19th January 2021

CAS Decision outlines RUSADA’s control by the Russian State

Last week, the Court of Arbitration for Sport (CAS) published its Decision concerning the Russian Anti-Doping Agency’s (RUSADA) challenge to the World Anti-Doping Agency’s (WADA) Decision to declare it non-compliant with the World Anti-Doping Code (WADC) for a four year period. The CAS Decision has been criticised for watering down many of WADA’s sanctions. However the way in which WADA’s International Standard of Code Compliance for Signatories (ISCCS) is written gave the CAS Panel little choice.

WADA has also attracted criticism for compromising in allowing RUSADA to be reinstated as its September 2018 Executive Committee meeting in The Seychelles. However, without that compromise, the manipulations Russia made to the Moscow Laboratory Information Management System (LIMS) retrieved in January 2019 might never have been discovered. Without that discovery, we would not have the detail the CAS provided on how the Russian State orchestrated RUSADA’s appeal.

Unusually for a CAS Decision, the majority of the 186 pages are concerned with the pleas and petitions made by the various interested parties. Readers of the full Decision have to wait until page 112 to get to the merits. This underlines the political interests involved, as does the CAS’s rejection of a Russian appeal to block publication of the Decision last week.

There are aspects of the Decision (PDF below or click here) that bear criticism. But it is important to look at the bigger picture. To do that, it is important to understand why the CAS Panel came to the Decision it did.

Background

RUSADA was sanctioned on 9 December 2019 for failing to provide the authentic Moscow LIMS and underlying data for the 2011-2015 period, after WADA investigators found that the data had been deliberately manipulated. WADA has never accused RUSADA of manipulating the data. 

RUSADA was declared as non-compliant with the Code in November 2015, as a consequence of systemic manipulation of the doping control process orchestrated by the Russian State. Following changes at RUSADA, WADA reinstated it as Code compliant in a controversial September 2018 Decision, based on the condition that it would provide the authentic Moscow LIMS, underlying data and samples. 

These had been sealed off after the investigative commission of the Russian federation (SKR or Sledcom) launched an investigation in June 2016. Despite continued enquiries from The Sports Integrity Initiative, the SKR has never outlined if or when this criminal investigation will be completed.

Dr. Grigory Rodchenkov…

So, although RUSADA didn’t manipulate the data, it was responsible for ensuring that authentic data was delivered to WADA. That data had been under the control of the SKR. It had blamed Dr. Grigory Rodchenkov, former Director of the Moscow Laboratory, of acting alone in extorting money from Russian athletes to cover up positive doping tests. In December 2019, it also blamed him for manipulating the LIMS remotely.

The Russian authorities had consistently refused to let WADA access the Moscow LIMS or the samples held at the Moscow Laboratory due to the SKR’s investigation. A stalemate had been reached.

State acceptance

The CAS Decision argues that the Russian government no longer disputes that the doping manipulation scheme took place…

Russia has never admitted the involvement of the State in manipulating the doping control process, just as it has never admitted manipulation of the Moscow LIMS. This is significant because the CAS Decision states that Russia has accepted that manipulation of the doping control process took place (see right). 

The CAS appears to base this conclusion on a 13 September letter from former Russian Minister of Sport, Pavel Kolobkov. Kolobkov’s letter only accepts an IOC decision of 5 December 2017, which was to suspend the ROC and to allow certain athletes to compete at the PyeongChang 2018 Winter Olympics under the Olympic flag. Kolobkov didn’t acknowledge Russia’s acceptance of the International Olympic Committee’s (IOC) findings on Russian State doping in its Schmid Report (WADA’s remaining condition). He only acknowledged that Russia accepts the IOC’s decision to suspend the ROC based on the findings of the Report.

The CAS Decision stretches acceptance of an IOC Decision based on its Schmid Report to Russia admitting that its Ministry of Sport controlled State doping…

As previously reported, the reality is that WADA reinstated RUSADA at its September 2018 Executive Committee meeting in The Seychelles without RUSADA meeting its remaining conditions (the other condition was supply of the Moscow LIMS, underlying data and samples, which took place after RUSADA was reinstated). The CAS Decision stretches this ‘acceptance’ further to include Kolobkov admitting – by proxy – that the Russian Ministry of Sport controlled every aspect of anti-doping in Russia (see right). 

