22nd May 2019

‘Bullying’ report provides more questions than answers

Last week, the World Anti-Doping Agency (WADA) concluded a Report into allegations that its Executive and Foundation Board members harassed and intimidated Beckie Scott and Ed Moses, Chairs of its Athlete and Education Committee. Whilst the Report found that no bullying or harassment took place, it illustrates how WADA capitulated to pressure from the International Olympic Committee (IOC) to reinstate the Russian Anti-Doping Agency (RUSADA), and allowed pressure to be put on dissenting voices.

That such a Report was produced is unusual in itself, since Scott and Moses did not outline their allegations to Covington & Burling LLP, the firm tasked with investigating. This bears repeating for emphasis. Scott and Moses never outlined their allegations to the firm investigating them. Yet WADA published a Report into what it considered to be the allegations, without hearing them first hand. And this was after a preliminary report was judged to be inadequate.

The result was entitled ‘Report to the World Anti-Doping Agency Concerning Allegations of Bullying and Harassment’ (PDF below). The title is also curious. Scott didn’t complain that she was ‘bullied’, as her 8 October 2018 letter of complaint to WADA reveals. Scott only mentions derisive, inappropriate, and unprofessional behaviour. 

The Report outlines that the term ‘bully’ was first outlined in an interview with the BBC on 12 October. “So, members of the Olympic Movement, in the form of an Executive Committee meeting, said things that were designed to denigrate, intimidate, dismiss…” asked Dan Roan in the interview, at which point she interjects “bully”. Roan responds “Bully. They tried to bully you”. “Yeah”, replies Scott. This was the first and – it is understood – the only time that term was used by her.

The reasons why Scott and Moses refused to participate in WADA’s investigation are numerous, and led to others taking the same action. They included WADA’s Vice President, a Foundation Board and Executive Committee member, and an Athlete Committee member. The main allegations are:

• A lack of independence and a conflict of interest due to Covington & Burling LLP’s long standing client relationship with WADA;
• A lack of terms of reference, reporting requirements or public disclosure protocols for the investigation;
• Witness interviews were conducted before hearing from Scott and Moses to understand their complaints.

Conflict of interest

Covington & Burling LLP has advised WADA on data protection issues for almost ten years. 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.

Whether this removes a conflict of interest depends on your point of view. Although Covington & Burling LLP said that it was given the freedom to work independently, it is easy to see how one might argue that it might be reluctant to be overcritical of WADA through fear of losing its advisory contract. 

How much such a contract might be worth to the firm isn’t clear. WADA’s Annual Report 2017 only appears to outline its litigation costs, rather than the cost of retaining its legal advisors.

According to Benjamin Chew, Counsel to Scott and Moses, Covington & Burling LLP’s work for WADA strays outside of data protection. 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 contends that Chew failed to provide evidence that this is the case, and is highly critical of Chew. It includes Appendix 5, entitled ‘Supplement Regarding Allegations and Demands by Counsel to Ms. Scott and Dr. Moses’, which alleges that his failure to provide such evidence, and his conduct, raises ‘significant questions regarding his credibility’. 

A point worth mentioning is Chew’s duty to his clients. As mentioned, Scott and Moses had refused to participate in Covington & Burling LLP’s investigation, and had not outlined their allegations to the law firm. Had Chew outlined Scott and Moses’s allegations about a conflict of interest to Covington & Burling LLP, it is arguable that he would have breached his duty to his clients, who did not wish to participate in the law firm’s investigation for WADA.

The Report also argues that since Scott is not employed by WADA, Chew’s argument regarding the presence of Angela Iannantuono, WADA’s Chief Administrative Officer, at a 13 November meeting in Baku is ‘nonsensical’. Iannantuono’s LinkedIn profile describes her as responsible for human resources, and Chew argued that her presence at that meeting ‘suggested unlawful retaliation’ against Scott. 

The 13 November meeting was arranged with Sir Craig Reedie and Olivier Niggli, President and Director General of WADA, to discuss Scott’s allegations. It is understood that Reedie and Niggli pulled out of the meeting due to the presence of Chew, arguing that if Scott’s Counsel is present, their Counsel should also attend. 

