SII Focus 31st March 2017

Open Letter highlights battle for future control of anti-doping

An Open Letter critique of the two Independent Person (IP) Reports produced by Richard McLaren for the World Anti-Doping Agency (WADA), published in full by The Sports Integrity Initiative below, has provided further support to the argument for truly independent anti-doping in sport. The letter, which was sent to WADA and the International Olympic Committee (IOC) on 27 March, provides a counter-argument to the extraordinary critique of the IOC’s failure to effectively sanction Russia, published by the Institute of National Anti-Doping Organisations (iNADO) last week.

The open letter, penned by investigative journalist Rick Sterling, perhaps provides insight into why the IOC did not sanction Russia with a blanket ban from the Rio 2016 Olympics, as recommended by WADA. It alleges:

• That McLaren’s investigation was uncertain as to the exact number of Russian athletes that may have benefited from the ‘disappearing positive’ methodology outlined.
• That evidence linking the findings of the report to athletes, as required by McLaren’s mandate, has often not been secure enough to bring forward anti-doping rule violations (ADRVs) against Russian athletes.
• That Russian State institutions, such as the Ministry of Sports, are implicated without evidence proving their involvement.
• That WADA and McLaren overstate the extent of Russian doping. For example, on page 74, McLaren refers to what the WADA Independent Commission referred to as the ‘hijacking of the London 2012 Games’. It references retesting of 25 Russians by the IOC, eight of which were positive, plus ‘an additional eight athletes’ who were sanctioned by the IOC. However, as this IOC statement reveals, only three of these additional eight were Russian.
• That McLaren distorted the findings of the ‘toolmarks expert’ to suggest that they showed ‘tampering’. The evidence supplied to McLaren concluded ‘The marks on their own should not be considered to be conclusive evidence of opening the bottles or attempts to open the bottles but it should be interpreted in conjunction with other scientific evidence’. 

Criticism of the IOC

The IOC has recently been criticised for not banning Russia from the Olympics, as recommended by WADA following the findings of its two Independent Commission (IC) and two IP Reports. “The IOC did not do the right thing in Rio”, USADA’s General Counsel, Bill Bock, told The Sports Integrity Initiative at WADA’s recent Symposium. “The world sees that. They were at the scene of a crime and, essentially in the form of the McLaren Report, the body’s lying on the floor in front of them and they’re looking the other way. They’re covering their eyes. They’re doing the wrong thing.”

Bock’s comments followed criticism of the the IOC’s position on Russia by USADA’s CEO, Travis Tygart, at a hearing held by the Energy and Commerce Committee of the US House of Representatives at the start of March. At that meeting, the IOC confirmed that it is committed to removing sport from the governance of WADA by the end of this year. WADA’s current President, Sir Craig Reedie, has been an IOC member since 1994. Richard McLaren, who compiled the two IP Reports for WADA, was also part of the IC and is an Arbitrator at the Court of Arbitration for Sport (CAS), which the IOC funds.

It has been suggested that sport’s involvement in anti-doping creates a conflict of interest, as sport must secure the commercial success of its events, which a major doping scandal could jeopardise. For example, the son of former International Association of Athletics Federations (IAAF) President Lamine Diack has admitted that it decided to delay the announcement of Russian doping positives due to commercial considerations.

“There are a lot of stakeholders that are concerned that the handling of the Russian doping situation – not just last year, but over the course of the issues that arose with whistleblowers coming forward in 2010 – reflects a broader problem in anti-doping which is the over involvement and excessive control, sometimes the excessive caution in anti-doping in worrying about politics or about money from sport or other issues that shouldn’t cloud the picture when there’s an investigation to be done or evidence to be followed up on”, continues Bock. “So, it’s clear that everybody involved recognises what has been termed the fox guarding the henhouse issue; and everybody involved – including the IOC – recognises the need for anti-doping to be independent from sport”.

