Blanket doping bans and human rights. Does a blanket ban on Russian athletes competing at Rio 2016 contravene human rights law?

by Gideon Barth[1] and Richard Booth QC[2]

 

Introduction

The Olympic Games, the greatest display of sporting ability in the world, is plagued by drug cheats and doping scandals. But our understanding of the scale and nature of modern-day doping dramatically changed in the build-up to the Rio Olympics and Paralympics. No longer were individuals cheating to gain an advantage over another competitor, but a whole nation of athletes was implicated by a government-led conspiracy.

On 18 July 2016, a report by Canadian law professor Richard McLaren (the McLaren Report) revealed the existence of a complex state-sponsored scheme of cover-up and deception by the Russian government, referred to as the “disappearing positives methodology”. He described a system whereby the Russian state “directed, controlled and oversaw the manipulation of athletes’ analytical results or sample swapping[3]. It is said by the International Olympic Committee (IOC) and the World Anti-Doping Agency (WADA) that this scheme “represented the worst case of doping in the history of sport[4].

The IOC and International Paralympic Committee (IPC) faced calls to take immediate action to ban all Russian athletes from Rio 2016.[5] Their responses were starkly different, and led to claims of unfairness, illegality and breaches of human rights. The following analysis seeks to shed some light on the reasons for those differing responses and the legality of those decisions.

 

The IOC decision

On 24 July 2016, the IOC Executive Board issued a decision that a Russian athlete would be accepted by the IOC to compete in Rio if the relevant international federation was fully satisfied, in each individual case, that the athlete was not “implicated” in the government doping scheme.[6] The IOC had resisted the calls to a blanket ban on the Russian Olympic Committee (ROC) and all its athletes. Instead, its decision, as set out below, sought to:

strike a balance between the collective responsibility applying to Russian athletes in view of these exceptional circumstances and the right of each athlete to have his/her case individually considered. The IOC Decision stated:

“Under these exceptional circumstances, Russian athletes in any of the 28 Olympic summer sports have to assume the consequences of what amounts to collective responsibility in order to protect the credibility of the Olympic competitions, and the “presumption of innocence” cannot be applied to them. On the other hand, according to the rules of natural justice, individual justice, to which every human being is entitled, has to be applied. This means that each affected athlete must be given the opportunity to rebut the applicability of the collective responsibility in his or her individual case.””[7]

The Russian Olympic athletes avoided a blanket ban, but, unless they could prove that they had not benefitted from the state-sponsored doping cover-up, they would not be able to compete.

Ivan Balandin, a Russian rower, having been found by the International Rowing Federation (FISA) to be “implicated” in the doping scheme, sought a declaration that the IOC decision was illegal. The Panel of the Court of Arbitration for Sport (CAS) considered the background to the IOC decision, and noted that “the aim of these criteria was to give an opportunity to those Russian athletes who were not implicated in the State-organised scheme to participate in the Rio Games”.[8] There was nothing in the decision, according to the Panel, which violated the rules of natural justice or made the decision illegal.[9]

Alexey Korovashkov, a canoeist, was found to be implicated in the scheme by the International Canoe Federation (ICF). His challenge was also unsuccessful. The CAS Panel found that there was evidence that the “disappearing positives methodology” system was applied to him to avoid a positive report of marijuana[10] and he was so implicated. As to the denial of natural justice, the Panel dismissed those concerns:

[Korovashkov] has been given an opportunity to rebut the case made against him and to rebut the applicability of the collective responsibility for implication in the State sponsored doping system […].[11]

The IOC’s approach appears to have been vindicated by the decisions before the Court of Arbitration for Sport. Not one of the CAS decisions found that the IOC decision was a breach of the rules of natural justice or even of one of the fundamental principles of Olympism, which states: “the practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind […]”[12]

 

The IPC decision

In stark contrast to the IOC, on 7 August 2016, the IPC announced that it had suspended the membership of the Russian Paralympic Committee such that it would not be able to enter any athletes at Rio 2016. Although this ban was welcomed by many, several Russian government spokespersons and para-athletes considered this “blanket ban” to be grossly unfair.[13] Indeed, one of the most prominent criticisms was that such a blanket ban was a breach of the athletes’ human rights.[14]

Indeed, blanket bans are traditionally considered to be a disproportionate approach to limiting fundamental rights and thus unlawful. In Hirst v. United Kingdom (No.2)[15], the European Court of Human Rights held that a blanket ban on all prisoners serving custodial sentences of the right to vote was a “general, automatic and indiscriminate restriction on a vitally important Convention right”; it was, therefore, disproportionate and a contravention of art. 3 of the European Convention. Similarly, in Thierry Delvigne v. Commune de Lesparre-Médoc[16], the Court of Justice of the European Union noted that limitations on the right to vote for prisoners must be “subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest[17]. In that case, the applicant had the opportunity to have that ban lifted[18], and, therefore, the ban was not a “blanket ban” and not unlawful.

