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

New Article Published! The Olympic Charter: A Transnational Constitution Without a State?

My latest article has just been published online by the Journal of Law and Society. It is available open access here.

The article stems from a conference organised by Jiri Priban from Cardiff University on Gunther Teubner's idea of societal constitutionalism applied to transnational regimes. My role was to test whether his descriptive and normative framework was readily applicable to the lex sportiva, and in particular its overarching "constitutional" text: the Olympic Charter.

As you will see my conclusion is mixed. I find that the Olympic Charter (OC) displays many constitutional features and is even able to regularly defend successfully its autonomy vis-à-vis national states and their laws. However, while I document some inception of limitative constitutional rules, such as the ban on discrimination or the principle of fair play, I also conclude that those have limited impact in practice. While constitutional changes to the OC can be triggered by scandal, resistance and contestation, as illustrated by the emergence of environmental concerns after the Albertville Games and the governance reshuffle of the IOC after the Salt Lake City scandal, I am also sceptical that these were sufficient to tackle the underlying problems, as became obvious with the unmatched environmental damage caused by the Sotchi Games in 2014.

In conclusion, more than sporadic public outrage, I believe that the intervention of national law and, even more, European Union law will be capable and needed to rein the Olympic regime and impose external constitutional constraints on its (at least sometimes) destructive operations.

Here is the abstract of the article: This article examines various aspects of Teubner's theory of societal constitutionalism using the lex sportiva as an empirical terrain. The case study focuses on the operation of the Olympic Charter as a transnational constitution of the Olympic movement. It shows that recourse to a constitutional vocabulary is not out of place in qualifying the function and authority of the Charter inside and outside the Olympic movement. Yet, the findings of the case study also nuance some of Teubner's descriptive claims and question his normative strategy.

Good read! (And do not hesitate to share your feedback)


New Position - Internship in International Sports Law - Deadline 15 August


The T.M.C. Asser Instituut offers post-graduate students the opportunity to gain practical experience in the field of international and European sports law.  The T.M.C. Asser Instituut, located in The Hague, is an inter-university research institute specialized in international and European law. Since 2002, it is the home of the ASSER International Sports Law Centre, a pioneer in the field of European and international sports law. More...


Human Rights Protection and the FIFA World Cup: A Never-Ending Match? - By Daniela Heerdt

Editor’s note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She recently published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.


The 21st FIFA World Cup is currently underway. Billions of people around the world follow the matches with much enthusiasm and support. For the time being, it almost seems forgotten that in the final weeks leading up to the events, critical reports on human rights issues related to the event piled up. This blog explains why addressing these issues has to start well in advance of the first ball being kicked and cannot end when the final match has been played. More...



Call for papers: Annual International Sports Law Conference of the International Sports Law Journal - 25 & 26 October - Asser Institute, The Hague

 Call for papers: Annual International Sports Law Conference of the International Sports Law Journal

Asser Institute, The Hague

25 and 26 October 2018

The editorial board of the International Sports Law Journal (ISLJ) is inviting you to submit abstracts for its second ISLJ Annual Conference on International Sports Law, which will take place on 25 and 26 October at the Asser Institute in The Hague. The ISLJ published by Springer in collaboration with Asser Press is the leading academic publication in the field of international sports law. Its readership includes academics and many practitioners active in the field. This call is open to researchers as well as practitioners. 

We are also delighted to announce that Prof. Franck Latty (Université Paris Nanterre), Prof. Margareta Baddeley (Université de Genève), and Silvia Schenk (member of FIFA’s Human Rights Advisory Board) have confirmed their participation as keynote speakers.

Abstracts could, for example, tackle questions linked to the following international sports law subjects:

  • The interaction between EU law and sport
  • Antitrust and sports regulation
  • International sports arbitration (CAS, BAT, etc.)
  • The functioning of the world anti-doping system (WADA, WADC, etc.)
  • The global governance of sports
  • The regulation of mega sporting events (Olympics, FIFA World Cup, etc.)
  • The transnational regulation of football (e.g. the operation of the FIFA Regulations on the Status and Transfer of Players or the UEFA Financial Fair Play Regulations)
  • The global fight against corruption in sport  
  • Comparative sports law
  • Human rights in sport 

Please send your abstract (no more than 300 words) and CV no later than 30 April 2018 to a.duval@asser.nl. Selected speakers will be informed by 15 May.

The selected participants will be expected to submit a draft paper by 1 September 2018. All papers presented at the conference are eligible for publication in a special edition of the ISLJ.  To be considered for inclusion in the conference edition of the journal, the final draft must be submitted for review by 15 December 2018.  Submissions after this date will be considered for publication in later editions of the Journal.

The Asser Institute will cover one night accommodation for the speakers and will provide a limited amount of travel grants (max. 300€). If you wish to be considered for a grant please justify your request in your submission. 

