Wingless and Tumbling...

Summary

The WAD Code provides very little discretion to the decision-maker when it comes to determining whether a mandatory Provisional Suspension is lifted, whether or not the athlete is a protected person. By considering factors outside of whether Valieva demonstrated that the positive test was due to a ‘Contaminated Product’ as defined by the Code, the CAS likely acted outside of its powers conferred by the Code.

I’m trying to get some things straight in my own head, in particular how the CAS applied the World Anti-doping Code 2021 (WAD Code), as this is the issue that most intrigued me in this case.

In a statement released by WADA, WASA stated that in its view:

… it appears that the CAS panel decided not to apply the terms of the Code, which does not allow for specific exceptions to be made in relation to mandatory provisional suspensions for 'protected persons', including minors.

In the reasons provided by CAS for their decision in the Valieva case, as set out by their media release, CAS stated that its consideration included various ‘exceptional circumstances, the first two of which are:

a) The Athlete is a “Protected Person” under the World Anti-Doping Code (WADC);

b) The RUSADA Anti-Doping Rules and the WADC [WAD Code] are silent with respect to provisional suspension imposed on protected persons, while these rules have specific provisions for different standards of evidence and for lower sanctions in the case of protected persons;

In my view, para b) is a statement of the current provision of the WAD Code (and the RUSADA Anti-Doping Rules), rather than facts and circumstances of this particular case. It is the state of the law that the WAD Code does not currently provide requirements specific to protected persons with regards to provisional suspensions, while it does provide other rules in relation to protected persons. As such, this does not pertain to facts of the case, therefore I’m not sure why CAS has termed this was an ‘exceptional circumstance’. I was also unable to find where the WAD Code provides for a lower standard of proof (when establishing evidence) for protected persons.

Other exceptional circumstances cited by CAS are:

c) The Panel considered fundamental principles of fairness, proportionality, irreparable harm, and the relative balance of interests as between the Applicants and the Athlete, who did not test positive during the Olympic Games in Beijing and is still subject to a disciplinary procedure on the merits following the positive anti-doping test undertaken in December 2021; in particular, the Panel considered that preventing the Athlete from competing at the Olympic Games would cause her irreparable harm in these circumstances;

d) The CAS Panel also emphasized that there were serious issues of untimely notification of the results of the Athlete’s anti-doping test that was performed in December 2021 which impinged upon the Athlete’s ability to establish certain legal requirements for her benefit, while such late notification was not her fault, in the middle of the Olympic Winter Games Beijing 2022.

Does CAS have the discretion to eliminate the Provisional Suspension?

If we only look at the text of the WAD Code on provisional suspensions, the relevant text is as follows:

7.4.1 Mandatory Provisional Suspension after an Adverse Analytical Finding or Adverse Passport Finding

The Signatories described below in this paragraph shall adopt rules providing that when an Adverse Analytical Finding or Adverse Passport Finding (upon completion of the Adverse Passport Finding review process) is received for a Prohibited Substance or a Prohibited Method, other than a Specified Substance or Specified Method, a Provisional Suspension shall be imposed promptly upon or after the review and notification required by Article 7.2

…. A mandatory Provisional Suspension may be eliminated if:

(i) the Athlete demonstrates to the hearing panel that the violation is likely to have involved a Contaminated Product, or

(ii) the violation involves a Substance of Abuse and the Athlete establishes entitlement to a reduced period of Ineligibility under Article 10.2.4.1.

I’m making a few (I think reasonable) assumptions:

· Russia or RUSADA is a Signatory for the purpose pf art 7.4.1, or to whom art 7.4.1 applies.

· A review and notification has been done as required by Article 7.2.

Some definitions are relevant for the interpretation of this article:

Adverse Analytical Finding: A report from a WADA-accredited laboratory or other WADA-approved laboratory that, consistent with the International Standard for Laboratories, establishes in a Sample the presence of a Prohibited Substance or its Metabolites or Markers or evidence of the Use of a Prohibited Method.

Contaminated Product: A product that contains a Prohibited Substance that is not disclosed on the product label or in information available in a reasonable Internet search.

4.2.3 Substances of Abuse For purposes of applying Article 10, Substances of Abuse shall include those Prohibited Substances which are specifically identified as Substances of Abuse on the Prohibited List because they are frequently abused in society outside of the context of sport. [e.g. THC and heroine are on the Prohibited List as Substances of Abuse]

Article 7.4.1 (together with the definitions) means that where there has been a positive finding of a Prohibited Substance in an athlete’s sample, a Provisional Suspension must be imposed (note the use of the word ‘shall’, which is always interpreted to mean ‘must’ in the interpretation of legislation). A Provisional Suspension is mandatory unless:

i) the Athlete demonstrates to the hearing panel that the violation is likely to have involved a Contaminated Substance – a product that contains a prohibited substance that is not disclosed on the product label (or upon a reasonable internet search), or

ii) the violation involves a Substance of Abuse and the Athlete establishes entitlement to a reduced period of Ineligibility under Article 10.2.4.1.

The relevant drug here, being trimetazidine, is clearly not a Substance of Abuse under the definition provided by the WAD Code. As such, paragraph ii) above does not apply.

It is interesting to note that CAS does not cite para i) as its reason for eliminating the Provisional Suspension – that Valieva demonstrated to the hearing panel that the violation likely involved a Contaminated Substance (more on this later). In accordance with the text of the WAD Code, this is the only circumstance that, if demonstrated can allow the decision-maker (here CAS) to eliminate a Provisional Suspension.

