Russian doping penalties prove problematic
Deciding punishment will be lengthy process
In announcing the final revealing details of Russia’s state-sponsored doping in a report this month, Canadian lawyer Richard McLaren was clear on his mandate — investigating Russian doping but not adjudicating it.
The Herculean task of doing that falls to the international federations, which could spend months — if not years — pursuing anti-doping rule violations against the hundreds of athletes involved in the Russian statesponsored system.
As those federations pursue individual cases, calls remain for a larger sanction for Russia.
“I think what will be a problem is individual cases with individuals pleading, ‘I was forced to do it,’ or, ‘I didn’t know how it was done,’ ” said Dionne Koller, director of the Center for Sport and the Law at the University of Baltimore. “If you can’t take action against the system itself, how do you really get any kind of justice?”
McLaren’s investigation,
which was the second commissioned by the World Anti-Doping Agency, revealed a system that reached to the highest levels of Russian sport and government, involved more than 1,000 athletes and subverted anti-doping processes over four years and two Olympics.
His report detailed tampering with samples to swap out dirty urine for clean urine.
McLaren could identify 695 Russian athletes and 19 foreign athletes who were part of manipulations to cover up positive tests, of which 246 “can be identified as potentially knowingly participating in manipulation.”
The report contained evidence in email documents, DNA and other forensic testing of samples as well as evidence of tampering with the sample bottles.
Through WADA, the information McLaren uncovered will be shared with the international federations.
McLaren compared the evidence for individual athletes to strands in a cable, saying each agency responsible for results management would have to determine whether they were sufficient to support an anti-doping rule violation.
Paul Greene, a sports lawyer who handles anti-doping matters around the world, said he expects the federations to pursue cases in which an athlete tested positive for a banned substance first because those are the easiest.
Already, the International Olympic Committee has uncovered 101 positive tests from retesting of samples collected during the 2008 and 2012 Olympics. Of the sanctions the IOC has announced, 27 were of Russian athletes. Friday, the IOC announced it had opened disciplinary proceedings against 28 Russian athletes whose samples were likely tampered with in Sochi.
ATHLETE RESPONSIBILITY
Cases with a non-analytical finding — which might rely on evidence from witnesses, emails, forensic testing or sample tampering, for instance — can be more difficult to prove.
McLaren’s report highlights sections of the world anti-doping code which might apply, including use or attempted use of a prohibited substance, tampering or complicity.
“It is unknown whether athletes knowingly or unknowingly participated in the process involved,” McLaren wrote. “However they may be part of the conspiracy. Whether the conduct of athletes who knowingly participated in the Russian doping and doping coverup program is described as ‘complicity’ or ‘conspiracy,’ either way it constitutes an anti-doping rule violation.”
While athletes have strict liability for what’s in their bodies under the code, the facts of tam- pering by the Russian system could lead to arguments that athletes weren’t responsible for what others did with their samples.
“There are a lot of issues that are evidentiary issues that are going to play out in these cases,” Greene said, “and it’s not going to be so cut and dry that every case is a steamroll.”
Olivier Niggli, WADA’s director general, said some cases might be brought on circumstantial evidence but said each would be evaluated on its own merits. An international federation might not have enough to make a case if an athlete is merely mentioned in an email, but Niggli expects many tampering cases to go forward.
McLaren’s report found that athletes banked clean urine to be swapped out during competitions in Russia and that some provided the number on their sample to Russian lab officials so their dirty urine could be swapped out.
“I think you start having a number of pieces of evidence that, put together, creates a compelling picture,” Niggli said. “I would think that (with) the Sochi samples, it’ll be relatively difficult for the athletes to say, ‘I’m sorry. I knew nothing about it. They changed the urine. I had no idea why I had provided clean urine earlier in the season.’ ”
An athlete might be found to have an anti-doping rule violation for tampering but get relief from sanctions because of tampering by others, said Joseph de Pencier, CEO of the Institute of National Anti-Doping Organizations.
“Whether the athletes are innocent or not, they’re going to bear the strict liability for that happening,” he said.
“Of course, that’s one of the great potential tragedies is that whoever did these nefarious actions maybe they get away, but the athletes whose samples were tampered with aren’t going to be so lucky.”
IN IT FOR THE LONG HAUL
As more has been revealed through investigations over the last two years, the Russian scandal exposed a hole in the antidoping code for addressing a state-run system. Violations and sanctions are clearly defined against individuals, but the code and Olympic Charter do not outline sanctions against a system such as the one that Russia was found to have run.
Leaders from 17 national antidoping agencies in August made recommendations that included the adoption of clear sanctions for large-scale subversion of the anti-doping system, but those recommendations have not yet been adopted by WADA or the IOC.
The calls for an Olympic ban that echoed loudly before Rio have quieted, even as some suggest one would be appropriate for the 2018 Pyeongchang Olympics.
“I think the option should be on the table,” Koller said. “I think the McLaren report is very damning, and I think the evidence is substantial and clear, but I don’t think they’re going to take it.”
IOC President Thomas Bach said he favored lifetime Olympic bans for athletes or officials found to have been part of the “manipulation system.”
Athletes acknowledge the findings of the previous reports that their Russian peers were effectively forced into the system or risk losing support. For that reason, and the clean athletes who might be harmed, some cannot support a broader ban.
“I don’t blame the athletes necessarily for this,” U.S. bobsledder Elana Meyers Taylor said.
“There might have been some who were doping on their own and they believed that was the best thing for them, but I also really strongly believe (it) wasn’t a whole bunch of athletes got together and decided they wanted to be faster. …
“The country needs to be punished, for sure, but I don’t know if limiting the rights of the athletes is the best situation.”
In its effort to balance collective responsibility with individual justice before Rio, the IOC opted not to ban Russia but left the decisions to the international federations to determine whether Russian athletes met the IOC’s criteria to demonstrate their anti-doping history.
By that point, the International Association of Athletics Federation had banned Russia entirely after the first WAD Acommissioned report found widespread doping in the sport. The International Weightlifting Federation banned Russia under its rules regarding anti-doping rules violations in a country.
And the International Paralympic Committee banned Russia entirely.
The same concerns about consistency across federations remain as they face obstacles of disparate financial resources, anti-doping expertise and competency in this area, to say nothing of the politics and potential conflicts of interest.
“Why push that off to each of the international federations to come up with their own solution and their own way to address it when we have these central bodies like the IOC and WADA that can address it literally at the global level and come up with a way forward for all of us?” said Max Cobb, CEO of US Biathlon.
“I think the international federations would be thrilled if the IOC would do that and if WADA would do that, but for now it seems that we’re on our own to figure it out.”
Greene and de Pencier said they had heard discussions of the Court of Arbitration for Sport serving as a first-level hearing body, with potential appeals being heard before a different CAS panel.
WADA spokeswoman Maggie Durand said it would be up to each federation to determine whether to bring cases before its own hearing panel “or any other disciplinary body.” CAS did not respond to emailed questions from USA TODAY Sports.
Regardless of who hears the cases, WADA has the ability to challenge them and typically does so when a sanction appears to be too lenient.
Already, international federations face a challenge in assessing the evidence and bringing cases. Factor in the potential number of cases involved and the appeals process, and the Russian doping scandal could drag on through 2018.
Said de Pencier, “I think we’re still in this for the long haul yet.”
“There are ... evidentiary issues ... in these cases. It’s not going to be so cut and dry that every case is a steamroll.” Sports lawyer Paul Greene