For just over two years, orchestrated revelations and allegations of Russian doping have been grabbing the headlines. An international media campaign is in full swing, attempting to question the participation of Russian athletes in international competitions such as the current 2018 Winter Olympics. Canadian individuals such as Dick Pound, a longtime IOC executive, and law professor Richard McLaren, agencies such as the Canadian Olympic Committee and the CBC and sports media are playing a prominent role in the US-inspired offensive which aims to isolate Russia, dehumanize its athletes and monopolize international sport. The claiming of a moral and ethical high ground is self-righteous indeed, coming from a country where “tanking” by its professional hockey and basketball teams – the deliberate losing of games in order to claim a high draft position – is presented as a norm. For the information of readers, we are printing a 2017 commentary by US sports attorney and scholar RON KATZ* in Forbes that disputes the evidence produced by the learned professor and the process.
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The Russian Sports Minister recently claimed that the so-called McLaren report, which provided the basis for the banning of Russian athletes from the Olympics and Paralympics, would not stand up to legal criticism. Using as an example the U.S. legal system, in which I have worked for 45 years, I agree. The McLaren report, formally called The Independent Person Report (IPR), lacks the basic due process required in the U.S. Court system.
First, any dispute resolution proceeding requires neutrality. Indeed, the IPR designates its author, Richard McLaren, who is a Canadian law professor and a practicing lawyer, as the Independent Person (IP) selected to write this report.
But the report also states that Professor McLaren “was previously a member of WADA’s three-person Independent Commission…which exposed widespread doping in Russian Athletics.” It is therefore not surprising that Professor McLaren ended up agreeing with himself. In order to insure fairness and credibility, the Independent Person, in my opinion, should have been someone previously unassociated with this issue. Further undermining the report, the President of WADA, who is pictured above and to whom the IPR was addressed, has acknowledged that WADA is “broken.”
A second way to insure fairness and credibility is to require – as the U.S. Constitution does – that an accused has the right to confront the witnesses against him. In the IPR, evidence is cited from witnesses who are not even identified: “There were…witnesses who came forward on a confidential basis. They were important to the work of the IP…I have promised not to name these individuals.” It is obviously impossible for Russia to defend itself against unnamed accusers.
Professor McLaren also finds the main accuser of Russia to be credible. That accuser, however, is an informant, who may have agendas other than the truth. The only way that those other agendas can be revealed is through cross-examination – an essential component of due process in U.S. courts – but neither Russia nor anyone else has had the opportunity to cross-examine this informant, despite the statement of the IP that “I am aware that there are allegations against him made by various persons and institutional representatives.”
The only thing that is positively known about this informant is that, by his own admission, he participated in the alleged wrongdoing. That is certainly not a guarantee of truth-telling.
A third requirement of due process is that all evidence be considered. The IPR did not do that, saying that it has “only skimmed the surface of the extensive data available.” Furthermore, according to the IPR, “The IP did not seek to interview persons living within the Russian Federation. This includes government officials.” Again, this picking and choosing undermines the fairness and credibility of the IPR.
Not even attempting to interview Russian officials is fundamentally unfair. If those officials refused to be interviewed, that could have been noted in the IPR.
Due process is not an empty phrase. Without it, there cannot be justice. Surely it should be required before a major sporting nation’s athletes are banned from the Olympics and Paralympics.
The damage is not just academic. Aside from the possibility that innocent athletes may have been punished, there may well be disruption in international athletics similar to 1980 when the U.S. did not participate in the Olympics and 1984 when the Soviet Union did not participate. If that is the case, it will be a loss for all athletes and their fans.
*Ron Katz is Senior Counsel in the Entertainment, Sports & Media Litigation Practice Group at Manatt, Phelps & Phillips, LLP, and has taught sports law at Santa Clara University Law School, where he chaired the Institute of Sports Law and Ethics. He has represented numerous athletes and sports organizations. He speaks often on sports-related topics, including presentations to the Knight Commission on Intercollegiate Athletics on amateurism and to the California Judges Association on concussions. He is a 2016 Distinguished Careers Institute Fellow at Stanford University.