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New Decisions Affecting the Participation of the Russian Athletes in the Pyeongchang 2018 Winter Olympic Games: Are the Strongest Sporting Sanctions Still To Come?

By Sergey Yurlov

Introduction

The recent decisions of the International Olympic Committee ("IOC") and World Anti-Doping Agency ("WADA"), with regard to the participation of the Russian national team in the Pyeongchang 2018 Winter Olympic Games triggered a new flurry of discussions as to the legality of sporting sanctions being imposed by sporting organizations. On November 16, 2017, WADA decided not to reinstate the Russian national anti-doping agency ("RUSADA") until the government publicly accepted the conclusions of the McLaren Investigation, and provided access for appropriate entities to the stored samples and electronic data in the Moscow Laboratory. On December 5, 2017, the IOC suspended the Russian Olympic Committee.

WADA Decision

According to WADA, to be reinstated and compliant with the World Anti-Doping Code ("WADC"), RUSADA must accept the main finding of the McLaren Investigation that a state-backed doping system covered up positive doping samples. More importantly, RUSADA must provide access to the samples stored and electronic database of the Moscow laboratory.

From a legal perspective, the McLaren Investigation's core conclusion cannot be seriously considered without being proven by reliable evidence.

The Investigation was based on unproven allegations, assumptions, hearsay evidence and passing references to the Russian government officials. The key whistleblower, who already fled the country, was Grigory Rodchenkov. Other individuals are supporting his claim of systematic doping, including filmmaker Bryan Fogel, who suggested in his documentary "Icarus" that the Russian doping system harked back to Soviet times. However, Fogel does not introduce any reliable evidence.

The IP Evidence Disclosure Package (the "Disclosure Package"), publicly available at https://www.ipevidencedisclosurepackage.net, is no more than a set of unrelated documents the bulk of which are e-mails. From a legal perspective, this bundle of data appears to be inflated, and would not succeed in an independent court of law. Having reviewed those "documents" and not having any other data (for example, adverse analytical findings, doping samples, and forms), to this author, it is impossible to associate them with any particular athlete, and/or review any of the athlete's doping records. More importantly, no one can determine whether the emails are authentic, and from which source the McLaren team acquired them.

Upon reviewing the Disclosure Package, one may conclude that Russian anti-doping officials were corresponding between each other with regard to doping control issues. However, it does not prove that any athlete committed an anti-doping rules violation by taking a prohibited substance.

One can argue that admissible evidence is not always necessary in doping cases. However, the WADC stipulates that "the Code has been drafted giving consideration to the principles of proportionality and human rights". (https://www.wada-ama.org/sites/default/files/resources/files/wada-2015-world-anti-doping-code.pdf.) More importantly, Article 8 of the WADC presupposes that all hearings should be fair. If WADA takes into account human rights, then it should conduct its proceedings and sanction athletes fairly based on reliable evidence. Otherwise such a procedure cannot be deemed as legally valid and fair with regard to athletes.

It appears that the McLaren Investigation understands the frailty of evidence collected, which is why many documents (for example, laboratory data, documents relating to collected samples, doping control forms, statements, correspondence certified by a notary etc.) prepared by McLaren have not been disclosed. However, the IOC and WADA are satisfied with the results of the McLaren Investigation. It is clear that if one party to a dispute adduces certain evidence, the other should, at the latest, have the right to review this evidence and provide its own. Why, then, do they not disclose all documents relating to doping records of the Russian athletes?

Given the existing state of things, it appears that the McLaren Investigation's conclusions will stand in the Court of Arbitration for Sport ("CAS") if any Russian athlete files an appeal against the WADA and/or IOC decision. However, this evidence would be inadmissible if the case was considered by an independent and impartial state court of law, where the standards of proof are higher than those being employed by private sports tribunals.

Article 3.2 of the WADC prescribes that "facts related to anti-doping rule violations may be established by any reliable means, including admissions".

