SII Focus 7th February 2018

The IOC’s Russian problem: exclusion was never an option

The International Olympic Committee (IOC) never wanted to exclude Russia from the Olympic Games, and lacks the required evidence to sanction its athletes for anti-doping rule violations (ADRVs). In this article, Andy Brown looks at the reasons why.

Tomorrow, the Court of Arbitration for Sport (CAS) will almost certainly rule that the International Olympic Committee (IOC) cannot exclude Russian athletes from the PyeongChang 2018 Olympic Games who are not serving an anti-doping rule violation (ADRV). Its decision to overturn the IOC’s attempt to ban 28 Russian athletes is not “surprising and disappointing” to the IOC, as its President Thomas Bach has claimed. It is expected.

The reason it is expected is that the CAS has ruled against almost identical bans that the IOC has attempted to impose on athletes in the past. The IOC has an accomplished legal department, as has been shown when it wants to push through regulations that are not based on science. It has provisions in the Olympic Charter that allow it to exclude a nation from the Olympic Games, yet it has twice chosen not to do so. This resulted in chaos at Rio 2016, and PyeongChang 2018 looks to be going the same way.

The two Independent Commission (IC) and Independent Person (IP) Reports produced for WADA showed that the systemic corruption of the anti-doping system was orchestrated by the Russian State, as did the IOC’s Schmid Commission Report. Yet its Legal Affairs department has twice advised against a blanket ban, instead focusing on bringing forward ADRVs against Russian athletes.

This is despite the fact that WADA’s Reports into what occurred in Russia were not commissioned to uncover evidence of anti-doping rule violations (ADRVs). The IOC even changed the mandate of Richard McLaren so that it could pursue this sanctioning avenue. Why?

‘Athletes are entitled to have confidence in judicial processes at all levels, more particularly before the CAS’, read a statement from John Coates AC, President of the International Council of Arbitration for Sport (ICAS), which governs the CAS. ‘CAS has heard the comments of IOC President, Thomas Bach and acknowledges the concerns raised which CAS will thoroughly examine. The reasoned decisions in high profile cases are critically important. The Panels in the cases of the 39 Russian athletes are working on them, and we look forward to their publication as soon as possible.’

John Coates AC is also Chair of the IOC’s Legal Affairs department. The IOC therefore is likely to have an inkling that the CAS cannot support the sanctions it is attempting to impose on Russian athletes. The IOC argues that it is being fair to all athletes by allowing demonstrably clean Russians to compete whilst excluding doping cheats. However, at the same time it is issuing legally indefensible sanctions, such as life bans from the Olympics. This gives the CAS no choice but to let all Russians the IOC attempts to sanction compete, unless evidence of an ADRV exists.

Russia could have been excluded

Article 59.1.4 of the Olympic Charter (OC) allows the IOC to exclude a National Olympic Committee (NOC) ‘In the case of any violation of the Olympic Charter, the World Anti-Doping Code, or any other regulation’. Specifically, Article 59.2 of the OC allows the IOC to exclude individual competitors or teams from the Olympic Games ‘in the case of any violation of the Olympic Charter, of the World Anti-Doping Code, or of any other decision or applicable regulation issued by the IOC or any IF or NOC, including but not limited to the IOC Code of Ethics, or of any applicable public law or regulation, or in case of any form of misbehaviour’.

Bye-law 3.3 of Rule 45 OC states that the IOC may ‘exclude from the programme any sport, at any time, if the relevant IF governing such sport does not comply with the Olympic Charter or the World Anti-Doping Code’. Bye-law 3.3 also refers to Rule 59.2.1 of the Charter, which states that the IOC may impose ‘temporary or permanent exclusion from the Olympic Games’ upon an athlete who violates the World Anti-Doping Code.

‘Any entry is subject to acceptance by the IOC, which may at its discretion, at any time, refuse any entry, without indication of grounds’, reads Article 44.3 of the Olympic Charter. ‘Nobody is entitled as of right to participate in the Olympic Games’.

On 5 December 2017, the IOC suspended the Russian Olympic Committee (ROC). However despite the suspension, it invited 169 Olympic Athletes from Russia (OAR) to compete at PyeongChang 2018 on 29 January, as long as they complied with a strict list of criteria. Its laudable argument is that every athlete has a right to compete at the Olympic Games and that every individual case should be decided on its merits. However, the delay meant that there was less than two weeks for any appeals before PyeongChang 2018.

