Editor's note: Conor Talbot is a Solicitor at LK Shields Solicitors in Dublin and an Associate Researcher at Trinity College Dublin. He can be contacted at ctalbot@tcd.ie, you can follow him on Twitter at @ConorTalbot and his research is available at www.ssrn.com/author=1369709. This piece was first published on the humanrights.ie blog.

Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not be underestimated.  The United Nations has highlighted the potential for using sport in reducing discrimination and inequality, specifically by empowering girls and women.  Research indicates that the benefits of sport include enhancing health and well-being, fostering empowerment, facilitating social inclusion and challenging gender norms.

In spite of the possible benefits, the successful implementation of sport-related initiatives aimed at gender equity involves many challenges and obstacles.  Chief amongst these is the way that existing social constructs of masculinity and femininity — or socially accepted ways of expressing what it means to be a man or woman in a particular socio-cultural context — play a key role in determining access, levels of participation, and benefits from sport.  This contribution explores recent developments in the interaction between transgender and intersex rights and the multi-billion dollar industry that the modern Olympic Games has become.  Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes and, while there has been progress as part of a long and difficult journey to afford transgender people full legal recognition through the courts, it seems clear that sport could play an increasingly important role in helping change or better inform social attitudes.

Background

“The practice of sport is a human right.  Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.” - Olympic Charter

While proclaiming the practice of sport to be a human right, the Olympic Charter unequivocally states that the International Olympic Committee (IOC) has “supreme authority” over the staging of the Olympic Games.  Under the IOC’s stewardship, and in line with other major sporting events worldwide, a narrative has been carefully cultivated to the effect that events such as Olympic Games would not be possible without the support and resources of the broadcasters and, ultimately, sponsors.  Therefore, while on the one hand, the use of sports as a development tool and strategy to reduce discrimination generally is growing, there is also a distinct field of commentary which is critical of the approach of the Olympic “industry”  (indeed, the term "industry" is used to  draw attention to the profit-making goals of the Olympics).

Given the top-down nature of sporting governance, research from Wales and Scotland reveals that whilst many lesbian, gay, bisexual and transgender people continue to be put off by negative experiences or the perception that it is an unpleasant and unsafe environment for LGBT people.  This post focuses in particular on the treatment of transgender and intersex athletes under the rules enforced by international sporting federations.  In attempting to get ahead of the curve with transgender issues, with the stated aim of protecting the sporting integrity (and therefore the reputational and commercial value) of competitions by minimising sex-related advantages, the IOC has a long history of insensitive and often unproductive testing protocols for athletes.  As it is probably the most visible of all international sporting federations, the IOC became the standard bearer for such testing policies and, indeed, it has been argued that IOC policies gave impetus (and sometimes political cover) for other groups to follow suit.

Gender/Sex Verification Tests and the Stockholm Consensus

The issue of gender- or sex-verification gained global attention in recent times after South African runner Caster Semenya was ordered to undergo tests after winning the 800m world title in 2009.  She was eventually cleared to compete by the IAAF and won silver in the 800m at the 2012 London Olympics.

IOC had maintained a practice of conducting gender verification tests at the Olympic Games, with the testing of Dora Ratjen in 1938 and Foekje Dillema in 1950 being early cases to gain attention.  The initial testing protocols amounted to rather crude and undoubtedly humiliating physical examinations.  These techniques later gave way to the method of determining ‘sex’ chromatin through buccal smear examination, introduced at the Mexico City Olympic Games in 1968. Chromosome-based screenings were criticised for being unscientific and unfairly excluding many athletes, in particular since only the chromosomal (genetic) sex is analysed by sex chromatin testing, not the anatomical or psychosocial status.  These techniques were abandoned by the IAAF in 1991 and the IOC since Sydney 2000.

Under the so-called Stockholm Consensus, the IOC granted permission for men and women who had undergone gender reassignment surgery to participate in competitive sport.  The Consensus recommended that individuals undergoing sex reassignment from male to female after puberty (and the converse) be eligible for participation in female or male competitions, respectively, once surgical anatomical changes had been completed (gonadectomy), legal recognition of their assigned sex had been conferred; and verifiable hormonal therapy had been administered for a sufficient length of time to minimise gender-related advantages. Under the Consensus, eligibility for competition could begin no sooner than two years after the athlete’s gonadectomy.

Regulation of Hyperandrogenism in Female Athletes

Hyperandrogenism is a term used to describe the excessive production of androgens (testosterone).  Given its influence on endurance and recovery, controversies have arisen in the past surrounding cisgender women athletes with high levels of testosterone.  An Indian sprinter, Dutee Chand, was suspended by the IAAF in 2014 due to her elevated testosterone levels.  However, the Court of Arbitration for Sport (CAS) suspended the IAAF rule in July 2015, on the grounds that the IAAF had failed to prove that women with naturally high levels of testosterone had a competitive edge.  The CAS ordered the IAAF to present new scientific evidence regarding the degree of competitive advantage enjoyed by hyperandrogenic females by July 2017, otherwise its 2011 Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition would be declared void. 

