The World Anti-Doping Agency (WADA), national anti-doping agencies and athletes have expressed disappointment at the International Olympic Committee’s (IOC) decision not to issue a blanket ban against Russian athletes competing at the Rio 2016 Olympics. However, the reality of the situation is that an earlier IOC Declaration requiring Russian athletes to prove that they are clean in order to compete will mean that many Russian athletes will be unable to compete in Rio.

The Russian Rio 2016 Olympic team includes 321 athletes in 23 sports, all of whom must be assessed twice before 5 August, when the Games start. According to yesterday’s IOC statement, for each of the 23 sports the international federation (IF) concerned must undertake an ‘individual analysis of each athlete’s anti-doping record, taking into account only reliable adequate international tests, and the specificities of the athlete’s sport and its rules, in order to ensure a level playing field’. Even if these checks are carried out, the IOC will only accept a Russian Olympic Committee (ROC) entry from those 23 sports if ‘it is upheld by an expert from the CAS list of arbitrators appointed by an ICAS [International Council of Arbitration for Sport] Member, independent from any sports organisation involved in the Olympic Games Rio 2016’.

The ROC’s President, Alexander Zhukov, told the IOC that all 321 Russian athletes selected for Rio 2016 had been tested over the last six months by foreign national anti-doping agencies (NADOs). He said that this involved 3,000 samples analysed in foreign laboratories, and ‘the vast majority of the results were negative’.

WADA was critical of the IOC’s decision and its implications for international federations. “WADA is disappointed that the IOC did not heed WADA’s Executive Committee recommendations that were based on the outcomes of the McLaren Investigation and would have ensured a straight-forward, strong and harmonized approach,” said WADA President Sir Craig Reedie in a statement. “The McLaren Report exposed, beyond a reasonable doubt, a state-run doping program in Russia that seriously undermines the principles of clean sport embodied within the World Anti-Doping Code,” Reedie continued.

“While WADA fully respects the IOC’s autonomy to make decisions under the Olympic Charter, the approach taken and the criteria set forward will inevitably lead to a lack of harmonization, potential challenges and lesser protection for clean athletes,” said Olivier Niggli, Director General, WADA in the same statement.

The IOC have missed the biggest moment in their history to honour the dedication & sacrifice clean athletes make to compete at the Olympics

— Goldie Sayers (@goldiesayers) July 24, 2016

My thoughts today on #IOC ruling on Russia. pic.twitter.com/lRPFyWafp2

— Hayley Wickenheiser (@wick_22) July 24, 2016

International federation response

Almost immediately, the International Tennis Federation (ITF) announced that all seven players nominated to compete at Rio 2016 would be eligible. In a statement, the ITF said that all seven had been subject to a ‘rigorous anti-doping testing programme outside Russia’, which included 205 samples collected since 2014. ‘The ITF believes this is sufficient for the seven Russian tennis players to meet the relevant requirement’, continued the statement from the ITF Executive Board, which includes Aleksei Selivanenko of Russia, also Vice President of Tennis Europe.

Prior to the IOC’s announcement, the International Judo Federation (IJF) emphasised its support for all clean Russian athletes. Yesterday, it emphasised its extensive testing procedures ahead of Rio 2016, and said that ‘all results will be shared by request with the International Olympic Committee and WADA’. The Honorary President of the IJF is Russian President Vladimir Putin.

The @IntJudoFed supports all Russian athletes who were not involved in doping activities. Here is our statement. pic.twitter.com/lGqnWbuWWz

— Marius Vizer (@MariusVizer) July 21, 2016

A FIFA spokesperson confirmed that the Investigatory Chamber of the Ethics Committee has opened an investigation into the WADA IP Report’s finding that Vitaly Mutko had given the order to ‘save’ a Russian footballer who had returned an adverse analytical finding (AAF). Mutko is Russia’s Minister for Sport, President of the Russian football association and Chairman of the organising committee for the 2018 FIFA World Cup, which is slated to be hosted by Russia.

Legal questions

A number of legal questions were also raised with regards to yesterday’s IOC decision. Firstly, the IOC decided that 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’. This appears to go against the legal precedent of double jeopardy – or being punished twice for the same offence.

It also appears to go against established Court of Arbitration for Sport (CAS) case law that directly involves the Olympic Games. In a very recent ruling, the CAS ruled that the Korean Olympic Committee (KOC) could not exclude Park Tae-Hwan from its Olympic team on the basis that he had served a ban for doping. It has also been argued that double standards apply in this area, since athletes that have served a doping ban from other nations will take the field in Rio.

So if you're Russian and served a drug ban you aren't allowed, but the US can send previously banned athletes. What? https://t.co/2oJiB4K9w3

— Kara Goucher (@karagoucher) July 24, 2016

The CAS case law in this area is well established. In a 2011 ruling, the CAS struck out the IOC’s Osaka Rule (Rule 45 of the Olympic Charter), which mandated that any athlete serving a doping ban of six months or longer would be prohibited from taking part in the next edition of the Olympic Games. ‘The IOC Regulation provides for an additional disciplinary sanction […] after the ineligibility sanction for an anti-doping rule violation under the WADA Code has been served’, the CAS ruled.