The reason that it is important to reiterate all of the above is because the CAS Decision highlights Kolobkov’s role in manipulation of the Moscow LIMS. It highlights that a 12 December 2018 letter from Kolobkov outlined that the SKR would need ‘several weeks to several months’ to inspect the equipment WADA planned to use to extract the Moscow LIMS in order to protect against the loss of data. Yet during and after this letter was written, manipulations of the Moscow LIMS were proven to have taken place by WADA investigators.

WADA’s much criticised Seychelles compromise appears to have been a planned move. It gambled on the fact that the SKR wasn’t just protecting the data and samples held in Russia during the course of its investigations. In getting the data and discovering that it had been manipulated, one could argue that the gamble paid off.

Manipulation of the LIMS

As outlined in this article, WADA’s Compliance Review Committee (CRC) found that manipulations to the LIMS occurred up until 16 January 2019, the day before it was retrieved by WADA (the samples were not retrieved until 30 April 2019). Kolobkov wrote to Sir Craig Reedie, then WADA’s President, on 26 August 2019 to explain that the SKR had found forum messages between Dr. Rodchenkov and his assistant, Dr. Timofey Sobolevsky, indicating that athletes had been extorted in exchange for covering up AAFs. 

This mirrors the argument originally put forward by the SKR. However, WADA’s investigation into the LIMS found these messages to be fabrications.

WADA has always argued that a compromise was necessary in order to gain access to the Moscow LIMS, data and samples that had been sealed off due to the SKR’s 2016 investigation. Had it not compromised, it may never have gained access to these, and the manipulations may never have been discovered. The previous stalemate would have continued.

The compromise agreed by WADA was underlined by the publication of audio recordings from the 20 September 2018 Seychelles meeting. At 1:27:16 in Part 2 of the audio recording Jonathan Taylor, former Head of the CRC, admits that Kolobkov’s 13 September letter is “the closet and the clearest [to] full acceptance, without conditionality, of the findings of the Schmid Report”. Such comments are not detailed in the meeting’s published minutes. 

This suggests an attempt by WADA to hide its compromise. WADA perhaps didn’t want to appear weak. However, it even went as far as advising Kolobkov on what words he should use to facilitate RUSADA’s reinstatement. This letter was not amongst six published by WADA, and Kolobkov ignored WADA. 

However realistically, Russia was never going to acknowledge, in writing, that Ministry of Sport officials were involved in manipulating the doping control process in Russia (this remained a reinstatement condition for RUSADA as late as June 2018). Russia still has not admitted the role of the Ministry of Sport in manipulating the doping control process. However, the CAS Decision outlines how it continued to direct manipulations right up until the November 2020 CAS hearing. 

The discovery of these manipulations only became possible though investigations into the data retrieved from the Moscow Laboratory. That data was only retrieved due to WADA’s Seychelles compromise.

RUSADA’s sanction

RUSADA was sanctioned for failing to provide the authentic LIMS, underlying data, and samples to WADA. As such, the ‘we didn’t know about the manipulations and can’t be held responsible for them’ argument wouldn’t absolve RUSADA from WADA’s sanction (the CAS Panel dismissed RUSADA’s attempts to argue this). 

In order to effectively challenge WADA’s Decision, RUSADA had to argue that the data it provided to WADA was authentic and hadn’t been manipulated. Unfortunately for RUSADA and as outlined above, the CAS accepted that manipulations had occurred.

Yuriy Ganus, former DG of RUSADA…

RUSADA’s insistence at CAS that the data is authentic and hadn’t been manipulated is at odds with the position adopted by its previous management. Former Director General Yuriy Ganus (Ю́рий Га́нус) and his Deputy Margarita Pakhnotskaya (Маргарита Пахноцкая) acknowledged that the data had been manipulated, but denied that RUSADA was responsible for such manipulations. An Open Letter from Ganus to this effect has been removed from RUSADA’s internet site.

It now appears clear why Ganus was dismissed. He had already acknowledged that the data had been manipulated, which is at odds with he Russian State’s arguments. This also raises questions as to whether an audit alleging financial irregularities at RUSADA, used to dismiss Ganus, was engineered in order to facilitate his removal. There have been no reports of criminal charges against Ganus, despite the audit alleging that he had embezzled State funds.

