WADA Executive Committee Endorses Non-Compliance, Olympic Ban for Russia

Jared Anderson contributed to this report.

The WADA Executive committee on Monday announced that it “unanimously endorsed the recommendation made by the independent Compliance Review Committee (CRC) that the Russian Anti-Doping Agency (RUSADA) be declared non-compliant with the World Anti-Doping Code (Code) for a period of four years.”

The punishment is sort of a middle ground that focuses specifically on punishing the organizations and government that might have sponsored the doping, but leaves room for individual athletes to still compete under a neutral flag. The proposed consequences stop short of the calls to ban all Russian athletes from international competition.

That declaration is not yet final, though approval by the executive committee is a significant step. The Russian Anti-Doping Association RUSADA now has 21 days to dispute the allegation, in which case the matter will be referred to the Court of Arbitration for Sport. While one would assume that an anti-doping organization found to have committed such a serious violation and facing such a serious penalty would immediately appeal, the new head of RUSADA has been as critical of the doping culture in his country as have international voices, so that appeal is not a given.

If the CAS were to uphold the 4-year ban, or if RUSADA did not dispute the findings, then the result would be far-reaching consequences in the world of sport. Among those consequences would be that Russia would not be able to host any World Championships or “major event organization” championships hosted or sanctioned by World Anti-Doping Code signatories. This means, at a minimum, that new host cities would have to be found for the 2022 World Short Course Championships, the 2021 European Short Course Swimming Championships, and the 2024 European Aquatics Championships. All of those meets are scheduled to be hosted in Kazan, Russia, as are the 2025 FINA World Aquatics Championships – though that meet is after the 4-year non-compliance period would, in theory, expire.

The European governing body, LEN, just announced the 2021 and 2024 hosting duties this weekend.

Russia would also not be able to bid for the right to host the 2032 Olympic and Paralympic Games, nor during the 4 year period can they be awarded the right to host any other major competitions.

Further, during major events during the 4-year period, only those Russian athletes and their support personnel who “are able to demonstrate that they are not implicated in any way by the non-compliance with conditions including (without limitation) that they are not mentioned in incriminating circumstances in the McLaren reports, there are no positive findings reported for them in the database and no data relating to their samples has been manipulated, and that they have been subject to adequate in-competition and out-of-competition testing prior to the event in question according to WADA” may participate in Major Events.

Those Major Events will include the Olympic Games, Paralympic Games, and World Championship events. In the event that athletes meet the above criteria, they would not be able to represent the Russian Federation, and instead would have to compete under a generic flag, much as Russian athletes did at the 2016 Paralympic and 2018 Olympic Games.

While there is still parsing to be done about who, exactly, falls under the “incriminating circumstances” clauses, and what individual recourses they might have, Russian swimmers Vlad Morozov, Daria Ustinova, and Nikita Lobintsev were all named in the McLaren report. They used individual appeals to the CAS to be able to compete in the 2016 Olympic Games anyway. Ultimately, only 1 of the 96 athletes named in the report was charged.

Full List of Consequences, per WADA

• Russian Government officials/representatives may not be appointed to sit and may not sit as members of the boards or committees or any other bodies of any Code Signatory (or its members) or association of Signatories.
• Russian Government officials/representatives may not participate in or attend any of the following events held in 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 organized by a Major Event Organisation; and (d) any World Championships organized or sanctioned by any Signatory (together, the Major Events).
• Russia may not host in the Four-Year Period or bid for or be granted in the Four-Year Period, the right to host (whether during or after the Four-Year Period) any editions of the Major Events.
• Where the right to host a Major Event in the Four-Year Period has already been awarded to Russia, the Signatory must withdraw that right and re-assign the event to another country, unless it is legally or practically impossible to do so. In addition, Russia may not bid for the right to host the 2032 Olympic and Paralympic Games, irrespective of whether the bidding takes place during or after the Four-Year Period.
• Russia’s flag may not be flown at any Major Event staged in the Four-Year Period.
• 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 may participate in or attend any Major Event staged in the Four-Year Period.
• Russian athletes and their support personnel may only participate in Major Events staged in the Four-Year Period where they are able to demonstrate that they are not implicated in any way by the non-compliance with conditions including (without limitation) that they are not mentioned in incriminating circumstances in the McLaren reports, there are no positive findings reported for them in the database and no data relating to their samples has been manipulated, and that they have been subject to adequate in-competition and out-of-competition testing prior to the event in question according to WADA, in accordance with strict conditions to be defined by WADA (or the Court of Arbitration for Sport (CAS), if it sees fit), pursuant to the mechanism foreseen in ISCCS Article 11.2.6. In this circumstance, they may not represent the Russian Federation.
• Given the aggravating factors that are present in this case, RUSADA must pay all WADA’s costs on this file incurred since January 2019 and, in addition, a fine to WADA of 10% of its 2019 income or USD 100,000 (whichever is lower). This is the maximum fine available under the rules and all monies must be paid before the end of the Four-Year Period.

