The Russians have and have not been banned from the Olympics. This confidence-uninspiring statement is based on the flawed process that has led to the current situation in Pyeongchang: On one hand, there are many Russian athletes competing; on the other, many Russian athlete bans have been both announced and lifted in recent months by a number of international sports organizations: the International Olympic Committee (IOC), the Court of Arbitration for Sport (CAS), the World Anti-Doping Agency (WADA), and the various sport-governing bodies like the International Bobsleigh & Skeleton Federation (IBSF).
Whether one supports or opposes Russian participation in Pyeongchang, it is easy to see that we need a better process for adjudicating doping violations—one of the biggest problems in Olympic sport. Indeed, to call what happened a “process” is an overstatement. Rather, it is an object lesson in how not to ban athletes.
It started with a November 2015 report by WADA’s Independent Commission (IC), which concluded that Russia had engaged in state-sponsored doping at Sochi and elsewhere. The report stated that the director of the WADA-accredited Moscow anti-doping laboratory, Dr. Grigory Rodchenkov, was at the center of this scheme, destroying 1,417 urine samples, extorting money from Russian athletes, and being evasive when interviewed by WADA. On the crucial issue of the destroyed urine samples, the report was not subtle: “The IC finds that Director Rodchenkov’s statements regarding the destruction of the samples are not credible”—that is, the reasons he gave to the IC investigators for why he had destroyed the samples did not comport with his previously acknowledged understanding that the IC had instructed him to not destroy the samples. It further stated that “Rodchenkov remained obstructive throughout the IC investigation.”
Not much attention was paid to this report until 2016, when Rodchenkov was brought out of Russia with the help of a documentary filmmaker, who made an Academy Award–nominated film about Russian sports doping—with Rodchenkov in a starring role—called Icarus. Rodchenkov had turned informant. But here’s the problem with informants: Their version of events tends to be shaped by their audiences. With Rodchenkov the laboratory director now discredited throughout his profession and in his own country, would Rodchenkov the whistle-blower be met with greater lenience?
The filmmaker made Rodchenkov available to The New York Times, which published a lengthy front-page article on Russian state-sponsored doping in May 2016. The article did acknowledge that Rodchenkov’s account “could not be independently verified,” but stated that “it was consistent with the broad findings of a report published last year by the World Anti-Doping Agency.” Therefore, although the Times knew of the earlier WADA report, the Times chose not to mention that report’s assessment of Rodchenkov’s behavior toward the investigators.
The Times article was published less than 90 days before the Rio Olympics, and the IOC (which characterized Rodchenkov’s account as “very detailed and very worrying”) subsequently commissioned a second WADA report to be completed before the games. That report, which was produced in 57 days, centered on Rodchenkov—granting him enhanced credibility—and purported to cover, without Russian cooperation, scores of athletes over multiple years. Based on that report, the IOC banned numerous Russian athletes from competing in Rio, even though there was no or insufficient individual evidence of their guilt.
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That saga led to further bans at Pyeongchang, even though many athletes had been cleared when their individual cases had been considered. Indeed, 95 of the first 96 Rio athletes considered by their respective international sport-governing bodies, to which the IOC delegated this task, were cleared, and, a week before Pyeongchang started, CAS cleared 15 Russian winter-sport athletes. That CAS decision was severely criticized by the president of the IOC, who threatened CAS with restructuring. It was no trivial threat, coming as it did from the president of the organization that created CAS.
Those 15 cleared athletes, however, were still not invited by the IOC to compete in Pyeongchang. That IOC decision was supported by a brief, oral CAS decision issued on the day of the opening ceremonies in Pyeongchang. To date, that is the last decision leading to the confusing situation concerning the Russians competing in Pyeongchang today.
This patchwork scenario, which does not even approximate due process, is an excellent example of how not to ban Russian athletes. The unfortunate thing is that this embarrassment could have easily been avoided by following a few well-known principles of dispute resolution.
First, beware of informants, especially those enabled by a filmmaker. Aside from the obvious ulterior motive of wanting protection, this informant also appears to seek publicity. As recently as February 11, he appeared on 60 Minutes, despite the fact that he is in the US Witness Protection Program.
Second, don’t rush to judgment. The WADA report, prepared in less than 60 days before Rio, was a fool’s errand. The fact that so many athletes were later cleared despite this report speaks volumes about its inadequacy.
Third, create a clear and rational decision-making process. Instead of the IOC, WADA, the CAS, and the sport-governing bodies’ all having a say, limit decision-making to WADA, with review by the CAS. And preserve the independence of CAS—what was in effect the reversal of its decision to clear 15 athletes after being threatened by the IOC president is unseemly at best.
Fourth, do not punish individuals unless there is evidence of their guilt. The mass ban of Russian athletes punished athletes who did not dope and who may well have resisted state-sponsored pressure to do so. It seems obvious to say that evidence is important to any adjudicatory proceeding, but evidence was exactly what was missing in many cases here. No less an authority than the CAS—the highest court for sporting matters—held that there was insufficient evidence to ban 15 Russian athletes. To put it bluntly, those athletes were punished because of the happenstance of where they were born.
Fifth, do not try the case in the press. The May 2016 Times article seemed to have a substantial impact on these events, and subsequent Times articles and WADA reports seem to feed off one another. Rodchenkov’s word is still the foundation of the evidence, and, as he acknowledged on 60 Minutes on February 11, he did not even witness the key event—the alleged tampering with tamper-proof bottles by the Russian security services. It is difficult to get around the facts that Rodchenkov has admitted to cheating and lying and that he is also a main character in a film based on his allegations.
Finally, demonization is not helpful. In this case, the demonization of Russia led to the punishment of innocent people. No doubt it will lead to suspicions going forward between Russia and the international organizations of which it is a part.
The situation will likely impede progress in finding a solution for the significant doping problem in Olympic sport, because all major sporting countries, including Russia, will have to agree on such a solution. This means that we will continue not knowing the true winners of Olympic events until years later, after all the drug testing and retesting and the litigation is complete.
