Features 29th January 2021

Russian Olympic Committee taking legal advice on CAS Decision

The Russian Olympic Committee (ROC) is taking legal advice regarding the Court of Arbitration for Sport’s (CAS) Decision to sanction Russia for the failure of the Russian Anti-Doping Agency (RUSADA) to deliver an authentic copy of the Moscow Laboratory Information Management System (LIMS) to the World Anti-Doping Agency (WADA). The ROC acted as an interested party in the proceedings and argues that the ‘unfair’ CAS Decision specifies that no allegations were made against the ROC, Russian athletes, or Russia’s national sporting federations. Yet they were punished.

RUSADA has adopted a similar position. Although it ‘strongly disagrees’ with the CAS Decision, it will not be appealing to the Swiss Federal Tribunal (SFT) ‘in the interests of athletes’, it announced. Stanislav Pozdnyakov (Станислав Поздняков), ROC President, acknowledged RUSADA’s decision not to appeal, however added that the ROC is considering legal options.

ROC consulting with legal advisers

’We have repeatedly emphasised that we consider the sanctions and restrictive measures imposed by CAS to be unfair’, said Pozdnyakov in a statement. ‘Since the announcement of the final decision by CAS, we have constantly consulted with legal advisers, lawyers and our partners about the next steps and actions in the legal and practical sphere. At the same time, we are guided, first of all, by the interests of our athletes, ensuring equal conditions and the procedure for their performance at major international competitions.

‘At the moment, we proceed from the expediency of focusing efforts on ensuring the practical implementation of the ruling by CAS. First of all, in situations where broad interpretation may negatively affect or unreasonably violate the legal rights and interests of representatives of the Russian side. In particular, the Russian Olympic Committee, which is responsible for forming the composition of our Olympic teams for all Olympic competitions.

‘We have already noted that in each case the organisers offer different options. In this regard, there is painstaking work ahead for the parties involved in each specific case. Of course, if our legitimate rights and interests are violated, then we will be ready to use the full range of available measures for legal protection – each case will be dealt with separately.’

Changes at RUSADA

Russia’s former Minister of Sport, Pavel Kolobkov…

In acknowledging RUSADA’s decision not to appeal, Pozdnyakov pointed out that the ROC and Russian Paralympic Committee (RPC) are no longer Founder Members of RUSADA and are not involved in its Supervisory Board, so cannot be involved in its decisions. He said that this fulfils the requirement for national anti-doping agencies to be independent from the sporting movement, as specified in the 2021 World Anti-Doping Code.

The Russian Lawyers Association (юристов Ассоциация России) and the International Centre for Health Protection (Международный центр охраны здоровья) are now listed as RUSADA’s two governing bodies. The Lawyers Association operates a Sports Law Commission with over 70 members. Alexander Popov (Александр Попов), a member of the ROC’s Executive Committee, is listed as a member, as is Pavel Kolobkov (Павел Колобков), Russia’s former Minister of Sport. 

Lawyer Mikhail Bukhanov is RUSADA’s Acting Director General…

Lawyer Mikhail Bukhanov (Михаил Буханов) is listed as Director General of RUSADA on its internet site, having been appointed as Acting Director General by the ROC and RPC in August last year. The ROC statement lists Bukhanov as working for the RUSADA Legal Department. RUSADA’s 2019 Annual Report (p.18) confirms his legal background, adding that he began working for RUSADA in February 2019. However, Bukhanov is not a member of the Russian Lawyers Association and consequently, is not a member of its Sports Law Commission.

Yuriy Ganus, former DG of RUSADA…

As well as appointing Bukhanov, RUSADA’s previous Founding Members (the ROC and RPC) dismissed Yuriy Ganus (Ю́рий Га́нус), Bukhanov’s predecessor. This followed the results of an audit commissioned they commissioned, which blamed Ganus for alleged financial irregularities. Ganus denies all allegations of financial impropriety and despite the audit alleging embezzlement of State funds, it is understood that no legal action has commenced against him.

