30th June 2020

Hitting the target but missing the point

Every action has an equal and opposite reaction. As last week illustrated, Isaac Newton’s Third Law of Motion increasingly appears to be playing out in anti-doping. Whilst some of its criticisms were misguided, the general message from an 18 page US Office of National Drug Control Policy (ONDCP) Report was that the governance structures of the World Anti-Doping Agency (WADA) need reform and unless this is undertaken, funding may be withdrawn.

The extensive 46 page Response (PDF below), which also contains inaccuracies, was scathing. WADA outlined that there was a ‘clear intention to discredit WADA’ in compiling the ONDCP Report. The Response points out that there are ‘consequences’ for countries that withdraw WADA funding under the International Convention against Doping in Sport, which would result in the US losing representation on WADA’s governance bodies.

Once again, WADA has responded to suggestions for change by attacking those making the suggestions. It did the same thing in November 2018, when a Whitehouse meeting first suggested the idea of withdrawing US funding unless WADA introduced effective reforms. Miffed at apparently not being formally invited (even though the above Report reveals that WADA’s then Vice President, Linda Helleland, was present), WADA attacked those suggesting change. Today, the result is that a suggestion is fast becoming reality. 

WADA often considers attack to be the best form of defence. This will be a familiar concept to many athletes that have appealed for reductions in anti-doping sanctions to the Court of Arbitration for Sport (CAS). They are often met with a counter appeal from WADA, seeking to extend the sanction. Just ask Gordon Gilbert or Demarte Pena, Andrea Iannone, or Paolo Guerrero. Appeal and we will crush you.

Many of the concerns raised in the ONDCP Report are legitimate, but there are some that are wide of the mark. As WADA points out in its Response, it is a regulator that doesn’t determine its own composition – that is a role for sport and governments. But by focussing on inaccuracies rather than engaging with suggestions for change, WADA has stifled any debate and as such, could lose US government funding. That is an outcome detrimental to everyone involved.

This article isn’t intended to meticulously go through the ONDCP Report and point out inaccuracies, as anyone reading WADA’s Response can see that it has already done that. WADA is right to point out that it has put reforms in place, just as the ONDCP is correct to point out that many of them haven’t been introduced two years after being suggested.

WADA accused the ONDCP Report of being ‘inaccurate and misleading’. It is on some points. However there are inaccuracies on both sides, as we will discover. WADA’s Response also reveals interesting details about other aspects of its governance, including its handling of the Russian situation. This article is designed to highlight them.

Cape Town Declaration

The financing of WADA’s Budget is split between governments and sport, which provide 50% each. However, this doesn’t tell the whole story. Governments agree the amount that will be provided to WADA, 50% of which will be provided by them, which is matched by a 50% contribution from the sports movement. As such, sport rarely faces any criticism for perceived shortfalls in WADA’s Budget, as governments must agree to WADA Budget increases and sport can only match what governments have agreed to provide.

Details on how government contributions to WADA’s Budget are split…

In its Response to the ONDCP, WADA consistently points out that governments agreed how they would split their 50% contribution to WADA’s budget in the 2001 Cape Town Declaration (PDF below). The genesis of the argument is that if the US is unhappy with this model, it must raise it with its government partners. ‘WADA has no say on how the government contribution is divided’, reads its Response.

As stipulated in the Cape Town Declaration, ‘The Americas’ fund 29% of governmental contributions to WADA’s Budget. However, the government contributions formula is currently under review. It mentions that the model outlined in the Cape Town Declaration was renewed in 2008, and the US agreed to continue to pay 50% of that 29%. 

‘For 2009 and beyond, a new formula was agreed upon at the American Council for Sport (CADE) meeting held in Montevideo, Uruguay, on 14 – 15 February 2008, and subsequently confirmed at the CADE meeting held in Puerto Rico on 11 June 2008’, reads WADA’s page explaining government funding. ‘The US and Canada will continue to pay 75 percent (US 50 percent and Canada 25 percent) with the rest apportioned according to the OAS formula (issued in November 2007), with a minimum percentage being 0.08%. This formula entered into force on 1 January 2009 for a period of four years, following which the countries may review the indicators of the OAS formula. This formula continues to be in place.’

