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Russia’s Paralympics ban based on report unworthy of paper it's printed on – sports lawyer

The Olympic Games in Rio were marred by scandal as Russia’s track and field athletes were banned from participating in the games, just as the entire Paralympics team was denied permission to take part in the competition. These harsh decisions were made based on a single report by WADA that alleged state-sponsored doping in Russia. With the ban coming so close to the Games, none of the athletes really had any chance to defend themselves – with the burden of proof put on them instead of those making the accusations. But the report has plenty of murky areas – how convincing is the evidence presented in WADA’s report against Russia? And why resort to a blanket ban and risk punishing innocent athletes? We ask sports lawyer, Chair Emeritus of the Institute of Sports Law and Ethics, Distinguished Career Institute Fellow at Stanford University – Ron Katz is on SophieCo today. 

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Sophie Shevardnadze: Ron Katz, sports lawyer, distinguished Distinguished Career Institute Fellow at Stanford University, welcome to the show, it’s really great to have you with us. So, Ron, the entire Russian Paralympics team has been banned from the games in Rio by the International Paralympics Committee, due to accusations of widespread doping. But Russian President Vladimir Putin says the idea of “collective responsibility, is not compatible with sport, justice, or the basic norms of law". Do you think it was legally sound to impose a blanket ban?

Ron Katz:No, not at all. I agree that mass punishment is against the major tenets of Western civilization, because it means you would be punishing innocent people.

SS:Now the Court of Arbitration for Sport has upheld the IPC’s ban of the Russian team for the Paralympics. This decision was based on the findings presented in the McLaren report, commissioned by WADA - the World Anti-Doping Agency. Why has this report been enough to ban - dozens of Russian Olympians, and the entire Paralympic team? Was the Court of Arbitration for Sport pressured to reach this ruling in your opinion?

RK:I don’t know what their reasoning was, but I know that the McLaren report is not worth the paper that it’s printed on, and the reasons for that exist in McLaren report itself: he was not a neutral person, he had written a previous report against Russia, used anonymous sources - no court in a civilized country would allow anonymous sources to be the basis of the charge. He depended on an informant that was very unreliable, and, in fact, in the previous report that Mr. McLaren wrote, they determined that Grigory Rodchenkov was not telling the truth, and in this report 8 months later he determined that he was telling the truth - so, obviously, something is problematic there. So, this report, really, should not have been relied on, and would not have been relied on in any court in any civilized jurisdiction.

SS:So, what do they base their decision on then? Because, I know, you’ve called people who make decisions on these matters “removed from reality”. So, what are they basing decisions on?

RK:I think that the Court of Arbitration of Sport clearly dependent on the McLaren report, and insofar as they did… as I said, no reasonable decision-maker could rely on the McLaren report. It is invalid by its own terms and it is contradicted by the report 8 months earlier of which Mr. McLaren was one of the three authors. Please, don’t ask me to explain what the Court did, because I don’t think it’s explicable.

SS:Sports lawyer Dr Lucien W. Valloni, who defended Russia’s Paralympians at the Court of Arbitration for Sport, said there was no legal argument for banning Russian athletes, just like what you’re saying. Here’s what he said, let’s listen:

Dr Lucien W. Valloni:  “I personally have heard the president of the IPC saying that ‘the only goal of their suspension was to not see any Russian flag hanging at the Rio Paralympics’.

SS: Can the whole ban really be politically motivated?

RK:I think that any time you ban an entire nation’s athletes and that you are acknowledged, the court acknowledged that it was punishing innocent athletes as well as possibly guilty athletes, then you would have to look for other reasons beyond the law, and one of those reasons could be prejudice, sure.

SS: Now,  The International Olympic Committee, which is separate to the Paralympic one, was in a similar situation. But it resisted pressure to hand down a blanket ban on Team Russia in Rio. Why then has the IPC not done the same?

RK:First of all, I don’t think that what the IOC did was proper either. They also had the potential in what they did of punishing innocent people and they put the burden of proof on the athletes, which is incorrect. The burden of proof should be on the IOC to show that something is wrong, that’s why we have a testing system: you test someone, and if they did something wrong, you punish them, you don’t punish them in advance. So, I don’t think that what the IOC did was correct. It was somewhat better than what the IPC did, I’ll grant you that, but I don’t think it was correct at all and they also depended on the McLaren report which is invalid.

SS:So what do you think would have been the right way to do things? How should  they have gone about this?

