The International Olympic Committee this week moved to isolate Russia, including Russian athletes, from international sport.
The reason for this move is clear. It’s Russia’s invasion of Ukraine, launched on February 24. So there is no mistake, no equivocating about language — it’s, from the words of the IOC’s news release itself, the “current war in Ukraine.” It’s the war. The war puts the Olympic movement, the release said, in a “dilemma.” The statement uses the word “dilemma” four times.
To be clear, what Russia has done in launching this war is horrific and reprehensible. The IOC also took the step of stripping the Russian president, Vladimir Putin — and two others, including the head of the Sochi 2014 Games, Dmitry Chernyshenko — of the highest Olympic prize, the Olympic Order. That’s entirely appropriate.
Thomas Bach at the closing ceremony in Beijing // IOC / Flickr
Is what the IOC did in moving Monday to ban Russian athletes an act of moral leadership? The right thing to do? In the west, overwhelmingly, the answer is easy. Yes.
Is it legally defensible? Again, yes.
Is it a shrewd political play? Again, yes.
But to ask whether a move to ban Russian athletes is legally defensible and politically shrewd perhaps misses a central point. Because it’s not altogether clear that what the IOC did will ultimately prove sustainable.
And it’s also not certain that the IOC, in its action Monday, didn’t open something of a Pandora’s Box when it comes to the setting of an uncomfortable precedent.
At issue are multiple layers of complexities at the intersections of politics and sport — and what burdens it is fair to ask individual athletes to bear for the actions of their governments. The paradox is evident in the IOC statement. “The IOC admires and supports in particular the calls for peace by Russian athletes,” it said, even as it was asking pretty much everyone all over the world to ban them.
This tension is never far from the surface in the Olympic landscape. It has considerably shaped IOC president Thomas Bach. A gold medal fencer for West Germany at the Montreal Games in 1976, Bach was kept out of the Moscow Olympics by the U.S.-led boycott in 1980. He has been adamant that the purpose of the Olympics is — his words — to bring all of humanity together in all its diversity. The IOC action Monday was announced with a “heavy heart” — none more so, it can be presumed, than Bach’s, an indication of how exasperated, angry, done he must be with Russia.
What really set Bach off, of course, is that Putin launched this war during the period of the Olympic Truce.
Moreover, Putin has used the Olympics three times now as a masking device for war — in 2008 in Georgia, in 2014 to annex Crimea, and, now in 2022 to invade Ukraine.
During the opening ceremony in Beijing, with Putin in attendance at the Bird’s Nest, Bach had said, “Give peace a chance.”
It’s little wonder Bach would be angry and want to take action — to do the right thing. It’s 100 percent evident that the IOC is seeking to maintain what it believes is fairness in competition. Anyone who knows the president knows that, to his core, that is very much Bach.
Bach and Seb Coe, who in 1980 got to run in the Moscow Games for Great Britain, winning two medals, were part of the first athletes to make waves in Olympic politics, at the IOC’s 1981 Baden-Baden assembly. Now Coe is president of track’s international federation, World Athletics, and this was what he had to say Tuesday:
“Anyone who knows me will understand that imposing sanctions on athletes because of the actions of their government goes against the grain. I have railed against the practice of politicians targeting athletes and sport to make political points when other sectors continue about their business. This is different as governments, business and other international organizations have imposed sanctions and measures against Russia across all sectors. Sport has to step up and join these efforts to end this war and restore peace. We cannot and should not sit this one out.”
Contrast that with this Monday night from Christof Wieschemann, a sports lawyer based in Germany who, among other matters, was active in successfully representing some number of the individual Russian athletes charged amid the Sochi 2014 doping matter:
“I understand the goal of what the international federations and especially the IOC promotes. But what distinguishes us from Putin is that we respect rules.
“And today the IOC did not respect its rules.”
A pause here to emphasize a key matter. The IOC and Bach are pro-rule of law. So is this column.
Just a few days ago, as he was defending the IOC position in Beijing before the world’s press in the matter of the 15-year-old Russian figure skater, Kamila Valieva, Bach, a very good lawyer, declared, “There is only one choice — to follow the rule of law,” even, he noted, when you’re “not necessarily happy” with its ways.
Consider whether what the IOC has done this week is something of a two-way play.
It is both an end-around and a very clever set-up.
Bach, for all his many critics, is indeed a very clever guy. He can see the way things are likely to play out.
The trick here is to see what he sees — to parse what the IOC statement says, and doesn’t.
To start, as ever, the IOC’s core document is the Olympic Charter.
Thus the temptation for many will be to start any inquiry with what the Charter says, or doesn’t.
It is a basic of corporate (or in this case, non-profit) governance: if an organic document is silent on a particular matter, then the institution *has* the power to do whatever it is that’s at issue.
That is, an institution’s charter doesn’t have to enumerate all the actions its board of directors can take. They’re — the charter is — always more general.
