A Lament for Whistleblowers

 

Yesterday was a watershed day in the history of the Olympic Movement.  The short version of this long, sad, and depressing story is as follows.

On Sunday, the International Olympic Committee (IOC) considered whether to ban all Russian athletes from participating in the 2014 Summer Olympic Games in Rio. The IOC’s meeting followed a series of revelations in the press and in reports commissioned by anti-doping authorities about what has been characterized as a state sponsored doping scheme in Russia.  This scheme is alleged to have included high-ranking members of Russia’s Sports Ministry and members of Russia’s FSB (reportedly the successor to the KGB), scores of concealed positive tests, and a urine swapping system whereby tainted samples were exchanged for previously collected-collected clean samples via a hole in the wall of a testing laboratory at the Sochi Winter Games.  Russian officials have denied these claims.

The IOC made two decisions on Sunday relevant here.  First, despite what some termed overwhelming and credible evidence of state sponsored doping, the IOC declined impose a blanket ban on Russian athletes. Instead, the IOC punted the question of Russian participation to individual sport federations.  (So, for example, the international judo federation gets to decide whether Russian judo athletes are able to participate in the Rio Games.)  This means that individual federations have less than two weeks to (i) figure out standards for assessing whether an individual Russian athlete should be able to participate in the Olympic Games and (ii) establish processes by which to assess individual athletes’ requests to participate. Presumably, there will need to be an appeal process for all of this, as well.  Maybe we can set up a hearing room outside the Opening Ceremonies stadium?

Second, while declining to ban Russia outright from the Rio Games, the IOC made it clear that Russian athlete Yuliya Stepanova will not be permitted to compete in Rio. As discussed below, Stepanova is a Russian 800-meter runner who, along with her husband (a former employee of the Russian anti-doping authority), courageously blew the whistle on doping in Russian track and field.  Stepanova had wanted to compete as a neutral athlete in Rio, but the IOC decided as part of its deal with Russia that any Russian athlete who has ever served a doping suspension is barred from competing in Rio.  Because Stepanova served a doping suspension (based on her voluntary admission that she participated in the state-sponsored doping scheme that she exposed at great personal cost), she is ineligible to complete in Rio the under Russia-IOC deal.

Where to even start. If credible evidence of state-sponsored doping is not enough to get a country banned from the Olympics, what does it take?  Knowing what it now knows about concealed positive tests, and given improvements in doping detection technology, why hasn’t the IOC tested literally every sample in the vault ?  Why hasn’t the IOC moved aggressively on reports of doping in places without a robust regime of out-of -competition testing?  Can the IOC ever look a clean athlete in the eye again?  Is all of this the death knell of the modern Olympic Movement?

Although all of these topics merit discussion, I’d like to focus on what the IOC’s decision means for whistleblowers. I am focusing on whistleblowers because encouraging and protecting whistleblowers has long been identified as a key part of the fight against corruption. This takes us back to the aforementioned athlete Yuliya Stepanova and her husband Vitaly Stepanov.

More than one year ago, the German broadcaster ARD began airing documentaries on doping by the journalist Hajo Seppelt.  The reports included audio and video segments recorded in Russia which appeared to show Russian coaches handing out performance enhancing drugs to athletes and athletes acknowledging the use of performance enhancing drugs.  Much of this material came from Yuliya Stepanova.  Over time, the public learned that Vitaly (first) and Yuliya had been trying to blow the whistle on what they saw as a state-sponsored doping system in Russian track and field for a while, only to have been repeatedly rebuffed and ignored by the authorities.  Indeed, it was only after the ARD and Seppelt broadcast the documentaries that the powers that be began to act on the Stepanovs information, eventually voting to ban most Russian track and field athletes from Rio.

What has happened to the Stepanov family as a result of their courageous whistleblowing?

  • As soon as they were identified as whistleblowers, the Stepanovs became pariahs.   The IAAF (the international federation in charge of track and field) officials certainly did not embrace the Stepanovas, nor did they act quickly to investigate their claims. The gear sponsor for the Russian national team, the IOC, etc. – all remained silent as the Stepanovs stood alone against the full force of the Russian Sports Ministry.

 

  • The Stepanovs were vilified in Russia, branded traitors, and eventually forced to flee their homeland out of concern for their safety and the safety of their young child. They reportedly are living in an undisclosed location in the United States in difficult economic circumstances.

 

  • Although Yuliya has served her suspension for doping violations – the product of the doping system she (and apparently many others) felt compelled to participate in and as to which she blew the whistle – Russian politicians and athletes called for Yuliya to be barred from Rio.  Some demanded a life-time ban. This would be far harsher than the bans imposed on the scores of Russian track and field athletes banned for doping violations. Notably, other athletes who served bans have returned to competition – including members of the US Track & Field team heading to Rio.  (NOTE:  I am not saying that the participation of these athletes is a good thing.)

Let’s be realistic. After seeing what has happened to Yuliya and Vitaly, who would EVER come forward as a whistleblower?  Why willingly subject oneself to public vilification?  Why put personal safety and the safety of friends and family members at risk?  Why risk careers and futures?  Steve Magness and Kara Goucher – a coach and well-known American athlete involved in a domestic whistleblowing story – have spoken eloquently about the financial, physical, and emotional costs of whistleblowing.

