The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
Dear Mr Samuelsson;
Thank you for your letter of 3 January 2019. I am glad of the opportunity to address your concerns. First, the CRC has not ‘delayed the process’ or ‘dragged its feet’; and nor have we moved the goalposts. We have not come under any pressure from anyone at WADA to delay meeting until 14- 15 January 2019, and we would not have succumbed to such pressure even if we had. Instead, the forthcoming special CRC meeting to consider the RUSADA case has always been scheduled for 14-15 January 2019. Those dates were announced back in October, I think, without comment or complaint from anyone, and so they should not come as a surprise to anyone now.
I understand that you would prefer that we hold an emergency conference call now, and declare RUSADA non-compliant immediately and without delay. However, there are good legal and practical reasons why we scheduled the CRC meeting for 14-15 January 2019:
• One of the criticisms of the recommendation that the CRC made in September to reinstate RUSADA was that it was too rushed, not enough time was allowed for due deliberation, and we should have met in person to make such an important decision, rather than just by conference call. As it happens, I don’t agree with that criticism (or with the other criticisms of that recommendation), but I don’t want to give the Russian authorities the chance to make the same complaint here.
• 14-15 January was the first time all CRC members could meet in person in January. But even if we could have met before then, we also wanted to ensure that there was time for a full report to be provided by the WADA compliance team to the CRC, and considered by the CRC in advance of the meeting, setting out the position and explaining the reasons for any non-compliance. In addition, in cases of non-compliance, the special fast-track procedure in Article 9.5 of the International Standard for Code Compliance by Signatories (ISCCS), which is what we are following here, requires WADA to give the Russian authorities a fair opportunity to make a submission for the consideration of the CRC before the CRC makes its recommendation to the WADA Executive Committee on compliance and consequences.
• I note your suggestion that ‘this is nothing but obscene bureaucracy and hiding behind “due process”’, but all stakeholders agreed on that Article 9.5 provision during the ISCCS consultation process, and I don’t want to create a legal argument by failing to follow it now. You might say that there is nothing to be considered, the non-compliance is plain, the reasons are irrelevant, so following due process is futile and therefore unnecessary. In my experience, however, the courts do not like such arguments, and so if we were to plough ahead and recommend sanctions now, without following the rules, the risk of successful challenge on process grounds would be significant, irrespective of the merits of the underlying decision. Surely no one wants that outcome?
I also note your concern that waiting till 14-15 January might give the Russian authorities a further opportunity to provide the data. However:
• When the ISCCS was drafted, all stakeholders were very keen to ensure that declaring a Signatory non-compliant was a last resort, to be pursued only after the Signatory has been given every opportunity to comply and failed to take them. The ISCCS duly reflects that strong stakeholder sentiment. And as a result, we regularly find that Signatories comply at the very last minute, even after the CRC has made its recommendation, and in those instances, in accordance with the will of WADA’s stakeholders, that last minute compliance has been accepted, and no further action taken. If WADA takes a different course here, again it will face a legal challenge, for treating RUSADA differently from everyone else.
• More importantly, I am not sure why you think that provision of the data, albeit after the 31 December deadline, would be such a bad thing. I thought everyone agreed that it is vital to get the data, so that it can be determined which of the athletes tested in the relevant period have a case to answer and which do not. That imperative is what drove the CRC’s recommendation in September. If it is achieved, that is presumably a good thing, isn’t it, whether it happens on 31 December or next week?
I note your accusation that I am ‘siding with the cheats instead of the honest athletes’, and ‘doing everything within [my] power to help the nation that committed doping fraud’. Given the efforts that I have made in this context, including successfully defending at CAS the IAAF’s exclusion of Russian athletes from the 2016 Olympic Games and (separately) the IPC’s exclusion of the Russian Paralympic team from the 2016 Paralympic Games, I doubt the Russian authorities would agree with you. In any event, I am happy to continue to be judged by my actions moving forward.
Thank you again for your letter. I have tried to explain the CRC’s thinking. You may or may not agree with it, but at least you made the effort to find out, and I am grateful for that.
Jonathan Taylor QC
WADA Compliance Review Committee
• This Open Letter, a copy of which is held by The Sports Integrity Initiative, was sent in response to a 3 January 2019 Open Letter sent by Sebastian Samuelsson to Jonathan Taylor. Click here to view the 3 January Open Letter.
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