20th May 2021

‘Bullying’ investigation highlighted Olympic Movement’s control of WADA

Today and tomorrow, the World Anti-Doping Agency (WADA) will host its Executive Committee and Foundation Board meetings, and governance reform is top of the agenda. The US Office for National Drug Control Policy (ONDCP) hit the nail on the head when it recommended that the Olympic Movement step away from WADA’s Executive Committee. A 2018/19 investigation into allegations of intimidation illustrates perfectly its conflict of interest in action.

In 2018, Beckie Scott complained about intimidation by two Olympic Movement members whilst she was outlining athlete concerns about reinstating the Russian Anti-Doping Agency (RUSADA). In responding, WADA’s resulting investigation into ‘bullying’ involved more money than it spent on its initial Independent Commission (IC) investigation into Russian State doping.

What happened?

Link to the relevant Foundation Board meeting minutes…

The Olympic Movement’s Francesco Ricci Bitti and Patrick Baumann were accused of intimidating Scott at a September 2018 meeting, where a decision was taken to reinstate RUSADA, despite Russia not meeting WADA’s requirements. As previously reported, WADA spent approximately US$1.6 million investigating the claims, as outlined in this timeline. This is more than the $1.3 million WADA spent on Dick Pound’s two IC Reports investigating systemic doping in Russia, prior to Richard McLaren’s two Independent Person (IP) Reports. 

Quite rightly, the Olympic Movement demanded a full assessment of the costs of this investigation. In a confidential letter – a copy of which is held by The Sports Integrity Initiative – the IOC adds that it spent one quarter of a million dollars ($250,000) to provide ‘legal assistance’ to Ricci Bitti and Baumann. ‘This is time and resources which could have been used for the benefit of clean athletes’, it adds. Yet it dedicated those resources to the legal defence of two officials accused of intimidating an athlete.

Why $1.6 million?

So why did WADA’s investigation cost so much money? WADA initially commissioned Montreal based firm Relais to investigate Scott’s allegations, however it is understood that no terms of reference or letter of instruction were provided to Scott or the WADA Executive Committee. Scott refused to engage, after Relais asked for details of her complaint though WADA. 

Link to the relevant Executive Committee meeting minutes…

A Report was produced anyway, but the minutes of the November 2018 Executive Committee meeting in Baku outline that it was considered unsatisfactory. It only reviewed the minutes and tapes of the meeting and didn’t speak to anyone concerned. 

It is understood that during the above process, WADA approached Covington & Burling LLP for legal advice. It was advised to narrow the scope of the investigation to the September 2018 Executive Committee meeting. WADA then commissioned Covington to investigate Scott’s allegations in January 2019.

Link to the relevant Executive Committee meeting minutes…

The Sports Integrity Initiative asked both WADA and Covington to provide a breakdown of how the money was spent. WADA replied, and Covington and Burling LLP referred us to WADA’s reply (below).

‘WADA initially commissioned a much less expensive independent investigation, following which, in November 2018, some representatives of the Public Authorities on the Executive Committee requested that a more extensive investigation be carried out’, wrote a WADA spokesperson in an email. ‘WADA was subsequently threatened with litigation by Ms. Scott through a US law firm despite the matter being unconnected to that jurisdiction. That meant WADA was forced to ask a US based firm to carry out the investigation, which was a much more costly exercise.

‘In terms of how the money was spent, the report itself explains. It gives a clear outline of the scope, extent and methodology of the investigation, which was conducted entirely independently of WADA by Covington and Burling LLP, a firm with a proven track record in this area.’

The Report (PDF below) does explain the background and Covington’s methodology, but it doesn’t contain a breakdown of costs. However, given that WADA characterises the Relais investigation as ‘much less expensive’, one could hazard an informed guess at how much money was spent on the Covington investigation and Report.

Independence

On page 4, the Report explains that Scott and Ed Moses – who later added that he was told to “shut up” at a May 2018 Foundation Board meeting – refused to participate. Neither Scott nor Moses outlined their allegations to the firm tasked with investigating such allegations.

One of the many reasons why they refused to participate is that Covington, the ‘entirely independent’ firm that WADA commissioned to carry out the investigation, advises WADA. It has advised WADA on whether its Anti-Doping Administration and Management System (ADAMS) is compatible with European data protection legislation. 

Dan Cooper, a Partner at Covington, is the lead drafter of WADA’s International Standard for the Protection of Privacy and Personal Information (ISPPPI), first adopted in 2009. The law firm said that it ‘implemented an ethical wall’ between the people working on WADA’s investigation, and people working on other WADA business.

In addition, Benjamin Chew, Counsel to Scott and Moses, alleged that Covington’s work strays outside of data protection. In emails published as annexes to the above Report, he alleges that the firm ‘has instructions from WADA to act in defamation proceedings in the U.S. courts’, and is ‘representing WADA in a lawsuit from a Russian sport agent’. Covington & Burling LLP contends that Chew failed to provide evidence that this is the case.

Covington also acted for WADA in Mamdou Sakho’s successful libel case at the England and Wales High Court. This case was filed in July 2019, two months after WADA published Covington’s Report. 