Stepping Outside the New York Convention - Practical Lessons on the Indirect Enforcement of CAS-Awards in Football Matters - By Etienne Gard

Editor’s Note: Etienne Gard graduated from the University of Zurich and from King's College London. He currently manages a project in the field of digitalization with Bratschi Ltd., a major Swiss law firm where he did his traineeship with a focus in international commercial arbitration.

1. Prelude

On the 10th of June, 1958, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, widely known as the “New York Convention”, was signed in New York by 10 countries.[1] This rather shy figure progressively grew over the decades to now reach 157 signatory countries, turning the New York Convention into the global recognition and enforcement instrument it is today. As V.V. Veeder’s puts it, “One English law lord is said to have said, extra judicially, that the New York Convention is both the Best Thing since sliced bread and also whatever was the Best Thing before sliced bread replaced it as the Best Thing.”[2]

However, among the overall appraisal regarding the New York Convention, some criticisms have been expressed. For instance, some states use their public policy rather as a pretext not to enforce an award than an actual ground for refusal.[3]  A further issue is the recurring bias in favor of local companies.[4] Additionally, recognition and enforcement procedures in application of the New York Convention take place in front of State authorities, for the most part in front of courts of law, according to national proceeding rules. This usually leads to the retaining of a local law firm, the translation of several documents, written submissions and one, if not several hearings. Hence, the efficiency of the New York Convention as a recognition and enforcement mechanism comes to the expense of both money and time of both parties of the arbitral procedure.

In contrast with the field of commercial arbitration, where the New York Convention is often considered the only viable option in order to enforce an award, international football organizations, together with the Court of Arbitration for Sport (“CAS”), offer an effective enforcement alternative. This article aims at outlining the main features of the indirect enforcement of CAS awards in football matters in light of a recent case. More...



The International Partnership against Corruption in Sport (IPACS) and the quest for good governance: Of brave men and rotting fish - By Thomas Kruessmann

Editor's note: Prof. Thomas Kruessmann is key expert in the EU Technical Assistant Project "Strengthening Teaching and Research Capacity at ADA University" in Baku (Azerbaijan). At the same time, he is co-ordinator of the Jean-Monnet Network "Developing European Studies in the Caucasus" with Skytte Institute of Political Studies at the University of Tartu (Estonia).


The notion that “fish rots from the head down” is known to many cultures and serves as a practical reminder on what is at stake in the current wave of anti-corruption / integrity and good governance initiatives. The purpose of this blog post is to provide a short update on the recent founding of the International Partnership against Corruption in Sport (IPACS), intermittently known as the International Sports Integrity Partnership (IPAS), and to propose some critical perspectives from a legal scholar’s point of view.

During the past couple of years, the sports world has seen a never-ending wave of corruption allegations, often followed by revelations, incriminations and new allegation. There are ongoing investigations, most notably in the United States where the U.S. Department of Justice has just recently intensified its probe into corruption at the major sports governing bodies (SGBs). By all accounts, we are witnessing only the tip of the iceberg. And after ten years of debate and half-hearted reforms, there is the widespread notion, as expressed by the Council of Europe’s (CoE’s) Parliamentary Assembly (PACE) Resolution 2199/2018 that “the sports movement cannot be left to resolve its failures alone”. More...



International and European Sports Law – Monthly Report – January 2018 - By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked. 


The Headlines 

Anti-doping whereabouts requirements declared compatible with the athletes' right to privacy and family life

On 18 January 2018, the European Court of Human Rights rendered a judgment with important consequences for the world of sport in general and the anti-doping regime in particular. The Strasbourg-based court was called upon to decide whether the anti-doping whereabouts system – which requires that a limited number of top elite athletes provide their National Anti-Doping Organisation or International Federation with regular information about their location, including identifying for each day one specific 60-minute time slot where the athlete will be available for testing at a pre-determined location – is compatible with the athletes' right to private and family life under Article 8 of the European Convention on Human Rights and their freedom of movement pursuant to Article 2 Protocol No. 4 of the Convention. The case was brought by the French cyclist Jeannie Longo and five French athlete unions that had filed their application on behalf of 99 professional handball, football, rugby, and basketball players.

While acknowledging that the whereabouts requirements clash with the athletes' right to private and family life, the judges took the view that such a restriction is necessary in order to protect the health of athletes and ensure a level playing field in sports competitions. They held that ''the reduction or removal of the relevant obligations would lead to an increase in the dangers of doping for the health of sports professionals and of all those who practise sports, and would be at odds with the European and international consensus on the need for unannounced testing as part of doping control''. Accordingly, the judges found no violation of Article 8 of the Convention and, in a similar vein, ruled that Article 2 Protocol No. 4 of the Convention was not applicable to the case.

