Legal Explanation of Russia's Likely Response to Latest International Sports Ban
Russian athletes walk at the 2018 Olympic Opening Ceremony with the Olympic flag instead their own.
James Lang-USA TODAY Sports
The World Anti-Doping Agency’s decision to ban the Russian flag and national anthem, as well as exclude Russian government officials and representatives, from the 2020 Summer Olympics in Tokyo, the 2022 Winter Olympics in Beijing and other major international tournaments to be held over the next four years, likely won’t be the last word on the controversy. The Russian Anti-Doping Agency has three weeks to file an appeal with the Court of Arbitration for Sport. With the Russian Olympic Committee’s president, Stanislav Pozdnyakov, bluntly dismissing WADA’s ruling as “inadequate, illogical and excessive,” an appeal will likely be filed.
The WADA ban punishes Russia more than Russian athletes
At its core, the “ban” is a national (Russia) and institutional (RUSADA) penalty for an accusation that WADA’s Executive Committee believes is conclusive. The 12-member committee voted unanimously on Monday to declare RUSADA as “non-compliant” with WADA’s code.
The committee, which met in Lausanne, Switzerland, came to this determination after reviewing findings by WADA’s Compliance Review Committee (CRC). The CRC relied on forensic experts from Lausanne University’s Institute of Forensic Science, as well as other investigative methods. The CRC identified troubling “inconsistencies” in data sets obtained from a government-controlled laboratory in Moscow.
More specifically, WADA contends that the Moscow data was “intentionally altered prior to and while it was being forensically copied by WADA in January 2019.” This alleged scheme involved removal of damning information and strategic alterations to other data. Russian authorities are also suspected of attempting to obstruct and deceive WADA investigators through fabricated “system messages.” This alleged scheme further relied on the backdating of newer computer files in order to provide an illusion that nothing nefarious had occurred.
Surprisingly blunt commentary by Yuri Ganus, RUSADA’s chief executive, also shaped WADA’s viewpoint. Ganus has openly criticized Russian officials for alleged tampering with data related to athletes. In a country where criticism of the government can constitute a criminal act, Ganus hasn’t shied away from raising questions about the reliability of his country’s data.
WADA’s basic concern is that corruption of data related to athlete testing undermines the integrity of sports and subverts fair play. Athletes gain an unfair advantage when they use prohibited steroids and other performance-enhancing drugs that testing ought to detect. If Russian athletes are advantaged by breaking rules that athletes from other countries follow, Russian athletes would fraudulently obtain superior odds to earn medals and victories.
WADA’s four-year ban is multi-faceted. It includes the following features:
- Russia’s flag may not be flown, and its anthem may not be aired, at any major international tournaments and related medal ceremonies. Applicable tournaments include, but are not limited to, the Olympic Games, the Paralympic Games, the Youth Olympic Games and the World Cup.
- Russian government officials and their representatives are forbidden from attending major international tournaments. They are also barred from sitting on related boards or committees.
- Russia is ineligible from hosting a major international tournament and can’t bid for the right to host the 2032 Olympic and Paralympic Games (Olympic host cities have been chosen through 2028 and the host of the 2030 Winter Olympics will be announced in 2023).
- Russia must withdraw the right to host any major international tournaments that it has already been awarded for the next four years—unless doing so would be “legally or practically impossible.” The qualifying “legally or practically impossible” language is important. It signals that if businesses have already signed contracts to host tournaments in Russia and if labor has already relied on tournaments for jobs, Russia would not need to withdraw from those tournaments.
- RUSADA must reimburse WADA for all of the investigative costs WADA has incurred since January 2019. RUSADA must also pay a substantial fine to WADA. The fine is equal to the lower of 10% of RUSADA’s 2019 income or $100,000 U.S. dollars.
While the ban separates Russia the country and RUSADA the sports agency from major international tournaments for the next four years, qualified Russian athletes can continue to compete as athletes unaffiliated with any country, flag or anthem.
According to WADA’s ruling, Russian athletes and their support personnel can compete so long as they prove the following: (1) they have not tested positive for a substance banned by WADA; (2) they have been tested through routine and normal—and thus not suspicious—testing conditions; and (3) they were not involved in any data tampering and did not benefit from any fraudulent acts.
This arrangement suggests that Russian athletes who convince WADA that they haven’t tampered or doped can compete either as individual athletes or as members of teams so long as Russia is not the sponsor of those athletes or teams. Russian soccer players should thus be able to play in the 2022 World Cup as an unaffiliated team (assuming FIFA permits a Russian team to qualify and then compete as an unaffiliated team).
WADA views the problem as a continuing practice of deception
WADA maintains that Russian authorities involved in national sports programs have, for years, defied anti-doping rules that other countries follow. From that lens, the four-year ban constitutes a response to a continued practice of “deception and denial.”
In 2017, the International Olympic Committee (which is affiliated with WADA) announced that Russian officials had orchestrated a “systematic manipulation of the anti-doping system” and utilized an “anti-doping laboratory” at the 2014 Winter Games in Sochi, Russia. The penalty was substantial: Russia’s Olympic team was banned from participating in the 2018 Winter Games in PyeongChang, South Korea. In addition, Russian government officials were told to stay away from the Games.
