Vitaly Mutko v. International Olympic Committee (IOC)

I. INTRODUCTION

1. This appeal is brought by Mr. Vitaly Mutko against a decision taken on 5 December 2017 by the Executive Board of the International Olympic Committee, which inter alia decided “[t]o exclude the then Minister of Sport, Mr Vitaly Mutko […] from any participation in all future Olympic Games” (hereinafter the “Appealed Decision”).

2. As will be detailed infra, the Panel has decided with the agreement of the parties to bifurcate the present arbitration proceedings and, in accordance with Article 188 of the Swiss Private International Law Act (“PILA”), to only address in the present award two preliminary issues which are potentially dispositive of the case: whether the Appealed Decision is properly characterized as a sanction and whether it has a proper legal basis (see infra at Section IX).

IV. To exclude the then Minister of Sport, Mr Vitaly Mutko, and his then Deputy Minister, Mr Yuri

Nagornykh, from any participation in all future Olympic Games.

V. To withdraw Mr Dmitry Chernyshenko, the former CEO of the Organising Committee Sochi

2014, from the Coordination Commission Beijing 2022.

VI. To suspend ROC President Alexander Zhukov as an IOC Member, given that his membership is

linked to his position as ROC President.

VII. The IOC reserves the right to take measures against and sanction other individuals implicated in

the system.

VIII. The ROC to reimburse the costs incurred by the IOC on the investigations and to contribute to the

establishment of the Independent Testing Authority (ITA) for the total sum of USD 15 million, to build the capacity and integrity of the global antidoping system.

IX. The IOC may partially or fully lift the suspension of the ROC from the commencement of the Closing

Ceremony of the Olympic Winter Games PyeongChang 2018 provided these decisions are fully respected and implemented by the ROC and by the invited athletes and officials.

X. The IOC will issue operational guidelines for the implementation of these decisions” (emphasis

added).

12. The IOC EB’s specific ruling concerning the Appellant is set forth in the following terms: “the EB, following the recommendations of the Schmid Commission, took the following decisions: […] IV. To exclude the then Minister of Sport, Mr Vitaly Mutko, […] from any participation in all future Olympic Games”. The IOC never formally notified the Appellant of the Appealed Decision. The IOC only published the Appealed Decision, without any grounds, in the form of a press release in both English and Russian, on its official website under the category “News”.

IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

13. On 26 December 2017, in accordance with Articles R47 and R48 of the 2017 edition of the Code of Sport-related Arbitration (the “CAS Code”), the Appellant filed a statement of appeal against the decision of the IOC EB published on 5 December 2017.

14. On 30 April 2018, in accordance with Article R51 of the CAS Code, the Appellant filed his appeal brief, which included a request for the production of documents.

15. On 29 March 2018, the CAS Court Office notified the parties that, on behalf of the President of the CAS Appeals Arbitration Division and pursuant to Article R54 of the CAS Code, the Panel appointed to decide the matter would be constituted by Professor Massimo Coccia (Rome, Italy) as chairman, Mr. Efraim Barak (Tel Aviv, Israel) designated by the Appellant, and Professor Ulrich Haas (Zurich, Switzerland) designated by the Respondent.

16. On 18 April 2018, the CAS Court Office notified the parties that Mr. Francisco A. Larios (Miami, FL, USA) had been appointed ad hoc clerk.

17. On the same day, Professor Haas informed the parties that he had been asked by WADA to join and head the WADA Working Group on Governance Matters. On 25 April 2018, following the Appellant’s request to reconsider his appointment as arbitrator if he accepted the WADA’s nomination, Professor Haas recused himself. Subsequently, the Respondent appointed as arbitrator Professor Jan Paulsson (Miami, FL, USA), who accepted the appointment on 22 May 2018.

18. On 25 June 2018, the Respondent requested the Panel to bifurcate the proceeding, so that the Panel could address certain preliminary issues in a partial award. In connection with its request for bifurcation, the Respondent stated inter alia that its “decision to ‘exclude’ the Appellant from participation has no other effective meaning nor effect than to be a declaratory statement expressing that the IOC does not intend to invite the Appellant to attend future Olympic Games” and that its decision to “exclude” meant “not invite to the Olympic Games a person as a guest”.

19. On 27 June 2018, the Appellant objected to the Respondent’s request for bifurcation.

20. On 9 July 2018, the Panel invited the Respondent to clarify – by answering a series of questions – the meaning and effects of the Appealed Decision vis-à-vis the Appellant and, more specifically, the exact scope of the Appellant’s “exclusion” from future Olympic Games. The Panel indicated that the Respondent’s answers would serve as an “operational guideline” issued by the IOC pursuant to Paragraph X of the Appealed Decision and would be considered in deciding the request for bifurcation.

21. On 16 July 2018, the Respondent submitted its answers to the Panel’s questions.

22. On 24 July 2018, the Appellant commented on the Respondent’s letter of 16 July 2018, confirming his objection to the request for bifurcation. The Appellant also requested the production by the Respondent of the minutes of the IOC EB’s meeting of 5 December 2017 (the “IOC EB Minutes”).

