IOC’s decision to ban the Russian flag has no locus standi by any standard !

The IOC’s decision to ban the Russian flag and anthem from the Winter Olympics is grossly discriminatory and makes no legal or moral sense

by Alexander Mercouris (cross-posted with Russia Feed by special agreement with the author)

In the first half of 2016, shortly before the Summer Olympic Games in Rio de Janeiro, Professor Richard McLaren at the request of WADA published his preliminary report on sports doping in Russia.

No one – least of all the Russian authorities – disputed that there had been a significant problem with doping in Russia.  The Russian authorities moreover singled out the person who they said was the prime suspect – Dr. Grigory Rodchenkov – the head of RUSADA, Russia’s principal WADA affiliated anti-doping laboratory.

Rodchenkov had come under suspicion of involvement in doping before.  Though he had previously been cleared of involvement in doping, after the Winter Olympics in 2014 in Sochi in Russia he fell under suspicion again.  He fled abroad to the United States, where he is now the subject of a witness protection programme.

Though Rodchenkov’s deep involvement in the doping which had taken place in Russian sport was universally accepted, Professor McLaren nonetheless made him his star witness.

On Rodchenkov’s evidence and without first consulting with the Russian authorities McLaren declared that the doping amongst Russian athletes which had taken place during the Sochi Olympics was the result of a massive state sponsored conspiracy organised by the Russian government and carried out by Rodchenkov in collaboration with the FSB.  McLaren moreover said that this had been proved “beyond reasonable doubt”.

To that end, reversing the burden of proof, McLaren campaigned for all Russian athletes to be prevented from participating in the Rio Olympics irrespective of whether there was actual evidence against them of doping or not.

In the event, though several sports federations including crucially the International Association of Athletics Federations (“IAAF”) did prevent Russian athletes affiliated to them from participating in the Rio Olympics, the International Olympic Committee refused to impose a blanket ban.

The International Paralympic Committee on the strength of McLaren’s report however did so, preventing Russian paralympic athletes from participating in the Paralympic Games in Rio.

A few months later, after the Rio Olympics were over, Professor McLaren published the complete version of his report.

This broke no new ground and made the same allegations that his preliminary report had made before.

The International Olympic Committee on the eve of the Winter Olympics in PyeongChang has now gone a step further.

It has banned Russian athletes from competing in the Winter Olympics under their own flag, is preventing them from participating in the Opening Ceremony, and has prohibited the playing of the Russian national anthem if they win gold medals.

Instead selected Russian athletes may attend the Winter Olympics but only if invited by the International Olympic Committee to do so, and can only compete as ‘athletes from Russia’ under the Olympic flag.

In addition a number of Russian sports officials including the former Minister of Sport Vitaly Mutko are banned for life from any involvement in the Olympic Games, whilst the Russian Olympic Committee – one of the founder Committees of the Olympic Movement – has had its membership suspended.

What are the grounds for this extraordinary set of decisions?  I ask this question because from a legal and sports point of view I do not understand them.

As I have always understood it, the Olympic Movement seeks to be inclusive and non-discriminatory.  Whilst it is obviously right and proper to ban athletes from participating in the Olympic Games if they have been found guilty of drugs taking, surely if they have not been found guilty of drugs taking they should compete in the Games under their own flag on the same terms as everyone else?

If the Russian Olympic Committee is to be suspended surely that should be because its members have been found guilty of something?

If Russian government officials like Vitaly Mutko are to be banned from the Olympic Movement for life, then that too should be because they have been found to be guilty of something?

I ask these questions because the decision of the International Olympic Committee purports to be based on an independent investigation of the claims made by Professor McLaren in his two reports carried out by former Swiss President and Federal Council member Samuel Schmid.

Schmid’s report however not only fails to support the allegations of a gigantic government organised doping conspiracy in Russia, but it actually confirms that there is no evidence of such a conspiracy in Russia.  Moreover it also confirms that there is no evidence of any wrongdoing either by the Russian Olympic Committee or by a number of the people who have been banned.

Schmid’s report can be read here.

It turns out that the entirety of the evidence relied upon by Professor McLaren to support his claim of a gigantic government organised doping conspiracy in Russia is apart from Rodchenkov’s unsupported testimony a number of emails which passed between Rodchenkov and his co-conspirators and which were provided to Professor McLaren by Rodchenkov himself.

The problem is that the emails do not show the involvement of any senior government officials in the doping conspiracy.

Not a single email originates from a senior government official.  One official of the Sports Ministry – Vice-Minister Yury Nagornykh – was copied into some of the emails, though Schmid admits that he himself wrote none of them.

Schmid concludes that the fact Nagornykh was copied into some of the emails means that he “must have known” about Rodchenkov’s scheme.

Since however Schmid does not provide copies of the emails and hints that he may not have even read some of them, it is impossible to accept this claim with any confidence

In all these email exchanges produced, many names in the address bar (from, to and cc) have been blacked out by the IP in order to protect the confidentiality of these persons.  For this reason, Professor Richard McLaren was unable to share with the IOC DC the original messages.  As a consequence, the IOC DC is not able to confirm who was really aware of the information exchanged in the various emails.