 

Football stakeholders preparing to crack down on agents' excessive fees

It has been a record-breaking January transfer window with Premier League clubs having spent an eye-watering £430 million on signing new acquisitions. These spiralling transfer fees enable football agents, nowadays also called intermediaries, to charge impressive sums for their services. However, this might soon no longer be the case as the main stakeholders in European football are preparing to take action. UEFA, FIFPro, the European Club Association and the European Professional Football Leagues acknowledge in their joint resolution that the 2015 FIFA Regulations on Working with Intermediaries failed to address serious concerns in relation to the activities of intermediaries/agents. They recognise in broad terms that a more effective regulatory framework is needed and call among other things for a reasonable and proportionate cap on fees for intermediaries/agents, enhanced transparency and accountability, or stronger provisions to protect minors.

 

The CAS award in Joseph Odartei Lamptey v. FIFA 

On 15 January 2018, FIFA published on its website an arbitral award delivered on 4 August 2017 by the Court of Arbitration for Sport (CAS) in the dispute between the Ghanian football referee Joseph Odartei Lamptey and FIFA. The CAS sided with FIFA and dismissed the appeal filed by Mr Lamptey against an earlier decision of the FIFA Appeal Committee which (i) found him to have violated Article 69(1) of the FIFA Disciplinary Code as he unlawfully influenced the 2018 World Cup qualifying match between South Africa and Senegal that took place on 12 November 2016; (ii) as a consequence, banned him for life from taking part in any football-related activity; and (iii) ordered the match in question to be replayed. In reaching its conclusion, the CAS relied heavily on multiple reports of irregular betting activities that significantly deviated from usual market developments.  More...


Towards a Suitable Policy Framework for Cricket Betting in India - By Deeksha Malik

Editor's note: Deeksha Malik is a final-year student at National Law Institute University, India. Her main interest areas are corporate law, arbitration, and sports law. She can be reached at dkshmalik726@gmail.com.


In 2015, while interrogating cricketer Sreesanth and others accused in the IPL match-fixing case, Justice Neena Bansal, sitting as Additional Sessions Judge, made the following observations as regards betting on cricket matches.

“Cricket as a game of skill requires hand-eye-coordination for throwing, catching and hitting. It requires microscopic levels of precision and mental alertness for batsmen to find gaps or for bowlers to produce variety of styles of deliveries’ (medium pace, fast, inswing, outswing, offspin, legspin, googly). The sport requires strategic masterminds that can select the most efficient fielding positions for piling pressure on the batsmen. Based on above description, cricket cannot be described anything, but as a game of skill.”

The debate on the issue of betting in sports has since resurfaced and gained the attention of sportspersons, media, sports bodies, policymakers, and the general public. In April 2017, the Supreme Court bench comprising of Justices Dipak Misra and AM Khanwilkar agreed to hear a public interest litigation (PIL) seeking an order directing the government to come up with an appropriate framework for regulating betting in sports. The arguments put forth in the PIL present various dimensions. One of these pertains to economic considerations, a submission that regulated betting would be able to generate annual revenue of Rs. 12,000 crores by bringing the earnings therefrom within the tax net. As for policy considerations, it was submitted that a proper regulation in this area would enable the government to distinguish harmless betting from activities that impair the integrity of the game such as match-fixing. Further, betting on cricket matches largely depends on the skill of the concerned players, thereby distinguishing it from pure chance-based activities.

The issue of sports betting witnesses a divided opinion till this day. This is understandable, for both sides to the issue have equally pressing arguments. Aside from its regulation being a daunting task for authorities, sports betting is susceptible to corruption and other unscrupulous activities. At the same time, it is argued that it would be better for both the game and the economy if the same is legalised. More...


International and European Sports Law – Monthly Report – December 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines 

The International Skating Union's eligibility rules declared incompatible with EU competition law

On 8 December 2017, the European Commission announced that it had rendered a decision in the case against the International Skating Union (ISU). The Commission upheld the complaint lodged in October 2015 by two Dutch professional speed skaters Mark Tuitert and Niels Kerstholt, represented in this case by Ben Van Rompuy and Antoine Duval (you can read their joint statement here), and ruled that the ISU's eligibility rules preventing athletes from participating in speed skating competitions not approved by the ISU under the threat of severe penalties are in violation of EU competition law. In particular, the Commission held that these rules restrict the commercial freedom of (i) athletes who may be deprived of additional source of income as they are not allowed to participate in speed skating competitions other than those authorised by the ISU; and (ii) independent organisers who are unable to attract top athletes. And while the Commission recognised that sporting rules with restrictive effects might be compatible with EU law if they pursue a legitimate objective such as the protection of athletes' health and safety or the protection of the integrity and proper conduct of sport, it found that the ISU's eligibility rules pursue only its own commercial interests to the detriment of athletes and independent organisers of speed skating competitions. The ISU eventually escaped financial sanctions, but it must modify or abolish its eligibility rules within 90 days; otherwise it would be liable for non-compliance payments of up to 5% of its average daily turnover. For more information on this topic, we invite you to read our recent blog written by Professor Stefano Bastianon.

