Editor's note: This blog is part of a special blog series on the Russian doping scandal at the CAS. Last year I analysed the numerous decisions rendered by the CAS ad hoc Division in Rio and earlier this year I reviewed the CAS award in the IAAF case.
Unlike
the International Association of Athletics Federations (IAAF), the
International Paralympic Committee (IPC) was very much unaffected by the
Russian doping scandal until the publication of the first McLaren report in July
2016. The
report highlighted that Russia’s doping scheme was way more comprehensive than
what was previously thought. It extended beyond athletics to other disciplines,
including Paralympic sports. Furthermore, unlike the International Olympic
Committee (IOC) the IPC had a bit more time to deal with the matter, as the Rio
Paralympic Games were due to start “only” in September.
After
the release of the McLaren Report, the IPC president Sir Philip Craven was “truly shocked, appalled
and deeply saddened at the extent of the state sponsored doping programme
implemented in Russia”. He immediately announced the IPC’s intention to review
the report’s findings and to act strongly upon them. Shortly thereafter, on 22
July, the IPC decided to open suspension proceedings
against the National Paralympic Committee of Russia (NPC Russia) in light of
its apparent inability to fulfil its IPC membership responsibilities and
obligations. In particular, due to “the prevailing doping culture endemic
within Russian sport, at the very highest levels, NPC Russia appears unable or
unwilling to ensure compliance with and the enforcement of the IPC’s
Anti-Doping Code within its own national jurisdiction”. A few weeks later, on 7
August, the IPC Governing Board decided to suspend the Russian
Paralympic Committee with immediate effect “due to its inability to fulfil its
IPC membership responsibilities and obligations, in particular its obligation
to comply with the IPC Anti-Doping Code and the World Anti-Doping Code (to which
it is also a signatory)”. Indeed, these “obligations are a fundamental
constitutional requirement for all National Paralympic Committees (NPCs), and
are vital to the IPC’s ability to ensure fair competition and to provide a
level playing field for all Para athletes around the world”. Consequently, the
Russian Paralympic Committee lost all rights and privileges of IPC membership. Specifically,
it was not entitled to enter athletes in competitions sanctioned by the IPC,
and/or to participate in IPC activities. Thus, “the Russian Paralympic
Committee will not be able to enter its athletes in the Rio 2016 Paralympic
Games”.
This was
an obvious blow to Russia’s Paralympic team and, as was to be expected, the RPC
decided to challenge the decisions. Thanks to an agreement with the IPC, the
case moved directly to the Court of Arbitration for Sport (CAS), which decided
in favour of the IPC on 23 August. Nonetheless, the legal battle did not end
there as Russian athletes continued the fight in the German courts. In this
blog I will first review the CAS award and then discuss the
follow-on disputes in German courts.
I.
The IPC’s triumph
before the CAS
At play
in front of CAS was the use of clauses 9.2.2 and 9.3 of the IPC Constitution to suspend the RPC for
failing to fulfil its obligations as a member. Indeed, the member’s obligation
provided in clause 2 of the IPC constitution, includes the obligation “to
comply with the World Anti-Doping Code”[1] and to
“contribute to the creation of a drug-free sport environment for all Paralympic
athletes in conjunction with the World Anti-Doping Agency (WADA)”[2]. The
RPC challenged the claim that it had failed to comply with these obligations.
Furthermore, it considered that in any event the sanction applied was disproportionate.
A.
Did the RPC fail
to comply with its membership obligations?
