Russia's Legal Options Following the IOC's Olympic Ban Over Alleged Doping
The International Olympic Committee’s decision on Tuesday to ban Russia’s Olympic team from the 2018 Winter Games in Pyeongchang, South Korea has sent shockwaves across the global sports community. The IOC charges that Russia engaged in a “systematic manipulation of the anti-doping system” and deployed an “anti-doping laboratory” at the 2014 Winter Games in Sochi, Russia. These measures, the IOC contends, allowed Russian athletes to cheat and win the medal count.
While the IOC’s punishment is not unprecedented—in recent decades the IOC banned South Africa and Afghanistan from the Olympics due to those country’s discriminatory policies—this marks the first time that the IOC has banned a country for alleged cheating.
How Russian athletes and the Russian government can respond
Russian athletes are not necessarily denied a chance to participate in the 2018 Olympics. They they can petition the IOC to compete. If such petitions succeed, the athletes would need to wear neutral Olympic uniforms. No medals earned would be attributed to Russia. Whether any Russian athlete would make such a petition remains unknown. The Russian government could simply boycott the 2018 Olympics and order that none of its athletes appear under any circumstances. Even if Russia does boycott, its government would likely require that any Russian athlete who seeks to compete gain the blessing of the government. Such an athlete might be understandably concerned about how participating in an Olympics where his or her country has been banned would be received back home.
Russia would prefer to simply overcome the ban and participate in the Olympics. Unfortunately for Russia, according to Rule 61 of the Olympic Charter, “the decisions of the IOC are final.”
However, Rule 61 also permits appeals of punishments in connection with the Olympic Games. Such appeals must submitted exclusively to the Court of Arbitration for Sport, which is better known as CAS. Although CAS has “court” in its name, it is not a court. Instead, it is an international arbitration body headquartered in Lausanne, Switzerland. Typically panels of three CAS arbitrators review legal claims.
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Russia intends to appeal the ban to the CAS. Alexander Zhukov, the president of Russia’s Olympic Committee, expressed this sentiment on Tuesday.
The CAS will not have much time to review Russia’s arguments. The first competitive events at the 2018 Olympics will take place on Feb. 8, which is only 65 days away. CAS arbitrations usually take six to 12 months, meaning this one will need to be expedited.
The case against Russia
Russia faces difficult odds in convincing the CAS to reverse the IOC’s decision. The IOC relies on two comprehensive investigations, one of which focused on Russian athletes and the other on Russian athletic officials and government apparatuses. These investigations and their accompanying conclusions are detailed in the IOC Disciplinary Commission’s Report to the IOC Executive Board. Investigators conducted multiple interviews and performed numerous forensic and biological analyses. Investigators also relied heavily on a witness described as a whistle-blower: Dr. Grigory Rodchenkov, who is credited as one of the chief architects of the Russian doping program. He fled to the U.S. two years ago.
Russia is also disadvantaged by the fact that the World Anti-Doping Agency (WADA), an international independent agency that enforces anti-doping rules, concluded that Russia promoted a state-sponsored doping program in preparation of the 2014 Sochi Olympics. According to WADA, the Russian program benefited both Olympic and Paralympic athletes (Russia’s Paralympic athletes have already been banned from the upcoming Winter Paralympics, which will also be held in Pyeongchang).
Many commentators, including SI’s S.L. Price, criticized the IOC for imposing only a mild punishment in response to WADA’s findings. Instead of banning Russia from the 2016 Olympics, the IOC more leniently required that Russian athletes who intended to participate prove to a three-person panel prove that they did not cheat. 70% of Russia’s national team members met this requirement.
Russia’s potential legal arguments
Fast forward to Dec. 5, 2017, and the IOC has taken Russia off the board altogether from the Olympics.
What might Russia argue to CAS? There are at least four strategies:
1) Try to debunk the accusations as untrue
Russia’s primary argument will likely entail depicting accusations of a state-run doping program as either false or grossly exaggerated.
To that end, Russian attorneys will try to identify any parts of the detailed, 30-page IOC report that contain mistakes or possible mistakes. One of the dangers of a comprehensive report is that the possibility of an error tends to increase as more words are written and as more numbers are included. Whether this factor benefits Russia remains to be seen. Russia would portray any mistake as a reason to doubt the entire report.