RK:They have a system which is to test the athletes, and if the athletes fail the test, then they are punished. That should apply, whether it’s individual doping or alleged state doping - all doping is bad, I don’t know of anything that says “state doing is worse than individual doping”, in fact I think there are arguments that individual doping is worse because the individual has complete free will. So, you have a system in place. What I say is - use the system!

SS:The IPC barred more than 175 Russian paralympic athletes who had applied to compete individually at the games, even though it's been acknowledged that the number of those implicated in the McLaren report is unknown. Why weren’t ANY of the paralympians allowed to compete as neutral athletes in Brazil?

RK:I think what the IPC did was essentially just agree with itself. They basically said “what we did before - oh yeah, that was right!” - so there wasn’t really much suspense about whether those 175 or 185 appeals would be granted. It was clearly pre-judged that they would not be granted.

SS:Also, the Swiss Federal Tribunal, where the paralympians appealed, said that the cases of individual athletes could not be dealt with separately - why not?

RK: I think the Swiss Court does something a little bit different from a Court of Arbitration of Sport or the IOC or the IPC, and what the Swiss Court does is to just say “were the procedures of those organisations followed?” and the Swiss Court says, “Yes, the procedures were followed” - I don’t think they really made a substantive determination that anyone had doped or there was state-sponsored doping, but I also disagree with the Swiss Court, because you cannot have a fair report or a fair determination if someone is not neutral, and Mr. McLaren was clearly not neutral. He had already written a report that indicted Russia, so of course, all he was doing, was really agreeing with himself.

SS: Russia’s Paralympic committee chief says most of the athletes are absolutely ‘clean’ and has called the IPC’s decision unjust. Do innocent athletes still have grounds to contest the decision's legality - as a violation of their rights? Can this matter be resolved at the Human Rights' Court, for instance?

RK:I think that those athletes may have cases in national courts, also, the IOC case is not finished yet. The Court of Arbitration for Sport did issue its grounds in the Paralympics case, and that was decided by the Swiss Court. But the Court of Arbitration for Sport has not yet issued its grounds in the IOC case, and there will still be possible appeals to the Swiss Court. I, for one, would be very happy to be a part of a legal team representing team Russia on that report, but I think Russia has a very strong case. So, that is the one thing that’s left in this particular arena, and whether there are actions in national courts - that is something I have not studied.

SS:So will we ever see the legal grounds for this decision?

RK:Well, the decision was made, I think, on July 21st, so it’s now 50 days. The Paralympics decision was rendered in 23 days. The press-release announcing the decision said it would be made as soon as possible, but apparently “as soon as possible” doesn’t count 50 days out. So, I don’t know when we will see it.

SS: So what’s stopping them from presenting an explanation?          

RK:Maybe they’re having second thoughts, maybe they’ve read the McLaren report and they see that it’s not a valid report.

SS:The scandal has seen unprecedented amount of media reaction, with respected media outlets in US, Germany, etc. openly calling for the IOC to ban the whole Russian Olympic team outright - could all of this pressure have influenced the court’s legal judgment?

RK:I think it definitely did. There was a big article in the New York Times in May, with exclusive interview with Grigory Rodchenkov, and that article was not a balanced article. They left out certain things, very important things, in that article. For example, they left out that the Independent Commission of WADA that had studied Grigory Rodchenkov and had interviewed him, had determined that he was not a credible person.

SS:The United States, among other countries, have all had their Olympic scandals before - with plenty of athletes stripped of medals retrospectively - the New York Times, previously, it cited that the U.S. Olympic Committee covered up positive test results for its athletes taking banned substances, while American Olympic medalist, Carl Lewis, even claimed that hundreds used to get away with cheating when he was competing... So this doping scandal is nothing new, yet the reaction against Russia has been huge - Why's that the case?

RK:I think that the press had a lot to do with it, particularly the prestigious New York Times that left some important things out of its article, and you’re right - doping is an international epidemic and the way to deal with doping is to have a good testing system and to punish those who are caught. It Is not a good way to deal with it by punishing people before they have done anything wrong and to punish innocent people.

SS:Alright, let’s talk in detail about the McLaren report. The Canadian lawyer, Richard Mclaren - the author of the WADA report on doping, says he has plenty of hard evidence backing his conclusions but won’t show it - here’s what he said, let’s hear it:

Richard McLaren: “We have all of that evidence locked up, some of it has been provided by a way of confidential arrangements, so we haven’t published it, but we certainly have it, and we’re not going to publish it because of the need to protect the sources”.

