Doping and the Rights of Athletes under International Human Rights Law

[Faraz Shahlaei is an Adjunct Professor/J.S.D. Candidate at Loyola Law School, Los Angeles and one of the authors of this communication]

Photo credit: Mufid Majnun

Introduction

In 2016, two reports of the Independent Person appointed by the World Anti-Doping Agency (WADA) to investigate allegations of State-sponsored doping of Russian athletes during the 2014 Sochi Winter Olympic Games (first report, second report) revealed that Russia had been running for years a sophisticated covert doping program.

As a result, the International Olympic Committee (IOC) and WADA imposed sanctions on dozens of athletes and other individuals involved in the program. In December 2020, the Court of Arbitration for Sports (CAS) confirmed a two-year ban of Russian sports federations from major sporting events and also confirmed barring Russia from hosting international events for two years.

However, the Russian doping program also raises intricate public international law and international human rights questions. States universally agree that they must fight doping. Indeed, 191 States have ratified the UNESCO International Convention against Doping in Sports, while all 47 members of the Council of Europe, plus Australia, Belarus, Canada, Morocco, and Tunisia, have ratified the European Anti-Doping Convention. Thus, States that engage in doping, or that do not fight doping as they should, are committing international wrongful acts that entail their international responsibility. Also, doping, when it is a State-sponsored activity, can be a violation of human rights law.

The IOC and the WADA have acknowledged (see e.g. here, p. 3-4) that the question of state responsibility as such is outside their competence. Their decisions have legal consequences only for non-state entities, such as the Russian National Olympic Committee and individual athletes. Therefore, the question of the responsibility of Russia as a matter of public international law in general, and international human rights law in particular, remains unaddressed.

Recently, Yuliya Stepanova, a former runner of the Russian national team, and Vitaly Stepanov, her husband, a former officer of the Russian Anti-Doping Agency, submitted a communication to the United Nations Human Rights Committee alleging violation of several of their rights protected under the International Covenant on Civil and Political Rights (ICCPR). The Stepanovs are the whistleblowers who revealed the Russian doping program, and their story has been widely discussed in the press. Russia has both ratified the ICCPR and acceded to the Optional Protocol on Individual Communications.

The International Law Commission’s Articles on State Responsibility declare that there is an internationally wrongful act of a State when conduct consisting of an action or omission constitutes a breach of an international obligation of the State and is attributable to the State under international law. These elements provide a framework to understand Russian responsibility for doping within the context of this case.

International Obligations Breached

With regard to Yuliya Stepanova, the communication alleges violation of Articles 7, first and second sentence, 8.3.a, 17.1, 17.2, 19.2, and 23.1, while with regard to Vitaly Stepanov, Articles 17.1 and 17.2, 19.2, 23.1. In both cases, it is claimed all rights have been violated in conjunction with the preamble, second paragraph, and articles 2.2 and 2.3.

Article 7 prohibits not only torture, inhuman, cruel, and degrading treatment, but also medical experimentation without consent. The communication alleges that Yuliya, who had been subject to several years of doping regimes at the hand of coaches and doctors of the Russian Athletics Federation, could not have validly consented. International human rights law requires consent to medical interventions to be both informed and free. In her case, it could not be informed as she was never told what the consequences on her health would have been, nor was free because the only options she had, given the pervasive doping use amongst Russian athletes, was to dope or not run at all.

Article 8 prohibits slavery and forced labor. The communication alleges that Yuliya was subjected to forced labor as her livelihood was made dependent on winning medals, which in turn, required accepting doping. The Russian system denied athletes their dignity, treating them as means to the end of national Olympic glory. Any athlete refusing to continue doping would lose the cover provided by the system.

Article 17 prohibits interferences with privacy, family, home, or correspondence, as well as unlawful attacks on honor and reputation. The communication alleges that the right of Yuliya to privacy was automatically violated when she was subject to medical experimentation without her consent. The rights of the Stepanov to family were violated when Yuliya was instructed to get pregnant in order to avoid being laid off and keep her salary while out of competitions due to a two-year ban for doping. Their rights were also violated due to the strain the paradoxical situation of wife-doped-athlete and husband-anti-doping-agent put on her relationship. Finally, the communication alleges that the intense smear campaign launched against them in Russia when they blew the whistle, and the public attacks in media made by public officials at all levels, amounted to an unlawful attack on their honor and reputation. Also, their freedom of expression, protected under article 19, was violated when the Russian Government failed to protect them as whistleblowers.  The human rights of whistleblowers have been the object of a recent report of the Special Rapporteur on Freedom of Expression.

Moreover, when it comes to doping and fighting it, Russia has clear obligations under the European Anti-Doping Convention and the UNESCO Convention against Doping in Sport, which Russia ratified, as well as under several bilateral agreements between Russia and sport governing bodies, for example, those entered into for hosting the 2014 Sochi Games. While the Human Rights Committee does not have jurisdiction over these treaties, they can be taken into consideration to interpret the obligations Russia has in the specific instance under the Covenant.