23. On 26 July 2018, the Panel denied the Respondent’s request to bifurcate the procedure, reserving its right to revisit the issue after the filing of the Respondent’s answer.

24. On 30 July 2018, the Respondent objected to the Appellant’s request for the production of the IOC EB Minutes.

25. On 2 August 2018, the Panel, pursuant to Article R44.3 of the CAS Code, rejected the request for production of the IOC EB Minutes, chiefly on the basis that the Appellant failed to demonstrate the relevance of such documents.

26. On 3 August 2018, the Appellant demanded that the Panel reconsider its decision of 2 August 2018. On 6 August 2018, the Panel rejected the Appellant’s request for reconsideration, explaining inter alia that (i) the Appellant had failed to request the IOC EB Minutes in its appeal brief, as required by Article R51 of the CAS Code, (ii) the Appellant had failed to prove the relevance of the requested document as required by Article R44.3 of the CAS Code, and (iii) both parties’ right to be heard was respected as they each had the opportunity to address the request for production of documents.

27. On 15 August 2018, in accordance with Article R55 of the CAS Code, the Respondent filed its answer.

28. On 18 September 2018, after consulting the parties, the Panel decided pursuant to Article R56 of the CAS Code to grant the Appellant’s request for a second round of written submissions, to which the Respondent had objected. The Panel based itself on exceptional circumstances, reasoning that a second round of written submissions was warranted because (i) the Appellant did not learn of the full grounds of the Appealed Decision until the filing of the Respondent’s answer, and (ii) the Respondent relied on new evidence exhibited for the first time in its answer. The Panel also requested the parties to specifically address two legal issues within their respective second submissions: (i) whether the Appealed Decision could be characterized as a sanction, and (ii) assuming it did constitute a sanction, whether the “principle of legality” was respected.

29. In the same letter of 18 September 2018, the Panel also rejected the Appellant’s request (made in his appeal brief) for production of the following documents: (i) all supporting and unredacted material relied upon by Professor McLaren in his two reports, (ii) all supporting documentation in support of, and attachments to, Dr. Rodchenkov’s affidavit relied upon by the IOC, Professor McLaren and the Schmid Commission, and (iii) the metadata on which Professor McLaren and the Schmid Commission relied in their respective reports, the metadata on which the new IOC’s expert reports were based, the metadata related to the exchanges of emails on which the IOC relied, and the metadata related to the LIMS software program, all of which the Respondent objected to produce. The Panel rejected the above Appellant’s requests for production of documents because the Appellant failed to satisfy the requirements of Article R44.3 of the CAS Code. The Panel found that (i) the Appellant’s requests were overall excessively broad and vague, (ii) he failed to describe in sufficient detail the documents requested and their relevance, and (iii) the Respondent’s declaration that those documents were not in its custody or under its control was plausible and persuasive.

30. On 19 December 2018, the Appellant filed his reply.

31. On 20 March 2019, the Respondent, noting that the Panel in its letter of 18 September 2018 had drawn the parties’ attention to some specific preliminary issues, renewed its request for bifurcation, specifying that it had reached an agreement with Appellant on this request. The Respondent thus requested the Panel to issue an award on the existence of a proper legal basis for the Appealed Decision, pointing out that this issue could be decided without addressing the complex underlying circumstances and evidence and that this would have a beneficial impact in terms of procedural economy. In this connection, the Respondent acknowledged that the Appellant did not fall within the scope of application of Rules 59.1 or 59.2 of the Olympic Charter and that Rule 59.3 of the Olympic Charter was irrelevant in the case at hand because there was no pending Olympic accreditation or application for accreditation from the Appellant. The Respondent also specified that a preliminary award on this issue would not affect its right to invite any person to future Olympic Games under Rules 59.4 and 44 of the Olympic Charter. The Respondent also stated that both parties deemed that no further submissions or a hearing would be needed for the Panel to decide on the preliminary issues indicated by the Panel on 18 September 2018, as both parties had already extensively addressed them in their previous submissions. The Respondent also stated that the parties were in agreement that, should the Panel’s preliminary award effectively terminate the present arbitration, the parties would waive claims for contribution towards their legal costs and would share the costs of the CAS proceedings. The Respondent also asked the Panel to stay the time limit to submit its rejoinder. On the same day, the Appellant confirmed his agreement on the above.

32. On 22 March 2019, the Panel, having considered the parties’ correspondence and their agreement, informed the parties through the CAS Court Office that it had decided to: (1) bifurcate the case and, in accordance with Article 188 of the Swiss Private International Law Act (“PILA”), issue an award only addressing the two preliminary issues set out in the CAS Court Office letter dated 18 September 2018, given that they were potentially dispositive of the case; (2) render a decision on those preliminary issues without a hearing, given that it was sufficiently well informed on them (Article R57 of the CAS Code); and (3) suspend the Respondent’s time limit to submit its rejoinder, pending the issuance of the award on the preliminary issues.

