valko, Aliaksandr Liapeshka, Andrei Tsarykovich, Ihar Baicheuski, Ivan Tsuranau, Dzmitry Khilchanka, Spartak Bazhkou, Mikita Borykau, Stanislau Daineka, Dzimtry Tratsiakou, Aliaksandr Bahdanovich, Andrei Bahdanovich, Dzianis Harazha, Dzmitry Rabchanka, Dzmitry Vaitsishkin, Artsem Kozyr, Maksim Piatrou, Hleb Saladukha, Dzianis Makhlai, Aliaksandr Vauchetski, Uladzimir Shantarovich, Mikalai Banko, Ihar Radomski, Henadzi Halitski, Elena Kallaur, Aliaksei Roik v. International Canoe Federation (ICF)

II. FACTUAL BACKGROUND

3. Below is a summary of the relevant facts and allegations based on the parties’ written submissions, pleadings and evidence adduced at the hearing. Additional facts and allegations found in the parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, it refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning.

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

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

6. On 20 May 2016, the Belarusian team participated in the World Cup Stage in Germany. No police raid took place there.

7. On 15 June 2016, the BCA updated the ICF on the cases of the five athletes found with meldonium and wrote as follows:

“All our athletes have been informed by the National Anti-Doping Organization (NADA Belarus) and the Belarus Canoe Association of the inclusion of Meldonium on the 2016 Prohibited List.

As you probably know, the National Anti-Doping Agency of France (AFLD-NADO) and the “Agence Française de lutte contre le dopage Paris Lab” have tested in March and April this year the Belarus Canoe Sprint Team members.

In urine samples, taking [sic] out of competition in France, the Adverse Analytical Findings (AAF) were detected for the substance of meldonium (8 [sic] 4. Hormone and Metabolic Modulators) and this is to be considered as an anti-doping rules violation (ADRV).

In accordance with the Article 14.1.2 of the World Anti-Doping Code AFLD-NADO (the Anti-Doping Organization with results management responsibility) notified the NADA Belarus (the Athlete’s National Anti-Doping Organization) of the assertion of an anti-doping rule violation simultaneously with the notice to the athletes.

All five athletes established that they used Meldonium prior to 1 January 2016. As it came to our knowledge, the concentration of meldonium in four samples causing such pre-investigation anti-doping check is below 1000 ng/ml, which means that results management may be stayed in accordance with NOTICE - MELDONIUM statement issued by WADA.

The NADA Belarus informed our four athletes and the Belarus Canoe Association about the Result Management Authority (AFLD-NADO) decision as follows: their provisional suspensions are lifted.

However the athletes were informed that if it is later established based on the results of the excretion scientific studies that they did take the drug on or after 1 January 2016, (i) all the results during the period in which the provisional suspension is lifted may be cancelled and prizes returned , and (ii) the ineligibility period ultimately imposed is likely to start on the date of the decision (with a credit for the provisional suspension already served).

Best of our knowledge, one sample is between 1000 ng/ml and 15000 ng/ml and result manageme nt shall proceed. The Belarus Canoe Association suspended that athlete from any competitions.

Due to the fact that WADA issued a Notice to Stakeholders regarding meldonium as well as guidance regarding the results management and adjudication process NADA Belarus with assistance of the Belarus Canoe Association conducts its own investigation regarding to meldonium cases.

[…]”.

8. On 30 June 2016, WADA released a Notice on meldonium to its stakeholders concerning cases where athletes claim that the substance was taken before 1 January 2016, when the 2016 WADA Prohibited List including meldonium entered into force. According to this Notice, for samples taken on or after 1 March 2016 and showing a urinary concentration of meldonium below 1000 ng/ml, in the absence of other evidence of use of meldonium on or after 1 January 2016, a finding of no fault could be made.

9. As to disqualification of results, WADA in this guidance explained as follows:

“given the results of the studies, it cannot be excluded that, at very low dosages, as indicated in the above table, the use of meldonium could have occurred before the Prohibited List was published by WADA on 29 September 2015. In these circumstances, WADA would consider it acceptable that the athlete’s results not be disqualified or be reinstated in the absence of any evidence that meldonium was used after 29 September 2015”.