The key here is whether a tribunal reviewing the IOC’s conduct — specifically the Swiss-based Court of Arbitration for Sport — would buy that line of reasoning.
Because the obvious challenge that would confront the IOC is that, time and again, it has very explicitly relied on and referred to the Charter when it wants to do something.
In seeking now to ban the Russians (and Belorussians, too), there is no reference to the Charter. Indeed, there is no reference to any specific legal authority. Rather, the IOC cites what it sees as the need to “protect the integrity of global sports competitions and … the safety of all the participants …”
The word “integrity” appears once in the charter, and then in connection with doping and “manipulation of competitions and related corruptions.” Is war that?
Compare:
For instance, in 2015, two years into Bach’s term, the IOC suspended a country, Kuwait. That is, it specifically suspended the Kuwait national Olympic committee from “any activity with the Olympic movement.” The IOC acted in reliance on not just one but two provisions in the Charter, which it assuredly cited in the relevant news release down to the subsections — Rules 27.9 and 59.1.4 (a).
But.
Let’s pause here, because the IOC isn’t in this instance “doing” anything.
It’s essential to read carefully.
Is the Charter even part of this discussion?
What if the answer is — no?
In issuing the “following resolution,” divided into several paragraphs, the key action point, it turns out, is only a recommendation — the IOC “recommends” that going forward international sports federations and other organizers not invite or allow the participation of Russian or Belorussian athletes.
It goes on:
When that recommendation is not possible, because of short notice or organizational or legal reasons, the IOC “strongly urges” the IFs and organizers to “do everything in their power” to make sure Russian (and Belorussian) athletes take part as neutrals — no national symbols, colors, flags or anthems.
In this instance, the IOC isn’t itself “doing” anything.
There’s a big difference between 1/ “doing” versus 2/ “recommending” or “strongly urging.”
The IOC threw the ball, figuratively and legally, into the hands of the various IFs.
This, then, is where things may well get very interesting.
It is indisputably the case that there has already been a rush by any number of IFs to ban Russian athletes (Belorussians, too). The list of IFs doing so is long — luge, table tennis, archery, track and field, skiing, skating, basketball and on and on.
But consider, and ask if it might well be precedent:
In a case that began in 2019, the International Judo Federation sought to ban Iran “from all competitions, administrative and social activities” because, the federation alleged, the Iranian authorities had ordered the athlete Saied Mollaei to withdraw from competing to avoid fighting an Israeli. CAS would rule that IJF went too far — that the kind of sanction “had no legal basis in the IJF regulations,” and referred the matter back to a federation disciplinary commission for further action.
Do the various federations that have rushed to ban Russian athletes have the “legal basis” in their rules to do so?
On Sunday, three days after the war began, the IJF announced that it had suspended Putin’s status as its honorary president. But then, on Wednesday, the federation, led by Marius Vizer, in what may be the first sign of real pushback against the IOC’s Monday move, posted an announcement that reiterated what until last week had for decades been a default position around the world — athletes who take part in “international sporting events are promoting peace and international solidarity.”
The IJF statement went on: “On this basis, the global decision to sanction all Russian athletes, regardless of the different opinions many have expressed, is not considered to be justified.”
Russian athletes, the IJF said, would be given the opportunity to take part as neutrals — under the IJF flag, logo and anthem — without regard to notice or organizational circumstance, no matter how strong that IOC urging.
“Any radical decision to obstruct the participation of athletes in sporting competitions would only continue the escalation of violence and nurture the feelings of injustice for those athletes who did not participate in any decision regarding the conflict. We cannot,” the IJF statement said, “condemn the athletes for what is happening.”
This is the dilemma now facing Olympic sport.
What if what the IOC did Monday was cleverly buy both western goodwill and time? Knowing that even if a CAS case ultimately proves a loser?
What if this ends up highlighting the eternal struggle between morality and legality? Sometimes they square up. Sometimes — not.
CAS may very well uphold the actions of IFs that follow the IOC recommendation. But if it doesn’t, who ends up looking in the court of public opinion like the good guy? The IOC, that’s who.
Who in that scenario looks like the heavy? CAS. Again.
The dilemma is what all this may, stress may, have unleashed.
To reiterate, for the past 38 years — since the 1984 Soviet-led boycott, a response to the 1980 action — it has largely been an article of faith for many in Olympic sport that athletes, no matter from where, are not tools of public policy. And now?
Going forward, what is it that might next justify a ban on a nation’s athletes? Any invasion of a sovereign state? A conflict between two states? Or any war? Because there are several of those going on even now around Planet Earth.
In Sochi in 2014, Bach said of the IOC, “We are not a supra-national government. We are not a superior world parliament. We do not have a mandate to impose measures on sovereign states.” And now?
What are the rules?
It’s — a dilemma.