“But while the IOC has paid lip-service to that important principle of anti-doping, for months and months now, they haven’t taken action. We’ve heard of Executive Board meetings, we’ve heard of Olympic Summits, listening tours…and the IOC has been summoned before governments to give testimony. There is only one thing that needs to happen for there to be independence, and that’s for sport to withdraw from WADA. It’s within the IOC’s ability to do that immediately. They keep saying that they’re interested in independence and we’re waiting.”

However, Sterling’s Open Letter suggests that the IOC decision may not have been based on such an alleged ‘conflict of interest’, but on a lack of conclusive evidence. A fundamental principle of the Olympic Charter is to protect clean athletes. ‘All Russian athletes selected for the Olympic Games Rio 2016 have been tested over the last six months by foreign anti-doping agencies’, reads the IOC’s initial decision on Russian participation at Rio 2016. ‘Samples were taken by foreign doping control officers and the samples analysed in foreign laboratories. Russian athletes who participated in different competitions in all sports have submitted more than 3,000 doping samples. The vast majority of the results were negative.’

‘Russian athletes in any of the 28 Olympic summer sports have to assume the consequences of what amounts to a collective responsibility in order to protect the credibility of the Olympic competitions, and the ‘presumption of innocence’ cannot be applied to them’, continued the IOC’s decision. ‘On the other hand, according to the rules of natural justice, individual justice, to which every human being is entitled, has to be applied. This means that each affected athlete must be given the opportunity to rebut the applicability of collective responsibility in his or her individual case.’

Article 59.2 of the Olympic Charter does allow the IOC to exclude ‘teams’ from the Olympics, however its terms are vague; it refers to violations of the Charter or the World Anti-Doping Code. As such, the decision on whether to exclude Russia or not comes down to a choice as to whether any violations of the Charter or Code are so egregious that all Russian athletes must be excluded without an opportunity to present their case. As shown above, WADA favoured this approach whilst the IOC did not. And, it appears that there is some merit in the argument that WADA’s evidence in support of its argument was found to be lacking.

There is evidence that Russian athletes were unfairly excluded from the Games. To give one poignant example, consider the case of Alexander Markin. He and his teammate, Maxwell Holt, were given meldonium by their team doctor prior to it becoming prohibited when the 2016 Prohibited List came into effect on 1 January 2016. Following the guidance of WADA, both were issued with an ADRV but were not banned, as the level meldonium in their samples was consistent with it being ingested prior to becoming prohibited.

‘The ROC [Russian Olympic Committee] is not allowed to enter any athlete for the Olympic Games Rio 2016 who has ever been sanctioned for doping, even if he or she has served the sanction’, read point three of the IOC’s conditions for the entry of Russian athletes to the Rio Olympics. This meant that Markin was not allowed to represent Russia at volleyball, whilst Holt was able to represent the USA, despite both being given meldonium when it was not prohibited by their team doctor. The Partnership for Clean Competition (PCC), which is funded by US professional sports that are not signatory to the World Anti-Doping Code, commissioned research which led to meldonium’s addition to the Prohibited List.

WADA’s failures

The IOC has also been criticised for not taking action to make anti-doping more independent. However, the same accusation could be levelled at WADA. At its Foundation Board meeting in November 2015, WADA agreed to set up a working group to explore the idea of an Independent Testing Agency (ITA), a concept initially suggested by the IOC. A year later, it did not appear to have got much further.

“The feeling was that it might suit international federations to have a completely independent agency”, said WADA President Reedie at the November 2016 Foundation Board meeting. “The original suggestion was that it should be established by WADA. Our governance partners have said that they are not sure we could do that – for two reasons. The first is that if you are a regulator, then you cannot be a testing agency as well. Secondly, there is always the question of finance.”

“As far as WADA is concerned, we have conducted the research and we know, technically, how it would work”, continued Sir Craig. “It may be that it is a separate agency from WADA. If the sports movement wants to fund it, then yes, it can be done. The issue is how many sports will want to sink their efforts into doing this themselves. From a WADA point of view, we are perfectly relaxed about that and we would then regulate it in the same way that we would regulate the IAAF.”

