​The Russian Doping Saga: Have Legal Avenues Given Icarus New Wings?

In a recent decision in December 2020, the Court of Arbitration for Sport (‘CAS’) endorsed many of the findings in the World Anti-Doping Agency’s (‘WADA’) 2019 report — CRC Recommendation in Relation to RUSADA — which found that the Russian Anti-Doping Agency (‘RUSADA’) had intentionally mislead WADA by tampering with athlete samples between 2016 and 2019.[1] However, the CAS failed to implement WADA’s recommended four-year penalty against RUSADA, instead reducing it to two years and leaving WADA and many national doping regulatory agencies and sporting commissions deeply dissatisfied.[2] The decision will prevent Russia from competing at the Tokyo Olympics and other major sporting events, but not necessarily Russian athletes.[3]

This piece outlines the decade long saga to hold Russia accountable for its persistent doping violations and considers the reasons for the CAS’ refusal to endorse WADA’s recommended four-year ban. It will also draw links to another high-profile doping case, that of Sun Yang, and considers if legal procedure is making the role of doping regulatory bodies more difficult in holding drug cheats accountable.

I CONTEXT: FROM BEIJING TO PARIS

Culminating in the 2017 film ICAЯUS, there has been widespread public interest in State-endorsed doping by the Russian government of its athletes over the past decade.[4] While ICAЯUS outraged the public with its revelations of Russian drug usage, it exposed what had already been known by WADA for years prior. Beginning roughly with the 2008 Beijing Olympics, there has been persistent accounts of Russian state-managed doping in contravention of WADA’s World Anti-Doping Code (‘Code’): the document which harmonises doping regulations globally across all sports, representative bodies and national doping regulators.[5] In 2010, former chair of RUSADA, Vitaly Stepanov, began leaking emails to WADA providing evidence of Code violations by his own agency. WADA responded by authoring a detailed report in 2015 which recommended that Russia be banned from the 2016 Rio Olympics for violations of the Code.[6] Yet, the IOC rejected these recommendations, instead opting for member sports federations to decide whether Russian athletes would be allowed to compete.[7] Only the International Association of Athletics Federation and the International Weightlifting Federation opted to exclude Russian athletes from their competitions at Rio.[8]

Despite WADA’s unprecedented recommendations, there was little remedial action taken by the Russian Federation to clean up its act. RUSADA was again rendered Code compliant in September 2018, conditional on meeting stringent testing standards and the provision of certain athlete data.[9] Seeing no redress following Rio, WADA was prompted to recommend even harsher punishment for continued Code violations leading into Tokyo 2020.

II LEGAL CHALLENGE AND JUSTIFICATION

In December 2019 the Executive Committee of WADA (‘ExCo’) handed down recommendations that RUSADA be deemed non-compliant with the Code for a period of four years.[10] This came as a result of findings by WADA’s Compliance Review Committee that RUSADA had acted in contravention of the Code in the years following its compliance reinstatement.[11] It was found that RUSADA’s Moscow testing lab had intentionally mislead WADA by altering and deleting athlete data before passing it on, thereby failing drastically to meet its 2018 obligations.[12]

In its recommendations, WADA endorsed the strictest terms possible under the International Standard for Code Compliance by Signatories (‘ISCCS’) — the collateral document giving force to the Code — given that this was in effect, Russia’s second chance following its Code reinstatement post Rio.[13] WADA president, Sir Craig Reedie, stated that ‘the blatant breach by the Russian authorities of RUSADA’s reinstatement conditions, approved by the ExCo in September 2018, demanded a robust response’.[14]

WADA’s recommendations would have effectively barred Russian athletes from international competition for that period,[15] which would include major events such as the Tokyo Olympics, the Qatar FIFA World Cup and the Beijing Winter Olympics. Russia appealed WADA’s decision pursuant to art 10.4.01 of the ISCCS, which allows for the CAS to arbitrate appeals where a signatory of ISCCS disputes findings of Code breaches by WADA.[16] Leading into the CAS arbitration IOC president Thomas Bach commented that ‘[w]hat is as important for the IOC and the International Federations is that we get a decision [from the CAS] which does not leave room for any kind of interpretation’.[17]