While Chand was cleared to compete following her high profile appeal, a study published in April 2013 in the Journal of Clinical Endocrinology & Metabolism, a US peer-reviewed journal for endocrine clinical research, recounts the rather less fortunate fate of four anonymous young athletes who, it appears, were effectively forced to undergo surgery to allow them to compete in women’s sports ahead of the 2012 Olympics.  When the story emerged in June 2013, the IAAF reportedly denied that it had taken place.

The young women, who were 18, 20, 21, and 20 years of age at the time of the study, came from rural or mountainous regions of developing countries.  Clinical inspection of the women revealed varying degrees of intersexuality: they had never menstruated and had male bone characteristics, no breast development and partial or complete labial fusion.  Consanguinity was confirmed for three of them (first cousins in two cases and siblings in another) and was suspected in the fourth case with her parents originating from neighbouring villages.  The authors of the report opine that the gender abnormalities of the athletes may not have been formally diagnosed or given medical attention because they had been born in rural regions of countries with poor care.  In all cases, they were tall, slim, muscular women and had manifested strong motivation and high tolerance to intensive daily training, which had made them good candidates for elite sports competition. 

Rather than requesting gender change, the study reports that the athletes wished to maintain their female identity in order to continue elite sport in the female category.  Although leaving male gonads carried no health risk, and despite the negative effect that a gonadectomy would have on their performance levels and general health, the athletes underwent the feminising surgical procedures.  The study concludes that the sports authorities then allowed them to continue competing in the female category one year after their procedures.  The radical nature of the surgery required, as well as the unknown future impact on the athletes’ health, highlight the dangers of such policies for inclusion in women's sporting events.

New IOC Guidelines

Under new IOC Transgender Guidelines, which were reported as stemming from an unpublicised Consensus Meeting on Sex Reassignment and Hyperandrogenism, surgery such as that described above will no longer be required.  Female-to-male transgender athletes are now eligible to take part in men’s competitions “without restriction”, while male-to-female transgender athletes will need to demonstrate that their testosterone level has been below 10 nanomols per litre for at least one year before their first competition.  That said, the IOC document does contain a provision allowing for a the imposition of a period of longer than one year, based on a confidential case-by-case evaluation, considering whether or not 12 months is a sufficient length of time to minimize any advantage in women’s competition.  No further detail is provided on the nature of these case by case evaluations so it is unclear just how much progress these guidelines actually represent compared to the crude sex verification tests used in the past.  Again, the IOC justifies these regulations as being necessary to avoid accusations of an unfair competitive advantage. 

The IOC document also refers directly to CAS decision in relation to Dutee Chand.  Specifically, the IOC encourages the IAAF, with support from other International Federations, National Olympic Committees and other sports organisations, to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules.  Therefore, the IOC’s appears to contest the validity of the CAS award and seems determined to provide scientific grounds for upholding its ban on female athletes with elevated levels of testosterone, even where it is naturally occurring and the athletes’ bodies are partially unable to process it.

Taken together, the net result of these regulations is that if a female transgender or intersex athlete’s natural testosterone levels are considered too high, she is expected to undergo treatment to reduce her testosterone to levels considered to be within the normal range for women before being allowed to compete in women’s sports.  This has come to be the subject of severe criticism because it is argued that such athletes are being medically harmed by sport under these regulations.  Testosterone is essential for the development of male growth and masculine characteristics, and is vital for any athlete in aiding recovery times from physical exertion.  Although the health effects of the presence of high levels of testosterone in women’s bodies is still the subject of research, testosterone occurs naturally in both males and females and would appear to be vital for the body’s all-round health.

Kristen Worley Litigation

The potential for these testosterone limits to lead to harm to the athletes involved is the focus of a major case being brought by a Canadian cyclist, Kirsten Worley, a female athlete who has transitioned from male to female by undergoing sex reassignment surgery with the result that she no longer produces either testosterone or estrogen.  She alleges that the Ontario Cycling Association and Cycling Canada Cyclisme gender verification and anti-doping rules discriminate against her on grounds of sex, contrary to the Canadian Human Rights Code.  The rules in question are based on the Union Cycliste Internationale (UCI) directives which are, in turn, based on IOC policies.  Worley claims that these policies have damaged not only her ability to continue taking part in competitive cycling, but also her health. 

