“Committing ourselves to a sport without Doping…”

Undoubtedly, the IOC is an organisation that’s really fond of tradition. Among these traditions is a deep reluctance to move or act more than immediately necessary and a tendency to dispose of any hints of responsibility to decide on contentious issues and to carry out such decisions. True to these traditions, the IOC’s Executive Board (EB) decided against a complete ban of the Russian team for the upcoming Games in Rio. You could say, it’s a cowardly, a spineless decision, a damaging one, a significant blow for the international fight against Doping. And, to be honest, I would completely support such a statement. But you could also argue that the individual rights of the athletes need to be respected, that a blanket ban would not solve the problem immediately, that innocent athletes might suffer. And I would most likely agree with that as well…
But what I’d like to talk about is that the decision as it stands is blatant nonsense! To call it impractical is an understatement that is as far away from the truth as Vladimir Putin is from winning the Nobel Peace Prize (jointly with Thomas Bach, perhaps?). No, it’s nonsense, it cannot be fulfilled, and it’s wrong in so many ways.

Iura novit curia

There are so many references to the Olympic Charter, the World Anti Doping Code and other regulations in the decision that you could reach the assumption that it has to be a well founded one, that it may be wrong for moral reasons but right under the existing legal conditions, that the EB knows the law. Well, it isn’t and they don’t.
To be fair, the EB could have decided the way it did under the present Charter. There is nothing in the regulations that would compel them to exclude the entire Russian team. Actually there is hardly anything in them compelling the IOC to do anything at all. Instead most rules focus on how the IOC has the supreme authority and what International Federations (IFs), National Olympic Committees (NOCs), athletes and others should and should not do.

However, there is also nothing in the Charter that prevented the EB from taking a decision that would have excluded the Russian team from the Games. To imply that they had no choice, that they were bound by the Charter, by international law or, as it is mentioned in the decision itself, by ‘natural justice’ to allow them to start is a false statement.

Let me take you through a few rules from the Olympic Charter:

Rule 1.1

Under the supreme authority and leadership of the International Olympic Committee,
the Olympic Movement encompasses organisations, athletes and other persons who
agree to be guided by the Olympic Charter.

This rule, vigorously defended by generations of IOC-presidents and -members, puts the Committee itself in the strongest position possible. It is not only there to organise the Games and guide the work of the IFs, who would then regulate their respective sports. It has supreme control over the entire Olympic Movement (including IFs, NOCs, athletes, Organising Committees, National Federations, clubs, etc.). And don’t forget the second word: ‘leadership’. Just in case you’ve missed that on Sunday…

Rule 6.1

[The Olympic Games] bring together the athletes selected by their respective NOCs, whose entries have been accepted by the IOC. They compete under the technical direction of the IFs concerned.

Yes, the IFs organize the events in their respective sport. Yes, they set the qualification criteria, etc. But it is up to the IOC, not the IFs, to accept or deny entries by NOCs to the Olympic Games. And there may be very good reasons for the IOC to deny an entry, as it has done on various occasions in the past. Wouldn’t a state-run Doping system be a very good reason as well…?

Rule 27.6

The NOCs must preserve their autonomy and resist all pressures of any kind,  including but not limited to political, legal, religious or economic pressures which may prevent them from complying with the Olympic Charter.

The IOC is somewhat allergic to political influence, well, unless they consider it to be in their interest, the same applies to the NOCs. Political pressure or, let’s say, for example a state-run system that circumvents control by sports authorities to exercise fraud at a large scale, could effectively hinder an NOC from complying with the Olympic Charter, and the NOC is then obliged to resist such pressure and avoid such a situation or face the consequences.

Rule 27.9

Apart from the measures and sanctions provided in the case of infringement of the Olympic Charter, the IOC Executive Board may take any appropriate decisions for the protection of the Olympic Movement in the country of an NOC, including suspension of or withdrawal of recognition from such NOC if the constitution, law or other regulations in force in the country concerned, or any act by any governmental or other body causes the activity of the NOC or the making or expression of its will to be hampered. The IOC Executive Board shall offer such NOC an opportunity to be heard before any such decision is taken.

Speaking of consequences…

Rule 59

In the case of any violation of the Olympic Charter, the World Anti-Doping Code, or any other regulation, as the case may be, the measures or sanctions which may be taken by the Session, the IOC Executive Board or the disciplinary commission referred to under 2.4 below are:
with regard to NOCs:
a) suspension (IOC Executive Board); in such event, the IOC Executive Board determines in each case the consequences for the NOC concerned and its athletes;
b) withdrawal of provisional recognition (IOC Executive Board);
c) withdrawal of full recognition (Session); in such a case, the NOC forfeits all rights conferred upon it in accordance with the Olympic Charter;
d) withdrawal of the right to organise a Session or an Olympic Congress (Session).