As previously explained, the evidence was that the Russian State was behind the systemic doping in Russia, so why focus on the athletes? Why the delay in inviting the OARs?

Evidence of ADRVs is not sufficient

As the recent CAS ruling made clear, the evidence in the Reports produced by Richard McLaren for WADA is not sufficient to bring forward ADRVs against Russian athletes in the majority of cases. It would also appear that some Russian athletes are either very good actors, or feel that they have been unfairly excluded (see video below).

The world anti-doping system is remarkably simple. You attempt to test an athlete and if a prohibited substance is present in the sample, or the athlete attempts to avoid the test, they are sanctioned with an ADRV.

What is alleged to have occurred in Russia is far from simple. A meticulously planned sample swapping method is alleged to have subverted the entire anti-doping system, allowing a State doping plan to operate for at least three Olympic Games – possibly more.

The nature of such a system meant that no positive tests – or adverse analytical findings (AAFs) – were recorded from elite athletes within Russia. It is therefore correct to point out that there is no evidence of AAFs, and that the evidence does not support ADRVs against Russian athletes.

The integrity of the entire Russian anti-doping system is alleged to have been compromised, which means that only samples taken outside of that system could be trusted. This is why although a total of 714 athletes were implicated in the two McLaren Reports, ADRVs have been asserted against just 12 (the 11 sanctioned by CAS and one sanctioned by an international federation).

To look at the Russian problem in terms of AAFs or ADRVs ignores the purpose of the State system, which was to remove all evidence of doping. Samples were manipulated, which means that zero AAFs were recorded from Russian athletes at the Sochi 2014 Winter Olympics, for example. As such, it could be argued that it is something of a miracle that the CAS managed to uphold ADRVs against 11 athletes. This makes the IOC’s approach all the more surprising.

Life Olympic bans

On more than one occasion, the CAS has ruled that you cannot ban an athlete from the Olympic Games for life as a result of a doping sanction. In the case of the 28 Russian athletes excluded from PyeongChang 2018, the IOC has attempted to ban them despite CAS ruling that the evidence is insufficient to sanction them with an ADRV.

‘The Panel highlighted that its role, according to the IOC Executive Board decision of 5 December 2017, was not to establish ADRVs, but to confirm that athletes can be considered clean for a potential OAR invitation to the Olympic Winter Games PyeongChang 2018′, read an IOC statement. ‘Therefore, the Panel unanimously recommended that the IOC not extend an invitation to the Olympic Winter Games PyeongChang 2018 to the 15 individuals requested by the suspended ROC’.

The IOC has argued that its decision not to invite certain Russian athletes is not a sanction. “You may remember how disappointed we all were that CAS obliged the IOC in Rio to allow Ms. [Yuliya] Efimova to participate”, said IOC President Bach in a media conference given on 5 December (video below). “Legally speaking, this decision is a different one. Here, we decide whom we want to invite. This is not about an exclusion or a sanction. This is about the discretion the IOC has with regard to the invitation of clean athletes.” Yet despite these words, every Oswald Commission decision has involved sanctioning Russian Sochi 2014 athletes for an ADRV, and has attempted to exclude them from the Olympics for life (examples are here, here, here, here, here and here).

The CAS cleared swimmer Yuliya Efimova to compete in Rio after ruling that the IOC couldn’t ban athletes previously sanctioned for doping from the Olympics. It ruled that ‘Point 3 of the IOC Executive Board’s decision, dated 24 July 2016, is unenforceable’. The CAS ruled the same way in the appeal of Russian rowers Anastasia Karabelshikova and Ivan Podshivalov against the same IOC decision.

‘The ROC is not allowed to enter any athlete for the Olympic Games Rio 2016 who has ever been sanctioned for doping, even if he or she has served the sanction’, reads Point 3 of the IOC decision on the participation of Russian athletes at Rio 2016. This is remarkably similar to the line stating that athletes sanctioned for doping by the IOC’s Oswald Commission are ‘declared ineligible to be accredited in any capacity for all editions of the Games of the Olympiad and the Olympic Winter Games subsequent to the Olympic Winter Games Sochi 2014’.

The IOC knows that the CAS cannot uphold such a sanction, and to include such harsh punishment almost invites an appeal. Perhaps that is the point. In the few ‘reasoned decisions’ in relation to athletes sanctioned by the Oswald Commission, the IOC reveals that it is aware of this.