Reedie and Niggli’s refusal to hold the Baku meeting is not mentioned in the Report other than in the appendices, which include Chew’s letters to Covington & Burling LLP. They point out that Niggli is an Attorney, having served as WADA’s General Counsel. The Report does not examine or explain why Iannantuono was at the Baku meeting. 

Confidentiality

Covington & Burling LLP state that they couldn’t agree to the demands of Scott and Moses requiring all witness interviews to be transcribed by a court reporter; all witnesses to be cross examined by Chew; and the entire evidentiary record – including all witness transcripts – to accompany the Report. Its main reason is that these requests conflict with the expectation of confidentiality expressed by many witnesses. 

Detail from Chew’s 8 February letter to Covington & Burling LLP…

The Report states that Scott and Moses ‘also claimed that Covington had a conflict of interest’, as if it was a secondary concern. However Chew’s 9 January 2019 letter, attached in appendices to the Report, show that he began by arguing that WADA should employ an independent investigator other than Covington & Burling LLP. It was only when it became clear that this was not going to happen that Chew made the secondary demands in a 8 February 2019 letter, as shown on the right. 

The Report doesn’t mention when witness interviews took place. However, as Scott and Moses didn’t confirm their refusal to participate in its investigation until 26 April and the Report was published less than three weeks later on 15 April, we know that Covington & Burling LLP interviewed witnesses without hearing Scott and Moses’s allegations. Whether they began interviews before Scott and Moses confirmed that they would not be participating in its investigation is unclear.

The Report also states that despite Chew requesting confidentiality for Scott and Moses, he shared aspects of the investigation with the media. However, a 14 December letter from Chew reveals that he alleged that WADA had breached its own harassment policy, which requires all complaints to be treated confidentially. He pointed out that WADA announced that a previous report produced by Canadian firm Relais ‘did not conclude that the alleged bullying had taken place’. It is not hard to see how such an announcement might be considered as prejudicing the second phase of investigation.

Covington & Burling LLP point out that the article quotes directly from a letter sent by Chew. However, it was published on 26 April, the date on which Scott and Moses confirmed that they would not participate in the investigation. Chew only shared information with the media after Scott and Moses confirmed that they would not participate in Covington & Burling LLP’s investigation.

As pointed out by Chew and emphasised in the above WADA statement, the Relais Report was based on a review of the transcript and audio recordings of the 20 September meeting where the alleged harassment and intimidation of Scott had taken place. The authors of that Report admit that they didn’t speak to Scott or Moses about their allegations, nor any of the 43 people present at the 20 September Executive Committee meeting.

Covington & Burling LLP argued that in order to conduct its investigation, it had to maintain witness confidentiality. However, it also didn’t agree to Chew’s request to keep correspondence and details of its investigation confidential. ‘Doing so would have effectively prevented WADA from publicly responding to Ms. Scott and Dr. Moses’s prior and potential future public allegations’, it argued.

Harassment

Scott’s complaint was that remarks and gestures made by IOC Members Francesco Ricci Bitti and Patrick Baumann at the 20 September Executive Committee meeting were derisive and inappropriate. She was supported by Moses at the meeting, who argued that the comments were aggressive and offensive. As already mentioned, Chew argued that in announcing that its initial investigation had cleared Executive Committee members of ‘bullying’, WADA had breached its own harassment policy, which required complaints to be treated as confidential.

The Report first states that ‘there is neither an applicable WADA policy nor any governing law that defines bullying or harassment’. Yet later, it quotes WADA’s Anti-Harassment Policy, which it states is not applicable.

Covington & Burling LLP appears to be claiming that although WADA has an Anti-Harassment Policy, it doesn’t define harassment or bullying, and in any case it isn’t applicable. In dismissing Chew’s arguments about the Policy in Appendix 5, it admits that this it considers WADA’s Anti-Harassment Policy as not applicable because Scott isn’t employed by WADA. It also argues that even if the policy were applicable, Scott wouldn’t be entitled to confidentiality anyway, since she had ‘gone public’ with her allegations.

