By Dr. Thilo Pachmann & Oliver Schreier*
In the last few months, Russia has been linked to negative headlines regarding allegations of systematic doping at the highest levels of the Russian state sports administration. Looking at the newest media releases from the Swiss Federal Supreme Court, one can notice further bad news for Russian Athletes.
On the 7 August 2016, the Governing Board of the International Paralympic Committee (IPC) decided to suspend the Russian Paralympic Committee (RPC) with immediate effect, following the independent Report issued by Prof Richard H. McLaren.
This Report found that the Russian State was manipulating the doping control process and there was a longstanding and systemic doping programme ingrained in Russian sport and Para sport. According to the IPC, the RPC was no longer able to fulfil its membership responsibilities, especially with regard to the IPC Anti-Doping Code (ADC) and World ADC. Consequently, the RPC lost all rights and privileges and, more importantly, the RPC will not be allowed to enter its athletes in the 2016 Paralympic Games in Rio de Janeiro, which begin on 7 September.
The decision of the IPC was appealed by the RPC before the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland. On the 23 August 2016, the CAS decided to dismiss the appeal filed by the RPC, stating that the IPC and the RPC were the only parties to the procedure, not the individual Russian Para-athletes. The RPC then appealed this decision before the Swiss Federal Supreme Court, while also requesting provisional measures to establish a suspensive effect of the IPC decision. This would have allowed Russian Para-athletes of the RPC to participate in the Paralympic Games.
On the 31 August 2016, the Swiss Federal Supreme Court refused to grant the preliminary injunction, arguing that a provisional measure is only granted under very strict conditions, which was not the case with the RPC appeal. Lifting the IPC-imposed suspension of the RPC would only be possible, if the RPC could guarantee compliance with the IPC ADC and the World ADC. Furthermore, the Court weighed the interests of the RPC for an immediate withdrawal of the suspension against the interests of the IPC of combating drug-use in sports and maintaining the integrity of the sport, and found that the latter prevails. The Swiss Federal Supreme Court – just as the CAS before it – did not, however, consider the question of admission of the Russian athletes to the Paralympic Games. According to the Court, these were not a party to the judicial proceedings and the question was, therefore, outside of the scope of the request for provisional measures.
Although the provisional measures were not granted, the Swiss Federal Supreme Court must yet decide on the main issue of the case. The decision on the 31 August 2016, nonetheless, represents the last nail in the coffin of the hopes of the Russian Para-athletes participating in the 2016 Rio Paralympic Games. And this without any fault of their own!
* Dr. Thilo Pachmann and Oliver Schreier of Pachmann Attorneys at Law, Switzerland. They can be reached at firstname.lastname@example.org and email@example.com.