The CAS Decision also upholds WADA’s reinstatement condition that ‘WADA must remain satisfied throughout the four year period during which the consequences are in place, that RUSADA’s independence is being respected and there is no improper outside interference with any aspect of its anti-doping activities’. Yet on the face of it, RUSADA’s arguments at CAS appear to invalidate this reinstatement condition.

RUSADA went to great lengths to defend the interests of Russian State and its officials. It argued that prohibitions on government representatives violated the sovereignty of the Russian Federation. It relied on the testimony of SKR officials. It aligned itself with the Russian Olympic Committee (ROC) and Paralympic Committee (RPC) in arguing that it was not bound by amendments to the 2015 Code introduced in 2018 to include the ISCCS used to sanction it. It argued that the ISCCS should not prevent Russia from bidding for or hosting events. It adopted the position of Russia’s Ministry of Sport that alterations to the LIMS were designed to preserve the LIMS from failing. 

These are arguably not the actions of an anti-doping body, the function of which it to investigate doping and sanction people accordingly. Why would an independent national anti-doping body argue that it can’t be bound by amendments to the World Anti-Doping Code because it didn’t specifically approve them? Why would it argue against sanctions that only affect State officials?

The answer perhaps lies in the fact that the amended two year period of non-compliance began on 17 December 2020, the date of the CAS Decision. As such, WADA cannot consider any of the above arguments as ‘improper outside interference’ with RUSADA’s independence, as such ‘interference’ occurred before a prohibition on such interference began. Did the Russian State perhaps realise that it could direct RUSADA’s appeal without RUSADA being further sanctioned by WADA? Is this another reason why Ganus was dismissed?

The CAS’s rejection of a Russian appeal to block publication of the Decision appears to suggest that it may have come to this conclusion. In contrast, WADA had pushed for the Decision’s publication using the ISCCS. It is hard not to infer from this that Russia didn’t want the Decision releasing into the public domain, precisely because it outlines State control of RUSADA’s appeal. 

Proportionality

The CAS Decision has attracted much criticism for watering down WADA’s originally proposed sanctions. ‘Notwithstanding the Panel’s acceptance of the ISCCS regime, and with respect to the seriousness of the non-compliance in this case, the Panel was (for reasons that are not comprehensively explained in the Award) not willing to endorse the full suite of consequences recommended by the CRC, which WADA believes were proportionate and reasonable’, wrote WADA in a Legal Note explaining the Decision (PDF below or click here). WADA appears to be miffed and claims not to understand the CAS’s reasoning.

WADA’s four year sanction is only enforced if RUSADA doesn’t appeal…

Under the ISCCS and the amendments that came into force within the World Anti-Doping Code in April 2018, WADA’s suggested four year sanction would only ever have come into force if RUSADA didn’t appeal against it (see right). If RUSADA does appeal, then the CAS is required to determine whether WADA’s sanction is proportional, and its Decision becomes final and binding. 

WADA would no doubt argue that this allows cases involving signatory non-compliance cases to be resolved expeditiously, without an endless appeal process. However, it also has an added benefit in allowing WADA to push for the most stringent set of sanctions possible under its own rules, and then to blame CAS for watering down such sanctions on appeal. This is exactly what has played out. 

Under Article 23.5.6 of the amended 2018 Code, in the case of an appeal it is the CAS Panel which must consider what consequences should be imposed on the Signatory, as pointed out in the CAS Decision. ‘In considering relief, the Panel recognises the need to consider the respective structures of the various organisations that will be required to implement the measures ordered, and to make sure that such measures will neither unduly interfere with those structures nor impact essential and beneficial work that is done by or on behalf of those organisations’, the CAS Panel summarises from the various provisions of the Code and the ISCCS. ‘It also recognises the need to avoid, where possible, ancillary disputes which may cause delay and increase the time and costs incurred preparing for major events, including the Olympic Games and Paralympic Games, particularly in the light of disruption occasioned by the COVID-19 pandemic. Further, the Panel acknowledges that imposing severe consequences upon an entirely new generation of Russian athletes may go further than necessary to achieve the objectives of the WADC.’