10. On 11 July 2016, the ICF wrote to the BCA as follows:

“WADA has recently released information on acceptable levels of meldonium for athletes on 30th June 2016. In most cases athletes would be deemed “clean” under 1.0 µg/ml, except where other evidence could be applied to these cases.

The ICF is holding an emergency Executive Board Meeting on Wednesday 13 th July regarding doping issues with Belarus. Your case will be discussed and analysed at this meeting. According to the ICF Anti-Doping rules 2015, misleading, hiding or being found to breach the rules of the Sport can lead to sanctions (e.g. athletes, NFs, officials and financial penalties).

The French Minister of Justice and the Tribunal of Agen have this week provided us with concrete information and indications that your athletes and officials have offences regarding doping irregularities, misuse of medication, possession of substances and equipment, application of medical substances and administration of forbidden methods in the frame of sport performance.

This is now a criminal case in France and the ICF is a part of this case. The ICF now proceeds with its own investigation and we give you 24 hours (until Tuesday night) to respond to the allegation in regard to contravening the ICF anti-doping rules as outlined in the French case.

When I discussed the topic of your athletes at the training camp in France and the seriousness of the situation, you provided no information regarding the additional issues that have been outlined to us by the French police which could lead to sanctions of your federation, officials and athletes.

It is important that your Federation can provide its point of view before the ICF makes any decision at the Executive Committee meeting Wednesday 13th July”.

11. On 12 July 2016, the BCA explained to the ICF as follows:

“In the frames of the ICF Anti-Doping Control Rules, the Belarus Canoe Association continues to pursue strongly its Zero tolerance policy against doping issues.

During the training camp on April 12, 2016 in Le Temple-sur-Lot NADA representatives of France carried out urine sampling to 17 athletes of the national canoe team for anti-doping control purposes. At the same time on April 11, 2016 WADA published official information with provisional data on allowable concentration of Meldonium in the body of athletes.

Biomaterial sampling procedure was carried out under strong pressure by the representatives of the special police and gendarmerie of France. At the same time the search of place of accommodation and inspection of personal belongings of athletes and coaches was held. A survey of athletes and officials was carried out usi ng methods of psychological pressure. During the search, the laptops were confiscated, returned in a damaged condition with the loss of confidential information, including the training program of athletes for the Olympic Games in Rio de Janeiro.

Finally, the team members were not accused for alleged offenses. So far, the French party did not provide any legal or other procedural decisions or other information on the situation, and did not cause any members of the team to carry out any action. In addition, we were not given the opportunity to use the legal defense, i.e., denied the legal right to be heard.

Moreover, after the above-mentioned incident, on May 20 - 22, 2016, the Belarusian team participated at the World Cup Stage in Duisburg (Germany), without any questions from the law enforcement authorities.

In view of these circumstances, the Belarusian side rightly believed that the incident was settled. Especially because the French party represented by the France’s Ambassador to Belarus has repeatedly apologized in connection with the incident.

Nevertheless, having analysed the results of the internal investigation conducted by the National Federation in Minsk with members of the national team, we declare the following:

1. We may assume that certain medicines could have been unintentionally imported into the customs territory of France without corresponding registration in view of the lack of reliable information on the existing rules of their customs clearance. Undoubtedly, it can be regarded as a violation of customs rules.

2. They found and seized Mildranat (16 capsules) from the coach Henadzi Halitski 1 and the coach Leonid Shkumatov - Asparkam (potassium and magnesium salts). Both medicines have been prescribed by a doctor in the Republic of Belarus in connection with existing diseases of the cardiovascular system (recipes attached). After providing explanations and doctor’s health prescriptions on the use of these pills, coaches were released without presenting any claims and accusations from the French authorities.

3. The use of the found by the French NADA, but not prohibited by the Anti-Doping legislation, medications (aktovegin, asparkam, cardonat, kokarnit, reamberin, cytoflavin, ferrum-lek) are foreseen for the treatment and prevention of pathological conditions and the quantity of medications is calculated by the doctor of the national team taking into account the duration of the training camp, the results of dynamic medical observation, state of health of team members (mainly coaches), and only for emergency medical care.

