The 2018 Winter Olympics will begin on February 9, 2018 in Pyeongchang, South Korea. Notably absent from the opening ceremony will be the Russian flag. Instead, athletes from Russia will be participating as neutrals identified as “Olympic Athletes from Russia” – when they enter, they will be wearing uniforms without the Russian flag. When they win medals, the Olympic flag and anthem, not Russia’s, will be played.
Russia’s state-sponsored doping program became known to the world after a documentary broadcast by a German television channel. The World Anti-Doping Agency (WADA) commissioned an independent investigation, which uncovered an elaborate system designed to fool international anti-doping observers. Athletes were supplied with steroid-laced cocktails from the Russian government; instructed to keep “clean” urine samples in the freezer; and during the 2014 Sochi Olympics, those samples were switched with the tainted urine samples inside a Sochi laboratory by the Russian secret police so that the athletes would not test positive for drugs. The International Olympic Committee (IOC) conducted its own investigation, and affirmed the findings in the WADA reports.
In December 2017, the IOC announced that Russia will not be able to participate in the 2018 Pyeongchang Winter Olympics. The penalties were without precedent in Olympic history.
While the scale of the penalties is unprecedented, the state-sponsored doping model itself is, unfortunately, not new. Before Russia, the most notorious case of state-sponsored doping was East Germany’s “State Planning Theme 14.25,” where coaches and officials gave testosterone and steroid pills to more than 10,000 athletes under the guise of “vitamins.” The program was exposed only after the fall of the Berlin Wall in 1989. As many as 2,000 former East German athletes suffered from resulting health problems, and coaches and officials, the German Olympic Committee, and the pharmaceutical company that created the drug were convicted or agreed to a settlement outside of court.
The main international legal framework governing the regulation of doping in sports is the WADA Code, which was created with the purpose of “advanc[ing] the anti-doping effort through universal harmonization of core anti-doping elements.” While the WADA Code has no direct authority by itself, international federations that are recognized by the IOC are bound to adopt rules against doping that are in compliance with the WADA Code, which in turn is binding on national federations, athletes and athlete support personnel of that sport. In addition, national governments are bound by the WADA Code by signing and ratifying, accepting, approving or acceding to the International Convention Against Doping in Sport (UNESCO Convention). However, notably, the WADA Code does not address the issue of systematic state-sponsored doping.
Under the WADA Code, WADA has the right of appeal for doping cases to the Court of Arbitration for Sport (CAS). CAS is an independent organization from the IOC, but it is de facto the organization that has the primary enforcement role in the IOC’s efforts to control doping in sports. Approximately 30% of the cases heard at CAS are related to doping violations.[i] Awards rendered by CAS are final and binding upon the parties.[ii]
The Russian government as well as individual athletes can try to appeal the IOC’s decision at CAS. The Russian government is unlikely to succeed, but athletes may have a chance at successfully appealing lifelong bans imposed by the IOC.
If the Russian government does appeal the IOC’s decision to CAS, it is unlikely to succeed. Rule 61 of the Olympic Charter stipulates that while “the decisions of the IOC are final,” CAS has exclusive jurisdiction over a dispute “arising on the occasion of, or in connection with, the Olympic Games.” The standard of review on cases regarding the merits of athlete eligibility decisions by the IOC is de novo review; however, it appears that in practice, CAS applies “no more than a deferential arbitrary and capricious standard of review.”[iii]
Russia could argue that the accusations outlined in the IOC report are untrue, as it has already done. It could question the credibility of the whistleblowers who provided information for the IOC report. However, the IOC’s decision was preceded by substantial and extensive investigations conducted over the course of several months. In addition, arbitration procedures are not as restricted by the rules of evidence as are, for example, U.S. courts. Therefore, it is unlikely that CAS will grant Russia’s petition based on those arguments.
Russia could also argue that the IOC’s punishment is unprecedented and grossly excessive. However, while it is the first time that a country has been banned from the Olympics due to doping violations, it is not unprecedented for the IOC to ban a country from participating in the Olympics. After World War I and II, aggressor nations including Germany were banned from the Olympics. South Africa was banned from the Olympics from 1964 to 1988 because of its apartheid regime. Afghanistan was banned from the 2000 Sydney Olympics on basis of the discrimination against women under the Taliban regime.
Another option is for individual athletes to appeal to CAS. This is an option that has already been undertaken by some Russian athletes, who have appealed the IOC’s decision banning them for life on doping abuse allegations linked to the 2014 Sochi Olympics. Unlike the government, individual athletes may have a chance of overturning the IOC’s decision on the lifetime ban, although maybe not the ban from participating in the Pyeongchang Olympics. A lifetime ban is contrary to prior CAS cases, which ruled that the Osaka Rule, a rule barring athletes from competing in subsequent Olympics after serving a doping ban, was illegal because it amounted to double jeopardy. While CAS is not bound by precedent, the decision was upheld in several subsequent cases. Athletes currently face a four-year ban upon testing positive for doping, but after the four-year mark, they are eligible to compete in international sporting events. According to CAS’s logic, a lifetime ban would amount to double jeopardy because it imposes an additional ban after the four-year prohibition. However, CAS has upheld a lifetime ban levied on a Russian doctor who provided illicit drugs to Russian athletes, as well as former top track-and-field officials who received bribes to allow Russian athletes to compete.
Russia’s elaborate state-run doping program was a systematic act of corruption that was an egregious violation of the spirit of “friendship, solidarity, and fair play” that is at the heart of the Olympic Charter. It is only appropriate that Russia is given an appropriate punishment so that other states will be deterred from pursuing similar programs in the future, and banning Russia from the 2018 Pyeongchang Winter Olympics was a step in the right direction.
[i] Louise Reilly, An Introduction to the Court of Arbitration for Sport (CAS) & the Role of National Courts in International Sports Disputes, 2012 J. Disp. Resol. 63, 70 (2012).
[ii] Andrew Goldstone, Obstruction of Justice: The Arbitration Process for Anti-Doping Violations During the Olympic Games, 7 Cardozo J. Conflict Resol. 361, 367 (2006).
[iii] Handbook on International Sports Law 235 (James A.R. Nafziger & Stephen F. Ross eds., 2011).
Jeenie Jee Heun Kahng is a second-year J.D. student at Columbia Law School. She holds a B.A. in Political Science and International Relations from Korea University.