International Olympic Committee (IOC), International Skating Union (ISU) v. Laura Barquero Jimenez

V. JURISDICTION

39. Pursuant to the Scope of the IOC ADR, the IOC ADR apply “in relation to the Olympic Games Beijing 2022. They shall, without limitation, apply to all Anti-Doping Activities and Doping Controls over which the IOC has jurisdiction in relation to the Olympic Games Beijing 2022”.

In particular, the IOC ADR provides that “these Rules shall, without limitation, apply to […] (b) all Athletes entered in the Olympic Games Beijing 2022 or who have otherwise been made subject to the authority of the IOC in connection with the Olympic Games Beijing 2022 (see below); […]”.

Where the case was not resolved upon waiver of a hearing or resulting from other consequences as provided for in article 7.8 of the IOC ADR, “[…] the ITA shall promptly file an application with the CAS Anti-Doping Division, acting as first-instance authority to conduct proceedings and to issue decisions, as per the CAS Anti-Doping Division Arbitration Rules. The application shall be filed in the name of the IOC by the ITA acting on the IOC’s behalf” as provided for in Article 8.1 of the IOC ADR.

Further, Article 8.1.2 states that: “The composition of the hearing panel and procedures applicable to the CAS Anti-Doping Division shall be as per the CAS Anti-Doping Division Arbitration Rules”.

40. Rule A1 of the Arbitration Rules of the CAS ADD (“the Arbitration Rules”) states:

“The Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD) has been established to hear and decide anti-doping cases as a first-instance authority pursuant to a delegation of powers from the International Olympic Committee (IOC), International Federations of sports on the Olympic programme (Olympic IFs), and any other signatories to the World Anti-Doping Code (WADC). These WADC signatories have delegated their powers to CAS ADD to decide whether or not there has been a violation of their anti-doping rules, as well as to decide any sanction, if applicable, in accordance with the WADC. CAS ADD and these procedural rules have been established in conjunction with the applicable anti-doping rules of the WADC signatories concerned”.

41. Rule A2 of the Arbitration Rules provides:

“A2 Jurisdiction of CAS Anti-Doping Division - Application of the Present Rules CAS ADD shall be the first-instance authority to conduct proceedings and issue decisions when an alleged anti-doping rule violation has been filed with it and for imposition of any sanctions resulting from a finding that an anti-doping rule violation has occurred. CAS ADD has jurisdiction to rule as a first-instance authority on behalf of any WADC signatory which has formally delegated its powers to CAS ADD to conduct anti-doping proceedings and impose applicable sanctions. These Rules apply whenever a case is filed with CAS ADD. Such filing may arise by reason of an arbitration clause in the Anti-Doping Rules of a WADC signatory, by contract or by specific agreement”.

42. The Athlete signed the Athlete Information Notice on her Doping Control Form, thereby confirming her understanding of and consent to the following text:

“The ITA will in particular initiate and undertake testing activities on the occasion of the Games, determine whether or not a potential anti-doping rule violation has occurred pursuant to the Rules, and if so, file the case with the Court of Arbitration for Sport for decision”.

43. The jurisdiction of the CAS ADD is not disputed by the Parties who have confirmed it by signing and returning the Order of Procedure.

44. Accordingly, the CAS ADD has jurisdiction to hear the dispute.

VI. LANGUAGE OF THE ARBITRATION

45. Pursuant to Article 4 of the CAS ADD Rules,

“CAS ADD working languages are English, French and Spanish. In the absence of agreement between the parties, the President of the Panel or, if not yet appointed, the President or Deputy President of CAS ADD shall select one of these three languages as the language of the arbitration at the outset of the procedure, taking into account relevant circumstances then known. Thereafter, the proceedings shall be conducted exclusively in that language, unless the parties and the President of the Panel otherwise agree”.

46. By letter dated 17 June 2022 and reiterated in her letter dated 22 June 2022, the Athlete has requested that Spanish be used as language for the procedure arguing inter alia that

- it is the best way to fully guarantee the right of defense of Ms. Laura Barquero, who has difficulty understanding and expressing herself in English;

- Spanish is also an official language of the CAS and the Athlete’s mother tongue;

- a hearing in a language other than Spanish, in which the Athlete cannot understand what is being discussed and cannot express herself in her mother tongue, would unnecessarily limit her rights of defense.

47. However, the Athlete did not oppose that the Claimant’s file all their submissions and annexed documents in English.

48. The IOC opposed the Athlete’s request arguing inter alia that

- the sole reason given by the Athlete for her request is that she has difficulty expressing herself in English. As she is legally represented, her level of English is only relevant to the way in which she would give oral evidence (if there were to be a hearing). It is not relevant to the general question of the language of the proceedings.

- as to that general question, the Athlete’s lawyers have engaged with these proceedings in English (as have the other two parties). They have also prepared a detailed submission (Exhibit 16 of the Application) in English. They are clearly competent to continue these proceedings in English. That is the key consideration and English is therefore the appropriate language.

- should a hearing be necessary (which the IOC believes would be unlikely), the Athlete could give evidence through an interpreter, like any other witness before CAS in the same situation, and her English-speaking lawyers will be able to explain the events of the hearing to her as they occur.

49. The ISU equally opposed the use of Spanish instead of English as language of the arbitration arguing inter alia that

- article 6 of the CAS ADD Rules applicable for the 2022 Olympic Winter Games in Beijing provides only for English and French as languages before the CAS ADD.

- English is the only official language of the ISU.

50. The Sole Arbitrator, taking into consideration the arguments brought forward by the Parties, notes that a number of submissions, documents and exhibits have already been filed by the Parties in English, that the Athlete’s representatives master English perfectly and that for any oral communication or hearing, the Athlete may make use of an interpreter and that therefore her procedural rights would not be curtailed by the use of English.

