What is the disciplinary jurisdiction of a sports federation? A review of Vitaly Mutko v IOC
The Russian doping scandal has been in the headlines since 2014 when German television channel, RTL, broadcast a documentary (the RTL Documentary) concerning the alleged existence of a doping regime within the All-Russia Athletics Federation. Over the last few years, details of the sophisticated nature of the scheme have emerged following various investigations having been conducted, new witnesses coming forward, and numerous proceedings being brought before a variety of dispute resolution bodies.
CAS Arbitration 2017/A/5498 Mutko v International Olympic Committee is an important victory for a senior Russian politician, Mr Vitaly Mutko, who successfully overturned his permanent ban on attending the Olympics for his alleged involvement in the doping regime. The case has been referred to in Russia as “the most significant CAS case ever”1 not only because the case files included approximately 100,000 pages of documents, but also because Mr Mutko is such a high-profile figure in Russia in politics, given that he currently holds the office of Deputy Chairman of the Russian government.
This article reviews Mr Mutko’s case, examining within its context the question of who falls within the disciplinary remit of a sports federation.
Following the RTL Documentary, Grigory Rodchenkov (the former head of Russia's national anti-doping laboratory) made certain widely publicised allegations regarding the existence of a state-sponsored doping scheme before, during and after the Sochi Winter Olympics. As a consequence, the World Anti-Doping Agency (WADA) formed an Independent Commission to investigate the allegations made in the RTL documentary and, separately, appointed Professor Richard McLaren to conduct an investigation into the allegations made by Dr Rodchenkov. This led to the publication of an Independent Commission Report (dated 09.11.2015) and two ‘McLaren’ reports (dated 16.07.2016 and 09.12.2016). For more information on the findings of these reports, please see this LawInSport article2.
Following these reports, the IOC established a Disciplinary Commission chaired by a former President of the Swiss Confederation, Mr Samuel Schmid (the Schmid Commission). The task of the Schmid Commission was to establish the facts of the alleged Russian doping manipulations at the Sochi Olympics on the basis of independent and impartial evidence.
In its report 3, the Schmid Commission confirmed “the systemic manipulation of the anti-doping rules” (p. 28) as well as finding that members of the Ministry of Sport and its subordinated entities were directly involved in the manipulation. The Schmid Commission did not find sufficient evidence that Mr Mutko (who was the Minister for Sport from 21 May 2019 until 19 October 2016) was personally involved or had direct knowledge of the manipulation but, nonetheless, recommended that he “bear the major part of the administrative responsibility” (p. 28). Based on the conclusions of the Schmid Commission, the IOC Executive Board formally approved the report published by the Schmid Commission (the Schmid Report) and proceeded to issue a formal decision on 5 December 2017 (the Decision) 4.
The IOC’s decision
The Decision had the effect of suspending the Russian Olympic Committee and provided for special guidelines as to how individual Russian athletes could participate in the 2018 Winter Olympic Games (such as by way of special invitation and participating under the Olympic flag rather than the Russian flag). Aside from dealing with Russian athletes, the Decision also addressed the participation of certain Russian officials and established certain measures to be implemented against them. Under para. IV of the Decision, Mr Mutko and his then Deputy Minister, Mr Yuri Nagornykh were to be “excluded from any participation in all future Olympic Games”. The Decision did not make reference to the specific legal provisions said to underpin the ban.
The Court of Arbitration for Sport’s (CAS) decision
Before the CAS Tribunal, Mr Mutko argued that the Decision should be set aside because it imposed a sanction upon him and that there was no proper legal basis for the imposition of such a sanction. The IOC disputed this proposition on the basis that (i) the Decision did not constitute a ‘sanction’ and (ii) Rules 44 and/or 59 of the Olympic Charter provided a proper legal basis for the Decision.
Was the decision a ‘sanction’?
In considering whether the Decision “to exclude…Mr Vitaly Mutko…from any participation in all future Olympic Games” constituted a sanction, the CAS referred to its own jurisprudence and, in particular United States Olympic Committee (USOC) v International Olympic Committee (IOC)5 which sought to provide a clear legal distinction between, on the one hand, qualifying or eligibility rules and, on the other, sanctions. In that case, it was said that (para. 33):
“qualifying or eligibility rules are those that serve to facilitate the organization of an event and to ensure that the athlete meets the performance ability requirement for the type of competition in question… a common point in qualifying (eligibility) rules is that they do not sanction undesirable behaviour by athletes… In contract to qualifying rules, are the rules that bar an athlete from participating and taking part in a competition due to prior undesirable behaviour on the part of the athlete. Such a rule…imposes a sanction”
The CAS tribunal found that the Decision must be legally characterised as a sanction (para. 52), given that it effectively imposed a lifetime ban on Mr Mutko because of his prior undesirable behaviour, namely his functional responsibility as Minister of Sports during the alleged Russian doping scheme. The CAS Tribunal also considered that the Decision had to be read in the context of the Schmid Report (para. 51), which had recommended that the IOC hold Mr Mutko “responsible for acts perpetrated…within the Russian ministry” and “take the appropriate measures…to effectively sanction the existence of a systemic manipulation of the anti-doping rules and system in Russia” 6.