V. SUBMISSIONS OF THE PARTIES

A. The Appellant: Mr. Vitaly Mutko

33. The Appellant set out the following motions for relief:

– In his appeal brief:

“1. The appeal of Mr. Vitaly Mutko is admissible. 2. The appeal of Mr. Vitaly Mutko is upheld.

3. Paragraph IV of the decision rendered by the IOC Executive Board on 05 December 2017 regarding Mr. Vitaly Mutko is set aside or, alternatively, is amended, by the discretion of the CAS Panel, in order to be proportionate and fair. 4. Mr. Vitaly Mutko is granted an award for his legal costs and other expenses pertaining to these appeal proceedings before CAS. 5. IOC bears the costs of the arbitration”. – In his reply, expressly replacing the previous motions for relief (omitting the procedural and evidentiary motions, which are irrelevant for the issues to be addressed in the present preliminary award):

“[…] On the Merits: 1. The appeal of Mr. Vitaly Mutko is admissible. 2. The appeal of Mr. Vitaly Mutko is upheld. 3. Paragraph IV of the decision rendered by the IOPC Executive Board on 5 December 2017 regarding Mr. Vitaly Mutko is set aside. 4. Mr. Vitaly Mutko is granted an award for his legal costs and other expenses pertaining to these appeal proceedings before CAS. 5. IOC bears the cost of the arbitration”.

34. The Appellant’s submissions concerning the preliminary issues, in essence, may be summarized as follows:

– The Appealed Decision imposes a sanction on the Appellant. The Appealed Decision “excludes” the Appellant from any participation in all future Olympic Games. Therefore, it imposes an actual sanction on the Appellant in the form of a life ban. Such a sanction is akin to a disqualification of an athlete from the Olympic Games or a suspension under the WADA Code. The Appealed Decision has the nature and the inherent characteristics of a sanction and is perceived as such by the Appellant and the world. Even if one were to accept that the Appealed Decision has elements of both an eligibility rule and a sanction, it would nevertheless operate as, and have the effect of, a disciplinary sanction.

– The Appealed Decision is a “decision”. The Appealed Decision is not only a mere “measure” or “declaration of intent” indicating “in advance” that it would “not invite” the Appellant to all future Olympic Games, as alleged by the IOC. It is a binding resolution “excluding” the Appellant from the Games. The Respondent cannot now “rewrite” the Appealed Decision by claiming that it never sought to “exclude” the Appellant from future Olympic Games and that it only meant to declare its intent not to accept a future application for his participation therein. In any case, even if the Appealed Decision is considered a “declaration of intent” (quod non), that measure would be illegal under Articles 28 of the Swiss Civil Code (SCC) and Articles 5 and 7 of

the Federal Act on Cartels and other Restraints of Competition (the “LCart”) and would be abusive for violating the principle of good faith.

– The Appealed Decision lacks a proper legal basis and, as a result, the decision must be set aside. Since the Appealed Decision imposes a sanction, it must be based on a clear and proper legal basis. Such a legal basis is required even if one were to characterize the Appealed Decision as one based on an eligibility rule (quod non), given that the decision would still operate as, and have the effect of, a disciplinary sanction. There is, however, no proper legal basis for the sanction against the Appellant and, therefore, the principle of legality is breached, because:

(i) Rule 44 of the Olympic Charter does not apply to the Appellant. That rule only applies to athletes. The Respondent attempts to “adjust” Rule 44 so that it would apply to the present situation. However, applying Rule 44 in that manner would clearly run against the legislator’s intentions. Moreover, no other rule in the Olympic Charter or any provision of the WADA Code constitute a proper legal basis for the Appealed Decision. (ii) the requirements of Rule 59 of the Olympic Charter and its Bye-law are not met. (iii) the Respondent has expressly acknowledged that, if characterized as a sanction, the Appealed Decision has no legal basis since the Respondent has no authority to issue any form of disciplinary sanction against the Appellant for he is not “subject to the jurisdiction of the IOC and to the application of IOC regulations”.

B. The Respondent: International Olympic Committee

35. In its motions for relief included in its Answer, the Respondent requests the CAS Panel:

“(i) as a preliminary matter, to bifurcate the proceedings;

(ii) in any event, to dismiss the appeal filed by Vitaly Mutko;

(iii) to confirm the decision of the IOC Executive Board as it relates to Vitaly Mutko;

(iv) Subsidiarily, to amend the wording of the Decision to mean that the IOC will deny an application for participation of the appellant in the Olympic Games;

(v) to order Vitaly Mutko to make a contribution to the IOC’s legal and other costs related to these proceedings, in an amount that the Panel deems appropriate”.

36. The Respondent’s submissions, in essence, may be summarized as follows:

– The Appealed Decision did not impose a sanction on the Appellant; the Respondent merely exercised its discretion under Rule 44 of the Olympic Charter.