4. Transfusion systems were purchased and intended only for emergency treatment of critical pathological conditions (dehydration, heart disease, and others.). These transfusion systems are not intended for transfusion of blood and its derivatives, or other means.

5. Not prohibited for use Aktovegin, which was found in athletes Volha Khudenka, is assigned by a doctor for therapeutic purposes to treat sports over-strain (muscles, heart and others). On April, 8, 2016 Volha Khudenka was officially diagnosed a myocardial dystrophy physical overexertion by the team doctor Elena Kallaur. The diagnose is also noted in the individual athlete’s medical card. The amount used for the treatment did not exceed a volume of 50 ml per day (maximum therapeutic dose set by the Aktovegin manufacturer, 20-50 ml).

6. Medical products containing iron - Fe (like found “Ferrum Lek”) are the non-prohibited WADA medications in the treatment of iron deficiency for professional athletes, described by FIMS as the female athlete triad. The other seized drugs are also not prohibited by anti-doping legislation, as there is a written conclusion of the Republican Sport Medicine Center (enclosed).

7. There was no any written information addressed to the National Federation from the French NADA and other organizations on any violations of anti-doping regulations by athletes. The athletes of the national team did not use prohibited by the anti-doping legislation substances and prohibited methods.

Also we would like to note that athletes of the national canoe team actively participate in educational programs of Belarus NADA by WADA program “Clean Sport”.

From our side, in the frameworks of “clean” athletes support, we are ready to impose appropriate punishment to athletes or officials, whose guilt in the anti-doping rules violation will be proved based on lawful court decision about which we still do not know.

Moreover, our efforts to clarify the situation through official channels from the French side have not been successful.

According to information received by our lawyer in Agen court, at the moment, there are no any court decisions made on any assumed violations of French law. Nobody so far was prosecuted. Accordingly, investigations

1 Coach of the Belarus’ women’s team.

assumptions have no power without judicial confirmation and cannot be the basis for making by someone else, including the International Federation of the decisions.

Once again, the Belarus Canoe Association express [sic] its intention to support doping free sport and the clean athletes”.

12. On 12 July 2016, a Belarusian delegation headed by the Secretary General of the Belarusian Olympic Committee and the Secretary General of the BCA together with a lawyer arrived in Krakow for the hearing by the ICF Executive Committee.

13. On 13 July 2016, a hearing before the ICF took place and was attended by the BCA.

14. The BCA disclosed that the BCA Secretary General, Mr. Siarei Shablyka, was in sms conta ct with the ICF Secretary General, Mr. Simon Toulson, from 12 July onwards until 16 July 2016. The sms recorded that the Belarusian delegation was waiting for the ICF Executive Committee decision in Krakow until 15 July 2016. The ICF Secretary General, hav ing been informed that the BCA would appeal the decision to CAS, involved a lawyer for the drafting of the decision and stated in the last reported sms:

“Ok then as you will be aware with these threats we will request even stronger penalties should we win or find more evidence. …”.

15. On 15 July 2016, the ICF informed the BCA of the ICF Executive Committee decision following the hearing of 13 July 2016 (“Appealed Decision”), which states as follows:

The ICF Executive Committee concludes that for the Belarus athletes:

Under 2.1.1 of the ICF Anti-doping rules states “It is each athlete’s personal duty to ensure that no prohibited substance enters his or her body”.

Proof of Meldonium in the analysis of samples collected from the athletes were consistent with the u se of the medication and a banned substance by WADA since 1 January 2016.

The French police recovered tablets of Meldonium (Midranat) in the possession of the Belarus contingent. Under article 2.6.2 of the ICF Anti-Doping Rules this constitutes an anti-doping rule violation.

The Belarus National Federation in a hearing before the ICF Executive Committee on 13 th July 2016 stated that all Meldonium had been destroyed on 29 th August 2015 and all athletes had been told not to take this drug after 1 January 2016. The Belarus NF gave a copy of a letter stating the destruction of the medication to the ICF. However, they could not answer why one of their athletes had over 1.0µg/ml in his body from the tests conducted and the response to why Meldonium tablets were confiscated by the French police at the training camp were unsatisfactorily answered.