Other amendments to the Supervisory Board of RUSADA, which took the Decision to appeal WADA’s sanction, were announced in December last year. It now features Anatoly Kucherena (Анатолий Кучерена), Chairman of the Public Council of the Ministry of Internal Affairs, who represented the interests of US whistleblower Edward Snowden in Russia; Vitaly Vinogradov (Виталий Виноградов) of the Russian Institute of Directors; Sergey Ilyukov (Сергей Илюков), a sports doctor recommended by the WADA; former Cosmonaut Sergey Ryazansky (Сергей Рязанский); Natalia Sokolova (Наталия Соколова) of Moscow State University; Vladimir Chekhonin (Владимир Чехонин) of the Russian Academy of Medical Sciences; and Tamara Shashikhina (Тамара Шашихина), an advisor to the Russian Foreign Ministry on combatting corruption.

Article 20.5.1 of the 2021 World Anti-Doping Code requires national anti-doping organisations (NADOs) to be ‘independent in their operational decisions and activities from sport and government’. When it reinstated RUSADA at its September 2018 Executive Committee meeting, WADA outlined that RUSADA must continue to demonstrate that ‘it operates in an environment that is free from undue external influence’. 

In addition, when announcing its four year sanction against RUSADA for failing to procure the authentic Moscow LIMS, one of WADA’s conditions was that it must remain ‘satisfied throughout the Four-Year Period that RUSADA’s independence is being respected and there is no improper outside interference with its operations’. Although the CAS Panel reduced RUSADA’s sanction to two years, its Decision requires RUSADA’s Director General to provide quarterly reports to WADA confirming that RUSADA’s independence has been respected. Given the connections outlined above, it appears that Bukhanov will have a tough job.

Ransom

Despite accepting the CAS Decision and deciding not to appeal against it, RUSADA issued a ten page statement outlining why it does not agree with the CAS Decision. The statement is very critical of the CAS Decision but as previously mentioned, outlines that RUSADA is putting the interest of Russia’s athlete in competing on the international stage first.

‘RUSADA […] regrets that it was found to be inconsistent with the WADA World Anti-Doping Code solely based on the fact that WADA allegedly did not receive a copy of the authentic data from the Moscow Anti-Doping Laboratory, to which the Russian Anti-Doping Agency has never had access’, it reads. ‘In fact, RUSADA is punished for a failure to fulfil an obligation that it could not execute in principle. This Decision not only contradicts the basic principles of fairness, but is also unjustified in the light of significant progress achieved by RUSADA in the recovery process which, in turn, was expressly acknowledged by WADA. For these and for other reasons stated […] RUSADA considers the sanctions imposed by the CAS Panel of Arbitrators unreasonable.’

RUSADA also maintains its argument, put forward at CAS, that it didn’t consent to amendments to the 2015 World Anti-Doping Code, made in 2018 to include the new International Standard for Code Compliance by Signatories (ISCCS) that was used to sanction Russia. It argues that other stakeholders were concerned about the ‘paradigm shift’ that allowed WADA to introduce a major new policy and an amended Code without expressly seeking signatory approval, and the CAS Panel ignored these concerns. Two Stakeholder Comments documents (here and here) concerning the introduction of the ISCCS suggest that this is accurate.

In October 2017, WADA received an extract from the Moscow LIMS containing sample data from January 2012 to August 2015 from a whistleblower. Günter Younger, WADA’s Director of Intelligence and Investigations, told WADA’s 2017 Executive Committee meeting that he was “confident” that it was a copy of the Moscow LIMS. WADA discovered discrepancies between the 2017 LIMS and the one it retrieved from the Moscow Laboratory in January 2019, which it attributed to agents of the Russian State in a detailed Report.

RUSADA is also very critical of WADA’s actions regarding its retrieval of the LIMS from the Moscow Laboratory in 2019. It also criticises WADA’s assertions that Russia was responsible for discrepancies found in the Moscow LIMS. It also alleges that WADA copied the LIMS and related data incorrectly.

‘During the proceedings before the CAS, RUSADA revealed that WADA was not fully prepared for the mission and did not actually adhere to the best forensic practices and good data extraction methodology’, reads RUSADA’s statement. ‘In particular, WADA did not keep minutes and did not even give any detailed instructions to the staff of the Moscow Laboratory regarding the necessary preparation for data extraction, and how to administer the LIMS system prior to its preliminary visit on 28 November 2018, and the mission on data extraction, which took place in January 2019. 