WADA submitted that the CAS didn’t have to consider whether its sanction was proportionate, despite the ISCCS expressly stating that CAS does have to consider proportionality…

The CAS Panel didn’t accept WADA’s submission that the signatory consequences are not required to meet any test of proportionality. Article 23.5.6 of the Code mandates that ‘WADA shall have the burden of proving, on the balance of probabilities, that the Signatory is non-compliant’. In addition, Article 12.2.2 of the ISCCS expressly requires the CAS to consider, on Signatory appeal, whether WADA’s reinstatement conditions are proportionate (see right). 

So WADA’s own rules mandate that the CAS Panel has to consider whether its suggested sanction is proportionate, yet WADA argued that the CAS didn’t have to consider this. WADA even attempted to argue that the European Convention on Human Rights (ECHR) isn’t applicable to WADA or the CAS – so much for protecting athletes. As it wrote the Code and ISCCS, why would WADA argue that the CAS didn’t need to consider proportionality, unless it knew there is a risk its sanctions could be considered disproportionate?

The CAS Panel outlined that proportionality wasn’t a major concern for the CRC or WADA…

The CAS outlined (right) why it considered that proportionality was not a major concern for the CRC or WADA. It reasoned that WADA’s proposed sanctions with regards to events, athletes, and officials were not fair and proportionate. All its amendments to WADA’s sanctions should be viewed through this prism of proportionality that WADA’s own rules require the CAS to use.

The ISCCS

WADA argued that it could have sanctioned RUSADA under the 2015 Code…

WADA admitted at CAS that it did have the power to sanction RUSADA for non-compliance prior to the ISCCS, under the 2015 Code (see right). This is significant because in its Legal Note, WADA argues that RUSADA was deemed non-compliant due to its failure to meet its post reinstatement condition (i.e. failing to supply the authentic Moscow LIMS & data) and that prior to the ISCCS coming into force on 1 April 2018, it would have no legal basis to pursue this matter.

The 2021 ISCCS watered down some of the sanctions that WADA attempted to apply to Russia…

RUSADA pointed out that the 2021 ISCCS was amended (see right) to exclude certain sections WADA had attempted to apply to Russia. This suggests that WADA knew that CAS would have to water down its sanctions on Russia in advance, and that the original ISCCS was specifically drawn up to target Russia’s particular situation (since WADA already had the power to sanction RUSADA under the 2015 Code). 

The above puts RUSADA’s argument that it had never consented to the ISCCS into context. Yet as pointed out by the CAS Panel: ‘Prior to raising the issue in its reply, RUSADA had never objected to the ISCCS; underwent audits pursuant to the ISCCS; accepted the categorisation of the Post-Reinstatement Data Requirement as a critical compliance issue under the ISCCS; objected to the 17 September 2019 formal notice of non-compliance pursuant to specific provisions of the ISCCS (but not the application of the ISCCS itself); and stated in its answer to WADA’s Request for Arbitration that it objected only to certain provisions of the ISCCS such as standard of proof’.

Two years are better than four

By imposing a two year period of non-compliance, it isn’t accurate to assert that the CAS Panel has cut RUSADA’s period of non-compliance with the Code in half. WADA’s Executive Committee endorsed the recommendation of the Compliance Review Committee (CRC) to sanction WADA on 9 December 2019. If RUSADA hadn’t appealed the sanction, it would have come into force immediately, expiring on 10 December 2023. But as the sanction now starts from the 17 December 2020 date of the CAS Panel Decision, it now ends on 18 December 2022.

Proportionality was key to the CAS’s reasoning on this. Yet in the Decision, there doesn’t appear to be any reasoning on how the CAS Panel decided that a two year reduction was considered appropriate as compared to a six month reduction, for example. 

The CAS Panel took into account that WADA’s sanction was only ever intended to cover one edition of each of the Summer and Winter Olympics. Why the CAS would consider this when determining the length of RUSADA’s period of non-compliance with the Code doesn’t appear to be fully explained. There was no danger that WADA’s four year sanction could have ever affected the Paris 2024 Olympics, as the Olympic restrictions only apply to the first edition of the Summer and Winter Games after the ban is promulgated – therefore the postponed Tokyo 2020 and Beijing 2022. 