The IOC made a number of counter-arguments as to why the Decision was not a sanction, all of which were rejected. First, the IOC argued that the term ‘exclude’ simply meant that it would ‘not invite’ Mr Mutko to all future Olympic Games (para. 53(i)). Unsurprisingly, the tribunal considered that, however described, the effect of the Decision was to ban Mr Mutko for life and this essentially semantic argument did not assist the IOC in suggesting that it was not, in substance, a sanction. Second, the Tribunal rejected (based on the logic of USOC v IOC set out above) the IOC’s suggestion that the Decision was based on eligibility (para. 53(ii)). Finally, the IOC argued that the Decision could not amount to a sanction because it does not have the power to discipline an individual, such as Mr Mutko, who is not an IOC member or otherwise subject to the IOC’ disciplinary jurisdiction (para. 53(iii)). The Tribunal found that this issue was irrelevant to the question of whether the Decision did or did not actually impose a sanction upon Mr Mutko. The question of whether the IOC had jurisdictional power to impose a sanction would be addressed below.
Does Rule 44 and/or Rule 59 Olympic Charter a proper legal basis for the Decision?
The Tribunal further found that there was no proper legal basis for the Decision. Rule 44 governs the process of inviting ’participants’ and ‘competitors’ to the Olympic Games via National Olympic Committees. Rule 59 governs the measures and sanctions that may be imposed against certain specified individuals including their exclusion from the Olympic Games.
As regards Rule 44, the Tribunal considered that, since it only made an application for entry of ‘participants’ or ‘competitors’ to a given edition of the Olympic Games, it did provide a legal basis for imposing a blanket ban on an individual in circumstances where no application has been made for Mr Mutko’s ‘entry’ into a particular Olympic Games (para. 63). The Decision thereby went beyond the scope of what is permitted under Rule 44. In any event, the Tribunal doubted whether Rule 44 could apply to Mr Mutko given that it was meant to apply to ‘participants’ or ‘competitors’, not an individual wishing to take part in some other capacity. The Tribunal did not make a firm decision and the comments were therefore akin to being obiter (para. 62). The Tribunal further found that Rule 59 was of no assistance to the IOC given that it applied only to well-defined categories of individuals and Mr Mutko clearly did not fall within any of those categories (para. 64).
The effect of the categorisation of the Decision as a ‘sanction’ and the finding that there was no legal basis for the Decision meant that the Tribunal agreed with Mr Mutko and determined that the Decision should be set aside.
Jurisdiction and legality
The central issue dealt with by the CAS Tribunal was, in effect, the extent of the IOC’s jurisdiction to punish Mr Mutko as set out in the Decision. The principal lesson that can be gleaned from this case by the IOC (and perhaps sports federations more generally) is that, prior to issuing decisions affecting certain individuals or entities, it should be sure that it has jurisdiction both in a personal sense over that individual or entity and in a substantive sense as regards the sanction or punishment imposed. The underlying rationale of the Tribunal’s decision is that jurisdiction was lacking on both counts. The Tribunal addressed the issue of jurisdiction by reference to the “principle of legality”, which requires that offences and sanctions imposed must be clearly and previously defined by the law and which limits the jurisdiction of the IOC to the extent that it is only able to impose sanctions providing there is a proper legal or regulatory basis to do so and that such sanctions are predictable.
Although some may be disappointed that the effect of this principle is to invalidate the IOC’s sanction against Mr Mutko, it would not be reasonable to suggest that the IOC should be able to impose sanctions that contravene these principles. This is an important and reasonable limit on the IOC’s power.
The effect of ‘bifurcation’ on the proceedings
One of the important procedural aspects of the arbitration was that the proceedings were bifurcated (at the IOC’s request) such that the questions as to whether the Decision was a ‘sanction’ and whether there was a proper legal basis were to be decided as preliminary issues. Mr Mutko objected to the request for bifurcation, but the Tribunal ultimately agreed to the request. The consequence of bifurcation, however, was that the Tribunal was never asked to make a determination on certain substantive issues which may have required an examination of further new evidence. Jim Swartz, the co-founder of FairSport, alleged that this amounted to an “absolute travesty and a mockery of justice” because, had the matter been litigated in full, “Dr Grigory Rodchenkov and Richard McLaren were prepared to present significant new evidence that has not yet been publicly released” 7. Since the Tribunal’s award has brought an end to proceedings against Mr Mutko, the opportunity to make a firm determination as to Mr Mutko’s knowledge of and/or involvement in the doping regime has been lost. As the award stated at paragraph 71, “the Panel need not address whether or not a state sponsored or institutionalised doping system existed in Russia and whether or not the Appellant could be held responsible for it”.