The RPC contested
in full the factual findings of the McLaren Report. Yet, the Panel held that
the RPC failed to provide the necessary evidence to rebut McLaren’s factual
claims. In particular, the RPC “decided not to cross-examine him although given the opportunity to do so”[3] and
“did not call any athlete named by Professor McLaren as having been subject to
the system he described”[4]. In
other words, “Mc Laren’s evidence stands uncontradicted”[5]. However,
in light of the lack of precise information, the Panel refused to conclude, like the IPC
requested, that “the
RPC and its Board Members were involved in, or complicit in, or knew of the
existence of State sponsored doping of athletes and the methodologies as set
out in the IP Report”.[6]
Nonetheless,
the arbitrators also found that it is “undisputed that the RPC accepted the
obligations imposed on it as a member of the IPC”, and amongst those
obligations there is “the specific obligation under Article 20.1 of the WADA
Code to adopt
and implement anti-doping policies and rules for the Paralympic Games which
conform with the WADA Code”.[7]
Moreover, “the obligation vigorously to pursue all potential anti-doping rule
violations within its jurisdiction and to investigate cases of doping (Article
20.4.10), are not passive”.[8] Thus,
at a national level “the RPC is the responsible entity having the obligation to
the IPC as well as to the IPCs’ members to ensure that no violations of the anti-doping
system occur within Russia”.[9] Yet,
the mere “existence of the system as described in the IP Report and in the
McLaren affidavit means that the RPC breached its obligations and conditions of
membership of the IPC”.[10]
Those
are extremely important considerations to support the effectiveness of the world
anti-doping system. In practice, the CAS is closing the door on national
federations hiding behind the failure of other anti-doping bodies to deny their
responsibility. If decided inversely, this would have led to a situation of
organized irresponsibility, in which the bucket is simply passed over to a public
institution (in Russia’s case RUSADA) that cannot be sanctioned under current
anti-doping rules. Indeed, WADA declare RUSADA non compliant, but RUSADA is not
a member of sporting associations, it does not enter athletes in international
sporting competitions, thus SGBs would be hard pressed to find a way to impose
any deterrent sanctions against it. If noncompliance is to be met with adequate
sanctions, SGBs, which are tasked to supervise specific sports at national
level, must bear the indirect responsibility for the systemic failure of the
anti-doping system operating in their home country.
B.
Is the sanction imposed
by the IPC proportionate?
As the
Panel recognized from the outlet: “the more difficult question for consideration is
whether the decision to suspend the RPC without reservation, or alleviation of
the consequences to Russian Paralympic athletes, was proportionate”.[11] The RPC submited “that the IPC could have
adopted a “softer measure” that still permitted clean Russian athletes to
compete in the Paralympic Games in Rio”.[12]
Furthermore, it argued, “that a blanket prohibition is not justified, as it has
not been established that all para-athletes nominated by the RPC have ever been
implicated in doping”.[13]
1. Whose right are
disproportionately affected?
The
Panel considered first that as para-athletes are not parties to this appeal, “[q]uestions of athletes’
rights that may not derive from the RPC, but of which they themselves are the
original holder, such as rights of natural justice, or personality rights, or
the right to have the same opportunities to compete as those afforded to
Russian Olympic athletes by the IOC in its decision of 24 July 2016 regarding
the Olympic Games Rio 2016, are not for this Panel to consider”.[14]
Instead, the “matter for review by this Panel is thus not the legitimacy of a
“collective sanction” of athletes, but whether or not the IPC was entitled to
suspend one of its (direct) members”.[15]
Furthermore, “the collective member cannot hide behind those individuals that
it represents” .[16]
Here the
Panel adopts a relatively formalistic reasoning by denying the RPC the
competence to invoke the potential rights of its athletes. This might contradict
the idea that athletes bear a responsibility for the noncompliance of their
national federation with the rules of an international federation as put
forward by the Panel in the IAAF case. The RPC does, at least partly, represent
the athletes, and there is a good case that can be made for it to be allowed to
raise the potential infringements of the personality rights of its members in
this procedure. It does not mean that the rights of the athletes were
disproportionately affected, only that they should have been considered and not
brushed aside as the Panel did in the present instance.
2. The
(extraordinary) nature of the RPC’s regulatory failure
Unfortunately,
the award’s analytical structure can lead to some confusion when dealing with
the proportionality analysis of the IPC’s decision. There are two (implicit)
steps that are key in the decision. First, an analysis of the depth (and
consequences) of the RPC’s regulatory failure, and second an analysis of the proportionality
of the sanction responding to this failure. The former will be dealt with in
this section.
The
Panel points out that the IPC “was faced with probative evidence of widespread systemic doping under the
RPCs “watch””.[17] Moreover, as argued by the IPC, the RPC’s failure to act
is even more acute in light of the IPC’s dependence on national members to
implement its policies at national level. Thus, in particular, “the IPC relies
on the RPC to ensure compliance in Russia with its zero tolerance anti-doping
policy”.[18]
More generally, “this federal system with complementary international and
national obligations is the core back-bone of the fight against doping”.[19] In
this context, the fact that the RPC claims that “it did not know what was
happening and that it had no control over those involved in the system
described by Professor McLaren does not relieve the RPC of its obligations but
makes matters worse” [20].
