LANE ONE: WADA vs. RUSADA isn’t over; why WADA should appeal to the Swiss Federal Tribunal right now

Hey WADA! This is where you file your appeal: the Swiss Federal Court in Lausanne

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Now this is not the end.
It is not even the beginning of the end.
But it is, perhaps, the end of the beginning.

Winston Churchill’s famed declaration from his 10 November 1942 speech on the British victory over Nazi forces at El Alamein in Egypt still resounds across almost 80 years to us today, and should be especially well remembered at the World Anti-Doping Agency headquarters in Montreal.

This is because WADA should appeal that part of the decision of the Court of Arbitration for Sport (CAS) which reduced the sanctions on the Russian Anti-Doping Agency, as announced last Thursday (17th).

True, WADA won the case. But the three-member CAS panel significantly reduced the sanctions imposed by WADA, notably the trimming of the sanctioning period from four years to two years and the removal of the sanction that

“Russian athletes and their support personnel may only participate in or attend editions of the following events held during the Four Year Period – (a) the Youth Olympic Games (summer and winter); (b) the Olympic Games and Paralympic Games (summer and winter); (c) any other event organised by a Major Event Organisation; and (d) any World Championships organised or sanctioned by any Signatory – where they are able to demonstrate that they are not implicated in any way by the non-compliance, in accordance with strict conditions defined by WADA (or the CAS, if it sees fit), pursuant to the mechanism foreseen in [International Standard for Code Compliance by Signatories (ISCCS)] Article 11.2.6.”

Instead, the CAS panel’s 186-page decision – not yet published publicly – included this crucial, explanatory paragraph which was provided in the summary news release:

“This Panel has imposed consequences to reflect the nature and seriousness of the non-compliance [to the World Anti-Doping Code] and to ensure that the integrity of sport against the scourge of doping is maintained. The consequences which the Panel has decided to impose are not as extensive as those sought by WADA. This should not, however, be read as any validation of the conduct of RUSADA or the Russian authorities. In making its orders, the Panel is limited by the powers granted under the applicable law, in particular the WADC and the ISCCS. It has considered matters of proportionality and, in particular, the need to effect cultural change and encourage the next generation of Russian athletes to participate in clean international sport.” (Emphasis added)

This is a pathetic, soft, mis-reading of the International Standard for Code Compliance and can be – and should be – appealed. The WADA Compliance Review Committee’s lengthy review and recommendation brief issued in December 2019 detailed the egregious, state-run doping scheme perpetrated by the Russian Anti-Doping Agency, run through its Moscow headquarters laboratory.

In fact, the scope of the Russian doping-promotion project from 2011-15 is so far beyond anything contemplated in the International Standard for Code Compliance (2018 edition) that such behavior is not actually discussed at all. Annex B, which lists Signatory consequences, does not even address such a program. But it does state clearly, right at the top, that:

“The intention is to promote predictability and consistency in the imposition of Signatory Consequences across all cases. However, there shall be flexibility to vary within or even to depart from this range in a particular case, where the application of the principles set out in Article 11 to the specific facts and circumstances of that case so warrant. In particular, the greater the degree of non-compliance (i.e., the more requirements with which the Signatory has failed to comply, and the more serious those requirements), the greater the Signatory Consequences should be. If a case includes not only non-compliance with one or more Critical requirements but also Aggravating Factors, that shall warrant a significant increase in the Signatory Consequences imposed (which may include, without limitation, a Fine).” (Emphasis added)

Note the words “without limitation” in last line. In this, the most stunning case of doping deception yet known, only the strongest sanctions will do. The CAS panel – and we have not seen the full decision yet – appears to have treated the Russian doping scheme as simply the far end of the listed consequences in the 2018 edition of the International Standard for Code Compliance and not for its subversion of the entire anti-doping process.

