SII Focus 4th January 2019

WADA’s Seychelles ExCo minutes show pressure was put on Scott

The minutes from the World Anti-Doping Agency’s (WADA) 20 September Executive Committee meeting show that two of its members were forced to intervene after pressure was put on Beckie Scott, Chairman of its Athlete Committee, by the Olympic Movement. WADA yesterday announced that Covington & Burling LLP has been appointed to conduct an ‘external, independent review’ of allegations concerning bullying and harassment. The allegations stemmed from Scott’s claims that she was treated with disrespect at the 20 September meeting in the Seychelles, after which WADA voted to conditionally reinstate the Russian Anti-Doping Agency (RUSADA).

Covington & Burling LLP has previously advised WADA on whether its Anti-Doping Administration and Management System (ADAMS) was compatible with European data protection legislation. It is understood that since 2009, the legal firm has continued to advise WADA on legal issues, specifically privacy and data protection. A Covington & Burling LLP Partner spoke about this issue at the 2016, 2017 and 2018 editions of WADA’s 2018 Annual Symposium.

In October last year, Scott told the BBC that members of the Olympic Movement who sit on WADA’s Executive Committee had made “comments and gestures that were inappropriate and indicative of a general attitude of dismissal and belittling of the athlete voice at the table” at the 20 September meeting. She said that such Executive Committee members had tried to bully her over the decision through comments and gestures. “There was laughter when I read the list of athlete committees who had produced statements and who were confronting this decision”, she said. 

Pressure put on Beckie Scott

The minutes from the 20 September meeting (PDF below) show that Linda Helleland and Ed Moses, Vice President of WADA and Chair of WADA’s Education Committee respectively, were forced to step in after pressure was put on Scott by two members of the Olympic Movement. Scott spoke after a post-lunch vote had been taken by Executive Committee members on whether a proposal for RUSADA’s conditional reinstatement, put forward by WADA’s Compliance Review Committee (CRC), had been accepted.

Scott outlined her disappointment that WADA had not engaged with its Athlete Committee about a decision not to host an Athlete Forum, as in previous years. She outlined that the Forum had attracted ‘a fair amount of criticism from the IOC Athletes Commission in particular, together with their colleagues from continental athlete commissions […] the bulk had been about the way in which the invitations had been managed and the diversity of speakers and panellists.’

According to the meeting minutes, Scott added that it had become a ‘fairly predictable pattern’ for the International Olympic Committee’s (IOC) Athletes Commission to ‘attack the WADA Athlete Committee and seek to undermine and discredit it’, stating that this had been going on for about two years. She said that she had ‘lost her patience’ with this and had asked WADA management to intervene, concluding ‘what was the end goal with all of this?’ She said that it had got to the point where she thought that the IOC Athlete Commission members on the WADA Athletes Committee ‘were there not to contribute and collaborate, but ore to compromise and impede the goals and objectives of the Athlete Committee’.

IOC Member Patrick Baumann added that there was a perception, which he added was ‘probably wrong’, that the WADA Athletes Committee ‘had been used to create a certain atmosphere […] which was mainly negative towards the sports movement in general and those with functions in the sports movement’, adding that he did not feel ‘comfortable’ with this. 

IOC Member Francesco Ricci Bitti added that he was surprised about Scott’s ‘victim attitude’, stating that he thought that the Athletes Forum had become a ‘platform to promote some position’ in relation to the Russian situation. He also added that he was concerned about the WADA Anti-Doping Charter of Athlete Rights, as it was a ‘principle based’ document, and WADA didn’t need such documents. According to the minutes, he assured Scott that the Olympic movement, through its athletes, would ‘keep an eye’ on this area, as they ‘did not want another promotional document’, adding that ‘the athletes played a good role but had to keep their place, as did everybody’.