Though it is unclear from the formulation used in this section of the award,
the outcome of the case points undoubtedly to the fact that the Panel endorses the
IPC’s understanding of the scope of responsibility of the RPC. Furthermore, the
arbitrators insist that the “damage caused by the systemic, non-compliance is
substantial” [21].
Finally, it finds again that the RPC “had a non-delegable responsibility with
respect to implementing an anti-doping policy in conformity with the WADA Code
in Russia”.[22]
Thus, the RPC could not simply “delegate the consequences [of this
responsibility] where other bodies within Russia acting as its agent implement
a systemic system of doping and cover-up”.[23]
In this
section of the award, the Panel recognizes, rightly in my view, that the
effectiveness of the transnational regulation of international sports relies on
the compliance of national federations and this is even more so in the case of the
anti-doping fight.
3. The proportionality
of the sanction
The key
question in the proportionality analysis was whether the sanction inflicted
upon the RPC was adequate and necessary to attain its aim. The reasoning of the
Panel is piecemeal and spread around a number of paragraphs of the award, which
are regrettably not well connected together.
The
first question is whether the IPC was pursuing a legitimate objective when
imposing that sanction on the RPC. On the IPC’s own account, the sanction was considered
“the only way to ensure that the system, and systematised doping, in Russia no
longer continued”.[24] It
adds “that it was a legitimate aim to send a message that made clear the lack
of tolerance on the part of the IPC to such systemic failure in a country”.[25] The
Panel recognizes that the “concern that clean athletes, inside and outside of
Russia, have confidence in the ability to compete on a level playing field, and
the integrity and credibility of the sporting contest, represent powerful
countervailing factors to the collateral or reflexive effect on Russian
athletes as a result of the suspension”[26], and
constitutes “an overriding public interest that the IPC was entitled to take
into account in coming to the Decision”.[27]
The
second question linked to the proportionality of the sanction relates to its necessity.
Was there a less restrictive alternative sanction available to attain the aim
pursued? The IPC argued that the suspension of the RPC’s membership was
necessary for three reasons:
- “to provoke behavioural
change (for the future) within the sphere of responsibility of the RPC”
- “the suspension took into
account that the failures in the past had resulted in a distorted playing field
on an international level, because the IPC anti-doping policy was not being adequately
enacted and enforced vis-à-vis para-athletes affiliated to RPC”
- “a strong message had to be
issued to restore public confidence, since the Paralympic movement depends –
much more than other sports – on the identification with moral values”[28]
The
Panel held that the suspension was “a powerful message to restore public
confidence”. It insisted also that there “was no submission to the Panel of an
alternative measure that would, comparably and effectively, restore a level
playing field for the present and the immediate future, affect future
behavioral change and restore public trust”.[29]
Finally,
the Panel concluded that “in light of the extent of the application of the
system described by Professor McLaren and his findings of the system that
prevailed in Russia, made beyond reasonable doubt, the Decision to suspend the
national federation was not disproportionate”.[30] Moreover,
it insisted that the consequences for the athletes were following logically
from the suspension of the RPC and therefore proportionate, as it had decided
in the IAAF case. The Panel also brushed aside the RPC’s attempt to portray the
IPC’s decision as contrary to the IOC Decision dated 24 July 2016. On the
one side, it found the IOC Decision to be irrelevant for the IPC and, on the
other, it considered the IPC’s suspension to be in any event compatible with
the IOC Decision.
II.
The
Russian appeals in the German courts
The
RPC’s appeal to the Swiss Federal Tribunal failed on 30 August because it could not demonstrate
its ability to fulfil its obligations with regard to the anti-doping rules of
the IPC and WADA, not unlike the one of the Russian athletes and RusAF in the
IAAF case,. Nor could RusAF demonstrate that its interests would override those
of IPC to fight effectively against doping and protect the integrity of sport.
Yet,
interestingly, new challenges against the RPC’s suspension were quickly lodged in
German courts. Indeed, as the IPC is seated in Bonn, a number of Russian athletes
tried to obtain provisory judgments from the Landgericht (LG) Bonn to
participate in the Rio Paralympics. These cases were appealed to the
Oberlandesgericht (OLG) Düsseldorf, and even ended up in front of Germany’s
constitutional court, the Bundesverfassungsgericht (BVerfG). It would have been
ironical if the German courts had quashed the decision of the IPC, bearing in
mind that it is the German public broadcaster (ARD) which brought the Russian
doping scheme to the fore in the first place.