It does not appear to be within the mandate of either the IC or the mandate of the IP to examine WADA’s failures in dealing with the situation in Russia. A number of apparent failures warrant further investigation. These are:

• Failing to follow up on whistleblower evidence submitted by Vitaly Stepanov in 2010 about attempts by Russian officials to extort money from athletes in return for covering up positive doping tests (WADA has acknowledged receiving such evidence).
• Failing to follow up on whistleblower evidence submitted by Darya Pishchalnikova in 2012 about attempts by Russian officials to extort money from athletes in return for covering up positive doping tests. 
• Failing to follow up on similar evidence reported in a newspaper exposé in July 2013.
• Failing to investigate why Russia – the host country of the Sochi 2014 Winter Olympics – didn’t report a single adverse analytical finding.
• Failing to follow up on its own Independent Observer Report for the Sochi 2014 Olympics, which outlined interference in the anti-doping laboratory.
Failing to add Dr. Grigory Rodchenkov, Dr. Sergei Portugalov, Vladimir Kazarin, Aleksey Melnikov or Vladimir Mokhnev to WADA’s Prohibited Association List, which was one of the key recommendations of the first IC Report. There have been allegations that Dr. Portugalov, Kazarin, and Mokhnev continued to work with Russian athletes and WADA’s failure to add them to the Prohibited Association List could allow them to claim they have done nothing wrong.
• WADA wrote to Dr. Grigory Rodchenkov, Director of the Sochi 2014 laboratory, informing him that a ‘surprise’ inspection was due to take place (p42 of the WADA IP Report). This resulted in the destruction of 1,417 samples (Russia claims 1,437 samples were destroyed).

Cold war

It appears that the IOC and WADA are engaged in a battle to take control of anti-doping, the history of which goes back to the creation of WADA. As has been attempted to be outlined above, both the IOC and WADA are guilty of failures in dealing with the situation in Russia. National Anti-Doping Agencies (NADOs) cannot be blamed for hitting out at the IOC when they were blamed for anti-doping failures by IOC President Thomas Bach.

The fact is that WADA was initially conceived as a subsidiary of the IOC. However, at the World Conference on Doping in Sport in 1999, governments were understood to have been unimpressed with the IOC’s efforts to keep drugs out of sport in the wake of the doping scandal that hit the 1998 Tour de France. As the governments insisted on influence independent of the IOC, a WADA Foundation Board was formed consisting of 50% IOC representatives and 50% government representatives, with the IOC and governments providing 50% of the funding each from 2002.

What we are now seeing is a return to this original battle. As with most things, it comes down to money. WADA sets its budget, 50% of which must be provided by governments through NADOs. The IOC has a policy of only providing its 50% once contributions from governments are received.

Perhaps conveniently, this means that any budget increase must first be contested by governments, since they are the ones that will initially be providing the extra funding. “You should see the war dance they do on every half percent increase”, WADA’s Founding President Dick Pound told The Sports Integrity Initiative. “This is, for them, $13 million spread over 205 countries. It’s not even a rounding error. However, you’d think civilisation as we know it would disappear if we had to pay any more.”

Since the governments have already performed the ‘war dance’ over funding increases, the sporting movement does not need to contest any increase in funding. However, the fact is that 50% of WADA’s US$30 million budget only represents a very small percentage of the IOC’s revenue.

However, what happens if the governments think that doping is not being tackled effectively or failures are identified? Harking back to 1999, the IOC perhaps fears that governments will attempt to wrest control of anti-doping from the Olympic movement, whereas WADA fears that governments will refuse to provide any money at all until changes are made. Consequently, each attempts to blame the other for the alleged failures.

Currently, nobody has oversight of WADA, but plenty manage to influence it. The Open Letter and evidence above show why truly independent anti-doping is necessary.

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