By the time the 2018 Winter Olympic Games opened in PyeongChang last week, the masterminds behind the so-called Russian doping scandal had finally lost their control of the narrative, causing irreparable damage to the Olympic movement and to sports in general. The politically motivated actions of a tiny group of functionaries in the sports industry have discredited the very concept of the purity of athletics and have resulted in a sharp drop in the world’s interest in the Games in PyeongChang. This is evident in the disastrous attendance figures (a month before the competitions began only 60% of the tickets had been sold, and the most popular events, hockey and figure skating, had the highest number of unclaimed seats) and could also be seen in the significant drop in the IOC’s ad revenues.
The reason for this downward spiral is obvious, when some athletes are discriminated against based on their nationality while others run mad with impunity, this not only ruins the element of suspense in the competitions, it also kills off spectator interest and advertising contracts.
Let’s take a quick look back at the time line of events. After the Russian Olympians’ stunning victories in 2014, which did much to spur the success of the “Russian Spring in Crimea” three weeks after the Richard Pound
On May 12, 2016 the New York Times published a media bomb based on information provided by Rodchenkov. It alleged that a special “doping program” was developed in Russia before the 2014 Winter Olympics in Sochi, involving several dozen athletes, and its “specialty” supposedly consisted of anabolic steroids that were washed down with alcohol (!). Then, in order to verify these borderline-bizarre allegations, WADA, at the IOC’s request, established yet another commission, this one headed by McLaren, which in July 2016, just a few weeks before the start of the Olympic Games in Rio, released the first (apparently urgent) section of its report that made the unsupported claim that the doping program in the world of Russian sports had the backing of the Ministry of Sports, the Sports Training Center for Russian Teams, and the Russian Federal Security Service. On the basis of this “document,” which was never subsequently deemed convincing by any judicial authority, practically all Russian track and field athletes, as well as several competitors from other events, were banned from the Games in Rio.
In November 2016 a new legislation took effect in Russia making it a criminal offense, with a punishment ranging from a fine to 3-5 years imprisonment, to induce an athlete to use doping drugs.
On December 9, 2016 the second part of the McLaren commission’s report was released. It claimed that the samples taken from 12 of the Russian medal winners at the 2014 Winter Olympics had been doctored. It also stated that more than a thousand athletes might have been involved in or benefited from manipulations to conceal positive doping tests. On the basis of this report, the IOC decided to strip the Russian national team of 13 of its medals won at the 2014 Winter Olympics. But on February 1, 2018, the CAS (Court of Arbitration for Sport) issued its own verdict, restoring the rights of 28 of the 42 Russian Winter Olympians affected by the IOC’s actions, including all of those who had lost their medals, and this fact would seem to put into question the legality and validity, at the very least, of McLaren’s report, based on the following statement found in that verdict:
In 28 cases, the evidence collected was found to be insufficient to establish that an anti-doping rule violation was committed by the athletes concerned.
Decisions about what to do with the remaining athletes were either postponed because it was no longer a pressing matter (the athlete in question had already retired) or else the plaintiffs’ appeals were partially upheld. The lifetime ban on participation in the Olympic Games was lifted from all the applicants.
Despite the fact that the court blocked the IOC’s arbitrary decision to strip the Russian athletes of the medals they had won in Sochi, there was not time to challenge another egregious verdict: suspending the Russian Olympic Committee’s membership in the IOC and forcing the Russian team to compete in PyeongChang under a neutral Olympic flag.
Before we try to get the lowdown on this story, we must emphasize once again: both of these “investigative commissions” were established in the immediate aftermath of the made-to-order and in many respects fake news reports in the Western media about “doping in Russia.” The biggest tipoff that they were fake was the fact that the main protagonists of this “investigative journalism” were individuals who had been justifiably punished or prosecuted in Russia for either using doping drugs or inducing others to use them, and under pressure from their media patron, those individuals extrapolated from their own sad experiences in front of the cameras to condemn the entire Russian sports community. The hack jobs by Hajo Seppelt and the New York Times on the subject of Russian doping are examples of fake news in its purest form.
So, to all appearances, shortly after Russia’s triumphant performance at the Sochi Olympics, a small group of predominantly Anglo-Saxon sports functionaries made the decision (at present it’s hard to say whether they did so independently or at the behest of someone higher up) to ensure that there would be no more unpleasant surprises in the future. They hired several professionals, the most publicly visible of whom were Richard McLaren and Hajo Seppelt, to help out with the media on their project and lend it an air of expertise (proof that McLaren is in no way an “independent lawyer” can be seen in his outraged reaction to the February CAS decision).
