Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The Russian Doping Scandal at the Court of Arbitration for Sport: The IAAF’s Rio Ineligibility of Russian Athletes

Since the release of the earth-shattering ARD documentary two years ago, the athletics world has been in a permanent turmoil. The International Athletics Association Federation (IAAF) is faced with both a never-ending corruption scandal (playing out in front of the French police authorities) and the related systematic doping of Russian athletes. The situation escalated in different phases led by the revelations of Russian insiders. First, in December 2014 with the ARD documentary, which demonstrated how widespread (and organized) the recourse to doping was in Russian athletics. It triggered the Pound investigation financed by the World Anti-Doping Agency (WADA), which led to two damaging reports (available here and here) for the Russian anti-doping system and the IAAF itself. Thereafter, in November 2015, the IAAF had no other choice but to provisionally suspend the Russian athletics federation (ARAF then RusAF) and its members from IAAF competitions. Yet, this was only the beginning as shortly after the former head of Moscow’s anti-doping laboratory provided a detailed sketch to the New York Times of the operation of a general state-led doping scheme in Russia. The system was designed to avert any positive doping tests for top-level Russian sportspeople and was going way beyond athletics. These allegations were later largely confirmed and reinforced by the McLaren investigation initiated by WADA in May 2016, and which published its first report in July 2016 shortly before the Rio Olympics. In June 2016, the IAAF anticipated the conclusions of the report (it had received most of McLaren’s evidence beforehand) and decided to maintain the ineligibility of Russian athletes for IAAF competitions, and for the Rio Olympics. It did, however, foresee a narrow exception for Russian athletes able to show that they were properly tested outside of Russia. Nonetheless, the athletes using this exception were to compete under a neutral flag at the Olympics. Unsurprisingly, Russian athletes led by pole superstar (and now IOC member), Yelena Isinbayeva, and the Russian Olympic Committee decided to challenge this decision in front of the Court of Arbitration for Sport (CAS). Interestingly, while the decision was rendered on 21 July 2016, the full text of the award was publically released only on 10 October 2016. In September, I analysed the Rio CAS Ad Hoc Decisions involving Russian athletes aiming to participate to the Olympics. I will now turn to the IAAF decision, which is of great importance to the future of the anti-doping system. Indeed, it lays out the fundamental legal boundaries of the capacity of international federations to impose sanctions on their members (and their members) in order to support the world anti-doping fight.

My blog will provide first a chronological narrative of the decisions taken by the IAAF to sanction the RusAF and its athletes. Thereafter, I will analyse the key aspects of the scope of the review of the IAAF’s ineligibility decision by the CAS.

 

I.              From the ARD documentary to the ineligibility of Russian athletes for the Rio Olympics

The IAAF started acting upon the suspicions of doping in Russian athletics only after the publication of the first part of the Pound report on 9 November 2015. In its first press release after the publication of the report, the president of the IAAF, Sebastian Coe, announced that he had “taken the urgent step of seeking approval from his fellow IAAF Council Members to consider sanctions against the Russian Athletics Federation (ARAF)”. He was considering “provisional and full suspension and the removal of future IAAF events”. This announcement was quickly followed on 13 November 2015 with the provisional suspension of the ARAF by the Council of the IAAF. Consequently, Russian athletes, and athlete support personnel were banned from competing in international competitions including World Athletics Series competitions and the Olympic Games. Furthermore, Russia lost the right to host the 2016 World Race Walking Team Championships (Cheboksary) and 2016 World Junior Championships (Kazan), while ARAF were to delegate the conduct of all outstanding doping cases to CAS. The provisory ban was based on IAAF Constitution Article 6.11(b) and Article 14.7. The ARAF could have challenged the decision of the Council but declined to do so (as is explained in a letter accessible here) and accepted the sanctions. Simultaneously, the decision also included a specific procedure for RusAF to regain IAAF membership. It foresaw that an inspection team led by an Independent Chair, Rune Andersen, would verify whether RusAF complies with a long list of precise criteria.

In early 2016, the IAAF taskforce started its verifications based on the aforementioned criteria. In March 2016, after its first visit to Moscow in January, the taskforce considered that “the Russian delegates have made significant progress towards meeting many of the Verification Criteria established by IAAF Council”. Yet, it also added that “there is significant work still to be done to satisfy the Reinstatement Conditions and so RusAF should not be reinstated to membership at this stage”. However, after the revelations of the New York Times in May 2016, the IAAF taskforce recommended in June that “RusAF should not be reinstated to membership at this stage, because several important Verification Criteria have not been met”. The taskforce considered that:

  • The deep-seated culture of tolerance (or worse) for doping that led to RusAF being suspended in the first place appears not to have changed materially to date.
  • A strong and effective anti-doping infrastructure capable of detecting and deterring doping has still not been created. 
  • There are detailed allegations, which are already partly substantiated, that the Russian authorities, far from supporting the anti-doping effort, have in fact orchestrated systematic doping and the covering up of adverse analytical findings.

