Fresh guidance from the IOF Ethics Panel

The long awaited Ethics Panel decisions on the China events in October 2019 have been published yesterday on the IOF website. These are important not only because of the specific rulings regarding the events in question, but also for their implicit guidance to the whole international orienteering community.

As discussed earlier, in the view of the IOF Ethics Panel the IOF Code of Ethics applies to everybody without limitation in time, who has ever touched a map or saw a runner with map in hand. Hence, it is everybody’s obligation in the orienteering community to read, discuss and understand the decisions of the Ethics Panel that provide the interpretation of the high level text of the Code of Ethics for practical situations. They are profitable for teaching, for reproof, for correction, and for training in righteousness.

There was little surprise in the overall decisions of the Ethics Panel: the proven cheaters of the Military World Games were banned, while the request to investigate strange results of the World Cup was politely declined. Yet, there were several important elements of the decisions that set precedents for future cases:

• The IOF Ethics Panel confirmed that they see their jurisdiction covering events and athletes with no formal ties to the IOF, just because they engage in an activity called orienteering;
• The IOF Ethics Panel may not only conduct a trial in absentia, but according to their report it seems that may make even no effort to contact the individuals subject to their investigation, thus one may get sanctioned without given a chance to defend themselves;
• The plea of acting “under orders” is a strong mitigating factor for cheating athletes, at least when they are associated with military organisations;
• The IOF Ethics Panel keeps using undisclosed (maybe even unwritten) procedural rules to decide on cases, especially when it comes to the standard of proof required;
• The IOF Ethics Panel encourages the IOF Council to regulate social media through fair play rules;
• The IOF Ethics Panel is not transparent in their activities; some lengthy investigations may never get disclosed for reasons unknown, yet inconvenience the subjects of the investigation.

Though it has been shown in connection to this blog that even asking questions in IOF related matters may result in a lengthy investigation by the IOF Ethics Panel, yet the imperative to become more ethical through the study of the decisions of the Ethics Panel shall make this risk worthwhile.

Let’s look at the details:

 

Decision concerning the CISM Military World Games

This appears to be a bread and butter case for the IOF Ethics Panel. It is very similar to a “standard” doping case. There were athletes and organisers who were found guilty of cheating by an authorised body. The role of the Ethics Panel was to decide on the sanctions. This case was slightly complicated for the uncertainty around the jurisdiction of the IOF Ethics Panel on a non-IOF event.

Jurisdiction of the IOF Ethics Panel

The IOF Ethics Panel has decided – based on unspecified legal advise, – that the orienteering events at the CISM Military World Games (a non-IOF event) came within the jurisdiction of the IOF and, as such, any alleged breach of the IOF Code of Ethics was within the remit of the Panel. This was asserted on the basis of the following:

• A Convention of Collaboration existed between the IOF and CISM, though
  • the agreement was unsigned and undated;
  • it was “agreed” a long time ago (clearly before 2016) for an initial period of 4 years (with a clause of automatic renewal);
  • the agreement had no clear clause that categorically states that CISM abides by and upholds the IOF Rules of Competition, the remit of the Ethics Panel, and other policies of the IOF.
• Paragraph 6 page 4 of the Bulletin of the CISM event states that the event is held under the 2018 edition of IOF competition rules, though
  • the 2018 IOF competition rules were out of date in October 2019;
  • there was a statement that CISM regulations also applied;
  • the 2018 rules do not make any reference to observing the IOF Code of Ethics.
• CISM has appointed a military event advisor, who is also a certified Event Advisor for the IOF, though
  • was not appointed by the IOF, because this was not an IOF event.
• The Event Bulletin has clearly shown an Embargoed Area, though
  • using a rule “borrowed” from the IOF is unlikely to mean accepting authority.

Legally it feels somewhat shaky to base jurisdiction on an old, unsigned agreement that does not even states any obligation to accept the policies of the IOF. Yet, it confirms and extends the approach the IOF Ethics Panel took when they investigated the activity of this blog. As discussed in my previous post on the relationship of the IOF Ethics Panel Trumps Law?, they made it clear that “once you participate in the IOF activities, you consent to being bound by these internal regulations. Therefore, the Ethics Panel has the power given to it by the IOF Code of Ethics to conduct an inquiry”.

