9th January 2019

WADA denies ‘moving the goalposts’ on access to Moscow Lab data

The World Anti-Doping Agency’s (WADA) Compliance Review Committee (CRC) has denied changing its June 2018 requirements regarding access to the data held at the Moscow Laboratory, thereby enabling the Russian Anti-Doping Agency’s (RUSADA) reinstatement on 20 September last year. However Jonathan Taylor, the CRC’s Chair, admitted that it backed down on its June 2018 requirement for the Russian authorities to acknowledge, in writing, that Ministry of Sport officials were involved in manipulating the doping control process within Russia.

‘We didn’t “secretly move the goalposts”’, writes Taylor in a Letter of Response to Swedish biathlete Sebastian Samuelsson, who has been calling for the CRC to call a meeting to immediately re-suspend RUSADA. ‘We did in September exactly what we had said in June (unanimously) that we would do’. 

Pavel Kolobkov

On 19 June, the CRC’s recommendation was that RUSADA could not be reinstated until: 

• the Russian authorities acknowledge, in writing, that Ministry of Sport officials were involved in manipulating the doping control process; and
• WADA had written to Russia’s Minister of Sport, Pavel Kolobkov, outlining what data and samples it needed access to and why, plus conditions for joint access alongside the Investigative Committee of the Russian Federation (SKR or Sledcom). 

Richard McLaren

These recommendations were designed to resolve the two outstanding conditions in WADA’s Roadmap to Compliance that the CRC required RUSADA to fulfil before it could be reinstated. They were that:

• Russian authorities must publicly accept the reported outcomes of Richard McLaren’s investigations for WADA into Russian doping; and
• access for ‘appropriate entities’ to the stored urine samples in the Moscow Laboratory must be granted.

‘In the letter, I was referring to the data condition rather than the McLaren condition’, clarified Taylor in an email. Ahead of the next CRC meeting on 21 August, WADA did write to Kolobkov setting out what it required regarding access to the data held by the Moscow Laboratory, as suggested. ‘If the CRC is advised at its meeting on 21 August 2018 that the Investigative Committee has met that request, or at least has committed unconditionally to do so by a specific date in 2018, it would likely consider this last condition satisfied as well, and therefore […] the CRC would be in a position to recommend immediate reinstatement of RUSADA for consideration by the WADA Executive Committee at its September 2018 meeting’, recommended the CRC in June 2018 (PDF below).

However, as mentioned, the CRC also recommended that Russian authorities must acknowledge in writing that Ministry of Sport officials were involved in manipulating the doping control process. ‘Since the Russian authorities apparently accept the Schmid Commission’s findings, they should therefore be able to acknowledge specifically the finding at page 25, paragraph 7 of the Schmid Commission’s report that “a number of individuals within the Ministry of Sport and its subordinated entities” were involved in the “manipulations” they refer to in their letter of 14 May’, reads the CRC’s recommendation. ‘If they were to do so, in writing, then the CRC would recommend that this condition be considered satisfied’.

RUSADA was reinstated on 20 September. WADA decided that a letter from Kolobkov stating that: ‘The Russian Federation fully accepted the decision of the IOC Executive Board of December 5, 2017 that was made based on the findings of the Schmid Report’ amounted to ‘acceptance of all of the findings of the International Olympic Committee (IOC) Schmid Report (which itself endorsed the core findings of the WADA-commissioned McLaren Investigation reports), including that “a number of individuals within the Ministry of Sport and its subordinated entities” were involved in the manipulations of the anti-doping system in Russia’.

Taken at face value, Kolobkov’s statement only accepts the IOC decision of 5 December 2017, which was to suspend the Russian Olympic Committee (ROC) and to allow certain athletes to compete in PyeongChang 2018 under the Olympic flag. Kolobkov didn’t acknowledge Russia’s acceptance of the Schmid Report, only that Russia accepts the IOC’s decision to suspend the ROC based on the findings of the Report.

In other words, Russia didn’t fulfil the condition outlined by the CRC in its 19 June recommendation. ‘On the McLaren condition, your point is a fair one’, wrote Taylor in response, when questioned on this. ‘The bottom line is that with Richard McLaren having responded to the Schmid Report and the IOC Decision based on it by saying “I congratulate the IOC in its decision. It confirms my findings in the investigation that I conducted for WADA,” there was a strong sentiment that the Russian acknowledgement of the IOC decision based on the Schmid Report was enough, and we could not hold out for more.’