This meant “that Russian athletes remain[ed] ineligible under IAAF Rules to compete in International Competitions including the European Championships and the Rio 2016 Olympic Games”. The taskforce also recommended that RusAF remains suspended, i.e. that no “representatives of RusAF (i.e. officials, athlete support personnel, etc.) should take part in International Competition or in the affairs of the IAAF”. The IAAF Council unanimously endorsed the recommendations. At the same meeting, and also upon recommendation of the taskforce, the IAAF Council passed a rule amendment “to the effect that if there are any individual athletes who can clearly and convincingly show that they are not tainted by the Russian system because they have been outside the country, and subject to other, effective anti-doping systems, including effective drug-testing, then they should be able to apply for permission to compete in International Competitions, not for Russia but as a neutral athlete”. These changes were introduced in Rule 22.1A IAAF Competition Rules (Rule 22.1A).[1] Finally, the IAAF also decided to let Yuliya Stepanova compete due to her “extraordinary contribution to the fight against doping in sport”.

On 23 June, the IAAF published a set of guidelines on the basis of which Russian athletes could request a permission to compete in IAAF events (and the Olympics) if they could demonstrate not being tainted by the Russian state doping system as provided under the exception enshrined in Rule 22.1A. However, athletes using this exception would be allowed to compete only as neutral athlete. Stepanova was the first athlete authorized to compete at the Rio Games by the IAAF (ironically, she would later be blocked by the IOC) based on the rule 22.1A. She was joined only by Darya Klishina (the IAAF later rescinded this eligibility in light of her involvement in the McLaren Report, but the CAS decided against all odds to let her compete in Rio).

The IAAF felt comforted in its decisions by the release of the McLaren Report on 18 July. Yet, the Russian athletes and the Russian Olympic Committee were obviously extremely dissatisfied with this outcome. Both sides agreed to submit the matter, through the ordinary arbitral procedure, to the CAS, which held a quick hearing on 19 July.

 

II.            The Key Legal Questions at the CAS

While the decision to reject the demands of the Russian athletes was publicized immediately (on 21 July) on the CAS’ website, it is only three months later that the full text of the award was made available for all to see. For analytical purposes, and following the award’s internal structure, I will deal with the following four key questions:

  1. Does the suspension of the RusAF extend to the eligibility of the Russian athletes?
  2. Is the new IAAF rule 22.1.A a sanction?
  3. Can the ROC nominate athletes to the Olympic Games without the assent of the IAAF?
  4. Will the Russian athletes falling under rule 22.1.A compete as neutral athletes in Rio?


1.     Does the suspension of the RusAF under Rule 22.1(a) extend to the eligibility of the Russian athletes?

The Russian athletes challenged first the application by IAAF of Rule 22.1(a) IAAF Competition rules. The Rule provides for the IAAF-wide ineligibility of “[a]ny athlete, athlete support personnel or other person whose National Federation is currently suspended by the IAAF”. In other words, the claimants “want an exception to the rule for doping cases, so that the ineligibility for the athletes affiliated to a suspended national federation, a member of the IAAF, would not apply if the suspension is imposed for the federation’s failure to ensure an effective doping control system”[2]

i.               Rule 22.1(a) is a valid rule extending the ineligibility of a federation to its athletes

The Panel rejects this challenge.

First, it considers that it is not its duty to rewrite the IAAF’s rules. Instead, the “rule- making power, and the balance to be struck in its exercise between the competing interests involved, is conferred on the competent bodies of the sport entity, which shall exercise it taking into account also the overall legislative framework”[3].

Second, it highlights “that the suspension of the Russian track and field federation is not disputed in this arbitration”[4]. This is due to the fact that ARAF did not contest the original decision of IAAF in November 2015. Consequently, “the dispute heard by the Panel regards only the consequences for the athletes affiliated to the Russian federation of the suspension imposed on their federation and not the reasons for the suspension”[5].