‘In fact, WADA was unprepared and the participants in its mission to extract data from the Moscow LIMS did not have knowledge about this system, its features and the specifics of its functioning. They did not conduct any surveys, no technical discussions with Moscow Laboratory staff and, as it turned out, were not even aware of the amount of data that needed to be removed. Despite the obvious lack of knowledge about how the system works and how to copy the data to avoid loss of information, WADA did not follow the instructions of the Moscow Laboratory, who were the only ones with knowledge about the functioning and operation of the Moscow LIMS.

‘As a result the employees of the Moscow Laboratory, who did not receive any specific guidance from WADA, continued to use the “live” LIMS in its usual mode, and some operations had to run daily (including ongoing file operations that require changes or deletions as needed and this, importantly, is not even related to doping sample analysis files because LIMS covers other laboratory files that are not associated with sample analysis). The modification and deletion of files caused by the normal “live” operation of the LIMS were interpreted by WADA as intentional mass deletion and modification of Moscow data files. Also, since the WADA staff did not follow the instructions of the Moscow Laboratory staff prior to and during the data extraction process, they were copied incorrectly. 

‘In particular, almost nothing is known about the origin of the Copy of LIMS Informant. It is not clear where it came from, whether it was exposed to any changes and when. WADA has not provided evidence to demonstrate that it has conducted an appropriate verifying the authenticity and integrity of the Informant LIMS Copy.’

RUSADA also argued that analysis performed on the 2017 LIMS by the Kaspersky Laboratory determined that it was not derived from the Moscow LIMS, because it had been developed on a different MySQL platform. The inference to be taken from this is that RUSADA argues that it is the 2017 LIMS and not the 2019 LIMS that has been tampered with.

‘Kaspersky Laboratory, on the contrary, was able to establish that on the servers of Moscow LIMS there is no sign of a copy of the Informant LIMS in the laboratory. In other words, it never existed on the servers of Moscow Laboratory and was created separately, outside the Moscow laboratory. WADA not dispute these findings.

‘In this regard, it is noted that system users “tim-sobolevsky” and “oleg.migachev”, who are former employees of the Moscow Laboratory who left for the USA shortly before [Dr. Grigory] Rodchenkov’s departure there, carried out remote access to the Moscow Laboratory LIMS from the USA more than 350 times prior to June 2016, i.e. before WADA received a copy of the Informant LIMS in October 2017.

‘It is also important that when comparing the two data sets – the LIMS copy from the Informant and the Moscow Data – the so-called “raw data” was not taken into account, which was also obtained by WADA in full. This data is automatically generated by the process and procedures for the initial testing of samples at the Moscow Laboratory and forms the basis of records manually entered into LIMS. This fact causes concern, since it is the “raw data” that is the key evidence recognised by WADA during proceedings, since it is generated automatically and is impossible to fake or change. 

‘In this regard, it is important to note that experts appointed by WADA did not find any traces of manipulation with the baseline data, which was confirmed in their reports. Another example of concern is that when analysing data discrepancies between the Informant Copy of the LIMS and the Moscow Data, attention was not paid to the doping samples themselves, which were stored in the Moscow Laboratory, and which RUSADA handed over to WADA in April 2019. RUSADA is disappointed that that the Panel decided to ignore these crucial details without any justification and was instead guided exclusively by the LIMS data, which is not reliable evidence, since it has been restored several times from different backups created by unknown persons in different periods of time.’

As mentioned, RUSADA’s statement outlined that it accepted the CAS Decision so that Russia’s athletes could compete internationally. The postponed Tokyo 2020 Olympics is fast approaching. Given the numerous concerns outlined above, it is hard to avoid the conclusion that RUSADA feels it has been held to ransom.

Test case

As previously reported, RUSADA’s new position that the LIMS it provided to WADA in January 2019 was authentic and hadn’t been tampered with is at odds with the position adopted by its previous Director General. Yuriy Ganus acknowledged that the data had been manipulated, but denied that RUSADA was responsible. An Open Letter from Ganus to this effect has been removed from RUSADA’s internet site.