A.
The decisions of
the LG Bonn
On 5 and
6 September the LG (first instance tribunal) Bonn rendered two judgments
(available here and here) on the matter. Both
rejected the claims of the Russian athletes.
The
first judgment found that the athletes could not rely on any contractual
claims, as no contract existed between them and the IPC. This is due to the fact
that the RPC is supposed to nominate them to participate in the Paralympic
Games, for the court there is no contract between the IPC and the athletes.[31] Even
where the IPC foresees in its rules that it can directly nominate athletes to
participate in the Paralympic Games, one cannot derive that it has a contractual
duty to select the claimants. Instead, it enjoys certain discretion in doing
so. However, the LG recognized that the Russian athletes’ interests are
affected by the IPC’s Decision of 7 August 2016, but it also acknowledged that
the IPC justified its decision by the existence of a state-run doping scheme in
Russia.[32] Thus,
the final decision to enter or not athletes in the Paralympic Games of Rio
should be left to the IPC. The fact that the IOC applied a different regime to
the Russian athletes willing to participate in the Rio Games is deemed not
binding upon the IPC, as it is a separate legal entity.
The
second judgment, rendered the day after, follows a very similar line of
reasoning. The LG added a pointed rebuttal of the claim that the Russian
athletes were discriminated against. It insisted that the other countries are
not suspected of running state doping schemes.[33] The
court recognized that athletes cannot easily change their nationality, but it
insisted that the Olympic Games are more than any other sporting competition
characterized by the fact that athletes participating are not primarily
representing themselves but their home country.[34] In
this context, athletes must accept to face restrictions for which they might
not be personally responsible.[35]
Furthermore, the ineligibility of the Russian athletes was not deemed a disproportionate
restriction on the freedom to work or on the fundamental personality rights of
the claimants. The LG considered that authorizing specific athletes to compete
under a neutral flag would not have been a milder solution to fight against
doping, as the Russian public would still have identified them as Russian.[36]
Instead, as members of the RPC, the claimants must accept such a restriction to
their individual rights.
The LG
Bonn strongly supported the decision adopted by the IPC. The court has, as the
CAS did, declined to consider the suspension of the RPC, and the ensuing
ineligibility of Russian athletes for the Rio Paralympic Games, as
discriminatory or disproportionate.
B.
The Appeal to the
Oberlandesgericht Düsseldorf
The appeal decision of the OLG Düsseldorf is
probably the most interesting of the German decisions analysed here. In the
first part of its judgment, the OLG criticized harshly the Russian athletes for
failing to request earlier a provisory order from the German courts. Indeed, at
the time of the decision, 13 September 2016, the Paralympic Games were almost
one week underway (7 September). Consequently, many (if not all) of the
appellants would be unable to compete at the Games anyway, even if the court were
to grant the requested order.
Yet, the
core of the OLG’s ruling, and its most important contribution to the world
anti-doping system, is its assessment of the balance of interests between the
Russian athletes and the IPC. In a nutshell, the OLG found that the IPC’s
interest in declaring the Russian athletes ineligible prevails because there is
a legitimate suspicion that those athletes have been involved in doping in the
previous years.[37]
To come to this conclusion, the court conducted a fairly comprehensive
assessment of the opposing interests. On the one side, the Russian athletes
have an interest in participating in the Paralympic Games to secure economic
revenues deriving primarily from sponsoring. On the other side, stands the IPC’s
“fundamental interest in the organization of a fair sporting competition
excluding athletes who have used doping or against which there is a strong
suspicion of doping”.[38] In
this case, the OLG held that the interest of the IPC for “clean” Paralympic
Games prevails and justifies the rejection of the complaint.[39] For
the Düsseldorf court, the personal guilt of the athletes is irrelevant, as the
fact that they had the possibility to exercise their sport with the support of
doping without risking to be discovered justifies in itself a general suspicion
of doping against all Russian athletes.[40] Thus,
the IPC can, for the preservation of the fairness of its competitions, declare
them ineligible for the Paraympic Games. Only the athletes for whom it can be
confidently demonstrated that they have not doped can be exempted from this
exclusion.