Interestingly, Worley effectively bypassed international sport's usual dispute-settlement procedures by bringing her claim through the mainstream human rights judicial instances.  After the preliminary issue of whether the respondents received effective legal notice, a further dealy was caused when the IOC requested that the Tribunal defer consideration of Worley’s application pending the completion of a judicial review application commenced by the IOC.  The IOC also argued  that the Human Rights Tribunal of Ontario was not competent to hear the case, since it concerns sporting rules.  Likewise, the UCI objected to the Tribunal’s ability to adjudicate and argued that the UCI Arbitral Board and/or the Canadian Center for Ethics in Sport are the competent authorities to address the allegations contained in Worley’s application. 

Next Steps

Importantly, the court hearing the preliminary proceedings in the Worley application held that it is established law that parties cannot contract out of the Canadian Human Rights Code’s protections.  Therefore, the court rejected the proposition that the Human Rights Tribunal lacked jurisdiction purely because there are alternate mechanisms to which Worley could have, but did not, file a claim.  As such, the Worley litigation is extremely interesting as it will be a rare instance of the sheltered world of international sporting organisations being subjected to the full rigours of human rights principles.

It will be very interesting to follow how this claim is dealt with by the Canadian courts, and received by the international sporting community generally, in the months and years to come.  Worley herself has pursued this campaign for over a decade and, given the publicity garnered by the latest steps in her litigation, it now appears to have the potential to inspire other athletes to avail of human rights avenues to open up sports-based disputes to courts of law rather than courts of arbitration.  From the IOC’s perspective, it is clear that it has a legitimate interest in acting to preserve fair competition but this agenda cannot be pursued irrespective of the repercussions.  The most recent changes to its Transgender Guidelines are expressly stated to have been introduced in recognition of how requiring surgical anatomical changes as a pre-condition to participation may be inconsistent with “notions of human rights”.

If nothing else, the new IOC Transgender Guidelines proves that international sport does not operate in a vacuum and is capable, to some extent at least, of reflecting social progress.  However, it remains to be seen whether the most visible sporting governance body is prepared to play a true leadership role in utilising all the benefits of sports in helping to change perceptions of transgender and intersex athletes.  In that sense, the Kirsten Worley litigation represents a crystallisation of a struggle to apply human rights principles in a new area and, as such, will be worthy of our attention going forward.

On 15 April 2014, the Cairo Economic Court (the “Court") issued a seminal judgment declaring the broadcasting of a football match a sovereign act of State.[1]

Background

In Al-Jazeera v. the Minister of Culture, Minister of Information, and the Chairman of the Board of Directors of the Radio and Television Union, a case registered under 819/5JY, the Al-Jazeera TV Network (the “Plaintiff” or “Al-Jazeera”) sued the Egyptian Radio and Television Union (“ERTU” or the “Union”) et al. (collectively, the “Respondents”) seeking compensation for material and moral damages amounting to three (3) million USD, in addition to interest, for their alleged breach of the Plaintiff’s exclusive right to broadcast a World Cup-qualification match in Egypt.  Al-Jazeera obtained such exclusive right through an agreement it signed with Sportfive, a sports marketing company that had acquired the right to broadcast Confederation of African Football (“CAF”) World Cup-qualification matches.

ERTU reportedly broadcasted the much-anticipated match between Egypt and Ghana live on 15 October 2013 without obtaining Al-Jazeera’s written approval, in violation of the Plaintiff’s intellectual property rights.

Arguments of the Parties

Plaintiff’s Position

The Plaintiff explained that its right was protected by various provisions of Law No. 82/2002 on the Protection of Intellectual Property Rights (the “IP Law”). Most notably, the Plaintiff referred to Article 139, which provides for copyright protection for both Egyptians and citizens of World Trade Organization member States, and Article 149, which grants copyright owners the right to transfer, in writing, all or some of their rights in the copyrighted content to third parties.

In addition, the Plaintiff stated that Articles 157, 158 and 159 of the IP Law gave it exclusive economic rights in the content it owned or acquired, which precludes the exploitation of broadcasting the match in any manner (including its reproduction and communication to the public) by a third party without its prior written authorization.

By broadcasting the match live on Egyptian channels without obtaining the Al-Jazeera’s prior written authorization, ERTU - the Plaintiff argued - breached the Plaintiff’s intellectual property rights that are protected under Egyptian and international law.  

Respondents’ Position

The Respondents emphasized the political nature of the decision to broadcast the match. They argued that Egypt’s executive branch of government was entitled to take decisions respecting the broadcasting of the match in the interest of Egypt, and its peace and security, without incurring any penalty or enduring judicial scrutiny.  The Respondents added that broadcasting the match was an activity that took place entirely within Egypt pursuant to an executive decision and, as such, was an act of State that was immune to judicial scrutiny. Accordingly, broadcasting the match did not violate any laws or agreements. 