From the training camp there was also the confiscation of transfusion equipment, needles and medical equipment of the same design that would be used for blood doping. Again under article 2.6.2 of the ICF Anti-doping Rules the possession of prohibited methods without a TUE constitutes a violation of the anti -doping rules of the ICF.

In addition, various drugs such as Actovegin, in solution were located which are restricted under WADA rules in terms of their application in humans undertaking sport activities.

Other confiscated such as Cytoflavan at the training camp in France also indicate the intent or actual doping processes being carried out by these athletes.

Further release of information from the French Police is due in the coming days and the ICF is working with the authorities to process this evidence.

The ICF Executive Committee elected to use Article 12.3 of the ICF Anti-doping rules to “take additional disciplinary action against National Federations with respect to recognition, the eligibility of its officials and athletes to participate in international events”.

Four or more violations of the ICF Anti-Doping rules (Article 12) are committed by athletes from Belarus within a 12 month period and in fact at one defined training period which is a serious breach of the ICF rules.

The ICF Executive Committee affirms that they are satisfied that there is enough evidence and proof to issue sanctions against the athletes, coaches and entourage of the Belarus delegation.

The ICF Executive Committee imposes a one year suspension of the SENIOR men’s Canoe and Kayak teams including coaches, medical staff and entourage for all international competitions. The starting date for this sanction would be 13 July 2016.

All Olympic athlete and boat places won by Belarus Senior Men’s team for the Olympic Games in 2016 will be redistributed by the ICF.

The Belarus Senior Women’s team are free to compete as so far insufficient evidence against them has been found. Should new information or evidence come to light then further sanctions could be imposed by the ICF.

The ICF Executive Committee found so far no evidence to suggest the National Federation was implicated in the actual doping activities or the intent to dope during the training camp, therefore, no action is taken against the National Federation administration or management.

The ICF requires that the Belarus National Federation prove that their athletes undergo Anti -Doping education in the next 12 months and also that doping tests are undertaken at least 3 times before they compete at International Competitions.

However, as the French Ministry of Justice has opened a criminal case and this hearing is likely to last several months the ICF reserves the right to impose further sanctions on the National federation, athletes or entourage involved.

The ICF Executive Committee rendered this judgement with impartiality and made the decision based on all the evidence that was available at the time”.

III. PROCEEDINGS BEFORE THE COURT OF A RBITRATION FOR SPORT

16. On 18 July 2016, the Appellants filed a Statement of Appeal and declared that the statement of appeal was to be considered as their appeal brief. The Appellants requested the matter to be expedited. The Appellants applied for a stay of the Appealed Decision.

17. On 20 July 2016, the Respondent objected to the expedited procedure, because the deadline for entering athletes for the Rio Olympic Games had already expired and because of the involvement of French authorities in the case.

18. On 20 July 2016, the Respondent submitted its Answer to a request for a stay.

19. On 21 July 2016, the Appellants submitted further evidence which was commented on by the Respondent on 22 July 2016.

20. On 22 July 2016, the President of the CAS Appeals Arbitration Division dismissed the Request for a stay of the Appealed Decision, because the Appellants only referred to the criterion of irreparable harm, but not also to the criteria of the likelihood of success of the appeal and of the balance of interests.

21. On 9 August 2016, the Respondent was granted an extension of the deadline to file its answer by five days.

22. On 15 August 2016, the Respondent filed its answer.

23. On 14 September 2016, the parties were informed that the Panel appointed by the President of the CAS Appeals Arbitration Division to decide the appeal was as follows:

- Prof. Dr. Michael Geistlinger, as President

- Mr. Romano F. Subiotto Q.C. nominated by the Appellants, and Prof. Dr. Martin Schimke, nominated by the Respondent, as arbitrators.

24. On 7 November 2016, a hearing took place at the CAS Court office in Lausanne. In addition to Mr. Fabien Cagneux, Counsel to the CAS, the following persons were present in person:

For the Appellants:

Mr. Uladzimir Shantarovich, Appellant;

Mr. Artsem Kozyr, Appellant;

Mr. Aliaksandr Bahdanovich, Appellant;

Mr. Maksim Piatrou, Appellant;

Mr. Jean-Marc Reymond, Counsel;

Mrs. Delphine Deschenaux-Rochat, Counsel;

Mr. Nicholas Petroff, interpreter;

Mr. Anatol Kotau, Representative of BCA;

Mr. Sergei Beliaev, expert on anti-doping issues;

Dr. Alexander Bulgak, expert cardiologist.