Hence,
the OLG considered that the factual constellation of the case justifies that
each and every Russian Paralympian can be legitimately suspected of having been
involved in doping over the recent years. Furthermore, Paralympic athletes
were, as corroborated by the McLaren Report and his affidavit, also a target of
the Russian doping system.[41] This
suspicion cannot be rebutted by the oath taken by 68 (out of 84) of the
appellants that they have not tested positive for doping in the last two years.
Indeed, it cannot be demonstrated that the athletes have been subjected to non-manipulated
doping tests.[42]
In the end, the OLG fully endorsed the IPC’s decision to prioritize its
objective of providing “clean Games” to the detriment of the interests of
Russian Paralympians in participating.
C.
Final Stop at the
Bundesverfassungsgericht
The
next, and final stop, for the claimants was the BVerfG in Karlsruhe. The court,
which rendered its ruling on 15 September, was faced
with the demands of Russian athletes for a provisory order allowing them to
participate (at least) to the closing ceremony of the Paralympic Games due to
take place on 18 September.
The court’s
balancing exercise between the interests of the IPC and those of the Russian
athletes is favourable to the former. Thus, the BVerfG found that if it would
grant the provisory order and later reject a related constitutional complaint,
this would have irreparable consequences for the pending Paralympic
competitions and closing ceremony and would send a (negative) signal to sport
in general.[43]
Even if, to their credit, the individual athletes are not directly involved in
the state-run doping scheme unearthed by the McLaren Report, the Court believed
that the decision of the IPC and the CAS to declare the whole Russian team
ineligible must be respected. The entering of athletes through the national
courts would intrude substantially on the autonomy of the IPC and of the CAS[44] and
the deterring signal send by the RPC’s exclusion, which aims at scaring off
national federations from supporting or tolerating systematic doping schemes,
would be substantially weakened.[45]
Furthermore,
if instead the provisory order is rejected and the Russian athletes prevail in a
later constitutional complaint, the interests of the athletes to participate in
the closing ceremony is still of significantly less weight than the IPC’s
interest to ensure that the use of doping in sport is fought against
effectively.[46]
In particular, one cannot ignore that, besides one of the appellants, all the
others will in any event not be able to participate to competitions which have
already taken place.[47] Even
for the only athlete potentially able to participate there are legitimate
doubts regarding her material ability to compete in the Rio Paralympic Games. Therefore,
the BVerfG rejected the appellants’ plea and definitely put an end to their
hope in participating to the Rio Paralympic Games.
Conclusion
At the
time of writing, the RPC is still suspended by the IPC and the second McLaren
Report has corroborated with more evidence the extensive nature of the Russian
doping scheme. The IPC has developed, in collaboration with WADA, a set of
tough reinstatement criteria to be met by the RPC in
order to be reinstated. The compliance of the RPC with the criteria will be
monitored by a special taskforce. Thus, the IPC demonstrated
its willingness to tackle head-on the Russian doping scheme. In doing so, it
followed a radically different approach than the IOC and declared all Russian
Paralympians to be ineligible.
The CAS
and the German courts later fully endorsed this approach. In fact, it seems
that the national courts were even going beyond the findings of the CAS by
emphasizing that there was a legitimate presumption from the side of IPC that
all the Russian Paralympic athletes were doped. The CAS and the German courts
also insisted that a balancing exercised between the interests of the athletes
to participate in the Paralympic Games and the interests of the IPC to defend
clean and doping free competitions, would be decided to the benefit of the
latter. Even so athletes might not be directly responsible for the state-run doping
scheme, they share the responsibility (as in the IAAF case) for the governance failures
of their sports governing bodies. In the eyes of the German courts, this
responsibility is reinforced by the fact that they are representing their
country at the Paralympic Games.
In the
end, the CAS (and the German courts) had to choose between:
- Burdening athletes for the
systematic failure of the Russian sports governing bodies to comply with their
anti-doping commitments and risk to sanction innocent athletes;
- or let the athletes compete
and risk to jeopardize the already weak effectiveness of the world anti-doping
system.
In
general, this is the big fork-in-the-road question raised by the Russian
scandal. On the one side, we can double down on anti-doping, beef up
compliance mechanisms, and endure collateral damages: some innocent athletes. Or, on
the other side, we acknowledge the total failure of the world anti-doping
system as it is and de facto (or de jure) condone the use of doping in
international sporting competitions. The CAS and the German courts clearly
decided to follow the regulatory route, but this is only the beginning of a
very long anti-doping journey.