A reference guide to the Russian doping scandal and response to the McLaren ReportsRupert Beloff
This is an extract from the Anti-Doping chapter of the LawInSport & BASL Sports Law Yearbook 2016/17. To access or order a full copy of the Yearbook, please see here.
Doping has been a cause for concern within sport for decades. From the "state-sponsored" doping of the cold war era to the scandals surrounding Ben Johnson and Lance Armstrong. As detection methods have increased in sophistication, so have the techniques used by those who seek to gain an unfair advantage. Such issues have and continue to damage the credibility of sport as a whole.
In recent years, a new scandal surrounding doping on a widespread scale in Russia has erupted and has, as yet, shown no sign of resolution. Its impact had spread far beyond individual athletes to draw in national federations, the International Association of Athletics Federations (IAAF), Word Anti-Doping Agency (WADA), the International Olympic Committee (IOC) and the 2016 Rio Olympic games. Additionally worrying instances of corruption linked to doping have been uncovered involving individuals who were formerly involved at the highest levels of the IAAF.
This chapter will confine itself, as the title suggests, to Russian doping scandal and allegations of corruption linked to it. However, it is worth noting that concerns involving other countries, such as Kenya, have also emerged during the same period, albeit on a lesser scale.
Specifically, we look at:
- The initial allegations
- The ARD documentaries: "Top-secret doping: How Russia makes its winners’’
- The appointment of the WADA Independent Commission
- Part I of the WADA Independent Commission Report
- IAAF Corruption
- Part II of the WADA Independent Commission Report
- New allegations and reaction
- Part I of the McLaren Report
- IOC and IPC Reaction to the McLaren Report and the Rio Games
- Part II of the McLaren Report
- Continued Pressure on the IAAF
- The state of play in 2017 and looking forward
The initial allegations
In 2010 Vitaly Stepanov, an employee of RUSADA the Russian Anti-Doping Agency, began to send information to WADA alleging that RUSADA was complicit in enabling systemic doping to take place in athletics. In December 2012 Darya Pischalnikova, a Russian discus thrower, sent an email to WADA alleging that there was a state-run doping programme in Russia. WADA decided not to open an enquiry and instead referred the e-mail to Russian Sports Officials. Jack Robertson, WADA’s then chief investigator, believing that media scrutiny was necessary, obtained permission from then chief executive David Howman to contact a journalist, Hajo Seppelt.
In December 2014, German broadcaster ARD aired a documentary by Seppelt entitled "Top-secret doping: How Russia makes its winners". In it discus thrower, Yevgeniya Pecherina, who is serving a ten-year doping ban, claimed that 99% of athletes selected by Russia for the national team used banned substances. Russian athletics officials were accused of supplying banned substances in exchange for a percentage of an athlete’s earnings and of colluding with doping control officers to falsify or conceal test results. Liliya Shobukhova, the winner of the 2010 London Marathon, admitted to paying £350,000 to the Russian Athletics Federation to conceal a positive doping test result. The IAAF was implicated in covering up these abuses.
The claims made in the documentary were met with dismay by the wider sporting world. It had become widely known, following the end of the cold war, that "state-sponsored" doping had been widespread in the 1960s, 1970s and 1980s in Eastern Bloc countries. Whilst sport had continued to suffer well publicised and damaging doping scandals it had been widely assumed that the same largely involved individuals and sub-national teams and training groups.
A subsequent joint investigation by The Sunday Times and ARD, published in August 2015, analysed 12,000 blood test results taken from 5,000 athletes over the previous decade. An analysis by scientists Robin Parisotto and Michael Ashenden concluded that:
- In the period between 2001 and 2012 a third of medals won in endurance events at the World Championships and Olympics were won by athletes who had recorded suspicious test results.
- In some finals, every athlete who finished in a medal position had recorded a suspicious blood test result.
- More than 800 athletes had recorded blood test results that were abnormal or highly suggestive of doping.
- 80% of medals won by Russian athletes were won by those with suspicious blood test results.
The investigation did not purport to provide proof of specific anti-doping violations merely that suspicious test results existed.
The appointment of the WADA Independent Commission
WADA, which had already announced the appointment of an independent commission to investigate the claims made in the documentary, expressed its concern at the new allegations. President Sir Craig Reedie stated that it was “very disturbed by these new allegations... which will, once again, shake the foundation of clean athletes worldwide".