First, the Appealed Decision cannot constitute a sanction because the Respondent does not have any jurisdictional power allowing it to issue disciplinary sanctions on the Appellant for he was not an IOC Member nor was he exerting any function in the Russian Olympic Committee (ROC). Second, the Appealed Decision does not constitute a sanction because with the term “exclusion”, the IOC EB simply meant that the Appellant is a persona non grata and would not be invited to participate in future Olympic Games, i.e. he would not be granted an Olympic Identity and Accreditation Card (OIAC) if one were requested in the future. Since the Appellant does not have the right to participate in the Olympic Games, the effective meaning of the Appealed Decision is that he would not be allowed into, or granted the right to participate in, the Olympic Games in any official role upon application thereto. Admittedly, the term “exclusion” is not completely appropriate since that word appears to imply that the Appellant would be stripped from a right which he would otherwise not have. Therefore, if the Panel finds it appropriate, it should clarify the decision to reflect its true intended meaning. What the CAS cannot do is issue a decision which would imply that the Appellant is entitled to the right to participate in the Olympic Games, which he clearly does not have.

– The Appealed Decision is a not a true “decision”. The Appealed Decision is a “measure” or “declaration of intent” made “in advance” in which the Respondent expresses how it intends to exercise its discretion under Rule 44 of the Olympic Charter if an application for his participation in a future edition of the Olympic Games were submitted. The Appealed Decision declares that the Respondent intends not to accept the Appellant as a participant “in any capacity” in any future Olympic Games (although he remains free to acquire and use tickets to the Olympic Games for this circumstance does not fall within the scope of Rules 44 and 52 of the Olympic Charter). However, no formal decision has yet been taken on his participation. At this stage, there is no pending application for an OIAC and it is not even foreseeable on which basis such an application would be submitted and by what entity. Only if and when there is a concrete application by the Appellant to obtain an OIAC can the Respondent take a decision on that matter. As such, the Appealed Decision is not definitive or binding in nature; it is a mere policy statement that can be changed in the future if and when an OIAC is applied for. That said, at this time, the Respondent cannot imagine any foreseeable reason which “could allow the IOC Executive Board to reconsider the issue of the participation of the Appellant in the Olympic Games and come to a different decision”. The Appellant’s actual position or rights have thus not been affected and, consequently, the Appealed Decision cannot be considered an actual “decision”.

– Rule 44 of the Olympic Charter is a proper legal basis for the Appealed Decision. The legal basis for the Appealed Decision is Rule 44 of the Olympic Charter, which governs “invitations and entries” at the Olympic Games. Even though Rule 44 and its Byelaw deal “in good part” with the participation of competitors, that rule also applies to all participants taking part in the Olympic Games “in whatever capacity” (as derived from para. 6 of Bye-law to Rule 44). Under Rule 44, and as the entity controlling the Olympic Games, the Respondent has an unfettered discretion to decide who is invited or not to the Olympic Games; it is only limited to the extent that its decision on an invitation

cannot be arbitrary, unfair or unreasonable. The Respondent correctly exercised its discretion under the Olympic Charter and, in response to the Russian doping program, was fully justified in declaring its intent not to invite the Appellant for all future Olympic Games. As the sports minister during the relevant period, the Appellant must bear the ultimate responsibility for that program, irrespective of whether or not he was personally involved in, and/or had knowledge of, it. Given the extent of its discretion under Rule 44 of the Olympic Charter, the Respondent did not need to establish that the Appellant committed any specific violation of a rule to justify its declared intent not to accept him at all future Olympic Games. In accordance with Rule 52 of the Olympic Charter, the IOC EB decides who is entitled to receive an OIAC, which grants its bearer the right to take part in the Olympic Games. Rule 52, para. 2 confirms that the IOC EB has full competence and authority to issue regulations and instructions on the issuance of OIACs. Denying the issuance of an OIAC does not deprive a person from any right because a decision under Rule 44 is discretionary and no one is entitled to participate in the Olympic Games.

VI. JURISDICTION

37. Article R47 of the CAS Code provides as follows:

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

38. According to Rule 61, para. 2 of the Olympic Charter “Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport, in accordance with the Code of Sports-Related Arbitration”.

39. In principle, the Respondent would not agree that the above arbitration clause included in Rule 61 of the Olympic Charter would be applicable to a case of this kind. However, the Respondent expressly accepted the Panel’s jurisdiction to decide the present matter, all the while indicating that the Respondent’s acceptance of the CAS jurisdiction in this specific case should not have any bearing on any other future case where a third party attempts to invoke said arbitration clause.

40. As both parties expressly accepted the jurisdiction of the CAS over their dispute, the Panel holds that it has jurisdiction to decide the present case.

VII. ADMISSIBILITY

41. Article R49 of the CAS 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 in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt

of the decision appealed against. The Division President shall not initiate a procedure if the statement of appeal is, on its face, late and shall so notify the person who filed the document”.

