With the 23rd Winter Olympics barely one week away, a press release issued by the Court of Arbitration for Sports (CAS) has shaken the sporting community. In essence, the Lausanne arbitrators overturned doping-related sanctions imposed by IOC bodies on 29 Russian athletes, while mitigating their extent in 11 further instances.
The legal news have lead to predictable reactions: Russian officials, at their forefront president Vladimir Putin, voiced joy and satisfaction, as their viewpoint on „clean“ athletes has seemingly been restored in court. On the other hand, critics went as far as to state a public erosion of values of the Olympic movement, describing the situation as a „stinky mess“.
I.
As prima facie intuition goes, I am immediately inclined to concur with the critics. It is hard to overlook the severe and detailed findings of the „McLaren Report“ (two parts of July and December 2016 respectively). The investigation, lead by renowned Canadian sports law professor Richard McLaren and commissioned by the World Anti Doping Agency (WADA), had uncovered a machinery of deception and fraud beyond imagination. According to the report, athletes‘ samples were routinely being manipulated in „anti“-doping labs, a tactic approved and overseen by the Russian ministry of sports.
A short reference to the 2018 Olympic Oath ascertains the striking irony of this (alleged) state-employed doping agenda:
We promise to take part in these Olympic Games, respecting and abiding by the rules and in the spirit of fair play. We all commit ourselves to sport without doping and cheating.
Hence, the spirit of fair play pertains to the core of the Olympic movement and requires strict compliance with its components, among them loyalty, mutual respect, sportsmanship, and procedural equality. In the context of doping, Rule 43 of the Olympic Charter may be added, which explicitly adopts the WADA Code (current version amended as of 2015) to counteract any form of doping-related foul play.
II.
That being said, the arbitral awards issued by CAS merit a closer analysis, particularly so since the detailed legal grounds on which the rulings were based (the so-called rationes decidendi) are yet to be published by the court. I would like to fill in that temporary blank inasmuch as I will be assuming the role of advocatus diaboli by defending the athlete-friendly attitude of the Swiss panels.
Firstly, the awards in question concluded appeal proceedings (in accordance with Rule 62 § 2 of the Olympic Charter as well as artt. R47-59 of the CAS Code) initiated by 39 individual athletes. It is therefore misleading to think of a common factual background (of the sort that „Russian Olympians have been found guilty of anti-doping violations according to the McLaren Report“) when in fact the personal involvement in each case may and will have varied.
- To clarify that notion of individual responsibility, let’s look at one of the appealed decisions issued by the IOC Disciplinary Committee (DC) that formed a part of the so-called Oswald commission hearings. In the case of Aleksandr Kasyanov, twice a medalist at luge world championships, the IOC DC (decision SML-030 – 22/12/2017) invokes Artt. 2.2 and 2.5 of the WADA Code to establish legal grounds for a anti-doping violation (use of prohibited substances, tampering with a required urine sample). It heavily relies on the „McLaren Report“ and holds the corresponding evidence admissible; this includes scratch marks indicating sample swapping, elevated salt levels in the samples, and DNA analysis. The standard of proof as regulated by art. 3.1 of the WADA Code is of particular importance to attribute legal weight and validity to the evidence:
This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. […]
- The application of this provision, in my opinion, justifies the grave sanctions under art. 7 and 8 of the WADA Code (disqualification from the Sochi 2014 Games ex post, life-long ban for subsequent editions of the Winter Olympics) as the sheer number of forensically sound documents incriminating Kasyanov certainly exceed a „51-49“ degree of probability. CAS, on the other hand, has put forward doubts on the matter of evidence.
Accordingly, concerns with the IOC DC rulings could arise taking into account the lex superior of art. 6 § 1 ECHR. This article is directly applicable in neither IOC nor CAS proceedings (although Russia ratified the convention in 2015) but the attaining jurisprudence of the European Court of Human Rights has established the fairly balanced administration of evidence as a key element of due process (cf. for example Elsholz v. Germany § 66). This fundamental principle, to be observed in every judicial proceeding, could have been violated when the „McLaren Report“ was being consulted as a source for evidence: the samples evaluated therein presumably are not identifiable to each athlete within a reasonable degree of scientific certainty when it comes to reconstructing the sample swapping and the well-known faults of DNA contamination.
Admittedly, this argument is loosely based on the presumption that the „McLaren Report“ did not do enough to assign each sample to a specific athlete. But this could well have been the Swiss panel’s starting point to lift the sanctions on Kasyanov and 27 other athletes, while in the remaining 11 cases more personalized evidence could have lead to a partial dismissal of the athletes‘ appeal. Methodically, this would also need a supplementary interpretation („Rechtsfortbildung“) of art. 3.1 of the WADA code: the tribunal might have introduced a more restrictive standard of proof between mathematic probability and the lack of any reasonable doubt!
III.
To sum up, the claimed lack of evidence has an „off chance“ of doctrinal foundation in favour of CAS’s legal viewpoint – the efforts of the panel would have to encompass an extensive re-evaluation of both the applicable law and its interpretation and (critically) of the forensic care exercised with regard to the „McLaren Report“. No wonder the necessarily rather detailed 39 reasonings have not been issued so far!
Even if CAS manages to produce some persuasive rationes decidendi, it has two major criticisms to face: first, the press release concludes by conceding no general determination on organized doping in the Russian team has been made. Notwithstanding the individuality of each case, this is exactly what is needed to satisfy the public interest! The matter is so essentially entertwined with larger organizational structures that it deserves to be settled by a hallmark decision that includes the faults committed by Russia’s NOC (for example in an obiter dictum)!
Second, given the alleged extent of the whole affair, it would be next to impossible guaranteeing a profound, in-depth examination of each competitor’s samples. The scale of deception and strategic cover-up found in comparable doping cases (see Russia and the IAAF) does simply not allow for this pedantic approach.
Note: I would like to thank Professor Jacopo Tognon of the Università degli Studi di Padova for his highly informative lecture on sports law that inspired the present essay.
