Saturday 25 February 2017

The IOC has power to suspend a country - and it should

Daniel Saoul

Richard McLaren at a news conference to present his findings into allegations of a state-backed doping conspiracy involving the 2014 Winter Olympics in Sochi, Russia Photo: Frank Gunn/The Canadian Press via AP
Richard McLaren at a news conference to present his findings into allegations of a state-backed doping conspiracy involving the 2014 Winter Olympics in Sochi, Russia Photo: Frank Gunn/The Canadian Press via AP

The ugly and comprehensive nature of doping - in Russia at least - has been exposed in the past nine months. It began in November with the World Anti-Doping Agency's Independent Commission Report, which recommended the Russian Athletics Federation (Araf) be banned from international events.

Yesterday's report by Professor Richard McLaren shows that we are not just talking about orchestrated doping within a single sport. Instead, elite Russian sportspeople are implicated across all disciplines. Most of all, the Russian state itself is in the dock.

From a legal perspective we have been awaiting the final ruling over the IAAF's unprecedented decision earlier this year to implement Wada's recommendation and ban Araf from international events.

Having subsequently failed to persuade the IAAF that it had turned a corner, Araf remains banned from the Rio Olympics. This week the Court of Arbitration for Sport in Lausanne will hear Araf's appeal against that ban. After this report there are calls not for that ban to be reduced but for it to be extended to all sports.

The legal basis for such a ban is slim, but crucially it is not non-existent. Both the Russian Anti-Doping Agency (Rusada) and Russia itself were deemed to be non-compliant with the Wada Code in the November 2015 report. However, it is the Russian Olympic Committee that selects the team for the Olympic Games.

Like Rusada, the Russian Olympic Committee is (notionally at least) a signatory to the Wada Code: if it or the Russian state is found to be non-compliant, it can, under the code itself, be subject to "consequences", including under the Olympic Charter.

Rule 43 of the charter states that "the World Anti-Doping Code is mandatory for the whole Olympic Movement". Thus any breach of the World Anti-Doping Code is a breach of the Olympic Charter.

If the Olympic Charter is found to be violated, Rule 59 makes clear that guilty parties, which can include national Olympic committees such as the Russian Olympic Committee, can be suspended. The legislative framework, in theory, would permit a country to be banned from the Olympics by suspending its national Olympic committee.

However, this would require treating the Russian Olympic Committee and the Russian state as one and the same. Many might think this a natural and legitimate step, but in strict legal terms this is a gap that must be bridged with evidence rather than assumption.

Historically, the IOC has always been extremely reluctant to invoke the 'nuclear' option. But the growing view of the sporting community is that the IOC's reluctance to exercise the Draconian power of exclusion from the Olympic Games sends too permissive a message.

The reputation of the Olympic movement as a whole is now at stake. The IOC can legally prevent a country from competing in the Olympics. It would surprise - and indeed appal many - if the IOC does not do exactly that.

Daniel Saoul is a leading British sports and media law barrister

Irish Independent

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