FIS on Allowing Suspended Russian Skiers to Rejoin National Team: It’s ‘Special Circumstances’

In part of the media storm following the Court of Arbitration for Sport’s response to an appeal by six Russian cross-country skiers, Russian Ski Federation President Elena Valbe made a surprising assertion: that the athletes, who remain provisionally suspended by the International Ski Federation (FIS), are allowed to train with the national team.

This is not generally the case for athletes serving suspensions, but FIS Anti-Doping Coordinator Sarah Fussek confirmed the organization’s stance.

“You cannot really say it is a deviation [from the norm] because we have not had these [types of] facts on the table before,” she said in a phone interview on Friday. “This is a special case and it requires special handling.”

Are All Provisional Suspensions Created Equal?

FIS more often deals with cases which start with a positive drug test, or “adverse analytical finding”. A positive test results in a nearly-automatic suspension while the case proceeds – called a “mandatory provisional suspension”.

The cases of Alexander Legkov, Maxim Vylegzhanin, Alexey Petukhov, Julia Ivanova, and Evgenia Shapovalova arose via investigation started by journalists, continued by Richard McLaren on behalf of the World Anti-Doping Agency, and now being conducted by the International Olympic Committee (IOC).

“The investigation of the alleged anti-doping rule violations will be carried out by the IOC Disciplinary Commission, which has the results and case management authority for anti-doping at the Olympic Winter Games, whereby the provisional suspensions are imposed by FIS,” stated a FIS press release announcing the suspensions on Dec. 22, 2016.

In cases without a positive drug test, sports federations are allowed to implement an “optional provisional suspension”. This is what FIS put in place on the six Russian skiers, whose samples were allegedly tampered with at the 2014 Olympics.

Fussek said she awaited a written explanation from the FIS Anti-Doping Panel, which gave the recommendation to the athletes that they could train with their national team again. For privacy reasons and due to rules governing ongoing cases, FIS cannot not share documents which were provided to the athletes explaining such decisions.

However, Fussek understood that it was because of the optional nature of the provisional suspension that the athletes were being allowed to officially train again (all had been training on their own while serving their suspensions).

“As you know, we do not have an adverse analytical finding where a mandatory suspension would have been put in place,” Fussek said. “Presumably they have decided for that, because it was special circumstances… they would give them a special allowance to train. They have decided not to prohibit them to train in order to keep a balance between the provision of the suspension and the actual consequences. It is an ongoing case with special circumstances.”

Indeed, considerable time that has passed with no news or hearings from the IOC investigation. In the ruling from the Court of Arbitration for Sport (CAS), the organization gave FIS until Oct. 31 to bring a formal case against the athletes, or else their suspensions will be lifted. At that point, they would have waited 10 months.

“The provisional suspension switches into a sanction in face of its duration and the ongoing investigations from which nobody knows how long they will last,” the lawyer for Legkov and Belov wrote in a press release. “The provisional suspension is no longer appropriate if the federation is not in the position to provide full proof that the athlete is guilty of an anti-doping rule violation within a reasonable time.”

FIS is in a strange position because it is waiting on the IOC commission and doesn’t necessarily have control over the time frame. But if allowing the athletes to train with the national team was FIS’s attempt to mitigate these special circumstances and the long wait, it does not appear to have a formal basis in anti-doping rules. There are no specific guidelines in the FIS Anti-Doping Rules or the World Anti-Doping Code specifying what is allowed of athletes under mandatory versus optional provisional suspensions, if indeed there is a difference.

Those rules only note the meaning of a provisional suspension more generally: “Provisional Suspension means the Athlete or other Person is barred temporarily from participating in any Competition or activity prior to the final decision at a hearing conducted under Article 8,” the 2016 FIS Anti-Doping Rules state at the top of page 61.

In prior rulings against the skiers, it was made clear that anything involving the national team was off-limits.

On Dec. 30, 2016, FIS denied an appeal by the skiers, who wanted to be reinstated in time for the Tour de Ski.

“As a result of the decision, all of the above mentioned athletes may not take part in any competitions or national team activities,” FIS wrote in their press release at the time.

And in a Jan. 25, 2017, press release confirming the decision to uphold the provisional suspensions of Alexander Legkov and Evgeny Belov, FIS again wrote, “as a result of the decisions, the above-mentioned athletes may not take part in any competitions or national team activities.”

So what constitutes “activities”? The 2017 International Standard for Testing and Investigations, published by the World Anti-Doping Agency (WADA), defined “team activity” as “Sporting activities carried out by Athletes on a collective basis as part of a team (e.g., training, travelling, tactical sessions) or under the supervision of the team (e.g., treatment by a team doctor).”

However, that was in reference to whereabouts reporting, not to allowable activities under a suspension.

Unwittingly, A Trap?

The skiers may want to be wary of FIS’s allowance. One reason that an athlete’s treatment during a provisional suspension is important is because the time served in a provisional suspension is usually included in the period of their final suspension as well – credit for time served.

“If an Athlete or other Person voluntarily accepts a Provisional Suspension in writing from FIS and thereafter respects the Provisional Suspension, the Athlete or other Person shall receive a credit for such period of voluntary Provisional Suspension against any period of Ineligibility which may ultimately be imposed,” read the FIS Anti-Doping Rules (page 43).

And once an athlete is ineligible, they cannot participate in training or any other national team events.

“No Athlete or other Person who has been declared Ineligible may, during the period of Ineligibility, participate in any capacity in a Competition or activity (other than authorised anti-doping education or rehabilitation programs) authorised or organised by FIS or any National Ski Association or a club or other member organisation of FIS or any National Ski Association, or in Competitions authorised or organised by any professional league or any international or national level Event organisation or any elite or national-level sporting activity funded by a governmental agency,” the FIS Anti-Doping Rules state (page 44).

Below this rule, FIS goes out of its way to clarify even further what types of activities are not allowed during a period of ineligibility.

“For example… an Ineligible Athlete cannot participate in a training camp, exhibition or practice organised by his or her National Ski Association or a club which is a member of that National Ski Association or which is funded by a governmental agency… The term ‘activity’ also includes, for example, administrative activities, such as serving as an official, director, officer, employee, or volunteer of the organisation described in this Article. Ineligibility imposed in one sport shall also be recognised by other sports.”

Logically, time served under a provisional suspension should be counted in any final duration of ineligibility only if an athlete behaved the same way during their provisional suspension as they are required to during ineligibility.

The Russian skiers hope to be proven innocent, and act confident that they will be.

“The athletes will be free to participate in the competition season 2017/2018 and the World Cup 2017/2018 starting 24.11.2017 in Ruka if the ongoing investigations of Oswald Commission of IOC will not bring out new facts and new evidence beyond the facts published by Prof McLaren and if the athletes will not be definitely sanctioned based on such new facts,” Legkov and Belov’s lawyer wrote in their press release. “The defense has no reason to believe that the investigations will bring out such new facts.”

But if the skiers do face sanctions after their final hearings — it would no doubt devastate them if those suspensions started from the hearing date, not from Dec. 22, 2016, when they were very first provisionally suspended.