Link to the relevant Executive Committee meeting minutes…

Another reason that Covington’s Report remains relevant is that its recommendations are being used to compile its Code of Ethics. This new document has been reviewed and amended by the law firm, and will be presented to to this week’s WADA meetings. 

Link to the relevant Executive Committee meeting minutes…

It is unlikely that  the Code of Ethics will be solely based on the Report’s recommendations. But if so, it is unlikely to be groundbreaking. Covington recommends that WADA should adopt a Code of Conduct for WADA Committee meetings; provide mandatory training on best practice for boardroom dialogue; remove uncertainty over the role of Standing Committee members at Executive Committee meetings; and clarify the role of the Athlete Committee. 

A lot to pay for a storm in a teacup

Scott and Moses were expressing the views of athletes on whether WADA should proceed with reinstating RUSADA, despite Russia not having met WADA’s terms. They were simply doing their job as athlete members of WADA’s executive. For some reason, WADA spent more money on investigating allegations that they had been intimidated than it did on initial investigations into Russian State doping. 

Covington interviewed 32 witnesses (minus the key ones, Scott and Moses), collected documents, and analysed audio recordings (unedited versions of Part 1, Part 2 and Part 3 of the September 2018 Executive Committee meeting). A total of 58 pages are devoted to explaining the background to the Report, Covington’s methodology, allegations, findings, and recommendations. A further 70 pages of annexes contain communications between Covington, WADA, and Chew – the Counsel who represented Scott and Moses on a pro bono basis. 

We still don’t know exactly how that money was spent. It is not known if WADA provided a full assessment of the costs of its investigation to the Olympic Movement, however the extensive annexes to Covington’s Report suggests that its legal costs may have been extensive.

It is hard to avoid the conclusion that the annexes were included as an attempt to denigrate Scott and Moses for not taking part in Covington’s investigation. A full analysis of how this occurred – as well as whether their concerns about Covington’s investigation were justified – is available here. 

In short, it appears that Scott and Moses were further intimidated by a Report designed to investigate their allegations of intimidation. It perhaps speaks volumes that both are no longer members of the WADA Committees they both once led.

Speaking to those involved, there is embarrassment that such a small issue escalated so rapidly, coupled with a reluctance to dredge up the unpleasantness all over again. But there is also anger against the perception that WADA and the Olympic Movement ganged up on two respected athletes simply for presenting the views of other athletes. There is also shock that $1.6 million could be spent on a storm in a teacup.

‘When a national government regulates its energy industry, it is generally required to seek comments from energy companies and their industry association on how a new regulation, law or policy will impact the energy industry’, wrote the ONDCP in its Report. ‘Regulators solicit written comments, hold hearings, and have frank discussions so that they can truly understand and consider the energy industry’s views and well-informed perspectives. Governments quite properly ask and consider carefully and respectfully leading companies, such as Exxon Mobil, Shell, Chevron or BP, for their insight and advice. However, they do not empower these companies, which have an understandable vested interest in the outcomes of these decisions, to actually vote on regulatory decisions. 

‘Similarly, when the World Health Organization (WHO) reviews a substance for potential international control, it welcomes the views of the pharmaceutical industry, including any and all with a direct commercial interest in the substance. However, for example, when the WHO Expert Committee on Drug Dependence undertook a review of the dangerous opioid carfentanil, which was contributing to fatal drug overdoses, it did not invite manufacturers of the substance to sit on its expert committee or to have a formal role in its decision-making process’.

The ONDCP’s analogies are apt. Its argument is that WADA regulates sport and in serious cases of organised doping, as occurred in Russia, the involvement of the Olympic Movement is problematic. Russia is the largest country in the world by size, and the ninth largest in terms of population. Sport needs counties that are willing to host sporting events, as well as broadcasting and sponsorship deals in the world’s largest territories. It has a direct financial interest in welcoming transgressors back into the fold as soon as possible.

Athletes don’t hold the same conflict. A cheated athlete is a cheated athlete. Scott and Moses were castigated for presenting those athlete views, perhaps because they conflicted with sport’s wish to bring Russia back into the fold.

Talk of foxes and henhouses has long been a topic familiar to those interested in sports governance…

WADA commissioned two reports into allegations of intimidation, both of which Scott and Moses objected to on what appear to be reasonable grounds. The Olympic Movement stumped up a quarter of a million dollars for its officials to defend themselves, while Scott and Moses were left to seek pro bono counsel. The resulting Report, which didn’t hear the complaints, was dismissed as a whitewash. It is hard to avoid the conclusion that the Olympic Movement used its influence at WADA firstly to allow RUSADA’s reintegration to proceed unhindered, then to prevent any adverse findings against those who facilitated this. If it was a whitewash, WADA and the Olympic movement paid for it.

As has been mentioned by many people in many similar sports governance situations, it is time for the foxes to step away from guarding the henhouse. The experience of Scott and Moses underlines why the ONDCP is so concerned that this happens. Over the next couple of days, it will be interesting to see if WADA and its Olympic influencers listen.

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