At this point, according to the meeting minutes, WADA Vice President Linda Helleland asked WADA President Sir Craig Reedie, who had attended the WADA Athletes Forum, to give his view. Reedie replied that he had only attended the Forum for two hours on the first morning, adding that it was important that the IOC picked up on the work being done by WADA in drawing up its Anti-Doping Charter of Athlete Rights.

Ed Moses, the Chair of the WADA Education Committee who alleged that he was told to ‘shut up’ at WADA’s May 2018 Foundation Board meeting (which WADA denied), said that he ‘took offence’ to the ‘passive aggressive behaviour’ displayed, according to the meeting minutes. ‘His observation was that he had heard the IOC Athletes Commission member saying how she had not meant to beat up on Ms Scott and that she was really sorry and everything, then he had heard Mr Baumann saying that he did not understand why the WADA Athlete Committee even existed, and why it should simply duplicate what the IOC was doing, and then he had heard Mr Ricci Bitti claiming that Ms Scott was playing the victim, and he thought it was a very high-level and sophisticated game of passive-aggressive behaviour, and they were taking it out on Ms Scott, and he did not appreciate it at all’, reads the minutes. ‘Furthermore, he had not appreciated the comments made at the previous Executive Committee meeting regarding himself and Ms Scott, in terms of them being unable to have a position on the floor. They did not even have a vote, and he thought that it was a real tragedy that Ms Scott did not have a vote as a member of that body and the Athlete Committee. It made no sense to him why she did not have a vote on all matters, so he was just as upset as Ms Scott. It was a very personal and emotional scenario that they had gone through that day. He would say one thing: he could assure the members that Ms Scott represented more athletes around the world in her position than the IOC Athletes Commission.’

Rationale for RUSDA’s conditional reinstatement

A vote on whether WADA should postpone its vote on whether the Russian Anti-Doping Agency (RUSADA) should be conditionally reinstated was narrowly lost (six votes to five) at the 20 September meeting. The meeting minutes reveal that a subsequent vote on whether WADA should conditionally reinstate RUSADA on the terms outlined by Jonathan Taylor, Chair of its Compliance Review Committee (CRC), was taken directly after lunch. Nine Executive Committee members voted in favour of accepting Taylor’s proposal, two against and one abstention. 

Taylor also outlined his rationale that through a letter accepting the Decision of the IOC Board on 5 December that was based on the findings of the Schmid Report, Russia’s Minister of Sport, Pavel Kolobkov, had accepted that the Ministry of Sport was involved in systemic Russian doping. ‘The Schmid report found that the institutional scheme, the disappearing positive methodology and the tampering with samples, in particular in Sochi, had happened as described in the McLaren report’, said Taylor in the published Executive Committee meeting minutes. ‘Its other key finding was that Ministry of Sport officials had been involved, and it was said that they did not know how far up it went, but it went up at least as far as the vice-minister. Those were significant findings, so by accepting the Schmid report the Russian Federation effectively accepted the McLaren findings, including not only that the doping scheme existed but also that Ministry of Sport officials were involved in the scheme. That was a significant acknowledgement in the judgement of the Compliance Review Committee, and its recommendation was that it be accepted as meeting the outstanding condition of acknowledgement of the McLaren findings.’

On page 30 of the meeting minutes, Taylor admits he had heard that Russia could have difficulties in providing the data required by WADA due to the Russian procedural code. He outlined that Kolobkov had made a ‘specific commitment to provide, as soon as possible to an independent expert agreeable to WADA and the Investigative Committee, access to the analytical equipment to retrieve, under the supervision of the Investigative Committee […] an authentic copy of the LIMS data and the raw analytical data’.

On 21 December, WADA announced that its five person team was returning 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.

However, a WADA statement following the 28 November meeting acknowledged that ‘outstanding points’ needed clarification before its team could leave for Moscow. However WADA declined to comment when asked what these ‘outstanding points’ were. 

‘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’.

“Russia is ready to provide a copy fo the database in accordance with the legislation of the Russian Federation”, Kolobkov 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.”