Thirdly, the Panel rejects the view that Rule 22.1(a) is a doping sanction. Rather, “it is a rule which affects the eligibility of athletes to enter into International Competitions and is a consequence of the organizational structure of international sport; national federations are members of international federations, and have the duty to respect the obligations deriving from such membership; athletes participate in organized sport, as controlled by an international federation, only on the basis of their registration with a national federation, which is a member of the international federation in question”[6]. Thus, “Rule 22.1(a) is a rule of general application, not specific to doping cases, and would apply equally to athletes who are members of federations that fail to pay their membership dues as to athletes who are members of federations that engage in other breaches of federation obligations to the IAAF as a member thereof” [7]. The claimants sought to frame Rule 22.1.(a) and Rule 22.1A as a package applying specifically to anti-doping cases. But the Panel disagreed, highlighting instead that “Rule 22.1(a) is not part of a new package of rules”, as it “has existed since at least 2000, whereas Rule 22.1A is a recent amendment”.[8] The Panel sees Rule 22.1(a) as “a necessary consequence of the sanction imposed on RusAF”. [9] In sum, the “athletes are ineligible because RusAF has been sanctioned, and accepted that sanction, not because of what the athletes have done”. [10]

ii.              Rule 22.1(a) is not contrary to the World Anti-Doping Code

The Panel also rejects the argument that Rule 22.1(a) would be contrary to the World Anti-Doping Code (WADC). First, because it is not an additional doping sanction (and therefore is not covered by the Osaka rule jurisprudence of the CAS[11]) and second because it is consistent with the WADC’s mandate to international federations to introduce sanctions in case their members do not comply with the Code.[12] Furthermore, “it is a fundamental principle of the law of associations in all applicable jurisdictions that members of associations have an obligation to satisfy the requirements for membership in the association and if they fail to do so those members may have their association membership adversely affected”[13]. The Panel refuses to “disturb these well-accepted principles” [14].

iii.            IAAF is not estopped to enforce Rule 22.1(a) on the Russian athletes

The Panel further refused to find that the IAAF was estopped from considering the Russian athletes ineligible based on Rule 22.1(a).[15] It is true that some IAAF employees/executives might have been involved in a corruption scheme to cover-up doping cases, however “[t]here is no suggestion that the IAAF officials were involved in the systemic doping of Russian athletes” [16]. Moreover, “none of the Claimant Athletes has argued that they knew about the IAAF’s wrongdoing and relied on it to their detriment, or that they believed that RusAF would not be suspended in the event of misconduct” [17]. The arbitrators also deny that the Rule 22.1(a) was too uncertain. In particular, the fact that the length of the ineligibility is indeterminate is deemed a “simple consequence of the fact that it is contingent on the National Federation (“NF”) being reinstated”.[18]

iv.            The ineligibility of Russian athletes under Rule 22.1(a) is proportionate

Finally, even though it considers that “Rule 22.1(a) is not a sanction”, and, therefore, “it does not have to pass any test of proportionality”[19], the Panel engages in a very interesting exercise to assess its putative proportionality. It finds “that the effect (ineligibility to compete at International Competitions) on the athletes registered with a national federation suspended by IAAF is a proportionate consequence of the national federation’s suspension for its failure to put in place an adequate system to protect and promote clean athletes, fair play and integrity of sport”. [20] In the view of the arbitrators, “eradication of doping in sport, protection and promotion of clean athletes, fair play and integrity are undeniably legitimate objectives of extreme importance for the viability of sport at any level”.[21] In this regard, “the measure taken by IAAF, and the effect it produces, is capable of achieving those objectives, as it prevents athletes under the jurisdiction of the suspended national federation (for having failed to promote a doping-free environment) from competing with athletes registered with federations that have not been the subject of an exclusion”. [22] Furthermore, “the measure taken by IAAF is necessary to reach the envisaged goal: if the IAAF could not take a step having the mentioned effect, the suspension of the Russian federation would have no meaningful impact”. [23] Thus, “the constraints which the affected athletes, including the Claimant Athletes, will suffer as a consequence of the measure are justified by the overall interest to achieve the envisaged goal, which outweighs them, and do not go beyond what is necessary to achieve it”. [24] Finally, the Panel highlight the role played by Rule 22.1A. This provisions shows “that the effect produced by the suspension of a national federation (in force since at least 2000) was recently made more flexible, to take into account individual cases, in a way consistent with the sought purpose of eradication of doping, protection and promotion of clean athletes, fair play and integrity”. [25]

The Panel, thus, concludes “that IAAF Competition Rule 22.1(a) is valid and enforceable in the circumstances of the present dispute”. [26]

 