For the Respondent:

Mr. Simon Toulson, ICF Secretary General;

Mr. Jorge Ibarrola, Counsel;

Mr. Claude Ramoni, Counsel;

Mr. Nel Jan, Intern at Counsel as observer.

25. The Panel heard evidence of the following persons in order of appearance:

Mrs. Elena Kallaur, BCA team doctor, witness called by the Respondent; Mrs. Natalia Shaban, doctor of the Centre of Sport Medicine of the Ministry of Health of the Republic of Belarus, witness called by the Respondent; Mr. Henadzi Halitski, coach of the BCA women’s team, witness called by the Appellants and the Respondent; Prof. Dr. Ivars Kalvins, Chemist who invented meldonium, expert witness called by the Appellants, by video- and experts’ conference;

Mrs. Irene Mazzoni, WADA, expert witness on meldonium called by the Respondent, by video conference;

Prof. Dr. Dan McKenzie, chair of the ICF Anti-Doping Committee, expert witness on prohibited methods called by the Respondent, by video conference.

26. All witnesses were invited by the President of the Panel to tell the truth subject to the sanctions of perjury. Both parties and the Panel had the opportunity to examine and cross-examine the witnesses.

27. Before the hearing was concluded, both parties expressly stated that they did not have any objection with the procedure adopted by the Panel and that their right to be heard had been respected.

IV. SUBMISSIONS OF THE PARTIES

28. The Appellants’ submissions, in essence, may be summarized as follows:

(1) Article 42 ICF Statutes defines which disciplinary measures can be imposed by the ICF Executive Committee. These are a caution, a reprimand, and exclusion of some or all members of a National Federation from participation in international and ICF competitions. Suspension falls within the competence of the ICF Board of Directors.

(i) The Appealed Decision imposes “a one year suspension of the Senior men’s Canoe and Kayak teams”. The wording and the legal nature of the measure imposed point at a suspension.

(ii) Due to the fact that the ICF Statutes and the ICF Anti-doping Rules (“ICF ADR”) do not define the terms “suspension” and “exclusion”, the Appellants refer to the Oxford dictionary which calls a “suspension” “a temporary prevention from continuing or being in force or effect” and “exclusion” the “removal from something”. Thus, whether a measure is restricted by time (“suspension”) or by object (“exclusion from particular competitions”) is decisive.

(iii) In the case at hand, a “suspension” was imposed. Such disciplinary measure did not fall within the competence of the ICF Executive Committee.

(2) If CAS, nevertheless, acknowledges the competence of the ICF Executive Committee as having had the authority to impose the disciplinary measure, the ICF Executive Committee has exceeded its authority under Article 12 ICF ADR.

(i) Reading Article 12.1 and Article 12.3 ICF ADR together, Article 12.1 ICF ADR assigns to the ICF Executive Committee the competence to withhold some or all funding or other non-financial support, whereas Article 12.3 by only referring to “ICF” in general under the estoppel and in dubio contra stipulatorem principles must be understood as assigning to the supreme ICF body, which is the Congress, the competence to take additional disciplinary action against National Federations,

(ii) If CAS, nevertheless, recognizes that the ICF Executive Committee was competent to impose a measure like in the Appealed Decision, the ICF Executive Committee did not have legal grounds to take the Appealed Decision.

(a) Whereas Article 12 ICF ADR entitles the Respondent to take disciplinary actions against National Federations, National Federations’ officials or affiliated athletes, the Respondent imposed a one year suspension on the BCA “Senior men’s Canoe and Kayak teams including coaches, medical staff and entourage”. This contradicts the principle of legality, because of the following reasons:

(b) The ICF ADR are based on the WADA Code. It follows from the signatories’ obligations under Article 23.4 WADA Code for being Code compliant that they accept and implement the sanctions on individuals (Article 10) and consequences

to teams (Article 11) without substantive change (Article 23.2 WADA Code). As to sporting bodies under the ICF authority, the Appellants refer to Article 12 WADA Code.