(bold italics added)

It is quite clear from these words that none of the individuals who have now been penalised on the strength of the emails have been shown them either.

In other words they have been condemned on the strength of evidence they were not shown and which they were not therefore in a position to comment on or refute.

That is a shocking offence against due process, and I am astonished that it is happening and no-one is complaining about it.

One person who even McLaren now admits was not part of the email chain – and against whom no evidence of involvement in the doping scheme therefore exists – is Russia’s former Sports Minister Vitaly Mutko.

Here is what Schmid has to say about him

In one exchange of emails between Dr. Grigory Rodchenkov and Mr. Alexey Velikodniy regarding a footballer, Mr. Velikodniy mentioned that “the decision is with VL for consideration and approval”.  This single reference could not be considered as sufficient to demonstrate the personal involvement of the then Minister of Sport.

(bold italics added)

Even McLaren himself now admits (though very grudgingly) that there is no evidence against Mutko.  His whole case against Mutko it turns out is based entirely on a guess

Your question about Mr. Mutko was: did he know?  information is provided to the ministry and like any hierarchical organisation it flows upwards in the organisational structure.  So I would think that the information came to him through the ministry.  But it was the deputy minister (Nagornykh – AM) who was in charge of the process I described.  I don’t have any direct evidence as to whether he knew or didn’t know.  I have met with him, I have discussed the matter with him, he didn’t indicate that he knew.

(bold italics added)

Not only is McLaren’s case against Mutko based entirely on a guess, but it is a guess which is completely unwarranted.

Given that Rodchenkov and his associates were engaging in a criminal conspiracy would the information about it really flow effortlessly up the organisational structure of the ministry until it reached Mutko himself?  The only circumstance where that would happen would be if Mutko and the entire staff of the ministry were also part of the conspiracy.  That obviously is what McLaren believes, but of which he admits he has no evidence.

The fact that McLaren believes such a thing without having any evidence for it incidentally exposes the extent of his bias.  It also shows why his entire theory is not just unwarranted but almost certainly wrong.

Most of the rest of the Schmid report is concerned with the evidence of the existence of extensive and organised doping before and during the Sochi Olympics in Russia.  Since no one least of all the Russian authorities deny that this took place, it is not obvious why this information has been provided in such detail.

What however of the individual at the centre of this scandal – RUSADA’s doping mastermind and McLaren’s key witness Dr. Rodchenkov – what does Schmid have to say about him?

It turns out that Rodchenkov not only was instrumental in carrying out the doping but that he did at least some of it for money

One of the major actors identified was Dr. Grigory Rodchenkov, director of the Moscow Laboratory; he was at the heart of the doping activities and of the positive drugs test cover-up; he had direct access within the Ministry of Sport to request funds for the laboratory equipment.  The Report showed that in his position he was not only accepting but also requesting money in order to execute the concealment of positive tests of Russian athletics athletes.  Furthermore, he admitted during an interview to have intentionally destroyed 1,417 samples at the end of 2014 in order to limit the extent of the WADA’s audit, of which he was previously informed by WADA.

(bold italics added)

In other words Rodchenkov was not just a cheat but was corrupt as well.

Elsewhere Schmid discusses how Rodchenkov insinuated himself into the international anti-doping system

Within the evolution of the system, the analysis of the evidence as well as the movie Icarus, shows that Dr. Grigory Rodchenkov played a key role.  Due to his scientific abilities he was able to set-up detection methods to improve the fight against doping, to publish scientific articles and participate to experts’ observatory programmes, winning so a great international credibility.  This enabled him on one hand, as an anti-doping expert, to gain access to the international expertise and strategy, in particular, during the Olympic Games London 2012, which helped him to contribute to the development of the specific system to be operational during the Olympic Winter Games Sochi 2014.

Yet this is the corrupt and scheming individual whose largely uncorroborated claims of a government organised state sponsored doping conspiracy McLaren accepts as true.

Schmid – somewhat grudgingly but nonetheless conclusively – admits that there is in fact no evidence of a government organised state sponsored doping conspiracy in Russia

….the independent and impartial evidence do not allow the IOC DC to establish with certitude either who initiated or who headed this scheme.

On many occasions, reference was made on the involvement at the Minister of Sport’s level, but no indication, independent or impartial evidence appeared to corroborate any involvement or knowledge at a higher level of the State.

Elsewhere Schmid admits that the doping scheme in Russia did not involve all Russian athletes – a sure indication by the way that it was not government organised or state sponsored – and that it was different from the doping scheme in the former German Democratic Republic, which of course was both government organised and state sponsored.

Given that this is so, why is former Sports Minister Mutko against whom no evidence of wrongdoing exists being banned from participating in the Olympic Games for the rest of his life?

Why is the Russian Olympic Committee being suspended, when no evidence of the involvement of any of its members in the doping scheme exists?

