By RONALD KATZ*
(February 2) – The decisions by the Court of Arbitration for Sport clearing 28 Russian athletes and partially clearing 11 others have thrown the Pyeongchang Olympics into chaos less than two weeks before they begin. Previously banned athletes have been cleared by the CAS to compete, but the International Olympic Committee has not yet indicated whether it will allow such competition. It is unfortunate because this problem could have been avoided by following well-known practices in jurisprudence, which are set out below.
1. Time for Deliberation Is Crucial to the Administration of Justice
This process started in May 2016 with an article in the New York Times exposing an alleged state-sponsored doping scheme by Russia. The article in large part depended on the word of an informant, who admittedly was at the centre of this alleged scheme. The informant was enabled by a filmmaker, who ended up making a film on this subject, Icarus, which is nominated for an Academy Award.
Because the article came out approximately two months before the Rio Olympics, the IOC had to decide what, if anything, could be done before that event. The IOC commissioned a report by the World Anti-Doping Agency (WADA), which assigned the report to a Canadian law professor.
To write such a report on years of evidence involving hundreds of athletes in less than two months was an impossible task. Nonetheless, the report, which claimed to establish state-sponsored doping by Russia, had a tremendous impact, resulting in the banning of dozens of individual Russian athletes with no proof of their individual guilt.
Clearly the lesson here is that a rush to justice is not the same as justice. It would have been much better to have given WADA an adequate amount of time to compile this important report, even if the report had come out after the Rio Olympics.
2. Individual Proof of Guilt Is Essential Before Punishment Is Administered
As noted above, dozens of Russian athletes were punished before the Rio Olympics without proof of their individual wrongdoing. Such punishment without proof of guilt violates the norms of any civilized judicial system. What makes this situation even worse is that the punishment was later extended from athletes trying to compete in the Rio Summer Olympics to athletes trying to compete in the Pyeongchang Winter Olympics. Without individual proof of guilt, it is not surprising that, after the IOC banned Russia from competing in Pyeongchang, the IOC allowed approximately 169 “Olympic Athletes from Russia” to compete in Pyeongchang.
Regarding 28 cases in which there was apparently some evidence of guilt, it is not surprising that the CAS has has now cleared those athletes to compete. The CAS is a deliberative body not as easily influenced by the headlines as the more political IOC. The CAS clearance of these athletes is, in fact, a rebuke to the whole process that has led to this chaotic situation.
3. Informants Are Not Necessarily Reliable Sources of Evidence
Informants often, as was the case here, have committed bad acts. In this case the informant admittedly was at the center of the alleged state-sponsored doping, including the alleged destruction of over 1,000 urine samples. Also, like most informants, the informant in this case wanted protection from the authorities to whom he was informing. This informant is now in the witness protection program in the United States.
Improper motivation, of course, does not mean that the evidence offered by an informant is not true. What it does mean, however, is that, more than most evidence, it needs solid independent confirmation. Whether there was such confirmation in this case has been a subject of great debate. The CAS decisions clearing 28 Russian athletes are a clear indication that the independent confirmation of the informant was inadequate. Furthermore, the fact that the informant was enabled by a film maker, who is profiting from this situation with an Academy-Award-nominated film, casts further doubt on the situation.
4. Decision-Making Should Be Straightforward, Not Dispersed
Decision-making about the Russian athletes has been done by a number of organizations in an unsynchronized manner. WADA had made recommendations to the IOC, which has delegated some decision-making to international sporting organizations, all of which is subject to review by the CAS. The results, not surprisingly, have been inconsistent. WADA has been adamant that punishment should occur without regard to guilt, the IOC has allowed some athletes to compete and not others, the international sporting organizations have done the same, and so has the CAS. It would be a much better, more streamlined system if only the IOC made decisions about who could compete, subject to judicial review by the CAS that the IOC decision was supported by substantial evidence on the record.
5. Decision-Making Should Be Transparent
Not only did WADA depend on an informant, but also its reports contain evidence from anonymous witnesses. Recently when the IOC authorized over 150 Russian athletes to compete in Pyeongchang, it did so based on testing that was not described in such a way that it could be confirmed. Such opaque decision-making on subjects of intense international interest simply does not and cannot inspire the confidence that is necessary for any judicial system to operate.
6. Cases Should Not Be Tried in the Press
The New York Times did not distinguish itself with its coverage of this matter. Its lengthy front-page article that started this series of events was based almost completely on the word of the informant. It cast little doubt on him even though an earlier WADA report had questioned his credibility, a fact not mentioned in the Times article. The continuing coverage seemed to present Russian state-sponsored doping as a fact rather than to seriously explore whether there was proof that individual athletes had actually violated doping rules. Given the Times’ preeminent position in the press, there can be little doubt that its coverage played a part in this rush to injustice.
The sad thing about the lessons above is that they are all obvious and well-established norms of jurisprudence. Hopefully they will be followed in the future.
*Ronald S. Katz is of counsel at GCA Law Partners LLP in Mountain View, California. He recently co-authored the book Sport, Ethics and Leadership, which was published by Routledge. In 2016, he was a Distinguished Careers Institute Fellow at Stanford University. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.