42. The Olympic Charter does not specify a time limit for an appeal against a decision of the IOC EB. Therefore, the default time limit of twenty-one days must apply.

43. The Appealed Decision was published on the Respondent’s official website on 5 December 2017. The Appellant lodged an appeal at CAS on 26 December 2017, i.e. within the twenty-one days allotted under Article R49 of the CAS Code. It follows that the Appellant’s appeal is admissible.

VIII. APPLICABLE LAW

44. Article R58 of the CAS Code provides as follows:

“The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to 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 that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

45. It is common ground between the parties that the Panel must decide the present dispute in accordance with (i) the Olympic Charter, to be applied as the “applicable regulations” together with any other regulations expressly referred to in the Olympic Charter, such as the World Anti- Doping Code, and, subsidiarily, (ii) Swiss law as the law of the country in which the Respondent is domiciled.

46. The only point on which the parties diverge is whether Russian law should also apply to the issue of whether or not the Appellant should bear administrative responsibility for the alleged Russian doping program. The Appellant argues that certain provisions of Russian law should apply as mandatory rules of law pursuant to Article 19 of the PILA, whereas the Respondent contends that they should not. In this respect, the Panel holds that the applicability or not of Russian law is irrelevant to the present preliminary award, as the issue of the Appellant’s alleged administrative responsibility has no bearing on the preliminary issues to be addressed herein. Therefore, the Panel need not address whether certain provisions of Russian law should also apply and to what extent.

IX. MERITS

47. For the purposes of this preliminary award, the Appellant argues that the Appealed Decision must be set aside because it imposed a sanction on him without a proper legal basis. The Respondent, on the other hand, seeks to uphold the Appealed Decision. The Respondent maintains that the Appealed Decision did not impose a sanction; rather, it simply declared “in advance” the Respondent’s intent to reject any future application for the Appellant’s participation in the Olympic Games. In the Respondent’s view, such a declaration is markedly different from

a decision imposing a sanction on an individual and has not affected the legal position and rights of the Appellant. Further, the Respondent claims that the Appealed Decision was based on a proper legal basis, Rule 44.3 of the Olympic Charter.

48. In light of the parties’ differing positions, the Panel will address the following questions:

A. Whether the Appealed Decision imposed a sanction on the Appellant. — B. If so, whether the IOC EB had a proper legal basis for imposing the sanction on the

Appellant, i.e. whether the IOC EB respected the so-called “principle of legality” in the application of Rule 44.3 of the Olympic Charter.

A. Proper characterization as a sanction of the Appealed Decision

49. The full text of the decision adopted by the IOC against Mr. Mutko on 5 December 2017 reads as follows:

“The IOC Executive Board (EB) today deliberated on the findings of the Schmid Commission addressing the systematic manipulation of the anti-doping system in Russia prior to this decision. The Commission’s report also addresses the manipulation of the anti-doping laboratory at the Olympic Winter Games Sochi 2014, which targeted the Olympic Games directly. The EB approved the Commission’s report.

Now that due process has been followed, and the right to be heard has been granted, the EB, following the recommendations of the Schmid Commission, took the following decisions:

[…]

IV. To exclude the then Minister of Sport, Mr Vitaly Mutko, […] from any participation in all future Olympic Games”.

50. According to CAS jurisprudence, a rule that bars an individual from participating in an event due to prior undesirable behaviour qualifies as a sanction:

“qualifying or eligibility rules are those that serve to facilitate the organization of an event and to ensure that the athlete meets the performance ability requirement for the type of competition in question… a common point in qualifying (eligibility) rules is that they do not sanction undesirable behaviour by athletes. Qualifying rules define certain attributes required of athletes desiring to be eligible to compete and certain formalities that must be met in order to compete… In contrast to qualifying rules are the rules that bar an athlete from participating and taking part in a competition due to prior undesirable behaviour on the part of the athlete. Such a rule, whose objective is to sanction the athlete’s prior behaviour by barring participation in the event because of that behaviour, imposes a sanction. A ban on taking part in a competition can be one of the possible disciplinary measures sanctioning the breach of a rule of behaviour” (emphasis added; see CAS 2011/O/2422, at paras. 33-34; see also CAS OG 02/001).

51. With that CAS jurisprudence in mind, the Panel finds that the Appealed Decision did sanction the Appellant. Read in its full context, the Appealed Decision unequivocally bars the Appellant’s

participation in all future Olympic Games due to his position as Minister of Sports and, thus, his functional responsibility in relation to the alleged Russian doping scheme. Indeed, the Appealed Decision resolved to “exclude” the Appellant “from any participation in all future Olympic Games” and expressly based itself on the Schmid Report, which had recommended that the Respondent (i) hold the Appellant, as the head of the Ministry of Sport during the time of the Russian doping scheme, “responsibl[e] for the acts perpetrated … within the Russian ministry or the entities under its responsibility”, and (ii) “take the appropriate measures that should be strong enough to effectively sanction the existence of a systemic manipulation of the anti-doping rules and system in Russia, as well as the legal responsibility of the various entities involved […]” (emphasis added).

