WADA v. RUSADA Case Heard in the Court of Arbitration for Sport

The future of Russian sport including hosting competitions and future participation of the Russian athletes in the major sports events depended on the outcome of a case that was pending before the Court of Arbitration for Sport (CAS).

Pre-History of the Case

On 18 November 2015 World Anti-Doping Agency (WADA) suspended the Russian Anti-Doping Agency (RUSADA) and declared it “non-compliant with immediate effect”. Ever since RUSADA has been struggling to meet WADA’s standards for compliance, in particular, providing the access to the relevant Moscow laboratory and giving an authentic copy of the so-called “LIMS data” (laboratory information management system).

In January 2019, the Moscow laboratory provided such data. Almost a year later, on 9 December 2019 WADA voiced its accusations of alteration and manipulating with data of the Moscow laboratory. WADA endorsed the Compliance Review Committee’s recommendation that the RUSADA is non-compliant with the World Anti-Doping Code for 4 years.

Further Development and Suggested Sanctions

WADA sent a formal notice to RUSADA asserting alleged non-compliance with the requirement to provide an authentic copy of the Moscow data. The document also included certain recommendations of strong consequences to remain in effect during the period of 4 years afterwards.

First, it stated, that the Russian Government officials and representatives may not sit as members of any bodies of WADA Code Signatory (or its members) or association of Signatories. Neither may Russian Government officials/representatives attend the Olympic and Paralympic Games, the Youth Olympic Games and any other events of a major organization and any of world championships within the 4-year period.

Moreover, according to these proposed consequences, neither the President, the Secretary-General, the CEO nor any member of the Executive Board/Governing Board of either the Russian Olympic Committee or the Russian Paralympic Committee could attend any major event staged in the same period.

In addition, Russia may not bid for the right to host the 2032 Olympic and Paralympic Games.

A further recommended restriction concerned Russia’s flag, using of which at any major sports event shall be restricted for the same period.

Probably the most strict and crucial suggested restriction concerned the Russian athletes. According to WADA suggestion, they should be able to take part in major events staged in the 4-year period only if they show that they have nothing to do with the alleged alterations and if the database contains no findings against them. The McLaren report (report released in 2016 in two parts by professor Richard McLaren about institutional support of doping in Russia) must not mention these athletes as well. Otherwise, the athletes may not take part in major sports events representing Russia.

RUSADA Reaction

WADA communicated its decision on 5 December 2019 and RUSADA had 21 days to accept the notice.

RUSADA did not accept the conclusions of the WADA Compliance Review Committee the WADA Executive Committee adopted.

RUSADA disputed WADA’s allegation and referred the matter to the Court of Arbitration for Sport (CAS) under the International Standard for Code Compliance by Signatories.

CAS Proceedings

WADA filed a formal notice of dispute with CAS Ordinary Arbitration Division and started the CAS procedure under the WADA International Standard for Code Compliance by Signatories.

According to an official press release, the panel of arbitrators comprised the President of the Panel, Judge Mark L. Williams, S.C. (Australia), the parties appointed Prof. Luigi Fumagalli (Italy) and Dr Hamid G. Gharavi (France / Iran).

As it follows from the official press-release, arbitrators ruled on various requests for intervention: they admitted the International Olympic Committee, International Paralympic Committee, Russian Olympic Committee, Russian Paralympic Committee, International Ice Hockey Federation and various individual Russian athletes as intervening parties. CAS Arbitration Rules explicitly allow such a form of multi-party arbitration.

The hearing did not take place in public because of the absence of an agreement between all parties concerned.

Because of the pandemic of COVID-2019, CAS issued Emergency Guidelines dated 16 March 2020. CAS postponed in-person hearings and encouraged to conduct hearings by video-conference or to cancel them. The hearing in CAS between WADA and the RUSADA took place, as scheduled, from 2 to 5 November 2020, almost a year after the WADA issues the declaration on non-compliance. Considering the travel restrictions and sanitary measures in place in Switzerland and in the Canton of Vaud because of the COVID-19 pandemic, the hearing took place in a mixed format with most participants joining via video link.