The CADE Minutes from the Uruguay meeting confirm that this agreement will remain in place until 1 January 2013, and the above quote suggests that the funding formula agreed in 2008 remains in place today. WADA’s Response mentions that a CADE meeting took place in February this year, and is critical of the US for not attending.

However, what neither document addresses is how the 42 nations within ‘The Americas’ region determine who should pay what. It mentions that the US ‘agrees and commits’ to paying 50% of ‘The Americas’ contribution, Canada 25% and the remainder ‘according to the Organization of American States (OAS) formula’. 

What this formula entails is not detailed but in any case, the US and Canada’s contribution falls outside of it. But WADA’s Response outlines that ‘any reduction in the U.S. contribution would have to be compensated by the other governments of the region if the region wants to fulfil its commitments’.

In practice, this appears to mean that if the US plans to reduce its contribution, it must convince 41 other nations to pay more through the mysterious OAS formula in order to cover the shortfall. Under a simple one nation one vote system, this would be extremely unlikely. This is perhaps why the US didn’t bother to attend this February’s CADE meeting.

WADA’s Response is also critical of the ONDCP for overestimating the US governmental contributions to WADA’s Budget, pointing out that ‘additional contributions’ from governments reduce the proportion that the US contributes from 14.5% to 12%. It mentions that these were ‘mainly from the Government of Canada; China; Japan and Poland’. 

Witold Bańka

Montreal has hosted WADA since 2002. Beijing is hosting the 2022 Winter Olympics and Tokyo the postponed 2020 Olympics, and Witold Bańka – a former Polish government Minister – is President of WADA. WADA’s Response also reveals that The Seychelles is a member of its Foundation Board, and was appointed in January 2018. In September of that year, WADA reinstated the Russian Anti-Doping Agency (RUSADA) – despite widespread opposition – at a meeting in The Seychelles. Given the above, it appears a little disingenuous of WADA to criticise the US for suggesting that representation on WADA’s governance bodies should better reflect the amount of funding provided.

WADA is also critical of the US for choosing not to nominate any US members or Chairs to any WADA Standing Committees for 2020. However, WADA also points out that under the International Convention against Doping in Sport, if the US were to withdraw funding it would not only lose any representation on its Foundation Board and Executive Committee, but also on any ad-hoc or Standing Committees. If you are going to withdraw funding, then why would you put forward any nominations at all?

Cryptically, the WADA Response reveals that US names were put forward for its new Nominations Committee by Korn Ferry, a US recruitment firm. WADA has been asked about this, but has yet to respond.

In conclusion, WADA is correct to point out that it has no say on US government contributions and that if the US has an issue with that, it must raise it with governments. However, it would also appear that within WADA governance structures, the US may also have little ability to negotiate any reduction in its funding of WADA. The underlying point that the ONDCP Report is making also appears to have been missed by WADA. This is that the US is not happy with putting a large proportion of money into an organisation whilst getting little say in how it operates.

Sport can outvote governments

WADA’s is correct that it can do little about the composition of the Foundation Board, as it was agreed that this would be split between sport and governments at the 1999 World Conference on Doping in Sport, which established WADA. The same is true for the Executive Committee, however WADA’s Statutes have now been amended so that its members are now in place for three years rather than one.

The Executive Committee is currently made up of 12 members, comprising five government and five sport representatives, as well as the WADA President and Vice President. In the event of a tie, the President of the Executive Committee casts the deciding vote. 

At present, WADA’s President and Vice President are both ex-athletes, which means that sport has the potential to outvote governmental interests. This means that after the appointment of two extra ‘independent members’ from 2021, even if they side with the governments, sport is still likely to have a majority due to the deciding vote of its ex-athlete President. WADA’s Response appears to miss the point that on the Executive Committee, sport can always outvote governmental interests. 

Russia

This brings us to the underlying reason why the US is unhappy with WADA. It feels that WADA was ill-equipped and conflicted in dealing with Russian State doping, and has failed to protect the interests of clean athletes by not acing soon enough, or decisively. The September 2018 decision to reinstate RUSADA was taken on the recommendation of WADA’s Compliance Review Committee (CRC), then headed by Jonathan Taylor QC.