Indeed, the Tribunal’s award has been presented by certain figures in Russia as amounting to a finding that there was no state-sponsored doping regime in Russia. The former President of the Russian Olympic Committee, Alexander Zhukov stated that the award “is a very important and positive decision for us, it confirms that there was no state support for doping in Russia, which we have always said. I am extremely pleased that CAS has taken the same position” 8. Whilst it is inaccurate to say that the CAS made a finding that there was no state-sponsored doping regime in Russia, the Tribunal’s award will no doubt assist those in Russia who claim that the doping scandal was, in fact, orchestrated by Dr Rodchenkov and not by senior figures in the Ministry for Sport, and who wish to persuade the public that this is the case.
Whilst the Tribunal’s award may be a blow in terms of public perception to those fighting against Mr Mutko, the practical effect of the award vis-à-vis his involvement in future Olympic Games should not be overestimated. The IOC will not be compelled to invite Mr Mutko to any future editions of the Olympic Games as a result of the award and it seems highly unlikely that it would do so. Nevertheless, for those who want to identify Mr Mutko as having been personally involved in the doping regime, the award is very unhelpful.
This is not the first example of a governing body seeking to impose such a sanction. The CAS has imposed different restrictions on governing bodies that seek to impose ‘life bans’ either on delegates or on others involved in particular sports. For example, in the case of Mr. Masar Omeragik 9, a football executive in Macedonia, a CAS tribunal set aside a life ban imposed upon him by the Macedonian Football Federation (the MFF) on the basis that the ban among other things breached the principles of legality and proportionality. The sanction had been imposed by the MFF for alleged breach of the MFF’s statutes and sought to exclude him from all football-related activities “with immediate effect and without any time-limit, i.e., for life”. The CAS noted in particular that “imposing a disciplinary sanction on any member of the “sports family” by a sport federation requires a violation of existing law or statutes and a legal basis respectively” and that the principle of proportionality dictates that (para. 8.23) “the most extreme sanction must not be imposed before other less onerous sanctions have been exhausted.
Recent RUSADA developments
The doping situation in Russia, especially concerning RUSADA continues to evolve. On 15 October the Head of RUSADA confessed that the Laboratory Information Management System data of the Moscow anti-doping laboratory had been unlawfully amended before the data was forwarded to WADA10. If WADA decides to take action against RUSADA, this may have consequences on eligibility of Russian athletes for the Tokyo 2020 games and other upcoming international competitions.
1 https://cleversports.ru/novosti/mutkowonhisappeal?fbclid=IwAR2L6U_Rw9RBDVv-e4AFbDxru3_jCvVUTF91zQAHs90st5cJNyWk5lcAqCw (last accessed 31 Oct 2019)
2 Rupert Beloff, ‘A reference guide to the Russian doping scandal and response to the McLaren Reports’, lawinsport.com, 27 June 2017, last accessed 29 Oct 2019, https://www.lawinsport.com/content/articles/item/a-reference-guide-to-the-russian-doping-scandal-and-response-to-the-mclaren-reports
3 IOC Disciplinary Commission’s Report to the IOC Executive Board (the Schmid Report), dated 2 December 2017, https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/IOC/Who-We-Are/Commissions/Disciplinary-Commission/IOC-DC-Schmid/IOC-Disciplinary-Commission-Schmid-Report.pdf (last accessed 31 Oct 2019)
4 Decision of the IOC Executive Board, dated 5 December 2017, https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/IOC/Who-We-Are/Commissions/Disciplinary-Commission/IOC-DC-Schmid/Decision-of-the-IOC-Executive-Board-05-12-2017.pdf#_ga=2.181758759.1460179185.1570891234-669027135.1570891234. (last accessed 31 Oct 2019)
5 Arbitration CAS 2011/O/2422 United States Olympic Committee (USOC) v International Olympic Committee (IOC), https://jurisprudence.tas-cas.org/Shared%20Documents/2422.pdf (last accessed 31 Oct 2019)
6 See Footnote 3.
7 FairSport Statement on the Reinstatement of Vitaly Mutko, twitter.com, 12 July 2019, last accessed 31 Oct 2019, https://twitter.com/FairSportOrg/status/1149651465687859201?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1149651465687859201&ref_url=http%3A%2F%2Fwww.insidethegames.biz%2Farticles%2F1082160%2Ffairsport-slams-mutko-reinstatement
8 ”The victory of the Russian sport": CAS granted Mutko's appeal to a lifelong suspension from the Olympics’, tellerreport, 11 July 2019, last accessed 31 Oct 2019, https://www.tellerreport.com/sports/2019-07-11---%22the-victory-of-the-russian-sport%22--cas-granted-mutko-s-appeal-to-a-lifelong-suspension-from-the-olympics-.B1HljpVZH.html
9 Arbitration CAS 2011/A/2670 Masar Omeragik v. Macedonian Football Federation (FFM), award of 25 January 2013 (operative part of 22 June 2012), https://jurisprudence.tas-cas.org/Shared%20Documents/2670.pdf (last accessed 31 Oct 2019)
10 ‘The head of RUSADA acknowledged the substitution of data from the Moscow laboratory’, sportrbc.ru, 15 Oct 2019, https://sportrbc.ru/news/5da5bdba9a7947bb4eb5c9e8?ruid=UET9B11s9DqL8VqOA8erAg (last accessed 31 Oct 2019)