SII Focus 21st June 2016

Analysis: IOC ‘declaration’ raises more questions than answers

International federations (IFs) will have to decide whether Russians and Kenyans can compete at the Rio 2016 Olympics, after the International Olympic Committee (IOC) ruled they must assess whether athletes are clean. ‘Because of the WADA [World Anti-Doping Agency] non-compliance of Kenya and Russia and the related substantial allegations, the Olympic Summit considers the “presumption of innocence” of athletes from these countries being seriously put into question’, read an IOC statement. ‘As a result, every IF should take a decision on the eligibility of such athletes on an individual basis to ensure a level playing field in their sport. In this decision-making process, the absence of a positive national anti-doping test should not be considered sufficient by the IFs.’

At a press conference this afternoon, IOC President Thomas Bach confirmed this means that Kenyan and Russian athletes from any of the 28 summer Olympic IFs must prove that they are clean in order to compete in Rio – including athletes from the International Association of Athletics Federations (IAAF). He also clarified that the IOC’s Declaration means that Russian athletes that fall under the jurisdiction of the IAAF would be allowed to compete in Rio if they can prove they are clean.

This ties in with the 17 June IAAF Council recommendation that ‘if there are any individual athletes who can clearly and convincingly show that they are not tainted by the Russian system because they have been outside the country, and subject to other, effective anti-doping systems, including effective drug-testing, then they should be able to apply for permission to compete in International Competitions, not for Russia but as a neutral athlete’.

Implications

In practice, what this means is that we are likely to see individual athletes competing from Russia who have been cleared by their IF, but Russian track and field athletes will not be able to represent their country – even if they can prove they are clean. We will also see Kenyan athletes competing in Russia who have been cleared by their IF, as well as Kenyan track and field athletes who have been cleared by the IAAF.

Limited guidelines

However, the IOC gave limited guidance on how a Russian or Kenyan athlete might prove they are clean, or how an IF might assess whether an athlete is clean. As previously mentioned, the ‘absence of a positive national anti-doping test’ is no longer sufficient. ‘The respective IF should take into account other reliable adequate testing systems in addition to national anti-doping testing’, read the IOC Declaration. ‘This decision about the “level playing field” in each of their very different Olympic sports, and eligibility, including of their member National Federations, should be taken by each IF taking into account all the specific circumstances in the relevant National Federations, any available evidence, the World Anti-Doping Code and the specific rules of their sport’.

Can of worms

Today’s decision will be good for lawyers, as it appears to have opened a can of worms. Firstly, athletes from Kenya and Russia are now presumed guilty unless they can prove they are innocent – a u-turn on accepted legal procedure. This could be vulnerable to challenge in a court of law, however the IOC will be counting on the fact that the athlete agreement – which requires elite athletes to settle all disputes at the Court of Arbitration for Sport (CAS) – holds up against challenge.

Secondly, how far back does an athlete need to go to prove that they are clean? In a speech made at today’s summit, Russian Olympic Committee (ROC) President Alexander Zhukov pointed out that in “recent months”, samples have been taken by UK Anti-Doping (UKAD) in partnership with Swedish company IDTM, and have been analysed in the Cologne and Lausanne laboratories. Whether this will be sufficient, given the issues UKAD has encountered with testing Russian athletes in ‘recent months’, has not been clarified.

Thirdly, many sports at Rio are team events. Despite the IOC’s Declaration mentioning a ‘level playing field for all clean athletes’ twice, this means that clean athletes could still be excluded from Rio due to one of their team mates being unable to prove that they are clean. This is a particular problem for football, where 11 athletes must be able to prove that they are clean.

This brings us neatly onto the fourth issue. The differing size and resources of the IFs. Russian football may have the money to prove to FIFA that its national team is able to take the field in Rio, but what about basketball; hockey; volleyball; handball?

The fifth issue is a little more controversial – perception of bias. To pluck an example out of the air, Russian Minister for Sport Vitaly Mutko is a FIFA Council member. If the Russian football union (RFS) is able to prove to FIFA that its team is clean, other nations may perceive that Mutko has taken a hand in the decision, even if there is no evidence  to suggest this has happened. There are Russians and Kenyans on the boards of other IFs, so despite the IOC’s best efforts to protect the clean athlete, a cloud of suspicion is likely to hang over any Kenyan or Russian participation in the Olympics.

The sixth issue is who will decide whether the IFs concerned have done a sufficiently thorough job in assessing whether Russian and Kenyan athletes have proved that they are clean? Given the previous two issues identified, lawsuits may follow in this areas.

The seventh issue involves a potential conflict of interest between IFs and National Olympic Committees (NOCs). As the IOC points out in its Declaration, ‘only NOCs can enter athletes to the Olympic Games, selecting from the IF pool of eligible athletes’. This creates an extraordinary situation where the Russian and Kenyan NOCs may be lobbying IFs to clear their athletes so that the NOC can then select them for Rio. This will put particular pressure on any Russian or Kenyan members of IFs.

Responses

As could be expected, the IAAF welcomed the IOC’s decision, and Russia announced that it would appeal. ‘We believe the decision of the IAAF Council is unfair, inconsistent and in violation of the Olympic Charter’, wrote ROC President Zhukov in a statement. ‘Our clean athletes will challenge it at the Court of Arbitration for Sport (CAS) with the full support of the All-Russian Athletics Federation (ARAF) and the Russian Olympic Committee’.

The National Olympic Committee of Kenya (NOCK) have yet to respond, but a spokesperson for Kenya’s President, Uhuru Kenyatta, told Reuters that Kenya would cooperate with what – in his view – is a requirement to re-test athletes. “We have nothing to fear”, Athletics Kenya President Jackson Tuwei also told the news agency. “We shall cooperate”.

Clarity is needed

Unfortunately, the IOC’s Declaration today raises more questions than it answers. Clarity is needed on what, exactly, constitutes proof that a Russian or Kenyan athlete is clean enough to participate in Rio. Is it the fact that tests have been conducted by overseas based agencies in ‘recent months’, as Russia seems to think? Is it simply a retest of all athletes entering the Rio 2016 Olympics, as Kenya appears to think?

If there is one thing to welcome from today’s IOC Declaration, it is that ‘all NOCs and IFs should sanction not only doped athletes, but also their coaches, officials, doctors or any other persons implicated. They should, in addition, not request accreditation for the Olympic Games for any person currently implicated in an anti-doping rule violation.’ However, even this welcome measure is shrouded in uncertainty. How far does ‘any other persons implicated’ extend?

One thing is for certain. Once again, the athletes are suffering for the actions of those who should be promoting and protecting them.

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