Frosty reception to lifting of Winter Olympics drug bans
by James Severn & Alex Brooks
A little more than a week prior to the start of the 2018 Winter Olympic Games in Pyeongchang, the Court of Arbitration for Sport (“CAS”) has given its ruling in relation to 39 of 42 Russian athletes that appealed their life bans for doping at the 2014 Winter Olympic Games in Sochi. The CAS has ruled that the life bans should be overturned completely in the cases of 28 Russian athletes, clearing the path for them to potentially compete in South Korea this month. The other 11 athletes whose bans were being examined by the CAS have been partially upheld, to the extent that they are banned from the Pyeongchang Games, but they may compete at future Olympic Games from 2022 onwards.
Following the 2014 Winter Olympic Games in Sochi, some 43 Russian athletes were banned from the Olympic Games for life by the International Olympic Committee (“IOC”). This followed in the wake of the findings of the McLaren report and Oswald Commission into allegations of state-sponsored Russian doping at, and in the lead-up to, the Games in Sochi.
All of the athletes that received life bans from the IOC, following the Sochi Games, had their results from those Games annulled and their fellow competitors were promoted up the results table. In some cases, this resulted in athletes being promoted into medal-winning positions, including Team GB’s four-man bobsleigh team, whose promotion from fifth place at Sochi to third is now confirmed, as a result of CAS’s approval of the bans handed down to two Russian bobsleigh teams that finished first and fourth in Sochi. In contrast, the 28 Russian athletes whose bans have been overturned will have their results achieved in Sochi reinstated.
In the cases of the 28 athletes whose life bans have been overturned, the CAS found that insufficient evidence had been adduced by the IOC as to establish that any anti-doping rule violation (“ADRV”) had been committed by each of those athletes. As to the 11 athletes who remain banned from competing in Pyeongchang, but who may be permitted to compete in the future, the CAS found that ADRV’s were borne out by the evidence collected, but they nonetheless reduced the bans from life to just one edition of the Winter Olympic Games (i.e. Pyeongchang 2018).
Commentators and the IOC have reacted to the CAS’s ruling with dismay, suggesting that the decision “may have a serious impact on the future fight against doping” and that, in the words of the lawyer for former head of the Moscow anti-doping laboratory Dr Grigory Rodchenkov, “the CAS decision only emboldens cheaters, makes it harder for clean athletes to win, and provides yet another ill-gotten gain for the corrupt Russian doping system”.
The President of the Russian Olympic Committee, Alexander Zhukov, welcomed the CAS’s decision as “fair”; however, the IOC may yet have another bitter fight with Russia on its hands as it stated that “the CAS decision does not mean that athletes from the group of 28 will be invited to the Games, not being sanctioned does not automatically confer the privilege of an invitation.”
We can be sure that this is far from the end of the story in the fascinating and concerning saga of anti-doping at the Olympic Games. What is perhaps of greater interest in the long term is that the CAS’s ruling against the IOC’s decisions in relation to the majority of the athletes in this case demonstrates a clear division between the CAS and the IOC, which had been questioned previously.
The fact that the CAS was first established in 1984 as an arm of the IOC has led to allegations of bias being levelled against it. Many commentators were sceptical as to the robustness of CAS as a tool for challenging decisions made by the IOC, due to the Court’s inherent connection with the body that founded it, and a number of CAS decisions have been appealed on the grounds of precisely this scepticism.
In this regard, the 1992 appeal to the Federal Supreme Court of Switzerland in the case of Gundel v. La Fédération Equestre Internationale (in which the CAS’s impartiality was challenged) found that, whilst the CAS was a true, independent court of arbitration, there nonetheless existed close ties between the CAS and the IOC (including the fact that the CAS was, at the time, financed almost exclusively by the IOC) and the CAS should be made more independent of the IOC, both organisationally and financially. As a result, there remained lingering questions as to whether the CAS truly represented a valid and effective means of redress against IOC decisions that athletes or governing bodies considered to be wrong or unfair.
Since the decision in Gundel, the CAS has undergone extensive reform such as to effect and demonstrate greater independence from the IOC and there have been a number of further appeals to the Swiss Federal Tribunal against CAS rulings, in which the Swiss Federal Tribunal has found that the CAS is not “the vassal of the IOC” and is sufficiently independent of the IOC and, indeed, of all other parties that call upon its services.
Cases such as today’s ruling, in which the CAS has undoubtedly set itself against the IOC’s decisions, should go a long way towards easing any remaining scepticism that may be held as to the CAS’s judicial independence from the IOC.