51. Therefore, the Sole Arbitrator finds that English is the most appropriate language for this arbitration.

VII. MERITS — A. Commission of the ADRV

52. Article 2.1 of the IOC ADR provides that the presence of a Prohibited Substance or its metabolites or markers in an athlete’s sample constitutes an ADRV. In particular, sufficient proof of an ADRV under Article 2.1 is established by the presence of a Prohibited Substance or its Metabolites or Markers 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 Athlete’s B Sample confirms the presence of the Prohibited Substance or its metabolites or Markers found in the Athlete’s A Sample”.

53. Clostebol metabolite was found in the Athlete’s A-Sample. Clostebol belongs to Class S1(1) (Anabolic Androgenic Steroids) of the WADA Prohibited List 2022.

54. The analysis of the B-Sample performed at the request of the Athlete confirmed the results of the A-Sample, namely the presence of a Prohibited Substance, i.e. Clostebol metabolite.

55. The IOC submits that it has discharged its burden of proof, pursuant to Article 3.1 of the IOC ADR, of establishing the Article 2.1 and/or Article 2.2 ADRV.

56. The Athlete has expressly accepted the alleged ADRV and admitted an ADRV pursuant to Article 2.1 and/or Article 2.2 of the IOC ADR.

57. Therefore, the Sole Arbitrator finds that the Athlete has committed an ADRV in accordance with Article 2.1 and/or 2.2. IOC ADR.

B. Consequences

58. This case concerns an Athlete who competes in an Individual Sport, as defined in the IOC ADR as “Any sport that is not a Team Sport”, where “Team Sport” is defined as “A sport in which the substitution of players is permitted during a Competition”.

59. Under the IOC ADR, the Consequences of an ADRV are limited to consequences in connection with the Beijing Winter Olympics.

60. Apart from the establishment of the ADRV itself, the consequences of an ADRV are specifically set out in Articles 9 and 11 of the IOC ADR at set out above.

61. Article 9 of the IOC ADR applies to ADRVs in Individual Sports in connection with an In- Competition test. As a consequence, the Athlete’s result obtained in that competition, namely her 11th-place finish in the pairs skating (short programme), must automatically be disqualified.

62. Article 11.3 of the IOC ADR provides consequences to teams in sports which are not “Team Sports”. In the present case, Article 11.3 applies as the pairs skating competition involves a team of two, but not within a “Team Sport”. Article 11.3 states that the CAS ADD shall apply the rules of the relevant International Federation, being the ISU in the present case, to determine the consequences to be imposed on the team.

63. Article 11.2.1 of the ISU ADR provides: “11.2 Consequences for Teams 11.2.1 An anti-doping rule violation committed by a member of a team, including substitutes, in connection with an In-Competition test automatically leads to Disqualification of the result obtained by the team in that Competition, with all resulting Consequences for the team and its members, including forfeiture of any medals, points and prizes”.

64. As a consequence, the results obtained by the Athlete in the Teams competition event at the Olympic Winter Games Beijing 2022 are disqualified with all resulting consequences including forfeiture of the medal, diploma, medallist pin, points and prizes.

65. Further, the results obtained by the team of the Olympic Athletes from Spain in the pairs skating (short programme) event at the Olympic Winter Games Beijing 2022 are disqualified with all resulting consequences including forfeiture of the medal, diploma, medallist pin, points and prizes.

66. The Sole Arbitrator notes that the Athlete expressly reserves her right to seek the elimination or reduction of the ineligibility period on the basis of “No Fault or Negligence” in further disciplinary proceedings outside the period of the Olympic Games. Such reservation is the right of the Athlete and more information will follow concerning the next steps in this procedure in due course following the Games.

67. The anti-doping rule violation now having been determined, the IOC is no longer a party to this procedure and with the issuance of this Order, the IOC’s participation in these proceedings is hereby terminated.

VIII. CO-APPLICANT ISU

68. Further to the ISU’s request to participate as a Co-Applicant in this procedure, the Sole Arbitrator notes the ISU’s delegation of power to the CAS ADD during the Beijing Winter Olympics in accordance with Articles 7.1.2 and 10.2.2 of the IOC ADR. In this regard, the ISU’s request is granted.

69. In application of Articles 7.1.2, 7.9 and 10.2.2 of the IOC ADR, these proceedings shall continue by and between the ISU, who joined these proceedings as Co-Claimant, and the Athlete, in regard to the consequences of the ADRV which may be imposed on the Athlete. The Sole Arbitrator, after consultation with the Parties, shall determine the procedural directions applicable to the remaining part of the arbitration and shall issue, at the conclusion of these proceedings following the Olympic Games, a final award, all in accordance with Article 20 of the CAS ADD Rules.

IX. COSTS

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X. APPEAL

75. Article 8 of the 2019 ISU ADR provides:

8.3 At the end of the hearing, or on a timely basis thereafter, the CAS panel will issue a written decision that includes the full reasons for the decision and for any period of Ineligibility imposed, including (if applicable) a justification for why the greatest potential Consequences were not imposed.

8.4 The decision may be appealed to the CAS as provided in Article 13. Copies of the decision will be provided to the Athlete or other Person and to other Anti-Doping Organisations with a right to appeal under Article 13.

76. Pursuant to Article A21 of the ADD Rules, this award may be appealed to the CAS Appeals Arbitration Division within 21 days from receipt of the notification of the final award with reasons in accordance with Articles R47 et seq. of the CAS Code of Sports-Related Arbitration, applicable to appeals procedures.