 

The International Olympic Committee bans Russia from the upcoming Winter Olympic Games

The world has been waiting impatiently for the International Olympic Committee's (IOC) decision on the participation of Russian athletes in the upcoming 2018 Winter Olympic Games in Pyeongchang. This was finally communicated on 5 December 2017. Having deliberated on the findings of the Schmid Commission, the IOC Executive Board decided to suspend the Russian Olympic Committee with immediate effect, meaning that only those Russian athletes who demonstrate that they had not benefited from the state-sponsored doping programme will be able to participate in the Games. Such clean athletes will be allowed to compete under the Olympic Flag, bearing the name 'Olympic Athlete from Russia (OAR)' on their uniforms. Further to this, the IOC Executive Board sanctioned several officials implicated in the manipulation of the anti-doping system in Russia, including Mr Vitaly Mutko, currently the Deputy Prime Minister of Russia and formerly the Minister of Sport. Mounting public pressure subsequently forced Mr Mutko to step down as head of the Local Organising Committee for the 2018 FIFA World Cup.

Meanwhile, 21 individual Russian athletes were sanctioned (see here, here, here, and here) in December (in addition to 22 athletes in November) by the IOC Oswald Commission that is tasked with investigating the alleged doping violations by Russian athletes at the 2014 Winter Olympic Games in Sochi. The Oswald Commission also published two full decisions in the cases against Evgeny Belov and Aleksandr Tretiakov who were both banned from all future editions of the Games. It is now clear that the Court of Arbitration for Sport will have quite some work in the coming weeks as the banned athletes are turning to this Swiss-based arbitral tribunal to have their sanctions reviewed (see here and here).

 

Universal Declaration of Player Rights

14 December 2017 was a great day for athletes all over the globe. On this day, representatives of the world's leading player associations met in Washington D.C. to unveil the Universal Declaration of Player Rights, a landmark document developed under the aegis of the World Players Association that strives to protect athletes from ongoing and systemic human rights violations in global sport. The World Players Association's Executive Director Brendan Schwab emphasised that the current system of sports governance ''lacks legitimacy and fails to protect the very people who sit at the heart of sport'' and stated that ''athlete rights can no longer be ignored''. Among other rights, the Declaration recognises the right of athletes to equality of opportunity, fair and just working conditions, privacy and the protection of personal data, due process, or effective remedy.

 

Chris Froome failed a doping test during the last year's Vuelta a España

The world of cycling suffered yet another blow when it transpired that one of its superstars Chris Froome had failed a doping test during the last year's Vuelta a España, a race he had eventually emerged victorious from for the first time in his career. His urine sample collected on 7 September 2017 contained twice the amount of salbutamol, a medication used to treat asthma, than permissible under the World Anti-Doping Agency's 2017 Prohibited List. Kenyan-born Froome has now hired a team of medical and legal experts to put forward a convincing explanation for the abnormal levels of salbutamol in his urine and thus to avoid sanctions being imposed on him. More...

The ISU Commission's Decision and the Slippery Side of Eligibility Rules - By Stefano Bastianon (University of Bergamo)

Editor’s note: Stefano Bastianon is Associate Professor in European Law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IVth Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

1. From the very beginning, the outcome of the ISU case was highly predictable, at least for those who are familiar with the basics of antitrust law. Nevertheless, more than twenty years after the Bosman judgment, the sports sector has shown the same shortsightedness and inability to see the forest for the trees. Even this attitude was highly predictable, at least for those who know the basics of sports governance. The final result is a clear-cut decision capable of influencing the entire sports movement. More...



Asser International Sports Law Blog | With or without them? Russia’s state doping system and the Olympic fate of Russian athletes. By Antoine Duval, Kester Mekenkamp and Oskar van Maren

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

With or without them? Russia’s state doping system and the Olympic fate of Russian athletes. By Antoine Duval, Kester Mekenkamp and Oskar van Maren

On Monday 18 July 2016, Canadian lawyer Richard McLaren presented the Independent Person Report to the World Anti-Doping Agency (WADA), regarding the alleged Russian doping program surrounding the 2014 Sochi Winter Olympics. The report was expected to seriously threaten the participation of Russian Athletes to the rapidly approaching Rio Games, starting on 5 August. In the weekend prior to the report’s publishing, Reuters obtained a leaked letter drafted by the CEO’s of the US and Canadian anti-doping agencies, which according to the New York Times was backed by “antidoping officials from at least 10 nations— including those in the United States, Germany, Spain, Japan, Switzerland and Canada — and 20 athlete groups”, urging the International Olympic Committee (IOC) to ban all Russian athletes from the upcoming Olympics.

