The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
Recent decisions regarding the participation of the Russian athletes in the 2016 Rio Olympic Games are controversial. On one hand, international sports governing bodies endeavor to protect the rights of clean athletes. However, on the other they sometimes do not employ the basic principles of law. Russian lawyer Sergey Yurlov comments on recent decisions rendered by international sports governing bodies.
The International Olympic Committee (IOC), the World Anti-Doping Agency (WADA), the Court of Arbitration for Sport (CAS) and other international sports governing bodies are keen to protect the rights of clean athletes. The recent doping saga relating to the creation of so-called state-backed doping system in Russia demonstrates certain inconsistencies in their approach to the following principles: ‘fair play’ and ‘presumption of innocence’.
The Olympic Charter (OC) does not describe the principle ‘fair play’, but simply states: ‘the practice of sport is a human right. Every individual must have the possibility of practicing sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play’.
The World Anti-Doping Code (WADC) stipulates: ‘the spirit of sport is the celebration of the human spirit, body and mind, and is reflected in values we find in and through sport, including: ethics, fair play and honesty […]’.
This principle of ‘fair play’ is often employed by the CAS when resolving particular sporting disputes. Let’s take a look at several of them.
In Dutee Chand v. the IAAF, the CAS held the IAAF’s Hyperandrogenism Regulations equiring women with high testosterone levels to undergo special medical intervention to lower such levels before entering a particular sporting competition to be invalid. In doing so, the CAS concluded: ‘the Hyperandrogenism Regulations place restrictions on the eligibility of certain female athletes to compete on the basis of a natural physical characteristic (namely the amount of testosterone that their bodies produce naturally) and are therefore prima facie discriminatory […] Such discrimination is, unless justified, contrary to the Olympic Charter, the IAAF Constitution and the laws of Monaco and other statutory acts’.
The CAS also noted that the IAAF bears the burden of establishing that the Regulation is an appropriate means for achieving the legitimate objective of ensuring fairness in sporting competitions.
In A.Karabelshikova, I.Podshivalov v World Rowing Federation, IOC (CAS OG 16/13) and Y. Efimova v Russian Olympic Committee (ROC), IOC and Federation Internationale de Natation (CAS OG 16/14) the CAS declared illegal the third eligibility requirement adopted by the IOC on 24 July 2016. According to the requirement, no one who has ever been sanctioned for doping (even he/she has already served a sanction) is eligible to compete at the 2016 Rio Olympic Games. The CAS ruled that the requirement is invalid per se, since it violates the principle that nobody can be sanctioned twice for the same offence.
Although the CAS is not bound by its previous decisions, it refers to them when adjudicating disputes with similar factual circumstances. It appears that the above-mentioned decisions are benchmarks in court practice relating to the adoption and application of international sports governing bodies’ internal statutory acts. Thus, before enacting and applying any regulation or/and sanction, international sports governing bodies should prove that such regulations/sanctions are necessary, reasonable and proportionate.
On 21 July 2016, the CAS upheld the IAAF’s decisions not to reinstate the Russian Athletics Federation’s (RusAF) membership and not to allow Russian athletes to take part in international sporting competitions, including the 2016 Rio Olympic Games. As of today, the decision is yet to be published. However, it is unlikely that the CAS will publish the full decision. The CAS confirmed that the suspension of a national sports federation automatically triggers the ineligibility of its members.
Not having the full decision at hand, we assume that the CAS referred to the autonomy of the IAAF and to its right to adopt internal regulations. Why does the CAS differently apply the same principles? Did the CAS follow them when sanctioning innocent athletes?
Was it necessary to impose a blanket ban on the Russian track and field athletes? It appears that it was not, since the IAAF should have disqualified only those who had tested positive. Therefore, such a decision does not protect the rights of clean athletes.
Was it reasonable? It appears that it was not since it contradicts common sense and the basic legal principles. In particular, no one can be subjected to liability for actions committed by another. There was not sufficient evidence proving the creation of a state-backed doping system in Russia. The IAAF’s decision was based on certain allegations which are yet to be verified.
Was it proportionate? It appears that it was not since many athletes have been sanctioned for “actions” of a closed circle of athletes/officials.
The IOC turned the presumption of innocence principle inside out, depriving clean athletes of their fundamental rights. In the IOC’s construction, the principle reads as follows: athletes are presumed guilty unless they can prove they are innocent.
However, simple references to the Russian athletes made in doping reports (including the McLaren report) do not make them guilty.
