The World Anti-Doping Agency (WADA) updated its Prohibited Association List on 10 April to include Dr. Sergei Portugalov, Vladimir Kazarin, Alex Melnikov and Vladimir Mokhnev, 17 months after such action was recommended by the first WADA Independent Commission (IC) Report in November 2015. The List was updated after The Sports Integrity Initiative pointed out that WADA had failed to add the names of Dr. Grigory Rodchenkov, Portugalov, Kazarin, Melnikov and Mokhnev.

Dr. Rodchenkov was the head of the Moscow and Sochi 2014 laboratories and Dr. Portugalov was chief of the Russian Athletics Federation (RusAF) Medical Commission. Both were implicated in the WADA IC Report as covering up positive tests in exchange for money.

Kazarin was the Russian national team 800m coach and was implicated in the first IC Report as supplying prohibited substances to athletes. Melnikov was a senior endurance coach and was implicated in the IC Report as arranging a ‘covert doping program’ for athletes, and was alleged to have extorted money from athletes in return of covering up positive tests. Mokhnev was a RusAF coach, found to have provided prohibited substances to Yuliya Stepanova by the IC Report.

The IC Report’s recommendation was: ‘That WADA add the names of Grigory Rodchenkov and Sergei Portugalov and coaches Viktor Mikhailovich Chegin, Vladimir Kazarin, Aleksey Melnikov and Valdimir Mokhnev, to its Prohibited Association List’. The last version of the Prohibited Association List, published on 11 November 2016 and featured below, only included Chegin’s name. At that point, only Chegin had been sanctioned with an ADRV under International Association of Athletics Federations (IAAF) rules.

WADA said that the Prohibited Association List had not been updated because a confirmed anti-doping rule violation (ADRV) was required before Athlete Support Personnel (ASP) – to use the technical term – could be added. ‘The Commission’s recommendations were unenforceable as only Athlete Support Personnel sanctioned by a final decision (and notified to WADA) are included on the List’, wrote a WADA spokesperson in an email.

Indeed, the Prohibited Association List’s opening Disclaimer reads: ‘The Prohibited Association List includes the name, nationality and end date of the disqualifying status of Athlete Support Personnel who have committed anti-doping rule violations’. However, Article 2.10.2 of the World Anti-Doping Code is specifically designed to allow WADA to prohibit association with individuals that are ‘not subject to the authority of an anti-doping organization’ and have ‘been convicted or found in a criminal, disciplinary or professional proceeding to have engaged in conduct which would have constituted a violation of anti-doping rules if Code-compliant rules had been applicable to such Person’.

Regulatory lacuna

Perhaps not the most snappy subhead, but it does describe what appears to have occurred here. Article 2.10.2 of the World Anti-Doping Code does allow WADA to prohibit association with people that would have committed an ADRV, had they been subject to the Code. However, as its opening Disclaimer outlines, the Prohibited Association List only allows the inclusion of those who have been notified to WADA as having committed an ADRV.

WADA’s position is that it could not have included Rodchenkov, Portugalov, Chegin, Kazarin, Melnikov and Mokhnev on the Prohibited List until it was confirmed that they had committed ADRVs. However, this position is an admission that its IC, chaired by WADA’s founding President Dick Pound, made a recommendation which WADA could not enforce. As such, according to information sent by WADA:

• Viktor Chegin was added to the List on 11 November 2016, after the Russian Anti-Doping Agency’s (RUSADA) Appeal Body delivered a final decision on 17 October 2016.
• On 10 April, Sergei Portugalov was added to the List, after the Court of Arbitration for Sport (CAS) delivered a final decision on 13 March 2017;
• On 10 April, Vladimir Kazarin was added to the List, after the CAS delivered a final decision on 7 April 2017;
• On 10 April, Alexey Melnikov was added to the List, after the CAS delivered a final decision on 7 April 2017;
• On 10 April, Vladimir Mokhnev was added to the List, after the CAS delivered a final decision on 23 December 2016.
• Dr. Grigory Rodchenkov has not been added to the List, as WADA has no information regarding any decision against him.

WADA also confirmed that it will update the Prohibited Association List at more regular intervals. The Disclaimer on the updated List promises updates on 10 April, 10 July, 10 October and 10 January each year (i.e. every three months).

‘It should be noted, as is clear by the disclaimer that accompanies the List, that it is for general information purposes only’, wrote a WADA spokesperson. ‘It is established based on decisions and information that is received by WADA from its stakeholders. Consequently, WADA makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, or reliability of the List, which is provided “as is”.’