Source: http://ww4.hdnux.com/photos/50/23/01/10563667/3/920x920.jpg

During the press conference, McLaren listed his main findings, which are shocking, interesting and peculiar at same time. First, “the Moscow Laboratory operated, for the protection of doped Russian athletes, within a State-dictated failsafe system”. Second, “the Sochi Laboratory operated a unique sample swapping methodology to enable doped Russian athletes to compete at the Games”. Third, “the Ministry of Sport directed, controlled and oversaw the manipulation of athlete’s analytical results or sample swapping, with the active participation and assistance of the FSB (Russian federal security service), CSP (Centre of Sports Preparation in Russia), and both Moscow and Sochi Laboratories”.

Though the recent findings of the Independent Person Report should not be underestimated, yet it is only one piece of a complex jigsaw puzzle constituted by many reports and disciplinary decisions involving systemic doping in Russia over the last few years. One could compare it to a snowball rolling down the mountain continuously gaining speed and mass. The ball started rolling in December 2014 with an ARD broadcasted documentary titled Geheimsache Doping: Wie Russland seine Sieger macht (“Top Secret Doping: How Russia makes its Winners”). Less than two years later, Russian athletes might be excluded from participating at the Rio Olympic Games all together. The information now available on Russia’s systematic doping program would make an excellent movie script (one that has probably already been set in motion at a Hollywood studio). This blog, however, will more modestly provide a recap of the events leading up to the Independent Person Report, and assess its potential (short term) legal consequences. 


Episode 1: German investigative journalism and WADA’s response

As stated above, the unravelling of this doping story began in December 2014, with an ARD documentary, Geheimsache Doping: Wie Russland seine Sieger macht (“Top Secret Doping: How Russia makes its Winners”). Filmmaker Hajo Seppelt investigated rumors on widespread doping use by Russian athletes in preparation of and during the Winter Olympics held in Sochi. The film showed athletes, coaches and civil servants testifying, secret camera footage, audio recordings, and official documents, all pointing towards: systemic doping use within the All-Russia Athletics Federation (ARAF), corrupt practices regarding results management and the collection of samples. Implicated parties included athletes, coaches, trainers, doctors, the Russian State, the IAAF, the Moscow accredited laboratory and the Russian Anti-Doping Agency (RUSADA).

In response to the international stir, WADA, in December 2014, launched an Independent Commission to investigate the allegations made. The Commission consisted of former WADA chairman Richard Pound, Richard McLaren and WADA’s Chief Investigations Officer Jack Robertson. The first part of this commission’s findings was published on 9 November 2015.[1] In August 2015 the commission’s mandate was extended following the release of another Seppelt documentary “Doping – Top Secret: The Shadowy World of Athletics”. This resulted in a second report which was published on 14 January 2016.[2] Especially the former of the two “Pound Reports” is of particular interest.

First and foremost, it addresses the existence of “a deeply rooted culture of cheating”. The report insinuates that this culture of cheating existed since well before the Sochi Games. The coaches active in 2014 appear to be the crucial transferors of the knowledge they acquired at the time they were athletes themselves. Medical connections cultivated during their professional careers were passed on to the current generation of athletes. Athletes not wishing to be part of this system were likely to be “excommunicated” from top-level coaches and support.[3]

The second issue addressed is the exploitation of athletes. “Unethical behaviours and practices” by the people involved have become the norm. Coercion has been employed on athletes to make them participate in the doping program, for instance by informing them that “they would not be considered as part of the federation’s national team for competition”.[4]

The report’s third finding is a blatant unwillingness of Russian athletes to cooperate in the investigation. Nonetheless, the Pound Commission confirms a “consistent and systematic use of performance enhancing drugs by many Russian athletes”.[5]

Fourthly, it confirmed that, next to coaches, some Russian doctors and laboratory personnel equally acted as “enablers for systematic cheating”. It also pointed out “inadequate testing and poor compliance around testing standards”, as well as the malicious destruction of over 1400 samples, which were explicitly requested by WADA to be preserved.[6]

A fifth major discovery was the identification of corruption and bribery within the IAAF. The severity of the corruption allegations involving several highly placed members and officials of IAAF and the ARAF was such that this part of the investigation had to be transferred to the competent authorities for “potential criminal prosecutions”, i.e. Interpol (see the second Pound Report).[7]

The first Pound Report recommended provisional suspensions in respect of five athletes, four coaches and one medical doctor and identified some additional suspicious cases. It further asked WADA to declare both ARAF and RUSADA to be “code noncompliant” and to withdraw WADA’s accreditation of the Moscow laboratory, as well as to permanently remove the lab’s director from his position. The Report also recommended that the IAAF should suspend ARAF.[8]

