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SII Focus 20th November 2016

WADA Foundation Board calls for revolutionary new powers

The Foundation Board of the World Anti-Doping Agency (WADA) has called for a number of revolutionary new powers, including a scaled sanctioning system that could be applied to national anti-doping organisations (NADOs) that do not comply with the World Anti-Doping Code. Today’s meeting in Glasgow also revealed that Russia has still not accepted WADA’s findings that doping was State sanctioned; and that a number of issues regarding anti-doping in Russia continue to persist.

Although the meeting attempted to portray the impression that rifts between the International Olympic Committee (IOC) and WADA about how doping should be policed have been repaired, there were signs that differences of opinion persist. Sir Craig Reedie, who was re-elected as President of WADA for a further three years, welcomed his “warm relationship” with the IOC. However WADA’s founding President, Dick Pound, was critical of the IOC for not taking firmer action against Russia ahead of the Rio Olympic Games. “They got down to a fork in the road, and they took the wrong fork, and they’ve been playing catch-up ever since”, he said.

Foundation Board members from the Olympic movement were also critical of WADA for the delayed publication of the final part of the Independent Person (IP) Report into allegations, made in May by Dr. Grigory Rodchenkov, that the laboratory at the Sochi 2014 Winter Olympics was corrupt. WADA confirmed that the report will be published on 9 December, but denied accusations that pressure had been put on Richard McLaren to complete it by then.

It is understood that McLaren has refused to share his findings with the IOC until the final report is published, and the IOC is frustrated that its own investigations must wait for his conclusions. Chair of the IOC Ethics Commission, Guy Canivet, is chairing a Commission designed to follow up on any further findings of systemic doping in the final instalment of the IP Report.

The third part of McLaren’s mandate – expected to be addressed in his report – was ‘to identify any further athletes that might have benefited from such manipulation to conceal positive doping tests’. The IOC has appointed a separate committee chaired by Denis Oswald, head of its Disciplinary Commission, to follow up on this aspect of the report. WADA reiterated that McLaren’s findings would be shared with both commissions when his report is published on 9 December.

New powers: Scaled sanctions

The Foundation Board proposed that a scaled sanction system be applied to NADOs that are not complaint with the World Anti-Doping Code, with an appeal possible to the Court of Arbitration for Sport (CAS). In basic terms, the first stage is that WADA will offer assistance if a NADO is declared non-compliant for not performing its functions under the Code. The second stage is that it will be fined if it has not fixed its issues within six months, or another infraction of the Code is recorded. The third stage would be to issue a larger fine if the issues are not fixed in a year.

However, there were concerns that sanctioning NADOs could have unintended consequences by harming a country’s ability to conduct anti-doping, thereby punishing sport and athletes for the actions of NADO administrators. “We need to ensure that by banning a NADO, we are not shooting ourselves in the foot – that there is not a vacuum left”, warned Adam Pengilly, an IOC Athletes Commission member.

Practical issues were also raised as to how such a system would be introduced, as to implement such a provision through a revision to the Code was seen as taking far too long. It is planned that such measures will be included in future revisions to WADA’s five International Standards, however WADA was coy about how long that might take.

“The Code has to be transcribed into the rules and regulations of various organisations to be applicable, and the sanctions are the same”, said Olivier Niggli, WADA’s Director General. “Once we have agreed on what the sanction will be, they will have to be part of the regulation of other organisations. There is no timeframe on when sanctions will be introduced – it is too early to say.”

WADA will send a compliance questionnaire to anti-doping organisations (ADOs) in “early 2017”, and will also audit their anti-doping programmes. Feedback will then be collated in order to produce a workable sanctioning proposal.

New powers: Protecting whistleblowers

WADA has consistently faced criticism for failing to follow up on information it received from whistleblowers. Vitaly Stepanov first contacted WADA about systemic Russian doping in 2010, however WADA has argued that it couldn’t investigate until it was granted new powers under the 2015 World Anti-Doping Code. WADA eventually praised the Stepanovs for coming forward, however nothing was done until after Hajo Seppelt – who was present today – produced a documentary for German television in 2014.

WADA’s whistleblowing system is being developed by an external company and include a mobile application and a web programme. It will launch in January next year on a separate server from the WADA system, which nobody from WADA will be able to access. It is hoped that this will protect the system from hacks similar to those that have plagued the Anti-Doping Administration and Management System (ADAMS) by Fancy Bears, on which WADA said it had spent US$200,000. WADA said it wants to move towards “paperless” anti-doping in the future, but said that Fancy Bears is still attempting to hack into its systems.

WADA said a total of 228 therapeutic use exemption (TUE) certificates from 127 athletes were accessed by Fancy Bears. However, most of them had expired and 18 had been “fabricated”, so only 32 were valid during the Rio 2016 Olympic Games.

WADA says its system will be able to assess whether whistleblowers are genuine, but will also offer financial “rewards” for coming forward with useful information; as well as the ‘substantial assistance’ option for reducing any sanction that may be applicable to the whistleblower under the World Anti-Doping Code. WADA described the cost of the system as “significant”, and it was suggested that sanctions be considered against those who come forward with false information. It opted for confidential rather than anonymous reporting, due to concerns that anonymous reporting would lack the legal certainty required to bring forward any sanctions.