In addition to the challenging task of discrediting Russian athletics in the international media, these individuals had to conduct a backstage war with the International Olympic Committee at the same time. Far from everyone in the IOC’s leadership was delighted at the prospect of the nascent scandal and the serious damage to the Olympic movement that was being broadly predicted three years ago. This is quite evident from the copies of the email correspondence (seemingly quite genuine) between IOC officials in regard to the doping scandal that have recently appeared on the Internet.
Without question the most illustrative example of these was the exchange of harshly worded letters between McLaren and the Director General of the IOC, Christophe de Kepper, which took place in March 2017. They were prompted by de Kepper’s February 24, 2017 memo that was circulated to the members of the IOC Executive Board, the National Olympic Committees, and international sports federations, which contained criticism of McLaren. In particular, it noted that “the work of the Oswald Commission and of the IFs is not easy,” as McLaren’s mandate “did not involve any authority to bring Anti-Doping Rule Violation (‘ADRV’) cases against individual athletes.” In regard to accusations that a “state doping system” exists in Russia, de Kepper stated with bewilderment that in his reports McLaren could not even stick to a consistent terminology: in some places he speaks of a “state sponsored system” whilst in the final full report he described an “institutional conspiracy.” The main problem, as de Kepper acknowledges, is the lack of sufficient evidence to back up the accusations against the Russian athletes:
The establishment of acceptable evidence is a significant challenge, as some IFs have already experienced; where in some cases they have had to lift provisional suspensions or were not able – at least at this stage – to begin disciplinary procedures due to a lack of consistent evidence.
As can be seen both from the text of the memo and in other publicly available confidential IOC documents (for example, a stunningly open list of questions for Prof. McLaren, dated December 19, 2016 and drafted by the IOC Disciplinary Commission chaired by Samuel Schmid after examining his final report), in the first days after the report’s publication, the IOC and international federations were faced with the difficulty of digging up any shreds of evidence backing McLaren’s allegations. Questions have even been raised in regard to the accuracy of the translation of the materials found in the report (apparently translated from Russian):
At the recent meeting (21 February) held by WADA in Lausanne to “provide assistance to IFs regarding how to analyse and interpret the evidence”, it was admitted by WADA that in many cases the evidence provided may not be sufficient to bring successful cases. IFs were told by WADA to make direct contact with the IP team to try to obtain further information. WADA also explained that the translations used by the IP team were not adequate and was obtaining official translations of some of the texts.
International sports officials had a foreboding even back then that they could expect a real grilling once matters made it to the courts and arbitration tribunals:
It is already evident from the appeals filed against some International Federations provisional suspension decisions that the IOC decision will have to stand up to a strong legal challenge.
It is also interesting that in his memo de Kepper makes it clear that WADA’s flawed and one-sided efforts were much to blame for the scandal over “Russian doping”:
The IOC is also pursuing the reform of the WADA system… We are driving forward to establish an independent testing authority – independent from sports organisations and from national interests… Sanctioning should be delegated to the CAS as the IOC successfully did at the Olympic Games Rio 2016… The IOC has made proposals for more accountability, transparency and diversity [of WADA].
The Belgian lawyer and IOC Director General Christophe De Kapper was one of the few officers inside the Committee who tried to follow the rule of law during the “doping scandal”.
You are unlikely to have read Prof. McLaren’s March 2, 2017 response to this memo. But it’s quite interesting and a few passages from it deserve to be quoted here.
First of all, the professor expresses his intense dissatisfaction with the fact that he was not informed in advance about the drafting of the memo and also that the issues in dispute were never discussed with him:
It would have been helpful if you had spoken to me in advance so that I could have addressed the various issues you raise in relation to my Report.
Second, he tries to argue that he had never been tasked with searching for evidence of doping by any specific Russian athlete:
It was not my mandate to bring violations against individual athletes. I am concerned that the IOC seems to be on a quest to re-define my mandate by attempting to establish that my Reports are inadequate for a purpose for which they were never intended.
In regard to the confusion about the terminology (“state sponsored system”), McLaren acknowledges that the fantasies of those who fabricated information for him about “Russian doping programs” did not rise higher than the ministerial level (“My evidence stopped at the Ministry of Sport”).
Finally, as for the inaccuracies in the translations, it turns out that he had no intention of making those official:
The translations into English by my team… were never intended to be ‘official’. They were provided on the Evidence Disclosure Package (EDP) to assist users and not to certify the translation for some legal purpose.
Incidentally, in later comments with respect to the last passage, de Kepper’s office quite sensibly remarked:
It should be pointed out that the IOC as well as (and maybe even more so) the IFs are being asked to take some very tough decisions, with serious legal and non-legal consequences, on the basis of the Report(s).