Pursuant to the comment to Article 3.2 of the WADC "for example, an Anti-Doping Organization may establish an anti-doping rule violation under Article 2.2 based on the Athlete's admissions, the credible testimony of third Persons, reliable documentary evidence, reliable analytical data from either an A or B Sample as provided in the Comments to Article 2.2, or conclusions drawn from the profile of a series of the Athlete's blood or urine Samples, such as data from the Athlete Biological Passport". (emphasis added)

Here, the issue is contrary to how evidence is handled in court, where evidence is analyzed and estimated collectively. For example, why does the McLaren Investigation do not refer to reliable analytical data from either A or B samples, athletes' blood, and/or urine samples, or to their biological passports?

Only reliable evidence could confirm the use of prohibited substances and/or methods by athletes (i.e. adverse analytical findings, any documents related to review those findings in order to determine whether a particular athlete had a therapeutic use exemption, any notifications and/or forms). However, in this situation, all charges are based on allegations and assumptions. The circumstantial evidence should be confirmed by reliable evidence.

IOC Decision

The IOC decision is based on the IOC's Disciplinary Commission's Report ("Report") from December 2, 2017. Before reviewing the IOC Decision, we will briefly comment on the Report.

The Report is a document consisting of 30 pages that describe systemic manipulation of the anti-doping rules and system in Russia. In reviewing the Report, the following should be noted: Paragraph 1.1 contains the following statement: "it was decided to reverse the rule of the presumption of innocence for the Russian athletes." Can the IOC, a non-governmental organization, do this? Does this actually mean that athletes are treated less favorably than hardcore criminals who enjoy legal protection and are innocent until proven guilty in a court of law?
Pursuant to Article 3.1 of the WADC, it is usually WADA that proves when an anti-doping rules violation occurred. Although the same Article prescribes that in some cases an athlete should rebut a presumption of guilt, the issue is whether such a provision is lawful and/or needs to be amended.

Since WADA binds itself with the basic principles of law (as proscribed by the WADC provisions), all WADA proceedings should be based on them. It appears illogical that criminals have more rights than athletes. In this author's opinion, an athlete may be considered guilty of doping when his or her guilt is established in due course and decided by a respective authorized legal body.

The WADC's provisions cannot contradict the basic principles of law, and should be in strict compliance with the provisions of well-known international treaties, declarations, and conventions containing explanations of human rights. Any investigation conducted in violation of those provisions is unlawful, and its findings should not be taken into account when taking the decision to sanction any athlete.

Paragraph 1.2 reads as follows: "the IOC DC reminds that is has no investigation power similar the one of the law enforcement agencies. Thus, it is dependent on the information available in the public domain, the elements published by the IP and the information shared voluntarily by the persons concerned." Having read the above text fragment, one could conclude that the Report is based exclusively on (i) publicly available information; (ii) certain information and documents provided by the McLaren Investigation; and (iii) information obtained from certain whistleblowers and former sports officials. It must be noted that there is no information as to whether such evidence was verified by independent experts and officials.

In Paragraphs 1.2 and 2.2.6, continues: "the IOC DC also interviewed orally/or in writing some of these main actors involved in order to better understand their respective involvement...after having conducted a number of witness interviews..."

It does not contain a named list of those "main actors". More importantly, the Report is unclear as to whether anyone was keeping records when interviewing those actors. Even if it was the case, such records, or at least their transcriptions, are not attached to the Report.

Given the above it is impossible to define whether information obtained from those "main actors" is true or false. In any case, such information cannot be presented as evidence in proceedings based on the rule of law and conducted by an impartial and independent body, as the sources of this information are not defined.

The Report refers to many documents as "written affidavit" (Paragraph 2.2.9), "report" (Paragraph 2.3.1), "all the independent and impartial evidence" (Paragraph 3.1). Notwithstanding that the Report refers to the affidavit provided by Rodchenkov, it does not contain any list of documents.