Instead, the CAS relies on:

· Valieva being a protected person

· The WAD Code being silent on how Provisional Suspensions are to be applied to protected persons while not being silent on other matters for a protected person, and therefore the Code is unclear on how Provisional Suspensions are to apply to Protected Persons.

· The implication of the above being that the CAS is therefore within its power to consider other factors (not explicitly provided by the WAD Code) in deciding whether the Provisional Suspension on a protected person ought to be eliminated under the WAD Code.

While an argument to this end could perhaps be made, in my view it is judicial activism to, essentially, create an exemption that the WAD Code does not provide, and take into account factors that the WAD Code does not allow to be taken into consideration by the decision-maker. It is far from clear that the decision-maker has such a discretion under the WAD Code to take into account the factors set out at paragraph c and d above.

What this highlights, to me, is the need for WADA to amend the WAD Code, making is clear either that:

· Exceptional circumstances may be taken into account in considering whether a Provisional Suspension is eliminated in the case of a protected person, or

· Current article 7.4.1 applies to all athletes, including protected persons, such that the only circumstances in which a Provisional Suspension may be eliminated is what is currently set out at paragraphs i) and ii) under art 7.4.1.

Clearly the former would give Signatories and CAS greater discretion, which may not be the best choice to achieve the purpose of the Code, which include:

· To protect the Athletes’ fundamental right to participate in doping-free sport and thus promote health, fairness and equality for Athletes worldwide, and

· To ensure harmonized, coordinated and effective anti-doping programs at the international and national level with regard to the prevention of doping.

More on purpose of the WAD Code and other issues re paragraph c) of the CAS reasons

In my personal view, by citing paragraph c) above as one of its reasons in eliminating the Provisional Suspension, the CAS has not interpreted article 7.4.1 with appropriate regard to the purpose of the Code. A general rule of statutory interpretation (at least in the common law) is the provisions are to be interpreted in line with the objects of an Act. Here, a fundamental purpose of the WAD Code is to protect Athletes’ (note plural) fundamental right to participate in doping-free sport. Even if the Code actually granted CAS more discretion in decision-making under art. 7.4.1, the CAS would be required to balance factors against this fundamental objective of the WAD Code. Perhaps there are different rules of interpretation by which the CAS is operating (in fact it would appear that this is the case). However, all athletes’ right to compete in doping-free sport is actually set out under the WAD Code as its purpose.

By contrast, while the WAD Code provides for fair hearing and fundamental procedural fairness be accorded to an athlete or person who is involved in a violating (article 8), the concept of ‘irreparable harm’ is not provided for at all by the WAD Code, therefore it is not clear what is meant by this term as it applies to an individual athlete who may have violated the code. It is also not clear whether the definition of this term would be different

Did Valieva establish that the violation involved a Contaminated Substabce?

Coming back to paragraph (ii) under article 7.4.1 – could Valieva have fulfilled the exception under this provision? The CAS certainly does not cite this as the reason the Provisional Suspension was eliminated in its media release. And it was only after the Media Release that the media reported on the reason Valieva has given for the trimetazidine being found in her sample – she accidentally drank from the same glass of water as her grandfather, who does take trimetazidine. For the purpose of article 7.4.1, water does not fall under the definition of Contaminated Substance (set out above). As such, for the purpose of art 7.4.1, Valieva would not be able to demonstrate she fulfilled para (ii).

I note water is mentioned in the commentary on page 71 of the Code with reference to the application of art. 10.6.1.2 (which is set out in substantially similar terms to 10.6.1.3 for protected persons). For the application of art. 10.6.1.2, where a positive test came from environmental contamination of a ‘non-product’, such as tap water, in circumstances where no reasonable person would expect any risk of an anti-doping rule violation, typically there would be no fault or negligence. Nevertheless, this does not apply to art. 7.4.1, and the text of the commentary is such that water would still not be included in the definition of Contaminated Product.

If the question was the imposition of sanction under art 10.6.1.3, and Valieva is able to establish the drug came from the water in her grandfather’s glass and fulfill circumstances described above (i.e. no reasonable person would expect any risk), then this would be relevant when it comes to the consideration of the appropriate sanction. This has no bearing on the Provisional Suspension under article 7.4.1, however.

Administrative procedures and the delay in test results

CAS’ last reason is that it is not Valieva’s fault that the results for her A sample was seriously delayed, which prevented her from establishing certain legal requirements for her benefit. Given the analysis of art 7.4.1 above, it is not clear to me what legal benefit CAS is referring to that would be been available to Valieve had the results come sooner. Indeed, if the results had been available sooner, Valieva would still have been under a mandatory Provisional Suspension unless RUSADA lifted the suspension. The only potential benefit would have been that she would not have travelled to Beijing before CAS determined whether her suspension should be lifted. And if she has not already travelled to Beijing at the time of this hypothetical determination, it is not clear (at least in my view) that the ‘irreparable harm’ would have been as substantial a factor to the CAS’ consideration.

From a procedural point of view, it is important to point out that WADA, in its statement, states that it ‘always expects Anti-Doping Organizations to liaise with the laboratories in order to ensure they expedite the analysis of samples so that the results are received prior to athletes traveling to or competing in a major event, such as the Olympic or Paralympic Games and, where applicable, conduct results management of the cases related to such athletes.

According to information received by WADA, the sample in this case was not flagged by RUSADA as being a priority sample when it was received by the anti-doping laboratory in Stockholm, Sweden. This meant the laboratory did not know to fast-track the analysis of this sample.’