By Dr. Thilo Pachmann & Oliver Schreier
The International Olympic Committee (IOC) announced on the 17 November, 2016 that 16 athletes, who participated in the 2008 Beijing Olympic Games, were sanctioned for doping violations, following the re-testing of their samples. The IOC issued decisions, which automatically stripped the athletes concerned of any medals, medallist pins and/or diplomas won during those Olympic Games, without their having the effective possibility of proving whether they were actually at fault or not!
This action represents a severe and unprecedented crack-down on athletes, the bulk of whom come from countries of the former Soviet Union. The decision, which was taken over eight years after the Olympic Games were held in Beijing, raises certain concerns regarding the rights of athletes, among which is also their human right to practice sport. This right represents the fourth of seven "Fundamental Principles of Olympism" set forth in the Olympic Charter and provides for the possibility to practice sport, without fear of any kind of discrimination and in the Olympic spirit.
Another fundamental human right to be considered is art. 6 of the European Convention on Human Rights (ECHR), which guarantees the right to a fair trial. Given that the IOC is an association with its seat in Lausanne, Switzerland, Swiss Law must be considered as well.
The Swiss Constitution contains many of the same that are provided for in the ECHR, such as art. 10 para. 2, which establishes the right of personal freedom. This right entails all liberties constituting the elementary manifestations of the unfolding of personality and comprises the protection of honour and dignity. Furthermore, art. 27 of the Swiss Constitution provides for the constitutional right to economic freedom, which contains, in particular, the right to choose a profession freely and to access and exercise an occupational activity freely.
Against this background, the mass-sanctioning carried out by the IOC does present severe legal issues and problems.
Naturally, the legal framework surrounding the Olympic Games sets up rules regarding the use of performance enhancing substances and the IOC's fight against doping aims to ensure that conditions for all participants in the sporting event are on an equal footing.
On the other hand, the fact that these athletes have had their medals stripped and the decision openly published on the IOC website inevitably leads to a severe, almost irreparable image loss within the sporting community. This, coupled with the fact that these infractions happened over eight years ago – whereby it is increasingly difficult to prove one's innocence – and the fact that the sanctions are automatic, all but prevent these athletes of having an effective possibility to prove, if they were actually at fault for the anti-doping violation or not. This is problematic considering the provisions of art. 6 of the ECHR and art. 29 para. 2 of the Swiss Constitution.
Moreover, given the organisational structure, a prerequisite to allow individual athletes to participate in the Olympic Games, is to be a member of a national sports organization. Following the allegations of state manipulation of doping control and possible systemic doping programs within national sports organizations – especially within countries of the former Soviet Union – the distinction of the individual athlete is lost. He or she is linked to that organisation. Consequently, athletes from countries of the former Soviet Union wishing to manifest their fundamental right to develop their personality towards that Olympic goal, may find themselves facing a very difficult decision. This and the inherent difficulty to defend themselves against these allegations may, in turn, even lead to their being practically excluded from future sporting events, even if they were not actually at fault for the individual anti-doping violation. Similar issues indeed arise with sponsors, who will not wish to be associated with or endorse an alleged doping cheat.
Consequently some of these athletes – those who did not act with any fault – are, therefore, not only being stripped of their medals, but effectively, also of their right to economic freedom and, ultimately, their right to practice sport.