A Court of Arbitration for Sport (CAS) decision to reinstate gold and silver medals to a Russian cross-country skier has been appealed to the Swiss Federal Tribunal (SFT) by the International Olympic Committee (IOC).

CAS Decision

In late 2017, the IOC stripped Russian cross-country skier Alexander Legkov of gold and silver medals he won at the 2014 Winter Olympics Sochi 2014 (Sochi 2014) and handed him a lifetime ban for anti-doping violations. The IOC later banned all Russian athletes from taking part in the 2018 Winter Olympics in Pyeongchang due to a programme of state-sponsored doping it believed was carried out by Russia at Sochi 2014. 

Legkov’s ban, along with bans against 28 other Russian athletes who had participated at Sochi 2014, was overturned by the Court of Arbitration for Sport (CAS) in February of this year. Originally it was held that Legkov had active involvement in urine-sample swapping practices and other doping violations. However the CAS held that there was no direct evidence linking Legkov to sample-swapping. It held that the IOC had inferred that Legkov had committed anti-doping violations due to its belief that state-sponsored Russian doping had been carried out at Sochi 2014. 

Appeal to the Swiss Federal Tribunal

The IOC appealed the CAS decision to the Swiss Federal Tribunal (SFT), the only avenue of appeal. There is one substantive ground and four procedural grounds of appeal available to the IOC under the Swiss Private International Law Act (PILA). 

The IOC has publicly stated that the CAS decision imposed an unduly high burden of proof to prove the doping violations. Should the IOC raise this argument it will need to rely on the only substantive ground of appeal and establish that the CAS decision violated fundamental legal principles and is therefore “incompatible with public policy” under Article 190 of PILA.

Worldwide & Unlimited Bans

The first CAS decision to be overturned on grounds of fundamental legal principles occurred when the SFT overturned a worldwide and unlimited ban on Brazilian footballer Matuzalem in 2012. In 2007 Matuzalem terminated his contract without notice with Ukrainian club Shakhtar Donetsk and joined Spanish club Real Zaragoza. CAS ultimately held Matuzalem and Real Zaragoza jointly liable for €12 million in compensation to Shakhtar Donetsk. When the compensation was not paid FIFA imposed a worldwide and unlimited ban on Matuzalem, which was subsequently upheld by CAS. The SFT overturned the ban, finding that although Matuzalema “agreed” to the ban by contracting into the FIFA system, this constituted an “excessive commitment” which required him to contract out of his own freedom. The SFT held that this violated fundamental principles of law and public policy.

The first CAS decision to be overturned on grounds of fundamental legal principles occurred when the SFT overturned a worldwide and unlimited ban on Brazilian footballer Matuzalem in 2012. In 2007 Matuzalem terminated his contract without notice with Ukrainian club Shakhtar Donetsk and joined Spanish club Real Zaragoza. CAS ultimately held Matuzalem and Real Zaragoza jointly liable for €12 million in compensation to Shakhtar Donetsk. When the compensation was not paid FIFA imposed a worldwide and unlimited ban on Matuzalem, which was subsequently upheld by CAS. The SFT overturned the ban, finding that although Matuzalema “agreed” to the ban by contracting into the FIFA system, this constituted an “excessive commitment” which required him to contract out of his own freedom. The SFT held that this violated fundamental principles of law and public policy.

Conclusion

The hearing of the appeal of the CAS decision on Legkov is pending. The SFT’s final decision will have ramifications for the both the IOC and the other 28 Russian athletes whose bans have been overturned. Successful appeals on substantive grounds are rare. This may be due in large part to the high burden of proof appellants are required to reach. It will be interesting to see if the IOC manage to clear the bar in this instance.

Contributed by Patrick Murphy

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