‘The ExCo is sovereign in its decision and does not have to stick to the CRC recommendation, as wrongly alleged by the ONDCP Report’, reads WADA’s Response. ‘The rules of the WADA Compliance Review Committee (CRC) provide that where the CRC makes a recommendation to the WADA Ex Co, that “recommendation may not be made public…prior to the meeting of the WADA [Ex Co] where it is to be considered[.]”’, reads the ONDCP Report. ‘This rule is contrary to good governance principles, embodied for instance in Sunshine and Open Meetings laws, and means that CRC recommendations are considered in a vacuum without opportunity to consider viewpoints outside those presented by the limited number of individuals involved with the WADA Ex Co’.

Sir Craig Reedie (right) at the CMS Committee of the UK Parliament…

The ONDCP didn’t say that the Executive Committee has to stick to the CRC’s recommendation, as WADA alleges. As we originally reported, it highlighted that the Executive Committee can only consider whether to accept or reject the CRC’s recommendation, preventing it from considering any alternative to the CRC’s recommendation.

As the WADA Response outlines, if the Executive Committee doesn’t agree with the CRC’s recommendation, it can send a matter back to the CRC. Only if it doesn’t agree with a second recommendation from the CRC can the Executive Committee take its own decision. It is hard to see how WADA came to this misunderstanding of what the ONDCP Report said.

Confirmation that WADA knew about Russian State doping in 2010…

WADA’s Response also confirms that WADA knew about Russian State doping in 2010. This is shocking because its former President, Sir Craig Reedie, told the UK Parliament that he first became aware of the allegations in December 2014, as did World Athletics President Sebastian Coe. Reedie was a member of WADA’s Executive Committee and Foundation Board at the time, and Coe was Vice President of World Athletics from 2007.

The Response reveals that Jack Robertson, WADA’s Chief Investigator at the time, suggested that Yuliya and Vitaly Stepanov collaborate with Hajo Seppelt, who in December 2014 published a documentary detailing the allegations. The same allegations had been outlined in a July 2013 exposé by the Mail on Sunday, but were largely ignored.

The Mail On Sunday’s 2013 exposé…

‘WADA’s role and authority under the 2009 Code was clearly defined as a facilitator, to pass on information to relevant organizations and to facilitate the conduct of investigations’, reads its Response. ‘At the time, not only was the information from the Stepanovs insufficient to take definitive action; the Code also required WADA to pass the information on to the Russian Anti-Doping Agency (RUSADA) and/or the International Association of Athletics Federations (IAAF). Because the Stepanovs’ information included allegations of doping cover-ups against RUSADA and the IAAF, WADA determined that passing such information along would have led to negative consequences for the Stepanovs.’

WADA informed the Moscow Laboratory about a ‘surprise’ inspection, leading to the destruction of 8,000 samples…

Did WADA decide against fulfilling its obligations under the 2009 Code and determine that the information shouldn’t be forwarded to the IAAF and RUSADA? Its Response suggests that it didn’t pass the information on, however it doesn’t explicitly say so. In the past, WADA has been responsible for passing information to RUSADA that turned out to be detrimental to attempts to investigate Russian State doping. For example, on 7 December 2014 it wrote to Dr. Grigory Rodchenkov to warn him about a ‘surprise’ inspection of the Moscow Laboratory, leading to the destruction of 8,000 samples.

The 2009 Code said that WADA should have passed whistleblower information about Russia back to Russia…

‘The Agency believed, and still believes, that if we had exposed the initial information provided by Vitaly Stepanov between 2010 and 2013, it would have been dismissed as being the words of one individual against the strong denial of Russia’, reads WADA’s Response, which ignores that it was sent corroborating information by the Mail on Sunday and by Darya Pishchalnikova (PDF below) in 2012. ‘We are convinced that we would not have had anywhere near the success that we ultimately had. In fact, we believe that the international community would not even be talking about doping in Russia today.’

Another inaccuracy in WADA’s Response is its assertion that Russia accepted the two remaining conditions outlined in its RUSADA Roadmap to Compliance, which is why it was reinstated in September 2018. WADA knows Russia didn’t accept one of the two conditions and Jonathan Taylor said that it didn’t, as previously reported.

