11. Legal Perspectives

Ron Katz, Forbes - Russian Complaints About McLaren Report On Alleged State-Sponsored Doping Have Merit

"First, any dispute resolution proceeding requires neutrality. Indeed, the IPR designates its author, Richard McLaren, who is a Canadian law professor and a practicing lawyer, as the Independent Person (IP) selected to write this report.

But the report also states that Professor McLaren “was previously a member of WADA’s three-person Independent Commission…which exposed widespread doping in Russian Athletics.” It is therefore not surprising that Professor McLaren ended up agreeing with himself.

A second way to insure fairness and credibility is to require–as the U.S. Constitution does– that an accused has the right to confront the witnesses against him.  In the IPR, evidence is cited from witnesses who are not even identified: “There were…witnesses who came forward on a confidential basis. They were important to the work of the IP…I have promised not to name these individuals.” It is obviously impossible for Russia to defend itself against unnamed accusers.

Professor McLaren also finds the main accuser of Russia to be credible.  That accuser, however, is an informant, who may have agendas other than the truth. The only way that those other agendas can be revealed is through cross-examination–an essential component of due process in U.S. courts–but neither Russia nor anyone else has had the opportunity to cross-examine this informant, despite the statement of the IP that “I am aware that there are allegations against him made by various persons and institutional representatives. The only thing that is positively known about this informant is that, by his own admission, he participated in the alleged wrongdoing. That is certainly not a guarantee of truth-telling.

A third requirement of due process is that all evidence be considered.  The IPR did not do that, saying that it has “only skimmed the surface of the extensive data available.” Furthermore, according to the IPR, “The IP did not seek to interview persons living within the Russian Federation.  This includes government officials.” Again, this picking and choosing undermines the fairness and credibility of the IPR.Not even attempting to interview Russian officials is fundamentally unfair. If those officials refused to be interviewed, that could have been noted in the IPR.

Due process is not an empty phrase.  Without it, there cannot be justice. Surely it should be required before a major sporting nation’s athletes are banned from the Olympics and Paralympics"

Sergey Yurlov, Sports Integrity Initiative - http://www.sportsintegrityinitiative.com/controversial-decisions-of-international-sports-governing-bodies/

"The Olympic Charter (OC) does not describe the principle ‘fair play’, but simply states: ‘the practice of sport is a human right. Every individual must have the possibility of practicing sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play’. The World Anti-Doping Code (WADC) stipulates: ‘the spirit of sport is the celebration of the human spirit, body and mind, and is reflected in values we find in and through sport, including: ethics, fair play and honesty […]’. This principle of ‘fair play’ is often employed by the CAS when resolving particular sporting disputes.

Although the CAS is not bound by its previous decisions, it refers to them when adjudicating disputes with similar factual circumstances. It appears that the above-mentioned decisions are benchmarks in court practice relating to the adoption and application of international sports governing bodies’ internal statutory acts. Thus, before enacting and applying any regulation or/and sanction, international sports governing bodies should prove that such regulations/sanctions are necessary, reasonable and proportionate. 

On 21 July 2016, the CAS upheld the IAAF’s decisions not to reinstate the Russian Athletics Federation’s (RusAF) membership and not to allow Russian athletes to take part in international sporting competitions, including the 2016 Rio Olympic Games. As of today, the decision is yet to be published. However, it is unlikely that the CAS will publish the full decision. The CAS confirmed that the suspension of a national sports federation automatically triggers the ineligibility of its members. Not having the full decision at hand, we assume that the CAS referred to the autonomy of the IAAF and to its right to adopt internal regulations. Why does the CAS differently apply the same principles? Did the CAS follow them when sanctioning innocent athletes?Was it necessary to impose a blanket ban on the Russian track and field athletes? It appears that it was not, since the IAAF should have disqualified only those who had tested positive. Therefore, such a decision does not protect the rights of clean athletes.