‘The Disciplinary Commission underlines that it is conscious that the decision it issues in respect of ineligibility is likely to be challenged with reference to the CAS award CAS 2011/0/2422 USOC v/ IOC’, reads page 42 of the Reasoned Decision regarding the exclusion of Evgeniy Belov from the Olympics (PDF below). ‘The Disciplinary Commission considers that the present situation is not the same as the one which was the subject matter of that award. In that case, the decision of ineligibility was not linked with a decision made in connection with violations that occurred at the Olympic Games, but rather in connection with decisions issued by other bodies in a different case. This notably raised the issue of double jeopardy. Such an issue is not at stake in the present case. In this case the ineligibility is part of one decision, addressing consequences of occurrences at the Olympic Games in application of the regulations applicable thereto.’

As previously reported, a decision to ban an athlete from the Olympics on the basis that they doped in the past is a violation of the legal principle non bis in idem, or double jeopardy. In simple terms, it equates to being punished twice for the same offence. The IOC has known this since 2011, but is taking a further step by asking the CAS to allow it to exclude an athlete who is implicated in a State system, but where evidence is not sufficient to establish that an ADRV occurred.

The current anti-doping system is based on AAFs and ADRVs. It is not currently set up to support such a sanction.

Evidence of State doping

In much of the debate surrounding Russia, it is often forgotten what a difficult job is faced by those attempting to investigate and sanction a State doping system. Firstly, proving State corruption is notoriously difficult. Secondly, if your conclusions are correct, then this could place those implicated in the system into considerable danger.

It is significant that whistleblowers Dr. Grigory Rodchenkov, Yuliya Stepanova, Vitaly Stepanov, and Andrey Dmitriev have been forced to flee Russia. It is significant that former Russian Anti-Doping Agency (RUSADA) Director Nikita Kamaev and Founding Chairman of RUSADA, Vyacheslav Sinev, died within two weeks of each other. Especially as the two had discussed collaborating on an exposé style book discussing doping.

A criticism of the IC and IP Reports produced for WADA is that they are based on unproven allegations assumptions, hearsay evidence and passing references to the Russian government officials. It is true that the IP Evidence Disclosure Package doesn’t contain full details of the officials and athletes involved, and that not all documents have been disclosed. This doesn’t necessarily mean that the evidence doesn’t exist, but it could mean that it hasn’t been publicly disclosed in order to protect those implicated. Without seeing the full body of evidence, it is impossible to draw any conclusions as to its persuasiveness.

It has also been argued that WADA’s investigations into Russian State doping have been based on the testimony of one man, Dr. Grigory Rodchenkov. This ignores evidence provided by the Stepanovs to WADA in 2010; evidence provided by Darya Pishchalnikova to the IOC and WADA in 2012; and evidence provided by the Mail on Sunday to the IOC and WADA in 2013. All separately outlined the same State operated Russian doping system, and all prior to the December 2014 documentary that forced sport to act.

It could be argued that even McLaren’s full body of evidence would not pass muster in a court of law. But the CAS is not a court of law, but an arbitration body. Also, Dr. Rodchenkov’s affidavit (PDF below) is very detailed and persuasive (a summary is here). It leaves no doubt that he believes that a State operated doping programme existed. Verifying such claims is problematic, as Russia has pursued a policy of denial and has even promoted Vitaly Mutko, the Minister of Sport who oversaw the Sochi 2014 Olympics, to Deputy Prime Minister.

As such, it is not puzzling that the IOC decided to sanction Russia, but that it chose to focus on the athletes rather than the officials responsible for State doping. Is the IOC conducting a PR exercise designed to show it is keen to sanction Russia whilst issuing legally indefensible sanctions the CAS is forced to reject?

Russia is valuable

Russia is huge. In terms of land mass, it is the world’s largest nation. it is the ninth biggest (142.3 million) nation in terms of population. In terms of gross domestic product (GDP) for 2017, it is projected to rank eleventh in the world. It was planning to send 500 athletes to PyeongChang and even after sanctions have been imposed, it is still sending 169. This makes it one of the largest delegations to compete (Great Britain’s 59-strong team is its largest ever in a Winter Olympics).

Whilst much sabre-rattling was occurring over Russia’s participation at the Rio 2016 and PyeongChang 2018 Winter Olympics, negotiations over TV deals have quietly continued. There has never been any question about preventing the Olympics from being screened in Russia. It is such a large TV market for the IOC that it has its own broadcasting marketing partner, TeleSport. It holds the rights to the 2018, 2020, 2022 and 2024 Olympics and lists State broadcasters Channel One and Match TV as its partners.