However, when the Russian Paralympic Committee (RPC) challenged the IPC decision, CAS upheld the decision. Does CAS ignore the issue of proportionality when it comes to blanket bans? Or was the decision something other than a blanket ban?

On 7 August 2016, some sixteen days after initially notifying the RPC of suspension proceedings, the IPC suspended the membership of the RPC, and, with it, the ability to enter para-athletes into the Paralympic Games in Rio. Under the IPC Constitution, a member may be suspended for a failure to fulfil its obligations, including ensuring that “the spirit of fair play prevails” and contributing “to the creation of a drug free environment for all Paralympic athletes[19]. Although the CAS Panel were not satisfied that the RPC were complicit or involved in the scheme, it was plain that they were a passive bystander to the scheme and this was a breach of their obligations.

The key question for the Panel to answer, therefore, was whether the decision by the IPC to suspend the membership of the RPC – and consequently ban all Russian para-athletes from the Games – was a proportionate response to the identified violation. In other words, “whether the Decision served a legitimate purpose and was suitable, necessary and appropriate for the objective which it aims to achieve[20]. The RPC contended that the IPC could have adopted a “softer measure”, allowing clean athletes to compete such that the “blanket prohibition is not justified[21].

For a number of reasons, the CAS Panel considered that the decision to ban the RPC was proportionate and justified. The doping scandal was possibly the biggest in history[22] and the IPC relies on national committees to ensure compliance with the World Anti-Doping Code (WADC).[23] Further, it was considered a legitimate aim to:

send a message that made clear the lack of tolerance on the part of the IPC to such systemic failure in a country […]. The concern that clean athletes […] have confidence in the ability to compete on a level playing field, and the integrity and credibility of the sporting contest, represent powerful countervailing factors to the collateral or reflexive effect on Russian athletes as a result of the suspension.[24]

In addition, the Panel considered that the fact that the damage was caused by such a systemic cover-up, and that there were no obvious alternative sanctions, led to the conclusion that the decision was not disproportionate. The IOC decision was irrelevant because the IOC constitutions and charters operate differently from those of the IPC. Not least, whereas the IOC devolved responsibility to individual international federations, the IPC itself is the international federation for ten Paralympic sports.[25]

However, before setting out those reasons, the CAS Award makes an important point. The Panel noted that the parties to the arbitration were the RPC and the IPC, and the individual athletes were not included. As such:

“Questions of athletes’ rights that may not derive from the RPC, but of which they themselves are the original holder, such as rights of natural justice, or personality rights, or the right to have the same opportunities to compete as those afforded to Russian Olympic athletes by the IOC in its decision of 24 July 2016 […] are not for this Panel to consider. The Panel makes no comment whether such rights exist, or the nature and extent of any such rights. The matter for review by this Panel is thus not the legitimacy of “collective sanction” of athletes, but whether or not the IPC was entitled to suspend one of its (direct) members […] the collective member cannot hide behind those individuals that it represents.[26]

As for the argument that the RPC can collectively assert the rights of such individuals, the Panel stated:

“It is the very essence of a personality right, as well as rights of natural justice, that they cannot, in principle, be dissociated from the original holders and transferred to others.[27]

So, despite the balancing exercise that the CAS took at § 84 of its Award, as set out above, it seems this Award does not answer the question of whether a suspension of a national body, which amounts to a ban on all Russian competitors, is a breach of the human rights of the individual athletes.

