Natural Justice Reigns at the Rio Olympics
The opening ceremonies for the Rio Olympics still have not taken place, but we already know that the athletes will not be the only ones testing their stamina. Since its ad hoc division for these games was established on July 26, the Court of Arbitration for Sport has heard 18 appeals — already a record for any one Olympics. While this number is high (and sure to go higher), it is not entirely surprising. Given the pre-Olympic rush to process a massive state-sponsored doping scandal in Russia, there were bound to be several appeals to the ad hoc division. For the most part, these appeals have involved Russian athletes attempting to overturn bans on competing at the games. And for the most part, the appeals have been rejected.
The first sliver of nuance came yesterday, August 4, when a CAS panel partially upheld appeals from two Russian rowers, Anastasia Karabelshikova and Ivan Podshivalov. Both were forbidden from participating in Rio because they had been sanctioned for drug offenses in 2008. Each offense resulted in a 2-year suspension, both of which, obviously, have long since expired. But as part of its July 24, 2016 decree on the Russian doping scandal, the IOC banned all Russian athletes with previous doping violations. Since this included Karabelshikova and Podshivalov, they were banned from the Rio games.
In response, Karabelshikova and Podshivalov took their cases to the ad hoc division, challenging the blanket ban on previous Russian dopers. Getting technical, in its July 24 ruling, the IOC had set forth two conditions that were relevant to Karabelshikova and Podshivalov’s appeals. First, the ruling required the international federations governing each sport to determine whether Russian athletes would be eligible to participate in Rio. The IOC included guidelines for the federations’ decisions, such as applying the World Anti-Doping Code and “taking into account only reliable adequate international tests.” Second, the IOC’s ruling banned, without qualification, any Russian athletes who had served previous doping suspensions. This condition was similar to the “Osaka Rule,” which had banned athletes with positive drug tests from the next Olympics after the positive test, regardless of whether their suspensions had expired. (In 2011, the CAS struck down this rule as it applied a double sanction for the same offense.)
In response to the IOC’s July 24 ruling, FISA, the international federation governing rowing, issued its own set of guidelines for determining the eligibility of Russian athletes. These required the athletes to present three clean tests by independent, WADA-certified labs within the last 18 months. Interestingly, it does not appear that FISA ruled on Karabelshikova or Podshivalov’s eligibility. Rather, since each had previous doping suspensions, they were automatically ineligible based on the IOC’s blanket ban. Nonetheless, Karabelshikova and Podshivalov challenged their bans under both the IOC’s July 24 ruling and FISA’s subsequent guidelines.
Yesterday, the CAS struck down the IOC’s blanket ban. According to the CAS panel, the ban violated “natural justice.” Specifically, natural justice required that the athlete be given the opportunity to rebut the presumption of guilt. In this case, the blanket ban gave the Russian athletes no such opportunity. If you had a previous doping offense, you were banned, end of story. The CAS also addressed whether the ban should be struck for the same reasons as the Osaka Rule — imposition of an additional punishment for the same offense. While the CAS concluded that the ban was also invalid for this reason, it added that the issue was “largely moot” because it had already struck the ban for violating natural justice.
This did not, however, end the inquiry or grant Karabelshikova or Podshivalov a seat in their Olympic boats. After striking the blanket ban, the panel upheld the portion of the IOC’s ruling which charged the international federations with determining Russian athletes’ eligibility. Here, FISA had not determined Karabelshikova or Podshivalov’s eligibility. Since each was ineligible under the blanket ban, there had been no reason to do so. But now, with the blanket ban eliminated, FISA would have to make its own ruling. And that’s where the panel left the matter — FISA will now have to rule on both rowers’ eligibility.
What does this mean going forward? From a practical standpoint, it could increase the international federations’ (and the ad hoc division’s) already bulging workload. The blanket ban took some individual decisions out of the federations’ hands. They will now have to examine these on a case-by-case basis. That said, the relative number of previous dopers who have qualified for the Rio games may be small. So the increase in workload may not be overly burdensome. Outside of that, the effect of the latest decision could be mostly academic. Many Russian athletes will have trouble meeting the specific requirements set forth by their federations. So removing the blanket ban will do them little good. But nonetheless, for some athletes, this presents a ray of hope, the possibility that they will be able to force themselves into the games. In a short time, we will know whether that hope has transitioned into reality.
(Posted earlier today at lawofsport.blogspot.com)