(c) It follows from the wording of the Appealed Decision that the ICF Executive Committee has not imposed sanctions against the BCA, because there was no evidence that the BCA was implicated in the actual doping activities.

(d) Besides, the text of Article 12.3 ICF ADR, calling the disciplinary action against a National Federation “additional”, must be understood as additional to the measure comprised in Articles 12.1 - 12.2 ICF ADR.

(e) There were no measures as stipulated by Articles 12.1 - 12.2 ICF ADR taken against the BCA.

(f) The measures were imposed on the senior men’s canoe and kayak teams, but based on the ICF ADR’ and the WADA Code’s understanding, Canoe and Kayak sport is not a team sport. Thus, sanctions with regard to teams cannot be imposed on the BCA’s canoe and kayak teams. However, the measures imposed embrace the teams as such and were not taken in relation to the individual athletes. The measures do not comply with the principle of legality.

(g) As to the understanding of the principle of legality, the Appellants refer to CAS offences and sanctions must be clearly and previously defined by law. The sanctions must be based on proper rules and regulations and must be predictable. There must be a clear connection between the incriminated behavior and the sanction. The respective provision must be interpreted narrowly.

(h) Even if CAS finds that the Appealed Decision was made in accordance with the WADA Code, the principle of legality was violated, because Article 12.3 ICF ADR is not applicable to athletes.

(i) The ICF Executive Committee fails to specify to which accurate paragraph of Article 12.3 ICF ADR it refers to. None of the provisions of Articles 12.3, 12.3.1. - 12.3.3 entitles the ICF Executive Committee to impose a one year suspension on the BCA’s senior men’s canoe and kayak teams.

(j) The text of the Appealed Decision seems to refer to Article 12.3.1 ICF ADR, but this provision only allows to ban officials and not athletes. This view is supported by the different wording of Articles 12.3.1 and 12.3 ICF ADR.

(k) The use of the term “official” in the WADA Code makes it clear that the terms “officials” and “Athletes” do not coincide or overlap.

(l) If the Panel finds that it is not clear enough, that the terms do not coincide or overlap, it has to apply the contra proferentem principle. As to the understanding of

this principle, the Appellants refer to CAS 2013/A/3274, where the panel based on previous awards held that “an unclear wording is to be interpreted against the author of the wording”.

(3) The Appealed Decision violated the procedural rights of the athletes:

(i) It violated the procedural norms of the ICF ADR and the WADA Code by:

(a) The proof of individual anti-doping rule violations did not comply with the provisions in the above-mentioned sets of rules as to testing, investigation, analysis of samples, results management and right to a fair hearing.

(b) There were no hearings of the ICF Anti-Doping Control Panel held, which should have dealt with these individual anti-doping rule violations. The decision of the ICF Executive Committee instead was in fact done by the ICF Secretary General together with lawyers and not transparently for the Appellants. The Appellants were not supplied with clear explanations.

(c) The Appealed Decision was not based on proper methods of establishing facts and presumptions, laid down by Article 3.2 ICF ADR, but on vague information. In particular, there were no reliable means, no court decision, and no evidence provided by the French police or courts. Nine athletes sanctioned were not even present at the training camp in France.

(ii) The Appealed Decision violated basic procedural principles:

(a) The right to be heard was violated, because only the BCA was invited to the hearing before the ICF Executive Committee, but no athletes.

(b) Besides, as to the BCA, it could not consult the case files and was not provided with any of the documents the Appealed Decision was based upon. It only received a press article in “Le Monde” from May 2016, which even contained wrong information (two positive tests). Thus, Article 53 of the Swiss Civil Code was violated.

(c) The Appellants refer to CAS 2012/A/2740, CAS 91/53 and CAS 2001/A/317 in order to underline the importance of the right to be heard as an element of natural justice and due process, which has to be respected by all sport entities also during their internal proceedings.

(d) Based on CAS 2009/A/1781, the violation of this right cannot be considered cured by the CAS proceedings since the athletes of the BCA’s senior men’s canoe and kayak teams as a consequence of the Appealed Decision could not take part at the Rio Olympic Games which started on 5 August 2016.