A mere four days after the publication of the first Pound Report (13 November 2015) the IAAF provisionally suspended the Russian ARAF as an IAAF Member. As a result of this decision, athletes, and athlete support personnel from Russia could not compete in International Competitions expected, the Russian Olympic Committee (ROC) as well as its athletes did not take the decision lightly. In a request for arbitration filed at the Court of Arbitration for Sport (CAS) on 3 July 2016, the ROC and the 68 Russian Athletes asked the CAS 1) to review specific legal issues surrounding IAAF’s decision to suspend ARAF, and 2) to order that any Russian athlete who was not currently the subject of any period of ineligibility for the commission of an anti-doping rule violation be declared eligible to participate at the 2016 Olympic Games in Rio.[9] The outcome of the appeal will be discussed further below. 


Episode 2: The Independent Person Report

Meanwhile, on 8 May 2016, new far-reaching allegations concerning Russia’s doping program were made by newsmagazine 60 Minutes, and subsequently on 12 May, by the New York Times.[10] The primary source behind these articles was whistle-blower Grigory Rodchenkov, the former director of the Moscow and Sochi doping control laboratories who found refuge in an undisclosed location in the USA. This time around, the allegations were not limited to athletics, but involved all Russian athletes that competed at the Sochi Olympics.[11] In response to these claims, WADA announced that it would immediately probe the new Russian doping allegations brought forward, once again, by the press, and appointed an Independent Person (i.e. Richard McLaren) supported by a multidisciplinary team to conduct an investigation of the allegations made by Dr. Rodchenkov.[12]

McLaren was presented with a five-point investigation mandate:

“1. Establish whether there has been manipulation of the doping control process during the Sochi Games, including but not limited to, acts of tampering with the samples within the Sochi Laboratory.

2. Identify the modus operandi and those involved in such manipulation.

3. Identify any athlete that might have benefited from those alleged manipulations to conceal positive doping tests.

4. Identify if this Modus Operandi was also happening within Moscow Laboratory outside the period of the Sochi Games.

5. Determine other evidence or information held by Grigory Rodchenkov.”[13]

The Report first mentions the time constraints faced in drafting it. It explains, in relation to the third paragraph of the mandate, that the “compressed timeline” of the investigation (57 days) “did not permit compilation of data to establish an antidoping rule violation”, consequently that third paragraph should be deemed of lesser importance. This shortage of time also resulted in the fact that McLaren had to be selective in examining the large amount of data and information available to it. In other words, it could “only skimmed the surface of the extensive data available”.[14] Be that as it may, McLaren considered the found evidence to be established “beyond a reasonable doubt”.[15]

With due respect to both its mandate and its investigative limitations, McLaren made three key findings[16]:

A) The Moscow Laboratory operated, for the protection of doped Russian athletes, within a State-dictated failsafe system, described in the report as the Disappearing Positive Methodology;

B) The Sochi Laboratory operated a unique sample swapping methodology to enable doped Russian athletes to compete at the Games;

C) The Ministry of Sport directed, controlled and oversaw the manipulation of athlete’s analytical results or sample swapping, with the active participation and assistance of the FSB, CSP, and both Moscow and Sochi Laboratories.

The Independent Person Report makes account of a systemic state directed doping program, incentivized by the “very abysmal” medal count of the Russian Olympic athletes participating in the 2010 Vancouver Olympic Winter Games. A system where, under direction and control of Yuri Nagornykh, Russia’s deputy minister of sport, the laboratory was forced to change any positive result into a negative analytical finding, a method named by the McLaren team the “disappearing positive”.[17]

Nagornykh was informed of every positive analytical finding arising in the Moscow laboratory from 2011 onwards, which in itself is a violation of the WADA International Standard for Laboratories. The deputy minister was the linchpin that decided which athlete would benefit from a cover up and thus be protected and which athlete would not. If ordered to do so, laboratory personnel were required to report the sample as being negative in WADA’s anti-doping management system. Next, the laboratory personnel had to falsify the screen result in the laboratory information management system to show a negative laboratory result.[18] Conclusion, the shielded athlete could continue to compete.

However, at international events independent observers would prevent Russian athletes from slipping through the net. That is why the FSB developed a method for covertly removing the caps of tamper evident sample bottles containing the urine (“without any evidence visible to the untrained eye”). This technique was used to replace positive dirty samples during the Sochi Olympic Games and in December 2014 to cover up some dirty samples out of the Moscow Laboratory, which WADA had aimed to confiscate.[19] The McLaren team subsequently found evidence that this sample swapping also occurred after the 2013 IAAF World Championships in respect of positive samples.

