The public is not agnostic to headline news involving high profile athletes caught in anti-doping controversies. It also tends to resign to the view that once an athlete has returned a positive test, they are guilty of doping and, therefore, they deserve to be called a cheat.

Experience gained in anti-doping litigation suggests that this is not always an accurate and fair description of an athlete’s status. In fact, the examination and analysis of many cases indicate exactly the opposite: that the athlete is often not at significant fault and exceptions need to be made. This premise is specifically recognised in the World Anti-Doping Code and has its route in the principle of proportionality, which suggests that sanctions must not go further than the legitimate aim pursued by the sport governing body.

It is submitted that the above has, or appears to have had, a direct application in the matter of Kamila Valieva. Although the Court of Arbitration for Sport (CAS) Panel did not rule on the merits of the matter, they nevertheless implied, to a certain extent, that Valieva is not at significant fault and she may go on to win the merits of the case at a later stage. This is a significant implication for sporting justice, which will potentially affect policy and procedure at an international setting.

Further, it is worth noting that the CAS Panel only had to rule on the application submitted to it with the relevant prayers for relief included therein. This means that the respective applications by the International Olympic Committee (IOC), World Anti-Doping Agency (WADA) and the International Skating Union (ISU), all requested the reversal of the Decision taken by the Russian Anti-Doping Agency’s (RUSADA) Disciplinary Anti-Doping Committee to lift the provisional suspension against Valieva. CAS, therefore, only had to rule on the issue of whether the imposition of the provisional suspension had been properly and accurately lifted.

The issue of the imposition of a provisional suspension against an athlete forms a central part of WADA’s regulatory framework and its existence finds relevance in the argument that without it, ‘cheats’ may gain an unfair advantage over ‘innocent’ athletes, pending the outcome of the matter. In essence, this means that athletes are presumed guilty, until proven innocent, pursuant to the old-established principle of strict liability.

That said, there has been enormous criticism over the years as to the unfair and illogical effects a provisional suspension may have against an athlete. I, certainly, experienced this on a number of matters before CAS, where I acted as Counsel for athletes accused of anti-doping rule violations (ADRVs). I remember raising this issue, with an application at CAS in 2005, during the proceedings of the well known case of the Greek sprinters Mr Kenteris and Miss Thanou, when the athletes had already remained suspended for over 18 months pending the outcome of their matter.

It follows, that CAS Panels tend to recognise the enormous effects a provisional suspension may have against the career of an athlete. In this light, the CAS Panel in the Valieva case considered the individual characteristics of the matter, and concluded that if the provisional suspension remained in place, the athlete would have suffered irreparable harm.

It is a long established principle in the CAS jurisprudence that athletes can be protected in a situation where an opaque decision taken by a sport governing body could potentially violate their rights, such as participation in the Olympic Games. CAS jurisprudence suggests that if the athlete were to win the case on the merits, at a later stage, and the provisional suspension had not been lifted in a timely manner, then the athlete may have suffered irreparable harm, meaning she would have lost the right to compete in the Games.

In an implied manner, the CAS Panel suggests that it is very possible, based on the facts and evidence, that the athlete’s degree of fault is minimal and because of the possible contamination of the product, she may just receive the sanction of a reprimand, which does not carry with it a period of ineligibility. The CAS jurisprudence is instructive on this point.

Finally, the CAS Panel in the Valieva matter proceeds with a very important and significant implication, not only for sporting justice, but also for policy within the wider sphere of anti-doping regulation and litigation. It appears from the reasoned Decision that the delays of notification of the positive result to the athlete, compounded with the exceptions the WADA Code prescribes in favour of ‘protected persons’, have influenced the Panel in a remarkable manner.

The Panel makes it clear that sport governing bodies cannot set high standards of behaviour against an athlete, when the sport governing bodies themselves do not adhere to such high standards. Very wisely, the CAS Panel enforces its supervisory control and demonstrates that sport governing bodies are not immune to judicial intervention on checks and balances.

As a conclusion, it is submitted that the CAS decision on the Valieva matter is a clear indication of the CAS’s ability to apply general principles of law in anti-doping disputes, and demonstrates that CAS will always act as a ruler against those who rule individual sports. More importantly, CAS sends the message that innocent athletes and their rights will be protected, and that sport governing bodies need to ensure they set the example in applying the same high standards they require from their athletes.

• This article was originally published via LinkedIn on 22 February 2022. Click here for the original.