Russia’s Violation

WADA‘s Compliance Review Committee, informed by the organization’s Intelligence & Investigations Department, came to several conclusions about Russia‘s conduct:

• WADA believes that the data from the Moscow Anti-Doping Lab is “neither complete nor fully authentic.” A whistleblower leaked the Moscow lab’s database to WADA in 2017. One major condition of Russia‘s reinstatement to compliance was turning over full lab data to WADA – but when Russia did so, WADA says the data provided doesn’t match the database they were leaked.
  • “Hundreds of presumptive adverse analytical findings that appear in the 2015 copy of the LIMS database have been removed from the 2019 copy,” WADA says, and the underlying data has been deleted or altered.
• WADA also says that in late 2018/early 2019 (after WADA had required Russia to turn over the data), further alterations were made to cover up the previous changes in the database.
• Around the same time, WADA says, someone in the Moscow lab planted fabricated evidence into the database to make it look as though the changes came from Dr. Grigory Rodchenkov and two co-conspirators in an attempt to extort money from athletes. WADA also says someone changed the data to cover up evidence that another unnamed lab staff member was involved in the cover-up. WADA says this person is “currently an important witness for the Russian side” in several cases about alleged doping cover-ups.

The IOC (International Olympic Committee) has not yet commented on the matter.

Complete WADA Release

Today, the World Anti-Doping Agency’s (WADA’s) Executive Committee (ExCo) unanimously endorsed the recommendation made by the independent Compliance Review Committee (CRC) that the Russian Anti-Doping Agency (RUSADA) be declared non-compliant with the World Anti-Doping Code (Code) for a period of four years.

Meeting in Lausanne, Switzerland, the 12-member ExCo supported the CRC’s recommendation, which includes a series of strong consequences and conditions of reinstatement in accordance with the International Standard for Code Compliance by Signatories (ISCCS).

The Chair of the CRC, Jonathan Taylor QC, took ExCo members through the CRC’s recommendation, which had been provided to ExCo members on 25 November together with the report of WADA Intelligence and Investigations (I&I) and that of the independent forensic experts from Lausanne University’s Institute of Forensic Science. This was followed by a number of questions from members, and discussions on specific aspects of the recommendation.

WADA President Sir Craig Reedie said: “The ExCo’s strong decision today shows WADA’s determination to act resolutely in the face of the Russian doping crisis, thanks to the Agency’s robust investigatory capability, the vision of the CRC, and WADA’s recently acquired ability to recommend meaningful sanctions via the Compliance Standard which entered into effect in April 2018. Combined, these strengths have enabled the ExCo to make the right decisions at the right time.

“For too long, Russian doping has detracted from clean sport. The blatant breach by the Russian authorities of RUSADA’s reinstatement conditions, approved by the ExCo in September 2018, demanded a robust response. That is exactly what has been delivered today. Russia was afforded every opportunity to get its house in order and re-join the global anti-doping community for the good of its athletes and of the integrity of sport, but it chose instead to continue in its stance of deception and denial. As a result, the WADA ExCo has responded in the strongest possible terms, while protecting the rights of Russian athletes that can prove that they were not involved and did not benefit from these fraudulent acts.

“On behalf of the ExCo, and of the many WADA stakeholders that supported the CRC recommendation, I would like to thank the members of the CRC for their expert and considered recommendation, as well as WADA I&I and the forensic experts for their skill, diligence and perseverance in getting to the bottom of this highly complex case.”