The coordinating role of Irina Rodionova in this sample swapping method is remarkable. She was a staff member of the Russian Olympic Committee during the Sochi Games. During the Games, she served as the head of the Monitoring and Management of Medical Anti-doping Programs Department and is currently deputy director of the “Center of Sports Preparation of National Teams of Russia, a subordinate organisation of the Russian Ministry of Sport”.[20] As the report shows, Rodionova would receive and freeze storage samples, which the athletes thought were “clean urine samples outside of the wash out periods for any PEDs they were using”. The investigation’s main informant, Grigory Rodchenkov would test the samples to make sure they were negative. These samples were then secretly transported to the FSB storage freezer, which coincidentally happened to be in the building located next to the Sochi Laboratory.[21]

The actual swapping occurred by passing the A and B bottles through the “mouse hole” located between the “aliquoting room” inside the Sochi Laboratory secure perimeter into an adjacent operations room, outside that secure perimeter. While an FSB officer would take the B bottles somewhere else, the athlete’s stored clean urine would be taken out of the FSB freezer and brought over to the operations room. The FSB officer would return with B sample bottle to the operations room. The B sample bottle’s cap would be removed. The dirty urine would be replaced by clean urine and put in the A and B bottles. Then, the stopper in the A bottle would be replaced and the B bottle cap screwed back on. Ultimately, the bottles would be brought back to the “aliquoting room” via the mouse hole.[22] Subsequently, Rodchenkov had to manipulate the substituted sample to as closely as possible match the “specific gravity” indicated on the original doping control form. He did this by “adding table salt to raise the clean urine SG or distilled water to dilute the clean urine sample so as to closely match the SG number on the DCF”. A laboratory analysis of the salt content of selected samples revealed that six had “salt contents higher than what should be found in urine of a healthy human”.[23] As the Independent Person Report elucidates: “The Sochi sample swapping methodology was a unique situation, required because of the presence of the international community in the Laboratory. It enabled Russian athletes to compete dirty while enjoying certainty that their antidoping samples would be reported clean”.[24]

The Report notes another incident following a WADA request giving notice to the Moscow laboratory of a forthcoming collection of samples stored in the laboratory for further analysis. This resulted in the laboratory quickly destroying thousands of dirty samples that had been collected and reported negative (use of the Disappearing Positive Methodology). Deputy minister Nagornykh then arranged the FSB to fix the problem of the samples collected between 10 September 2014 and 10 December 2014, which could not be destroyed (as a result of the minimal 90-day period of storage following the ISL). When the WADA investigators came to the laboratory, they found sample bottles without their caps and, moreover, that these samples all had negative findings recorded on WADA’s Anti-Doping Management System. Furthermore, forensic examination confirmed tampering and “a urine examination of 3 of the samples showed that the DNA was not that of the athlete involved”.[25] 


Episode 3: The ball is in the IOC’s corner…

In a statement released shortly after Richard McLaren’s press conference, WADA president Craig Reedie conveyed WADA executive committee’s vision on the Independent Person Report. First it condemned the “public speculation made by certain national anti-doping organizations as to the investigation’s outcome in the days leading up to the report’s publication”. More importantly however, it recommended the IOC (and the International Paralympic Committee, IPC) to decline entry for the 2016 Rio Olympic Games to all athletes wishing to compete under the Russian Olympic Committee banner. Moreover, he added that “any exceptional entry of a Russian athlete should be considered by the IOC and IPC for participation under a neutral flag and in accordance with very strict criteria”.

The IOC responded on 19 July by implementing some provisional measures. It decided amongst others: not to organise or give patronage to any sports event or meeting in Russia, not grant any accreditation to any official of the Russian Ministry of Sport or any person implicated in the Independent Person Report for the Rio Games, and “initiate a full inquiry into all Russian athletes who participated in the Olympic Winter Games Sochi 2014 and their coaches, officials and support staff”.

The key question, however, was whether the IOC would follow WADA’s recommendation and decline entries to all athletes under the Russian Olympic Committee banner to the Rio Games. Even though its president Thomas Bach stated that “the findings of the report show a shocking and unprecedented attack on the integrity of sport and on the Olympic Game” and that “the IOC will not hesitate to take the toughest sanctions available against any individual or organisation implicated”[26], it did not actually do so (yet). Instead, it announced that it would carefully evaluate the Independent Person Report and “explore the legal options” weighing a collective ban against the right to compete of individual athletes. Moreover, the IOC was adamant that it would “take the CAS decision of 21 July 2016 concerning the IAAF rules into consideration”.


Episode 4: Now the CAS has ball possession…

Hence, the IOC’s final decision regarding Russia’s participation at this summer’s Olympic Games depended on a large extent on the CAS decision regarding the ROC and 68 Russian athletes’ appeal against the IAAF ban. On 21 July, the CAS Panel confirmed the validity of the IAAF’s decision to suspend the ARAF from participating at the Games as well as the Russian athletes who do not satisfy the conditions set by IAAF Competition Rule 22.1(A).[27] Nonetheless, the CAS expressed its concern about “about the immediate application with retroactive effect of such Rule [IAAF Rule 22.1(A)], implemented by the IAAF on 17 June 2016, providing for exceptional criteria to grant eligibility to athletes whose national federation is suspended. Since such Rule involves criteria based on long-term prior activity, it left no possibility in practice, and as applied, for the Claimant Athletes to be able to try to comply with them.”

