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Russian star suspended by IIHF for doping violation; can appeal to CAS

August 22, 2017

Danis Zaripov moves the puck as a member of the Russian national team (Photo via Alchetron) 

 

Danis Zaripov might be the best active hockey player that North Americans have never heard of. He was a member of Russia’s 2010 Olympic team, won three gold medals with Russia at the World Championships, and captured the Gagarin Cup (given to the winner of the Kontinental Hockey League) four times. Zaripov was also a KHL all-star six times and won the Golden Stick (MVP) award in 2009. While the 2016-17 campaign was Zaripov's 18th professional season, he was still able to produce at a high rate, racking up 45 points in 54 regular season games and 22 points in 18 games for Magnitogorsk Metallurg.

 

But, now that you might have finally heard of him, it doesn’t appear that Zaripov will be an “active hockey player” anymore.

 

Last month, it was reported that Zaripov tested positive for a banned substance, including a stimulant and masking agent during the 2016-17 season. As a result, he has been banned by the International Ice Hockey Federation (IIHF), ice hockey’s international governing body, until May 22, 2019. This has come in the wake of the recent crackdown of doping in Russian athletics.

 

While the appeal is pending, Zaripov could explore the option of playing for an NHL team since the IIHF has no jurisdiction over the league. The NHL, as well as USA Hockey and Hockey Canada, have their own rules and regulations, and the IIHF mainly governs international competitions and the European hockey leagues. So, the IIHF would not be able to block Zaripov from signing with any NHL team.

 

However, it does seem very unlikely that an NHL team would sign a player like Zaripov, who is 36-years old, is an accused doper, and has never played in the NHL. While Zaripov’s KHL team, Ak Bars Kazan, terminated his recently signed two-year contract, NHL Deputy Commissioner Bill Daly has recommended that no NHL team sign a deal with Zaripov.

 

Zaripov is “shocked” by the results of his positive test and supposedly has plans to appeal the suspension in order to save his hockey career.  But, whom does he appeal to and how does this work?

                              

The “whom” is the Court for Arbitration for Sport (CAS), an independent sports organization based in Lausanne, Switzerland (with satellite courts in New York City and Sydney) that facilitate the settlement of sports-related “non-technical” disputes (sponsorships, suspensions, nationality) through arbitration. Any decision made by CAS has the same enforceability as judgments of ordinary courts.

 

There are two divisions of CAS: (1) Ordinary Arbitration Division and (2) Appeals Arbitration Division (there is also a special “Ad Hoc” division that hears urgent cases during the Olympics). The “ordinary” division is a court of first instance, while the “appeals” division hears cases brought to it challenging the decision of an international sports federation or other sports organization.

           

The relevant division in Zaripov’s case is the appeals division. Appeals are heard by a panel of three arbitrators, all of which are highly competent in sports law and/or international arbitration. The Respondent and Appellant each pick an arbitrator from CAS' list of arbitrators, and the third one is appointed by the President of the Appeals Arbitration Division (which is currently Corrine Schmidhauser). An Appellant has 21 days from the date of the decision they're appealing against to file an appeal to CAS (thus, Zaripov must have filed by now).

 

Parties are permitted to appeal to CAS if their individual arbitration agreements specifically allow for it. As stated in Section R47 of the CAS Code:

 

An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body.

 

Section 12.4.4 of the IIHF Disciplinary Code states that all appeals to Doping decisions made by the IIHF Disciplinary Board may be appealed exclusively to CAS, but must do so within 21 days after the receipt of the decision. (NOTE: while I was unable to find specific language stating that the KHL’s agreement with its players permits appeals to CAS, it “has been a traditional tribunal for Russian professional sports.”).

 

Once an appeal is filed, jurisdiction is confirmed and arbitrators are chosen, the Appellant (Zaripov) then files a brief where the facts and legal arguments giving rise to the appeal are stated. Within this brief, there may also be exhibits and a list of witnesses and experts. The Respondent (IIHF) then has 21 days to submit its answer, stating its defense.

 

The arbitrators have full power to review the facts and the law, and can overturn a previous decision. The law applied to the proceeding depends on the situation. As stated in R58 of the CAS Code:

 

The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.

 

Thus, in Zaripov’s case, the World Anti-Doping Code (WADC) would most likely govern the proceeding since the IIHF has adopted the code, and Swiss law would apply subsidiarily since the IIHF was established in Switzerland. Some important WADC principles that would apply here are:

  • Article 2.1.1: “It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, Fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation . . ."

  • Article 3.1: “The Anti-Doping Organization shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the Anti-Doping Organization has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made. The standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability."​​

  • Article 10.2.1: “The period of Ineligibility for a violation of Article 2.1, 2.2 or 2.6 . . . shall be four years where: (1) The anti-doping rule violation does not involve a Specified Substance, unless the Athlete or other Person can establish that the anti-doping rule violation was not intentional; or (2) The anti-doping rule violation involves a Specified Substance and the Anti-Doping Organization can establish that the doping rule violation was intentional.” If this Article does not apply, then the period of suspension will be two years.

  • Article 10.5.1.1: “Where the anti-doping rule violation involves a Specified Substance, and the Athlete or other Person can establish No Significant Fault or Negligence, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and at a maximum, two years of Ineligibility, depending on the Athlete’s or other Person’s degree of Fault.”

 

Terms such as “Athlete,” “Prohibited Substance,” “Fault,” "No Significant Fault or Negligence," and “Use” are all defined in Appendix 1 of WADC.

 

Once the testimony is heard orally by the Panel (which doesn't always happen), the decision is made by a majority decision (if there is no majority, the decision is made by the President of the Panel). Whatever the outcome, the decision is written (available on the CAS website) and states the reasons for the result (click here for example of CAS decision).

 

Zaripov was awarded a two-year suspension for his alleged doping violation, so perhaps he took a non-Specified Substance and/or was able to show a lack of Significant Fault or Negligence. However, not much is known at this point about the specifics of Zaripov’s violation (though more might be revealed in Russian publications, but unfortunately I don’t know Russian).

 

It seems that Zaripov has a tough road ahead of him in reducing or eliminating his suspension, which will essentially end his hockey career. This is why despite all of his career accomplishments, Zaripov said that “a positive verdict in the case for me would be equal to winning the Gagarin Cup.”

 

Sources:

CAS Website

Journal of Dispute Resolution

Georgetown Law Library

Fox Sports

Reuters

TASS

TASS (2)

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