"The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play."
from the IOC Charter
On November 9th 2015 a World Anti-Doping Report was presented, documenting systematic, state-sponsored doping in Russian athletics. The report presented findings of a “deeply rooted culture of cheating” that was carried out with help from doctors, coaches, laboratory staff and even Russian security officials. The report documented a system that used coercive practices to encourage athlete participation in doping, bribes to encourage IAAF (International Association of Athletics Federations) to look the other way and “intentional and malicious destruction of more than 1,400 samples by Moscow laboratory officials". The report found the London 2012 Olympics were “sabotaged” by the “widespread inaction” against Russian athletes with suspicious doping profiles by the world athletics governing body and the Russian federation. It recommended that Russia's athletic federation be suspended from competition and barred from the Olympic Games in Rio in 2016 unless it entirely overhauled its approach. The WADA investigation was spurred by a documentary aired by the German broadcaster ARD that presented interviews with people involved in the Russian doping program, including anti-doping official Vitaly Stepanov and his wife, Yuliya Stepanova, an 800-meter runner. In the wake of these revelations the IAAF took the unprecedented step of suspending Russia from all competitions. It set up an expert task force to investigate Russia and outlined the criteria to which they would be judged. It included the need to immediately introduce disciplinary measures for banned coaches; implement a transparent and efficient anti-doping testing programme and – crucially – to satisfying Wada and the IAAF that its officials, coaches and athletes have acted in accordance with Wada’s anti-doping code.
In June 2016 the expert task force ruled that Russia had not taken sufficient steps to overhaul its testing procedures and prove its athletes were clean. The IAAF therefore upheld the ban not to admit Russia’s track and field athletes to the 2016 Olympics. But the IAAF said that, on the advice of outside lawyers, it had left open a “crack in the door” for Russian athletes who could prove they had been training outside the country to compete under a neutral banner, including whistleblower Yulia Stepanova. Stepanova’s application to compete again had been approved because of her “truly exceptional contribution to the protection and promotion of clean athletes, fair play and the integrity and authenticity of the sport.” Although good progress has been made the IAAF Council was unanimous that Russian athletes could not credibly return to international competition without undermining the confidence of their competitors and the public,” said Sebastian Coe, the IAAF president. The IAAF’s decision concluded that it was impossible to tell whether Russian athletes were clean or not because the system had not been sufficiently reformed.“The deep seated culture of tolerance [or worse] for doping that got the Russian Athletics Federation [RusAF] suspended in the first place appears not to have changed materially to date,” it said. On July 21st 2016, the appeal of the Russian Olympic Committee and dozens of top Russian athletes filed with the Court of Arbitration for Sport (CAS) was rejected. The CAS upheld the ban on Russia’s track and field team from competing at the Rio Olympics.
Just before the CAS-judgment, on the 18th July 2016, a second devastating and damning Wada-report into Russian sport, led by the highly respected Canadian lawyer Richard McLaren, found that the country’s government, security services and sporting authorities colluded to hide widespread doping across “a vast majority” of winter and summer sports. It found widespread state action to hide cheating among Russian athletes in the run up to the London 2012 Olympics, as well as a comprehensive cover up of doping during the World Championships in Moscow and the World University Games in Kazan in 2013 and the Winter Olympics in Sochi in 2014. McLaren also confirmed the staggering allegations made by Dr Grigory Rodchenkov, the head of the Moscow laboratory between 2005 and 2015, that steroid-tainted urine samples were substituted with clean ones in Sochi with the help of Russia’s intelligence and anti-doping officials to enable athletes to pass doping tests.
On 24th July 2016, the IOC (International Olympic Committee) decided not to impose a blanket ban on the Russian team competing in next’s month’s Rio Games. Instead it ruled the 28 individual sports federations which make up the summer Olympics were free to decide the fate of Russians on a case-by-case basis. The IOC president, Thomas Bach, insisted it was important to respect the rights of individual athletes. When Bach was asked whether he would be happy to compete against Russians, he said: “I would feel absolutely comfortable and fine because the protection of clean athletes is what I have always fought for. An athlete should not suffer and be sanctioned for a system in which he was not implicated and where he can show that he was not implicated. I am really convinced of this decision and fine with it.” He feels that by “reversing the presumption of innocence” for Russian athletes and telling them they have to convince their respective international sports federations that they are clean, via a set of undefined “strict criteria”, he has balanced the “desire for collective responsibility against the right for individual justice”. Bach said there would be an “individual analysis” of each athlete’s anti-doping record, which would only recognise tests done by credible international agencies, as the Russian anti-doping system has been dismantled, and it would allow the “specificality” of each sport.