 

The IAAF decision

In an earlier case, CAS also refused to make any pronouncements on blanket bans and individual rights. In Russian Olympic Committee (ROC), Lyukman and 67 Others v. International Association of Athletics Federations (IAAF)[28], the ROC and several Russian athletes sought to overturn the decision of the IAAF to suspend the Russian Athletics Federation (RusAF) following an earlier damning report by another Canadian lawyer, Richard Pound, revealing the prevalence of Russian doping. This suspension did provide an exception for individual athletes, who could prove they were not tainted (rule 22.1A – the exception under which Darya Klishina fell, see below) and for those who had made an extraordinary contribution to anti-doping. Nevertheless, at the outset, the Award makes it clear that the case:

is not about “collective punishment” of athletes – a measure on which the Panel expresses no view. It is also not about the presumption of guilt of innocent athletes. It is only about the applicability (and indeed application) of specific rules within the IAAF system and in the Olympic Charter with respect to the consequences for affiliate athletes of the suspension of the national federation to which they belong.[29]

Indeed, the Panel concluded that the suspension of RusAF was not an additional sanction according to the WADC rules, so there was no need for it to decide whether it was proportionate.[30] Nevertheless, it considered that the suspension (with provision for exceptional eligibility) was a proportionate step: the measure taken was capable of achieving the objective of the eradication of doping in sport as it prevented Russian athletes from competing against those whose federations did promote a doping-free environment[31]; the suspension was necessary; and, most notably:

the constraints which the affected athletes, including the Claimant Athletes, will suffer as a consequence of the measure are justified by the overall interest to achieve the envisaged goal, which outweighs them, and do not go beyond what is necessary to achieve it.[32]

Darya Klishina, a long jumper, was the only Russian track-and-field athlete to compete at the Rio Olympics 2016 following her successful challenge.[33] The Drug Review Board had initially considered that she fell within the exceptional eligibility criteria (rule 22.1A), an exception to the presumption of guilt, having stayed outside Russia for a “sufficiently long period of time to provide substantial objective assurance of integrity[34]. The fact that she was subsequently implicated by the McLaren Report did not provide the DRB with a lawful basis to revisit its decision, as the rule provided for exceptional eligibility even where she was affected by the failures of the national federation.[35] As such she was cleared to compete at Rio.

 

Punishing innocent athletes

Despite the arguments deployed by WADA, the IOC and the IPC in the summer of 2016 that a strong message had to be sent out, there is a certain reluctance among sports’ governing bodies to sanction innocent athletes for the anti-doping rule violations of their cheating colleagues in team sports.

For example, in a case close to the heart of one of your authors, UEFA decided not to disqualify the entire Russian football team when one of its players, Egor Titov, failed a drugs test. The Welsh FA appealed the decision as the relevant game was a play-off for the European Championships in which Wales were beaten by Russia, and in which Titov played.[36] However, no such sanction was applicable under UEFA regulations unless the national federation itself was implicated in the player taking drugs, and without proof, Russia was allowed to compete. Similarly, despite Marion Jones’ admission to a doping violation, there was no rule which allowed the IOC to disqualify the rest of the USA 4×100m relay team at the Sydney Olympics 2000 and they retained their medals.[37] CAS allowed the appeal of the American sprinters despite its clear reservations:

The Panel acknowledges that the outcome of this case may be unfair to other relay teams that competed with no doped athletes helping their performance; however such outcome exclusively depends on the rules enacted or not enacted by the IOC and by the IAAF at the time of the Sydney Olympic Games.[38]

Several international sporting bodies now provide for the disqualification of a relay team in the event that an individual member has committed an anti-doping rule violation.[39] Indeed, the IAAF now has a similar rule, which led to the disqualification of the USA 4×100m relay team when Tyson Gay was sanctioned.[40] However, WADA treats team sports differently. According to art. 11.2 of the WADC:

If more than two members of a team in a Team Sport are found to have committed an anti-doping rule violation during an Event Period, the ruling body of the Event shall impose an appropriate sanction on the team […]”[41]

There is, nevertheless, a general reluctance to punish innocent athletes for the guilt of their cheating teammates.

 

Conclusions

It is notable that the two Awards of CAS – in respect to the IAAF and IPC bans – which aver that they do not take into account the rights of the individual athletes, nevertheless carry out a proportionality balancing exercise in respect of those rights and the sanction imposed.[42] One might be entitled to assume that an appeal by an individual member of the Russian team against the IAAF or IPC decisions would still fail on the grounds that the suspension of the national federation was a proportionate response to the circumstances.

The protection of the individual rights of athletes to compete and the fight against doping and cheating in sport is a delicate and difficult balancing act for WADA and sports’ international governing bodies. The reluctance to punish innocent athletes should be applauded. The decision to ban an entire sporting nation from the biggest sporting event in the four-yearly calendar is an extreme and unusual step, but the McLaren Report is an unusual and extraordinary revelation. In the context of a state-run scheme to falsify doping reports, rendering every Russian athlete’s doping test results unreliable (although not positive), the decision is unsurprising.