Yet, it clearly refused to weigh in directly on the IOC’s pending decision regarding all Russian athletes. Indeed, “since the IOC was not a party in the arbitrations, the CAS found that it had no jurisdiction to determine whether the IOC is entitled generally to accept or refuse the nomination by ROC of Russian track and field athletes to compete at the Rio 2016 Olympic Games”. In other words, the ball is neatly passed back to the IOC, who will now need to make a definite decision on whether Russian athletes, both for athletics and all the other sports, can compete at the upcoming Games or not. As the public pressure is mounting on the IOC, it is now doomed to decide whether to block the entry of all Russian athletes or to leave this decision to the International Federations on a case-by-case basis, like the IAAF has done in the case of athletics. A story to be continued…


Conclusion: Who is to blame for the systemic failures of the World Anti-Doping System?

Russian athletes are currently bearing the brunt of the blame for the State-sponsored doping system in place in Russia, they are being placated in the media and by the World Anti-Doping Agency as cheats, they are being excluded from the Rio Olympics (and potentially many more international competitions), and they are the ones suffering dire economic losses. Yet, are they truly the main responsible for their unenviable fate?

The first key culprit that comes to mind is obviously the Russian State and its political leaders, who have constructed a demonic system imposed on athletes in their young age to ensure that Russia shines on the global sporting scene. They have done so with the implicit (and in the case of the IAAF explicit) support of the international sports governing bodies, which preferred to look away rather than challenge the Russian political clout inside their executive bodies. One has to remember, for example, that Russia’s sports minister Vitaly Mutko, currently decrying the politicization of sport, is a member of FIFA Council (formerly the FIFA Executive Committee).

Furthermore, this is also the failure of WADA. It was supposed to be the independent global gendarme of the world anti-doping fight. Yet, it comes out of these episodes at best as a toothless paper tiger, at worse as a complacent window dresser. A recent piece in the New York Times highlights very well its passive complicity in maintaining the invisibility of the Russian state doping system. WADA is now front and centre in calling for the harshest sanctions on athletes, but for years it has been ignoring the warning signs and refusing to do its homework as far as the implementation of the WADA Code is concerned. It is only because of the public outrage over Hajo Seppelt’s documentary that WADA finally decided to act. What is the Code worth if its implementation at the local level, where it is supposed to apply on a day-to-day basis, is not closely monitored? Only the paper (or the computer code) on which it is written. The general hypocrisy of having a global set of rules, but very little biting enforcement mechanisms underlies the failure of the current world anti-doping system.  



[1] The Independent Commission Report #1, Final Report, 9 November 2015 (Pound report #1).

[2] The Independent Commission Report #2, 14 January, Amended 27 January 2016 .

[3] Pound report #1, p. 10.

[4] Ibid, p. 11.

[5] Ibid.

[6] Ibid.

[7] Pound report #1, p. 12 and 124.

[8] Ibid, p. 9.

[9] Media Release of the CAS of 21 July 2016, Athletics – Olympic Games Rio 2016 - The Court of Arbitration for Sport (CAS) rejects the claims/appeal of the Russian Olympic Committee (ROC)

and of 68 Russian athletes.

[10] Rebecca R. Ruiz and Michael Schwirtz, “Russian Insider Says State-Run Doping Fueled Olympic Gold”, New York Times, 12 May 2016 < http://www.nytimes.com/2016/05/13/sports/russia-doping-sochi-olympics-2014.html > accessed 21 July 2016.

[11] In this regard, it is also worth mentioning that Russia ended first in the medal table with 33 medals, including 13 gold medals.

[12] The Independent Person Report, p. 2.

[13] Ibid, p. 3.

[14] Ibid, p. 4.

[15] Ibid, p. 6.

[16] Ibid, p. 1.

[17] Ibid, p. 10.

[18] Ibid, p. 11.

[19] Ibid, p. 12.

[20] Ibid, p. 13.

[21] Ibid.

[22] Ibid, p. 14.

[23] Ibid, p. 15.

[24] Ibid.

[25] Ibid, p. 17.

[26] Statement of the executive board of the International Olympic Committee of 19 July 2016 on the WADA Independent Person Report.

[27] IAAF Competition Rule reads as follows: “Any athlete, athlete support personnel or other person shall be ineligible for competitions, whether held under these Rules or the rules of an Area or a Member, whose National Federation is currently suspended by the IAAF”.

 

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