However as previously reported, the host of the 2032 Olympics is due to be announced between 2021 and 2025. Russia’s bid was rejected by the IOC in late 2019 due to WADA’s four year prohibition on Russia bidding to host the Olympics or World Championships. Russia can now bid to host the Olympics again as soon as December 2022, giving the IOC plenty of time to announce a host before 2025.

Russia cannot bid to host any events during the two year ban, irrespective of the fact that other restrictions only apply to the Olympics, Paralympics and World Championships. As the CAS Panel points out, the Code already prohibits the IOC, international federations and Major Event Organisations from accepting bids whose national anti-doping organisations (NADOs) are not compliant with the Code. The CAS Panel said that it had not been ‘made aware’ of any events during the two year period where the hosting rights had already been awarded to Russia. 

Attendance at events

WADA had sought sanctions covering the Olympic Games, Paralympic Games, Youth Olympics, World Championships or any other event organised by a Major Event Organisation. Russian government officials would be prevented from attending or participating; athletes could only participate if they could prove that they were not implicated in the McLaren Reports, there are no positive findings for them in the Moscow LIMS, and no data relating to their samples had been manipulated.

Although the CAS Panel had doubts as to whether the definition of ‘Olympic Games’ used in the ISCCS covered the Youth Olympics, it found that the definition of ‘Events’ used was wide enough to cover the Youth Olympics. However, it reasoned that sanctions on the ‘next generation’ of Russian athletes in relation to the Youth Olympics are disproportionate, because ‘as the doping schemes addressed in the McLaren Reports occurred between 2012 and 2016, the Panel considers it very unlikely that any athletes who will be participating in the Youth Olympics were involved in those schemes’.

As such, Russian government representatives will also be able to watch the next generation of Russian athletes compete at the Youth Olympics, because ‘young Russian athletes will be able to see, through the Signatory Consequences that the Panel has decided to impose in respect of the Olympics, Paralympics and World Championships, the potential consequences of cheating’.

The CAS Panel also struck out events organised by a ‘Major Events Organisation’ from the scope of WADA’s sanctions. It ruled that although WADA can impose such sanctions through the ISCCS, in this case they extend beyond what is necessary to achieve the objectives underlying the Code. The CAS Panel mentioned that it was swayed by the arguments of the International Paralympic Committee (IPC), which outlined that it is classified as a Major Events Organisation under the Code because it acts as the international federation for ten para sports.

Government representatives

The CAS Panel refused to accept RUSADA’s argument that WADA’s restrictions on government officials attending sporting events violated the sovereignty of the Russian federation. It highlighted that WADA was not sanctioning State officials, but placing requirements on other Code signatories, which was within its remit. 

The CAS Panel found that it was appropriate to place restrictions on representatives of the Russian government, however found that the categories set by WADA to be ‘extraordinarily broad’. In considering proportionality, it found that they would place a ‘burdensome obligation on individual Signatories’ in determining whether a person fell within the restricted categories.

The restrictions placed on Russian government representatives…

However, the assessment requirements it placed on Signatories (see right) are arguably equally burdensome. It requires them to assess whether any Russians on their governing bodies are members of the Russian political system. It also requires the IOC, IPC, or any international federation hosting a World Championship to investigate any Russian attending to assess if they are a politician. If they are a Russian politician, the Signatory must then determine if they have been appointed in a personal capacity to an IOC/IPC body, in which case they will be permitted to attend. 

Signatories who wish to invite banned Russian politicians to World Championships can ask the Head of State/Prime Minister. If they are invited by them, they can attend. In addition, the CAS clarifies that Signatories can only be prosecuted if they ‘knowingly’ contravene the ban on Russian politicians. In comparison with the manipulations of the Moscow LIMS, it appears that in this case, ‘we didn’t know’ is a valid defence.

Flag & anthem

The CAS upheld WADA’s prohibition on the Russian flag being flown by any Signatory at the Olympics, Paralympics or a World Championships during the two year period. However, it held that Russia’s flag can be used to identify Russian technical officials or delegates. It adds that signatories can only be sanctioned if they ‘knowingly’ allow a contravention of this prohibition. 

The CAS held that ‘the Russian national anthem (or any anthem linked to Russia) shall not be officially played or sung’ at the Olympics, Paralympics, or during any World Championships during the two year period. There is no criterion on what may be considered an ‘anthem linked to Russia’. This issue could soon become pertinent. 