Implications

The logic behind the wording of Article 2.10.2 of the Code is that action can be taken against athletes or sporting bodies that associate with doctors, trainers or coaches who have been accused of being involved with doping, but do not fall under the jurisdiction of the World Anti-Doping Code, so cannot be issued with an ADRV. The strict wording of the Disclaimer on the Prohibited Association List negates the effectiveness of this provision, by narrowing the List’s scope to only those who fall under the Code’s jurisdiction and have been judged to have committed an ADRV.

One of the major accusations made by ARD was that banned coaches were still working with elite athletes in Russia. This included footage of Kazarin working with elite Russian athletes under the jurisdiction of RusAF, filmed in January this year; footage of Chegin training race walkers filed in April last year; and footage of Mokhnev working with athletes filmed in March 2016. RusAF said at the time that the coaches had been provisionally suspended.

Under the World Anti-Doping Code, a provisionally suspended person is barred from participating in any competition or activity prior to a final decision on their suspension. ‘Provisional Suspension means the athlete or other Person is barred temporarily from participating in any Competition or activity prior to the final decision at a hearing’, reads ‘Consequences of Anti-Doping Rule Violations’ on page 133.

While it is clear that by working with Russian athletes Kazarin and Chegin would have breached any provisional suspension imposed by RusAF, the rules regarding the two doctors are less clear. WADA has previously confirmed via email that Dr. Portugalov was provisionally suspended by the IAAF on 24 August 2015, however it appears that there is no record of that suspension on the IAAF or RusAF internet sites.

Dr. Rodchenkov resigned as Director of the Moscow laboratory following WADA’s suspension of its accreditation on 10 November 2015. ‘WADA has no information regarding a decision for Dr. Grigory Rodchenkov’, wrote a WADA spokesperson. It also appears that there is no record of any provisional suspension imposed by RusAF or the IAAF. As he did not work directly with athletes, he may have fallen outside of their jurisdiction.

The full reasoning behind the recent CAS decision to ban Dr. Portugalov for life has not yet been published. ARD recently alleged that he had continued to work with Russian ice hockey players despite his provisional suspension. This would be a breach of the provisions within the Code preventing him from ‘participating in any Competition or activity’ whilst provisionally suspended. However had he been included on the Prohibited Association List, as recommended by WADA’s IC, then action could also have been taken against any athletes and sporting bodies that were proven to have associated with him. This opportunity appears to have been lost.

As no provisional suspension appears to have been issued in relation to Rodchenkov, any action against athletes and sports that were to associate with him could also prove problematic. Again, this potential issue could have been avoided if his name had been added to the Prohibited Association List, as WADA’s IC recommended.

WADA failures

WADA’s argument that it could not include the five Russians illustrates how the body has become bogged down in its own regulations and rules. Yes, it is correct that the Disclaimer on the Prohibited Association List states that only people who are judged to have committed an ADRV can be included on the List. However, its founding President, Dick Pound, chaired the Independent Commission that recommended the inclusion of all five Russians on that List.

Article 2.10.2 of the Code, which allows WADA to prohibit association with people not subject to the jurisdiction of the Code, would appear to support any change to the Prohibited Association List Disclaimer to allow the inclusion of the five Russians. On a recommendation made by its own Independent Commission chaired by its Founding President, WADA has failed to update the Disclaimer on the Prohibited Association List to include people which the World Anti-Doping Code says it can include. That perhaps says a lot about the organisation.

The Sports Integrity Initiative has previously pointed out WADA’s failure to examine its own failings in dealing with the situation in Russia. These are as follows:

• Failing to follow up on whistleblower evidence submitted by Vitaly Stepanov in 2010 about attempts by Russian officials to extort money from athletes in return for covering up positive doping tests (WADA has acknowledged receiving such evidence).
• Failing to follow up on whistleblower evidence submitted by Darya Pishchalnikova in 2012 about attempts by Russian officials to extort money from athletes in return for covering up positive doping tests.
• Failing to follow up on similar evidence reported in a newspaper exposé in July 2013.
• Failing to investigate why Russia – the host country of the Sochi 2014 Winter Olympics – didn’t report a single adverse analytical finding (AAF).
• Failing to follow up on its own Independent Observer Report for the Sochi 2014 Olympics, which outlined interference in the anti-doping laboratory.
• Failing to add Dr. Grigory Rodchenkov, Dr. Sergei Portugalov, Vladimir Kazarin, Aleksey Melnikov or Vladimir Mokhnev to WADA’s Prohibited Association List, which was one of the key recommendations of the first IC Report.
• WADA wrote to Dr. Grigory Rodchenkov, Director of the Sochi 2014 laboratory, informing him that a ‘surprise’ inspection was due to take place (p42 of the WADA IP Report). This resulted in the destruction of 1,417 samples (Russia claims 1,437 samples were destroyed).