SS: So how are people supposed to believe in the credibility of this report when the evidence is withheld?

RK:I think you can’t, and furthermore, Mr. McLaren said that he did not interview anyone in Russia, even though he had received materials from a government official in Russia, and to me that showed how he had pre-judged the situation. But the use of anonymous sources is absolutely not a basis for any finding of anything.

SS:Right. And also, he’s saying “he is worried about the safety of the evidence”. What kind of concerns could those be?

RK:I can’t speak for Mr. McLaren, all I can say is, if you write a report it has to be based on evidence. He wrote not one report, but he was co-author of a second report and that second report that was issued just 8 months earlier found that Grigory Rodchenkov was not credible, and they also found that he was taking bribes from athletes in order to change their tests. So, Mr. McLaren himself has done a flip-flop in 8 months.

SS: Richard McLaren seems sure his findings are all proved beyond reasonable doubt - whatever that means -  who are we to argue, right?

RK:Mr. McLaren says something else in his report, which, to me,  is unbelievable. He says - and I’m quoting - he “only skimmed the surface of the evidence”. So, if you don’t look at all the evidence, how can you possibly know that something has been proved “beyond the reasonable doubt”? You have to look at all the evidence, because later evidence may show something different. That’s why we look at everything. So, I would say that Mr. McLaren went off half cocked at the very least.

SS:Now, as you’ve said previously,  Mclaren has admitted that he “did not seek to interview persons living within the Russian Federation” - which seems crazy to me - and ‘didn’t need an explanation about what’s going from somebody else’, since it would amount to ‘denial’. Leaving the Russian side of the story out the picture - does that take away any credibility from the report?

RK:You have to look at all the evidence, you have to try to talk to all of the people, and it indicates, really, two problems. The first is, that he was not a neutral person, he had written a previous report, and what he says in this report is: “Well, I didn’t have good conversations with the Russians at that time, so I know I wouldn’t have good conversations with them now”, and that really shows that he was not neutral. Secondly, he didn’t even try to have conversations with the Russians. So, the proper thing to do, is to make requests and if people turn down the requests, then you can say “well, I asked Mr. so and so for an interview and he refused me”, and then that goes into report, but he did not even try. So, to me, it just completely undercuts the credibility of his report.

SS:Now, like you’ve said, you’re not convinced McLaren was the man for the job - seeing how he was previously involved with WADA and as such isn't a neutral observer. Why did WADA appoint him to conduct an investigative report - when it was supposed to be independent?

RK: I have no idea why they appointed him, I think this was a very poor choice and what makes it even more scandalous now, is that he’s disagreeing with the earlier report of which he was one of the three co-authors. So, the choice is mystifying to me, there’s many-many independent people in the world, there’s many respected sports lawyers, sports practitioners who could have done this - so why you would choose someone who would probably be, I would say, one of the three worst people in world to choose - the other two would be the other two authors of the earlier report. One part of that report came out in November 2015, and one part of the report came out in January 2016. So, he was definitely one of the three worst people that you could choose in the world for this job.

SS: Is there any way to determine the credibility of the whistleblowers that came forward and accused the Russian government of covering up doping? Where is the guarantee that the ‘unnamed witnesses’ are presenting any truthful evidence?

RK:Obviously, you can’t have guarantees about any unnamed witnesses because we don’t know who they are, so that’s just ridiculous, but in terms of the one that we do know - Grigory Rodchenkov - we do know that his credibility was questioned. He was actually called someone who did not have credibility in the November 2015 report, which Mr. McLaren co-authored. So, we know from that report that he was not credible. Somehow, in 8 months, he went from not-credible to credible when Mr. McLaren wrote his report in July. How that magical process occurred is something that only Mr. McLaren knows.

SS:Let’s say there are some unknown sources to us  - could McLaren himself had been mislead by sources he thought reliable?

RK: Of course, anyone can be mislead, but the idea of anonymous sources is just a non-starter. You can’t have anonymous sources, you can’t evaluate anonymous sources. Anonymous sources do not meet the standard of any court in any civilized country in the world.

SS:Mr. McLaren claims he's seen proof that the athlete’s doping tests were tampered with. However, the makers of the bottles used for the tests have said that - to their knowledge - it's impossible to tamper with them and it not be noticed. This directly contradicts McLaren’s comment. So are the bottle-makers just protecting their own reputation here? What are you thinking?