The Minutes of WADA’s 20 September Executive Committee meeting (PDF below) reveal that at its 21 August meeting, the CRC considered that a 13 August Reply to a 22 June Letter from WADA did nothing to meet either remaining condition. Yet late in the day on 13 September, when the CRC was also holding a teleconference ahead of the WADA Executive Committee meeting, the CRC received Kolobkov’s Letter, after which it made its recommendation to reinstate RUSADA a day later.

Deadline

In the Minutes of the 20 September meeting, Taylor also outlines the CRC’s rationale for recommending that RUSDA be reinstated after receiving the 13 September letter, on the condition that: 

• Russia provides access to the Moscow Laboratory Information Management System (LIMS) and underlying analytical data required by WADA by a set date, later set at 31 December; and
• RUSADA and the Russian Ministry of Sport procures that any re-testing of samples required by WADA following access to such data is completed six months later (later set at 30 June 2019).

‘The commitment was not unconditional; it was subject to the consent of the Investigative Committee, and to the Compliance Review Committee that conditionality was not acceptable’, explains Taylor in the Minutes. ‘The Minister also said that access would be given as soon as possible, but with no specific date or deadline, which the Committee also regarded as unacceptable […] The analysis of the Compliance Review Committee had been set out in a letter that was before the members dated 14 September, explaining why the Compliance Review Committee considered the letter from Minister Kolobkov to be important, to contain useful commitments, but also explaining that the conditionality in the commitments was not acceptable. The Committee was therefore recommending that RUSADA be reinstated but subject to the two conditions set out in the letter, which were a crucial part of the recommendation.’

The meeting Minutes note that while Taylor respected Beckie Scott’s disagreement with the CRC’s recommendation to conditionally reinstate RUSADA, he felt conditional reinstatement was the best way in which to obtain the data that WADA required. Scott had initially supported the CRC’s June recommendation, which was unanimous, but later told the BBC that she changed her mind once she understood the ramifications of the decision. As such, the 14 September recommendation was a majority recommendation rather than a unanimous one, due to Scott’s dissenting view. She later resigned her position on the CRC in protest.

‘The only issue was whether the Compliance Review Committee should say that the authorities must give WADA the data before reinstatement, or whether WADA should say that Russia could be reinstated subject to a condition to provide the data’, outlines Taylor in the Minutes. ‘In his view, reinstatement subject to the conditions specified by the CRC would put WADA in a stronger position to demand and require and achieve access to the data and the samples, which was what everybody wanted, because RUSADA would then come under the new compliance regime, set out in the ISCCS and related changes to the Code. But this would only work if reinstatement was done on the very clear basis that the data had to be provided by a date certain, with no conditions, no excuses.’

However on New Year’s Day, WADA confirmed that Russia had missed the 31 December deadline set by WADA. On 21 December, WADA announced that its five person team was retuning from Moscow as the equipment it planned to use to extract and export the Laboratory data outside of Russia required certification from the Russian authorities. ‘This issue had not been raised during an initial meeting on 28 November in Moscow’, read WADA’s statement. 

A WADA statement following the 28 November meeting outlined that ‘outstanding points’ needed clarification before its five person team could leave for Moscow. In December, WADA declined to answer questions from The Sports Integrity Initiative about these points. ‘We have communicated the exact situation in this regard to the Russian authorities’, wrote a WADA spokesperson in an email. ‘They are aware of our position and hopefully will respond very shortly’.

On 26 December, Kolobkov suggested that WADA’s team went beyond the remit agreed at that 28 November meeting. “Russia is ready to provide a copy fo the database in accordance with the legislation of the Russian Federation”, he told Russia24 in an interview published on the RusAF internet site. “It remains for us to agree on some of the technical details, including the use of specific equipment. When the experts came, they showed us all of the equipment, offered to copy the database and even take it. In fact, this unique situation did not exist before – the investigative committee took unprecedented measures. So now we interact with WADA and I am sure that we will find common ground and adopt solutions that meet the Russian legislative requirements and satisfy WADA, as that is in all of our interests.” 