Judgment on Jurisdiction

The Court began its assessment of the case by examining its jurisdiction in accordance with Article 109 of the Code of Civil and Commercial Procedures, which grants courts the power to rule on their own jurisdiction in any case before them.  Then, it consulted Law No. 13 /1979 relating to the Egyptian Radio and Television Union, as amended (the “ERTU Law”), which provided for the establishment of a national authority under the name of “Egyptian Radio and Television Union”.  Among other things, the ERTU Law states that the Union is (i) deemed a national authority that assumes all the functions and duties associated with audio-visual media and broadcasting services in Egypt; (ii) shall have a separate juridical personality; and (iii) shall be subordinated to the Minister of Information.

The Court established that the decision to broadcast this match was issued by ERTU, a national authority entitled to broadcast audio-visual media in Egypt for the purpose of achieving national interests and services, and ensuring collective interest in all aspects including sports.

Against this background, the Court concluded that the Union’s decision to broadcast the match fell within the Union’s mandate, which was to be exercised on Egyptian territory and without interfering with the sovereignty or law of another state.  Therefore, the decision to broadcast the game was, in the opinion of the Court, an act of sovereignty that may not be the subject of litigation; and the executive authority was permitted to take all necessary measures in Egypt’s interests, while enjoying immunity against court supervision.  

Finding that it lacked jurisdiction, the Court did not address the Plaintiff’s claims relating to its intellectual property rights.

Lessons Learned and Next Steps

The judgment raises several questions regarding the scope of sovereign powers that can be exercised by a State.  Most importantly, it provides a novel interpretation of what constitutes an act of State. Furthermore, the decision will likely push companies entering into broadcasting agreements with the Union to take various precautions, such as  subjecting potential disputes to international arbitration, as opposed to the supervision of local courts. 

The judgment comes as another blow to Al-Jazeera in Egypt, which saw three of its journalists sentenced by an Egyptian court to prison terms ranging from seven (7) to ten (10) years for charges that included spreading false news. One of the journalists, Peter Greste, has already been deported to his native Australia pursuant to a decree law that allows the deportation of foreigners to their home countries to stand trial or serve the remainder of their sentence.  The other journalists have been released on bail and are currently awaiting their retrial after the Court of Cassation, Egypt’s highest court, quashed their sentence.

On 11 June 2014, Al-Jazeera appealed the Court’s decision to the Court of Cassation, explaining that a sovereign act of State can be easily distinguished from regular administrative activities such as the ones typically performed by the Union.  According to Al-Jazeera, an act of State covers high political considerations, such as the protection of national interests, upholding the terms and principles of the Constitution, and overseeing Egypt’s relations with other States to ensure domestic and international peace and security. A football match does not meet any of these criteria.

It is likely that the Court of Cassation will overturn the Court’s judgment in light of Egypt’s IP Law and the fact that broadcasting and licensing agreements are a regular business activity.  It is also important to observe how the Court of Cassation will address the lower Court’s novel interpretation of the act of State doctrine. While soccer is the most popular sport in Egypt, it is unclear how broadcasting a match can be linked to a State’s higher political interests.

Equally unclear is how Al-Jazeera will react should the Court of Cassation uphold the judgment, and whether it will consider resorting to international arbitration given that Egypt and Qatar signed a bilateral investment treaty in 1999 that protects investors’ intellectual property rights, among other things.

[1] Tarek Badawy (tarek.badawy@shahidlaw.com), Inji Fathalla (inji.fathalla@shahidlaw.com), and Nadim Magdy (nadim.magdy@shahidlaw.com) are Attorneys-at-Law at Sarwat A. Shahid Law Firm (“Shahid Law”) in Cairo, Egypt.  The views expressed in this articles are those of the authors and do not constitute legal advice. 

On Monday 18 July 2016, Canadian lawyer Richard McLaren presented the Independent Person Report to the World Anti-Doping Agency (WADA), regarding the alleged Russian doping program surrounding the 2014 Sochi Winter Olympics. The report was expected to seriously threaten the participation of Russian Athletes to the rapidly approaching Rio Games, starting on 5 August. In the weekend prior to the report’s publishing, Reuters obtained a leaked letter drafted by the CEO’s of the US and Canadian anti-doping agencies, which according to the New York Times was backed by “antidoping officials from at least 10 nations— including those in the United States, Germany, Spain, Japan, Switzerland and Canada — and 20 athlete groups”, urging the International Olympic Committee (IOC) to ban all Russian athletes from the upcoming Olympics.