So, let’s treat the Olympics Movement like the business it really is, and let’s talk about what a real system of protection for whistleblowers would look like. Here are some ideas:

Enact Anti-Doping Laws:  Perhaps it is my lawyer’s bias, but I think real protection for whistleblowers starts with a legal regime which (i) prohibits doping as a matter of criminal or civil law, or both; and (ii) establishes procedures and protections for whistleblowing.  I would require nations to enact an anti-doping regime with these components as a requirement for their national federation’s membership in good standing in the Olympic Movement.

Require Sports Federations and Anti-Doping Authorities to Establish Well-Funded, Well-Staffed Whistleblower Offices: Sports federations and anti-doping authorities should be required to establish a whistleblowing office.  The office should be well-funded and it should be staffed by trained, independent investigators with the authority to investigate claims of wrongdoing and the obligation to refer credible claims of doping violations to the authorities for civil or criminal prosecution, or both, as warranted.

Protect the Anonymity and Confidentiality of Whistleblowers: Whistleblowers should be able to convey concerns anonymously, and the whistleblower office should be empowered to protect the confidentiality of whistleblowers to the maximum extent possible.

Provide for Reporting and Follow-Up “Outside the Chain of Command”: Statutes should provide for reporting outside the “chain of command.”  Consider the following story.  In 2012, a Russian discus thrower named Darya Pishchalnikova won a silver at the London Olympics. Four months after the Games, she sent an email in English to WADA (the World Anti-Doping Agency) saying that she had taken banned drugs at the direction of Russian sports and anti-doping authorities.  She reportedly said that had information on systematic doping in her country and she asked WADA to investigate, saying “I want to cooperate with WADA.”   WADA did not begin an inquiry.  Instead, it sent Ms. Pishchalnikova’s email to Russian sports officials – the very people who Pishchalnikova said were running a state sponsored doping program.  After seeing what has happened with the Stepanovs and others familiar with drug use in Russian athletics, a system which does not require reporting to the state first would seem advisable.

Remedies and Sanctions for Retaliation: Perhaps most importantly, a whistle-blowing system must include prohibitions against retaliation and sanctions for any violation of those rules. By way of example, under US securities laws, employers may not discharge, demote, suspend, harass, or in any way discriminate against a whistleblower because of any lawful act done by the whistleblower in providing information to the Securities Exchange Commission under the whistleblower program or assisting the SEC in any investigation or proceeding based on the information submitted. Whistleblowers who believe that their employers have wrongfully retaliated against them may bring a private action in federal court against their employers, and if a whistleblower prevails, she may be entitled to reinstatement, double back pay, litigation costs, expert witness fees, and attorneys fees. The SEC can also take legal action in an enforcement proceeding against any employer who retaliates against a whistleblower for reporting information to us. Finally, a whistleblower also may be entitled to file a complaint with the Department of Labor if an employer retaliates.

Obviously, one would have to tweak this system for international sports, but the concept is sound – protect whistleblowers from retaliation for working with the authorities to report doping.

Recognize that Whistleblowers May Have Participated in the Misconduct: A whistleblowing system must recognize that whistleblowers may have been involved in the misconduct at issue.  Think about it.  How else would Yuliya Stepanova have known about doping in Russian track and field?  How else would she have been able to make the recordings that she did?

Consider Incentives for Whistleblowing: Many whistleblowing systems offer whistleblowers incentives for coming forward.  This is controversial, of course – we tend to want our heroes to be motivated by altruism rather than cash.  While I would not put rewards at the center of a whistleblowing program, I do think that the real costs of whistleblowing – e.g., years of litigation, loss of employment, etc. – can test the resolve of any potential whistleblower.  Thus, I think it is worth it to consider whether agents, coaches, federations, and/or states that organize and carry out doping schemes might be required to contribute to a fund that could be used to offset some of the economic impacts of whistleblowing.

In watching the current scandals play out, I can’t help but be reminded of the 1976 Olympics. I was an age group swimmer then, and I remember watching the East German women win event after event.  I remember when Shirley Babashoff – the star American swimmer — was called “Surly Shirley” when she questioned the performances of the East German swimmers.  I remember the magical last relay when the US women won gold.  And, years later, when news of state sponsored doping started to leak out, I remember feeling sadness and anger – anger for the dreams and moments stolen by doping; anger for the abuse of the East German athletes, many of whom endure the scars of the doping regime today.  Anger and sadness that the athletes — East German, American, etc. — paid an such an enormous price for the greed and politics of others.

At the end of the day, the Olympic Movement may simply be too corrupted by money, politics, and power to truly commit to eradicating doping. But, to see the avarice and cowardice of the IOC laid bare over the weekend, on the eve of Games that already are straining under the weight of poverty, social unrest, environmental damage, and threats of the Zika virus – it’s just heartbreaking. Thus, this modest call for reform.

Christine Chung

Christine Chung

This blog is edited by Christine Sgarlata Chung, Associate Professor of Law at Albany Law School, and Co-Director, Institute for Financial Market Regulation. In addition to her work in academia, Professor Chung previously served as a Branch Chief in the Enforcement Division of the Securities and Exchange Commission and as a partner at a large Boston-based law firm.
Christine Chung