Attribution of Conduct

The investigations by the WADA and the IOC painted a detailed picture of the Russian doping machine, detailing how it was designed to cover up the adverse analytical finding of the doping samples and protect the doped athletes, and how it was constantly adjusted to stay ahead of changes in rules and scrutiny. The reports detailed how the Russian Ministry of Sport and the Federal Security Service directed, aided, and abetted the illegal conducts to build a comprehensive doping machine with the aim of dominating a large range of competitions on regional and global levels.

The rules on international state responsibility are straightforward. The conduct of state organs is to be considered an act of that State regardless of their internal structures and functions. Even if the State organs were acting beyond the scope of their powers, the conduct is still attributable to the State as long as the entity exercises governmental powers. Despite the Russian government repeatedly denied involvement in the doping, claiming it was all fault of a few rogue coaches and athletes, the evidence uncovered by WADA and the IOC investigations is staggering and leaves no room for doubt that the conduct is attributable to Russia. The WADA reports describe in detail how Russian secret services agents operated in a hidden office in the Moscow laboratory building to help tampering with the doping samples and replacing the tainted samples with clean ones.

Further Considerations

Whether international human rights law is applicable to international sport governing bodies (SGBs) and subsequently to athletes, has been long debated. The Stepanovs’ case does not claim to hold SGBs accountable because SGBs are not parties to the Covenant nor the Optional Protocol. The human rights obligations of sport governing bodies can be best considered within the framework of United Nations’ Guiding Principles on Business and Human Rights. However, the question of whether athletes as humans are protected by human rights norms remains a fundamental one in the world of sports. It is also one on which international human rights adjudicative bodies and the Court of Arbitration for Sports (CAS) are bound to collide when the right case emerges.

The CAS was established in 1984 as a specialized dispute resolution mechanism to settle disputes arising out of sports activities. According to rule 61 of the Olympic Charter, all disputes in connection with the Olympic Games can only be submitted to CAS, and all Olympic international federations have recognized the jurisdiction of CAS for at least some types of disputes. Also, through the 2009 World Anti-Doping Code, all parties, including all Olympic international federations and National Olympic Committees, have accepted the exclusive jurisdiction of CAS for anti-doping rule violations. It is, in other words, a tightly sealed, self-contained system of private justice.

In CAS arbitrations, SGBs have repeatedly claimed that international human rights treaties do not create obligations for them, since they are not parties to those agreements. (See e.g. here, para 293; or here, para 182). CAS arbitral panels, which are a private dispute settlement means financed and operated by SGBs, have concurred with SGBs (See e.g. here, para 320). International human rights law binds only States, and only States can violate it.

However, while formally correct, the assertion is hardly reconcilable with the fundamental attributes of human rights, and in particular with their inalienability. Indeed, in a report submitted to the Human Rights Council, the UN’s High Commissioner for Human Rights expressed concern that the current dispute settlement system in sports effectively bars athletes from full enjoyment of their human rights, and in particular their right to effective remedies.

Stepanovs’ case argues that athletes are protected by internationally recognized human rights standards whether in the hands of governments or sport governing bodies.

Conclusions

This communication is the first case ever submitted to a UN Human Rights treaty body concerning the human rights of athletes in general, and doping in particular. It goes to the core of several key issues concerning the relationships between athletes, coaches, sports officials, governments, and SGBs. Inter alia, it tackles the difficult question of the issue of consent to medical interventions, and how the liaisons dangereuses between athletes and coaches, coaches and SGBs, and SGBs and States, can push it to the limit of plausibility. That, should the communication be decided on the merits, could have far-flung ramifications.

The communication needs to clear first the obstacle of admissibility. The authors have relied upon several exceptions to the rule of exhaustion of domestic remedies, including making the argument that refugees and asylum seekers are not required to exhaust domestic remedies. Should the communication make it past that obstacle, it remains to be seen how the Human Rights Committee will rule on the merits. If it does and finds Russia in violation of the Covenant, the Committee views might have a significant impact on the fight against doping in sports and the obligations of states in this regard.

Ultimately, the views of the Committee on the merits could help to close the “human rights gap” in sports. They could help to establish the responsibility of the States for human rights violations in sports and recognize that they have obligations to protect and promote the human rights of athletes. This case takes doping beyond the issue of fairness in sports competitions. It discusses doping as a topic regulated by public international law and as a practice that undermines the enjoyment of fundamental human rights. It portrays athletes as human beings legally entitled to the full range of internationally recognized human rights. Doping has long been discussed as a problem within the sports structure. SGBs and WADA have construed it as a mere disciplinary violation. It is time to consider it also as a human rights violation.