How much TeleSport has paid for such rights is unknown – the IOC is notoriously secretive about the value of its TV broadcasting deals. However, an IOC media guide (PDF below) to the PyeongChang 2018 Winter Olympics shows that its broadcast and sponsorship deals for the 2013-2016 Olympiad are worth US$5.7 billion.

Broadcast rights make up 73% of that revenue – or $4.16 billion. The IOC says that 90% of the revenue it generates from broadcasting and sponsorship agreements is distributed back to sport, including an $880 million contribution to the PyeongChang 2018 Organising Committee. The remaining 10% goes towards IOC operations. This includes Olympic Broadcasting Services (OBS), which will provide the TV coverage from PyeongChang 2018, as well as the Olympic Channel.

Just hours after the CAS decision to reject the IOC’s attempt to ban Russian athletes for life from the Olympics based on shaky evidence, it was announced that Channel One and Match TV will screen the PyeongChang Winter Olympics in Russia. A source at one of the Russian channels told Russian TV industry site TV Rain that the rights are worth “several million dollars”. The price per minute to advertise during Channel One and Match TV’s broadcasts of the PyeongChang 2018 Winter Olympics will be between Rub2 million and Rub2.5 million (€28,500 to €35,600), reports RBC.

Today, the IOC outlined how it plans to reduce the cost for cities hoping to bid to host the Olympic Games by reusing services. A statement revealed that the IOC plans to run the Olympic Information Service, which provides statistics and other details to the media, for the first time at PyeongChang. It also plans to develop a number of ‘turnkey solutions’ to further reduce costs, which are outlined in brief in the document below, and in detail here. This all requires money.

The money saving plans for future Olympic hosts were developed by the Olympic Games Delivery Executive Steering Committee, which is Chaired by John Coates. If that name sounds familiar, it is because this is the same John Coates that is President of the ICAS which governs the CAS, which will tomorrow rule on whether the IOC can ban Russians from PyeongChang 2018 without evidence of an ADRV. It is the same John Coates that Chairs the IOC’s Legal Affairs department.

Put simply, it is not commercially viable for the IOC to exclude Russia from the Winter Olympics. This IOC is counting on the $5.7 billion in revenue rising for the current Olympiad, which concludes with the Tokyo 2020 Olympics. As shown above, it has plenty of initiatives that need continued financing and in terms of the Winter Olympics, Russia is one of its biggest markets.

If the IOC were to remove Russia from the 2018 PyeongChang 2018 Winter Olympics entirely, that large broadcasting market would suffer, which could have a knock on effect on the revenues the IOC is able to distribute back to sport. Athletes, on the other hand, receive no remuneration from participation in the Olympics. The IOC actively prohibits athletes from profiting from their own endorsement deals through Rule 50 of the Olympic Charter, in order to protect the rights of The Olympic Partners (TOP). To allow athletes endorsement would undermine the revenue model outlined above.

As such, the IOC can pursue sanctions against individual Russian athletes without harming its revenue model, as long as it doesn’t exclude all of them. And its legally indefensible sanctions have ensured that the CAS is likely to be forced to restore more Russians to competition tomorrow.

Boxing clever

The IOC’s response to State orchestrated Russian doping is symptomatic of a major problem with the governance of sport. The IOC is responsible for generating revenue from the Olympic Games, which it distributes back to sport. It is not commercially viable for it to exclude one of its biggest markets from the Summer or Winter Olympics.

By stating that Russians implicated in the McLaren Report are not invited to the Games, the IOC is appearing tough on ‘doping cheats’ and is living up to its ‘clean sport’ credentials. However by issuing legally indefensible sanctions it knows the CAS cannot enforce, it is ensuring that major athletes from one of its biggest markets remain involved. Until sport sorts out this major conflict of interest, it will continue to face allegations that it is placing commercial interests ahead of fair sport.

This is why calls for a truly independent CAS are so important. WADA Vice President Linda Helleland is right to claim that the current anti-doping system is untenable. Inaction from those tasked with protecting sport is allowing those that are cheating to escape justice, whilst athletes are continuing to suffer for the actions of officials.

• This article was written before the CAS ruled that as the Russian Olympic Committee (ROC) was already suspended from the PyeongChang 2018 Winter Olympics, the IOC did not discriminate against 32 Russian athletes who had been cleared of committing anti-doping rule violations (ADRV) by refusing to invite them to participate.

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