Taylor’s update shows that WADA had agreed with Russia that an independent expert could have access to the analytical equipment needed to retrieve the data, not that WADA’s team could use its own equipment to extract the data, as WADA’s statement explained that it attempted to do. Could it be that WADA went beyond the remit agreed with Russia at the 28 November meeting?

Show trial?

Considering WADA’s claims that an ‘external, independent review’ of allegations concerning bullying and harassment would be undertaken, it is not hard to see how appointing a law firm with which it has had a relationship stretching back almost ten years might be considered a poor choice. Scott raised the issue in an interview with BBC reporter Dan Roan, having already raised her concerns with WADA leadership – concerns she felt were brushed aside.

“So, members of the Olympic Movement, in the form of an Executive Committee meeting, said things that were designed to denigrate, intimidate, dismiss…” asked Roan in an interview with Scott (see video below), at which point she interjects “bully”. Roan responds “Bully. They tried to bully you”. “Yeah”, replies Scott. Had Scott not raised the issue with Roan, it is debatable whether WADA would have launched any investigation into her claims.

Scott claims that there was laughter when she read out the list of eight athlete committees that disagreed with the WADA CRC’s recommendation to reinstate RUSADA (page 33 of the minutes). Although such behaviour is perhaps unacceptable, there is no law against laughter. Although the Executive Committee meeting minutes do appear to suggest a coordinated attack on Scott, it is hard to see how Covington & Burling would formulate this into serious charges.

As previously mentioned, WADA has also denied that Ed Moses was told to ‘shut up’ at its May Foundation Board meeting. However, as every conference delegate knows, important discussions and debates often take place around the lunch table or in the bar, precisely because delegates are free to express their true opinions as comments are not recorded.

An external firm appointed by WADA has already conducted two external reviews into the claims made by Scott and Moses, and an initial report has concluded that bullying did not take place. ‘While the initial findings did not conclude that alleged bullying had taken place, the ExCo agreed that given the seriousness of the allegations, a second phase should take place to allow the many people present at the September meeting to be interviewed so that the matter could be concluded satisfactorily’, announced WADA in November. ‘This will now be conducted by the same external firm and a further report will be presented to the ExCo at the next opportunity’. 

Covington & Burling LLP has been appointed to investigate behaviour termed as ‘bullying’. If its remit is wide enough, it might also wish to consider the WADA Executive Committee’s voting process. A narrowly-lost six to five vote not to postpone a vote on RUSADA’s reinstatement before lunch morphed into nine in favour of RUSADA reinstatement, two against and one abstention, after lunch. Why delay the vote until directly after lunch – why not hold a show of hands before lunch, directly after all of the relevant information had been outlined by Taylor?

The Seychelles meeting minutes are illustrative in illuminating WADA’s concerns about how its actions will be perceived. One of the first points raised is by IOC Member Baumann, who suggests that whoever leaked the letters between Reedie and Kolobkov should be dismissed immediately by WADA. IOC Member Ricci Bitti adds that an investigation should be undertaken into the source of the leak.

Seven pages of the minutes are spent discussing a memorandum of understanding (MoU) with the International Centre for Sport Security (ICSS), which WADA agreed without consultation, but later abandoned after concerns were raised about its connections to the Qatar government. ‘The ICSS was funded with the support of the Qatar Government, a start-up support fund for sport safety and the organisation would be reimbursed for all its activities at the end of the year by the Government of Qatar’, pointed out Gunter Younger, WADA’s Intelligence and Investigations Director, according to the minutes. A link to a joint announcement about the MoU now reads ‘Access Denied’ on the WADA internet site.

All of the above shows that WADA is – perhaps rightly – concerned about the public image it portrays. Whether the appointment of Covington & Burling LLP is a move towards a serious investigation into the allegations made by Scott and Moses, or an attempt to protect that public image, remains to be seen.

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