WADA Report on State-Sponsored Doping in Russia was Fundamentally Unfair and Lacked Basic Due Process

Ron Katz, the Senior Counsel in the Entertainment, Sports & Media Litigation Practice Group at Manatt, Phelps & Phillips, has ripped the WADA Independent Commission Report on state-sponsored in Russia as fundamentally unfair and lacking basic due process. Katz outlined his criticisms in a Forbes column entitled “Russian Complaints About McLaren Report on Alleged State-Sponsored Doping Have Merit” published on August 30, 2016.

“The Russian Sports Minister recently claimed that the so-called McLaren report, which provided the basis for the banning of Russian athletes from the Olympics and Paralympics, would not stand up to legal criticism,” wrote Katz. “Using as an example the U.S. legal system, in which I have worked for 45 years, I agree. The McLaren report, formally called The Independent Person Report (IPR), lacks the basic due process required in the U.S. Court system.”

Katz backed up Russian criticisms of the report. The Russian Olympic Committee (ROC) was outraged by WADA's recommendations to issue a blanket ban on all Russian athletes from participating at the 2016 Summer Olympics and the 2016 Summer Paralympics in Rio de Janiero. The International Olympic Committee (IOC) refused to follow such unfair recommendations while the International Paralympic Committee (IPC) regrettably agreed to the recommendations.

Katz criticized the WADA “McLaren Independent Investigations Report into Sochi Allegations” on several fronts. First, it was not a truly independent report spearheaded by a neutral party. Professor Richard McLaren was supposedly the “Independent Person” who would remain neutral when investigating the allegations. However, he “was previously a member of WADA’s three-person Independent Commission…which exposed widespread doping in Russian Athletics.” It would be extremely difficult for McLaren to remain neutral after he had already investigated the very same issue and reached a conclusion.

Secondly, fairness and credibility require that the accused retain the right to confront witnesses who have testified against him or her. The McLaren Report failed to identify most of the witnesses. In addition, the McLaren Report relied on a single witness (Gregory Rodchenkov) as the primary source for most of the information that served as the basis for the report conclusions. 

McLaren assumed Rodchenkov was credible and trustworthy without considering other motives and agendas he may have had. Furthermore, Rodchenkov was not subjected to cross-examination. All of these factors are crucial to due process in U.S. court systems.

Third, the McLaren Report failed to consider all of the evidence. It admitted that it “only skimmed the surface of the extensive data available”. McLaren neglected to even attempt to interview anyone – government officials, coaches, or athletes – who lived in Russia.

Katz considered the lack of basic due process in the McLaren Report to be appalling. As such, the McLaren Report was fundamentally unfair and unjust to the athletes it targeted.

“Due process is not an empty phrase.  Without it, there cannot be justice. Surely it should be required before a major sporting nation’s athletes are banned from the Olympics and Paralympics.

“The damage is not just academic.  Aside from the possibility that innocent athletes may have been punished, there may well be disruption in international athletics similar to 1980 when the U.S. did not participate in the Olympics and 1984 when the Soviet Union did not participate. If that is the case, it will be a loss for all athletes and their fans.”

Source:

Katz, R. (August 30, 2016). Russian Complaints About McLaren Report On Alleged State-Sponsored Doping Have Merit. Retrieved from http://www.forbes.com/sites/rkatz/2016/08/30/russian-complaints-about-mclaren-report-on-alleged-state-sponsored-doping-have-merit/