Now to take a closer look at the IOC decision, which is headlined as follows: "IOC suspends Russian NOC and creates a path for clean individual athletes to compete in Pyeongchang 2018 under the Olympic flag." The first sentence reads as follows: "the conclusions of the Schmid Report, on both factual and legal aspects, confirmed the systemic manipulation of the anti-doping rules and system in Russia". However, it must be noted that the Schmid Report's findings were based on the McLaren Investigation, which, at the latest, is unpersuasive. In addition, the Schmid commission failed to find "any documented, independent and impartial evidence confirming the support or the knowledge of this system by the highest State authority".

Thus, the IOC believes in the existence of so-called state-backed doping system has been proven by reliable evidence. As a result, the IOC suspended the Russian NOC with immediate effect. According to the IOC decision, the Olympic door may be theoretically opened for those Russian athletes who meet the following requirements:

 an athlete should be eligible pursuant to rules of a particular sport;
 an athlete should have not been committed any anti-doping rules violations;
 an athlete should have been tested and should meet all testing requirements as defined by respective sporting organizations.

This decision clearly points out that the IOC reserves the right to take any measures aimed at sanctioning athletes who participated in the so-called state backed doping system. Although Russian athletes have the right to file entry forms for the IOC's consideration, the IOC decision precisely stipulates that a final list of the athletes having the right to participate in the Olympic Games will be determined exclusively by an IOC panel chaired by Valerie Fourneyron.

Having reviewed the requirements prescribed by the IOC decision, many disputes may arise with regard to the enforceability of the requirement relating to "clean" athletes' doping records, especially because this requirement was declared invalid last year by CAS violating athletes' right of natural justice. (Any athlete who has been convicted of a prior ADRV is not allowed by the Russian Olympic Committee to be entered for the Rio Games. It is therefore difficult to reconcile this paragraph with the stated aim to provide the athletes with an opportunity to rebut the presumption of guilt and to recognize the right to natural justice. As a consequence, the CAS Panel found that Paragraph 3 of the IOC Decision is unenforceable, as it does not respect the athletes' right of natural justice. (The press release is available at: http://www.tas-cas.org/fileadmin/user_upload/Media_Release__English__Karabelshikova_final.pdf.) The existence of the requirement means that athletes are punished twice for one violation.

The third requirement is too broad and unclear. It appears that before applying it, it should be clarified.

It must also be noted that any requirements imposed by the IOC cannot be stronger than those being applied to other athletes. Otherwise, this would contradict the principle of equal treatment.

The IOC already announced that every eligible Russian athlete must undergo anti-doping tests with higher benchmarks than for athletes from other countries in the period leading up to the Pyeongchang 2018 Winter Olympics. (http://www.sportsintegrityinitiative.com/wada-warned-ifs-insufficiency-mclaren-report-evidence/.) This means that higher standards are being applied, even to those innocent athletes who have never been found guilty of doping.

Conclusion

The existing "evidence" relating to the use of prohibited substances and/or methods by the Russian athletes would be deemed insufficient in a court of law. However, given the existence of decreased standards of proof, the IOC, WADA, and most international sporting federations are satisfied with such evidence, and already sanction athletes.

The existing situation highlights the following issues: To what extent are sports governing bodies entitled to define the procedure for resolving sport related disputes? Is it lawful to sanction athletes based on weak and actually unproven evidence? Is it possible not to apply the basic principles of law?

Finally, fortunately for some athletes, there are a few, federations that do look further into doping matters, and therefore disagree with the IOC's decision regarding sanctioning athletes. Thus, on January 2, 2018, the Disciplinary Commission of the International Luge Federation refused to sanction Tatyana Ivanova and Albert Demcehnko. (http://www.fil-luge.org/en/news/disciplinary-commission-of-the-fil-to-proceedings-against-ivanova-and-demchenko.)

Hopefully, there will be a light at the end of the tunnel soon.

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This page contains a single entry from the blog posted on February 26, 2018 11:03 AM.

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