The IAAF released a statement condemning the use of private leaked data saying it was “aware of serious allegations made against the integrity and competence of its anti-doping programme" and that those allegations "are largely based on analysis of an IAAF database of private and confidential medical data which has been obtained without consent" but that it reserved the right “to take any follow-up action necessary to protect the rights of the IAAF and its athletes."
At the time of the new allegations the IAAF was due to elect a new president. Both candidates for the job, Lord Coe and Sergei Bubka, acknowledged the need to do more in the fight against doping; Lord Coe stating that the IAAF would “issue a robust and detailed response to them.”
Part I of the WADA Independent Commission Report
On 9th November 2015 WADA’s Independent Commission, consisting of former WADA president Dick Pound, prominent sports law academic Professor Richard McLaren and Günter Younger published Part 1 of its report. The report concluded that:
- There were many instances of inadequate testing and poor compliance with testing standards.
- Neither RUSADA nor the Russian Athletics Federation (ARAF) were anti-doping code compliant.
- 1400 samples had been maliciously and intentionally destroyed after WADA had requested that they be preserved.
- Russian Security Service personnel has been present at the Moscow and Sochi laboratories and this had been part of “direct intimidation and interference by the Russian state with Moscow Laboratory operations”.
- Russian law enforcement agencies had been involved in efforts to "interfere with the integrity of samples".
- Some Russian doctors, laboratory personnel and coaches enabled systemic cheating.
- There was evidence of multiple rule breaches by IAAF officials.
- The London 2012 Olympics had been sabotaged by widespread inaction against athletes with suspicious doping profiles.
The report recommended that the Moscow Laboratory have its accreditation suspended and that ARAF should be banned from the Rio 2016 Olympics. Russian authorities widely rejected the conclusions of the report, RUSADA chief executive Nikita Kamaev suggesting that some of the conclusions were “possibly policiticised”.
The following day the Moscow laboratory was prohibited by WADA from carrying out any WADA-related anti-doping activities. On 13th November the IAAF council voted 22 to 1 in favour of prohibiting Russia from participating in world athletics events, including the upcoming Olympic games. ARAF was ordered to entrust doping cases to the Court of Arbitration for Sport (CAS). ARAF accepted the indefinite suspension and did not request a hearing stating that it would co-operate “fully and actively” in order to be reinstated.
Meanwhile various investigations were taking place into the actions of high-ranking IAAF former officials. Former IAAF president Lamine Diack was arrested on 1st November 2015 by French authorities investigating claims that in 2011 he had accepted a one million euro bribe from the Russian Athletics Federation to cover up the positive doping results of at least six Russian athletes. On 9th November Interpol announced that it would co-ordinate the French led investigation. The IOC provisionally suspended Diack on 10th November and he resigned the following day.
On 7th January 2016, the IAAF Ethics Commission, headed by Michael Beloff QC, handed down life bans to three high-ranking IAAF officials including Papa Massata Diack, the son of Lamine Diack, and Valentin Balakhnichev former head of ARAF. They were found to have been involved in covering up Liliya Shobukhova’s positive test results and conspiring to extort bribes from her by means of blackmail. For a detailed review of the IAAF Ethics Commission report, please see this LawInSport article by Paul Greene (Global Sports Advocates) and Sean Cottrell: "Doping in athletics - a review of the findings IAAF Ethics Commission and WADA IC Report #2".
Part II of the WADA Independent Commission Report
“The corruption that occurred within the IAAF was not at the level of some foreign currency trader in a bank carrying out unauthorised transactions, without the knowledge or permission of the responsible bank officers.
Here it started with the president of the organisation. It involved the treasurer of the organisation. It involved the personal counsel of the president, acting on instructions of the president. It involved two of the sons of the president. It involved the director of the medical and anti-doping department of the IAAF.
The corruption was embedded in the organisation. It cannot be ignored or dismissed as attributable to the odd renegade acting on his own.”
The report further asserted that the IAAF Council, of which newly elected President Lord Coe had been part “could not have been unaware of the extent of doping in athletics”. Nevertheless, Dick Pound upon publication of the report publicly stated that “There's an enormous amount of reputational recovery that needs to occur here and I can't think of anyone better than Lord Coe to lead that.”
