Russian athletes will not have to discharge the impossible burden of demonstrating that they have not doped. As a result, most would-be participants will compete, and the IOC chief Thomas Bach has already said as much
Stephen Hornsby
Stephen Hornsby is a partner in Goodman Derrick LLP in the City of London. Over the last 20 years he has had extensive experience in the application of law to the regulatory and commercial aspects of sports businesses.
Russian doping ban is futile
14th December 2017, 09:03

A lot can happen on the way to the Olympic Games podium and the IOC can have some influence on that. But what happens on the podium itself is beyond its control - as Tommie Smith, John Carlos and Peter Norman demonstrated in their famous protest at the medal ceremony for the 200 metres in Mexico in 1968.

So, if medallists from Russia at the next Games decide to belt out their national anthem (or merely mouth it) in front of the watching world while the Olympic anthem is played, all the IOC can do (if it is so minded) is take reprisals after the event.

But taking reprisals against athletes after the event in this scenario will not be easy for the IOC. Any such protest by Russian athletes would be a ‘national’ protest, not dissimilar to the Nazi salute given by the German athletes on the podium in 1936. The IOC took no action against that at all because the Nazi salute was consistent with the national character of the competition.

Last week, the IOC ruled that selected ‘clean’ Russian athletes can compete in February’s winter Olympics in PyeongChang, but only under the name ‘Olympic Athlete from Russia’, wearing uniforms bearing this name, and competing under the Olympic flag, with the Olympic anthem to be played at any ceremony

Imposing this penalty on Russia, with the proceeds of the Sochi Olympics safely banked, is already embarrassing for the IOC. The only way that further embarrassment might be avoided is if somehow ‘Russian’ athletes are not present at the next Games.


Although individual athletes’ participation is apparently at the “absolute discretion” of the Olympic committee of the great and good that is set up to rule on participation, this is just a face-saver produced by lawyers  

But although individual athletes’ participation is apparently at the “absolute discretion” of the Olympic committee of the great and good that is set up to rule on participation, this is just a face-saver produced by lawyers. The presumption of innocence in the European Convention of Human Rights (which Russia has signed) although not always unqualified, is actually reflected in the criteria that the committee will apply.

Russian athletes will therefore not have to discharge the impossible burden of demonstrating that they have not doped. As a result, most would-be participants will compete, and the IOC chief Thomas Bach has already said as much. The real possibility therefore exists of serious embarrassment to the IOC in this scenario.

Just suppose Russian medallists ‘play the game’ on the podium (perhaps by signing a participation agreement with a restrictive provision to that effect) - what then? On the face of it, rather late in the day, the IOC would appear to have hit upon a proportionate remedy that could act as a deterrent for future bad behaviour by nation states. This could help to solve its major problem.

Its major problem is simply that since the Berlin Olympics was used by the Nazis as a showcase for its regime, the link between national prestige and individual sporting performance has been close and very unhealthy. It has led to ‘flag-of-convenience’ controversies involving most of the major nations. And, notoriously, it has encouraged state-sponsored doping by states other than Russia.

In punishing Russia but allowing individual innocent athletes to compete, it might be said that the IOC has weakened that link and if not ushering in a radical new dawn that Baron de Courbertin would approve of, has at least put a marker down.

It might be argued that states that finance athletes (like the UK does through the proceeds of gambling) will have to take note that they might be punished by this uncoupling of state and individual responsibility. In a purely hypothetical example, if a state were to actively countenance programmes where the pursuit of ‘marginal gains’ to obtain medals crosses the line into cheating, it would be taking a serious risk as extension of the precedent could lead to similar punishment to that meted out to Russia.


States might not get behind their athletes in future to the same degree if the national anthem might not accompany their trip to the podium  

As a result, defenders of the IOC might argue that the risk of extension of the IOC’s new principle extended in appropriate circumstances provides therefore some deterrent. But there are difficulties with this which suggest that the Russian precedent has not got legs; states might not get behind their athletes in future to the same degree if the national anthem might not accompany their trip to the podium. Indeed, a cynic might assume that if you cannot buy success, why play the increasingly expensive state subsidy game?

This is dangerous territory for the IOC. The IOC is deeply wedded to the nationalism of the event; its ability to attract bidders for the Games would be diminished if states’ involvement in sport were to slacken. Anyone hoping that the Russian precedent provides a serious enforcement tool is likely to be disappointed.

Idealists, such as UK journalist and commentator Simon Jenkins, will continue to dream that athletes should participate in their own name only – thus breaking definitively the link that has led to so much corruption. Unfortunately, dreams are just dreams and the circus will surely continue, no matter how much fodder it continues to provide for its critics.

In the meantime, however, the legacy of Tommie Smith’s protest should haunt the IOC until the next Games are safely over; for its punishment of Russia, quite apart from putting Fifa in a terrible position, will revive memories of its own unsightly historical record.

Sportcal