The “ban” proved less consequential than it initially seemed. The IOC permitted Russian athletes to petition to compete in the Olympics under the Olympic flag, rather than the Russian flag, and the Olympic anthem, rather than the Russian anthem, was played for medalists. In addition, 42 of the 43 Russian athletes who the IOC had banned as a result of their alleged misconduct during the 2014 Winter Olympics lodged appeals. The IOC had stripped them of medals earned in 2014. Twenty-eight were successful in their appeals.
Russia could, but probably won’t, accept or acquiesce to WADA’s findings
Pursuant to provisions in WADA’s Code, Russia has 21 days to accept or dispute WADA’s allegation.
The odds that Russia accepts WADA’s allegation seem remote. Accepting the allegations would imply that Russia admits to the alleged wrongdoing.
However, if Russia believes that it wouldn’t get a fair shake before CAS or if it concludes that WADA and the IOC are motivated by a desire to embarrass Russia and politically undermine Russian president Vladimir Putin on the world stage, Russia could let the deadline pass as a form of protest. Russia could then declare that it no longer has interest in participating in tournaments sanctioned by the IOC and WADA, at least not over the next four years. Perhaps Russia could host its own “international” sports tournaments and hope that allied nations send teams to compete.
Russia boycotting international tournaments would not be unprecedented. When Russia was governed as part of the Soviet Union, that country—along with 14 allies including Vietnam, Cuba and Angola—boycotted the 1984 Summer Olympics in Los Angeles. The Soviet Union’s boycott was fashioned as a response to supposed security concerns and “anti-Soviet hysteria” in the United States. Some believe the boycott was mainly payback for the United States boycotting the 1980 Summer Olympics in Moscow as a response to the Soviet Union’s invasion of Afghanistan.
Russia taking an approach that amounts to walking away from international tournaments seems far-fetched. The fact is, every country wishes to participate in the Olympics and international tournaments. On occasion, a country boycotts a specific tournament. On other occasions, a country is temporarily banned—such as Russia or, in years past, South Africa, Kuwait and several other countries. But a country doesn’t walk away from the world athletic stage for an extended period. Even relatively isolated countries, such as North Korea and Somalia, have sent athletes to the Olympics and other major tournaments. Participation in these tournaments engender an invaluable source of national pride.
Russia will probably appeal and raise targeted legal arguments
RUSADA (at the behest of the Russian Olympic Committee and Russian government officials) will probably notify WADA in writing that it formally disputes the accusations. RUSADA would then file a notice of dispute with CAS.
CAS is not a court or tribunal. It is an international arbitration body based in Lausanne that hears legal challenges related to Olympic sports and athletes. A typical arbitration includes a three-person panel, with each arbitrator appointed by CAS. An arbitration often takes between six and 12 months to complete. As a result, regardless of whether Russia files an appeal, Russia will be barred from participation in next month’s Youth Olympic Games in Lausanne.
An arbitration panel would review Russia’s appeal under a “de novo review” standard. This is a relatively positive standard for Russia and other appellants. De novo review means that the panel will essentially take a new and fresh look into the allegations, without deference to WADA’s findings. Also, in an appeal to CAS, Russia can introduce new evidence and propose arguments that it hadn’t previously raised to WADA.
An appeal by Russia would likely invoke several lines of arguments.
The best argument for Russia would be to credibly debunk WADA’s specific allegations. As discussed above, WADA claims that the Moscow lab engaged in data subterfuge and manipulation of computer files. If Russia retains data experts who are well-respected for their independence and competence, and who persuasively assert that WADA’s claims do not match the facts, CAS would be more inclined to favor the appeal.
Another argument that might sway CAS is if WADA’s investigative and analysis methods departed in any way from established conventions and procedures. Russian experts could then insist that WADA’s findings are based on atypical or biased methods and not reliable.
Alternatively, Russian attorneys could admit that all or some the alleged data errors are real but then pivot to blame them on a person who they’ll say worked against the country’s interests. To that end, Russia has negatively portrayed Grigory Rodchenkov, the former head of the Moscow lab who is under the protection of the U.S. federal witness protection program. Rodchenkov is the whistleblower featured in the award-winning Netflix documentary Icarus. Among other allegations of wrongdoing, he claims that Russian officials ordered manipulation of lab data. Russia disputes Rodchenkov’s assertions and regards him as responsible any wrongdoing. To the extent Russian attorneys can raise questions about the veracity and motives of Rodchenkov and of successors loyal to him, they could ask CAS for leniency.
The least effective strategy for Russia would be to try to portray WADA as politically biased. Russia, which defied Western leaders by annexing Crimea in 2014, might assert that WADA has adopted viewpoints that favor those of European and North American democracies. Along those lines, Putin has already dismissed WADA’s findings as “politically motivated.”
The problem with such a defense is two-fold. First, it doesn’t rebut the specific allegations. To win an appeal, Russia has the burden of persuasion and must disprove WADA’s claims. Russian leaders scoring political points with constituents wouldn’t help in terms of persuading CAS. In an appeal, Russia would need to undermine WADA’s findings, otherwise an appeal would fail. Second, WADA includes members and leadership from all over the world, including countries from Asia, Africa, and South America and with different political systems and ideologies. It is a global, not regional, entity.
Sports Illustrated will keep you updated on developments in this controversy.
Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.