Data extraction

Dr. Grigory Rodchenkov

A three person WADA team arrives in Moscow today to retrieve the data it requires, access to which has been refused by the Investigative Committee of the Russian Federation (SKR or Sledcom) since it launched an investigation into Russian doping in June 2016. WADA already has a copy of the LIMS database, which it was given by Dr. Grigory Rodchenkov in November 2017. The SKR has claimed that WADA’s copy of the LIMS database may be unreliable, arguing that it confiscated the authentic version as part of criminal charges against Dr. Rodchenkov and his former assistant, Tim Sobolevsky.

WADA has already clarified that the aim is not to trust one copy of the LIMS database over the other, but to find information that will help it strengthen anti-doping cases against athletes. ‘Our confidence in the veracity of the LIMS data we already have is very high’, wrote a spokesperson in an email to The Sports Integrity Initiative.

In June 2018, Günter Younger, WADA’s Director of Intelligence and Investigations, told the CRC that WADA’s copy of the LIMS database includes ‘9,453 suspicious findings that were not reported in ADAMS [WADA’s Anti-Doping Administration and Management System], some of which relate to the 2,876 samples still stored at the Moscow Laboratory’. He said that if WADA is given access to the analytical data stored on the hard drives of the Laboratory instruments that generated those findings, his department would be able to conclude whether an athlete has a case to answer or not.

Double standards

As Taylor points out in a previous letter to Samuelsson, the CRC was always scheduled to meet on 14/15 January. ‘Even if we could have met before then, we also wanted to ensure that there was time for a full report to be provided by the WADA compliance team to the CRC, and considered by the CRC in advance of the meeting, setting out the position and explaining the reasons for any non-compliance’, it reads. ‘In addition, in cases of non-compliance, the special fast-track procedure in Article 9.5 of the International Standard for Code Compliance by Signatories (ISCCS), which is what we are following here, requires WADA to give the Russian authorities a fair opportunity to make a submission for the consideration of the CRC before the CRC makes its recommendation to the WADA Executive Committee on compliance and consequences’.

On 1 January, WADA indicated that the CRC would be updated about any progress regarding extraction of the data ahead of its 14/15 January meeting. However, WADA President Sir Craig Reedie later clarified that WADA is “continuing to act on the basis of the 31 December deadline having been missed, with all the consequences that failure could bring. This week’s mission to Moscow is not only about us following due process and precedent. If the mission is successful in acquiring the data, it will break a long impasse and will potentially lead to many cases being actioned. Regardless, in the short-term, the ExCo will be considering whether RUSADA should maintain Code-compliance status alongside anti-doping organisations of other major sporting nations that enjoy the same.”

As the 20 September Executive Committee meeting Minutes outline, Taylor and the CRC were firm that the Russian authorities had to provide the data by the specified deadline ‘with no conditions, no excuses’. It would therefore appear, irrespective of whether WADA manages to receive the data it requires ahead of the 14/15 January meeting, the CRC has little choice but to recommend that RUSADA is re-suspended.

It could be argued that this reduces Russia’s incentive to provide access the access required by WADA. In the 20 September Executive Committee meeting minutes, New Zealand politician Clayton Cosgrove said that he would have preferred to see a ‘trigger mechanism in reverse’, whereby the Executive Committee would consider immediate reinstatement for the then-suspended RUSADA the minute that the Russian authorities supplied the data required by WADA. 

Such an approach would have maintained Russia’s incentive to comply. Why that option was not considered has not been fully explained.

However the final decision on whether RUSADA is re-suspended rests does not rest with the CRC, but with the WADA Executive Committee. Iff Russia does provide WADA with the data it needs, any Executive Committee decision is likely to be based on whether it trusts that such data is both accurate and useful, and whether the usefulness of that data in prosecuting athletes outweighs Russia’s failure to comply with its deadlines for provision of that data. A decision to go against a CRC recommendation to re-suspend RUSADA could be politically disastrous for WADA.

One of the major findings of Richard McLaren was that doping samples had been manipulated by the Russian authorities. Given that the LIMS database and the samples that remain in the Moscow Laboratory have been under the protection of Russian authorities for two and half years, ascertaining whether further manipulation has occurred will be a difficult task for Günter Younger and his team.

Such political manoeuvring illustrates that for WADA, access to data allowing sport to sanction athletes is perhaps more important than holding government officials to account for manipulating the doping control process. It is difficult to imagine WADA allowing the same compromises under the principle of strict liability it applies to athletes accused of doping. That is why Samuelsson and others are angry. To them, it appears that WADA is allowing the real cheats to play the system.

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