Russia’s Olympians win case against International Olympic Committee

Two months ago, when the International Olympic Committee decided to suspend the Russian Olympic Committee and to ban Russian athletes from competing in the coming Winter Olympics in PyeongChang in South Korea under their own flag – allowing only a selected few Russian athletes to compete under the Olympic flag and by invitation only – I expressed in an article for RussiaFeed my own total incomprehension at this decision.

I said that the decision seemed to me to make no legal sense since it contradicted the findings of the International Olympic Committee’s own Schmid report, which concluded that there was no evidence of any government organised state sponsored doping scheme in Russia

Schmid – somewhat grudgingly but nonetheless conclusively – admits that there is in fact no evidence of a government organised state sponsored doping conspiracy in Russia

….the independent and impartial evidence do not allow the IOC DC to establish with certitude either who initiated or who headed this scheme.

On many occasions, reference was made on the involvement at the Minister of Sport’s level, but no indication, independent or impartial evidence appeared to corroborate any involvement or knowledge at a higher level of the State.

Elsewhere Schmid admits that the doping scheme in Russia did not involve all Russian athletes – a sure indication by the way that it was not government organised or state sponsored – and that it was different from the doping scheme in the former German Democratic Republic, which of course was both government organised and state sponsored.

Given that this is so, why is former Sports Minister Mutko against whom no evidence of wrongdoing exists being banned from participating in the Olympic Games for the rest of his life?

Why is the Russian Olympic Committee being suspended, when no evidence of the involvement of any of its members in the doping scheme exists?……

The anti-doping systems now put in place in Russia are now universally acknowledged to be just about the best in the world……

Given that this is so and that there is no longer any possibility of Russian athletes engaging in a massive doping conspiracy in the coming Winter Olympic Games in PyeongChang, why is action being taken to prevent them competing on the same basis as everyone else?……

In reality the decision of the International Olympic Committee to ban certain Russians from involvement in the Olympic Movement, to suspend the Russian Olympic Committee, and to allow only specially invited Russian athletes to compete in the Winter Olympics and then only under the Olympic flag, has nothing to do either with sport or doping or the principles of legality.

The sequel was that the Russians – grudgingly and perhaps wrongly – agreed to the International Olympic Committee’s terms so as to permit those Russian athletes who wanted to compete in the PyeongChang Games and could obtain invitations from the International Olympic Committee to do so.

However he situation then went from bad to worse, with the International Olympic Committee banning Russian athletes against whom no evidence of involvement in doping exists or has ever existed.

The decisions moreover were made in secret, with no real explanation of how or why they were being made.

Russian bafflement and anger at these seemingly whimsical and arbitrary decisions was made abundantly clear at a meeting on 31st January 2018 which President Putin held with those Russian athletes who had managed to secure invitations to compete in the PyeongChang Games from the International Olympic Committee.

After apologising to the athletes for the Russian government’s failure to protect them President Putin had this to say

At the same time, while admitting our own failures, mistakes, lack of attention to the things relevant and important in modern sports, we really hope that our colleagues in international sport organisations will do everything to make sure these organisations do not become departments of certain countries’ government bodies, no matter how powerful and influential these countries seem at first glance. We really hope for this kind of attitude towards this matter, towards sports, and rely on their courage.

We realise that modern sport is linked with sponsorship, advertising and everything else that accompanies major international competitions. But if modern international sports and the Olympic movement lose the main element of sport, which unites peoples and countries, all of it will become pointless. In this case the appeal of the founder of the modern Olympic movement, Pierre de Coubertin “O Sport, You are Peace!” will lose its meaning.

We will do everything to prevent this from happening. We will work with international organisations and support, as I said, our athletes who did not make it to the Olympics.

Some things really seem strange to us in this context. As you know, many of them were allegedly banned from the Games for the totality of circumstances not related to doping. What are we fighting against then? Doping or something else? We would like to know what it is.

(bold italics added)

The highlighted words show that the Russians believe that the International Olympic Committee is being pressured by threats to withdraw sponsorship and advertising coming from Western countries, first and foremost the United States.

Other Russian officials have made their anger clear in far less measured terms.  Nikolay Patrushev, the powerful secretary of Russia’s Security Council, has said that if the International Olympic Committee continues on its present course it risks the break-up of the Olympic Movement.  .

I suspect that the Russians privately believe that the true reason why Russian athletes with clean records were being banned was because they were seen as posing an increasingly dangerous threat to the medal hopes of US athletes.

There also seems to have been a secondary desire to humiliate Russia by knocking it off its position at the top of the Sochi Winter Games’ medal table.

The anger in Russia on this issue perhaps explains the current runaway success in Russia of the film ‘Going Vertical’, which tells the story of how the Soviet basketball team beat the US national team at the 1972 Munich Olympic Games.  Reuters has this to say about popular reaction to this film in Russia

After taking more than 2.2 billion roubles ($38.88 million) at the box office in just over three weeks, the film, financed by the state, has become the country’s most successful home grown production in rouble terms, watched by over 9 million people or approximately one in 12 registered voters.

