Tribunal Arbitral du Sport Court of Arbitration for Sport Tribunal Arbitral del Deporte
CAS OG 22/08-22/09-22/10 – Page 36
the overarching principle of justice and proportionality on which all systems of law, and the [WADC] itself, is based.” CAS 2006/A/1025.
201. This is an exercise in interpretation, not in rewriting rules or making policies that
are better made by sporting bodies exercising proper governance. The Panel wishes to emphasize that it does not see itself as a policymaker or rulemaker, but it is properly called upon, as are courts around the world, to interpret rules and how they work. See, e.g., OG 22/06, paras. 7.16-18. Here, the failure of the antidoping authorities to reconcile the special rules they have created for Protected Persons and rules they have created for athletes who are not Protected Persons requires the involvement of this Panel.
202. Accordingly, the Panel determines that in cases involving Protected Persons,
their Provisional Suspensions should be evaluated as optional Provisional Suspensions under WADC 2021 Article 7.4.2 and its progeny. The Panel determines that Ms Valieva was entitled to benefit from being subject to an optional Provisional Suspension as a Protected Person and that, under the facts and circumstances, the option not to impose a Provisional Suspension should have been exercised so that she would not be prevented to compete in the OWG 2022.
203. Putting aside the analysis above, and as an alternative basis for the Panel’s
decision, the Panel considers that in considering the lifting of the Provisional Suspension for this Athlete, under the narrow facts of this case and the situation in which this Athlete finds herself through no fault of her own, and where the Athlete could have filed a request for provisional measures with the Appeals Division of CAS had she not been put into the current CAS Ad Hoc Division proceeding by the Applications of the IOC, WADA, and the ISU, the well-accepted CAS and related standards used for assessing requests for provisional relief are appropriate to consider and yield the same outcome.
204. Article 37 of the CAS Code as well as Article 14 of the CAS Ad Hoc Rules permit
provisional relief to be awarded by CAS panels upon a proper showing.
205. In accordance with regular CAS jurisprudence, and as a general rule, when
deciding whether provisional measures may be granted, it is necessary to consider whether the measure is necessary to protect the applicant from irreparable harm, the likelihood of the applicant succeeding in the substantive appeal, and whether the interests of the applicant outweigh those of the Respondent. See CAS 3571/72; CAS 2003/0/486; Orders of CAS 2013/A/3199; CAS 2010/A/2071; 2001/A/329; and CAS 2001/A/324. These criteria are cumulative. See Orders of CAS 2013/A/3199; CAS 2010/A/2071; and 2007/A/1403. Accord, Paolo Patocchi, “Provisional Measures in International Arbitration”, in International Sports Law and Jurisprudence of the CAS (M. Bernasconi, ed.), pp. 68-72 (2012); Jeffrey Benz and William Sternheimer, “Expedited Procedures before the Court of Arbitration for Sport”, CAS Bulletin