RK: What supports the bottle-makers is that no one has been able to reproduce this tampering with the bottles, and I would say that that strongly supports the claims of the bottle-makers. Until somebody comes up with a way to actually do this - to me, it cannot be done and it has not been done. The best way to prove that it can be done is to do it. So, if Mr. McLaren thinks it can be done, he should do it or he should find somebody to do it. He has not done that, and to me that means that he’s just blowing smoke.

SS:Let’s talk about WADA and what kind of job it does in general.  If WADA has to resort to banning whole teams - the Russian track and field one, and Russia's Paralympic team - does that mean it’s not doing its job properly? WADA was supposed to be responsible for monitoring Russia’s anti-doping agency. Why does a whole group of athletes have to pay for someone not being up to standard?

RK:I think WADA is a broken organisation and the person who said that is the head of WADA, Mr. Craig Reedie and it clearly has not been doing its job, and it's not a compensation for not doing your job to just issue a mass ban. That is really an omission of failure.

SS:Thomas Bach, the head of the IOC, has blamed WADA for the confusion and bad timing of the whole affair, basically saying it’s WADA’s fault that the decision was made at the last minute before Rio 2016. Is he right to criticise WADA?

RK:As I said, the head of WADA has acknowledged that it’s a broken organisation. They were looking at drug tests, as I understand, from 2014 Olympics, so they had almost 2 years to do look at those tests, and yet they came up with this just 50 or 60 days before Rio Olympics, which caused this tremendous rush to justice and of course you can’t rush to justice. Anytime you rush to justice, you’re going to make mistakes and that’s exactly what happened in this case. Indeed, that may be why they chose Mr. McLaren - he already decided this, so obviously, it won’t take him very long to decide it again, all he has to do is to agree with himself, so that’s probably why he was chosen.

SS:Russian long jumper Daria Klishina was initially allowed to compete in the games, then she was banned on the eve of the competition - but she had time to take her matter to court - where the ban was overturned. Russian swimmer Yulia Efimova also had to go to court over her ban - and was kept in limbo right until the very start of the games, when she was actually allowed to compete. Is there any reason for holding off decisions like this until the very last minute? Putting athletes under such pressure?

RK:Again, it starts with the incompetence of WADA, and then I think that the Court of Arbitration for Sport is just really an old boys’ network, they just accepted the McLaren report. They couldn’t have possibly read it, because if you read it, as I say, it falls on its own terms, and then, at the end, what should be a wonderful event, all the nations of the world competing, and the IOC should be very dignified, ended up looking like a slapstick comedy.

SS:If Klishina’s or Efimova’s bans were overturned in an appeal case - does that mean the bans were weak in the first place? So is there any guarantee the other bans were solid?

RK: The mass bans certainly were not solid. I would say, you just cannot make a mass ban, period. The other ban should be determined on a case-by-case basis, and as I said, we have a testing system in place. I also think there should be some sort of Statute of Limitations for the testing system. The idea that we test these things for years and then, you know, years later we find out that Mr. so and so or Miss so and so shouldn’t have taken the first place… it’s really sort of meaningless. I think they just have to make a cut-off, they have to make the best system possible and then once the competition ends and people pass the test, I think they should just say: “Fine, they passed it, now let’s move to the next one”. Otherwise there’s never an end to it.

SS:The doping scandal this time started with a documentary film by German broadcaster ARD, which was followed up by WADA's McLaren report - could the Russian government go to court over the claims made against it?

RK:I have not looked at the legalities of that. I know that wrong has been done, I think the ARD report has not been questioned, also the Sunday Times, I don’t think that that report has been questioned, but the subsequent actions, I think, are wrongful, and usually, when something is wrongful, then there’s a legal claim. But I have not researched whether there’s an actual legal claim or not.

SS:WADA also called on football's world body 'FIFA' to investigate the Russian sports minister's role in the alleged doping programme - that's of course ahead of the 2018 World Cup in Russia. Could Russia’s role as host be in jeopardy after the Olympic games?

RK:I don’t know what use people will make of this, I think that it should come to an end, and I think there should be an absolute separation of sport and politics. If we don’t separate sport and politics, we just have chaos. What we have right now is chaos.

SS:Ron, thank you very much for your insight and expertise. We were talking to Ron Katz, sports lawyer, Distinguished Career Institute Fellow at Stanford University, discussing Russia’s Paralympic team ban from the Rio Games and controversial WADA report behind it. That’s it for this edition of Sophie&Co, I will see you next time.