2.     Is IAAF Competition Rule 22.1A valid and enforceable in the circumstances of the present dispute?

The Claimants were also challenging the validity of Rule 22.1A, as they were constructing the rule as an unforeseeable sanction against athletes who would not comply with the requirements enshrined in it. Yet, the Panel wondered from the outset “what interest the Claimants would have in seeing it set aside, given that it is a rule which allows athletes to be included, not excluded”[27]. Indeed, if the Panel “struck down Rule 22.1A, the only consequence for the Claimants would be that any athlete who made him/herself eligible pursuant to Rule 22.1A would still be ineligible: the Claimant Athletes, on the other hand, would not regain the eligibility denied by Rule 22.1(a)”[28]. The Claimants argued that both rules were intimately connected and amounted to one sanction: if one would be deemed invalid the other would fall too.[29] However, the Panel noted in response to this argument “that (i) the legality of Rule 22.1(a) and its applicability in the present circumstances has already been confirmed, as per the considerations above, [and] (ii) the Claimants’ submissions as to the legality of Rule 22.1A have no merit […]”[30]. Thus, the Panel finds Rule 22.1.A not to be inconsistent with the WADC as it does not constitute a sanction. Similarly, not being a sanction its proportionality is not into doubt, nor does it appear to be discriminatory. The Claimant Athletes could not rely on any legitimate expectations to be eligible if they met the Verification Criteria published on 11 December 2015, as “they would have also known that RusAF would have to be reinstated before they became eligible”[31]. Indeed, “Rule 22.1A did not change the way in which the Claimant Athletes could make themselves eligible”, rather “it provided another route to eligibility, one which could be pursued even though RusAF had not been reinstated in accordance with the Reinstatement Conditions”.[32]

In the end, the Panel only criticized the lack of legal certainty provided by “Rule 22.1A(b), as its terms may appear vague and retroactive in nature”[33]. Nonetheless, “no matter how concerning it may be for the Panel that the vague terms of Rule 22.1A(b) allow for retroactive application, this does not help the Claimants in having the application of this rule set aside in the given case”[34]. Even if “retroactive criteria in general are to be avoided as unfair and contrary to fundamental notions of due process and good sportsmanship” [35], the Panel notes that “Rule 22.1A is an inclusionary rule, and only created an opportunity, not a bar, for the Claimant Athletes”. [36] Hence, disapplying it “would only have the effect of harming any other Russian athlete who satisfied Rule 22.1A(b)”. [37]

 

3.     Can the ROC nominate athletes to the Olympic Games without the assent of the IAAF?

The third question raised by the Claimants was whether the Russian Olympic Committee could bypass the IAAF’s decision and nominate athletes without its approval to participate in the Rio Olympics. Here again the Panel from the outsets finds “that, under the Olympic Charter, the ROC is not entitled to nominate athletes who are not eligible under IAAF Competition Rules 22.1(a) and 22.1A”[38]. To come to this conclusion the Panel focuses on the Olympic Charter, it notes that “Rule 40 of the Olympic Charter restricts participation in the Olympic Games to those who comply with the Olympic Charter and the WADC, including the conditions of participation established by the IOC, “as well as the rules of the relevant IF as approved by the IOC””.[39] It interprets the latter sentence as implying “mandatory compliance with IF rules”[40]. Furthermore, the Panel finds that “the Olympic Charter makes it clear that an NOC shall only enter competitors upon the recommendations for entries given by national federations (Rule 44.4), and that as a condition precedent to participation in the Olympic Games every competitor has to comply not only with the provisions of the Olympic Charter, but also with “the rules of the IF governing his sport” (Bye-law 4 to Rule 44)”[41]. It concluded that “the NOCs can only exercise their right to send personnel to the Olympic Games if they comply with the rules of the relevant International Federation (“IF”) because otherwise they would be contravening Rule 40 of the Olympic Charter.[42] Consequently, “ROC cannot enter into the 2016 Olympic Games athletes who do not comply with the IAAF’s rules, including those athletes who are not eligible under Competition Rules 22.1(a) and 22.1A.” [43] Even in the unlikely event RusAF is deemed not to exist anymore for the purpose of the application of the Olympic Charter, and Bye-law 5 to Rule 44[44] of the Olympic Charter is deemed applicable, “the ROC would need the IAAF’s, and IOC Executive Board’s, approval to send competitors”[45].

Therefore, with or without RusAF, “the ROC cannot enter athletes who are ineligible pursuant to the IAAF’s rules”[46].

 

4.     Will the Russian athletes enjoying the exception enshrined in Rule 22.1A compete as neutral athletes?

Finally, the last interrogation posed by the claimants is whether Russian athletes regaining eligibility through Rule 22.1.A can compete as representatives of Russia. It is the only point on which the claimants are found by the Panel to prevail. Indeed, it finds “that, under the Olympic Charter, if there are any Russian track and field athletes who are eligible to compete at the 2016 Olympic Games under IAAF Competition Rule 22.1A, the ROC is entitled to enter them to compete as representatives of Russia”[47]. In its view, “under the Olympic Charter it is not for an IF to determine whether an athlete, eligible for entry to the Olympic Games, has to compete as a “neutral” athlete, or as an athlete representing the NOC that entered him or her” [48]. In other words, “athletes which are sent to the Olympic Games are not entered as neutrals, but are sent by an NOC” [49]. Moreover, “an athlete does not represent his/her national federation; the federation’s suspension does not prevent an athlete from being entered into the Olympic Games as a representative of his/her NOC” [50].

