How Much Evidence is Enough to Ban a Nation from the Olympic Games?
The Olympic Games, arguable the single most recognizable international sporting event in the world, took place in Rio, Brazil this August. The Olympics, over time, has become synonymous with peaceful international unity in the face of whatever global adversity may be taking place.1 The Olympics is also a time where athletes have the honor of representing their country on the global stage.
Unfortunately, on the lead up to the Rio Games, the excitement, for one of the most prominent sporting nations in the Olympic Games, was marred with scandal, disappointment, and doubt. The Russian team, known for demonstrating supreme sporting prowess, with more medals and world records than most, had their accomplishments greatly overshadowed by damaging findings from the World Anti-Doping Agency (“WADA”). A report sanctioned by WADA and produced by Canadian professor of Law, Richard McLaren (the “McLaren report”), showed damning evidence that many Russia athletes were party to state-sponsored doping across a significant number of summer and winter Olympic sports. 2
The McLaren report, corroborating allegations made by the former director of the Moscow Anti-Doping Agency, exposed a convoluted operation of swapping urine samples. This was facilitated by a “mouse hole” in the wall of a Sochi laboratory which was used at night to replace dirty urine samples with clean ones. 3
Whistleblower, Yuliya Stepanova, a Russian track and field athlete, played an integral role in the uncovering of the statewide wrongdoing. In 2014, Stepanova and her husband gave a detailed account of a highly complex doping operation run by the Russian government. 4
Consequently, the International Olympic Committee (the “IOC”) were forced to decide whether Russia would be allowed to participate in the Rio Games. Although WADA’s findings evidenced statewide intentional misconduct, the IOC, contrary to the popular held view that Russia should be banned entirely, 5 decided that the remedy was to impose more stringent methods of selecting and testing Russian athletes. 6 The presumption of innocence was no longer available for Russian athletes, and instead, they had to prove that they were clean, even if they did not have prior positive drug tests. 7
The IOC also decided to give individual sporting federations the ultimate power to decide whether or not to impose a blanket ban on Russian athletes competing in their sport. 8 The International Association of Athletics Federations (the “IAAF”) decided to ban all Russian athletes from competing in track and field (only one track and field athlete, Darya Klishina, successfully argued that she was outside of the Russian system since she lived and trained in the US). 9 Following an appeal by the Russian Olympic Committee, this decision was upheld by the Court of Arbitration for Sport (the “CAS”). 10 The CAS resolve sports related disputes between parties that have entered an arbitration agreement specifing the CAS as the forum for dispute resolution. 11
Much like attorneys, athletes are expected to have a certain level of professional responsibility. Stepanova did the honorable thing and blew the whistle on the conduct of her federation. However, her unethical conduct, in relation to her previous drug taking in sport, meant she fell short of the stringent requirements implemented by the IOC.12 Moreover, the Ethics Commission made it clear that the circumstances in which Stepanova decided to blow the whistle, when she had already been caught taking drugs, did not satisfy the ethical requirement of an Olympic athlete. 13
Russia’s narrow escaped from a blanket ban on competition in the Olympic Games raises the question: what evidence would have been sufficient for the IOC to impose a ban on a nation from the Olympic Games? This question was never formally answered. The CAS did not make a ruling on the jurisdiction of the IOC to impose a blanket ban, as the IOC were not party to the arbitral proceedings between the Russian Olympic Committee (the “ROC”) and the IAAF, (who entered an agreement to resolve the dispute by arbitration). 14 Moreover, the IOC did not pursue the issue of a blanket ban because the McLaren report did not implicate the ROC – the committee responsible for organizing and entering the Russian Olympic team.
The ROC asked the CAS to “review specific legal issues” relating to the IAAF Competition Rule 22.1(a) and 22.1A. Under these Rules, the IAAF can ban athletes from competitions held under IAAF Rules if they have suspended their national federation (save those athletes that satisfy the stringent testing protocol previously mentioned). The IAAF had already suspended the All-Russia Athletic Federation (the “ARAF”) in November 2015, when evidence began to surface of their involvement in doping. 15 The CAS concluded that the IAAF’s decision, to apply the relevant Competition Rules, was valid and in accordance with the Olympic Charter. 16
While Russia, as a nation, was not banned from the Olympics, the McLaren report sent shockwaves throughout the sporting community – particularly the track and field world. Russian athletes are far from the only athletes to be caught taking drugs in international sport. Sadly, many athletes, from a variety of countries and sporting disciplines, have been banned from international competition for doping. Every new case of doping is a huge blow to the integrity of achievements in international competitive sport and the Olympic movement. Unfortunately, there is a disparity between the speed at which drug cheats learn to subvert drug testing methods, and the speed that WADA improve testing techniques. Perhaps one day WADA will win the race? Us sports law enthusiasts will continue to watch with bated breath at the number of legal proceedings involving drugs in competitive sport.