Along those lines, Russian athletes and government officials have already accused the IOC of “fabricating evidence” in its doping investigation. Expect to hear similar sentiments expressed more vocally in the days and weeks ahead. The more doubt that can be raised about the IOC’s evidence, the greater capacity Russia will have to depict the accusations as untrue.
One relevant—and important—dynamic is that arbitration does not entail as thorough of a review of evidence as typically found in a trial. Further, arbitration is less rigid in terms of procedural rules. These factors suggest that while Russia and the IOC will produce evidence and offer witness testimony, the scope of CAS’ review might not leave every stone unturned. As a result, Russia might not have a complete opportunity to debunk the accusations.
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2) Discredit the IOC’s investigative process
The IOC report acknowledges its investigative reach is greatly limited by the fact that it is a private, non-profit entity. The IOC does not have subpoena power and persons interviewed by IOC investigators are not under oath. As the IOC states plainly, it is “dependent on the information available in the public domain . . . and information shared voluntarily by the persons concerned.”
Watch for Russia to argue that the IOC has surmised very damaging conclusions based on an incomplete and biased record. For instance, expect Russia to raise any and all questions about the credibility of Rodchenkov, the former head of the alleged doping program who fled the country. Russian President Vladimir Putin has described Rodchenkov as “man with a scandalous reputation.” In a hearing before CAS, Russia will likely pronounce Rodchenkov as an exaggerator and someone motivated by a desire to spin tales in order to make himself more valuable to the IOC and perhaps also to the U.S.
3) Portray the IOC’s accusations as political payback for Russia’s political activities
Russia’s involvement in the 2016 U.S. Presidential Election may seem irrelevant to the IOC’s conclusions about an alleged state-run doping scheme, but contextually it is not irrelevant. Russia might question why allegations of a state-doping program led to only a mild penalty in the summer of 2016 but an absolute ban in the winter of 2017. In between those dates, of course, was a U.S. Presidential election that remains a source of division. Such division in part reflects allegations that Russia interfered. Russia might argue that the IOC’s punishment is about politics, not sports.
4) Depict the IOC’s punishment as grossly excessive, misguided and a departure from precedent
As noted above, the IOC has seldom banned a country from participating in the Olympics. During the first part of the 20th century, Germany was banned from several Olympics due to its aggression in World War I and World War II. A more recent example involved South Africa, which was banned from competing in the Olympics from 1964 to 1988. The ban reflected South Africa’s openly racist policy of “apartheid,” a word used to describe a system of laws that segregated—sometimes forcibly and violently—non-white South Africans from white Africans. Another recent example is Afghanistan, which the IOC banned from the 2000 Olympics due to the Taliban’s cruel discrimination of women.
Russia might insist that the IOC’s previous bans were premised on immoral governmental policies that outright discriminated citizens based on their race or gender. Here, the IOC has punished Russia for allegations of a state-run doping program for Olympic athletes—a very different rationale. Further, while Russia might concede that individual Russian athletes cheated and should be punished, Russia (as noted above) will characterize the existence of an elaborate state-run doping campaign as more speculative. Russia will also stress that the real victims of the IOC’s Russian ban are not Putin and other government officials but Russian athletes, whose dreams to represent their country depend on eligibility to do so. From such a lens, Russia would charge, its Olympic program and athletes ought not to receive a punishment that in college sports would be akin to the NCAA’s “death penalty.”
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In response, the IOC would likely contend that the evidence of a Russian doping program is not at all speculative and that many Russian athletes participated in it. Further, the IOC would point out that the bans of South African and Afghanistan were directly connected to the Olympic Charter’s goal, as expressed in Rule 2, of ensuring “the spiriting of fair play prevails and violence is banned.” For instance, the IOC objected to South Africa sending an Olympic team in 1960 that was all white. Likewise, the IOC objected to the Taliban preventing women from playing sports. The IOC could thus better link all of its bans to central missions expressed in the Olympic Charter.
SI.com will keep you updated on developments in the Olympic ban of Russia.
Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA and My Life in Basketball.