On 23 December Stanislav Pozdnyakov (Станислав Поздняков), President of the ROC, told Russian State news agency Tass that a “folk song” could replace the national anthem. Last week, the Athletes Committee of the ROC suggested that ‘Katyusha’ be used, and their proposal will be considered by the ROC’s Executive Committee. The use of the ‘folk song’, linked to Soviet military action during the Second World War, has been backed by Oleg Matytsin (Олег Матыцин), Russia’s Minister of Sport.

If the ROC adopts the song as its anthem, WADA could argue that Russia has breached the conditions of its ban by using an ‘anthem linked to Russia’. It is also questionable as to whether the IOC would approve use of the song at the Olympics, since there are questions as to whether it would breach the principle of political neutrality enshrined in the Olympic Charter, due to its use by the Russian military.

Athletes & Athlete Support Personnel

WADA’s proposed sanctions required Russian athletes to prove that they are not implicated in the manipulation of the Moscow LIMS in order to compete as neutrals. The CAS found that it would be ‘excessively burdensome’ for athletes and athlete support personnel (ASPs) to prove this. 

The specific criteria were that the athletes and ASPs would have to prove that they were not subject to incriminating circumstances in the LIMS data or evidence underpinning the McLaren Reports; their data had not been manipulated; and they would have to pass a minimum number of doping controls in advance of the relevant event. The CAS Panel pointed out that the Moscow LIMS involved 23 terabytes of data, and WADA had not explained how an athlete might comply with this requirement.

In addition, the CAS Panel found that the ISCCS is ambiguous regarding how sanctions can be applied to athletes and ASPs. It found that only Article 11.1 and Annex B set out consequences for non-compliance, and neither of them mention restrictions on uniforms, anthems or displays of national symbols.

It reasoned that only Article 11.2.6 mentioned athletes competing in a neutral capacity, and that was only applicable to athletes that had already been excluded. Even then, the principle of proportionality must be applied to any decision on participation as neutrals.

The above reasoning explains why the CAS Panel limited the exclusion of Russian athletes and ASPs to those already subject to suspensions, restrictions, conditions or exclusions. By implementing a ‘ban’ on a category of Russian athletes, it could then impose the conditions of neutral participation on Russian athletes under Article 11.2.6 of the ISCCS. 

On top of this, the CAS Panel was required to consider the submissions of two groups of ‘drug free’ Russian athletes (33 and ten), including a ten year old skateboarder who hoped to compete at the postponed Tokyo 2020 Olympics. It dismissed their arguments that the Neutral Participation Implementation Criteria (NPIC) are unenforceable because they go beyond the scope of the CRC recommendation and its endorsement by the WADA Executive Committee.

Russia pilloried its ‘OAR’ designation at PyeongChang 2018…

However, it does appear to have considered whether sanctions are proportional for these athletes in deciding that it ‘should allow some limited association with the name (for example, “Neutral Athlete from Russia”) and colours of their homeland where necessary, but subject to restrictions as to the use of the Russian flag, national symbols and the Russian national anthem in a sport, recognition or awards capacity’. The CAS Panel said that this approach ‘accommodates a balance between the WADA submission that the purpose of the consequences is that the athlete will not be associated with Russia, and the opposing concern that clean athletes should not be affected by neutrality conditions for any longer than is justified’.

Collusion

The CAS Decision outlines how the Russian Ministry of Sport, its Olympic bodies and RUSADA colluded in their contention that modifications to the Moscow LIMS were designed to stop it failing and preserve the data. As previously reported, the only signatory consequence that affects RUSADA is WADA’s fine. Most of the concessions offered by the CAS benefit the Olympic Movement or Russian State officials. RUSADA must put in place all of the reforms that WADA initially required – just in less time.

On 23 October 2019, the CAS Decision outlines that Russian forensic experts delivered a new hard drive from a representative of Kolobkov, containing what was claimed to be a copy of Evgeny Mochalov’s (Евгений Мочалов) computer. Mochalov was IT Systems Administrator for the Moscow Laboratory and is the husband of its current Director, Elena Mochalova (Елена Мочалова), and was discovered to be behind many of the manipulations of the Moscow LIMS discovered by WADA investigators.