The Ethics Panel in their letter of 9 April 2019 made it absolutely clear that in their view the Code gives them power not only above the laws, but they can investigate anybody for the rest of their life if they were ever subject to the Code.

The IOF Ethics Panel now asserts that its jurisdiction stretches over any event that is organised as an orienteering event, uses concepts of an orienteering event, and involves people who had relationship to the IOF before – independent of the fact if the IOF is involved in any formal way or not.

According to my legal representative, if the Chinese decide to appeal this in front of CAS (Court of Arbitration for Sport) in Lausanne, they will have a very high chance to get this decision thrown out. Of course, the Chinese who may never intend to participate on an IOF event at all, may not bother at all to challenge this decision with absolutely no relevance to them.

Trial in absentia

Of course, the Chinese may appeal at CAS if they ever learn about this procedure. There is not a single hint in the Ethics Panel decision that (i) the Ethics Panel tried to contact the Chinese organisers, team officials or athletes involved, (ii) that any information was requested from them, (iii) that they were given a chance being represented at the hearing, respond to the asserted ethical violations, or present evidence, (iv) that any effort will be made to serve this decision appropriately to the sanctioned individuals within a reasonable timeframe that allows appeal to CAS.

While contacting members of the People’s Liberation Army of China may not be the most straightforward task, and may not even succeed within reasonable time, the fact is that the IOF Ethics Panel documented a process where 25 people were sanctioned, banned for 2 to 4 years, without any reference that there was a direct or indirect effort to contact them or their representatives. There was no hint that any of the two invitees on the hearing (one from the IOF, the other from CISM) was representing the Chinese athletes and officials.

While the 11 Chinese athletes were found guilty of cheating by the jury, the 2 team officials were sanctioned for 4 years with apparently no clear evidence (“the Panel take the view that they were certainly party to a series of activities that influenced and caused their athletes to cheat”). The 12 organisers were sanctioned for 4 years not for cheating, but for various non-specified actions of harassment, and breach of fair play and integrity, with no chance given to defend themselves, or even present their view of the events either in person or through a representative.

Based on the IOF Ethics Panel report it seems that the IOF Code of Ethics was seriously violated by the Panel process, by not giving a chance for the sanctioned individuals to be represented.

The IOF Code of Ethics clearly states under Section 8.3 that

The hearing process shall respect the following principles:
a) the right of each party to be represented (at the party’s own expenses) or to be accompanied by a person chosen by each party;
b) the right to respond to the asserted ethical violation;
c) the right of each party to present evidence, including the right to call and question witnesses;
d) the right to an interpreter at the hearing if required.

Everybody must have a right to a fair trial. The IOF Ethics Panel – according to their own report – seriously violated this most basic ethical principle of the civilised world.

Acting “under orders”

A very important precedent was set by the Ethics Panel when they considered that

“Both CISM and the IOF suggested that the Chinese athletes, and to a lesser extent team officials, may have been “acting under orders” and were placed under unfair pressure to comply with these orders or risk potentially significant personal disadvantage. This point of mitigation was recognised by the Panel.”

Superior orders is a very exciting topic of discussion, but for the purposes of this post we must only note that the plea of superior orders has been used with a notable lack of consistency in various rulings over time from 1474 to 2006 as detailed under the link.

After the decision of the IOF Ethics Panel we must note that within international orienteering the ‘Befehl ist befehl’ plea is “a strong point of mitigation”, at least for athletes and team officials with military links. 

Traditionally all around the world many elite orienteers are associated with highly hierarchical power organisations like the army, police, or border force, that are all governed by orders given by superiors.  One of the leading orienteering nations even used to pride themselves by continuously involving all able bodied men in army reserves. For all these athletes an order is an order.

From now on, we shall expect that athletes facing the IOF Ethics Panel after anti-doping violation or intentional cheating, will use the “acting under order” plea, and we shall expect the Ethics Panel to consider it as “a strong point of mitigation”.  

What is more, if we consider that the “acting under order” plea was not made by the Chinese athletes (for the simple reason that they were neither present, nor represented), we shall expect that from now on all athletes caught cheating as member of a military or other power organisation shall get the “order is an order” mitigating factor taken into account automatically.

