11 December 2019

RUSADA Supervisory Board to decide on appeal

The Supervisory Board of the Russian Anti-Doping Agency (RUSADA) will decide on any appeal against the World Anti-Doping Agency’s (WADA) decision to declare it non-compliant with the World Anti-Doping Code for a four year period at a 19 December meeting. Yuriy Ganus (Юрия Гануса) and Margarita Pakhnotskaya (Маргарита Пахноцкая), Director and Deputy Director General of the Russian Anti-Doping Agency (RUSADA), do not feature on the Supervisory Board. 

‘The question is still open’, wrote Pakhnotskaya in an email, when asked if her and Ganus would be allowed a say in whether RUSADA will appeal WADA’s decision. ‘The Supervisory Board meeting will take place on 19 December, and Yuriy and I will be there. And, we hope it [the question of whether they get a say in any RUSADA appeal] will be discussed first.’

Representatives of Russia’s Ministry of Sport and Paralympic Committee (RPC) do feature on the seven person Supervisory Board, and they have both indicated that an appeal is likely. It includes Andrew Minyaev (Андрей Миняев), Director of the Legal Department for Russia’s Ministry of Sport; a member of the Russian Ministry of Economic Development; a medical scientist; the Head of the Sports Conventions Division of the Council of Europe; athlete Yelena Isinbayeva; a cosmonaut; and the Secretary General of the Russian Paralympic Committee (RPC). 

Reaction of the Russian Olympic movement

The Russian Olympic Committee (ROC) and RPC are listed as the founders of RUSADA and like the Ministry of Sport, they have indicated dissatisfaction with WADA’s decision. ‘The position of the ROC remains the same’, read a statement from Stanislav Pozdnyakov, President of the ROC. ‘Sanctions are inadequate, illogical and unnecessary in nature. We will do everything we can to ensure an Olympic team competes in Japan under the Russian tricolour, in association with the Olympic Charter. 

‘The recommendations in WADA’s Report do not contain any accusations against the ROC and RPC. This was noted in a statement from the International Olympic Committee.

‘We are also categorically opposed to a set of restrictive requirements that are now approved by the WADA Executive Committee in relation to clean Russian athletes. These sanctions, in addition to punishing and humiliating clean Russian athletes, in no way contribute to the restoration and compliance of RUSADA.

‘Athletes who have not broken any rules and have won the right to compete must do so in exactly the same conditions as their opponents. However, WADA’s decision deprives Russian athletes of equal rights, as well as the human and civil right to represent their country. It is impossible to understand the position of WADA […] on the non-admission to international competition for Russian athletes.’

Reaction of the Ministry of Sport

Ganus acknowledged ‘thousands’ of manipulations made to data retrieved from the Moscow Laboratory as recently as January this year – the reason for WADA’s decision – and was critical of the motives behind such manipulation. At a press conference Pavel Kolobkov, Russia’s Minister of Sport, was critical of Ganus for speaking to the press. 

“The head of RUSADA has a huge amount of responsibility”, he said. “He must investigate violations and directly take part in all of this. And we learn about his activities mainly from the press. I believe this is the wrong format of communication. He must cooperate with law enforcement authorities. Unfortunately, I have not yet felt that he has done this.

“I recently heard an interview with him about athletics where he unduly interfered in the affairs of an independent federation, by calling for the resignation of its leaders, including head coach Yuriy Borzakovskiy, without reason. If there is some evidence, it is necessary to show it to the disciplinary committee of the federation. Without this, there is nothing but allegations. I am ready to cooperate with him and have many times invited him to the meeting of the interdepartmental commission but, unfortunately, he does not always come.”

Kolobkov said that the Russian authorities had complied with all of WADA’s requests.  “We have a new management of the Laboratory and RUSADA”, he said. He outlined the both are “no longer under the jurisdiction of the Ministry of Sport” and that it had signed a “declaration of independence” for both, which was “fully observed” by WADA. 

Yet the inclusion of Minyaev on the RUSADA Supervisory Board suggests that RUSADA is not fully independent from the Ministry of Sport. In addition, although Kolobkov points out that like RUSADA, the Laboratory is directly financed by the Russian Ministry of Finance, staff employed during the time when it was involved in manipulation of the doping control system have remained in place. 

As confirmed by the full Report of the WADA Intelligence & Investigations (I&I) team (PDF below), the current Director of the Laboratory is Elena Mochalova (Елена Мочалова). Along with other Moscow Laboratory employees, she produced a research paper on anti-doping at Sochi 2014, where Russian State manipulation of the doping control system arguably reached its zenith. The authors include Dr. Grigory Rodchenkov and Dr. Timofey Sobolevsky, whom the Russian authorities allege were the masterminds behind a criminal conspiracy to extort money from Russian athletes in return for covering up positive doping tests.

In addition, the above report details how Evgeniy Mochalov (Евгений Мочалов), the husband of Elena, was brought in as the IT Manager of the Moscow Laboratory in October 2016. The I&I Report found that he was responsible for manipulation of the Information Management System (LIMS) that remained inside the Laboratory from that date through to January 2019.