The Panel does recognize, however, that the fact “that the ROC is entitled, under the Olympic Charter, to enter into the Olympic Games as representatives of Russia any Russian track and field athletes who are eligible to compete under IAAF Competition Rule 22.1A does not mean that the IOC is bound to accept such designation as athletes representing Russia” [51]. In sum, it was not IAAF’s job to declare the athletes neutral but the IOC’s and it declined to do so.

 

Conclusion

The IAAF has faced a hurricane of negative news in the last two years. Its former president, Lamine Diack, is under investigation in France on corruption charges, its internal anti-doping activities have been shown to be at best inefficient and at worse corrupted, and Russia, one of its biggest suppliers of talents and legends, is exposed as engaged in a State sponsored doping programme. The least one can say is that cleaning these ‘Augean Stables’ was, and still is, an awful task. However, unlike the IOC, which has shown little willingness to seriously crack down on Russia after the scandal, the IAAF has adopted a tough line. It sidelined Russia’s athletics federation as soon as the suspicions voiced by whistle-blowers were substantiated. Furthermore, it refused to let Russian athletes participate in the Rio Olympics, thus reinforcing the anti-doping fight with a symbolically important sanction. Indeed, the world anti-doping system will remain a paper tiger if Russia’s systematic breach of anti-doping rules and spirit is not followed by truly deterrent sanctions. Surely, the system as a whole deserves a comprehensive reform addressing the massive deficiencies highlighted by the Russian scandal.

 

In this regard, the lessons from this CAS award rejecting the demands of the Russian athletes are threefold:

  • First, the athlete’s eligibility to international sporting competitions cannot be severed from the status of his or her national federation. In other words, the athletes, as members of a national federation, bear part of the responsibility for a federation’s failure to comply with, for example, its duties under the WADC. This does not preclude the introduction of mechanisms that, as the one introduced by the IAAF, would enable athletes to discharge this responsibility in specific situations.
  • Second, international federations can impose painful sanctions upon their affiliates in case of noncompliance with their duties under the WADC. The CAS recognized that in order to function properly the WADC needs to be supported at the local level, and to be supported at the local level noncompliance must be met with deterrent sanctions that will necessarily extend to the athletes affiliated with the noncompliant local body. Again, the athletes are not passive members of a national federation. They bear a share of the political (and in the end legal responsibility) attached to its governance.
  • Third, and finally, the CAS has demonstrated that there was no fatality in taking a lenient road to deal with the Russian State doping scandal. The Panel even left open the possibility for the IOC to decide that Russian athletes would have to compete under a neutral flag. This is a good reminder that the IOC’s decisions to let the Russians compete at the Rio Olympics, and thus dilute the negative effects of being caught organizing a comprehensive State doping system (as was very recently evidenced by the second McLaren Report) was not a legally mandated decision but a political choice that deserves critical scrutiny. The precedent force of this award is even greater in the light of its endorsement by the Swiss Federal Tribunal, which rejected in early August the Claimants request for provisory measures against it.



[1] The rule reads as follows:

1A. Notwithstanding Rule 22.1(a), upon application, the Council (or its delegate(s)) may exceptionally grant eligibility for some or all International Competitions, under conditions defined by the Council (or its delegate(s)), to an athlete whose National Federation is currently suspended by the IAAF, if (and only if) the athlete is able to demonstrate to the comfortable satisfaction of the Council that:

(a)  the suspension of the National Federation was not due in any way to its failure to protect and promote clean athletes, fair play, and the integrity and authenticity of the sport; or                 

(b)  if the suspension of the National Federation was due in any way to its failure to put in place adequate systems to protect and promote clean athletes, fair play, and the integrity and authenticity of the sport, (i) that failure does not affect or taint the athlete in any way, because he was subject to other, fully adequate, systems outside of the country of the National Federation for a sufficiently long period to provide substantial objective assurance of integrity; and (ii) in particular the athlete has for such period been subject to fully compliant drug-testing in- and out-of-competition equivalent in quality to the testing to which his competitors in the International Competition(s) in question are subject; or

(c)  that the athlete has made a truly exceptional contribution to the protection and promotion of clean athletes, fair play, and the integrity and authenticity of the sport.