52. A proper reading of the Appealed Decision in light of the recommendations of the Schmid Report, on which it was explicitly based, leads the Panel to conclude that the Appealed Decision unequivocally imposed a lifetime ban from the Olympic Games on the Appellant. The Panel has thus no hesitation in holding that the Appealed Decision must be legally characterized as a disciplinary sanction.

53. The Panel’s conclusion that the Appealed Decision is disciplinary in nature holds true even if:

(i) In its letter of 16 July 2018 to the CAS, the Respondent asserted that the term “exclusion” simply meant that it would “not invite” the Appellant to all future Olympic Games and reject any application for his participation therein. In that letter, the Respondent declared that “any type of accreditation incorporated in an OIAC would be denied” if an application for his participation were submitted in the future, and that “it cannot imagine any foreseeable reason which could allow the IOC Executive Board to reconsider the issue of [his] participation … in the Olympic Games and come to a different decision” (see letter of 16 July 2018). In the Panel’s view, this has the same effect of disbarring or banning the Appellant for life from participating in the Olympic Games in whatever capacity.

(ii) In its submissions, the Respondent has argued that the Appealed Decision is not a sanction because it is based on an eligibility rule (i.e. Rule 44 of the Olympic Charter, which deals with “invitations and entries” to the Olympic Games). However, in reliance on CAS jurisprudence, specifically CAS 2011/A/2442 and CAS OG 02/001, the Panel is of the view that the Appealed Decision is more properly characterized as a sanction than as a decision concerning an invitation or entry to the Olympic Games. This is because, from the Respondent’s perspective, the Appealed Decision was taken due to some prior undesirable behaviour of the Ministry of Sport and its subordinated entities, i.e. the failure to secure an effective doping control program in Russia, for which the Respondent believes the Appellant must bear the ultimate administrative responsibility. As explained in its answer, the Respondent issued the Appealed Decision because “the Appellant has to stand for the effective complete failure of the doping control in Russia during his tenure at the Ministry of Sport”. In other words, the Appealed Decision penalizes the Appellant for the alleged systematic manipulation of the anti-doping system in Russia found by the Schmid Commission. As a result, it bears the characteristics of a sanction, even if imposed relying on Rule 44 of the Olympic Charter.

(iii) The Respondent argues that the Appealed Decision cannot be considered a sanction because it lacks the power to discipline an individual, such as the Appellant, who is not an IOC member or otherwise subject to the IOC’s disciplinary jurisdiction. The Panel finds, however, that this issue is irrelevant for the purposes of determining whether the Appealed Decision did or did not actually impose a disciplinary sanction on the Appellant; indeed, the issue of whether or not the Respondent had jurisdictional power to impose a sanction over the Appellant implies addressing the issue of the existence or not of a proper legal basis for the measure at stake, something that will be addressed infra.

54. Furthermore, the Panel’s conclusion that the Appealed Decision constitutes a sanction against the Appellant is not affected by the findings in CAS OG 18/002 and CAS OG 18/003. The Respondent alleges that those awards confirm that any decision made pursuant to Rule 44 of the Olympic Charter is not a sanction. The Panel, however, has a different interpretation of the holding of those decisions. Those CAS panels assessed whether or not the IOC’s process established in Ruling II of the Appealed Decision – which provided those Russian athletes who would otherwise be unable to participate in the Olympic Games, due to the ROC’s suspension, the opportunity to participate therein as “Olympic Athletes from Russia” (OAR) – implied a sanction. Those panels found that that process was not a disciplinary one; rather, it was more properly characterized as eligibility-based, because it actually protected the rights of the athletes who were not implicated in Russia’s state-sponsored doping scheme by allowing them the chance to participate in the Olympic Games if they satisfied specific conditions. As aptly stated in the Swiss Cantonal Civil Court judgement dated 19 February 2018: “the non-invitation of the petitioners to the 2018 PyeongChang OG was not an individual sanction but the consequence of the decision to suspend the Russian NOC, only for one competition” (in the French original at para. 46: “la non-invitation des requérants aux JO de PyeongChang 2018 n’est pas une sanction individuelle mas la conséquence de la décision de suspendre le CNO russe”). By contrast, the Appealed Decision did impose an individual exclusion on the Appellant based on his alleged prior behaviour. As such, it is more properly characterized as a sanction than an invitational or entry declaration.

55. In light of the foregoing, the Panel holds that the Appealed Decision set forth a sanction against the Appellant. Consequently, as for any challenged sanction, the Panel must verify whether the sanction was grounded on a proper legal basis.

B. Lack of legal basis for the Appealed Decision

56. According to the Respondent, the legal basis for the Appealed Decision is Rule 44 (“Invitations and entries”) of the Olympic Charter, which provides:

“1. The invitations to take part in the Olympic Games shall be sent out by the IOC to all NOCs one year before the opening ceremony.

