National anti-doping organisations (NADOs) have expressed anger at the International Olympic Committee’s (IOC) decision not to ban Russian athletes from competing at the Rio 2016 Olympics, a day after the IOC appointed a three-person panel to make a final ruling on any Russian hoping to compete. ‘Unfortunately, when it mattered most, the IOC failed to lead’, wrote the 13 NADOs in an opinion/editorial in The Guardian. ‘Through its response to the Russian doping problem, which has been percolating for some time, the IOC failed to protect the rights of clean athletes’.

The NADOs said that instead of heeding the World Anti-Doping Agency’s (WADA) request to exclude Russia, repeated in a previous NADO statement, the IOC had ‘issued a confusing patchwork of conflicting and insufficient instructions’, which had ‘already resulted in an uneven and incomplete response from IFs’ (as highlighted here). The NADO letter said that the IOC could have used Article 59 of the Olympic Charter to ban Russia, which had avoided the ‘legal quagmire into which the IOC has cast the 28 international federations’.

Unsurprisingly, the IOC did not agree. “Imagine the situation if we had taken another decision, what judicial and legal limbo this would create”, said IOC President Thomas Bach at a press conference on Sunday (video below). “We did our best to address this decision in a way which allows us to protect clean athletes all over the world”.

Press conference of the IOC President Thomas Bach https://t.co/DFOAobAodX

— IOC MEDIA (@iocmedia) July 31, 2016

“Do not forget that there is a really broad support across the world for this approach by the Executive Board of the IOC”, continued Bach, who is also a lawyer. “It reverses the presumption of innocence. It puts the burden of proof on the individual athlete and even then, it sets very high bars. You cannot deprive an athlete to at least be given the opportunity to prove his or her innocence.”

Three person panel

At Sunday’s press conference, the IOC announced that the Executive Board had delegated its final say on Russian participation at the Rio 2016 Olympic Games to a three-person panel. In its 25 July release, the IOC wrote that ‘The IOC will accept an entry by the ROC only […] if it is upheld by an expert from the CAS list of arbitrators appointed by an ICAS Member, independent from any sports organisation involved in the Olympic Games Rio 2016’.

It now appears that the three-person panel will consider the ‘expert’ opinion. The panel comprises Ugur Erdener, President of World Archery and Head of the IOC Medical & Scientific Commission, Claudia Bokel, who has just been replaced as Head of the IOC Athletes Commission, and Spanish IOC member Juan Antonio Samaranch Jr, son of the ex-IOC President of the same name. As all three members have sporting interests, the creation of the panel compromises the principle that the final recommendation on a Russian athlete’s participation should be independent from sport, as outlined in the 25 July IOC release highlighted above.

That release also outlined a final Russian approval stage: ‘The entry of any Russian athlete ultimately accepted by the IOC will be subject to a rigorous additional out-of-competition testing programme in coordination with the relevant IF and WADA’, it read. ‘Any non-availability for this programme will lead to the immediate withdrawal of the accreditation by the IOC’. How that ‘rigorous’ testing programme will take place before the start of the Olympics on 5 August remains open to question.

Perceived double standards

The IOC’s position has led to the perception that double standards are being applied regarding the way in which the IOC sanctions those who break its rules. As highlighted by the NADOs, it has the power to ban Russia from the Games – indeed, Bach’s press conference trumpeted the fact that Russian Ministry of Sport officials will not be able to obtain accreditation to attend the Rio Olympics.

However, athletes also face a ban from the Games if they breach the IOC’s commercial guidelines – contained within Rule 40 of the Olympic Charter. This reads as follows: ‘except as permitted by the IOC Executive Board, no competitor, team official or other team personnel who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games’.  In February this year, the IOC released new guidelines on the application of Rule 40, which effectively clarified that ‘non-Olympic’ athlete sponsors would have to suspend all advertising during the Olympic period, otherwise their athlete could risk a sanction (for a full discussion of this issue, click here).