On 17 December 2020, the CAS issued a decision with its three-judge panel opting to only partially uphold the recommendations of WADA. Key points from the CAS ruling included:

• Finding that Russia had failed to provide authentic athlete data to WADA and had ignored its reinstatement obligations.[18]

• That the Russian Federation and its representatives be banned for a two-year period from: participating in any Olympics or a world championship held by an ISCCS signatory; sitting on boards/panels of ICSSC Signatories; and, bidding on, voting on or hosting sporting events of ICSSC Signatories.[19]

• That RUSADA pay WADA USD $1,270,000 for its violations.[20]

III IMPLICATIONS

Under the CAS ruling, Russian athletes will be able to compete, but only as neutrals, and only if they can prove they had no connection to doping — in other words, those athletes will not compete under the Russian flag or anthem and Russia itself will not send a team.[21] CEO of the US Anti-Doping Agency, Travis Tygart, called the CAS’ decision a ‘weak, watered-down outcome’.[22]

In its full decision, the CAS determined that the imposition of a four-year period of non-compliance with the Code was permissible.[23] However, it went on to immediately justify its decision to reduce the penalty to two years on the basis that the ISCCS only ever intended for penalties to cover ‘one edition each of the Summer and Winter Olympics’.[24] It seems then that the CAS was ignoring WADA’s own wishes for a four-year ban because it may potentially cover two editions of the Summer Olympics —Tokyo 2020/1 and Paris 2024 — and that the ISCCS prevented such action. The CAS also rejected WADA’s assertion that the imposition of ISCCS penalties didn’t need to follow any form of proportionality, asserting it as a fundamental tenant of justice.[25] It was accepted by all parties that the CAS had the discretion to reduce but not increase penalties sought by WADA in cases of arbitration.[26] The CAS determined WADA’s recommendations were overzealous in their punishment and, in exercising its rights, opted to reduce RUSADA’s penalty.

This is not the only controversial decision handed down by a Swiss court in recent months. In January 2021 the Swiss Federal Supreme Court overturned an earlier CAS decision from February 2020 that banned controversial Chinese swimmer Sun Yang from swimming for an eight-year period, effectively ending his competitive swimming career.[27] However, this case was decided not on appeal of the facts, but rather as an issue of procedure. It was determined that a series of xenophobic tweets by one of the arbitrators on the CAS panel cast reasonable doubt on the impartiality of the arbitrator in question.[28]

IV CONCLUDING REMARKS

While the complexities of these judicial and arbitral decisions cannot be unpacked within the limited scope of this piece, it stands that these are the two most intensely followed doping stories in recent sporting history. While providing only an anecdotal account, these cases would seem to suggest that dishonest athletes can hide behind procedural errors and prerogatives to counterattack charges by demanding procedural perfection. All in all, these cases would seem to highlight the significant hurdles that regulators face in apprehending dopers: it is a constant game of catch-up and one in which regulators seem unable to set examples of drug cheats without extreme vetting and justification of their decisions. It is hard to look past the fact that rule breakers are using the law to enable their own actions and avoid punishment. Whether this is a matter for courts or antidoping agencies to remedy remains to be seen.