2. Only NOCs recognised by the IOC may submit entries for competitors in the Olympic Games.

3. Any entry is subject to acceptance by the IOC, which may at its discretion, at any time, refuse any entry, without indication of grounds. Nobody is entitled as of right to participate in the Olympic Games.

4. An NOC shall only enter competitors upon the recommendations for entries given by national federations. If the NOC approves thereof, it shall transmit such entries to the OCOG. The OCOG must acknowledge their receipt. NOCs must investigate the validity of the entries proposed by the national federations and ensure that no one has been excluded for racial, religious or political reasons or by reason of other forms of discrimination.

5. The NOCs shall send to the Olympic Games only those competitors adequately prepared for high level international competition. Through its IF, a national federation may ask that the IOC Executive Board review a decision by an NOC in a matter of entries. The IOC Executive Board’s decision shall be final”.

57. The Bye-law to Rule 44 of the Olympic Charter further specifies:

“1. The IOC Executive Board determines the numbers of all participants in the Olympic Games.

2. The procedures and the deadlines for the entries of competitors for sports competitions at the Olympic Games and their acceptances are established by the IOC Executive Board.

3. All entries must be submitted as prescribed by the IOC.

4. As a condition precedent to participation in the Olympic Games, every competitor shall comply with all the provisions of the Olympic Charter and the rules of the IF governing his sport. The NOC which enters the competitor is responsible for ensuring that such competitor is fully aware of and complies with the Olympic Charter and the World Anti-Doping Code.

5. Should there be no national federation for a particular sport in a country which has a recognised NOC, the latter may enter competitors individually in such sport in the Olympic Games subject to the approval of the IOC Executive Board and the IF governing such sport.

6. All participants in the Olympic Games in whatever capacity must comply with the entry process as prescribed by the IOC Executive Board, including the signing of the entry form, which includes an obligation to (i) comply with the Olympic Charter and the World Anti-Doping Code and (ii) submit disputes to CAS jurisdiction.

7. The relevant NOC shall also comply with the entry process, including the signing of the entry form, referred to in paragraph 6 above to confirm and guarantee that all the relevant rules have been brought to the notice of the competitor and that the NOC has been authorised by the national sports federation concerned to comply with such entry process on its behalf.

8. At the request of the OCOG, the relevant IF shall confirm and guarantee, at the close of entries, that the participants entered for its sport have satisfied the relevant qualification criteria to compete in the Olympic Games.

9. No entry shall be valid unless the above provisions have been observed.

10. The withdrawal of a duly entered delegation, team or individual shall, if effected without the consent of the IOC Executive Board, constitute an infringement of the Olympic Charter, and be subject to an inquiry, and may lead to measures or sanctions.

11. The number of entries for each sport is established by the IOC Executive Board following consultation with the relevant IFs three years before the Olympic Games concerned.

12. The number of entries in the individual events shall not exceed that provided for in the World Championships and shall not, unless the IOC Executive Board grants an exception, exceed three per country.

13. For team sports, the number of teams shall not exceed twelve teams for each gender and not be less than eight teams, unless the IOC Executive Board decides otherwise.

14. In order to obtain an equitable breakdown in the number of substitutes in certain sports, both individual and team, and taking into account the fact that in certain other sports a single entry per event and per country is allowed without any substitute, the IOC Executive Board, following consultation with the IFs concerned, may increase or reduce the number of substitutes”.

58. Rule 59 of the Olympic Charter – also cited by the Respondent – states as follows in the relevant part:

“In the case of any violation of the Olympic Charter, the World Anti-Doping Code, the Olympic Movement Code on the Prevention of Manipulation of Competitions or any other regulation, the measures or sanctions which may be taken by the Session, the IOC Executive Board or the disciplinary commission referred to under 2.4 below are:

1. In the context of the Olympic Movement: 1.1 with regard to IOC members, the Honorary President, honorary members and honour members:

a) a reprimand, pronounced by the IOC Executive Board;

b) suspension, for a specific period, pronounced by the IOC Executive Board. The suspension may be extended to all or part of the rights, prerogatives and functions deriving from the membership of the person concerned.

The above-mentioned sanctions may be combined. They may be imposed on IOC members, the Honorary President, honorary members or honour members who, by their conduct, jeopardise the interests of the IOC, also regardless of any specific violation of the Olympic Charter or any other regulation.

2. 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, the Olympic Movement Code on the Prevention of Manipulation of Competitions 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 by him or it shall be returned to the IOC (Executive Board);

2.2 with regard to officials, managers and other members of any delegation as well as referees and members of the jury: temporary or permanent ineligibility or exclusion from the Olympic Games (IOC Executive Board);

2.3 with regard to all other accredited persons: withdrawal of accreditation (IOC Executive Board);

[…]”.

