Speed Skating Canada v William Dutton Appeal Award Re: Use of Times of Russian Athletes with Anti-Doping Violations in Canadian Olympic Speed Skating Criteria

SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC)

CENTRE DE RÈGLEMENT DES DIFFÉRENDS SPORTIFS DU CANADA (CRDSC)

NO: SDRCC 18-0344

WILLIAM DUTTON

 (CLAIMANT)

AND

SPEED SKATING CANADA (SSC)

 (RESPONDENT)

AND

JORDAN BELCHOS

BENJAMIN DONNELLY

LAURENT DUBREUIL

 (AFFECTED PARTIES)

Attendees at hearing:

For the Claimant: William Dutton, represented by Dr. Emir Crowne, Amanda Fowler

and Liam McFarlane

For the Respondent: Susan Auch, Dominique Gravel, Shawn Holman and Scott Maw,

represented by Steven Indig

For the Affected Parties: Jordan Belchos, represented by Michael Belchos

Benjamin Donnelly

Laurent Dubreuil, represented by Robert Dubreuil and Michaël

Bardagi

SHORT DECISION

(Reasons to follow)

This is my decision pursuant to the Canadian Sport Dispute Resolution Code (January 1,

2015). The Request by the Claimant that the Respondent reconsider its selection criteria is

granted.

The grounds raised by the Claimant in his appeal are as follows:

1. The Respondent made procedural errors in failing to follow its own approved policy.

2. The Respondent made procedural errors in failing to consider relevant information and

in taking into account relevant information.

3. The Respondent exercised its discretion for an improper purpose.

4. The Decisions made were grossly unreasonable in the circumstances.

Background:

The Respondent’s selection criteria included using the International Skating Union (ISU)

rankings for determination of selection. The Appellant argued that the ISU ranking list includes

athletes who have violated anti-doping policies. The Appellant argued that it was unfair for his

results to be compared against such athletes. He further argues that the Respondent failed to

consider its Fair Play Policy after the IOC’s announcement on December 5th, 2017 (the IOC

Announcement), suspending the Russian Olympic Committee from participation in the 2018

Winter Olympic Games. He argued that all of the results by Russian skaters should not be

considered.

The Respondent indicated that it made its decision based on pre-established criteria that the

Claimant had never challenged. It also submitted that the Olympic Selection Committee

considered this argument and determined that the Olympic Performance Standard should not

be modified because (i) the ISU has not revised the SOQC; (ii) appeals of banned athletes have

not yet concluded; (iii) the IOC has not yet issued an invitation list to the 2018 Olympic Games;

and (iv) only the IOC has the discretion to make the final decision on which athletes may

participate and/or be invited to participate to the 2018 Olympic Games.

The Affected Parties supported the decision of Speed Skating Canada.

Conclusion:

The Claimant showed that the Respondent made procedural errors in failing to follow its own

approved policies. The Claimant showed that the Respondent made procedural errors in failing

to consider relevant information and in taking into account relevant information. The Claimant

failed to show that the Respondent exercised its discretion for an improper purpose. The

Claimant failed to show that the Decision made was grossly unreasonable in the circumstances

The Respondent did not show sufficient evidence that it considered how the IOC Announcement

affected its athletes in international rankings that determined eligibility for participation in the

2018 Winter Olympic Games. The Respondent did not indicate how it justified determining its

athletes’ eligibility using results that included competitors who have since been banned for

doping violations. No reasons were given as to what consideration the Respondent gave to its

Fair Play Policy in this circumstance.

Order:

I send this back to the Respondent for reconsideration. The Respondent must consider the

following in the selection process:

a) SSC Fair Play Policy, in particular sections 1.1, 4.3 and 5.1;

b) The IOC Announcement dated December 5, 2017;

c) The McLaren Report;

d) The Schmid Report;

e) That Russian skater, Mr. Pavel Kulizhnikov, appears to be ineligible for the Games as

he will be unable to meet the testing requirements as set out in the IOC

Announcement;

f) That Russian skater, Mr. Artyom Kuznetsov, was banned on December 22, 2017, by

the ISU, for doping violations, and is currently ineligible for participation in the

Olympics. Is it appropriate to wait for the results of his appeal to the CAS which will

only be determined after Canada finalizes its team selections;

g) Whether it should consider any of other Russian skaters’ results in the qualification

period in light of the above reports and the SSC Fair Play Policy.

The Respondent must issue its decision with written reasons demonstrating that they have

considered the above by noon (EST) on January 24th, 2018.

I retain jurisdiction for any matter related to the implementation of my order.

Written reasons for my decision will follow within the timelines prescribed by the Canadian Sport

Dispute Resolution Code.

Signed in Ottawa, Ontario this 21st day of January 2018.

`

David Bennett

Arbitrator

Original signed by David Bannett