22nd January 2019

RUSADA decision reveals WADA’s focus is sanctioning athletes

The World Anti-Doping Agency’s (WADA) decision not to re-suspend the Russian Anti-Doping Agency (RUSADA), despite Russia missing a 31 December deadline to provide access to data held at the Moscow Laboratory, underlines that its focus is on sanctioning athletes and not officials. WADA’s Executive Committee followed the recommendation of its Compliance Review Committee (CRC), which was that no sanction should be levied as a result of Russia missing the deadline.

“We are now proceeding to the second phase of that decision, namely authenticating the data retrieved from the former Moscow Laboratory so that ultimately we can use them to catch more athletes who cheated and to exonerate others”, said WADA’s President, Sir Craig Reedie, in today’s statement. “We will not be deterred from this mission, which we firmly believe is in the best interests of clean sport and of athletes worldwide […] Above all, we want to ensure that those who cheated are held to account.”

WADA said that this could take two to three months, due to the 20 terabytes of data retrieved. This relates to “several thousand” samples, according to Günter Younger, the Agency’s Director of Intelligence and Investigations; or “more than 9,000 presumptive positive samples” according to Travis Tygart, CEO of the US Anti-Doping Agency (USADA). 

That will mean that authenticating the data could take until the end of April. After this is done, WADA will then need to identify which athletes have a case to answer, and if any reanalysis of the samples stored at the Moscow Laboratory needs to be performed. 

‘The Russian Authorities and RUSADA must procure that such re-analysis is completed at a WADA-accredited Laboratory by no later than 30 June 2019’, reads the CRC’s recommendation (PDF below), which was approved by the WADA Executive Committee. ‘If any non-conformity with this second requirement is reported, again the CRC will convene without delay and (upon confirmation of the non-conformity) will recommend to the ExCo that a formal notice be sent to RUSADA, asserting non-compliance with the Sample Re-Analysis Requirement and proposing consequences in accordance with ISCCS Annex B, Article B.3.1’.

Many questions

1. If there are further delays in WADA’s authentication of the Laboratory data, will RUSADA’s 30 June reanalysis deadline be moved? If not, would WADA be able to uphold the sanctions outlined Article B.3.1 of Annex B of the International Standard for Code Compliance by Signatories (ISCCS) in the face of an appeal?

2. If RUSADA decides that the samples will be reanalysed at Moscow’s new Laboratory, is that acceptable?

3. It is understood that the samples that remain in the Moscow Laboratory date from 2011 to 2015. As sample degradation is a fact, can eight year old urine samples be relied upon to build cases against athletes?

4. The samples have been sealed off by the Investigative Committee of the Russian Federation (SKR or Sledcom) since it launched a criminal investigation in June 2016. Can WADA be 100% sure that the samples and the Laboratory Information Management System (LIMS) it retrieved have not been manipulated in tandem? Especially as WADA has already found that Russian agents developed tools to open and reseal sample bottles?

WADA has partly answered this last question. It has said that if evidence of tampering is detected, the CRC will immediately re-convene to recommend sanctions under the ISCCS. ‘If at any point in this process it is determined that the data provided have been tampered with, or that samples requested have not been provided for re-analysis by 30 June 2019, the CRC will come back to the ExCo, in accordance with the ISCCS process, with a 22 January 2019 Page 4 recommendation that WADA pursue stringent sanctions as set out in ISCCS Annex B, Article B.3.1.’, wrote a WADA spokesperson in an email.

WADA already has a copy of the LIMS database, which it states it ‘acquired from a whistleblower’. That whistleblower was Dr. Grigory Rodchenkov, former Director of the Moscow Laboratory. The reason it has had to secure a copy of the LIMS database is that the SKR argued that WADA’s copy was unreliable, as it had confiscated the genuine copy and passed it on to investigators. 

This then raises a further question. SKR investigators have been examining the LIMS database since November 2017 and have had sole access to the samples that remain in the Moscow Laboratory. The SKR has not published an update about its June 2016 investigation since November 2017. As such, can WADA be 100% sure that the LIMS database and the samples in the Moscow Laboratory have not been manipulated in tandem, to ensure that they match? 