‘Mr. Chew subsequently argued that this statement [announcing that an initial review had concluded that no bullying had taken place] was “egregious and misleading”, and that it “violated Section 6 of WADA’s own harassment policy, which requires that ‘in all cases, any disclosure or formal complaint will be treated with confidentiality by all involved parties to prevent the situation from deteriorating’”,’ it reads. ‘This confidentiality argument was frivolous. Leaving aside that Ms. Scott is not subject to WADA’s employee policies, Ms. Scott did not make a confidential complaint. She made her claim of bullying in a video interview with the BBC, broadcast worldwide and arranged for that purpose.’

As such, the presence of Iannantuono at the 13 November Baku meeting could have been to explain that because Scott is not employed by WADA, its Anti-Harassment Policy doesn’t apply to her. However, this is speculation, as the Report doesn’t clarify this.

The Report concludes that no bullying took place. However, its findings on the conduct of Ricci Bitti, in particular, are interesting. The Report found that his comments ‘could be viewed as aggressive, harsh, or disrespectful’; witnesses found his tone to be ‘condescending or passive-aggressive’; his choice of words to be ‘demeaning or condescending’. 

The report also found that Ricci Bitti appeared to laugh at and mock Scott. A footnote also asserts that Scott had interpreted Ricci Bitti’s remarks about the WADA Athlete Forum as accusing her of promoting her own personal platform. However, this is an assumption. 

As the recordings reveal, Scott argues: “You stated that I used a forum and I think I need to clarify here that this was not just my forum, this was a WADA forum”. Another reading of the situation might be that the accusation by Ricci Bitti was that the WADA Athlete Forum had been used to promote a position that RUSADA should not be reinstated, as it had not met WADA’s conditions. On the face of it, Scott’s reply points out that she had not engineered the WADA Athlete Forum to promote such a position.

The Report also found that Ricci Bitti has behaved in this way before. It would appear that he referred to Paulina Tomczyk, Secretary General of EU Athletes in a condescending way during an October 2018 meeting. It would also appear that he had a run-in with Witold Bańka, WADA’s President-elect.

The audio recordings of the 20 September meeting also revealed some ‘off microphone comments’ that couldn’t be deciphered, but points out that none of these occurred during Scott’s statement on the reinstatement of RUSADA. More than one witness commented on how upset Scott was during and after the meeting.

Interestingly, the Report mentions that ‘one witness, who later sought to withdraw their testimony, also described it as “demeaning”’. This suggests that certain witnesses were unhappy with how the investigation progressed. 

Amongst those were Chiel Warners, a member of the WADA Athlete Committee who failed to receive adequate answers regarding the mandate Covington & Burling LLP received from WADA, as well as information as to the scope of the investigation. Because of this, he withdrew his permission to be interviewed, and asked the email chain confirming this to be published alongside Covington & Burling LLP’s Report (Appendix 7).

Ed Moses

Ed Moses, the Chair of the WADA Education Committee who alleged that he was told to ‘shut up’ at WADA’s May 2018 Foundation Board meeting (which WADA denied), said that he ‘took offence’ to the ‘passive aggressive behaviour’ displayed, according to the meeting minutes. Covington & Burling LLP muse that the allegations made by Moses may have occurred during a discussion entitled ‘Call for a Review of the Anti-Doping System’.

The presentation was made by Linda Van Helleland, WADA’s Vice President, and was commented on by Moses. “I don’t think any other stakeholders have any right to put any more pressure on what is being discussed or not by the Executive Committee members at the Executive Committee meeting”, said IOC Member Patrick Baumann following Moses’s comments. This is the same Baumann that directed comments towards Scott at the 20 September Executive Committee meeting.

The Report also states that a witness recalled Moses telling Reedie that he had been “effectively”, rather than literally, told to “shut up” at the Foundation Board meeting. However, Reedie had no such recollection and the witness involved, who was a WADA staff member, said that they are poor at recalling specific details. 