Was it reasonable? It appears that it was not since it contradicts common sense and the basic legal principles. In particular, no one can be subjected to liability for actions committed by another. There was not sufficient evidence proving the creation of a state-backed doping system in Russia. The IAAF’s decision was based on certain allegations which are yet to be verified. Was it proportionate? It appears that it was not since many athletes have been sanctioned for “actions” of a closed circle of athletes/officials. The IOC turned the presumption of innocence principle inside out, depriving clean athletes of their fundamental rights. In the IOC’s construction, the principle reads as follows: athletes are presumed guilty unless they can prove they are innocent.

Here another question arises: what should the CAS apply resolving particular sports disputes? According to Article 17 of the Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games (CAS AH Rules), ‘the Panel shall rule on the dispute pursuant to the Olympic Charter, the applicable regulations, general principles of law and the rules of law, the application of which it deems appropriate’. Opposed to the CAS AH Rules, Article R45 of the CAS Code of Sports-related Arbitration (as of 1 January 2016) (CAS Code) does not mention general principles of law and the rule of law, simply stating: ‘the Panel shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law. The parties may authorize the Panel to decide ex aequo et bono’.

On 8 August 2016 the IPC suspended the Russian Paralympic Committee (Decision) following its inability to fulfil membership obligations with regard to anti-doping policy. According to the Decision Russian Paralympic athletes cannot take part in the forthcoming 2016 Paralympic Games in Rio. The Decision is based on the report of professor McLaren published on 18 July 18 2016. Notwithstanding that the report is quite controversial, the IOC and international sports governing bodies have already taken a number of decisions regarding the participation of Russian athletes in international sporting competitions.

It must be noted that one of the next steps defined by the Decision is conducting further investigation with regard to certain findings. Thus, the IPC comes to the conclusion that the matter should be further investigated.  In the meantime, the IPC already sanctions the RPC and its athletes. How can the IPC sanction them without having all the evidence at hand? It appears that careful investigation usually precedes a particular decision. Thus, the IPC resolved the issue based on certain allegations yet to be verified.

The RPC attempted to appeal the decision, however such appeals were rejected by the Court of Arbitration for Sport and the Swiss Federal Tribunal.

Investigator bias

IC1p47 Although the IC report and recommendations are confined to Russia and athletics, the IC wishes to make it clear that, in its considered view, Russia is not the only country, nor athletics the only sport, facing the problem of orchestrated doping in sport.

p60 The IC wants to make it clear that Russia is not the only country with an ineffective anti-doping program and that Athletics is not the only sport with an ineffective antidoping program, but Russia and athletics were the subject of the Terms of Reference of the IC.

IC2 & 3 reports - not mentioned because of their agreed TOR, however with the TUE evidence exposed through the hacking of the WADA website, the TOR could have been amended in consultation with the IOC. Also emphasis again solely on Russia and anti-doping in other countries not mentioned which suggests a political bias especially around the Olympics, the comments of WADA officials in saying that they are not in any hurry to reinstate Russians.

Criminal investigation

IC1p21 The IC has turned over considerable data and information to Interpol that tends to demonstrate criminal conduct on the part of certain individuals and organizations. Until the proper authorities have decided whether to lay criminal charges, the IC will not make public the contents of that chapter of the Report, so as not to interfere with the ongoing investigations regarding such conduct. It is, however, anticipated that the chapter will be released and it is hoped that this can be done before the end of the year, for purposes of appropriate civil follow-up and actions. The IC has withheld most of the contents of the chapter on the IAAF in order to not compromise the continuing efforts in respect of information provided to Interpol. There are very serious criminal allegations in the ARD documentary. The IC is in possession of information which has been passed on to Interpol for the purposes of an integrated investigative activity, Operation Augeas. Therefore, most of the IC’s Recommendations in respect of the IAAF are being withheld until such time as the full chapter is released.

p80 Investigators established a ground-zero investigative framework by corroborating, wherever possible, the statements of witnesses and whistleblowers. Extensive authentication of witness statements documented in recorded audio and video statements were subjected to analysis to ensure the integrity of the allegations, followed by extensive interviews and re-interviews of key witnesses and whistleblowers. Evidence was collected, processed and retained through accepted investigative protocols established by national law enforcement agencies.

IC2 not mentioned

IC3 p69 criminal investigations of which are still ongoing.