Demonising Justin Gatlin
13th September 2015
* The World Anti-Doping Agency (WADA) describes the ONDCP Report as ‘inaccurate and misleading’, arguing that there is a ‘clear intention to discredit WADA’. To view its full response, click here.
The Office of National Drug Control Policy (ONDCP) recommends that the US consider withholding funding from the World Anti-Doping Agency (WADA) due to its failure to reform, following criticism that its governance structure was ill-equipped to deal with the Russian State doping scandal. The ONDCP Report to Congress on WADA’s reform efforts (PDF below) marks a further escalation in tension between US authorities and WADA following its September 2018 Decision to reinstate the Russian Anti-Doping Agency (RUSADA) as compliant with the World Anti-Doping Code, despite WADA’s original requirements for reinstatement not being met.
‘ONDCP recommends that Congress provide ONDCP with discretion in paying annual WADA membership dues’, reads the Conclusion to the above Report. ‘ONDCP should have the explicit authority to withhold and/or decrease funding if WADA fails to meet basic standards for effectiveness, independence, transparency, and responsiveness to the athlete voice, and fails to promote US representation commensurate with the United States’ financial contribution to WADA’.
Not only does the Report find that WADA has failed to meet the standards outlined above, it also finds that Article 11 of the International Convention against Doping in Sport permits the US – and other government authorities – to withhold WADA funding. Governments agree WADA’s funding and pay 50% of it, which is then matched by the International Olympic Committee (IOC). As the US government provides the largest contribution to WADA’s funding at US$2.7 million (2020 figures), the Report estimates that withdrawal could cost WADA $5.4 million (due to the IOC withdrawing its matched contribution) of its $37.4 million budget.
The ONDCP Report is especially critical of governance reforms outlined by WADA in 2018 and described as ‘wide ranging’. The suggested reforms were drawn up following criticism over WADA’s handing of the Russia situation, and following criticism of its response to allegations of bullying. The ONDCP Report outlines that of these suggestions for reform, only a recommendation to pay the WADA President has been introduced.
WADA’s proposed reforms included:
• An independent President and Vice-President, with a remuneration associated with the role of the President;
• Formation of a Nominations Committee to ensure the right people in terms of skills and independence serve in senior governance roles within WADA;
• The addition of two independent seats – with full voting rights – to the ExCo. Nominations for these positions could be proposed by the Sports Movement and the Governments but the candidates should have no link to either group in accordance with the strict criteria that will be vetted by the Nominations Committee;
• A limit of three three-year terms (nine years in total) for all members of the Board, ExCo and the Standing Committees with no possibility of stepping out for a term and returning;
• Formation of an Independent Ethics Board to ensure compliance with the standards of conduct required for good governance; and
• One seat each at a minimum for both athlete and NADO representation in all Standing Committees.
The ONDCP found that WADA now requires nominees for independent positions to be endorsed by both the sport and government representatives that fund WADA, therefore giving both a veto for any independent candidate they do not agree with. ‘Therefore, outside establishing the Nominations Committee, the only “reform” proposed in 2018 that appears to have been fully implemented to date is the proposal to pay the WADA President an annual stipend, and this has been supplemented through including a stipend for the WADA Vice President as well’, reads the Report.
Witold Bańka, WADA’s new President, is a former elite runner and Poland’s former Minister for Sport and Tourism, so cannot be considered independent. Its new Vice President, Yang Yang, is a double Olympic Gold medalist in short track speed skating. As such, neither is truly independent as WADA promised.
The ONDCP Report is also critical of WADA’s Foundation Board and Executive Committee for lack of diversity in representing its funders. It is also critical of the IOC’s dominance of WADA’s governance structures.
Although WADA’s Foundation Board consists of 19 government and 19 sport representatives, government representatives are heavily weighted in favour of Europe (see right). Eighteen of the 19 sport representatives have leadership positions in the IOC, which has ‘effective control’ over the selection of 50% of the representatives. The US has a single representative on the Foundation Board, despite contributing 14.5% of WADA’s 2020 budget.
In terms of the 12 person Executive Committee, the ONDCP found that it was even more undemocratic than the Foundation Board. It includes the WADA President and Vice President, seven members from Europe, and none from North America. Four IOC Members sit on the Executive Committee; three international federation Presidents and one President of a National Olympic Committee (NOC).
The Report was also critical of the fact that there are no WADA Athlete Committee members on the Foundation Board or the Executive Committee, but four members of the IOC’s Athlete Commission sit on the Foundation Board. One of these is an Executive Committee member.
‘The United States’ disproportionate lack of representation within WADA governance is not offset through inclusion of a U.S. perspective in other areas of WADA’s governance’, reads the Report. ‘For example, WADA’s 17 member senior management team includes no one from the United States. Similarly, none of the 12 members of the important WADA Athletes Committee are from the United States.’
