Thursday, June 23, 2016

IAAF and the Risks of a "Strict Liability" Doctrine

Update: The IAAF released its guidelines about the same time I was writing this post. Safe to say that they did not follow the approach suggested below. See my Twitter timeline for my comments and this new post for the details on the new guidelines.

Earlier this week the ad hoc "Olympic Summit" noted that the Russian and Kenyan national anti-doping agencies are "non-compliant" under the WADA Code. Thus:
The sports organisations, in each individual case, based on the reasons for non-compliance, have to decide on the consequences of such declaration. With regard to participation in the Olympic Games, it is up to the IFs only to decide on the technical eligibility of athletes, in particular in relation to doping issues.
There are 20 sports under the National Olympic Committee of Kenya, not all of which participate in the summer games, and the Russian Olympic Committee oversees 34 summer Olympic sports. The IOC has asked each of these individuation national federations to come up with a process for determining eligibility of athletes:
Because of the WADA non-compliance declaration of Kenya and Russia and the related substantial allegations, the Olympic Summit considers the “presumption of innocence” of athletes from these countries being put seriously into question. As a result, every IF should take a decision on the eligibility of such athletes on an individual basis to ensure a level playing field in their sport. In this decision-making process, the absence of a positive national anti-doping test should not be considered sufficient by the IFs. This means that the respective IF should take into account other reliable adequate testing systems in addition to national anti-doping testing. This decision about the “level playing field” in each of their very different Olympic sports, and eligibility, including of their member National Federations, should be taken by each IF taking into account all the specific circumstances in the relevant National Federations, any available evidence, the World Anti-Doping Code and the specific rules of their sport.
This requirement has been widely interpreted to imply a process is needed to identify "clean" athletes. For instance, @Dopinglist writes of the IOC directive:
The statement goes beyond the WADA Code and is open to criticism, as there is no set actual legal criteria for how the various international sports federations to assess whether an athlete meet some not clearly defined anti-doping requirements to 'be clean'. Special federations likely to base decisions about participation on subjective judgments, which may vary from sports federations for sports federations.
How federations are going to certify athletes remains unclear, but the moment of reckoning is coming. Russia has filed a "class action" against the IAAF on behalf of its athletes before the CAS, which will force the issue. Segej Litvinov, Russian champion in the hammer throw, wrote an open letter to Sebastian Coe which likely previews the sorts of arguments that Russia will bring before CAS.

So how should the various national sports federations - and in particular the IAAF - determine who is a "clean" athlete?

My answer: They shouldn't. Instead of trying to make a substantive judgment on individual athletes, they should follow established procedures as far as those procedures allow. Where existing procedures fall short of providing guidance, sports organizations face choices and risks. Let me explain.

The sports world has established a set of procedures for certifying eligibility for participation in international sport under WADA and its Code. Any steps by sports federations to somehow overlay or reinvent this process runs a huge risk before the CAS. As a matter of due process to athletes, it is unfair to create new standards and then apply them de novo to those who have agreed to compete under an entirely different set of rules.

Sports federations should resist any urge to certify athletes as "clean" using any sort of new process. Instead, sports federations might follow a strategy like the following.
  1. Clearly state that eligibility is determined under the WADA Code.
  2. Note that athletes who have followed the procedures of the WADA Code should be judged eligible.
  3. In contrast, note that athletes who have not followed the procedures of the WADA Code should be judged ineligible.
  4. State that athletes who participate under sporting systems that are non-compliant with the WADA Code are ineligible, because they fall under 3.
  5. Acknowledge that may be the case that some athletes in good faith tried to do 2, but actually fall into 3. 
Number 4 means that an athlete under the Russian (or Kenyan) system who may never have broken the rules, would still be banned as a result of being in a corrupt system.  This is where choices and risks come in.

The problem here is that the WADA Code is essentially silent on sanctions on sporting bodies and the implications for individual athletes. Consider by way of contrast, with respect to the presence of banned substances in an athlete's body, there is a doctrine of "strict liability" which does not consider fault or intent in the judgment of a violation. In sanctioning however, an athlete's suspension can be reduced based on considerations of fault.

Questions that may have to be resolved by CAS include:
  • Are athletes "strictly liable" for the actions of their oversight bodies?
  • If no, then what criteria are to be used to (a) assess guilt, and (b) levy sanctions?
It seems logical that IAAF is going to have the greatest chance of excluding most Russian athletes from Rio if it argues a doctrine of "strict liability" for athletes under bodies that are non-compliant with the WADA Code. The implication however is that not only would track and field athletes be prohibited, but athletes across all Russian (and Kenyan) sports who fall under the non-complaint system.

In contrast, for IAAF, the logical downside to arguing "strict liability" is that if CAS disagrees with the application of such a doctrine, then the crack in the door for Russian athletes to get to Rio becomes much wider. It is conceivable under such a circumstance that a full Russian team goes to Rio, with only those individuals who are suspended prohibited from participating.

If IAAF does not argue for "strict liability" or CAS strikes it down, then we would be in jurisprudential no man's land, with an overlay to the WADA Code needing to be invented in a hurry. How such an overlay might be created is unclear, and includes issues such as consistency across sports, respecting CAS precedent for the due process rights of athletes, and implications for future WADA Code revisions.


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