IAAF exceptional eligibility guidelines “against fairness and justice”
As published in World Sports Law Report today…
The International Association of Athletics Federations (‘IAAF’) published guidelines on the application for exceptional eligibility under Competition Rule 22.1A on 1 July 2016, which allows any athlete to apply for exceptional eligibility to be granted by the Doping Review Board in order to be allowed to take part in international competitions in an individual capacity, as a Neutral Athlete (as defined in the Competition Rules).
The guidelines follow the IAAF’s decision not to reinstate the Russian Athletics Federation’s (‘RusAF’) membership, during its 204th Council Meeting on 17 June 2016, as several Verification Criteria following widespread allegations of doping throughout Russian athletics, were not met, which means that Russian athletes remain ineligible under IAAF Rules to compete in international competitions including the Rio 2016 Olympic Games.
However, despite upholding RusAF’s suspension, the IAAF Council passed a rule amendment to enable ‘any individual athletes who can clearly and convincingly show that they are not tainted by the Russian system because they have been outside the country, and subject to other, effective anti-doping systems, including effective drug-testing, then they should be able to apply for permission to compete in International Competitions, not for Russia but as a neutral athlete.’
“This is another decision which raises questions as to the efficacy of self-regulation. Although it attempts to create exceptions for reasons of transparency, fairness and equality, in pragmatic terms it creates potential issues of discrimination, as it presupposes, without a compelling justification, that all members of the Russian team are using performance enhancing substances and methods. It is arbitrary, capricious and it offends against fairness and justice,” said Dr Gregory Ioannidis, anti-doping litigation expert and Senior Lecturer at Sheffield Hallam University.
In terms of anti-doping litigation and procedure, Ioannidis believes that the IAAF’s guidelines create an unwelcome anathema as they place an evidential burden on all athletes to demonstrate that they are ‘clean.’ “This is contrary to several provisions in the regulatory framework of governing bodies, as it is the prosecuting authority that is required to establish a possible anti-doping violation,” adds Ioannidis. “It may also create a jurisdictional problem with the International Olympic Committee (‘IOC’), particularly with regards to participation of athletes under a neutral flag. In the absence of such specific regulations and express permission from the IOC, it may make a mockery of procedure and the Games.”
“The implementation of the IAAF guidelines seems to be an impermissible burden shift onto athletes to ‘prove they are clean’ when the burden under the World Anti-Doping Code is on the anti-doping organisation to prove to the comfortable satisfaction of the hearing panel that the athlete committed an anti-doping rules violation,” concurs Paul J. Greene, Founder of Global Sports Advocates LLC. “In any event, given the appeal pending at the Court of Arbitration for Sport (‘CAS’) that challenges the IOC’s decision to ban Russian athletes from Rio, the guidelines are on hold until CAS issues a decision later this month.”
A pending report by the World Anti-Doping Agency – the McLaren Report – is also set to be released by 15 July 2016, which may include findings about doping in Russia that could influence the IOC and IAAF’s position on whether Russian athletes are permitted to compete in Rio.