The Russian authorities would no doubt counter that the Mochalovs manipulated the LIMS data on instructions from Drs. Rodchenkov and Sobolevsky. However, it would appear that the Russian Ministry of Finance paid the salary of a Laboratory Director who had worked alongside the two ‘criminals’ that Russian authorities allege were behind manipulation of the LIMS data. 

Why would it do this, when Mochalova’s former boss is subject to criminal charges issued by the Investigative Commission of the Russian Federation (SKR/Sledcom)? Why would it allow Mochalova to employ her husband as IT Manager in October 2016, four months after those charges were issued?

What happens next

As outlined by WADA, RUSADA has 21 days to accept or appeal its decision, which means that unless an appeal is announced after the 19 December RUSADA Supervisory Board meeting, journalists could have a busy time over the New Year period. Kolobkov says that Court of Arbitration for Sport (CAS) will consider all the evidence again, as well as the position of the Russian experts. Jonathan Taylor, head of WADA’s Compliance Review Committee (CRC) that recommended the sanctions in a 26 page document (PDF below), told journalists he was confident that the CAS would uphold WADA’s decision.

As the response of the Russian authorities illustrated, any appeal is likely to argue that WADA cannot rely on the database it ‘acquired’ in October 2017, which was given to it by Drs. Rodchenkov and Sobolevsky, as being authentic. “One cannot compare with the Rodchenkov database because it is illegal – it is not known how it was obtained”, said Kolobkov at the press conference. “Can you imagine such developments in ordinary criminal or civil proceedings? A stolen database. Where does it come from? Unclear. Why is it used as a standard? Unclear. On this basis, the Russian Investigative Committee and our experts requested all the relevant information in order to submit a technical report on why they consider their database [the one retrieved by WADA in January 2019] as authentic. The answer was no.”

WADA’s sanctions prevent Russia from hosting major sporting events. In order to compete in international sporting events, Russian athletes must prove: 

• that they are not implicated in the two McLaren Reports;
• there are no positive findings for them in the LIMS database;
• that no data relating to their samples has been manipulated; and
• they have been subject to adequate testing.

Even if they clear this significant hurdle, the athlete may not represent Russia (i.e. they would have to compete as a neutral athlete). WADA has only clarified that these requirements will not apply for next month’s Lausanne Youth Olympic Games, which throws the Russian football team’s participation in next year’s European Championship and the Qatar 2022 FIFA World Cup into jeopardy.

“The WADA decision only applies to the World Championships, not even the European Championships”, said Kolobkov. “The sanctions will not affect [football’s] European Championships. I think they will not be affected, nor the World Cup”. 

This isn’t accurate. WADA has clarified that Russia will not be able to host any Major Events during the four year period of RUSADA’s non-compliance. Under WADA regulations, a Major Event is considered to be any event organised by a Major Event Organisation, described as the ruling bodies for any ‘continental, regional, or international event’. It would appear that Euro 2020 and Qatar 2022 fall into this definition.

Russia pilloried its ‘OAR’ designation at PyeongChang 2018…

WADA has confirmed that the sanction will apply to both football tournaments. Expect more variations on the ‘You know who we OAR [Olympic Athlete from Russia]’ marketing launched in response to a ban on athletes representing Russia at the PyeongChang 2018 Winter Olympics, if this turns out to be the case.

Guilty until proven innocent

Anti-doping is understood to be the only area where ordinary judicial practice is reversed. An athlete accused of a doping offence must be able to prove the source of an adverse analytical finding (AAF – positive test) and explain it, otherwise they are assumed to be guilty of an anti-doping rule violation (ADRV).

The Moscow Laboratory…

An important question hangs over the Russian case. How will any Russian athlete meet WADA’s four stage burden of proof in order to compete internationally? The LIMS database given to WADA in October 2017 is understood to relate to tests undertaken between 2012 and 2015. However, the Moscow Laboratory is in the same building and has some of the same staff as the one which WADA suspended on 10 November 2015. 

WADA retrieved the LIMS database from the Laboratory in January 2019. “It was in the Laboratory that was not sealed by the Investigative Committee and continued to operate”, Kolobkov said of the LIMS. “For Laboratory tests carried out on blood. The database was continually updated, and corrected some things.”

WADA found that manipulations of the LIMS data continued until the day before it retrieved the data from the Laboratory. As such, will Russian athletes have to prove that their data from 2012 until January 2019 hasn’t been manipulated in order to compete internationally? If so, how?

Once again, clean Russian athletes are paying a price – this time a very heavy one – for the actions of corrupt officials. Whether they should depends on your point of view. After all, the Olympic Movement banned South Africa for 24 years due to its policy of apartheid, and that was not the fault of the athletes.

WADA has already admitted that the Russian authorities are unlikely to change their position. Perhaps it is time for the global athlete rights movement to cross the Ural border…

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