Questions remain about eligibility process for neutral athletes seeking spot in Korea

LAUSANNE, Switzerland – Now that it seems Russia will not prevent its athletes from trying to compete under the Olympic flag as “Olympic Athletes from Russia,” questions loom about how that team will be determined in the two months before the start of the Pyeongchang Olympics.

Here’s a look at what we know so far about what is expected to be a complex process unfolding before the Games:

Who will decide which Russian athletes are eligible?

Valerie Forneyron, a former French Sports Minister, will chair the panel. She is the head of a newly created Independent Testing Authority, which the IOC is helping to establish in Switzerland to take over drug testing in international sport.

The IOC will appoint Richard Budgett, its medical director, to the panel. The World Anti-Doping Agency and Doping Free Sport Union will each appoint a person to the panel. A WADA spokeswoman said the agency does not yet have that information. DFSU did not immediately return an email from USA TODAY Sports.

The groups represented on the panel are part of a pre-Games testing taskforce that has sought to guide testing in the lead-up to the Pyeongchang Olympics.

“This is why we chose this panel because this panel has the best knowledge and best expertise about all the intelligence being available about different athletes because they have been devising this very vast pre-Games testing program and there they have all the intelligence available, be it from National Anti-Doping Agencies, be it from WADA, be it from the international federations, be it from the different reports,” said IOC President Thomas Bach. “And they will take everything into consideration before making a recommendation.”

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The IOC’s decision differed from its approach before Rio, when it left decisions on athletes’ eligibility to the international federations that govern each sport.

“I think it needs to be as independent as it can and should be more independent,” said U.S. Anti-Doping CEO Travis Tygart. “It’s good, and it’s better than what they did at Rio giving it to the IFs, who had neither the resource nor the experience and expertise to make a fair decision.”

How will the panel decide which Russians qualify for the Games?

The devil is in the details here, and which criteria the panel uses will go a long way to determining how many Russians ultimately compete in Pyeongchang.

The IOC’s criteria include that athletes have not previously been disqualified or declared ineligible for an anti-doping rules violation. (More on that later.)

They also say that the athletes must have undergone all the pre-Games targeted tests recommended by the taskforce.

Beyond that, it leaves the panel some discretion that athletes must undergo “any other testing requirements” required by the panel.

Those requirements should include that athletes are not implicated in a trove of electronic data from the Moscow lab that WADA is analyzing, said Tygart and whistleblowers Grigory Rodchenkov and Vitaly Stepanov.

WADA received the data in October and it could confirm positive drug tests that were reported as negative to WADA.

“If you are there, if you have tested positive in the past, you cannot be part of the upcoming Olympics,” Stepanov said.

Tygart recommended a minimum number of urine and blood tests, analysis of past tests, no implication in evidence obtained by WADA and an interview under oath.

“If the system is not rigorous … I’m positive he would think that an inadequate solution,” said Jim Walden, Rodchenkov’s attorney.

Will the IOC’s criteria survive a CAS appeal?

Possibly not for one of them, should anyone bring a case.

The IOC’s decision to exclude athletes who have previously been sanctioned for doping almost certainly goes against a Court of Arbitration for Sport ruling from 2011. In that case, CAS ruled invalid the Osaka Rule, which attempted to bar athletes from competing in the subsequent Olympics after serving a serious doping ban.

The IOC tried to institute that requirement before Rio, but CAS deemed it “unenforceable” and allowed seven athletes who fell under the criteria to compete.

Most notably, swimmer Yulia Efimova won two silver medals but was booed and became a foil to American swimmer Lilly King’s outspoken calls that dopers had no place in the Games.

Yet the IOC has tried again, and the question could come before CAS again if an athlete otherwise meets other criteria but is prevented from competing.

“You may remember how disappointed there, not only I, but we all were that CAS then obliged the IOC in Rio to allow Mrs. Efimova to participate,” Bach said. “But legally speaking, this decision is a different one. Here, we decide whom we want to invite. This is not about an exclusion or about a sanction. This is about the discretion the IOC has with regard to the invitation of clean athletes.”

The IOC has similarly attempted to levy lifetime bans in the individual cases of 25 Russian athletes who have been disqualified from Sochi.

Speaking before the decision this week, Howard Jacobs said those type of bans remain an issue. Jacobs, a sports lawyer who represents athletes around the world, represented the U.S. Olympic Committee in the case challenging the Osaka Rule.

“The basis of the ruling was that the WADA code controls sanctions and that the IOC has agreed to follow the WADA code and the additional ban in the Osaka case was a single Olympic Games after the end of the suspension they said was an additional sanction, which is in violation of the WADA code,” Jacobs said. “I don’t see anything that’s changed there. They’re still signatories of the WADA code.”

What could that mean for Russians in Pyeongchang?

It’s unclear, but it’s likely to be fewer than the 214 that competed in Sochi. Already, several defending medalists – including cross country skier Maksim Vylegzhanin, and skeleton athletes Aleksandr Tretyakov and Elena Nikitina – have been sanctioned and had their results disqualified. They are among 22 Russian athletes who challenged their  cases to CAS on Wednesday.

Russia is a winter sporting power, so the absence of its athletes is likely to be felt in sports like figure skating, hockey and biathlon.

The IOC said it could field a team of neutral athletes if enough are approved by the panel.

For some Russians who haven’t been sanctioned for doping, questions remain about whether they will pursue the option to compete as “Olympic Athletes from Russia.”

Short track speedskater Victor An told Yonhap news agency that he planned to compete as a neutral athlete.

Figure skater Evgenia Medvedeva, the two-time defending world champion, was part of the Russian delegation that presented its case to the IOC on Tuesday. In a translated version of her speech to the executive board, the Ice Network reported that she could not compete as a neutral athlete.