 

Decision concerning the World Cup Final

The core decision for this case was also as expected. The Ethics Panel kindly declined to request of the President of the IOF to investigate the background of “incredible improvement of technical skills and running speed of some athletes”.

“The Panel has concluded that there is insufficient precision in the referral for any focused inquiry to be undertake(sic!) and has therefore decided not to pursue any further actions regarding this referral.”

They noted that everything was “anecdotal, speculative and unsubstantiated” in this matter, while the report of the Australian Senior Event Adviser states clearly that, to the best of his belief, and on the information available to him, none of the alleged elements of the cheating claims occurred or can be substantiated. Yet, the lengthy report from the Czech technical advisor to the Chinese World Cup Organising Committee has been completely disregarded given his potential conflict of interest in the matter.

This asymmetric approach to advisors is very interesting. Having organised five major IOF events, and advised formally and informally even more, I know very well how easy for organisers to do things behind the back of event advisors, let them be IOF appointed or directly contracted by the organising committee. In the meantime, both the technical advisor (paid the organisers) and the SEA (whose role is “to ensure that rules are followed, mistakes are avoided and that fairness is paramount”) has vested interest to show that the event was fair. Dismissing one report entirely, while taking the other as evidence, is a surprising approach.

To ensure equal footing with the President, the IOF Ethics Panel kindly threw back the matter over the fence telling the IOF leadership “to consider some form of measurement that it uses to judge a performance as exceptional” and “establish more robust rules on issues such as breach of embargoed areas” (as if strength of a rule could prevent the breach of it at all).

Standard of proof: unsubstantiated

The implication for the future of this decision is the lack of clarity around the procedural rules used by the Ethics Panel, including the extensive use of the concept of “unsubstantiated” to dismiss information and statement they did not want to consider. Interesting to note, that “unsubstantiated claims” was also a core concept of the Ethics Panel when they investigated this blog without being able to name a single specific allegation, while they ignored all the facts provided.

 The Ethics Panel uses the concept of “unsubstantiated” as a trump card to dismiss without ever defining what “substantiated” is, or providing any specifics on the evidences or claims dismissed as “unsubstantiated”.

This is a black box procedure in the practice of the IOF Ethics Panel.

It should not require any in-depth knowledge of law to understand that in any case the standard of proof is one of the most important decisive factor. Without making the slightest effort to establish the standard of proof required for the IOF Ethics Panel decisions, any case that requires actual proof is decided by the feelings of the members of the Ethics Panel.

The applicable standard of proof, admissibility of evidence, and expected handling of conflict of interest in legal proceedings shall be defined within the relevant procedural rules. Currently there are no procedural rules exist for the IOF Ethics Panel. The IOF Code of Ethics states under Section 8 (Procedure for managing possible ethical violations), but it does not provide any specifics on the key concepts mentioned above. It even suggests under 8.3 that procedural rules may change on a case by case basis: “If a hearing is to be held, the Panel shall determine the procedure to be followed.”

Is it ethical to conduct Ethics Panel proceedings with procedural rules that do not cover in writing and in a publicly available way some of the key concepts required for a fair process?

CAS, the Court of Arbitration for Sport, uses “comfortable satisfaction” as applicable standard of proof in AD cases. One may argue that the suspected cheating in China was similar to doping in its nature: a premeditated and organised effort to give athletes an advantage through preparation that circumvents the rules, a kind of information-doping.

“Comfortable satisfaction” is not well defined, but according to CAS “the application of the comfortable satisfaction standard is a constant one, but inherent within that immutable standard is a requirement that the more serious the allegation, the more cogent the supporting evidence must be in order for the allegation to be found proven.”

In any case, “comfortable satisfaction” is somewhere between “beyond reasonable doubt” (applied in criminal cases, say 90% proof) and “on balance of probabilities” (applied in some civil proceedings, say 60% proof). Comfortable satisfaction is unavoidably relying on expert opinions of top practitioners, especially of those who did not participate that very competition but had some experience with the type of terrain and format, and know what may or may not constitute “exceptional performance improvement” in orienteering.

Obviously, there is always a presumption of innocence, i.e. the onus of proof lies with the investigative body. Each charge in each case must be approached with an open mind. But that does not mean that an athlete cannot be found guilty “even if there is a 1% chance that they have not cheated”.

