SII Focus 1st March 2017

US anti-doping hearing: stop the fox guarding the henhouse

The main message resulting from a hearing held by the Energy and Commerce Committee of the US House of Representatives today was that in order to offer effective anti-doping that protects the clean athlete, the fox needs to be removed from guarding the henhouse. “The road to reform starts – and ends – with independence”, said Travis Tygart, CEO of the US Anti-Doping Agency (USADA), who used the analogy. “We have long argued before Congress for a clear separation between those who promote sport and those who police sport. Because to do so otherwise is to have the fox guarding the henhouse. You cannot both promote and police your own sport.”

Tygart said that the inherent conflict of interest is still damaging anti-doping efforts. “In Rio there were 1,913 athletes out of 11,000 athletes, from ten high risk sports, that had no tests of record prior to the Rio Games”, he said.  “How unacceptable is that?” Despite a number of damning conclusions reported by the Independent Observer team appointed by WADA to assess the anti-doping programme at the Rio 2016 Olympics, it was announced that the integrity of the Games had been upheld. “I’m not sure it was”, added Tygart.

“The perception is that you can’t promote and police your sport, especially on the heels of allowing the athletes to go [to Rio] and the Russian Olympic Committee to go [to Rio]”, he said. “So there is a sort of self-fulfilling prophecy that you don’t want to be successful in those cases to justify your decision to let them in in the first place…Why wouldn’t you let go of the governance if you know athletes will have more confidence in it, national anti-doping agencies will have more confidence in it? The only reason is so that you can continue to control it.”

The International Olympic Committee (IOC) and the World Anti-Doping Agency (WADA) both committed to removing sporting organisations from involvement in anti-doping. Asked if the IOC supported the idea of removing sport from the governance of WADA, IOC Medical Director Dr. Richard Budgett said: “That is absolutely correct. It should happen within the year.”

Criticism

Both the IOC and WADA were heavily criticised for their handling of the Russian situation. The IOC faced criticism for failing to implement a blanket ban on Russia from the 2016 Rio Olympics, as recommended by WADA following the conclusions of the two Independent Commission (IC) reports and the first Independent Person (IP) report, prepared by Richard McLaren. WADA faced criticism for failing to act earlier, despite receiving information from whistleblowers.

There was some confusion over the meaning behind a 23 February letter sent by the IOC to the international federations and National Olympic Committees. In that letter, the IOC mentions that the first interim WADA IP Report, Richard McLaren describes a ‘state-sponsored system’, whilst in the final report published in December, he describes systemic Russian doping as an ‘institutional conspiracy’. The IOC said that the Schmid Commission, which is investigating systemic doping in Russia, will have to decide what this change means.

The change suggests uncertainty about whether the Russian state was managing the systemic doping system, or whether such a system remained within sport. The IOC will need to know which interpretation is accurate, because a State doping system would need to be sanctioned differently from one controlled by sporting institutions. The IOC only has the power to impose sanctions on sporting organisations.

Frustration was also expressed with the IOC’s lack of sanctions imposed on Russia do date. “At the Rio Games this past August, scores of Russian athletes competed, despite not being subject to credible anti-doping programmes”, said Tygart. “When the moment came, despite mountains of evidence and vocal opposition from anti-doping organisations and clean athletes around the world, the IOC chose to welcome the Russian Olympic Committee to Rio and did not enforce any meaningful sanctions against the Russian Olympic Committee.”

Tygart argued that the way in which the IOC and WADA had failed to take firm action on Russia was another symptom of the ‘fox guarding the henhouse’. “WADA recommended to ban the Russians”, he said. “There were members of that executive decision that sit on the IOC. Then when the decision came to the IOC, they voted opposite of how they voted on the WADA decision.”

Budgett defended the IOC’s decision not to issue a blanket ban to all Russian athletes. “There must be respect for individual justice, and we mustn’t sanction or punish athletes for the failure of others”, he said, following the IOC’s 24 July 2016 decision that it would be unfair to punish potentially clean Russian athletes for the actions of other Russians. Tygart pointed out that the IOC had banned South Africa from the Olympics in the past due to apartheid. The IOC’s decision on Russia was also attacked for forcing international federations to make decisions on an individual basis days before the Rio 2016 Olympics began.

WADA told the Committee that despite receiving allegations from whistleblowers about systemic doping in Russia in 2010, it did not have the power to investigate until the 2015 Code came into effect. “We didn’t have the power to investigate it at that time” said Rob Koehler, WADA’s Deputy Director General. “We didn’t know who to hand it to, and we had no power to investigate”.

However, Article 20.7 of the 2009 World Anti-Doping Code required WADA to ‘monitor Code compliance by signatories’ and to ‘cooperate with relevant national and international organizations and agencies, including but not limited to, facilitating inquiries and investigations’. Although Article 20.7.10 of the 2015 Code expressly stated that WADA could ‘initiate its own investigations of anti-doping rule violations and other activities that may facilitate doping’, it can be argued that WADA already had the power to conduct investigations under the 2009 Code. WADA did carry out investigations prior to 2015, such as the one it conducted into Lance Armstrong.