‘The process in the Moscow Lab was to first carry out the initial screening to find out whether there was a forbidden substance in the sample’, answered a WADA spokesperson. ‘If the result was suspicious, then Dr. Rodchenkov reached out to the Ministry to find out what to do with it. He then kept the results of the screening – which we have now downloaded from the lab instruments. Therefore, if we find a different substance in the sample than in the initial screening, it will definitely trigger a more profound investigation into the sample by our I&I Team, e.g. to find scratches & marks. That said, we cannot be sure at this stage that any of it has not been compromised. With regards to sample degradation, samples are routinely stored for periods of up to 10 years for purposes of re-analysis.’

WADA will pass details of any potential anti-doping rule violations (ADRVs) discovered to international federations, who will decide whether to bring forward cases against athletes. Given the above uncertainties, it is likely that many federation will face an appeal from athletes charged with an ADRV, bolstered by Alexander Legkov’s success in overturning a life ban imposed by the International Olympic Committee (IOC). Will such cases withstand the scrutiny of the CAS and if so, will the Swiss Federal Tribunal agree?

WADA does not sanction athletes

“Clean sport will be in a better position than it was before”, said Sir Craig Reedie in a conference call today. In a question and answer sheet published today (PDF below), WADA outlines that ‘The data are crucial to build strong cases against potentially hundreds of cheats and to exonerate other athletes suspected of having participated in widespread doping on the basis of previous WADA-commissioned investigations led by Richard W. Pound and Professor Richard H. McLaren’.

However, WADA is a regulator. It doesn’t sanction athletes. That responsibility falls to sport’s international federations.

Information about athlete ADRVs was the third point of investigation in both Pound and McLaren’s Terms of Reference for the two Independent Commission (IC) and two Independent Person (IP) Reports produced for WADA. The major finding of all four Reports was that the Russian State had manipulated the doping control process, which was the issue that WADA asked to be investigated. In answers to The Sports Integrity Initiative above, a WADA spokesperson outlines that Dr. Rodchenkov was in contact with the Ministry of Sport for instructions about what to do if samples tested positive.

Detail from the McLaren Report showing Russia’s State plan to blame the Laboratory…

A finding from the first IP Report produced by McLaren was that a plan was in place to blame the Laboratory and its employees if  manipulation were detected. ‘It appears that the system was designed so that if its actions were revealed, the Moscow Laboratory could be jettisoned without damaging or revealing other parts of the drug cheating programme’, wrote McLaren (see right). ‘In the case of discovery, the jaws of the vice would close and any convenient explanation blaming the Moscow Laboratory would operate to cover up the rest of the State run system’. 

It would appear that WADA has now allowed this to happen by shifting its line that State doping took place, whilst Russia has maintained its line that it didn’t take place. In December, Russia’s President, Vladimir Putin, made his viewpoint crystal clear. “An issue that we are trying to resolve is the idea that doping was at the State level, but it was not, never was and never will be”, he said in an interview published on the Russian Athletics Federation’s (RusAF) internet site. 

WADA asserts that Russia’s acceptance of the IOC’s Schmid Report amounted to acceptance of McLaren’s findings. RUSADA was reinstated on 20 September. WADA decided that a letter from Pavel Kolobkov, Russia’s Minister for Sport, 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 Report.

Jonathan Taylor, Chair of WADA’s CRC, has admitted that it went back on its June 2018 recommendation that RUSADA should only be re-instated if it acknowledged, in writing, that Russian Ministry of Sport officials were involved in the manipulation of the doping control process. ‘The bottom line is that with Richard McLaren having responded to the Schmid Report and the IOC Decision based on it by saying “I congratulate the IOC in its decision. It confirms my findings in the investigation that I conducted for WADA,” there was a strong sentiment that the Russian acknowledgement of the IOC decision based on the Schmid Report was enough, and we could not hold out for more’, he told The Sports Integrity Initiative. 