In 2012, the British Olympic Association (BOA) was forced to scrap a lifetime ban from the Olympics for athletes caught doping, after the CAS ruled against it. It later proposed that WADA introduce the ability for sporting bodies to ban athletes from major events if they are caught doping. However, as the 2015 World Anti-Doping Code increased the starting sanction from two years to four, it was thought that such an amendment was not necessary due to the natural cycle of most sporting tournaments.

Questions of double standards have also been raised regarding IOC prohibitions on political interference in sport, as outlined in Article 16.1.5 of the Olympic Charter. Russia has not been banned despite the WADA IP Report’s extensive evidence regarding political interference in sport. In June, the government of Kuwait sued the IOC for US$1 billion through Swiss courts as a result of its decision to suspend the Kuwait Olympic Committee (KOC). The IOC suspended the KOC in October last year, as did FIFA, due to allegations of political interference in sport. In June, the IOC confirmed that the suspension would not be lifted in time for Rio.

Ignorance of evidence

The IOC also appears to have ignored the culpability of the ROC, as outlined in the WADA IP Report. ‘The IOC EB discussed the status of the ROC’, read yesterday’s statement. ‘In this respect, it took note of the fact that the IP Report made no findings against the ROC as an institution’.

The WADA IP Report found that Irina Rodionova, who was a staff member of the ROC during the Sochi 2014 Winter Olympics, played a ‘coordinating role’ in the state-run doping system. It also found that Russia’s Deputy Minister of Sport, Yuri Nagornykh, decided which positive tests would disappear, and favoured successful or promising Russian athletes. Nagornykh is also a board member of the ROC.

Yulia Stepanova

The IOC decided that as Yuliya Stepanova could not be accepted as a neutral athlete during the Rio 2016 Olympics, as ‘the Rules of the Olympic Charter related to the organisation of the Olympic Games run counter to the recognition of the status of neutral athlete’. Stepanova had been cleared to compete despite the Russian Athletics Federation’s (RusAF) suspension by the IAAF. It appears that the IOC is applying the principle of ‘double jeopardy’ outlined above to Stepanova.

The IOC also suggested that the circumstances of her revelations on systemic Russian doping also played a part in its decision. The IOC said that its Ethics Commission had put her contribution ‘into the perspective of Mrs Stepanova’s own long implication, of at least five years, in this doping system and the timing of her whistle-blowing, which came after the system did not protect her any longer following a positive test for which she was sanctioned for doping for the first time’.

During the London 2012 Olympics, four athletes were allowed to compete under a neutral flag, however the IOC turned down an appeal from a Kosovar athlete to compete. The IOC’s statement appears to suggest that such neutral athletes cannot compete under any circumstances, yet also suggests that Stepanova’s conduct played a part in the decision. The Sports Integrity Initiative has asked the IOC to clarify what rules apply in this area.

“For me this is a boundless disappointment”, said NADA Austria Managing Director Michael Cepic in a statement. “When the people who have contributed significantly to the discovery of massive abuses are treated as such, the impression arises that this is not required”.

WADA culpability

As previously reported by The Sports Integrity Initiative, the WADA IP Report ignored WADA’s culpability in allegations of systemic Russian doping. Firstly, WADA failed to investigate after Russia reported no positive AAFs at all from the Sochi 2014 Games. Secondly, as mentioned in the IP Report (p42), it wrote to Dr. Grigory Rodchenkov – director of the Moscow and Sochi laboratories – to alert him that a ‘surprise’ inspection involving the removal of samples for further analysis would be taking place. This resulted in panic at the laboratory, resulting in the destruction of 8,000 of 10,000 stored samples, leaving just 37 positives for which a negative report had been made in ADAMS by the time that WADA inspectors arrived.

Also, as previously reported by The Sports Integrity Initiative, WADA failed to follow up on the IO Report’s concerns over interference in the Sochi laboratory. As also mentioned in this article, the first WADA Independent Commission Report was not satisfied with the explanation given regarding the destruction of 67 samples sent from Moscow by the Lausanne laboratory, which it had been asked to retain.

WADA also failed to analyse doping test figures submitted to it by the Russian Anti-Doping Agency (RUSADA) – including its failure to submit annual reports, as required by the World Anti-Doping Code. As previously reported by The Sports Integrity Initiative, RUSADA appears to have manipulated doping test figures over a number of years – especially from 2009 to 2012.

On 6 July 2013, a Mail on Sunday investigation alleged systemic doping within Russian sport, yet WADA did not confirm it would investigate until 12 December 2014, as our timeline outlines. In its 19 July statement, the IOC outlined that it is ‘reinforcing the request issued by the Olympic Summit on 17 October 2015 to make the entire anti-doping system independent from sports organisations’.

It is perhaps fitting that the IOC is keen to lead this process, rather than WADA. It would appear that WADA has questions to answer about how much it knew about systemic Russian doping, and when.