59. The Appellant challenges the applicability of Rule 44 or of Rule 59 of the Olympic Charter (or of any provision in the Olympic Charter or the WADA Code for that matter) as a proper legal basis for the Appealed Decision. In the Appellant’s view, the Appealed Decision does not conform to the principles of legality and predictability.

60. The Panel notes that, according to well-established CAS jurisprudence:

“the ‘principle of legality” (‘principe de légalité’ in French), requir[es] that the offences and the sanctions be clearly and previously defined by the law and preclud[es] the ‘adjustment’ of existing rules to apply them to situations or behaviours that the legislator did not clearly intend to penalize. CAS arbitrators have drawn inspiration from this general principle of law in reference to sports disciplinary issues, and have formulated and applied what has been termed as ‘predictability test’. Indeed, CAS awards have consistently held that sports organizations cannot impose sanctions without a proper legal or regulatory basis and that such sanctions must be predictable. In other words, offences and sanctions must be provided by clear rules enacted beforehand” 2017/A/5086, among several other CAS awards).

61. From the wording of Rule 44 of the Olympic Charter and its Bye-law, it is evident to the Panel that the rule only applies to the application for “entry” of “participants” or “competitors” to a given edition of the Olympic Games and that any such application for entry must be submitted by a National Olympic Committee (“NOC”). There is no indication that Rule 44 or its Bye-law applies to situations in which an individual has not applied, through a NOC, for entry into an edition of the Olympic Games.

62. The Panel notes that Rule 44 appears to be drafted to only apply to actual prospective “participants” or “competitors” in Olympic Games competitions rather than to any individual wishing to take part in the Olympic Games in some other capacity. In particular, the Panel is doubtful whether the reference in para. 6 of the Bye-law to “all participants in the Olympic Games in whatever capacity” is sufficient to encompass individuals who are non-competitors, such as “dignitaries” and “official guests”, as the Respondent contends. However, the Panel need not

solve this issue because, much more importantly, Rule 44 certainly does not grant the Respondent the power to impose a lifetime ban from the Olympic Games to a participant or competitor (let alone, to other individuals); Rule 44 only permits the Respondent to “refuse an entry” of a participant or competitor to a single edition of the Olympic Games.

63. Rule 44 of the Olympic Charter is thus not viable as a legal basis for the sanction at hand because (i) the ROC or any other entity has not submitted any application for the Appellant’s “entry” into an edition of the Olympic Games, and (ii) the Appealed Decision bans the Appellant from any participation in “all future Olympic Games”, thereby going beyond the scope of the rule which only permits the rejection of an application to a single edition of the Olympic Games. Therefore, Rule 44 is not a proper legal basis for the Appealed Decision. In keeping with the above-cited CAS jurisprudence, the Respondent cannot “adjust” Rule 44 to enable its application when the legislator clearly did not intend for the rule to apply in situations like the present.

64. Nor can the Respondent avail itself of Rule 59 of the Olympic Charter (quoted supra). Truly, Rule 59 grants the Respondent the power to impose some severe sanctions; however, Rule 59 may only be applied to well-defined categories of individuals or teams and the Appellant does not fall within any of those categories.

65. In particular, Rule 59.1 of the Olympic Charter only applies to “IOC members, the Honorary President, honorary members and honour members”, and the Appellant does not possess any of those IOC titles.

66. Then, Rule 59.2, which allows the IOC EB to impose sanctions up to “permanent ineligibility or exclusion from the Olympic Games”, only applies to:

– “individual competitors and teams” (para. 2.1), – “members of any delegation” (as made clear by the adjective “other”) and “referees and members of the jury” (para. 2.2), and – “all other accredited persons” (para. 2.3, which however provides as only possible sanction the “withdrawal of accreditation”).

67. The Panel has no difficulty in finding that Rule 59.2 is also not applicable to the Appellant’s case as a proper legal basis for the Appealed Decision, given that the Appellant was not and is not an Olympic competitor, a member of an Olympic delegation, a referee or member of a jury, and does not hold any Olympic accreditation which might be withdrawn.

68. Finally, the Panel notes that the Respondent has even admitted that, in the event the Panel characterized the Appealed Decision as a sanction (as it has done so) the Appealed Decision would have no legal basis due to the Respondent’s lack of authority to issue any form of disciplinary sanction against the Appellant as an individual not subject to the IOC’s jurisdiction and regulations.

69. In light of the foregoing, the Panel must set aside the Appealed Decision for lack of a legal basis.

70. Of course, the Panel’s decision only addresses the validity of the Appealed Decision and does not affect any future decision that the Respondent might adopt vis-à-vis the Appellant in reference to any specific edition of the Olympic Games.

71. With the Appealed Decision set aside on that ground, the arbitration proceedings are terminated by the present preliminary award. As a consequence, the parties are relieved from filing any further submissions and the Panel need not address whether or not a state-sponsored or institutionalized doping system existed in Russia and whether or not the Appellant could be held responsible for it. The Panel need not address any other issues.

C. Further or different motions

72. All further or different motions or requests of the parties are rejected.