By: Alexandra Stafford
Russia will forever be recorded as having zero medals in the 2018 Pyeongchang Winter Olympics.
The International Olympic Committee (IOC) announced that a major competitor of the Olympic Games, Russia, is banned from the 2018 Winter Olympics in Pyeongchang, South Korea “with immediate effect.”  The decision stemmed from Russia’s system of state-supported cheating by athletes using performance-enhancing drugs. The IOC charged that Russian engaged in a “systematic manipulation of the anti-doping system” and deployed an “anti-doping laboratory” at the 2014 Winter Games in Sochi, Russia.
Along with banning the Russian team, the IOC also banned from the Olympics for life Russian Deputy Prime Minister, Vitaly Mutko, and Olympic committee and IOC member, Alexander Zhukov. Further, the IOC charged the Russian Olympic committee a fine of $15 million to pay for the investigation and future anti-doping work. According due process, these sanctions could be challenged at the Court of Arbitration for Sport.
However, Russian athletes may be included in the Winter Games if they can establish that they are “clean” under strict scrutiny according to the IOC. Athletes who can meet the requirements will compete as neutrals, without the Russian flag at their backs.
This is not the first time the IOC banned a country from the Olympics. The first countries banned from the Olympics occurred in 1920 where Austria, Bulgaria, Turkey, Hungary, and Germany were banned due to their involvement in World War I. More recently, in 2000 Afghanistan was banned from the Olympic Games in Sydney due to its discrimination against women under Taliban rule as well as its prohibition of sports of any kind. In Rio in 2016, many Russian individual competitors were banned due to the state-sponsored doping and the Kuwaiti Olympic Committee was suspended due the interference from the government. However, the 2018 Winter Olympics marks the first time that the IOC has outright banned a country for alleged cheating.
IOC’s Case Against Russia with Emphasis on Due Process
“If medals were awarded for due process, the International Olympic Committee would have received the gold,” says Dionne Koller, professor of law and director of the Center for Sport and the Law at the University of Baltimore School of Law.
The decision to ban Russia from the 2018 Winter Olympics comes after years of suspensions of Russian athletes testing positive for performance-enhancing drugs. The decision by the IOC’s Executive Board to ban the whole country from the games was based on the Schmidt Commission’s reports of institutionalized cheating through state-sponsored, calculated doping of Russian athletes. Although there was ample evidence to ban the country for the 2016 summer games in Sochi, the IOC specifically did not take action because they wanted more time for Russia to be heard. Following this mentality, the decision of the IOC Executive Board, Report of the Schmidt Commission, repeatedly mentions “following due process” and using “proportional sanctions” for the state-sponsored manipulation of the games while still protecting those athletes who are “clean.”
The IOC’s decision is based off of two comprehensive investigations. First, the disciplinary commission investigated Russian officials for violations of the Olympic Charter and World Anti-Doping Code (WADA). Second, another commission investigated individual Russian athletes and support personnel from the Sochi Olympics. From these reports, about 25 athletes were found to have committed a doping offense.
Further evidence was gathered from witness Dr. Grigory Rodchenkov, the head of Russia’s anti-doping organization’s Moscow lab. Rodchenkov admitted that he devised drug cocktails and administered steroids to athletes. Some reports indicate that Russian security facilitated urine swapping so the doped Russian athletes would not be caught. Other whistleblowers allege that “99% of Russian athletes have taken performance enhancing drugs at some point.”
The World-Anti-Doping Agency (WADA), which is an international independent agency that enforces anti-doping regulations, provided further evidence prior to the IOC Executive Board. WADA concluded that Russia promoted a state-sponsored doping program for the 2014 games in Sochi and benefited in both Olympic and Paralympic games.
According to Rule 61 of the Olympic Charter, “[t]he decisions of the IOC are final.” However, Rule 61 permits appeals submitted directly to the Court of Arbitration for Sport (CAS). The CAS is an international arbitration body located in Lausanne, Switzerland that provides services to facilitate settlement of sport-related disputes. Here a panel of three arbitrators would review the claims in accordance with the Code of Sport-Related Arbitration.