(iii) The Appealed Decision violated the principle of equal treatment and proportionality, both recognized by CAS with reference to CAS 2013/A/3297 and

CAS 2014/A/3793. In its press release of 16 July 2016, the ICF mentions that four Kazakhstan athletes were banned for two (2) years after submitting tests for an oral anabolic steroid. The principle of equal treatment was violated, because the BCA’s athletes were banned without proof or evidence or established court decision of France, whereas, the anti-doping rule violations of the Kazakh athletes were corroborated by positive Sample tests. The principle of proportionality was violated, because in the Kazakhstan case only the athletes were banned while in the Belarusian case also clean athletes, coaches, medical staff and entourage were banned.

(iv) The Appealed Decision was made in violation of the principles of good faith and venire contra factum proprium, which are binding under Swiss law as recognized by CAS in CAS 2008/O/1455 with reference to previous jurisprudence. After the training camp in France, the BCA team competed at the World Cup Stage in Duisburg without any objections from the Respondent’s side. Furthermore it is still not clear, why the Appealed Decision was taken less than a month before the start of the Rio Olympic Games, given the fact that irrespective of the letter of notification, the Appealed Decision itself indicated that evidence was only to arrive from the French authorities “in the forthcoming days”. No evidence was presented to the Appellants and none of the athletes was summoned to appear before French courts.

29. The Appellants submit the following Prayers for Relief:

“1) to uphold the appeal filed by the Belarusian Association;

2) to annul and set aside the Appealed decision issued by International Canoe Federation Executive Committee on 13-15 July 2016 on a 1 (one) year suspension of the Belarusian Senior men’s Canoe and Kayak team including coaches, medical staff and entourage for all international competitions;

3) to order the International Canoe Federation to bear all costs incurred with the present appeal procedure”.

30. The Respondent’s submissions may be summarized as follows:

(1) The ICF Executive Committee was competent to render the Appealed Decision based on Article 42 (c) ICF Statutes (Exclusion of some or all Members of a National Federation from participation in the international competitions and ICF Competitions). The fact that the ICF Executive Committee used the word “suspension” instead of “exclusion” is not decisive and does not change the nature of the Appealed Decision.

(i) Focus must not be on words used but on the effect of the Appealed Decision.

(ii) The effect is not the suspension/exclusion/prohibition from all canoeing activities of individual members of the BCA in their entirety as would be the effects of a blanket suspension by the ICF Board of Directors. The effect is to prevent the athletes and their entourage belonging to the BCA’s senior men’s canoe and kayak teams from

taking part in international competitions. This is precisely what Article 42 (c) ICF Statutes contemplates.

(2) The ICF Executive Committee has not exceeded its competence. The reference to the “ICF” in Article 12.3 ICF ADR must be considered against Article 42 ICF Statutes, which outlines the disciplinary competence of each body. Even if the rules may be improved, they are understandable and clear on their face.

(3) Article 12.3 ICF ADR foresees the imposition of (i) additional disciplinary measures, (ii) on national federations, (iii) with regard to participation of athletes and officials in international events and (iv) for the reasons described by the ICF.

(i) “Additional disciplinary action” includes “the eligibility of its officials and Athletes to participate in International Events”. The measures are “additional” and discretionary. Beyond the withdrawal and funding of financial support and the obligation to reimburse for all costs related to anti-doping violations, the disciplinary measures under Article 12.3 apply to the whole federation or part of it for four or more violations of the ICF ADR. “Additional” means also that each individual concerned will be punished in accordance with the ICF ADR. “Additional” means in addition to financial measures and in addition to individual sanctions. There is consequently no requirement for the ICF Executive Committee to have firstly imposed disciplinary measures pursuant to Articles 12.1 and 12.2 ICF ADR.

(ii) Article 12.3.1 ICF ADR does not limit the imposition of a ban only to officials. It must be understood in the context of Article 12.3 ICF ADR, which provides for the imposition of disciplinary action on the National Federations and not on the athletes and officials themselves. Such decision affects the athletes and officials indirectly, but the decision is imposed on the BCA. This is the reason why the Respondent has accepted the athletes and entourage as interested parties in the proceedings before the CAS. The reference to “team” in the Appealed Decision did not mean to refer to a team sport in the sense of the WADA Code and does not violate the principle of legality, therefore, but wanted to address the athletes and entourage as a collective group of individuals for the purposes of succinctly stating which members of the BCA are included in the scope of the Appealed Decision. To limit the sanction to ban imposed on officials under Article 12.3.1 ICF ADR would totally empty and devoid of substance the content and scope of Article 12.3 with regard to the eligibility of the officials and athletes to participate in international events.