Of note, in the above-mentioned cases ,international sports governing bodies were referring to their autonomy as legal entities duly established under Swiss law. Adopting restrictive regulations and keeping disputes outside of ordinary courts, international sports governing bodies employ the principle of autonomy. On one hand, they may enact such regulations, however, on the other they cannot deprive athletes of their human rights.
The Russian doping saga demonstrates that the question of the delineation of authority between sports governing bodies and the government has already emerged.
It appears that the IOC should draw the line between internal regulations and the rule of law. In particular, the IOC’s rules should prescribe that sports governing bodies cannot deprive athletes of their rights granted by national legislation. More importantly, athletes should have the right to recourse to ordinary courts to resolve arising disputes.
Here another question arises: what should the CAS apply resolving particular sports disputes? According to Article 17 of the Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games (CAS AH Rules), ‘the Panel shall rule on the dispute pursuant to the Olympic Charter, the applicable regulations, general principles of law and the rules of law, the application of which it deems appropriate’.
Opposed to the CAS AH Rules, Article R45 of the CAS Code of Sports-related Arbitration (as of 1 January 2016) (CAS Code) does not mention general principles of law and the rule of law, simply stating: ‘the Panel shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law. The parties may authorize the Panel to decide ex aequo et bono’.
Thus, the CAS AH Rules contradict the CAS Code. Why? Leaving the question open, we should ask ourselves whether the CAS applied these general principles of law and the rules of law when adjudicating the above-mentioned disputes. It must be noted that the CAS selectively applied these principles. In A.Karabelshikova, I.Podshivalov v World Rowing Federation, IOC (CAS OG 16/13) and Y.Efimova v ROC, IOC and FINA the CAS applied the principle of natural justice. However, in Russian Weightlifting Federation (RWF) v International Weightlifting Federation (IWF) and ROC the CAS found that the IWF has the right to ban a national sporting federation and its members from participating in international sporting competitions based on its internal regulations. In the meantime, the CAS did not analyse whether such tough rules comply with the principle of natural justice.
In A.Karabelshikova, I.Podshivalov v World Rowing Federation, IOC (CAS OG 16/13) the CAS addressed the difference between eligibility rules and sports sanctions. In particular, the CAS referred to its previous judgments citing that eligibility rules serve to facilitate the organization of sporting competitions and to ensure the athletes’ conformity with particular qualification requirements. However, sports sanctions are aimed at banning athletes from taking part in sporting competitions for their unlawful behavior.
What was the purpose of these measures imposed by the IOC? The IOC and other sports governing bodies are keen to establish a level playing field. In achieving this laudable goal, they often take snap decisions touching upon the rights of clean athletes. Such decisions cannot be overturned in a couple of days. Therefore clean athletes start suffering.
It appears that eligibility requirements should not be equivocal. They should only relate to the athletic performance – compliance with qualifying time standards, the existence of a particular sport grade (i.e., special sport categories) and the existence of a medical statement issued by a special medical institution certifying an athlete’s medical condition and that he or she is able to participate.
On 8 August 2016 the IPC suspended the Russian Paralympic Committee (Decision) following its inability to fulfil membership obligations with regard to anti-doping policy. According to the Decision Russian Paralympic athletes cannot take part in the forthcoming 2016 Paralympic Games in Rio. The Decision is based on the report of professor McLaren published on 18 July 18 2016. Notwithstanding that the report is quite controversial, the IOC and international sports governing bodies have already taken a number of decisions regarding the participation of Russian athletes in international sporting competitions. Let’s take a look at the Decision.
The IPC concluded that the RPC and its athletes do not comply with the WADC. However, the Decision does not refer to the evidence based on which it has been taken. The IPC’s logic is simple – since the RPC’s membership is suspended its athletes cannot take part in sporting competitions. In the RPC’s opinion Russian athletes are part of a broken system.
It must be noted that one of the next steps defined by the Decision is conducting further investigation with regard to certain findings. Thus, the IPC comes to the conclusion that the matter should be further investigated. In the meantime, the IPC already sanctions the RPC and its athletes. How can the IPC sanction them without having all the evidence at hand? It appears that careful investigation usually precedes a particular decision. Thus, the IPC resolved the issue based on certain allegations yet to be verified.
The RPC attempted to appeal the decision, however such appeals were rejected by the Court of Arbitration for Sport and the Swiss Federal Tribunal.
It is clear that the IOC’s, IPC’s and international sports governing bodies’ polices with regard to sanctioning for anti-doping rules violations should be amended. Such polices should provide for a fair trial safeguarding the rights of athletes involved. Unnecessary, unreasonable and disproportionate measures undermine the integrity of modern sport.