The more important the International Competition in question, the more corroborating evidence the athlete must provide in order to be granted special eligibility under this Rule 22.1A. Where such eligibility is granted, the athlete shall not represent the suspended National Federation in the International Competition(s) in question, but rather shall compete in an individual capacity, as a 'Neutral Athlete'.

 

[2] CAS 2016/O/4684 The Russian Olympic Committee (“ROC”) et al v.  The International Association of Athletics Federations (IAAF), 21 July 2016, para.115. [where I use Para in the following footnotes I refer to this award]

[3] para.117

[4] Para.118

[5] Ibid.

[6] Para 119.

[7] Ibid.

[8] Para 120.

[9] Para 121.

[10] Ibid.

[11] See CAS 2011/O/2422 United States Olympic Committee (USOC) v. International Olympic Committee (IOC), 4 October 2011.

[12] Para.122-124

[13] Para. 124.

[14] Ibid.

[15] Para.125-127

[16] Para. 126.

[17] Para. 127.

[18] Para.128

[19] Para. 129.

[20] Para. 131.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Para. 132.

[25] Ibid.

[26] Para. 136.

[27] Para.137.

[28] Ibid.

[29] Para.138

[30] Para.140

[31] Para. 151

[32] Para.152

[33] Para.143

[34] Para. 146

[35] Para. 146.

[36] Para. 147.

[37] Ibid.

[38] Para. 155

[39] Para. 157

[40] Para. 157

[41] Para. 158

[42] Para. 159

[43] Para. 161

[44] Stating : “Should there be no national federation for a particular sport in a country which has a recognised NOC, the latter may enter competitors individually in such sport in the Olympic Games subject to the approval of the IOC Executive Board and the IF governing such sport”

[45] para.164

[46] para.165

[47] para.167

[48] para.168

[49] para.170

[50] Ibid.

[51] ibid.

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Asser International Sports Law Blog | The Olympic Agenda 2020: The devil is in the implementation!

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The Olympic Agenda 2020: The devil is in the implementation!

The 40 recommendations of the Olympic Agenda 2020 are out! First thought: one should not underplay the 40 recommendations, they constitute (on paper at least) a potential leap forward for the IOC. The media will focus on the hot stuff: the Olympic channel, the pluri-localisation of the Games, or their dynamic format. More importantly, and to some extent surprisingly to us, however, the IOC has also fully embraced sustainability and good governance. Nonetheless, the long-term legacy of the Olympic Agenda 2020 will hinge on the IOC’s determination to be true to these fundamental commitments. Indeed, the devil is always in the implementation, and the laudable intents of some recommendations will depend on future political choices by Olympic bureaucrats. 

For those interested in human rights and democracy at (and around) the Olympics, two aspects are crucial: the IOC’s confession that the autonomy of sport is intimately linked to the quality of its governance standards and the central role the concept of sustainability is to play in the bidding process and the host city contract.  


Good Governance = Autonomy


“Good governance and autonomy are strongly linked; they are two sides of the same coin”


This statement is to be found in the only document that really matters to understand the depth of the reforms envisaged: The context and background report. It is a confession; there is no autonomy of sport, unless this autonomy is in the hands of irreproachable institutions. The IOC is prone to consider itself as abiding to such standard, but it is not for itself to judge. The global public will be the sole arbiter of this pledge to good governance, as the IOC recognises: “Autonomy has to be earned”. 

In this regard, the IOC’s Agenda 2020 proposes a certain number of institutional and “good governance” reforms:


Recommendation 27 Comply with basic principles of good governance

The Agenda 2020 foresees that “all organisations belonging to the Olympic Movement [are] to accept and comply with the Basic universal Principles of Good Governance of the Olympic and Sports movements”. To this end, the organisations will be monitored and mentored and self-evaluation tests (probably similar to WADA’s compliance test) will be introduced. Furthermore, the IOC will update the principles of good governance with the help of a working group composed of “experts”. Obviously, the impact of this recommendation depends very much on the stringency of the monitoring and of the nature of the good governance requirements imposed. 


Recommendation 29: Increase Transparency

The IOC vows to publish financial statements according to the International Financial Reporting Standards and to produce an annual activity and financial report, including the allowance policy for IOC members. This is an important step, since it enables external observers to better scrutinise the financial flows in the Olympic movement and to have a full picture of the allowances received by each individual member of the IOC. It will be easier to follow where the IOC’s money is going and it will make money laundering harder. However, external revenues received by IOC members will stay undeclared, leaving the door open for suspicions.  