(iii) The disciplinary action imposed is based on more than four anti-doping violations. All members of the senior men’s canoe or kayak teams, i.e. the athletes and their entourage have committed anti-doping violations during the training camp, i.e., during a 12-month period of time and the testing took place by the French NADO. The requirements of Articles 12.3.1 and 12.3.1.1, thus, have been met.

(a) An anti-doping violation is defined by Article 2.1.1 ICF ADR (emphasis laid on the second sentence) and read together with Article 2.1.2, as well as by Article 2.6.1 and 2.6.2 ICF ADR.

(b) The mere presence of a Prohibited Substance in an athlete’s body is an antidoping violation. This is given for five Belarusian senior male canoeists/kayakers based on adverse analytical findings from their samples given at the training camp. Four (of them, based on the applicable WADA Notice, could be considered as having No Fault/No Negligence, but, nevertheless, for all of them an anti-doping violation was established. This was also recognised by the BCA in its letter to the ICF dating 15 June 2016.

(c) Furthermore, the BCA possessed prohibited substances and methods, as found by the French police and not disputed by the BCA. The BCA’s explanation that the meldonium was in the coach’s possession because of diseases of the cardiovascular system is not plausible, because it was prescribed by a doctor of the Centre of Sport Medicine of the Ministry of Health of Belarus and not by his personal cardiologist. Besides, this doctor (Mrs. Natalia Shaban) is not professionally qualified for such prescription. In view of so many Belarusian athletes found with this substance at the training camp the BCA’s explanation is not credible. The justification that the transfusion systems found were intended for emergency treatment is not plausible. In France adequate emergency treatment by medical facilities is provided. The fact that Actovegin, which can aid in blood doping, has been found is further evidence of the possession of the transfusion system as a prohibited method. BCA’s justification that the female athlete Volha Khudenka was diagnosed by the team doctor a myocardial dystrophy physical overexertion as justification for the possession of Actovegin just four days before the French raid is not credible. The ICF, thus, considers it established that members of the BCA connected to the senior men’s canoe and kayak team committed further anti-doping violations. Article 12.3.1 ICF ADR has been validly applied by the ICF Executive Committee. It could have and might in future impose a suspension of the BCA’s membership for up to four years.

(4) There were no violations of procedural rights, because the ICF was not responsible for results management, but the French NADO. It was not the duty of the ICF to grant each individual athlete a hearing for the anti-doping violation assertion. Besides, the BCA by letter dated 15 June 2016 admitted the anti-doping violations. Moreover, Article 12 ICF ADR does not grant any hearing or procedural rights to the athletes and their entourage. The athletes have not been punished as a direct consequence of their individual anti-doping violations, but because of their affiliation to the BCA’s banned team. In any event, the BCA was summoned to a hearing on 13 July 2016. The ICF Executive Committee based its decision on all evidence available. It was recognized a “civil party” in the criminal procedure, but had to sign a confidentiality agreement.

(5) The Appealed Decision is entirely proportionate. It is capable of achieving the purpose of the ICF ADR to ensure the integrity and fairness of competitions. Given that

prohibited substances and methods have been found at the BCA training camp and the refusal of the BCA to acknowledge any wrongdoing, the exclusion was necessary to reach the above goals. These goals override the BCA’s interest in having its senior men’s team participate in international competition and outweigh the detriment suffered by the team members concerned.

31. The Respondent submits the following Prayers for Relief:

“1. The appeal of the Belarus Canoe Association et al. is dismissed.

2. The decision of the International Canoe Federation Executive Committee, dated 15 July 2016, is upheld.

3. The Belarus Canoe Association et al. shall be ordered to pay, jointly and severally, the International Canoe Federation a contribution towards the legal and other costs incurred in the framework of these proceedings in an amount to be determined at a later stage or at the discretion of the Panel”.