In addition, evidence from other witnesses that Moses was told, figuratively, to hold his tongue, was dismissed by Covington & Burling LLP as ‘mistaken’. Both pieces of evidence cast doubt on Moses’s claims. Both pieces of evidence appear to be unreliable, and it is questionable as to why they were included in Covington & Burling LLP’s Report.

Political Russian roulette

The Report doesn’t dispute that Scott was treated inappropriately at the 20 September meeting. However, it concludes that the conduct displayed towards her fell short of its definition of bullying or harassment. 

Scott was subject to a ‘compliment sandwich’, then blamed for athlete opposition to RUSADA’s reinstatement by members of the Olympic Movement. This was due to their argument that the views of the IOC Athlete Commission were not adequately represented at the WADA Forum, which was used as a platform against RUSADA reinstatement and was not a fair reflection of the views of athletes.

For those not familiar with a compliment sandwich, it involves beginning by praising a person; then delivering news or a viewpoint that the person won’t like or might disagree with; then finishing with more praise. It is also known by another, less polite, term. And it appears to be what Danka Barteková, Member of the IOC Athletes Commission, offered Scott.

She began by thanking Scott, saying that there had been no intention by the IOC Athletes Commission to discredit the WADA Athlete Committee. “In fact, we are part of the WADA Athlete Committee”, she said, a transcript published by WADA reveals (PDF below). “Our four members from the IOC Athletes Commission are part of WADA AC and I don’t have a feeling that we would in anyhow or any kind of attack of the integrity of WADA AC”.

Then she outlined the work that the IOC Athletes Committee was putting into building “an effective structure of athletes commissions all over the world”, and the expectation that this structure would be used to distribute invitations to the WADA Athlete Forum. “And of course, we were not very happy about the diversity of speakers on the Forum”, she continues, outlining the view that they didn’t properly represent all continents and all sports.

Barteková then finished by thanking Scott for bringing together the Anti-Doping Charter of Athlete Rights, and for being “the boss of clean athletes”. Then followed the remarks from Baumann and Ricci Bitti.

Moses’s description of that conduct, as previously described, perhaps hits the nail on the head. If the IOC did lead a passive-aggressive attack on Scott, as Moses suggests, then why? Alternatively, if the behaviour that Scott and Moses were complaining about is entirely normal at WADA meetings, then why would they launch such a complaint?

Whilst the Covington & Burling LLP Report does explain the background to both complaints, it doesn’t provide a detailed examination of the motives for the behaviour complained about. As illustrated above, as in the Covington & Burling LLP Report, and as previously reported, pressure was undoubtably put on Scott by members of the Olympic Movement.

It would appear that Scott felt that pressure was exerted on her because of the stance of the WADA Athlete Committee against RUSADA’s reinstatement. The Report corroborates that the IOC held discussions with WADA about this.

It reveals that on 4 September 2018, Niggli met with IOC Director General, Christophe de Kepper. A week and a half later, WADA’s Chief Operating Officer, Frédéric Donze, met with Kit McConnell, the IOC’s Sports Director and Kaveh Mehrabi, the IOC’s Head of Athlete Engagement and Relations. ‘The IOC representatives noted their own unhappiness with decisions taken by the Athlete Committee, including the belief that speakers at the Forum had been intentionally selected to provide a “North American” perspective on the Russia issue’, reads the Report.

Significant to this debate are Jonathan Taylor’s comments on the compromise agreed by the Compliance Review Committee (CRC), which he chairs. “That is the closet and the clearest [to] full acceptance, without conditionality, of the findings of the Schmid Report”, says Taylor at 1:27:16 in Part 2 of the audio recording from the 20 September Executive Committee meeting. Such comments are not detailed in the published minutes from the meeting. 

This is important because WADA maintains that Russia had accepted the findings of the Schmid Report, and Taylor’s comments contradict that. We already know that despite WADA’s assertions to the contrary, Russia didn’t accept the Schmid Report, which acknowledged the findings of the McLaren Report that State officials were involved in manipulating the anti-doping process within Russia. 