The Award on a case No. CAS 2020/O/6689

As anticipated, the tribunal issued the arbitral award by the end of 2020.

The operative part available in the official press-release reveals that CAS partially upheld the Request for Arbitration filed by the WADA. The tribunal found RUSADA to be non-compliant with the World Anti-Doping Code in connection with its failure to procure the authentic LIMS data and underlying analytical data of the former Moscow Laboratory.

However, CAS substantially decreased the sanction from 4 years up to 2 years.

The award clarified certain issues in terms of the sanctions, in particular, the order that concerned the flag of the Russian Federation does not require a signatory to prevent spectators from bringing the flag of the Russian Federation into official venues.

The award also provided for eligibility criteria differently, having excluded pre-conditions of MacLaren report. The possibility during the two-year period for any athlete or athlete support personnel from Russia to take part in or attend the Olympic and Paralympic Games and any world championships organised or sanctioned by a WADA signatory depends on the following conditions. A competent authority imposed no suspension, the uniform does not contain the flag of the Russian Federation (but instead the words “neutral athlete”), and no one plays or sings the Russian national anthem may not be at any official event venue.  This constitutes a very positive alteration of the initial consequences sought.

Previous relevant cases

We suggest taking a deeper look into the so-called “consequences” proposed by WADA (and not always suggested by CAS) and consider whether there have already been any similar precedents recently.

One of the recommended consequences and in particular criteria for participation of Russian athletes in major sports events was that there shall be no positive doping findings reported in the database. Interestingly, this seems very similar to the criterion No. 3 imposed by the decision of the International Olympic Committee on 24 July 2016. According to this criterion, the Russian Olympic Committee was not allowed to enter any athlete for the Olympic Games Rio 2016 who had ever been sanctioned for doping previously, even if he or she had served the sanction.

CAS in its awards 16/013 and 16/004 annulled this criterion No. 3 of the decision dated 24 July 2016. CAS found that this criterion was against the legal principle ne bis in idem or non bis in idem (no one shall be sanctioned twice for the same offence). Both cases may serve as precedents.

As for another suggested consequence, WADA suggested that Russian Government officials/representatives may not attend any major sport event during a four-year period. This reminds me of the decision of the International Olympic Committee Executive Board dated 5 December 2017 under para. IV of which Mr. Vitaly Mutko and his then Deputy Minister, Mr. Yuri Nagornykh were to be excluded from any participation in all future Olympic Games.

CAS in its award 2017/A/5498 Mutko v International Olympic Committee partially set aside this decision concerning Mr. Mutko. The tribunal came to the conclusion that this part of the decision shall be considered as a “sanction” and since there had been no legal basis for it, the decision should be set aside (detailed analysis of the Mutko case is available on “Law in Sport” blog).

In the third case, and to be more precise in the group of cases 39 Russian Athletes v. IOC the CAS panels unanimously found that the evidence put forward by the International Olympic Committee in relation to this matter did not have the same weight in each individual case. In 28 cases, the evidence collected did not establish that the athletes committed an anti-doping rule violation. The panels dealt with 39 individual cases and assessed the evidence applicable to each athlete individually.

All the above cases of Efimova, Karabelshikova, Podshivalov, Mutko, 39 Russian Athletes and respective sanctions even though similar are still not completely the same to the case WADA v. RUSADA (speaking about the bodies that imposed restrictions, time periods, etc).

In any case, CAS is not strictly bound by its own precedents. But even though there is no declared system of precedent in CAS, it often sites its own awards and subsequent CAS panels often carefully consider previous awards in order to help to develop legitimate expectations among sports bodies and athletes (see CAS award No. 97/176 dated 15 January 1998, para 40).

The pandemic of COVID 2019 postponed not only the Olympic Games in Tokyo. The arbitral proceedings worldwide seem to have been put on hold for a while, and the focus of attention has switched to other events and changes happening in the world. But the award still has a significant influence on the future of the Russian sport.

Considering eligibility criteria for the Russian Athletic Federation, the award may have a negative impact since RUSADA status was an important prerequisite for the renewal of the membership in World Athletics. The same is crucial in terms of IBU and the Russian Biathlon Union’s status renewal.