In June 2018, the CRC recommended that RUSADA should only be reinstated if it provided access to the Moscow Laboratory and its data by WADA’s deadline ‘with no conditions, no excuses’. Russia has been allowed both. Its excuse was that the equipment WADA was to use to extract the data was not certified under Russian law, and its condition was that the CRC did not make its recommendation to the Executive Committee until a second attempt had been made to retrieve the data.

Chaos is coming

McLaren’s first IP Report for WADA was produced just 21 days before the start of the Rio 2016 Olympics. Less than two weeks before the start of the Games, the IOC decided not to ban Russia, putting the onus on the international federations to assess whether Russian athletes were eligible to compete. As international federations have differing resources due to the popularity of the sports they govern, this created chaos, and a bonanza for lawyers.

WADA is likely to face accusations that today’s decision will create similar chaos. Federations will be asked to bring forward ADRVs from a database that has been in the hands of the Russian State since November 2017, supported by samples that it has had sole access to since June 2016. 

Alexander Legkov’s sanction was dismissed by the CAS because although his sample contained excessive salt, the sodium concentration of the sample was physiologically possible. Also, Dr. Rodchenkov’s diary did not record his sample being swapped. As such, the IOC had not proved to the ‘comfortable satisfaction’ of the CAS that Legkov’s sample had been manipulated.

Legkov has always maintained that he didn’t dope and if his sample was manipulated, he wasn’t responsible for that manipulation. The IOC has dropped appeals regarding 27 other Russian athletes, based on evidence from the McLaren Report, as a result of the Swiss Federal Tribunal ruling. Does this fill IFs with confidence that any ADRV cases based on WADA’s new evidence will survive appeal?

‘As always, it may be up to CAS to decide’, responded WADA’s spokesperson. ‘However, we believe that the data are crucial to build strong cases against potentially hundreds of cheats and to exonerate other athletes suspected of having participated in widespread doping on the basis of previous WADA-commissioned investigations led by Richard W. Pound and Professor Richard H. McLaren’.

It is not hard to see that international federations will face similar arguments to those put forward by Legkov when attempting to bring forward ADRVs based on the data acquired by WADA. It is harder to see is how the data will help to bring ‘strong’ cases against athletes, as claimed by WADA in its Questions and Answers document (see above). 

Screenshot of Russia’s Ministry of Sport’s internet site, showing Kravtsov as Head of the CSP…

Because of WADA’s decision, athletes will come under further scrutiny and not the officials responsible for organising drug programmes and manipulation of samples. Less than a week ago, The Sports Integrity Initiative reported that Alexander Kravtsov remains in place as head of the Centre of Sports Preparation (CSP) for the national teams of Russia. He replaced Mikhail Prokhorov as head of the Russian Biathlon Union (RBU) in 2014. 

Dr. Grigory Rodchenkov’s affidavit to the IOC’s Schmid Commission alleges that Prokhorov bribed Irina Starykh, one of ten biathletes charged by Austrian authorities, to keep quiet about being instructed to inject erythropoietin (EPO) by Stanislav (Stastik) Dmitriev, whom he alleges supplied EPO to the Olympic biathlon team. 

Detail on Kravtsov from Dr. Grigory Rodchenkov’s affidavit…

Dr. Rodchenkov mentions the CSP as being involved in the management of Russia’s State doping programme. He also mentions Kravtsov as initiating discussions about half of the biathlon team being under the control of Dmitriev. 

Questions have also been raised about Russia’s true commitment to anti-doping, after it emerged that planned reforms have not taken place. By focusing on sanctioning athletes and shifting its line on recognition of State doping, WADA has not got to the bottom of these allegations. Through inaction and back-pedalling, it has effectively given the signal that such behaviour is OK.

What is certain is that once again, a regulator has created a bonanza for lawyers. Scrutiny will yet again be placed upon athletes rather than those that manipulate them. This is why athletes are angry about WADA decisions regarding Russia.

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