This is also important to Scott and Moses’s case for two reasons. Firstly, it shows that as they are written in the third person, WADA’s meeting minutes can omit important comments on vital issues. Secondly, as explained above, the Olympic Movement was unhappy with the WADA Athlete Committee’s stance against the reinstatement of WADA. Taylor’s comments show that WADA responded to this by making concessions to reinstate RUSADA, siding with the IOC rather than the athletes it represents.

Contempt for the athlete voice

Following the ends of their athletic careers, Scott and Moses have dedicated their professional lives to clean sport and the education of athletes about anti-doping. They both stood up for the viewpoint of athletes that Russia had not complied with what WADA had asked them to do before it would reinstate RUSADA. 

Covington & Burling LLP’s Report shows that the Olympic Movement was unhappy with that standpoint, and put pressure on WADA to reinstate RUSADA. It would appear that WADA complied with the wishes of the Olympic Movement, rather than the athletes it represents. In addition, it allowed IOC Members to attack the Chair of its own Athlete Committee for that athlete viewpoint, and failed to defend her against such attacks.

Scott was singled out for her opposition to the reinstatement of RUSADA. “Before I go further, I should say it’s a majority recommendation”, said Taylor at the 20 September meeting. “My esteemed colleague, my friend Beckie Scott, disagreed with the recommendation, and I respect her disagreement”.

Sir Craig Reedie, President of WADA, appeared to tell the 20 September Executive Committee meeting that athletes fail to understand the issues involved in reinstating RUSADA. As previously reported, he takes the view that WADA is stuck in the middle of a political stand off between North America and Russia.

“There are two additional pieces of paper which I will leave on the table over there”, said Reedie at the 20 September meeting. “One is an email I got last night from the IAAF Athletes Committee, which I acknowledged and said it would be here, and the other is a communication I got from the IOC Athlete Commission. It won’t surprise you to know that neither of them will add enormously to your understanding and store of knowledge when we come to discuss this item […] But, these people having taken the trouble to be in touch, I think that we should formally acknowledge that we’ve received them.” 

“So, leadership, feel free to intervene and show some support as well at any point if you please”, requested Scott, when attacked by the Olympic Movement at the meeting. “We, WADA Management, have always been supportive and allowed the WADA Athlete Committee, pretty much a clear run of whatever they wanted to do”, replied Reedie. “I was invited to the forum and was happy to go and my participation consisted of, I think, two hours on the first morning with Olivier [Niggli] answering questions. From that minute on, I was asked to leave and I left the athletes to do what they wanted to do.”

When Scott made allegations about harassment and intimidation at that meeting, WADA’s initial inquiry only reviewed the audio and written transcripts without speaking to either Scott or Moses about their allegations, or any witnesses. After that investigation was dismissed as inadequate, it commissioned a law firm with which it has a client relationship to conduct an ‘independent’ investigation, which spoke to witnesses without hearing the allegations.

As we have demonstrated above, WADA meeting minutes are written in the third person and often do not include vital information on important issues. In addition, as every conference delegate knows, the important discussions take place away from the conference floor, during coffee and lunch breaks.

This point was thrown into sharp relief by the 20 September Executive Committee meeting in question. A vote on whether WADA should postpone its vote on conditionally reinstating RUSADA was narrowly lost (six votes to five) before lunch, the meeting minutes reveal. A subsequent vote on whether WADA should conditionally reinstate RUSADA on the terms outlined by Taylor was taken directly after lunch. Nine Executive Committee members voted in favour of accepting Taylor’s proposal, two against and one abstention. 

There is no suggestion of foul play, but the above does appear to illustrate that pressure is put on delegates during breaks in WADA meeting programmes. It is possible that similar pressure could have been applied to Scott and Moses at the two events concerned, due to their opposition to RUSADA’s reinstatement. Even on the conference floor, Covington & Burling admit that not all of the comments and gestures made by delegates can be identified.

However we do not know if pressure was applied to Scott and Moses. Both allege that comments and gestures were made at the two events concerned. However WADA’s Report has concluded that there is no evidence that either occurred, without hearing the full allegations. 

