Doping: L’ histoire se repete!

By Dolf Segaar

Sports Lawyer at CMS Amsterdam

WADA (the World Anti-Doping Agency)  has decided to impose a four-year ban on Russia to compete in international sporting competitions as a sanction for a large doping cover-up.

Russia was found to have tampered with laboratory data and emails that Russia was requested to hand over to WADA after the Sotchi-games and the revelations made by Dr Gregory Rodchenkov.

The consequences of WADA decisions are the following:

(http://www.wada-ama.org/en/media/news/2019-12/wada-executive-committee-unanimously-endorses-four-year-period-of-non-compliance)

◾Russian Government officials/representatives may not be appointed to sit and may not sit as members of the boards or committees or any other bodies of any Code Signatory (or its members) or association of Signatories.

◾Russian Government officials/representatives may not participate in or attend any of the following events held in the Four-Year Period: (a) the Youth Olympic Games (summer and winter); (b) the Olympic Games and Paralympic Games (summer and winter); (c) any other event organized by a Major Event Organisation; and (d) any World Championships organized or sanctioned by any Signatory (together, the Major Events).

◾Russia may not host in the Four-Year Period or bid for or be granted in the Four-Year Period, the right to host (whether during or after the Four-Year Period) any editions of the Major Events.

◾Where the right to host a Major Event in the Four-Year Period has already been awarded to Russia, the Signatory must withdraw that right and re-assign the event to another country, unless it is legally or practically impossible to do so. In addition, Russia may not bid for the right to host the 2032 Olympic and Paralympic Games, irrespective of whether the bidding takes place during or after the Four-Year Period.

◾Russia’s flag may not be flown at any Major Event staged in the Four-Year Period.

◾Neither the President, the Secretary-General, the CEO, nor any member of the Executive Board/Governing Board of either the Russian Olympic Committee or the Russian Paralympic Committee may participate in or attend any Major Event staged in the Four-Year Period.

◾Russian athletes and their support personnel may only participate in Major Events staged in the Four-Year Period where they are able to demonstrate that they are not implicated in any way by the non-compliance with conditions including (without limitation) that they are not mentioned in incriminating circumstances in the McLaren reports, there are no positive findings reported for them in the database and no data relating to their samples has been manipulated, and that they have been subject to adequate in-competition and out-of-competition testing prior to the event in question according to WADA, in accordance with strict conditions to be defined by WADA (or the Court of Arbitration for Sport (CAS), if it sees fit), pursuant to the mechanism foreseen in ISCCS Article 11.2.6. In this circumstance, they may not represent the Russian Federation.

◾Given the aggravating factors that are present in this case, RUSADA must pay all WADA’s costs on this file incurred since January 2019 and, in addition, a fine to WADA of 10% of its 2019 income or USD 100,000 (whichever is lower). This is the maximum fine available under the rules and all monies must be paid before the end of the Four-Year Period.

The IOC and International Federations will have to adopt the decision of WADA and to guarantee that it will only allow Russian athletes in competitions under a neutral flag when they are able to demonstrate that they are not implicated in any way and that they have been subject to adequate in-competition and out-of-competition testing prior to the event in question.

The decision of WADA will mean that Russia will not be represented at the Olympic Games of 2020 or the FIFA World Cup of 2022. Since UEFA is not a signatory of WADA, there are no hindrances for Russia to participate in the European Championships this coming summer.

Russia has decided to appeal the decision of WADA to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland.

Since CAS decided in similar matters regarding the eligibility of Russian Athletes during the 2018 Winter Games in Pyeongchang in favor of the IOC, I expect that in the subject matter where WADA took similar measures the Appeal of Russia will not be successful either.

In the matter at hand, the Ad Hoc Division of CAS came into the matter of a number of  Russian Athletes to the conclusion that not allowing Russian Athletes to participate at the subject Winter Games in 2018 under certain circumstances is not a sanction against the Athletes, but has to be characterized as an eligibility decision. And since the participation of an athlete is according to the Olympic Charter a decision of the IOC, it may as well, at its discretion, refuse an entry, even without indication of grounds.

The measures imposed, and the decision to allow the entry of only neutral athletes, who comply with certain requirements, were considered not to be arbitrary, discriminatory or otherwise unfair. The Appeals of these athletes were, therefore, dismissed.

(https://www.tas-cas.org/fileadmin/user_upload/Award_OG-02.pdf)

Dolf Segaar may be contacted by e-mail at ‘dolf.segaar@cms-dsb.com’