Source: http://ww4.hdnux.com/photos/50/23/01/10563667/3/920x920.jpg

During the press conference, McLaren listed his main findings, which are shocking, interesting and peculiar at same time. First, “the Moscow Laboratory operated, for the protection of doped Russian athletes, within a State-dictated failsafe system”. Second, “the Sochi Laboratory operated a unique sample swapping methodology to enable doped Russian athletes to compete at the Games”. Third, “the Ministry of Sport directed, controlled and oversaw the manipulation of athlete’s analytical results or sample swapping, with the active participation and assistance of the FSB (Russian federal security service), CSP (Centre of Sports Preparation in Russia), and both Moscow and Sochi Laboratories”.

Though the recent findings of the Independent Person Report should not be underestimated, yet it is only one piece of a complex jigsaw puzzle constituted by many reports and disciplinary decisions involving systemic doping in Russia over the last few years. One could compare it to a snowball rolling down the mountain continuously gaining speed and mass. The ball started rolling in December 2014 with an ARD broadcasted documentary titled Geheimsache Doping: Wie Russland seine Sieger macht (“Top Secret Doping: How Russia makes its Winners”). Less than two years later, Russian athletes might be excluded from participating at the Rio Olympic Games all together. The information now available on Russia’s systematic doping program would make an excellent movie script (one that has probably already been set in motion at a Hollywood studio). This blog, however, will more modestly provide a recap of the events leading up to the Independent Person Report, and assess its potential (short term) legal consequences. 

Episode 1: German investigative journalism and WADA’s response

As stated above, the unravelling of this doping story began in December 2014, with an ARD documentary, Geheimsache Doping: Wie Russland seine Sieger macht (“Top Secret Doping: How Russia makes its Winners”). Filmmaker Hajo Seppelt investigated rumors on widespread doping use by Russian athletes in preparation of and during the Winter Olympics held in Sochi. The film showed athletes, coaches and civil servants testifying, secret camera footage, audio recordings, and official documents, all pointing towards: systemic doping use within the All-Russia Athletics Federation (ARAF), corrupt practices regarding results management and the collection of samples. Implicated parties included athletes, coaches, trainers, doctors, the Russian State, the IAAF, the Moscow accredited laboratory and the Russian Anti-Doping Agency (RUSADA).

In response to the international stir, WADA, in December 2014, launched an Independent Commission to investigate the allegations made. The Commission consisted of former WADA chairman Richard Pound, Richard McLaren and WADA’s Chief Investigations Officer Jack Robertson. The first part of this commission’s findings was published on 9 November 2015.[1] In August 2015 the commission’s mandate was extended following the release of another Seppelt documentary “Doping – Top Secret: The Shadowy World of Athletics”. This resulted in a second report which was published on 14 January 2016.[2] Especially the former of the two “Pound Reports” is of particular interest.

First and foremost, it addresses the existence of “a deeply rooted culture of cheating”. The report insinuates that this culture of cheating existed since well before the Sochi Games. The coaches active in 2014 appear to be the crucial transferors of the knowledge they acquired at the time they were athletes themselves. Medical connections cultivated during their professional careers were passed on to the current generation of athletes. Athletes not wishing to be part of this system were likely to be “excommunicated” from top-level coaches and support.[3]

The second issue addressed is the exploitation of athletes. “Unethical behaviours and practices” by the people involved have become the norm. Coercion has been employed on athletes to make them participate in the doping program, for instance by informing them that “they would not be considered as part of the federation’s national team for competition”.[4]

The report’s third finding is a blatant unwillingness of Russian athletes to cooperate in the investigation. Nonetheless, the Pound Commission confirms a “consistent and systematic use of performance enhancing drugs by many Russian athletes”.[5]

Fourthly, it confirmed that, next to coaches, some Russian doctors and laboratory personnel equally acted as “enablers for systematic cheating”. It also pointed out “inadequate testing and poor compliance around testing standards”, as well as the malicious destruction of over 1400 samples, which were explicitly requested by WADA to be preserved.[6]

A fifth major discovery was the identification of corruption and bribery within the IAAF. The severity of the corruption allegations involving several highly placed members and officials of IAAF and the ARAF was such that this part of the investigation had to be transferred to the competent authorities for “potential criminal prosecutions”, i.e. Interpol (see the second Pound Report).[7]

The first Pound Report recommended provisional suspensions in respect of five athletes, four coaches and one medical doctor and identified some additional suspicious cases. It further asked WADA to declare both ARAF and RUSADA to be “code noncompliant” and to withdraw WADA’s accreditation of the Moscow laboratory, as well as to permanently remove the lab’s director from his position. The Report also recommended that the IAAF should suspend ARAF.[8]

A mere four days after the publication of the first Pound Report (13 November 2015) the IAAF provisionally suspended the Russian ARAF as an IAAF Member. As a result of this decision, athletes, and athlete support personnel from Russia could not compete in International Competitions expected, the Russian Olympic Committee (ROC) as well as its athletes did not take the decision lightly. In a request for arbitration filed at the Court of Arbitration for Sport (CAS) on 3 July 2016, the ROC and the 68 Russian Athletes asked the CAS 1) to review specific legal issues surrounding IAAF’s decision to suspend ARAF, and 2) to order that any Russian athlete who was not currently the subject of any period of ineligibility for the commission of an anti-doping rule violation be declared eligible to participate at the 2016 Olympic Games in Rio.[9] The outcome of the appeal will be discussed further below. 