WADA should insist that this is a grossly incorrect mis-reading of ISCCS Annex B, and most especially its parent language from Article 11.2.4-5-6. Lots of words here, but read this slowly:

“11.2.4 The Signatory Consequences imposed in a particular case shall go as far as is necessary to achieve the objectives underlying the Code. In particular, they shall be sufficient to motivate full Code Compliance by the Signatory in question, to punish the Signatory’s non-compliance, to deter further non-compliance by the Signatory in question and/or by other Signatories, and to incentivize all Signatories to ensure they achieve and maintain full and timely Code compliance at all times.

“11.2.5 Above all else, the Signatory Consequences imposed should be sufficient to maintain the confidence of all Athletes and other stakeholders, and of the public at large, in the commitment of WADA and its partners from the public authorities and from the sport movement to do what is necessary to defend the integrity of sport against the scourge of doping. This is the most important and fundamental objective, and overrides all others.

“11.2.6 The consequences should not go further than is necessary to achieve the objectives underlying the Code. In particular, where a consequence imposed is exclusion of Athletes and/or Athlete Support Personnel from participation in one or more Events, consideration should be given to whether it is feasible (logistically, practically, and otherwise) for other relevant Signatories to create and implement a mechanism that enables the non-compliant Signatory’s Athletes and/or Athlete Support Personnel to demonstrate that they are not affected in any way by the Signatory’s noncompliance. If so, and if it is clear that allowing them to compete in the Event(s) in a neutral capacity (i.e., not as representatives of any country) will not make the Signatory Consequences that have been imposed less effective, or be unfair to their competitors or undermine public confidence in the integrity of the Event(s) (e.g., because the Athletes have been subject to an adequate testing regime for a sufficient period) or in the commitment of WADA and its stakeholders to do what is necessary to defend the integrity of sport against the scourge of doping, then such a mechanism may be permitted, under the control of and/or subject to the approval of WADA (to ensure adequacy and consistency of treatment across different cases).” (Emphasis added)

The ISCCS couldn’t be clearer! The panel appears to have been in a fog, although we still need to see the full decision. But there is ample grounds for a WADA appeal.

The Swiss Federal Tribunal is the appeals venue for CAS decisions and while its jurisdiction is limited, this is a good case. An insightful 2016 review of the grounds for appeal for CAS cases – by the then-Managing Counsel and Head of Research and Mediation at CAS – notes an award may be annulled if “incompatible with public policy.”

That standard, the review points out:

● “The [Swiss Federal Tribunal] has e.g. held that the principle of strict liability for doping and the shift of the burden of proof to the athlete do not violate public policy.”

Exactly what was brushed aside by the CAS panel in this case!

● Rule 58 of the CAS Procedural Rules, listing the law applicable to the case, notes that “The Panel shall decide the dispute according to the applicable regulations.” But in the published explanatory paragraph, the CAS Panel stated that it was “limited by the powers granted under the applicable law, in particular the WADC and the ISCCS,” in deciding the sanctions … when in fact it was not at all constrained from accepting the WADA sanctions as recommended. Remember that Russia is a signatory to the World Anti-Doping Code!

The CAS Panel’s wrongly-interpreted “restricted” view of the sanctions available to WADA due to a mis-reading of ISCCS Annex B and not the overriding factors in Article 11.2.4-5-6 is an error which can be corrected by the Swiss Federal Tribunal.

WADA is right to be irritated by the CAS decision, but it is not without recourse. It should appeal, and the widely-held derision of the CAS finding is proof enough that the panel erred and did not “maintain the confidence of all Athletes and other stakeholders, and of the public at large” in the RUSADA matter.

Blistering criticism of the CAS decision has come from many corners, and not just the firebrands in the U.S., but also the German athlete’s association, the Institute of National Anti-Doping Organizations (iNADO), and the WADA Athlete Committee, whose statement included:

“The sanctions that individual athletes receive for Anti-Doping Rule Violations are strict; and, we expect organizations and administrators to be held to the same standard as we are and this has not happened.”

And that’s far less harsh than the tsunami of anguish from athletes of many countries on social media of all kinds.

Mr. Churchill was right. This is only the end of the beginning. Happy holidays to the WADA legal staff, who need to stay in the office and file this appeal now.

Rich Perelman

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