During one packed Moscow showing this week, some audience members broke into spontaneous applause and others wiped tears from their eyes at decisive moments in the narrative.

Regardless, the first legal consequences of the International Olympic Committee’s decisions became evident today when three separate panels of the Lausanne based Court of Arbitration for Sport (CAS) unanimously decided to lift lifetime bans imposed by the International Olympic Committee on 28 Russian athletes against whom no evidence of doping violations exists, and to reduce the time limits of bans imposed on 11 others.

The Russians are hailing these decisions as a breakthrough, and perhaps they are.

However it is testament to the implacable attitudes of some people that the International Olympic Committee is saying that it may defy these CAS decisions, so that the Russians athletes whose bans CAS has lifted may still be prevented from participating in the PyeongChang Games.  In addition the International Olympic Committee is also saying that it is considering appealing the CAS decisions to the Swiss Federal Appeal Court.

That the Olympic Charter apparently says that the International Olympic Committee is bound by CAS’s decisions, and that defiance of those decisions may therefore be contrary to the Olympic Charter, apparently is neither here nor there.

Meanwhile the CAS decisions have provoked a furious reaction from the usual suspects.

An article by Martha Kelner in the Guardian harshly criticises the International Olympic Committee not for acting illegally by banning clean athletes against whom no evidence of doping violations exists, but for not going further by imposing a blanket ban on all Russian athletes, irrespective of whether they are guilty or not

First there was the news that the Russian athletes permitted to compete as neutrals would still be introduced on the start line as being from Russia. Then came the announcement that the Russian flag may appear at the closing ceremony as their national anthem booms around the stadium and into homes around the world. Last week it was revealed that, of a pool of 389 Russian athletes, 169 would be allowed to compete in South Korea.

We should have anticipated this really. By caveating its ban with the provision that Russian athletes who could “prove” they are clean would be allowed to compete in Pyeongchang, the IOC left itself with wriggle room. But the ruling of Cas has exposed a gaping hole that leaves many asking whether the lawyers should have realised the potential for this unravelling – especially as the IOC president, Thomas Bach, is a former Cas lawyer.

The IOC could have followed the blueprint of the International Paralympic Committee, which successfully banned Russian athletes from Rio 2016, or the IAAF, athletics’ world governing body, which did the same. But instead it issued lifetime bans on 45 athletes which history should have told it were unenforceable

In other words the International Olympic Committee should have imposed a collective punishment on Russian athletes by banning all of them regardless of whether they are innocent or not because they are Russians.

Needless to say that is not only completely illegal; it is also grossly discriminatory and morally wrong.

Kelner justifies her call by citing the “overwhelming evidence” of a government organised state sponsored doping conspiracy in Russia, whose existence supposedly has been “proved”.  CAS supposedly made the “wrong” decisions because it ignored the existence of this conspiracy which has been “proved”

A month before Rio 2016 a report authored by the Canadian lawyer Richard McLaren found overwhelming evidence of state-sponsored doping in Russia. So why – more than 18 months later – are we a week away from another Olympic Games wondering yet again how many Russian athletes will be competing?…

There are questions also to be asked of Cas about how it has dealt with these cases. It seems they have been treated like any other anti-doping violation appeal dropped through the Cas letterbox in Lausanne, Switzerland. That is to say each case has been treated individually, ignoring what is proven evidence of a state-run system….

This verdict has given Russia some serious arsenal in the propaganda war and it is already claiming that it proves talk of state-sponsored doping was overblown. For all the posturing, once again the clean athletes are the victims here and their turmoil goes on.

The Schmid report in fact found no evidence – much less “overwhelming evidence” – of a government organised state sponsored doping scheme in Russia, and in evidence given to Schmid Professor McLaren himself in effect admitted that he had no proof that a government organised state sponsored doping scheme had been operating in Russia.

I say this because Professor McLaren admitted to Schmid that he had no proof that Vitaly Mutko – Russia’s Sports Minister, who would have had to have been involved in any government organised state sponsored scheme – had any knowledge of the doping which was going on,

As for Kelner’s suggestion that Russian athletes should be denied the right to prove their innocence, I am quite simply at a loss to know what to say, other than that attitudes to Russians in Britain must be very bad indeed if it has now become so easy to demand that Russians be denied their right to prove their innocence simply because they are Russians.

The Russians for their part are saying that if the International Olympic Committee continues to defy the CAS decisions by preventing Russian athletes whose bans have been lifted from participating in the PyeongChang Games then they will bring legal action against the International Olympic Committee in the Swiss civil courts.

I have no doubt that they will do so, and given the CAS decisions I have no doubt they will win.

As for the appeal to the Swiss Federal Appeal Court that the International Olympic Committee is talking about, I cannot see what possible grounds there are for it, and I am sure if it is ever brought it will fail.

The next couple of days will show what the International Olympic Committee will now do.

Hopefully sense will finally prevail and talk of talk of pointless appeals and further legal action will fade.

If so there may be grounds for hope of a belated return to sanity, and for a line to be drawn under this unhappy affair