The Report is critical of WADA’s failure to record how people voted at Foundation Board and Executive Committee meetings. In one case, this led to a member voting against the reinstatement of RUSADA specifically requesting that their vote was recorded in the meeting minutes (see right).
In addition, the ONDCP found that the Terms of Reference for the Compliance Review Committee (CRC) prevent recommendations regarding decisions on signatory compliance with the World Anti-Doping Code made to the Executive Committee from becoming public prior to an Executive Committee meeting. The ONDCP argues that this prevents the Executive Committee from considering any alternative to the CRC’s recommendation.
The ONDCP Report found that WADA may have suspected what was going on in Russia in 2008; it was told about what was going on in 2010; and its anti-doping rule violation (ADRV) figures illustrated a problem from 2013, the first year in which WADA published its ADRV Report. Jack Robertson, WADA’s former Chief Investigator, said that he was forced to leak information to the media in order to force WADA to act over Russian doping, after it ignored a 2013 exposé by the Mail on Sunday.
It appears that RUSADA was manipulating its testing figures prior to 2010. A blood database obtained and analysed by journalist Hajo Seppelt dated back to 2001 and allegedly revealed widespread doping across sport. A 2011 study published on the World Athletics internet site, involving analysis of samples taken back in 2001, reveals (Table 2, right) that certain countries may have had an issue with doping. Yet it appears that nobody investigated until a December 2014 documentary.
Yet despite the significant evidence outlined above, Sir Craig Reedie – former President of WADA – told the UK Parliament’s CMS Committee that he first became aware of the allegations in December 2014, as did World Athletics President Sebastian Coe. This is despite a 2008 investigation by World Athletics – then the IAAF – finding that seven Russian athletes had substituted urine. Coe was Vice President of World Athletics from 2007 until 2015, when he was elected as President.
As outlined in this article, WADA compromised to reaccredit RUSADA in order to retrieve the Moscow Laboratory Information Management System (LIMS) and the samples that had been held under the protection of the Investigative Committee of the Russian Federation (SKR or Sledcom) since 2016. In November last year, it found that the Moscow LIMS had been manipulated. WADA suspended RUSADA as complaint with the World Anti-Doping Code for a four year period, but Russian athletes remain permitted to compete at international events as neutrals.
‘The Russia doping scandal, which has been lingering for more than a decade since Russian whistleblowers brought evidence of state sponsored doping to WADA in 2010, still remains unresolved’, reads the ONDCP Report. ‘The Russian doping scandal thus continues to demonstrate inadequacies in WADA’s independence and capacity to firmly, effectively, and in a timely manner enforce compliance with the Code, hold major countries accountable under the rules and uphold the expectations of clean athletes’.
WADA has yet to respond to the ONDCP Report. Rightly or wrongly, there has been a perception within the Agency that it is caught in the middle of a ‘cold war’ between Russia and the US. The latest battlefield is the Rodchenkov Anti-Doping Act (RADA), which is designed to protect US athletes from doping conspiracies and as such, has extra-territorial jurisdiction.
‘The White House deserves applause for this rigorous report that quantifies the deep problems with international sports governance that make the Rodchenkov Anti-Doping Act a necessity’, read a statement from Jim Walden, lawyer to Dr. Grigory Rodchenkov, former Director of the Moscow Laboratory turned whistleblower. ‘This report reveals that WADA is at a minimum incompetent when dealing with serious, endemic corruption, and that it disregards even its own investigators to protect its bottom line. The Executive and Legislative branches are clearly of one voice on this issue. This desperately needed legislation will finally give the Department of Justice the license to do the job of protecting clean athletes and U.S. interests that WADA has failed at for decades.’
As emphasised by the ONDCP Report, supporters of RADA argue that WADA isn’t doing its job, which is why the Act is needed. Critics of RADA argue that the Act would upend the entire anti-doping system. There are legitimate arguments to both viewpoints, as outlined in this article.
Many have known about the serious deficiencies highlighted in the ONDCP Report for years, but nothing was done. European trials involving former World Athletics President Lamine Diack and former FIFA Executives rumble on, whilst the US law enforcement system has produced real results, such as jailing former FIFA executives and indicting agents of the Russian State for hacking into the world’s anti-doping organisations. It isn’t difficult to see why many feel a sense of frustration.
WADA now faces the difficult task of defending the anti-doping system it has created without being seen to ‘attack’ its critics for suggesting change. A previous attack on suggestions for reform led to speculation that the US may reconsider its funding. That has now happened, and the danger for WADA is that other countries may follow suit.
Jim Walden, Managing Partner at Walden, Macht & Haran LLP and Attorney for Dr. Grigory...
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