At CAS, RUSADA adopted the same position as the Ministry of Sport, which was that alterations to the LIMS were designed to preserve the LIMS from failing. This apparent about face suggests government interference in the operations of RUSADA. 

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

As previously mentioned, an audit commissioned by the ROC and RPC found financial irregularities at RUSADA and blamed Ganus. He continues to deny responsibility and despite the audit alleging embezzlement of State funds, no criminal charges have been levied. This suggests not only ROC and RPC interference in RUSADA’s operations, but also cooperation with the Russian State.

Alexander Kravtsov (Александра Кравцова) headed the CSP, which is in charge of preparing Russia’s national teams for international competition, from 2009 until he was arrested and detained on charges of embezzlement in September last year. Kravtsov’s arrest kept him out of the way whilst the CAS Panel heard RUSADA’s appeal against WADA’s sanction from 2-5 November. It also meant he had a convenient excuse for not answering the External Review Commission’s (ERC) questions about Russia’s part in corruption at the International Biathlon Union (IBU). He has recently been re-imprisoned after attempting to flee to Turkey.

However, although all of these incidents suggest interference in RUSADA’s operations, they will not be considered violations of RUSADA’s reinstatement condition that it must demonstrate independence. This is because the amended two year period of RUSADA’s non-compliance began from the date of the CAS’s Decision. As such, WADA cannot consider any of the above as ‘improper outside interference’ with RUSADA, as such a prohibition only began on 17 December 2020.

The 2021 Code extends provisions of independence applicable to NADOs…

This is why RUSADA’s governance by a body that includes representatives of the Ministry of Sport and ROC is so interesting. The 2021 Code extends the requirement in the 2015 Code for NADOs to be ‘independent in their operational decisions and activities’ to specifically prevent the involvement of officials from the government and sports movement in a NADO’s activities (see right). This new prohibition has never been tested, and there is no guidance within the Code on what level of involvement is acceptable. 

The Sports Integrity Initiative is unaware of any NADOs that are completely independent from influence by States or sport. RUSADA’s 2019 Annual Report reveals that 94% of its 591.5 million (€7.4 million) ruble budget is provided by the Russian State, however it is far from alone in adopting this funding model. WADA, for example, receives 50% of its funding from State governments, including Russia.

However, given Russia’s history of manipulation of the doping control system, will RUSADA’s new governance structure be deemed acceptable under the Code? Lawyers talk to each other, especially in the comparatively small world of sports law. As the ROC and Ministry of Sport are members of a sports law association within the organisation that governs RUSADA, is it unreasonable to predict that they will talk to RUSADA’s Acting Director General, who is also a lawyer? If so, is this acceptable?

If the ROC appeals the sections of WADA’s sanctions that apply to Russia and not RUSADA, would that be deemed as interfering in RUSADA’s independence? These are the questions the ROC’s lawyers are presumably grappling with. Russia could again find itself a case study in Code compliance.

The recent ERC Report into corruption at the IBU (click here to download) suggests that in 2017, the Russian State was leaning towards accepting some responsibility for systemic manipulation of the doping control process. At this point, one of WADA’s conditions for RUSADA’s reinstatement was that Russia’s Ministry of Sport must acknowledge, in writing, that State officials were involved with manipulations of the doping control process.

WADA compromised in order to get its hands on the Moscow LIMS. Had it not done this, the manipulations to it may never have been discovered. However, in compromising, it allowed the Russian State to get away with not accepting responsibility for manipulations of the doping control process. Many involved with anti-doping – not least athletes – are still angry about this compromise, and only time will tell whether it was the correct decision.

RUSADA’s change in management and stance suggests Russia is getting its ducks in a row. It is now going further than not accepting responsibility for manipulating the doping control system by arguing that the Moscow LIMS retrieved in 2019 in genuine, and hasn’t been manipulated. RUSADA is now supporting this argument rather than fighting against it.

Russia always presented a conundrum for WADA. It had never had to deal with a State manipulating the doping control system before, and the only action it could take was to suspend RUSADA. As such, it brought in a new sanctioning system (the International Standard for Code Compliance by Signatories – ISCCS), which sought to introduce State consequences for such actions. RUSADA’s new governance structure will test this. Any ROC appeal against WADA’s sanction could test it to the limit.

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