CRC Recommendation

The 26-page CRC recommendation outlines the key facts, which are mainly derived from the reports of WADA I&I and the forensic experts. These reports conclude that the Moscow data was intentionally altered prior to and while it was being forensically copied by WADA in January 2019.

To this end, the RUSADA reinstatement conditions, which were agreed by the WADA ExCo in September 2018 were not fulfilled in that the Moscow data are neither complete nor authentic. Jonathan Taylor reminded ExCo members that, in September 2018, the ExCo had deemed the requirement to provide an authentic copy to be a ‘Critical’ condition of the decision to reinstate RUSADA to the list of Code-compliant Signatories. It was deemed ‘Critical’ because:

• it would enable the anti-doping community finally to resolve and draw a line under the allegations of a systematic conspiracy to dope Russian athletes;
• it would ensure that any Russian athletes who had tested positive could be punished; and
• just as importantly it would ensure that innocent Russian athletes could be cleared of suspicion.

The WADA I&I report was based in particular on a forensic review of inconsistencies found in some of the data that were obtained by WADA from the Moscow Laboratory in January 2019. Following WADA’s decision on 17 September 2019 to open a formal compliance procedure against RUSADA, this review also included consideration of responses from the Russian authorities to a list of detailed and technical questions raised by WADA I&I and the independent forensic experts.

Based on the reports, it was clear to the ExCo that the Moscow data were neither complete nor fully authentic. As comprehensively outlined in the reports, some data were removed, others altered and, in some cases, system messages were fabricated in an effort to hamper the work of WADA investigators. In addition, measures were taken to conceal these manipulations by back-dating of computer systems and data files in an attempt to make it appear that the Moscow data had been in their current state since 2015.

Having considered all the facts and the recommendation – including the consequences and the reinstatement conditions – the ExCo endorsed the entirety of the CRC recommendation. WADA will now send a formal notice to RUSADA, asserting non-compliance with the requirement to provide an authentic copy of the Moscow data, and proposing the following consequences, to come into effect on the date on which the decision that RUSADA is non-compliant becomes final and to remain in effect until the fourth anniversary of that date (‘the Four-Year Period’):

Series of Consequences

• Russian Government officials/representatives may not be appointed to sit and may not sit as members of the boards or committees or any other bodies of any Code Signatory (or its members) or association of Signatories.
• Russian Government officials/representatives may not participate in or attend any of the following events held in 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 organized by a Major Event Organisation; and (d) any World Championships organized or sanctioned by any Signatory (together, the Major Events).
• Russia may not host in the Four-Year Period or bid for or be granted in the Four-Year Period, the right to host (whether during or after the Four-Year Period) any editions of the Major Events.
• Where the right to host a Major Event in the Four-Year Period has already been awarded to Russia, the Signatory must withdraw that right and re-assign the event to another country, unless it is legally or practically impossible to do so. In addition, Russia may not bid for the right to host the 2032 Olympic and Paralympic Games, irrespective of whether the bidding takes place during or after the Four-Year Period.
• Russia’s flag may not be flown at any Major Event staged in the Four-Year Period.
• 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 may participate in or attend any Major Event staged in the Four-Year Period.
• Russian athletes and their support personnel may only participate in Major Events staged in the Four-Year Period where they are able to demonstrate that they are not implicated in any way by the non-compliance with conditions including (without limitation) that they are not mentioned in incriminating circumstances in the McLaren reports, there are no positive findings reported for them in the database and no data relating to their samples has been manipulated, and that they have been subject to adequate in-competition and out-of-competition testing prior to the event in question according to WADA, in accordance with strict conditions to be defined by WADA (or the Court of Arbitration for Sport (CAS), if it sees fit), pursuant to the mechanism foreseen in ISCCS Article 11.2.6. In this circumstance, they may not represent the Russian Federation.
• Given the aggravating factors that are present in this case, RUSADA must pay all WADA’s costs on this file incurred since January 2019 and, in addition, a fine to WADA of 10% of its 2019 income or USD 100,000 (whichever is lower). This is the maximum fine available under the rules and all monies must be paid before the end of the Four-Year Period.