The IOF Code of Ethics is rather vague in many aspects, including the burden of proof required. It is suitable for deciding on the length of ban for drug cheats already convicted by WADA, but gives no proper framework for anything more complex. Hence, the use of CAS standards would be reasonable, as CAS is the appeal court to any IOF Ethics Panel decision.

A very exciting AD case study is the Essendon 34. An Ozzie football team was convicted of drug use based on circumstantial evidence a couple of years ago. There was no positive test, and the ASADA could not produce satisfactory evidence to prove the case for each “link in the chain” (when, how and from where was it sourced and administered). When some links of the chain were eventually not proven to a satisfying standard, the case was thrown out. WADA appealed to CAS and successfully argued the case based on “strand in a cable” approach. Each piece of evidence, or “strand”, was not required to bear the entire weight of the standard of proof – because some of the weight could be carried by the other strands. In other words: no evidence made the case “substantiated”, but the full picture was convincing to CAS.

The “strand in a cable” approach is likely to be more suitable to suspected information-doping cases in orienteering, like the one in China, but it requires substantial effort by the IOF to prepare the case, and it also requires that the members of the judicial body have some knowledge of the relevant legal concepts, and at least some of them have experience in conducting proper legal proceedings.

IOF fair play to regulate social media

The final fascinating point is in the last paragraph of the decision of the IOF Ethics Panel.

“The Panel also wishes to draw to the attention of the Council the unfortunate and un- substantiated allegations made in connection with this, and other events, where some claim that “exceptional” results were obtained. Whilst recognising the complex nature of governance and regulation in social media postings, Council should consider strengthening the concept of fair play to include commentary on fellow athletes.”

As discussed before, social media like this blog, is a disturbingly unregulated area for the IOF Ethics Panel. Yet, their request that the IOF Council should implement at least partial regulation of the social media through the concept of fair play is close to what one may define as “exceptional performance” in sport regulation.

First, the concept of fair play is tightly related to event participation. The IOF Rules clearly refer to “all persons taking part in an orienteering event” under 26.1, the section dealing with fair play. Social media discussions are typically detached from orienteering events in time and space, and often involve completely different participants. Regulating this with fair play rules would require redefining the several century old concept of fair play by the IOF Council. Sounds like a grandiose task.

Second, while it is true that there is a theoretical possibility of a social media smear campaign against some competitors, but those are cases either of ethical or criminal nature. Strange that the IOF Ethics Panel did not feel ownership for this matter if they believe that some athletes stepped over the line. As discussed above, the IOF Ethics Panel sees everybody with any previous connection to orienteering events as potential subject to their attention. It is unclear what stops the Ethics Panel from taking actions if they see inappropriate social media behaviour. Their failure to prosecute this blog should not dent their enthusiasm when it comes to regulating social media behaviour.

Finally, the use of “unsubstantiated allegations” comes up again without even a hint what could be seen by the IOF Ethics Panel as an “allegation” or a “substantiated allegation” on social media. This may leave talking about the weather as the only option acceptable by the Ethics Panel when discussing a highly unexpected performance by an athlete on social media. Yet sport communities thrive on discussing the performance of athletes, let it be better or worse than expected. Using rather vague terms, without being specific of what is acceptable and what is not, and trying to impose rules on self governing communities, unlikely to succeed.

Undisclosed Ethics Panel investigations

There are remarkable similarities between the Ethics Panel investigation of the World Cup in China and the investigation of this blog in 2019. Both of them were based on IOF referral. Both of them were investigated by the Ethics Panel for months. Both of them were closed without a formal hearing.

Yet, only one of them, the investigation on the World Cup in China was documented publicly and made available on the IOF website on the page of the Ethics Panel. The longer investigation into this blog that consumed substantial time and effort, left no official trace. The reasons for the difference are unclear.

While I realise (especially after the Ethics Panel investigation) that asking questions may carry substantial risk, it is unavoidable to ask:

• What does determine if a several month long IOF Ethics Panel investigation results in a publicly available report or not?
• How many unreported investigations were conducted by the IOF Ethics Panel over the past years?

 

As always, we shall finally express our hope that discussing observations, questions and concerns shall benefit our beloved sport, and contributes to the improvement of the governance of the International Orienteering Federation.