Episode 2: The Independent Person Report

Meanwhile, on 8 May 2016, new far-reaching allegations concerning Russia’s doping program were made by newsmagazine 60 Minutes, and subsequently on 12 May, by the New York Times.[10] The primary source behind these articles was whistle-blower Grigory Rodchenkov, the former director of the Moscow and Sochi doping control laboratories who found refuge in an undisclosed location in the USA. This time around, the allegations were not limited to athletics, but involved all Russian athletes that competed at the Sochi Olympics.[11] In response to these claims, WADA announced that it would immediately probe the new Russian doping allegations brought forward, once again, by the press, and appointed an Independent Person (i.e. Richard McLaren) supported by a multidisciplinary team to conduct an investigation of the allegations made by Dr. Rodchenkov.[12]

McLaren was presented with a five-point investigation mandate:

“1. Establish whether there has been manipulation of the doping control process during the Sochi Games, including but not limited to, acts of tampering with the samples within the Sochi Laboratory.

2. Identify the modus operandi and those involved in such manipulation.

3. Identify any athlete that might have benefited from those alleged manipulations to conceal positive doping tests.

4. Identify if this Modus Operandi was also happening within Moscow Laboratory outside the period of the Sochi Games.

5. Determine other evidence or information held by Grigory Rodchenkov.”[13]

The Report first mentions the time constraints faced in drafting it. It explains, in relation to the third paragraph of the mandate, that the “compressed timeline” of the investigation (57 days) “did not permit compilation of data to establish an antidoping rule violation”, consequently that third paragraph should be deemed of lesser importance. This shortage of time also resulted in the fact that McLaren had to be selective in examining the large amount of data and information available to it. In other words, it could “only skimmed the surface of the extensive data available”.[14] Be that as it may, McLaren considered the found evidence to be established “beyond a reasonable doubt”.[15]

With due respect to both its mandate and its investigative limitations, McLaren made three key findings[16]:

A) The Moscow Laboratory operated, for the protection of doped Russian athletes, within a State-dictated failsafe system, described in the report as the Disappearing Positive Methodology;

B) The Sochi Laboratory operated a unique sample swapping methodology to enable doped Russian athletes to compete at the Games;

C) The Ministry of Sport directed, controlled and oversaw the manipulation of athlete’s analytical results or sample swapping, with the active participation and assistance of the FSB, CSP, and both Moscow and Sochi Laboratories.

The Independent Person Report makes account of a systemic state directed doping program, incentivized by the “very abysmal” medal count of the Russian Olympic athletes participating in the 2010 Vancouver Olympic Winter Games. A system where, under direction and control of Yuri Nagornykh, Russia’s deputy minister of sport, the laboratory was forced to change any positive result into a negative analytical finding, a method named by the McLaren team the “disappearing positive”.[17]

Nagornykh was informed of every positive analytical finding arising in the Moscow laboratory from 2011 onwards, which in itself is a violation of the WADA International Standard for Laboratories. The deputy minister was the linchpin that decided which athlete would benefit from a cover up and thus be protected and which athlete would not. If ordered to do so, laboratory personnel were required to report the sample as being negative in WADA’s anti-doping management system. Next, the laboratory personnel had to falsify the screen result in the laboratory information management system to show a negative laboratory result.[18] Conclusion, the shielded athlete could continue to compete.

However, at international events independent observers would prevent Russian athletes from slipping through the net. That is why the FSB developed a method for covertly removing the caps of tamper evident sample bottles containing the urine (“without any evidence visible to the untrained eye”). This technique was used to replace positive dirty samples during the Sochi Olympic Games and in December 2014 to cover up some dirty samples out of the Moscow Laboratory, which WADA had aimed to confiscate.[19] The McLaren team subsequently found evidence that this sample swapping also occurred after the 2013 IAAF World Championships in respect of positive samples.

