This week has seen the reputation of Russian sport plunge to extraordinary new depths. Monday's publication of Professor Richard McClaren's devastating report ("the McClaren Report") exposing the extent of state run doping at the WADA-accredited laboratory in Moscow and at the Sochi Olympic Games in 2014, has been followed today by the Court of Arbitration for Sport's dismissal of the request for arbitration filed by the Russian Olympic Committee and 68 Russian track and field athletes, and of the appeal by 67 of those athletes against the IAAF's decision to consider them ineligible for the Olympic Games in Rio.
It may of course get worse for Russia. On Tuesday, the IOC confirmed that it would "explore the legal options with regard to a collective ban of all Russian athletes for the Olympic Games 2016 versus the right to individual justice". In its statement, the IOC also said that it would take into account the Court of Arbitration for Sport's decision in reaching its conclusion. Now that decision has been published and the ban on Russian track and field athletes has been upheld, the IOC's emergency meeting on Sunday becomes extremely interesting.
The original IAAF ban
The path towards the ban on Russian athletes from competing in track and field events at Rio 2016 began with the publication on 9 November 2015 of the WADA Independent Commission's report on allegations of "a sophisticated and well established system of state-sponsored doping within the All-Russia Athletics Federation (ARAF)" ("the IC Report"). The 335-page IC Report uncovered a "deeply rooted culture of cheating" within Russian athletics, comprising consistent and systematic use of performance enhancing drugs and the active involvement of doctors, coaches and laboratory personnel who enabled this to happen.
Unsurprisingly, one of the IC Report's principal recommendations was for the IAAF to suspend ARAF. The provisional suspension was subsequently announced on 13 November 2015. The IAAF Council's jurisdiction for suspending national governing bodies is set out in the IAAF Constitution at Articles 6.11(b) and 14.7. The provisional suspension was reaffirmed by the IAAF Council in June 2016 after an IAAF Taskforce found that ARAF had failed to meet the reinstatement conditions imposed on it.
The consequences of ARAF's suspension are detailed in Rule 22.1(a) of the IAAF Competition Rules, which states that all athletes "whose National Federation is currently suspended by the IAAF" will be ineligible for competitions (except national competitions featuring only athletes from the state in question). In light of these consequences, the IAAF made various amendments to its Competition Rules, in particular creating the concept of a "Neutral Athlete". Most important among these amendments was the introduction of Rule 22.1A which created a jurisdiction for the IAAF Council to "exceptionally grant eligibility" to athletes, enabling them to compete as neutral athletes where their National Federation is suspended. The new Rule 22.1A therefore provided a limited carve out for athletes affected by the ARAF suspension and had the potential to enable them to compete at Rio 2016 but seemingly not under the Russian flag (on which see below).
The carve out is limited because the conditions for being granted eligibility, in a situation where the National Federation's suspension is due to its failure to put in place adequate anti-doping systems, are very strict. Athletes must, under Rules 22.1A(b) and (c), demonstrate to the comfortable satisfaction of the IAAF Council either (a) that they are not tainted by their own National Federation's failings and have been subject to fully adequate anti-doping systems (including drug-testing in and out of competition) outside of their country for enough time to provide assurance of integrity; or (b) that they have "made a truly exceptional contribution to the protection and promotion of clean athletes, fair play, and the integrity and authenticity of the sport".
Today's CAS decision and its repercussions
The challenge at CAS was based on a request by the ROC (and the 68 athletes it had purported to select for Rio 2016) to review the validity, enforceability and scope of Rules 22.1(a) and 22.1A. That request has now been dismissed by CAS. Whilst CAS's full reasoning has not been published, its media release states that "the CAS Panel has confirmed the validity of the IAAF's decision to apply Rules 22.1(a) and 22.1A of the IAAF Competition Rules". In other words, the banning of individual athletes from competition due to ARAF's suspension, as well as the application of the criteria in the new Rule 22.1A, was upheld.
Interestingly, CAS's media release alluded to the ROC still being entitled to "enter as representatives of the Russian Federation" (emphasis added) any track and field athletes eligible to compete under Rule 22.1A. The media release appears to present this as an alternative to those athletes being entered as "neutral athletes" although Rule 22.1A explicitly states that any athletes granted eligibility "shall not represent the suspended National Federation...but rather shall compete in an individual capacity, as a 'Neutral Athlete'".