Data provided to WADA by Russia to indicate that LIMS alterations had been made to save the system from malfunctioning were also found to have been fabricated…

WADA investigators found that in the days preceding its delivery to WADA, this new data had been intentionally altered (see right). It also found that despite ‘routine deletions’ being offered as an explanation, no previous deletions had occurred. The CAS Panel also argued that if Mochalov’s explanations were genuine, why wasn’t WADA informed?

Mochalov was due to give evidence at the CAS hearing, however the CAS Panel was informed on the eve of the hearing that he had contracted pneumonia and would be unable to give evidence. No evidence of his medical condition was given, despite the fact that his wife appeared as a witness for RUSADA. 

In December 2019, it was reported that Mochalov has gone missing. In 2016, former Russian Anti-Doping Agency (RUSADA) Director Nikita Kamaev and its Founding Chairman, Vyacheslav Sinev, died within two weeks of each other. The two had discussed collaborating with the International Network of Doping Research (INDR) on an exposé style book discussing doping.

The alterations to this new data were in addition to those already discovered by WADA investigators. The original manipulations were identified by comparing a copy of the Moscow LIMS given to WADA by a whistleblower in 2017 with the one retrieved by WADA investigators in January 2019. One of the key arguments from RUSADA was that WADA had not taken steps to confirm that a copy of the 2015 Moscow LIMS received from a whistleblower in 2017 was genuine. Readers could perhaps hazard a guess at who that whistleblower might have been.

The CAS Panel didn’t need to assess whether the 2015 LIMS was genuine, precisely because Russia’s manipulations of the 2019 LIMS were discovered!

However, it appears that by altering the Moscow LIMS retrieved by WADA investigators in January 2019, the Russian authorities scored a spectacular own goal. The CAS Panel determined that it didn’t need to analyse whether the 2015 Moscow LIMS was genuine because these alterations were discovered (see right). 

The alterations only began in December 2018, after RUSADA was reinstated on the condition that it would provide the data to WADA. The detail on the amount of altered data is truly shocking. The original Moscow LIMS must have been damning.

‘The forensic and investigative reports show that the data manipulations and deletions affect thousands of athletes’ samples, of which 298 cases have been specifically targeted by WADA for further investigation’, reads the CAS Decision. ‘As a result of the deletions of parts of the Moscow Data, it will never be possible to know the number of cheating athletes or officials who may have escaped detection’. However without WADA’s efforts to obtain the data, those 298 cases and the LIMS manipulations may have remained hidden.

Yes, there are holes in some of the arguments put forward at CAS. This is perhaps not surprising, given that over 48,000 pages of evidence were presented. Yes, the sanctions imposed by the CAS Panel are not as strict as some may have liked. But who is really to blame for this?

The ISCCS is written in such a way that allows WADA to push for the strongest possible sanctions, which it did in Russia’s case. If a Signatory appeals – which Russia was always likely to do – then the ISCCS binds the CAS Panel to consider if WADA’s sanction is proportional. At CAS, evidence including changes made to the ISCCS by WADA suggest that its sanction was not proportional. In such cases, the ISCCS binds the CAS into watering such sanctions down.

Both WADA and CAS are partly funded by the IOC. Russia is the largest country in the world by size, and the ninth largest in terms of population. It is in the sporting movement’s interest to have a functioning RUSADA in place, so that it can be confident that Russian athletes are being tested. Given that Covid-19 has decimated the finances of many international sporting federations, it is also in everyone’s interest that Russia can again bid to host sporting events. Those governing sport want to welcome Russia back into the fold. 

The CAS Decision has been successful in laying bare how RUSADA was manipulated by the Russian State. Given the involvement of the ROC and RPC, and apparent athlete support for a military song to replace the Russian national anthem, it is questionable whether State control over matters involving anti-doping has been completely negated. Whether RUSADA’s reinstatement conditions can remove such a powerful and determined State influence is questionable.

Nobody is seriously arguing that Alexander Gusev, a ten year old Russian skateboarder, will be doping his way to victory at the postponed Tokyo 2020 Olympics. However, some athletes will continue to look at their Russian competitors with one eye. Whether they can be satisfied that their Russian opponents are clean remains to be seen.  

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