The two remaining conditions were that the Russian authorities must publicly accept the reported outcomes of the McLaren investigations into State doping; and that access must be provided to samples and data stored at the Moscow Laboratory. WADA decided that a letter from former Russian Minister of Sport, Pavel Kolobkov, stating that: ‘The Russian Federation fully accepted the decision of the IOC Executive Board of December 5, 2017 that was made based on the findings of the Schmid Report’ amounted to ‘acceptance of all of the findings of the International Olympic Committee (IOC) Schmid Report (which itself endorsed the core findings of the WADA-commissioned McLaren Investigation reports), including that “a number of individuals within the Ministry of Sport and its subordinated entities” were involved in the manipulations of the anti-doping system in Russia’.

Taken at face value, Kolobkov’s statement only accepts the IOC decision of 5 December 2017, which was to suspend the Russian Olympic Committee (ROC) and to allow certain athletes to compete in PyeongChang 2018 under the Olympic flag. Kolobkov didn’t acknowledge Russia’s acceptance of the Schmid Report, only that Russia accepts the IOC’s decision to suspend the ROC based on the findings of the Schmid Report.

Jonathan Taylor

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, Taylor 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 does make a fair point that without this compromise, it might never have gained access to the samples and data stored at the Moscow Laboratory, which had been under the protection of the Investigative Committee of the Russian Federation (SKR or Sledcom) since June 2016. The SKR’s criminal investigation has never been completed, but access to the Moscow Laboratory Information Management System (LIMS) allowed WADA to discover shocking attempts to manipulate the data, following excellent forensic work.

Bullying

WADA’s Response is correct to outline that Covington & Burling LLP found that ‘there was no bullying nor harassment’ of Beckie Scott, former Chair of WADA’s Athlete Committee, at the September 2018 WADA Executive Committee meeting. But this could be considered a misrepresentation of what actually happened. 

Despite what you might have read, Beckie Scott never complained to WADA that she had been ‘bullied’. An 8 October 2018 letter from the former Chair of WADA’s Athlete Committee only mentions derisive, inappropriate, and unprofessional behaviour.  

Photo by Darren Goldstein/DSG Photo.

Scott and Ed Moses, former Chair of WADA’s Education Committee, didn’t outline their allegations to Covington & Burling LLP as they objected to the use of the firm, which has advised WADA for over ten years. The full story is outlined in this timeline and this article. 

But in short, WADA commissioned an investigation without the permission of those making the allegations, using terms that had only been mentioned in the media. There are many – including the ONDCP, it seems – that feel WADA’s response didn’t adequately address concerns on this point. Yet once again, WADA attempts to shoot the messenger.

Avalanche

Anti-doping is a regulatory system that exists outside law, where disputes are (arguably) decided through enforced arbitration. Anti-doping is understood to be the only regulatory system where the accused must prove that they are innocent in order to escape sanction. 

A lot of effort has gone into creating such a regulatory system. Lawyers have been very busy. Not only is there a World Anti-Doping Code and an increasingly complex Prohibited List, there will be seven separate international standards from 2021. Anyone involved in anti-doping must get used to acronyms such as ISPPPI, TUE, RTP, ADOs, ADAMS, LIMS, DCOs, CRC, ISTI, and ABP – to name but a few.

It is a paradise for the few lawyers that fully understand the system – and most of those were involved in creating it. This is reinforced by the CAS, which is staffed by sports law experts and only publishes selective decisions. Resources for athletes who wish to defend themselves are scarce (with the notable exception of Doping.nl, which strives to publish all Decisions in a searchable format).

Lawyers are never wrong. They can’t afford to be. Increasingly, WADA’s position appears to be that it never takes a wrong decision or makes a bad call. Historical negationism is a serious issue, as The Sports Integrity Initiative has pointed out before. More time is spent defending the system, rules and standards that WADA’s regulatory-heavy administration has created, rather than working in support of the athletes WADA claims to serve. 

Sometimes this defence can be comical – WADA’s Response to the ONDCP Report lists Dick Pound as an example of athlete representation within its governance structures. WADA’s Founding President last swam competitively in 1967.

Sport is very lucky that governments have continued to fund such a system without question, and that it has escaped serious scrutiny to date. But attacking suggestions for change is not a sensible way to defend such a privileged position. Some within the system recognise this, and have said in private conversation that WADA should recognise criticism and engage with suggestions for change.

But WADA continues to attack its detractors. Unless WADA engages with them, the US record for indicting and prosecuting those involved in using sport for fraud suggests change could be enforced. That is something that nobody wants, but WADA’s refusal to listen to the US could be the squeak that starts an avalanche.

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