Scott and Moses are whistleblowers regarding unacceptable conduct at WADA meetings. That their allegations were sidelined and systematically dismissed ought to be of serious concern to athletes worldwide, especially those considering reporting allegations to WADA through its Speak Up! whistleblower programme. They spoke out against the reinstatement of RUSADA without it having met WADA’s conditions, and it would appear that pressure was put on them not to do so.

WADA’s decision to publish the Report, despite the objections of Scott and Moses to how it was compiled, highlights the Agency’s contempt for the athlete voice. It could be argued that evidence regarding Scott’s emotional state following the 20 September meeting portrays her as a weak leader, and is a breach of her privacy. In a similar fashion, it could be argued that the appointment of Amanda Hudson as Director of Education is an attempt to sideline Moses as Chair of its Education Committee, despite WADA’s assertions to the contrary. 

If the actions of the Olympic Movement at both meetings were designed to sideline Scott and Moses, it would appear that it is succeeding. And WADA is allowing it to succeed.

‘Brown Rudnick represented Beckie Scott and Dr. Moses pro bono because they are heroes who spoke up for fair play and urged WADA to fulfil its mission’, wrote Chew in an email. ‘For that, our clients were bullied and are now being victim-shamed by the very organisation to which they have given so much effort and time.

‘WADA effectively admitted that its first “investigation” of our clients’ allegations was a whitewash, and we originally hoped that WADA’s engagement of another firm to redo the first investigation was a sign that WADA was prepared to do the right thing. Unfortunately, that firm had a longstanding relationship with WADA – having represented WADA in other matters – that raised questions about potential conflicts of interest that WADA refused to answer. Ms.Scott and Dr. Moses nevertheless were more than wiling to submit to questioning had WADA shown even the least degree of transparency. WADA again refused. Repeated promises of confidentiality were unkept.

‘This left out clients with Hobson’s choice: participate in what seemed to be another whitewash, thereby lending it undeserved credibility, or decline to appear and face thinly veiled threats of retaliation, which appears to have occurred. The self-styled “investigators” are in no position to question anyone’s credibility, much less our clients. We are proud to stand with them.’

Covington & Burling 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. WADA’s response to these recommendations is illuminating. ‘At every stage, WADA has taken this matter extremely seriously’, read a statement. ‘The September ExCo meeting will consider the four recommendations made by Covington relating to the Agency’s governance policies, training and protocols and is committed to making improvements as appropriate’.

At first glance, this appears to read that WADA will consider implementing the recommendations if they are appropriate. A cynic could also be forgiven for coming to the conclusion that the last two recommendations could allow WADA to further sideline the role of the Athlete and Education Committee that Scott and Moses Chair.

The way in which this investigation has been handled ought to be of serious concern to anyone involved in clean sport, as should conduct at WADA meetings; how such conduct is engineered in order to sideline dissenting views; and how it is reported by the agency. It is not a whitewash, because WADA has shown its true colours. It prioritises politics and the views of the IOC over the views of athletes, and is prepared to ignore and victim shame whistleblowers in order to do this. 

• WADA has published a transcript of what it considers to be the relevant exchanges from the 20 September meeting.
• The published minutes from the 20 September meeting are available here.
• WADA’s questions and answers relating to the process and scope of its investigation are available here.
• An unedited recording of the 20 September 2018 meeting is available in three parts (Part 1, Part 2 and Part 3). For the discussion around compliance of the RUSADA (agenda item 5.1.1), go to Part 2 from 1:19:08, continuing in Part 3 until 00:20:37. For Ms. Scott’s comments related to that discussion, go to Part 2 from 02:08:39 until 02:10:03. For the Athlete Committee Chair report and subsequent discussion (agenda item 7.1), go to Part 3 from 00:32:47 until 01:02:50.
• A timeline detailing how WADA handled its investigation into Scott and Moses’s allegations is available here.
• Page by page analysis of the Covington & Burling LLP Report is available here, via Twitter.

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