The IOC DC notes that neither the IC’s nor the IP’s Reports mentioned the participation of the Russian Olympic Committee (ROC) in the system.  No findings appeared during the IOC DC’s investigation to contradict these statements.

In order to justify the IOC’s actions against Mutko, the ROC and other Russian individuals and sports institutions against whom no evidence of wrongdoing exists, Schmid comes up with a complicated theory of their legal responsibility for the doping scheme even though there is no evidence that they knew about it.

All I would say about that is that I have never heard of a case where individuals against whom no evidence of wrongdoing exists and who must therefore be presumed to have acted at all times in good faith are punished because of a criminal conspiracy carried out by others of which there is no evidence they had any knowledge.

That truly is guilt by association, and it is wrong.

Right at the very start of the Russian Olympic Doping Scandal in an article for Sputnik dated 12th November 2015, I said that the right way forward was not to impose discriminatory and unlawful blanket bans on Russian athletes which ignored the presumption of innocence and which contradicted the humanitarian and inclusive principles of the Olympic Games, but to work with the Russians to ensure that anti-doping systems in Russia were made as strong as possible so that large scale doping of the sort organised by Dr. Rodchenkov could no longer take place

….it seems to me utterly wrong to ban athletes from competing simply because they are Russian.

That goes utterly against the humanitarian principles upon which the Olympics were founded. It is also contrary to the non-discriminatory principles in most national laws.

The Russian authorities are challenging some of the allegations — as it is their right to do — but look to be genuinely offering cooperation to help solve the problem.

For example they have offered to appoint a foreign specialist to head their laboratory. The right thing to do is not to impose a blanket ban but to work with the Russian authorities so that the problem can be solved.

That may involve bringing criminal charges and imposing individual bans on specific persons, barring them from involvement in international sports training and competition.

If that does not happen and a blanket ban on Russian athletes is imposed instead, then it seems to me that the world’s sporting bodies will not only have retreated from their ideals but will open themselves up to questions about what their real motives are.

‘Solving the problem’ in this way is exactly the approach the Russian authorities – who do not deny the existence of large scale doping problem in Russia – have taken.

The anti-doping systems now put in place in Russia are now universally acknowledged to be just about the best in the world.  Here is how Steve Scott, sports editor of the ITN news channel in Britain, describes them

A lot has changed at the Russia Anti-Doping Agency (RUSADA) in the past 18 months and, according to some close to this transformation, if you employ objective criteria, the Moscow laboratory is as good as it gets.

“The quality of testing and planning is very high.” a senior anti-doping source told me.

The Agency has doubled in size, has had its budget doubled too and is carrying out twice as many tests. It has also built up a team of 50 trained doping control officers, whereas before it had none. As for a much needed cultural shift, there has also been a significant changeover of staff; few remain who were immersed in the bad old ways of doing things.

Given that this is so and that there is now longer any possibility of Russian athletes engaging in a massive doping conspiracy in the coming Winter Olympic Games in PyeongChang, why is action being taken to prevent them competing on the same basis as everyone else?

It turns out that WADA is refusing to certify RUSADA – Russia’s radically reorganised anti-doping laboratory – for no other reason than that the Russian authorities are refusing to accept the McLaren report.

Why however should the Russian authorities accept the McLaren report when McLaren’s claims of a massive government organised state sponsored doping conspiracy in Russia have been shown to have no evidence behind them?

Is it anyway right and proper to coerce someone into confessing a crime for which no evidence exists?  Is that not the action of a blackmailer or of a police state?  Is that the sort of behaviour the International Olympic Committee – guardian of the Olympic Movement and upholder of its ideals – wants to associate itself with?

In reality the decision of the International Olympic Committee to ban certain Russians from involvement in the Olympic Movement, to suspend the Russian Olympic Committee, and to allow only specially invited Russian athletes to compete in the Winter Olympics and then only under the Olympic flag, has nothing to do either with sport or doping or the principles of legality.

It is entirely the product of politics, and the Russians are right to say it is.

Though this is the worst decision the International Olympic Committee has taken in its whole history, it is just possible that we may be approaching the end of this tawdry affair.

It seems that if the Winter Olympics in PyeongChang end without scandals then the Russian Olympic Committee will be readmitted to the Olympic Movement on the last day of the Games, allowing Russian athletes to celebrate the last day of the Games under their own flag.

Presumably that means that restrictions on the participation by Russian athletes in future Olympic Games will be lifted.

That presumably is why the Russian authorities are encouraging their athletes to participate in the PyeongChang Games under the Olympic flag, humiliating though they say they find it.

Whilst I understand this reasoning, I am not sure I share it.

An Olympic Movement capable of making such a grossly discriminatory and frankly unlawful decision is obviously no longer fit for purpose.

In light of this I think that the Russians and the many other national teams that must privately think this should now set about setting up their own alternative sports competitions, initially in parallel to those of the Olympic Movement but eventually as alternatives to them.

Since I doubt that this will be the last of these scandals that seems to me the only way forward.