The coordinating role of Irina Rodionova in this sample swapping method is remarkable. She was a staff member of the Russian Olympic Committee during the Sochi Games. During the Games, she served as the head of the Monitoring and Management of Medical Anti-doping Programs Department and is currently deputy director of the “Center of Sports Preparation of National Teams of Russia, a subordinate organisation of the Russian Ministry of Sport”.[20] As the report shows, Rodionova would receive and freeze storage samples, which the athletes thought were “clean urine samples outside of the wash out periods for any PEDs they were using”. The investigation’s main informant, Grigory Rodchenkov would test the samples to make sure they were negative. These samples were then secretly transported to the FSB storage freezer, which coincidentally happened to be in the building located next to the Sochi Laboratory.[21]

The actual swapping occurred by passing the A and B bottles through the “mouse hole” located between the “aliquoting room” inside the Sochi Laboratory secure perimeter into an adjacent operations room, outside that secure perimeter. While an FSB officer would take the B bottles somewhere else, the athlete’s stored clean urine would be taken out of the FSB freezer and brought over to the operations room. The FSB officer would return with B sample bottle to the operations room. The B sample bottle’s cap would be removed. The dirty urine would be replaced by clean urine and put in the A and B bottles. Then, the stopper in the A bottle would be replaced and the B bottle cap screwed back on. Ultimately, the bottles would be brought back to the “aliquoting room” via the mouse hole.[22] Subsequently, Rodchenkov had to manipulate the substituted sample to as closely as possible match the “specific gravity” indicated on the original doping control form. He did this by “adding table salt to raise the clean urine SG or distilled water to dilute the clean urine sample so as to closely match the SG number on the DCF”. A laboratory analysis of the salt content of selected samples revealed that six had “salt contents higher than what should be found in urine of a healthy human”.[23] As the Independent Person Report elucidates: “The Sochi sample swapping methodology was a unique situation, required because of the presence of the international community in the Laboratory. It enabled Russian athletes to compete dirty while enjoying certainty that their antidoping samples would be reported clean”.[24]

The Report notes another incident following a WADA request giving notice to the Moscow laboratory of a forthcoming collection of samples stored in the laboratory for further analysis. This resulted in the laboratory quickly destroying thousands of dirty samples that had been collected and reported negative (use of the Disappearing Positive Methodology). Deputy minister Nagornykh then arranged the FSB to fix the problem of the samples collected between 10 September 2014 and 10 December 2014, which could not be destroyed (as a result of the minimal 90-day period of storage following the ISL). When the WADA investigators came to the laboratory, they found sample bottles without their caps and, moreover, that these samples all had negative findings recorded on WADA’s Anti-Doping Management System. Furthermore, forensic examination confirmed tampering and “a urine examination of 3 of the samples showed that the DNA was not that of the athlete involved”.[25] 

Episode 3: The ball is in the IOC’s corner…

In a statement released shortly after Richard McLaren’s press conference, WADA president Craig Reedie conveyed WADA executive committee’s vision on the Independent Person Report. First it condemned the “public speculation made by certain national anti-doping organizations as to the investigation’s outcome in the days leading up to the report’s publication”. More importantly however, it recommended the IOC (and the International Paralympic Committee, IPC) to decline entry for the 2016 Rio Olympic Games to all athletes wishing to compete under the Russian Olympic Committee banner. Moreover, he added that “any exceptional entry of a Russian athlete should be considered by the IOC and IPC for participation under a neutral flag and in accordance with very strict criteria”.

The IOC responded on 19 July by implementing some provisional measures. It decided amongst others: not to organise or give patronage to any sports event or meeting in Russia, not grant any accreditation to any official of the Russian Ministry of Sport or any person implicated in the Independent Person Report for the Rio Games, and “initiate a full inquiry into all Russian athletes who participated in the Olympic Winter Games Sochi 2014 and their coaches, officials and support staff”.

The key question, however, was whether the IOC would follow WADA’s recommendation and decline entries to all athletes under the Russian Olympic Committee banner to the Rio Games. Even though its president Thomas Bach stated that “the findings of the report show a shocking and unprecedented attack on the integrity of sport and on the Olympic Game” and that “the IOC will not hesitate to take the toughest sanctions available against any individual or organisation implicated”[26], it did not actually do so (yet). Instead, it announced that it would carefully evaluate the Independent Person Report and “explore the legal options” weighing a collective ban against the right to compete of individual athletes. Moreover, the IOC was adamant that it would “take the CAS decision of 21 July 2016 concerning the IAAF rules into consideration”.

Episode 4: Now the CAS has ball possession…

Hence, the IOC’s final decision regarding Russia’s participation at this summer’s Olympic Games depended on a large extent on the CAS decision regarding the ROC and 68 Russian athletes’ appeal against the IAAF ban. On 21 July, the CAS Panel confirmed the validity of the IAAF’s decision to suspend the ARAF from participating at the Games as well as the Russian athletes who do not satisfy the conditions set by IAAF Competition Rule 22.1(A).[27] Nonetheless, the CAS expressed its concern about “about the immediate application with retroactive effect of such Rule [IAAF Rule 22.1(A)], implemented by the IAAF on 17 June 2016, providing for exceptional criteria to grant eligibility to athletes whose national federation is suspended. Since such Rule involves criteria based on long-term prior activity, it left no possibility in practice, and as applied, for the Claimant Athletes to be able to try to comply with them.”