New allegations and reaction
In May 2016 Vitaly Stepanov made new allegations about the Sochi Olympics in a CBS network broadcast including, amongst other things, that Russian spies had posed as anti-doping staff to cover up cheating by Russian athletes. These allegations were backed up by the former director of the Moscow Laboratory who told the New York Times that there had been a state-backed system of covering up doping by replacing urine samples that had worked “like a Swiss watch”.
In response Russia’s sports minister, Vitaly Mutko, released a statement that the revelations were “a continuation of the information attack on Russian sport.” The IOC asked WADA to begin an investigation into these new claims immediately.
“the deep seated culture of tolerance [or worse] for doping that got the Russian Athletics Federation suspended in the first place appears not to have changed materially to date.
The head coach of the Russian athletics team and many of the athletes on that team appear unwilling to acknowledge the nature and extent of the doping problem in Russian athletics; and certain athletes and coaches appear willing to ignore the doping rules.”
In spite of this ban the IAAF, on the advice of lawyers, left open a “crack in the door” for Russian athletes who could prove they had been training outside the country to compete under a neutral banner at the Olympics.
Two days before the IAAF’s decision, WADA had published a report entitled “Play True – Update on the Status of Russia Testing” revealing that since the ban there had been 52 positive tests of Russian athletes and 736 declined or cancelled mandatory tests in the same period.
Several Russian athletes indicated that they would appeal the decision, with double Olympic gold medallist pole vaulter Yelena Isinbayeva stating
“This is a human rights violation. I will not remain silent, I will take measures. I’m upset for myself and the team of clean athletes who ended up out of work. No one protected us, no one defended our rights and the IAAF’s position on protecting the rights of clean athletes raises big doubts. We are being accused of something we didn’t do. I first of all consider this to be discrimination against Russians.”
Part I of the McLaren Report
On 18th July Richard McLaren released the first part of his WADA commissioned report into doping in Russia. It concluded that Russia had operated a state-sponsored doping programme across the vast majority of Olympic sports from 2011 to 2015. It was found that following the poor medal count at the 2010 Vancouver Winter Olympics:
- Russia had begun to make positive drugs tests disappear from its laboratories in 2011.
- A storage bank of frozen clean urine samples had been created prior to the Winter Olympics in Sochi.
- The Russian security service, the FSB, had access to the Sochi anti-doping laboratory using an agent disguised as a sewage and plumbing contractor.
- The FSB operated from a building next to the laboratory swapping positive urine samples for negative ones through a hole in the wall.
- Sample bottles had been tampered with using a tool that opened tamper-proof lids leaving only minute scratches.
- The Moscow laboratory had destroyed 8000 samples prior to September 2014.
McLaren concluded that Russia’s sports ministry had directed, controlled and overseen the manipulation of urine samples provided by its athletes. It was inconceivable that the Russian sports minister, Vitaly Mutko, had not been aware of the scheme. He stated that he had unwavering confidence in all of his conclusions.
In response Vladimir Putin promised to suspend those officials named in the report but criticised it as being based upon the testimony of “a person with a scandalous reputation” and warned against a "dangerous slide towards political interference in sport".
Thomas Bach, President of the IOC, described the findings that the report had uncovered as a “shocking and unprecedented attack on the integrity of sport and the Olympic games” and promised to enforce the toughest sanctions available on those involved.
IOC and IPC reaction to the McLaren Report and the Rio Games
On 24th July, the IOC decided not to impose a blanket ban on Russian athletes participation in the Rio Olympics instead deciding to leave it to individual sport’s governing bodies to decide whether athletes were clean and should be allowed to participate. Bach stated that:
“We have set the bar to the limit by establishing a number of very strict criteria which every Russian athlete will have to fulfil if he or she wants to participate in the Olympic Games Rio 2016. I think in this way, we have balanced on the one hand, the desire and need for collective responsibility versus the right to individual justice of every individual athlete."
Bans were imposed on the accreditation of officials from the Russian sports ministry and the removal of patronage of the IOC from sports events due to take place in Russia.
