George Sur: every athlete has a right to due process
The Court of Arbitration for Sport in Lausanne remains in the focus of public attention in relation to the events involving Russian sports. CAS had hardly made its decision with respect to the first group of athletes before two more applications from Russia were filed with the court. Tellingly, all applications from Russia concern the International Olympic Committee (IOC), which accepted responsibility to invite or not to invite Russian athletes to the Olympics in Pyeongchang. The CAS position on the “Russian issue” got a mixed reaction of IOC, therefore RAPSI has turned to George Sur, a partner of U.S. law firm Versus Advocates, seeking clarification.
— What does this decision mean in terms of the upcoming Olympic Games? More specifically, does this mean that these athletes may or may not participate in the games as part of the national Olympic team?
— The decision has a significant importance to all stakeholders, including the athletes, the IOC, and WADA. Under normal circumstances, the athletes would be eligible to compete in the Olympic Games if qualified under the rules of relevant International Sport Federations. But the current situation is unprecedented. Everyone has been navigating the unchartered waters after the IOC suspended the Russian Olympic Committee and imposed the "by invitation only" rule. In essence, the rule means that all Russian athletes are banned from competing in PyeongChang, unless specifically invited by the IOC.
The entire Russian Olympic team has gone through a thorough individual two-step scrutiny conducted by special ad hoc panels--the IOC's Invitation Review Panel chaired by former French Sports Minister Dr. Valérie Fourneyron, which conducted the initial review and issued recommendations, and the Olympic Athlete from Russia Implementation Group (OARIG) headed by member of the IOC Executive Board Nicole Hoevertsz, which rendered the final decision with respect to each athlete.
Details of the decision-making process are scant, except as explained in a handful of carefully crafted press releases and public statements made by the IOC. About twenty-five percent of athletes from the initial Olympic pool were not invited. The 28 athletes who had been banned from the Olympics for life were not on the initial list because of the suspension. After the reinstatement, thirteen of them sought invitation from the IOC, but were denied. These athletes now find themselves in the same situation as the "not invited" athletes from of the initial Olympic pool.
— May this decision influence the overall policy of the International Olympic Committee towards Russia? Or may it influence other cases concerning Russian athletes, which are reviewed by the court?
— The lifting of the life ban was hardly a surprise. In 2011, a CAS panel which included Prof. McLaren--the person who led the WADA investigation of Russia's state-run manipulation of doping samples in Sochi--issued a decision invalidating a 2008 regulation by the IOC Executive Board. The regulation, often referred to as the Osaka Rule, restricted athletes who had served a six-month or longer suspension for an anti-doping rule violation from competing in the next Olympic Games. The challenge launched by the U.S. Olympic Committee was upheld because the regulation was deemed to impose a sanction inconsistent with the WADA Code.
The panel rejected the argument raised by the IOC that the regulation was a mere eligibility requirement for the participation in the Games. Because the regulation punished athletes for prior undesirable behavior (i.e., a doping violation), it was disciplinary in nature and imposed a sanction in addition to the express list of sanctions in the WADA Code. Therefore, it was invalid. Different CAS panels arrived at a similar conclusion in 2016, striking down the IOC Executive Board's criterion concerning the eligibility of the Russian athletes to compete in Rio which prohibited the Russian Olympic Committee from entering athletes who had ever been sanctioned for doping. The IOC's 2017 life ban had similar penal characteristics that were held invalid before.
The surprising element of the CAS decision is with the assessment of evidence presented by the IOC. The CAS arbitrators found that the evidence of the doping control samples' manipulation in Sochi, which included Prof. McLaren's findings, Dr. Rodchenkov's testimony, computer databases, tempering marks on the sample bottles, etc., was insufficient to impose individual sanctions on 28 out of 39 athletes banned for life by the IOC. This is a remarkable outcome, which is destined to set an important precedent in the Olympic and the CAS anti-doping jurisprudence. It is no wonder that the IOC and WADA have announced that they were considering to set aside the award in Swiss court.
It should be remembered, however, that arbitrators did not decide the issue of whether or not there was a systematic state-run operation to cover up doping violations by Russian athletes in Sochi, which could have exonerated Russia of any wrongdoing. The arbitrators expressly limited their decision to the alleged doping violations by each athlete named in the appeal.
— Could Russian athletes found not guilty of violating anti-doping regulations demand compensation from the IOC or other organizations or persons?
— Any person should seek legal vindication of his or her rights, whether it's damage to reputation or lost income. Russian athletes are not an exception, including those who were not "invited" to compete in PyeongChang. They too should seek a recourse, although their chance to challenge the alleged ineligibility is rapidly closing.
Each athlete, regardless of the reason for disqualification, should proactively seek legal counsel, both in Russia and abroad. My recommendation is to always ask for a second opinion, consider all options and make an informative decision. Nothing should be off the table, including action against the persons and organizations directly responsible for creating the situation that lead up to the disqualification.
— Considering the recent developments surrounding the CAS decision, namely Thomas Bach’s stating that the court should be reformed or recent decision not to invite a number of Russians to the games… Do you believe that there is a curious example of antagonism and distrust shown by IOC towards CAS decision? Is this situation quite normal for these two institutions or are we, as you said, “navigating the uncharted waters” here as well?
— Thomas Bach's call to reform CAS was emotionally charged. As the IOC President, Bach was heavily vested in the development and implementation of the IOC's policy toward Russia in the wake of the Sochi doping scandal. So it is natural that he took the lifting of the life ban close to the heart, calling it "extremely disappointing and surprising." As an judicial institution, CAS's main function is to enforce the sports governing rules, including the Olympic Charter and the WADA Code. The IOC was caught on the wrong side of the rules before, but in a vast majority of cases it was the prevailing party.
Moreover, CAS merely administers the dispute resolution process. Actual decisions are made by panels of CAS arbitrators, appointed with the parties' consent. The pool of arbitrators is very diverse, including some of the brightest sports and international dispute resolution lawyers from a variety of jurisdictions. The CAS arbitration rules, which govern the dispute resolution procedure, are among the most advanced in the world.
Can CAS be improved? Absolutely. But the improvements should be made to even the playing field in favor of athletes, not the other way around. One of the main issues is the disparity of resources available to the disputants. Organizations like the IOC, WADA and IFs have virtually unlimited resources to hire top lawyers, experts and investigators. Very few athletes can match that potential.
One of the best CAS features is the existence of the financial aid program designed to help financially disadvantaged athletes obtain legal representation. I am one of the lawyers on the CAS pro bono panel who provide legal counsel to such athletes. But the program does not solve the problem completely. Practically all leading scientists in the doping field lend their research to WADA or National Anti-Doping Agencies, and are conflicted out from providing independent expert opinion in doping cases.
Few conflict-free scientists demand remuneration for their time and effort that is often prohibitively high. The problem is particularly acute in blood doping cases, where the effect of confounding factors on athletes' blood chemistry remains largely unverified by scientific peer review. A pro bono panel of independent experts may help alleviate some of the concerns, but it requires a political will of the stakeholders, including ICAS, to allocate administrative and financial resources.
The IOC and WADA may publicly complain about the perceived failure of the system, but the reality is not that simple. I do not question the conclusions of Prof. McLaren, or the integrity of the Oswald Commission. Indeed, the IOC was in a difficult position, having to manage the toxic fallout of the Sochi Olympics. But every athlete accused of an anti-doping violation has a fundamental right to due process, and that is exactly what the Russian athletes got in CAS.