New powers: Working group on WADA reform

WADA Director General Niggli said that a working group would be formed to discuss WADA governance. It will be comprised of 17 people, including representatives from governments, sport, NADOs, athlete organisations and more. The composition of the group has yet to be determined, however it will make suggestions on issues such as conflicts of interest by May next year.

New powers: Investigation costs

One of the criticisms often raised is that the IOC and governments that fund WADA have had to pay for its investigations into Russia. It was revealed that WADA has had to create a special fund of US$1 million to pay for its investigations into systemic Russian doping; yet the Union Cycliste Internationale (UCI) paid for the Cycling Independent Reform Commission Report into allegations of doping in cycling.

The Foundation Board proposed a new framework that would allow it to recover all costs incurred during an investigation. However it was not clear how that would work in situations where the findings of its investigation are under dispute, as is the situation regarding Russia.

Russia

The Russian Anti-Doping Agency (RUSADA) and the Russian Ministry of Sport have still not accepted the first IP Report compiled by Richard McLaren, it was revealed. WADA said it has not been able to access any of the samples stored at the Moscow laboratory due to an ongoing inquiry by the Investigative Committee of the Russian Federation (SKR). The Olympic movement also complained that it has received no communication from the WADA IP about the 100 samples from Sochi 2014 that were sent to London for analysis before the SKR began its investigation.

“There has never been State-sponsored doping in Russia”, said Vitaly Smirnov, the IOC member heading a Russian commission that began work to implement change in the management of anti-doping in the country in September. “We know that this system did not exist. It does not mean that if somebody within the country has made mistakes, then the whole country has made mistakes. If a certain person is a criminal, it doesn’t mean that the whole country is criminal.”

Smirnov denied that Natalia Zhelanova and Yuri Nagornykh, who were both dismissed from their posts after being implicated in the first IP Report, were government employees. Although both were deputy Ministers for Sport, Smirnov said that this did not make them government employees. “Only the Minister is a member of the Russian government, not the deputy Minister”, he argued. “In McLaren’s report, there are many mistakes like this”.

When questioned about this, Pound disputed these arguments, confirming that WADA considered that doping in Russia was orchestrated by the State. “That was our conclusion and certainly McLaren’s conclusion in his first report”, he said. “The FSB were there. You have to take on the fact that there is – or was – a problem. That’s too bad, but let’s see how we can cure this. Blustering away saying that there was never any state involvement, but the last time I looked at the architecture of the FSB, it was a state organisation.”

Reedie played down Smirnov’s comments. “My guess is that Vitaly would be saying this is not a permanent feature of life in my country”, he said. “The facts are that the McLaren Commission indicated that there had been breaches of the Code involving the Moscow laboratory and the Ministry of Sport”.

Independent testing authority

One of the enduring recommendations of the IOC has been to create an anti-doping system that is independent from sport, including an independent testing authority. The proposal was barely mentioned at today’s Foundation Board meeting, however it is understood that a number of people went on to discuss the idea at a later IOC meeting.

“The feeling was that it might suit international federations to have a completely independent agency”, explained WADA President Reedie. “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.”

TUEs

WADA said that calls to scrap the TUE system were “nonsense”, as athletes have the same rights to medical care as the general public. It also said that reports of a rise in the number of TUEs recorded in ADAMS were also misleading, as this merely reflected increased use of ADAMS.

WADA said that 143 TUEs were granted in relation to the 11,303 athletes that competed at the Rio 2016 Olympic Games. As some hold more than one TUE, this figure amounts to less than 1% of athletes. It said that despite concerns that TUEs are being used to cheat, WADA has no evidence that this is taking place.

Non-compliance

The Foundation Board recommended a finding of non-compliance for Azerbaijan, Brazil and Indonesia, adding that Guatemala and Greece have resolved their issues. It is understood that Indonesia is being sanctioned for the use of a laboratory that has not been accredited by WADA, and that Brazil is in the middle of an educational programme that will soon resolve its issues.

Conclusion

WADA’s Foundation Board meeting appears to indicate its wish to be a regulator of those that police anti-doping, rather than the world doping police that it was originally hoped it would be when it was established in 1999. It has asked for an extension of powers to sanction those who fail to comply with its regulatory standards, however those extensions of power appear to be geared towards extracting money from those it regulates through the form of fines.

WADA regularly points out that it only has the power to declare somebody non-Code complaint – it cannot issue sanctions. It has now compiled a number of extensive reports into doping in Russia which appear to have resulted in only the athletes being punished. The officials that are alleged to be in charge of the system remain in power, and deny that such a system exists. Even if its new ability to sanction is approved, is suspending a NADO really punishing those pulling the strings, or has clean sport once again become the fall guy for dirty politics?

Given this, whistleblowers may be reluctant to come forward to WADA with information, despite WADA’s new policies on whistleblowing. They know that WADA cannot issue sanctions and although WADA say that such information is confidential, that didn’t appear to stop Fancy Bears accessing its Anti-Doping Administration and Management System (ADAMS).

The IOC is keen for anti-doping to be entirely separate from sport and as today shows, is taking steps in that direction by attempting to set up an independent testing authority. WADA is a vastly experienced regulator but is not independent from sport, yet is putting across the impression that everything is rosy. It isn’t, and unless WADA wakes up to that fact, it could find itself sidelined.

 

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