WADA expressed its disappointment in the IOC’s decision. Director General Olivier Niggli said the decision would "inevitably" mean "lesser protection for clean athletes". The United States Anti-Doping Association (USADA) said the IOC had delivered a "significant blow to the rights of clean athletes". Within the IOC itself there was also dissent. British IOC Member Adam Pengilly stated
“I believe that the Russian federation has mocked the Olympic movement and I worry about the future of clean sport, I worry about the future for clean athletes, the Olympic movement and the Olympic Games. Some have suggested the IOC has passed the buck and I'd have to agree. There's been an abdication of responsibility here.”
Russia eventually took 271 athletes to the Rio Olympics out of an original team of 389. Two sports, athletics and weightlifting, imposed a total ban with a partial ban on a further six sports. Russia finished fourth on the medal table winning a total of 56 medals including 19 golds. Russian boxer Misha Aloian was subsequently stripped of his silver medal for an in competition doping violation.
On 8th August, the International Paralympic Committee imposed a total ban on Russian participation at the 2016 Paralympic games. IPC President Sir Philip Craven said that
"The anti-doping system in Russia is broken, corrupted and entirely compromised. The Russian Paralympic Committee are unable to ensure compliance with and enforcement of the IPC anti-doping code and the world anti-doping code within their own national jurisdiction and they cannot fulfil its fundamental obligation as an IPC member.”
The Russian Paralympic Committee sought to appeal this decision unsuccessfully before the CAS.
Part II of the McLaren Report
On 7th December the IOC announced the continuation of its sanctions imposed on Russia. On the same day it emerged that Yelena Isinbayeva had been appointed to head the Russian Anti-Doping Agency supervisory board.
- More than 1000 Russian athletes across 30 sports were involved in or benefitted from the state-sponsored doping programme.
- There was no direct evidence that Vitaly Mutko, who had by the date of publication been promoted to Deputy Prime Minster, had known about the doping programme.
- The London 2012 Olympic games had been tarnished by corruption on an unprecedented scale relating to Russian doping violations.
McLaren appealed for international sports organisations and anti-doping bodies to stop infighting and collaborate.
Continued pressure on the IAAF
Meanwhile pressure continued to mount on IAAF president Lord Coe. In June 2015, a BBC Panorama programme had alleged, based on evidence from Dave Bedford, former race director of the London Marathon, that Coe had been alerted to the Russian doping scandal well before the ARD documentary aired.
Coe had been sent an email by Bedford in August 2014 containing several attachments detailing allegations from Shobukhova that she had paid to cover up positive doping tests after being blackmailed by senior IAAF officials. He told Panorama that he had not opened the attachments to the emails and had simply forwarded them to the IAAF Ethics Board chairman. In December 2015, he gave evidence to a select committee of the House of Commons that he “was certainly not aware of the specific allegations that had been made around the corruption of anti-doping processes in Russia."
In January 2017 emails between Coe and Michael Beloff QC were disclosed to the select committee in which Coe said that he had received copied documentation from Bedford about serious allegations made by Shobukhova and had “now been made aware of the allegations”. The Select Committee had sought to recall Coe to give evidence but he declined. He denied that there was any discrepancy between the emails and his earlier evidence.
In the same month, Nick Davies, who had been IAAF’s deputy general secretary under Coe, was expelled from the IAAF by the organisation’s Ethics Board for receiving money from Lamine Diack via his son contrary to IAAF rules and that further he had misled the Board’s investigation by Sir Anthony Hooper into the Papa Massata Diack affair. In doing so the Board made clear that “it is no part of our decision that Mr Davies acted in any way corruptly".
The state of play in 2017
In 2017, the fallout from the Russian doping scandal continues unabated. Russia’s full readmission to the international sporting community is still a matter for the future. In February 2017 the IAAF council voted to extend its ban until after the World Athletics Championships in London.
Pressure continues on international bodies such as the IOC and IAAF who are seeking to move on from the past and ensure that sport is cleaned up in the future.
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- Tags: Anti-Corruption | Anti-Doping | Athletics | Governance | International Olympic Committee (IOC) | Olympic Games Rio de Janeiro 2016 | Paralympic | Regulation | Russia | United Kingdom (UK) | World Anti-Doping Agency (WADA)
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About the Author
Rupert is a tenant at 4-5 Gray’s Inn Square and Kings Chambers.
He has substantial and wide ranging experience of sports litigation and advisory work including regulatory and disciplinary proceedings, anti-doping, free movement and right to play cases and contractual and sponsorship disputes.