Recommendation 30: Strengthen the IOC Ethics Commission independence

This recommendation aims at securing the IOC’s ethics commission independence by proposing to elect its chair and its members via a secret ballot of the Session (the IOC’s parliament, assembling all IOC members). This seems quite an obvious thing in a democratic society, but for an institution versed in nepotism, it is a big step. Once implemented, the nomination process of the members of the Commission will be more difficult to control, and, thus, reinforce the independence of the sole potential counter-power (to the executive board) inside the IOC’s institutional structure. Again, this is no cure-all, and the Ethics Commission has yet to prove itself as an effective control mechanism, but it is a first step towards a more balanced institutional game.

 
Recommendation 32: Strengthen ethics

Here it is suggested to revise the Code of ethics, so that it “be fully aligned with the Olympic Agenda 2020’s drive for more transparency, good governance and accountability”. This is a vague, but potentially important, commitment to rethink the IOC’s Code of Ethics. Only time will tell if this revision will lead to better and accountable governance. In any event, only heightened public scrutiny can force the IOC to adopt governance standard ensuring full transparency and accountability. 


Recommendation 37: Address IOC membership age limit

The IOC is recommending a complex system to allow members over 70 to go beyond the official age limit entrenched in Article 16 of the Olympic Charter. In practice, the Session will be able to vote on allowing each member the right to stay on for maximum four years more than the age limit. This is a (minimal) concession to the IOC members strongly opposed to the age limit.  


Recommendation 38: Implement a targeted recruitment process

Recommendation 38 concerns the selection process of new IOC members. The IOC is no democratic institution. The “citizens” of the Olympic family do not elect their representatives. In fact, the IOC members are not necessarily part of the “Olympic family”. Historically, its selection process has been marred by nepotism (e.g. the Samaranch dynasty) as it is based on co-optation. The Agenda 2020 does not do away with this fundamentally oligarchic procedure, but it is slightly correcting it by empowering (and constraining) the nominations Commission, which is in charge of proposing candidates. The choice of the Commission is to be constrained by specific selection criteria, the most prominent being: gender balance; geographical balance; and the existence of an athletes’ commission within the organisation for representatives of Ifs/NOCs. As from now on, the press and the public will be able to blame the IOC if it does not follow its self-imposed requirements (gender balance being the one to watch closely) in the future. 

Some changes are also on the books concerning the Scope and Composition of IOC Commissions (Recommendation 40). Unfortunately, they are of unclear nature and magnitude.

These institutional innovations, if implemented, are positive steps forward to constrain power inside the IOC and to open it to outside scrutiny. The most remarkable outcome of the Olympic Agenda 2020 remains the crystal clear acknowledgment by IOC that the autonomy of sport is necessarily tied to the quality of the governing processes in place. This essentially means that the Agenda 2020 can only be the beginning of a dynamic institutional reform process that must lead the IOC to be more inclusive of the many constituencies of the sporting world. This is not enough, however; the IOC must also be receptive to the needs of society as a whole.  


Sustainability and Human rights in the bidding process

The bidding process should be at the centre of all critical attention. It is clear that it is the bidding process that entrusts the IOC with real political leverage. At this point, it takes fundamental decisions that will impact the life of millions (if not billions) of citizens Therefore, the brunt of the substantial (in contrast with the institutional measures discussed above) reforms was expected to impact on the bidding procedure (see the joint paper by the Swiss, German, Austrian and Swedish NOCs). It is also on the bidding process that the IOC received the most contributions in the framework of the Agenda 2020 (more than 90). In this regard, Sochi was a wake-up call, due to the abuses recorded on the human rights and anti-discrimination front, and the environmental sustainability side. The IOC Agenda 2020 is not shy of tackling these issues and, with caveats discussed below, should be praised for doing so. First, and this is a fundamental point, the Host City Contract will from now on be made publicly available (for now we only have leaked draft documents as for the 2022 contract). This is a necessary move for an institution claiming to follow good governance principles. Indeed, it will ease the work of critics and commentators scrutinising the contract and the public as a whole will have access to the official document itself.  


Recommendation 1: Shape the bidding process as an invitation

This first recommendation contains a variety of proposals. The spirit of which is “to invite potential candidate cities to present an Olympic project that best matches their sports, economic, social and environmental long-term planning needs”. Thus, for “reasons of sustainability”, the IOC will tolerate that events do not take place in the Host-city but in another nearby city or country (modification of article 34 of the Olympic Charter). The Host City Contract will include a provision banning discriminations, as was previously announced and celebrated by Human Rights Watch. In addition to this, article 21 of the 2022 Host City Contract will impose sustainability requirements on the Host city. Yet, the transformative quality of these provisions is still to be demonstrated. The main point remains that new regulations for the bidding procedure will be drafted. These will be key to set in stone the sustainability and Human rights turn of the Olympic family and will be the place to look at in order to assess whether the IOC is really serious about the changes put forward in the Olympic Agenda 2020.