The provision was added to version 4.0 of the Code in October 2013, shortly after the Mail on Sunday published a 7 July article on systemic Russian doping. This was after Russian discus thrower Darya Pishchalnikova wrote to WADA President at the time, John Fahey, informing him about systemic Russian doping on 23 December 2012 and after Vitaly Stepanov began sending WADA information on systemic Russian doping in 2010.

WADA’s current President Craig Reedie initially claimed he was not aware of systemic Russian doping until ARD published its first documentary in December 2014. Reedie, who became a member of WADA’s Executive Board from its inception in 1999, later clarified that he first became aware of systemic Russian doping at a 19 September 2014 meeting that he and Olivier Niggli (then WADA’s COO and General Counsel) held with the Russian Ministry of Sport. That is still almost two years after Pishchalnikova sent her letter to WADA and the IAAF and four years after Stepanov began sending WADA information on systemic Russian doping.

‘While WADA did have discussions with whistleblowers as early as 2010, it took almost four years for the whistleblowers to develop and provide the corroborated evidence that any investigation would require to proceed’, said Reedie in a 21 September statement. Whilst that may be correct, the Stepanov’s evidence was not the only corroborating evidence available to WADA.

• A 2011 study published on the IAAF’s internet site, involving analysis of samples taken back in 2001, revealed that certain countries may have had an issue with doping.
• Russia reported zero adverse analytical findings (AAFs – in other words no positive tests) at the London 2012 and Sochi 2014 Olympics, let alone anti-doping rule violations (ADRVs). Part Two of the WADA IP Report found that Russia had corrupted the London 2012 Olympics on ‘an unprecedented scale’, and that corruption continued at the Sochi 2014 Olympics, where Russia won a record number of medals.
• Part Two of the WADA IP Report produced by Richard McLaren pointed out that Russia won the most golds at the 2013 IAAF World Championships in Moscow for the first time since 2001.
• Part Two of the WADA IP Report also pointed out that at the 2013 Summer Universiade in Kazan (Russia), Russia won the most medals with 292. The next nearest was China, which won 77.

• In May 2014, WADA published the Independent Observer Report, which highlighted interference by the Russian state in the Sochi 2014 laboratory.

Funding needed for change

WADA was prepared to admit certain failings and admit that it needed to change. Koehler admitted that in the past, WADA’s compliance review were “not as rigorous as it could have been”. However now that there had been a call from athletes and the anti-doping community to conduct compliance audits, WADA had appointed an independent compliance committee to decide on whether to declare countries and sports non-compliant. “It’s time to change”, said Koehler, adding that more funding would be needed to facilitate such change.

WADA also said that a whistleblower policy, ‘Speak Up’, would be launched “in the coming days”. Koehler confirmed that WADA’s six person investigations team is currently investigating new allegations submitted by whistleblowers.

“We are all conscious that these strategic developments will require a significant level of funding to realise our mission to protect the clean athlete”, said Koehler. “We will present to our Board a clean slate draft of our 2018 Budget to reflect this new level of work. Simply put, to increase our capacity and the broader anti-doping community, we will need additional funding from sport and government to be more successful.”

However, Koehler also added that National Anti-Doping Organisations (NADOs) also need additional funding. “The National Anti-Doping Organisations are the ones in the field, day to day, carrying out the business”, he said. “If they are not equipped to protect the clean athletes, then we’re so far behind that we’ll never win this game”. In January, NADOs rejected the idea of an Independent Testing Authority supported by the IOC and supported strengthening WADA.

Athlete view

US gold medalists Adam Nelson and Michael Phelps also pointed out that the IOC and WADA have lost the trust of the athletes – trust it will have to win back. “There has been a major violation of trust”, said Nelson. “Now I think we see a change in the culture of athletes, who are saying ‘they’re not doing their job appropriately yet. We have to do it for them.’ I think that’s a big shift in the culture of athletics.”

“Looking back over my career and knowing how difficult it is to succeed at the highest levels of sport, I can’t help but wonder how the next generation of athletes will be able to do it if this uncertainty continues”, added Phelps.

“Athletes want action, not words”, added Nelson. “Structural reform is only part of the solution. You cannot change a culture strictly by changing policy. You have to engage the athletes.” As long as the fox continues to guard the henhouse, it appears that athletes will continue to be sidelined.

• Travis Tygart’s witness testimony can be accessed here;
• Michael Phelps’s witness testimony can be accessed here;
• Adam Nelson’s witness testimony can be accessed here;
• Rob Koehler’s witness testimony can be accessed here;
• Dr. Richard Budgett’s witness testimony can be accessed here.

 

 

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