Acknowledgements

[1] Johnathan Taylor, ‘CRC Recommendation in Relation to RUSADA’, (21 November 2019) 43–4 <wada-ama.org/sites/default/files/20191209_crc_recommendation_final.pdf>.
[2] Martyn Ziegler and Matt Lawton, ‘Reduction for Russia’s Doping Ban is a Sad Outcome for Clean Sport, says Travis Tygart’, The Times(Article, 17 December 2020) <thetimes.co.uk/article/reduction-of-russias-doping-ban-is-devastating-says-travis-tygart-hbz8nr5ms>.
[3] Ibid.
[4] The ‘Real’ Threat to Russia’s Former Doping Mastermind’, BBC Stories (Article, 31 July 2020) <bbc.com/news/stories-53596997>.
[5] ‘World Anti-Doping Code’, World Anti-Doping Agency (Web Page, 19 February 2021) <wada-ama.org/en/questions-answers/world-anti-doping-code>; World Anti-Doping Agency, Independent Commission Report #1: Final Report (Report, 9 November 2015) 313 <wada-ama.org/sites/default/files/resources/files/wada_independent_commission_report_1_en.pdf>.
[6] ‘World Anti-Doping Code’ (n 5); Independent Commission Report #1: Final Report (n 5).
[7] International Olympic Committee, Decision of the IOC Executive Board Concerning the participation of Russian Athletes in the Olympic Games Rio 2016 (Media Release, 24 July 2016) <olympic.org/news/decision-of-the-ioc-executive-board-concerning-the-participation-of-russian-athletes-in-the-olympic-games-rio-2016>.
[8] Rebecc Ruiz, ‘Russia’s Track and Field Team Barred from Rio Olympics’, The New York Times (Article, 17 June 2016) <nytimes.com/2016/06/18/sports/olympics/russia-barred-rio-summer-olympics-doping.html>.
[9] Jonathan Taylor (n 1) [1]–[2].
[10] World Anti-Doping Agency, ‘WADA Executive Committee Unanimously Endorses Four-Year Period of Non-Compliance for the Russian Anti-Doping Agency’, World Anti-Doping Agency (Article, 9 December 2019) <wada-ama.org/en/media/news/2019-12/wada-executive-committee-unanimously-endorses-four-year-period-of-non-compliance>.
[11] Jonathan Taylor (n 1) [1]–[3].
[12] Ibid [43]–[46.3].
[13] Independent Commission Report #1: Final Report (n 5) 313.
[14] WADA Executive Committee Unanimously Endorses Four-Year Period of Non-Compliance for the Russian Anti-Doping Agency’ (n 10).
[15] Ibid.
[16] Jahmiah Ferdinand-Hodkin and Phedely Ariste, ‘The Court of Arbitration for Sport Reduces Russia’s Doping Ban to Two Years’, Gowling WLG (Blog Post, 14 January 2021) <gowlingwlg.com/en/insights-resources/articles/2021/russia-doping-ban-reduced-to-two-years/>; World Anti-Doping Code International Standard Code Compliance By Signatories (April 2018) [10.4.01].
[17] Coralie Febvre, ‘Russia Banned for Two Years in Landmark CAS Ruling’, The Moscow Times (Article, 17 December 2020) <themoscowtimes.com/2020/12/17/russia-banned-for-two-years-in-landmark-cas-ruling-a72399>.
[18] World Anti-Doping Agency (WADA) v Russian Anti-Doping Agency (RUSADA) (Arbitral Award) (Court of Arbitration in Sport, CAS 2020/O/6689, 17 December 2020) [614, 675]; [675] (‘WADA v RUSADA’).
[19] Ibid [753].
[20] Ibid [5(a)].
[21] Coralie Febvre (n 17).
[22] Ibid.
[23] WADA v RUSADA (n 18) [742].
[24] Ibid [744].
[25] Ibid [720]–[721].
[26] Ibid [727]–[728].
[27] Tracey Holmes, ‘Sun Yang is Free to Swim and the Court of Arbitration is on Notice’, Australian Broadcasting Corporation (Article, 25 December 2020) <abc.net.au/news/2020-12-25/sun-yang-free-to-swim-again-court-of-arbitration-on-notice/13013818>.
[28] Tribunal Fédérale [Swiss Federal Supreme Court] (22 December 2020) 4A_318/2020, 7.9 (Switz).