Federations fear huge damage claims over Russia’s Olympic Games ban

Yuliya Efimova won gold in the 100m breaststroke at the 2015 world championships in Kazan and is preparing a lawsuit over her Rio ban. Photograph: Christophe Simon/AFP/Getty Images

The 28 sports federations which hold the fate of Russia’s Olympic athletes in their hands have been warned they face “huge damage claims” if they block anyone from competing who has not been sanctioned for doping.

On Tuesday modern pentathlon, canoeing, sailing and rowing joined swimming in barring those Russians mentioned by the independent investigator, Richard McLaren, as “protected athletes” – those who had positive results covered up by the state – in his report to the World Anti-Doping Agency last week.

However in another sign of the chaos and confusion resulting from the International Olympic Committee’s decision not to ban the entire Russia team on Sunday, the Guardian has learned at least one international federation is so worried about being sued it is considering waving through those Russians named by McLaren as protected athletes – thus forcing the IOC to remove them itself. That, it believes, would put the burden on the ruling body if there was a legal challenge from those Russian athletes.

A highly respected sports lawyer, Mike Morgan, said the IOC is likely to face multiple challenges from Russian athletes at the court of arbitration for sport in the coming days because it had made up “rules on the spot which they know are unenforceable”.

“One of the major problems with the IOC’s decision is the Russians who were named in McLaren’s report as being protected have been withdrawn from the Olympics without having their cases tested in court,” he said. “It circumvents the athletes’ due-process rights. Simply being named as a protected athlete does not mean they have taken a banned substance.”

IOC decides not to ban Russia from Rio 2016: ‘They deserve chance to rebut allegations’ – audio

Morgan, who has had numerous successes defending athletes at Cas and also handled the case of Liverpool defender Mamadou Sakho when doping charges against him were dismissed, said: “Let’s say the IOC and their individual federations kick them out and in a few months we discover these athletes are not found to have committed an anti-doping violation? We are going to end up with athletes who should have gone to the Games. The harm done to them will be irreparable and the only way to make up for it would be a claim for substantial damages.”

Morgan cited the case of the former East German sprinter Katrin Krabbe, who was awarded £500,000 after athletics’ governing body, the IAAF, sanctioned her for a longer period than provided for by the rules.

The legal challenges to the IOC’s ruling began on Tuesday when the world champion swimmer Yuliya Efimova said she would appeal against the IOC’s ruling that Russian athletes who had served a doping ban could not go to Rio. “We are preparing Efimova’s lawsuit which will most likely be filed at Cas on 29 July,” her lawyer, Artyom Patsev, told the Russian news agency Tass.

Efimova may have a very good chance of winning. Not only does the IOC’s ruling punish Russian athletes for a second time after they have already served a ban – the so-called double-jeopardy rule – it also discriminates against them because athletes from other countries who have served bans will be allowed to compete in Rio. They will include the American sprinters Justin Gatlin, who has served two bans for doping offences, and Tyson Gay.

Russian appeal against Olympic athletics ban dismissed by Cas – video

In an interview with the BBC, Russia’s celebrated whistleblower Yuliya Stepanova – banned from competing by the IOC owing to the rule – said she was convinced Russian athletes who had doped would still be present in Rio.

On Tuesday the International Modern Pentathlon Union said Maxim Kustov and Ilya Frolov were mentioned in McLaren’s report last week as having allegedly had positive tests covered up by Russian authorities and will therefore not be in Rio.

Five Russian canoeists, including the Olympic champion Alexander Dyachenko, who won gold in the men’s double kayak 200m at London 2012, were also banned after being cited in McLaren’s investigation into how Russian state officials allegedly intervened to cover up hundreds of failed drug tests. World Rowing said it had excluded 17 Russians, leaving only six free to compete.

The International Shooting Sport Federation has decided to allow 18 Russians to compete. The International Judo Federation, which lists Vladimir Putin as its honorary president, said it would allow all 11 Russian judoka to fight in Rio.

“All those athletes have been tested starting from September last year until the end of May, on many occasions, at many international judo events abroad from Russia,” said its president, Marius Vizer. “There was no punishment, no negative evidence. We don’t take into consideration any analysis or tests made in Russia, because for us it is not relevant.”

World Sailing said it had passed six Russians as clear to compete. “One athlete, Pavel Sozykin, was denied eligibility based on the findings of the McLaren report. As Sozykin competes in the 470 Men’s Class, which is a two-person racing classification, World Sailing has recommended the Russian Olympic Committee will have the opportunity to nominate a late replacement,” it said.

A sports governance expert, Roger Pielke Jr, has calculated 119 Russians have been approved by their federations – pending ratification by the IOC and an independent Cas assessor – to compete. Thirteen international federations with qualified athletes are still to report.

As the floodgates started to open to allow Russian athletes to compete, the Guardian also learned the IOC appears to have contradicted its rules on banning a specific country from competing if it has multiple anti-doping violations. Wada’s recommended regulations for international federations state it can take action against a member country for failing to comply with anti-doping regulations.

In the case of the International Weightlifting Federation, it specifically wrote a clause into its own anti-doping rules saying that if more than nine athletes from a member country tested positive beyond its own borders, then they could be suspended from the Olympic Games that followed.

The IOC has to specifically agree the qualifying rules and did so. The Bulgarian Weightlifting Federation then fell foul of the rule and was banned from Rio, with its appeal being rejected at Cas.

Critics of the IOC’s approach have pointed to the fact the rules it approved for the IWF appear to be completely counter to the decision it took in not directing all 28 federations to ban Russia from the Rio Games outright.