So, there you go! The EB has a wide, indeed, according to 27.9, a broadest possible range of sanctions it can impose on and measures it can take against an NOC which is in violation of the Olympic Charter or the World Anti-Doping Code. And I’m sure you wouldn’t argue that in our present case, the Russian Olympic Committee (ROC) is in violation of both of them.

Oh, well, you would argue against that? Because, as Thomas Bach pointed out on Sunday, the ROC was not directly implicated in the McLaren-Report? True, they weren’t. But, again, what we have here is a state-run Doping system. All Doping tests taken and analyzed in Russia for the last five years were at least controlled and in far too many cases manipulated upon a direct order by the Ministry for Sport. It is absolutely not feasible that the leading figures in the ROC should have had no knowledge of this at all. And even if they didn’t, that would just mean they failed to do their job. They were not able, and most likely not willing, to defend the ROC against political influence, and therefore the ROC was no longer able to comply with the Olympic Charter.

As I said before, the EB could have decided to suspend the ROC, to ban the Russian team for Rio 2016, but they were not necessarily obliged to do so. Nonetheless, the question remains: what would an NOC have to do, how much political influence has to be proven to warrant such extreme measures? When if not now would it be justified to exclude an entire NOC from the Games? Why does the IOC have such rules if they are not willing to implement them?

As if there weren’t enough problems with this decision already, the EB created another one which will, for a change, anger the Russian side. And in this case they have every right to complain about it. According to the decision, any Russian athlete who has committed a Doping-offence at any point of his or her career shall be deemed ineligible to compete in the Games. This is a flagrant breach of various legal principles. They are creating a ‘law’ to penalize behaviour after the act had already been committed (contrary to ‘nulla poena sine lege praevia’, prohibiting retroactive (criminal) laws) and after the athlete already served the required suspension (contrary to ‘ne bis in idem’, prohibiting sanctioning the same act twice). While these principles usually apply to criminal law only, it is the EB itself who is hiding behind criminal law principles (‘natural justice’, ‘individual justice’, ‘presumption of innocence’) which do not apply as such when it comes to breaches of the Charter and the World Anti-Doping Code, as mentioned above.

And what about the principle of equal justice under law? Assuming that the ROC cannot be held responsible and that the athletes were not directly involved unless they were specifically mentioned in the McLaren-Report, why should previous offenders from Russia be ineligible whereas people like Justin Gatlin, who was banned twice for one year and then eight years, and other former offenders from the US and many other countries are free to compete in Rio?

Tempus fugit

We are now ten days away from the beginning of the Olympic Games. Many athletes are already on their way to Rio. Some have taken residence in the Olympic Village, while the Australians have refused to do that initially, but that’s a different story…
And now the IOC asks the IFs, who presumably have nothing else to do before the most important event in their sport in four years, to investigate thoroughly every single Russian competitor, nominated by ROC to determine whether or not they should be eligible under the EB’s guidelines, meaning to determine whether they themselves were involved in any way in the state-run Doping system. This is a ridiculous demand. Interestingly though, the EB’s decision specifically states that athletes should NOT be deemed eligible unless the IF manages to gather enough evidence to clear them of any such involvement. So, if the IFs do not have enough time to complete this process, which they don’t, Russian athletes will not be allowed to participate in Rio… Will they…?

Of course, they will! Remember who we are talking about here. It’s far too tempting for the IFs to just imitate the behaviour of the EB, wash their hands like Pontius Pilate and declare that since they had so little time they felt obliged to allow all (or at least most) Russian athletes to participate, which is the opposite of what the EB decision implies.

The first IF to complete this ‘thorough investigation’ was the International Tennis Federation. It took them two hours(!) to determine that the Russian Tennis players nominated for Rio were all absolutely eligible. The International Judo Federation, whose honarary president happens to be Vladimir Putin, followed soon after.
But there have been some federations who took these issues a bit more seriously apparently. These include FISA (Rowing), ICF (Canoe) and, remarkably, FINA (Aquatics), who have already declared a number of athletes ineligible and allocated some quota places to other countries. Investigations are still ongoing in most other IFs while IAAF (Athletics) and IWF (Weightlifting) seem to be quite firm in their strong stance, putting them in a leadership position in the fight against Doping. Remember, ‘leadership’ is what the IOC was actually supposed to show…

There’s a lot more to be said about this issue and there will be several books written about it in the not so distant future, I’d guess, but for now I’ll leave it to that. There’s only one thing left to say, which will be the subject of one of my next articles: The real scandal about this decision is not the fact that many Russian athletes will now compete in Rio. The real scandal is how the IOC dealt with the courageous Yuliya Stepanova…

* The title to this article is, as some of you may have guessed already, taken from the Olympic Oath. It’ll be spoken again on behalf of all the athletes at the Opening Ceremony next week.

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