Demonising Justin Gatlin
13th September 2015
The International Olympic Committee’s (IOC) decision to sanction Russian athletes with a ban from all future editions of the Olympic Games would appear to violate legal principles, as well as Court of Arbitration for Sport (CAS) jurisprudence. On 12 December, the IOC disqualified the Russian women’s ice-hockey team from the Sochi 2014 Winter Olympics, after six team members were found to have committed anti-doping rule violations (ADRVs) by the Oswald Commission, based on the findings of Richard McLaren in his Independent Person reports for the World Anti-Doping Agency (WADA) into allegations of State doping in Russia at the Sochi 2014 Winter Olympics.
‘The six athletes 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’, read a statement. The provision has been included in other Oswald Commission decisions to sanction Russian athletes (examples are here, here, here, here, here and here).
The legal principle non bis in idem – or double jeopardy – prevents a defendant from being punished twice for the same offence. It is a principle that the CAS has already ruled is applicable to IOC rules and regulations. In 2011, the CAS struck out (PDF of judgement below) the ‘Osaka Rule’, which was baed on Rule 45 of the Olympic Charter. The Osaka Rule prevented athletes who have been sanctioned with a doping ban of six months or more from participating in the next edition of the Olympic Games.
‘CAS case law has consistently held that the principle of ne bis in idem can apply to sanctions under sports law and academic authorities on the subject have come to the same conclusion’, reads the opening to the judgment. ‘If the ne bis in idem principle is indeed applicable to sanctions imposed under anti-doping regulations, the rule prohibiting doped athletes from participation in the next Olympic Games would contravene this principle. The effective purpose of the sanction is the same (even if the underlying motivations are different); the sanction is attributable to the same behaviour, and the sanction results in the same consequence, ineligibility from Competition.’
A ban from all future editions the Olympic Games, as has consistently been implemented by the Oswald Commission, would appear to fall into the same category as the outlawed Osaka Rule. However Rule 45 of the Olympic Charter, on which the Osaka Rule was based, remains in place. 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. Rule 60 of the Charter states that ‘no decision taken by the IOC concerning an edition of the Olympic Games, including but not limited to competitions and their consequences such as rankings or results, can be challenged by anyone after a period of three years from the day of the closing ceremony of such Games’. As Sochi 2014 took place in February, the stipulated three years have expired, meaning that according to the IOC Charter’s rules, its decision to exclude Russian athletes from future editions of the Olympics cannot be challenged.
When questioned about whether it is confident that Olympic life bans imposed on Russian athletes are not subject to legal challenge, the IOC referred The Sports Integrity Initiative to a media conference given by Thomas Bach on 5 December (video below). “You may remember how disappointed we all were that CAS obliged the IOC in Rio to allow Ms. [Yulia] Efimova to participate”, said the IOC President, referring to a CAS ruling that an attempt to prevent the Russian Olympic Committee (ROC) from entering athletes who have previously been sanctioned for doping into the Olympics was ‘unenforceable’. “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.”
However in its 2011 ruling on the IOC’s Osaka Rule, it appears that the CAS disagreed. ‘Ineligibility is a sanction according to the provisions of Article 10 of the WADA Code and its definition’, reads para. 38 of the decision. ‘The OC in Rule 44 makes the WADA Code mandatory. Therefore, the Panel finds that a reading of the two documents together makes the IOC Regulation, insofar as it makes an athlete ineligible to participate in a Competition – i.e., the Olympic Games – a sanction.’
In paragraph 48 of the 2011 ruling, the CAS further clarified that Article 23.2.2 of the Code is designed ‘to ensure that Signatories do not introduce provisions that negate, contradict, or otherwise change the WADA Code articles that are mandatory, including the sanctions in Article 10’. It ruled that the Osaka Rule ‘is a substantive change to Article 10 because the period of ineligibility now becomes 2 years (or whatever lesser sanction in excess of 6 months is ordered) plus at least the number of days of the Olympic Games. The Regulation changes the effect of Article 10, through unilateral action by the IOC, by adding further ineligibility to the anti-doping sanction under the WADA Code after that sanction has been served.’
It would appear that the provisions that remain in the Olympic Charter, allowing the IOC to exclude athletes sanctioned for a doping offence from future editions of the Olympic Games, would also be in violation of Article 23.2.2 of the Code. A ban on Russian athletes from future editions of the Olympic Games would appear to add ‘further ineligibility to the anti-doping sanction under the WADA Code after that sanction has been served’ in the same way as the banned Osaka Rule.
The Russian ice-hockey federation (FHR) labelled the IOC’s decision to disqualify the Russian ice-hockey team as ‘unfounded, the evidence insufficient’, and pledged to challenge the decision. A total of 25 Russian athletes have filed appeals (here and here) at the CAS against decisions issued by the IOC’s Oswald Commission.
As previously reported by The Sports Integrity Initiative, the Athletes Commission of the ROC has questioned whether the IOC’s decision to ban its athletes from future editions of the Olympics violates legal principles. ‘The IOC decision has items that can be challenged by athletes in the Court of Arbitration for Sport’, said ROC President Alexander Zhukov in a statement. ‘One of them is the position not to invite those who have ever violated anti-doping rules in the past. This may involve – for example – the strongest Russian skaters [Denis] Yuskov and [Pavel] Kulizhnikov. Many lawsuits have already been filed with the CAS against decisions of the Oswald Commission. Hopefully, they will be dealt with in an expeditious manner.’
It is understood that an ROC delegation is to travel to Lausanne tomorrow to meet with the IOC, which will decide which Russian athletes will be invited to take part in PyeongChang 2018, which takes place in February. As highlighted above, athletes sanctioned by the Oswald Commission will not be invited to compete. Should the IOC also choose not not to invite Russian athletes who have previously been sanctioned for a doping offence, as Bach has indicated, then it is likely that the IOC principle that it has complete discretion over who it invites to the Olympics will be put to the test.