Incredibly, the courageous athlete without whom none of the above would have come to light – the whistleblower Yuliya Stepanova – will not be allowed to compete (contrary to what the IAAF had hoped) because the IOC brought in a rule that stated any Russians who have been previously banned for doping will not be able to take part (also the IOC said it weighed up Stepanova’s contribution to exposing the Russian doping regime, with her “long implication” in it and the fact that she only spoke out after she had already been caught taking drugs). That not only created an enormous inconsistency with other countries whose previously banned athletes will not be similarly affected, but it also goes against legal precedent established in a case it was directly involved in. In this 2011 USOC v. IOC CAS decision, the CAS struck out the IOC’s Osaka Rule (Rule 45 of the Olympic Charter, which mandated that any athlete serving a doping ban of six months or longer would be prohibited from taking part in the next edition of the Olympic Games, see also the PPL blog: Osaka rule and doping at Olympics), because it was deemed unlawful under double jeopardy rules. A highly respected sports lawyer, Mike Morgan, said the IOC is likely to face multiple challenges from Russian athletes at the Court of Arbitration for Sport in the coming days because it had made up “rules on the spot which they know are unenforceable”. “One of the major problems with the IOC’s decision is the Russians who were named in McLaren’s report as being protected have been withdrawn from the Olympics without having their cases tested in court,” he said. “It circumvents the athletes’ due-process rights. Simply being named as a protected athlete does not mean they have taken a banned substance.”
Bach said the Stepanovs would be invited to the Rio Olympics as guests, suggesting the invitation would be “an encouragement for all future whistleblowers”. Oh yes, this will certainly encourage future whistleblowers to speak out when they notice illegal activity...The Stepanovs have of course appealed the IOC decision.
Update: On the 31st of July the IOC announced that a three person IOC panel will have the final say on the eligibility of Russian competitors.The panel will receive independent advice from CAS before making its decisions. Athletes who have already been ruled out by their international federations and not granted CAS approval will not be put forward to the panel.
The Russian doping scandal has raised a sharp conflict between the rights of individual athletes and the fight against doping. We now have evidence that Russia ran a systemic, state-sponsored doping program. What we don’t have is evidence that every single Russian athlete took part. Is it fair to punish a whole nation of athletes? Is it fair for clean athletes to compete against (potential) cheaters? When is it OK to potentially deprive clean athletes of a chance to compete in order to punish their associates who cheated? If the involved Russian athletes were left with little choice but to participate in doping programmes if they wanted to make the team, in what way are they to blame? Governments, individual athletes and officials have a role to play if we don't want to see the Olympic spirit fade away. Find that moral compass.
For other blogs and publications, see our research guide Olympic Games.
picture: Russian Doping Scandal © Chappatte - www.globecartoon.com[number of readers: 1820]
A selection of relevant publications from the Peace Palace Library collection
- Duval, A., "Getting to the games: the Olympic selection drama(s) at the court of arbitration for sport", International Sports Law Journal, 16 (2016), No. 1, pp. 52-66.
- Gotlib, Z.,"Athletes Have Rights, Too, Right: Investigating the Extreme Unfairness in Sports' Purported Supreme Authority - Why the International Court of Arbitration for Sport Fails to Reign Supreme", Cardozo journal of international and comparative law, 24 (2015-2016), No. 1-2, pp. 389-422.
- Kornbeck, J., "Anti-doping governance and transparency: a European perspective", International Sports Law Journal, 16 (2016), No. 1, pp. 118-122.
- The World Anti-Doping Code 2015: ASSER International Sports Law Blog symposium, International Sports Law Journal, 16 (2016), No. 1, pp. 99-117.