CRC Chair, Jonathan Taylor QC, said: “Today, the ExCo has delivered a strong and unequivocal decision. While being tough on the authorities, this recommendation avoids punishing the innocent and instead stands up for the rights of clean athletes everywhere. If an athlete from Russia can prove that they were not involved in the institutionalized doping program, that their data were not part of the manipulation, that they were subject to adequate testing prior to the event in question, and that they fulfil any other strict conditions to be determined, they will be allowed to compete.

“WADA now has the names of all suspicious athletes in the LIMS database, and thanks to the painstakingly forensic nature of the investigation, this includes the athletes whose data was manipulated or even deleted, including the 145 athletes within WADA’s target group of most suspicious athletes but also others beyond that target group.

While I understand the calls for a blanket ban on all Russian athletes whether or not they are implicated by the data, it was the unanimous view of the CRC, which includes an athlete, that in this case, those who could prove their innocence should not be punished, and I am pleased that the WADA ExCo agreed with this.”

WADA Director General Olivier Niggli said: “The fundamental objective of the new Compliance Standard is to maintain the confidence of stakeholders in the commitment of WADA and its partners to do what is necessary to defend the integrity of sport against the scourge of doping. The September 2018 decision to reinstate RUSADA under strict conditions broke a long-standing impasse by allowing WADA to deal with this matter under the strong legal framework of the new Compliance Standard. Since then, WADA I&I acquired the Moscow data and samples, more than 40 cases unaffected by the data manipulation and 14 cases from re-analysis of the samples have been shared respectively with International Federations and RUSADA for action – with more cases to come – and the sanctions endorsed by the ExCo today for manipulation of some of the data are strong and meaningful in a manner that could not have been achieved under the old rules.”

RUSADA’s Operations

As it relates to RUSADA, the ExCo concurred with the CRC’s view that “the evidence (including from WADA‘s recent audits of RUSADA’s operations) indicates that RUSADA’s work is effective in contributing to the fight against doping in Russian sport, and that it is working productively in cooperation with other Anti-Doping Organizations, including in investigations within Russia”. Therefore, the ExCo accepted the recommendation not to impose any special monitoring or supervision or takeover of RUSADA’s anti-doping activities in the Four-Year Period.”

However, one of the conditions of reinstatement will be that WADA remains satisfied throughout the Four-Year Period that RUSADA’s independence is being respected and there is no improper outside interference with its operations.

Next Steps

As WADA communicated on 5 December, RUSADA will now have 21 days to accept the above-referenced notice.

• If RUSADA disputes WADA’s allegation, the matter will be referred to CAS (ISCCS Art. 10.4.1). Under the ISCCS, “If the Signatory wishes to dispute the asserted non-compliance and/or the proposed Signatory Consequences and/or the proposed Reinstatement conditions, then (in accordance with Article 23.5.6 of the Code) it must notify WADA in writing within twenty-one days of its receipt of the notice from WADA. WADA shall then file a formal notice of dispute with CAS, and the dispute will be resolved by the CAS Ordinary Arbitration Division.” Further to Article 23.5.9 of the Code, any CAS decision in relation to the non-compliance, the proposed consequences and/or the proposed reinstatement conditions will be binding and must be recognized and enforced by all Signatories.
• If RUSADA does not dispute WADA’s allegation, the consequences of non-compliance and the reinstatement conditions proposed by WADA will become a final decision, and any party that would have had a right under Code Article 23.5.7 to intervene in the CAS proceedings that would have taken place if RUSADA had disputed any aspect of WADA’s notice, has the right to appeal WADA’s decision to the CAS Appeals Arbitration Division within 21 days of the publication of RUSADA’s decision by WADA (ISCCS Art. 10.3.2). If no party appeals during these 21 days, the final decision must be recognized and enforced by all Code Signatories. If there is an appeal, the eventual CAS decision is binding on and must be recognized and enforced by all Code Signatories.

Meanwhile, WADA will liaise with Code Signatories and other stakeholders who may be affected by this decision, in order to clarify the next steps while bearing in mind that the case may still be appealed to CAS. To be clear, given the timing of this recommendation, it will not apply to next month’s Youth Olympic Games in Lausanne.