In general, de Kepper’s team’s reaction to Prof. McLaren’s letter and their stiff response indicate that the IOC had a pretty accurate picture of both the motives driving the Canadian lawyer as well as the mandate assigned to him:
It seems that Robert (sic) McLaren’s first Report was intended to lead to the complete expulsion of the Russian team from the Rio Games, and the second – to expulse the Russian team from Pyeongchang Games, but not to deal with athletes on an individual basis. Perhaps McLaren and WADA should have thought this through in more detail prior to the Reports being made public – in particular, to themselves to have had the courtesy to discuss this matter of principle with the IOC in further detail, before WADA went down the path of using the (first) Report to try to have the Russian team excluded from the Rio Games, rather than McLaren and WADA considering to go down the path that the IOC intended to take, namely, to deal with the individual athletes on a case-by-case basis. This put the IOC and the IFs, and the Olympic movement in general, in a very difficult position.
It should be noted that the insiders at the IOC Executive Board peppered their letter from McLaren with comments that indicate that the Canadian professor is lying at every turn:
As a result, de Kepper’s response has some harsh things to say about McLaren’s claims that he supposedly always cleared his reports with the IOC in advance:
I am sorry to inform you that this has simply not been the case. We made multiple requests to be allowed to have advanced view of your documents with the promise of total confidentiality ahead of publication but sadly this was never forthcoming. Indeed, in the case of the first interim report you even told us that “this content does not primarily concern you.”
De Kepper even twice transparently drops hints to McLaren, implying that the latter, in his role as a professional lawyer, must, after all, easily be able to see for himself how decisions that will inevitably face a strong legal challenge must be drafted:
As a senior and respected international lawyer, you will certainly appreciate that the process of gathering credible evidence against individuals, sufficiently robust to ensure convictions in a manner which justice is done and seen to be done, is a long and detailed process. It was for this reason that it was felt necessary and important to send a communication to the Olympic Movement on the work by the two IOC Commissions to explain the process and describe the work that was being done. Indeed, it was the very fact that your mandate did not extend to individual cases that impelled us to explain to our stakeholders the process that is underway to complete this work.
This may well be the case – but as a law professor I hope you will agree that this is another instance where the standard of evidence we will need to successfully prosecute cases is higher than the evidence you have provided.
In general, de Kepper’s letter in many places deserves to be quoted verbatim:
As for the matter of you changing your description of the affair from a ‘State sponsored’ system to an “institutional conspiracy” this does seem to mark a change in attitude on your part. However, whatever your final conclusions, whilst your report does indeed uncover a conspiracy there is precious little evidence as to who would be involved in such a conspiracy. Would this again be a case that ‘goes beyond your mandate” or would you be able to indicate and provide evidence of who exactly may have been involved in this conspiracy. At present you have left us with good evidence that a crime has been committed but little evidence of those who were responsible.
Let us both agree that cooperation has not always been what it should have been between the IP team [Independent Person – a sleek euphemism, used by Prof. McLaren to indicate himself in his reports – OR] and the Olympic Movement. You have brought to our attention the limits of your mandate. However, please note that, in view of these limits, the IOC and, in particular, the IFs have ended up bearing a huge and very difficult burden in trying to convert the material/information referred to in your Report into Anti-Doping Rule Violations against individual athletes. A further problem was created by your Report (and the previous Report regarding this subject) seemingly being used to try and justify a total ban of the complete Russian Olympic team from the Rio Games and the Pyeongchang Games when, in fact, the IOC and the IFs are/were simply not of the view that a collective punishment should be, or should have been, imposed upon all Russian athletes [all emphasizes done by OR].
It is clear that such cooperation [between the IOC and IP team – OR] is now needed if we are to do our job and to turn your general conclusions about an ‘institutional conspiracy’ into concrete findings against individuals and organizations and also if we are to successfully prosecute individual cases with at least a chance of success at CAS. WADA has said that International Federations need to contact your team directly to receive materials. It would be good to receive your cast iron agreement that your team will offer this full cooperation and allow us to go beyond your mandate and prosecute successful cases against individuals and organizations based on evidence that will stand up in a court of law.
It is interesting that during those same few days when de Kepper was working with his staff to draft the letter answering McLaren, de Kepper was also corresponding with the chief executive officer of the US Olympic Committee, Scott Blackmun.
That correspondence was in reference to the statement from the US Olympic Committee, circulated on March 10, 2017 by the leading global news agencies, that it was preparing some kind of “position paper” in advance of the March 11-12 World Anti-Doping Agency Symposium in Lausanne (Switzerland), which would include American proposals for reforming WADA, specifically stipulating that “there must also be a clearly independent anti-doping body with overriding global authority of those national anti-doping organizatio…