27 December 2016

Shock and internalised anger are not enough!

• A reply by Clemens Prokop, President of the German Athletics Association (DLV), to the statements by the International Olympic Committee (IOC) President, Thomas Bach, in an interview published in the Frankfurter Allgemeine Zeitung (FAZ). 

Over recent weeks, many concerned parents have contacted me as the Association’s president to ask whether, given the conditions in international sport, it’s still worth motivating young people to take part in high-performance sports. The answer to such questions is currently not very easy. The loss of trust that international sport has suffered recently is too great.

The accusations made by the chief World Anti-Doping Agency (WADA) investigator, Richard McLaren, in his second report on 9 December 2016 are particularly serious. It states that between 2011 and 2015, over 1,000 sportspeople in Russia – across various sports – were part of a wide-ranging, state-sponsored doping policy in which not only were sports people doped by the institutions, but there was apparently also systematic and centralised cover-up and manipulation of the doping control process.

Faced with these investigation results, the response of the international sports organisations plays a key role in the fight to regain the credibility of sport. The International Olympic Committee (IOC) is of particular importance here. According to the basic Olympic principles laid down in the IOC Charter, the IOC is the highest authority for global sport and is built on adhering to fundamental moral principles and wants to enable anybody to play sport in the spirit of fair play.

The IOC sees itself therefore as a kind of ‘holy grail’ of international sport and the protector of these ethical values. In an interview in this newspaper (see FAZ dated 15.12.2016 and www.faz.net/bach) under the title ‘Shock and in part internalised anger’, IOC President Dr. Thomas Bach again justifies the IOC’s policy of not suspending Russian sport in spite of the investigation results presented in the McLaren report. His comments virtually demand objections to be stated.

The key elements of Dr. Bach’s responses are legal arguments. For example, he states: ‘Every decision must be guided by the law and laws’ and ‘you do not protect values by responding to legal infringements with legal infringements’. The objective of this argumentation is without doubt appropriate. But does the IOC also consider these principles binding for itself?

After her revelations about doping practices in Russia, Russian ‘whistle-blower’ Yuliya Stepanova was banned from competing at the Rio Olympic Games by the IOC with the justification that she had previously served a doping ban – which has now ended. This decision was, at first glance, more than questionable from ethical and legal perspectives because, at the same time, the right to race of other athletes who were banned for doping from other countries saw no objections from the IOC.

But the illegality of this decision was particularly obvious because the Court of Arbitration for Sport (CAS) has decided in ongoing jurisprudence that no further sanctions may be linked to the doping infringement after a doping ban has been served. The IOC was aware of this undisputed legal principle not least because it participated in some of the proceedings when these decisions were made. In Stepanova’s case, the IOC knowingly broke applicable law. So the question must be asked: Are laws and law absolutely binding for the IOC or only if they match the political calculations?

But the legal considerations of the IOC President also demand an objection in terms of the content. Dr. Bach demands – with almost no alternative – individual, localisable culpability for sanctions. If such is not the case, no punishment is possible as otherwise innocent athletes would also be punished by collective punishments. With this argument, Bach contradicts Rule 59 of the IOC Charter by which National Olympic Committees (NOC) can be explicitly suspended.

Each suspension of an NOC at the same time represents a collective punishment on the sportspeople thus affected. The admissibility of collective punishments can therefore not be seriously questioned on the basis of the IOC Charter and the IOC has actually suspended NOCs. In particular in the case of Russia, such a measure is particularly relevant as in Rule 59 of the IOC Charter infringing the World Anti-Doping Code is explicitly stated as a requirement for suspending an NOC.

To justify the reluctance with regard to Russian sport, the IOC president sets up a second line of defence. In the interview, he states that McLaren found no evidence in his report on the involvement of the Russian NOC in the ‘plot against sport’. Although this is applicable, it is barely credible. How far must those responsible at the Russian NOC be away from the sport if they cannot perceive institutionally sponsored doping practices to this incredible extent?

At the end of the day, these questions do not need answering. Because according to Rule 27 of the IOC Charter, the national NOC must accept and implement the World Anti-Doping Code. Combatting doping is therefore one the key tasks of an NOC.

If, according to the McLaren Report, over 1,000 people across a range of sports doped in Russia between 2011 and 2015 and were systematically and centrally manipulated in the doping control process, the Russian NOC obviously did not fulfil its role under the IOC Charter. It is irrelevant whether those responsible at the Russian NOC are proven to have been responsible for active cooperation. Rather it is key that the NOC in fact uses the national anti-doping institutions to fulfil its tasks and their culpability must be assigned to it.

In addition, the key civil law here not only recognises the assignment of other’s responsibility, but also provides the concept of organisational culpability that, when faced with an accepted responsibility, waives localising individual incorrect behaviour in a complex organisation. The legal option to suspend the Russian IOC based on the investigation results in the McLaren reports therefore counters the argumentation of Dr. Bach. And CAS confirmed the exclusions of Russia by the International Association of Athletics Federations (IAAF) and the International Paralympic Committee (IPC) as legal even before Rio. Therefore, suspending the Russian NOC has nothing to do with ‘legal infringement after legal infringement’.

The argument of the IOC President in the FAZ interview means nothing more than reducing the global doping problem to an event for which the individual is responsible. This view may be applicable to countries where the anti-doping institutions function. But it does not provide any solutions for countries where the state institutionally supports doping, where there are no anti-doping systems in place or operating or where the consequences of combatting doping are subsidiary to the desire for national sporting success.

In particular, it is these cases of national, institutionalised doping that are most dangerous for the future of sport. On the one hand, the control measures fail here because the control system is virtually removed as a neutral instance. On the other hand, the victims of these doping practices are not only cheating international competitors. They are also the athletes in the relevant country who can barely withstand the pressure of doping in such systems. Sanctions against the NOCs in countries with such systematically controlled doping would however lead to political conflicts with powerful forces in this world, the exclusion of various countries would blot the copybook of sporting events and finally probably reveal the true extent of the global doping problem. Is this why the IOC is not fully exploiting the legal options when it comes to Russia?

If the values of the IOC Charter are to be taken seriously, the IOC would have to suspend Russia’s NOC to protect all affected athletes and fair competition. It would be a powerful sign that all systematic, state-sponsored doping would be combatted by all possible means. The contrary statements by the IOC President in the FAZ interview are however no signal that the fight to regain credibility in sport is starting. The answers to questions from concerned parents whether to motivate their children to undertake high-performance sport have certainly become no easier.

• This article was originally published by the Frankfurter Allgemeine Zeitung (FAZ) on 19 December 2016. You can access the original here. It has been reproduced with the kind permission of the German athletics federation (DLV).

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