Yet, it clearly refused to weigh in directly on the IOC’s pending decision regarding all Russian athletes. Indeed, “since the IOC was not a party in the arbitrations, the CAS found that it had no jurisdiction to determine whether the IOC is entitled generally to accept or refuse the nomination by ROC of Russian track and field athletes to compete at the Rio 2016 Olympic Games”. In other words, the ball is neatly passed back to the IOC, who will now need to make a definite decision on whether Russian athletes, both for athletics and all the other sports, can compete at the upcoming Games or not. As the public pressure is mounting on the IOC, it is now doomed to decide whether to block the entry of all Russian athletes or to leave this decision to the International Federations on a case-by-case basis, like the IAAF has done in the case of athletics. A story to be continued…

Conclusion: Who is to blame for the systemic failures of the World Anti-Doping System?

Russian athletes are currently bearing the brunt of the blame for the State-sponsored doping system in place in Russia, they are being placated in the media and by the World Anti-Doping Agency as cheats, they are being excluded from the Rio Olympics (and potentially many more international competitions), and they are the ones suffering dire economic losses. Yet, are they truly the main responsible for their unenviable fate?

The first key culprit that comes to mind is obviously the Russian State and its political leaders, who have constructed a demonic system imposed on athletes in their young age to ensure that Russia shines on the global sporting scene. They have done so with the implicit (and in the case of the IAAF explicit) support of the international sports governing bodies, which preferred to look away rather than challenge the Russian political clout inside their executive bodies. One has to remember, for example, that Russia’s sports minister Vitaly Mutko, currently decrying the politicization of sport, is a member of FIFA Council (formerly the FIFA Executive Committee).

Furthermore, this is also the failure of WADA. It was supposed to be the independent global gendarme of the world anti-doping fight. Yet, it comes out of these episodes at best as a toothless paper tiger, at worse as a complacent window dresser. A recent piece in the New York Times highlights very well its passive complicity in maintaining the invisibility of the Russian state doping system. WADA is now front and centre in calling for the harshest sanctions on athletes, but for years it has been ignoring the warning signs and refusing to do its homework as far as the implementation of the WADA Code is concerned. It is only because of the public outrage over Hajo Seppelt’s documentary that WADA finally decided to act. What is the Code worth if its implementation at the local level, where it is supposed to apply on a day-to-day basis, is not closely monitored? Only the paper (or the computer code) on which it is written. The general hypocrisy of having a global set of rules, but very little biting enforcement mechanisms underlies the failure of the current world anti-doping system.  

[1] The Independent Commission Report #1, Final Report, 9 November 2015 (Pound report #1).

[2] The Independent Commission Report #2, 14 January, Amended 27 January 2016 .

[3] Pound report #1, p. 10.

[4] Ibid, p. 11.

[5] Ibid.

[6] Ibid.

[7] Pound report #1, p. 12 and 124.

[8] Ibid, p. 9.

[9] Media Release of the CAS of 21 July 2016, Athletics – Olympic Games Rio 2016 - The Court of Arbitration for Sport (CAS) rejects the claims/appeal of the Russian Olympic Committee (ROC)

and of 68 Russian athletes.

[10] Rebecca R. Ruiz and Michael Schwirtz, “Russian Insider Says State-Run Doping Fueled Olympic Gold”, New York Times, 12 May 2016 < http://www.nytimes.com/2016/05/13/sports/russia-doping-sochi-olympics-2014.html > accessed 21 July 2016.

[11] In this regard, it is also worth mentioning that Russia ended first in the medal table with 33 medals, including 13 gold medals.

[12] The Independent Person Report, p. 2.

[13] Ibid, p. 3.

[14] Ibid, p. 4.

[15] Ibid, p. 6.

[16] Ibid, p. 1.

[17] Ibid, p. 10.

[18] Ibid, p. 11.

[19] Ibid, p. 12.

[20] Ibid, p. 13.

[21] Ibid.

[22] Ibid, p. 14.

[23] Ibid, p. 15.

[24] Ibid.

[25] Ibid, p. 17.

[26] Statement of the executive board of the International Olympic Committee of 19 July 2016 on the WADA Independent Person Report.

[27] IAAF Competition Rule reads as follows: “Any athlete, athlete support personnel or other person shall be ineligible for competitions, whether held under these Rules or the rules of an Area or a Member, whose National Federation is currently suspended by the IAAF”.