Recommendation 2: Evaluate bid cities by assessing key opportunities and risks

The evaluation of the bids is key to the IOC’s impact on sustainability or human rights aspects (and not only to ensure that its commercial interests are safeguarded). Hence, it is good news that the IOC is to consider as positive aspects of a bid: “the maximum use of existing facilities and the use of temporary and demountable venues where no long-term venue legacy need exists or can be justified”. Furthermore, the Evaluation Commission is “to benefit from third-party, independent advice in such areas as social, economic and political conditions, with a special focus on sustainability and legacy”. In fact, the final reports by the Evaluation Commission are to include “an assessment of the opportunities and risks of each candidature, as well as of sustainability and legacy” (modification of bye-law to rule 33) and third-party independent risk-assessments are to be conducted. This will be a powerful tool in the hands of NGOs to decisively influence the selection process by providing in depth (and public) assessments of the sustainability of the different bids. It will also, and perhaps mainly, offer critical ammunitions in case the IOC is inclined to disregard the sustainability assessment provided by the Evaluation Commission. There is no rock solid guarantee that the IOC will in the end take into account the sustainability of a bid to allocate the Games. Yet, a full-blown neglect of this assessment would give way to damaging public criticism.  


Recommendation 4: Include sustainability in all aspects of the Olympic Games

This recommendation is aimed at ensuring that sustainability “is included in all aspects of the planning and staging of the Olympic Games”. Sustainability is to be achieved via “a sustainability strategy to enable potential and actual Olympic Games organisers to integrate and implement sustainability measures”. The IOC wants to assist the Organising Committees “to establish the best possible governance for the integration of sustainability throughout the organisation”. To this end, the “[n]ext Host City Contract [is] to reflect, through a number of additional obligations” these policy goals. Moreover, the IOC considers signing a “MoU with the United Nations Environment Programme (UNEP) for possible independent assessment of OCOG sustainability performances”. Again, depending on the extent to which the Host City Contract will be modified, these changes are substantial. However, the UNEP might need concrete commitments to be convinced to deepen its existing collaboration with the IOC, especially after the disaster of the Sochi Games. The Host City Contract is certainly an important lever to impose obligations on the Host City, but to effectively do so it needs to be accompanied by clear and potent procedures ensuring its enforcement.  


Recommendation 5: Include sustainability within the Olympic Movement’s daily operations

The IOC’s administration in its day-to-day operations is to follow sustainability standards. Most notably, it aims to “introduce sustainable sourcing policies in tendering processes, sponsorship, licensing and supplier agreements for renewals or new contracts”. This is an instance of IOC greening its own administrative operations to improve its image. 


Recommendation 14: Strengthen the 6th Fundamental Principle of Olympism

In a symbolic gesture, the 6th fundamental principle of Olympism, which forbids all types of discrimination, is to be re-written into a hybrid text of Article 14 of the European Convention of Human Rights and Article 2 of the UN Universal Declaration of Human Rights.  This is a tricky move and guessing the way the new principle will be interpreted in the future is an impossible deed. On one side, it seems that the principle is now completely in line with anti-discrimination standards widely recognised under international law. On the other, one has the impression that the new wording narrows its scope of application. Indeed, discrimination is not “incompatible with belonging to the Olympic Movement” anymore, it is merely inadmissible when exercising the rights and freedom granted by the Olympic charter. In general, this is a symbolic provision, the wording of the Host City Contract or the bidding requirements have way more practical relevance, but this development is not necessarily a sign of a more stringent action from the part of the IOC against discriminations. 


Conclusion: The Devil is in the implementation/interpretation

This leads us to a final, and crucial, caveat. Law is very much about the interpretation of the meaning of words. In our case, the IOC will be the main responsible to give a practical meaning to the sweet words enshrined in the Agenda 2020’s recommendations. Starting with the IOC Session on the 8 and 9 December in Monaco, which will decide on the modifications to the Olympic Charter or its byelaws. The legal meaning of transnational concepts such as sustainability, good governance and discrimination is more or less shared around the globe. The IOC cannot afford to betray it; there is no space for the use of newspeak, or for any other word games leading to a practical disregard of the essential gist of those concepts. The IOC and its president have raised high expectations with this set of recommendations indicating a willingness to change from the side of the Olympic movement. Such expectations cannot be disappointed over and over again; it would certainly be suicidal for the Olympic movement to betray its grand promises. Now comes the time to deliver!


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