The IOC contributes approximately US$15 million per year to the World Anti-Doping Agency (WADA), yet it receives $1.23 billion from US broadcaster NBC for the right to screen the Olympics. The IOC justifies its Rule 40 Guidelines by arguing that 90% of the revenues it generates are distributed to sport – equivalent to $3.25 million per day. If this applies to 365 days, the IOC redistributes $1,186,250,000 per year to sport. If this apples to 260 working days, the figure is $845 billion.

It could be argued that systemic Russian doping has done more damage to the commercial revenues of the Olympics than any single athlete could do, yet Russia is still allowed to send athletes to the Games. Despite the IOC’s protests that its approach is the only way in which the rights of clean Russian athletes could be protected, this has been perceived as a double standard by many.

This viewpoint aside, the staggering commercial figures claimed by the IOC in its Rule 40 Guidelines reveal that it could provide more money to WADA, which has consistently argued it is underfunded. Perhaps if that funding had been provided, WADA might have been more inclined to do more to tackle systemic Russian doping.

See nothing…

Today, WADA claimed that it could only act when it had ‘corroborated evidence’ of systemic Russian doping, and only when granted investigatory powers under the 2015 World Anti-Doping Code. ‘When German-based ARD released their first documentary in December 2014 that contained corroborated evidence, WADA quickly initiated its Independent Commission’, read a statement. ‘The Commission, which was chaired by Richard W. Pound, commenced its investigation in January 2015 when WADA acquired its new powers of investigation under the 2015 Code.’

However, as reported on The Sports Integrity Initiative earlier today, the IOC and WADA received substantial evidence concerning systemic Russian doping in 2013. In November last year, we reported on how the International Association of Athletics Federations (IAAF) had been investigating systemic Russian doping since April 2014 – possibly as far back as July 2013. In January, we reported how letters from the IAAF to the Russian Athletics Federation (RusAF – then ARAF) had shown concerns about systemic doping in 2009.

There is also the blood database obtained and analysed by Hajo Seppelt, which dates back to 2001 and allegedly revealed widespread doping across sport. Indeed, a 2011 study published on the IAAF’s internet site, involving analysis of samples taken back in 2001, reveals (Table 2, right) that certain countries may have had an issue with doping. Yet it appears that nobody investigated until Seppelt’s December 2014 documentary. In this case, a (moving) picture really is worth a thousand words.

Real change?

It appears that Russia is still operating using assumptions of power and influence at the IOC table, despite the history of allegations against it (this timeline just lists allegations involving Russian athletics). Last week, The Times reported that Russia had offered not to pick Russian athletes with a doping history, even if they had served their suspensions. This suggests that Russia still holds its athletes in casual regard – it is still prepared to sacrifice athletes who have served a ban in a deal that was presumably supposed to remain secret.

However, there are signs that the worm may have turned. Two Russian swimmers, Vladimir Morozov and Nikita Lobintsev, have appealed to the Court of Arbitration for Sport (CAS) against their ban. It is understood that fellow swimmer Yuliya Efimova is also planning to appeal her ban due to an earlier sanction. Her case is particularly unusual in that she has already fought a successful battle for reinstatement at Rio after being disqualified due to a positive test for meldonium.

As explained, the IOC’s decision to ban all Russians who have previously served a doping ban flies in the face of established CAS case law, which dictates that you cannot be tried twice for the same offence. How the IOC intends to get round previous case law – in which it was directly implicated – remains to be seen.

Perhaps the most telling aspect of Bach’s press conference yesterday is that the IOC has taken anti-doping out of sport’s hands. “For the first time in Rio, the IOC has decided to make sanctioning independent”, he said. “So if athletes are positive, they are not sanctioned by the IOC, this will go direct to the Court of Arbitration for Sport, who will independently take measures”. This is perhaps a sign that the IOC has lost trust in the system that it never wanted, and has chronically underfunded for many years. However that is a debate for another day.