Also, despite the protestations of many, the Awards discussed above indicate that CAS plainly consider the respective decisions of the IOC (to avoid a blanket ban but reverse the burden of proof) and the IPC (to suspend the RPC with the effect of banning all Russian para-athletes) to be lawful and proportionate responses to such an egregious and deceitful scheme.

 

[1] Barrister at 1 Crown Office Row, London. He is developing a practice specialising in human rights and public law, alongside clinical negligence and regulatory work. His experience includes cases involving sports law, international conflict of laws and jurisdictional issues, and medical, dental and professional disciplinary hearings. He has also worked on a variety of human rights cases and appeals before the High Court and Supreme Court. E-mail: gideon.barth@1cor.com.

[2] Barrister at 1 Crown Office Row, London, specialises in clinical negligence, regulatory and disciplinary law (especially in the healthcare, veterinary and sports spheres), sports law and serious personal injury (especially sports injuries). He has an even balance of claimant and defendant instructions in damages claims, but principally defends in regulatory hearings. In addition, he sits as a Recorder of the Crown Court. E-mail: richard.booth@1cor.com. Twitter: @DickBoothQC.

[3] CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF, § 7.8.

[4] Ibid, § 7.4.

[5] See, for example, “Former Olympians call for total Rio ban for Russia following doping report”, in: The Guardian, 18 July 2016, avialable at www.theguardian.com/sport/2016/jul/19/former-olympians-call-for-total-rio-ban-for-russia-following-doping-report (accessed on 30 October 2016).

[6] CAS OG 16/12 Ivan Balandin v. FISA & IOC, § 2.8.

[7] Ibid., § 7.17.

[8] Ibid., § 7.20.

[9] Ibid., § 7.24.

[10] CAS OG 16/21 Elena Anyushina & Alexey Korovashkov v. ICF & RCF, § 7.20.

[11] Ibid., § 7.30.

[12] The Fundamental Principles of Olympism, Preamble to the Olympic Charter, in force from 2 August 2016.

[13] “Russia given blanket Paralympic ban amid “medals over morals” criticism”, in: The Guardian, 8 August 2016, available at www.theguardian.com/sport/2016/aug/08/russia-blanket-paralympic-ban-medals-over-morals-rio-2016 (accessed on 30 October 2016).

[14] Akhzana Abdikarimova, Russian para-athlete, “Rio 2016 Paralympics: IPC risks “killing” Russian Para-sport with blanket ban”, in: BBC Sport, 12 August 2016, available at www.bbc.co.uk/sport/disability-sport/37052720 (accessed on 30 October 2016).

[15] Hirst v. United Kingdom (No.2), Case No. 74025/01, 6 October 2005.

[16] Thierry Delvigne v. Commune de Lesparre-Médoc (Case C-650/13).

[17] Ibid., § 46.

[18] Ibid., § 57.

[19] CAS 2016/A/4745 Russian Paralympic Committee (RPC) v. International Paralympic Committee (IPC), § 36.

[20] Ibid., § 74.

[21] Ibid., § 76.

[22] Ibid., § 81.

[23] CAS 2016/A/4745 RPC v. IPC, § 82.

[24] Ibid., § 84.

[25] Ibid., § 98.

[26] Ibid., § 79.

[27] Ibid., § 80.

[28] CAS 2016 2016/A/4684 ROC, Lyukman and 67 Others v. IAAF.

[29] Ibid., § 5.

[30] Ibid., § 129.

[31] Ibid., § 131.i.

[32] Ibid., § 131.iii.

[33] CAS OG 16/24 Darya Klishina v. IAAF.

[34] Ibid., § 7.17.

[35] Ibid., § 7.56.

[36] CAS 2004/A/593 Football Association of Wales (FAW) v. Union des Associations Européennes de Football (UEFA).

[37] CAS 2008/A/1545 Anderson, Clark, Miles-Clark, Edwards, Gaines, Hennagan, Richardson v. IOC.

[38] CAS 2008/A/1545 Anderson, Clark, Miles-Clark, Edwards, Gaines, Hennagan, Richardson v. IOC.

[39] See, for example, International Biathlon Union Anti-Doping Rules, art. 11.1.

[40] See “Why do we sanction innocent athletes?” by Sergey Yurlov [2016] ISLR 61, p.63

[41] World Anti-Doping Code, Article 11.2

[42] See CAS 2016 2016/A/4684 ROC, Lyukman and 67 Others v IAAF, §131.iii and CAS 2016/A/4745 RPC v IPC, §84