Russia has consistently denied all allegations of a state-backed doping. An argument Russia may make on appeal is that the accusations are untrue. Russian athletes and government officials have already stated that the IOC fabricated evidence in the investigation. The more doubt that can be raised as to the IOC evidence, the more the CAS may be likely to find that the argument by IOC is false or grossly exaggerated.
The IOC is “dependent on the information available in the public domain. . . and information shared voluntarily by the persons concerned.” Therefore, Russia may try to discredit the investigative process and witnesses, including IOC lead witness Dr. Grigory Rodchenkov. Russian President Vladimir Putin has already described Rodchenkov as “man with a scandalous reputation.”
Russia may also try to claim that the same evidence that the IOC based its decision off of was present for the 2014 games in Sochi, however they are now being punished for the games in 2018. The timing of the ban is something Russia might try to play up, bringing in the possible bias of IOC due to political issues including Russia’s involvement in the 2016 U.S. Presidential Election.
Further, Russia may attempt to argue that the ban of Russia from the Olympic games is grossly excessive and a departure from precedent. Russia may claim that banning the entire country from the 2018 Olympics and creating large hurdles for Russian athletes is too harsh of a decision. Russia will then argue that creating large hurdles for clean Russian athletes who devoted most of their lives to prepare in order to compete in the games under the Russian flag is too harsh. Also, Russia may claim that the previous country-wide bans from the Olympics were due to immoral discriminative governmental politics, while this decision is based off a speculative government conspiracy.
Whether or not Russia appears at the 2018 Winter Olympics, the precedent has been set for other countries and athletes regarding performance-enhancing drugs. If a Russian athlete were to win a gold medal at the 2018 Winter Games without the Russian flag at their backs or the national anthem playing it would show the seriousness of the rules in place and doping consequences
IOC suspends Russian NOC and creates a path for clean individual athletes to compete in PyeongChang 2018 under the Olympic Flag, Olympic News (Dec. 5, 2017), https://www.olympic.org/news/ioc-suspends-russian-noc-and-creates-a-path-for-clean-individual-athletes-to-compete-in-pyeongchang-2018-under-the-olympic-flag [hereinafter IOC].
 Russia banned from 2018 Winter Olympics over doping scandal, CBS News (Dec. 5, 2017), https://www.cbsnews.com/news/russia-banned-2018-winter-olympics-international-olympic-committee-pyeongchang-systematic-doping/.
 IOC, supra note 1.
 IOC, supra note 1.
 Countries Banned from the Olympic Games, topend sports, http://www.topendsports.com/events/summer/bans.htm (last visited Dec. 27, 2017).
 Michael McCann, Russia’s Legal Options Following the IOC’s Olympic Ban Over Alleged Doping, Sports Illustrated (Dec. 5, 2017) https://www.si.com/olympics/2017/12/05/russia-olympics-doping-ban-ioc-response.
 Dionne Koller, A Gold Medal Moment for Drug-Free Sports, U.S.News (Dec. 6, 2017) https://www.usnews.com/opinion/op-ed/articles/2017-12-06/the-ioc-was-right-to-ban-russia-from-the-2018-olympics-for-doping.
 IOC, supra note 1.
 Dionne Koller, supra note 12.
 Michael McCann, supra note 11.
 Jared Genser, Ban Russia from the Olympics, The Washington Post (Nov. 30, 2017) https://www.washingtonpost.com/opinions/ban-russia-from-the-olympics/2017/11/30/e968dd10-d556-11e7-a986-d0a9770d9a3e_story.html?utm_term=.960e4a22d213.
 Olympic Charter, International Olympic Committee, at 105 (in force as from Aug. 2, 2015) https://stillmed.olympic.org/Documents/olympic_charter_en.pdf.
 Court of Arbitration for Sport, World Anti-Doping Agency, https://www.wada-ama.org/en/court-of-arbitration-for-sport (last visited Dec. 27, 2017).
 Olympic Charter, supra note 19.
 Michael McCann, supra note 11.