The point appears to be that athletes may still compete under the Russian flag if they satisfy the criteria in Rule 22.1A but will not be representing ARAF. This is an odd distinction and one that is not reflected in the IAAF Competition Rules where the participation is permitted on the basis of neutrality. Reading between the lines of the limited information in the media release, it seems to be based on the idea that athletes who meet Rule 22.1A could still be entered by the ROC (i.e. Russia), since the IAAF Competition Rules do not affect the ROC's general right to enter athletes in the Games... for now at least!
Currently only two Russian track and field athletes have been deemed eligible to compete under Rule 22.1A, including the whistle-blower Yuliya Stepanova who was deemed to have made an exceptional contribution to anti-doping through her disclosures (under Rule 22.1A(c)). The CAS Panel apparently had some concerns around the retroactive effect of Rule 22.1A on the basis that it "involves criteria based on long-term prior activity, it left no possibility in practice, and as applied, for the Claimant Athletes to be able to try to comply with them". In reality, though, whilst it might be easy to sympathise with individual athletes who may have been clean, the retroactive effect of the Rule is entirely necessary in light of the complete and longstanding failing of the anti-doping system in Russia. Hence the requirement for athletes to demonstrate they had not been tainted by it. This point is only emphasised by the McClaren Report.
Whilst the IC Report highlighted practices of deliberate use of performance enhancing drugs in Russia, including careful calculations in connection with excretion periods, the McClaren Report demonstrates the sophisticated techniques that were used to cover-up positive tests in athletes from a wide range of sports. In particular, Professor McClaren found that the WADA-accredited laboratory in Moscow was the venue for a system whereby positive samples for certain athletes were, upon the order of Russia's Deputy Minister for Sport, reported as negative. This system was used in sports ranging from athletics to football and from taekwondo to weightlifting. Even more startling was the process of carefully planned sample swapping (using pre-tested "clean" urine) during the Sochi Olympics in order to protect athletes thought to be at risk of testing positive for prohibited substances.
The consequence of the IC and McClaren Reports is that it is practically impossible to be certain that any Russian athlete subject to the country's anti-doping regime could compete clean. The variety of sports affected by the so-called Disappearing Positive Methodology in the McClaren Report, combined with the active involvement of the State, mean that even those athletes with an ostensibly clean anti-doping record may not in fact be competing clean.
Crunch time for the IOC
The rights of individual athletes must of course be taken into account when the IOC comes to determine the wider participation of Russia in Rio 2016. However, the integrity of the Game is also paramount. It is hard to see how any Russian would not be tainted in the absence of the application of similar criteria as those in Rule 22.1A of the IAAF Competition Rules. Whilst the principle of retroactive effect is generally not a desirable one, the timing of the revelations in the IC and McClaren Report means, unfortunately, that it is inevitable and necessary.
The IOC undoubtedly needs to consider the legality of its decision regarding Russian athletes very carefully. The Olympic Charter does provide extensive discretion to the IOC concerning participation. In particular, under Rule 40, competitors must "respect and comply with the Olympic Charter and the World Anti-Doping Code" and Rule 44.3 states that "any entry [by an NOC] is subject to acceptance by the IOC, which may at its discretion, at any time, refuse any entry, without indication of grounds". Most pertinently though are the sanctions open to the IOC Executive Board, as provided for in Rule 59 of the Olympic Charter. This states that it may, "in the case of any violation of the Olympic Charter, [or] the World Anti-Doping Code", impose a suspension on NOCs and may "determine in each case the consequences for the NOC concerned and its athletes" (emphasis added). Finally, the IOC's mission in Rule 2 includes (at paragraph 8) the role of "leading the fight against doping and taking action against all forms of manipulation of competitions and related corruption".
Whilst principles of natural justice must be factored into any decision, the IOC has the jurisdiction and the circumstances in this case are exceptional. It is hard to see how any Russian athlete subjected to the country's anti-doping system could be seen to have complied with the WADA Code given the extent of corruption revealed. This is why the IOC has to take the tough decision on Sunday and implement a wider exclusion of Russian athletes (subject to appropriate criteria for participation as neutral athletes). This may well be thought unfair on certain individuals and they should indeed be given the opportunity to prove they are not tainted. However, they need to look at ARAF and the Russian government, as difficult as that might be, rather than blame the IOC for any forthcoming decision.
The IOC has an important decision on Sunday. It cannot shirk its responsibilities. To do so would be to inflict lasting damage on the Olympic movement and sport more generally. It would also undermine clean athletes the world over and signal to dopers and sponsors of doping that the door remains open. That is critical because the worry is that Russia is almost certainly not the only culprit. It may be that the revelations have only just begun.
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© Farrer & Co LLP, July 2016