[Author: Utkarsh Mishra, a penultimate year student of Law at Jindal Global Law School]
In December 2019, Russia was handed a four-year ban for major doping offences by the World Anti-Doping Agency (WADA). Recently, the ban was cut down to two years along with certain concessions by the Court of Arbitration for Sport (CAS). The sports community which was disappointed with the leniency shown towards Russia last year is now outraged to see them walk away almost scot-free. Historically, even though these are the harshest measures taken by WADA against a nation, whether they are proportionate to the crimes committed is questionable.
Background
The Russian Federation for years has flouted and disregarded doping regulations and has always been in the limelight for the same, especially after WADA commissioned the McLaren Report which looked into the allegations of state-sponsored doping. The Part I of the Report, released in July 2016, stated that a minimum of 643 positive tests were hidden by Russian authorities using the ‘Disappearing Positive Methodology’. The Part II of the Report was released in December 2016 and it showed that over a thousand Russian athletes involved in different sports benefitted from this doping cover-up. Consequently, the International Olympic Committee banned 111 athletes from participating in the 2016 Summer Olympics and the International Paralympic Committee gave Russia a blanket ban from the 2016 Summer Paralympics.
In 2018, WADA unanimously voted in favour of reinstating the Russian Anti-Doping Agency (RUSADA) after it deemed RUSADA ‘non-compliant’ back in 2015 and left Russia with no functioning national body to carry out any doping tests for its athletes. The reinstation was based on the conditions of meeting a two-fold criteria – responsible authorities admit to the discoveries and outcomes of the McLaren Report, and the Russian Government complies with the request to share Moscow anti-doping laboratory’s results. Eventually, when access was finally gained by WADA, it was found that a significant portion of the data retrieved was tampered with and manipulated before WADA retrieved these results. It was already agreed that complete and authentic data would be a critical condition for reinstating RUSADA because it would not only resolve the doping allegations of a systematic state conspiracy but also ensure positive tested athletes are appropriately punished and innocent ones are cleared of any suspicion.
Four-Year Ban
After due consideration of all the facts, including the reinstatement conditions, the WADA Executive Committee endorsed the independent Compliance Review Committee’s recommendation in its entirety and issued a four-year period of non-compliance for RUSADA.
There were a series of consequences attached to this sanction such as Russian Government officials not being permitted from either sitting on any sports committees or bodies, or attending any major sporting event like the Olympic Games, the Paralympic Games, the Youth Olympic Games, any World Championships or any other sporting event organized by a Major Event Organization. Further, Russia cannot host, bid or be granted to host any edition of a major sporting event during this four-year period as well as in future. The Russian Flag cannot be flown at any event during this time. The Russian athletes, on the other hand, can only participate if they satisfy that they are neither implicated in any manner whatsoever nor affected by the manipulated laboratory data. A blanket ban was avoided in order to allow athletes to prove their innocence.
Within the stipulated 21 days, Russia decided to challenge and appeal against WADA’s four-year doping ban through Article 10.4.1 of the International Standard for Code Compliance by Signatories, 2018, which is a mandatory international standard forming an essential element of the World Anti-Doping Program.
Two-Year Ban
Three months back, the CAS while handling RUSADA’s appeal, partially upheld WADA’s decision. It held RUSADA to be non-compliant with respect to the World Anti-Doping Code but for a period of two years and not four. The WADA officials were slightly taken aback by the reduction but more or less were quite pleased on winning this landmark, and proving the illegal manipulation of the Moscow laboratory data which was done in an attempt to cover the state sponsored doping. They believe this ruling would send a strong message against institutionalized malpractice to subvert the international anti-doping mechanism. Furthermore, the CAS Panel confirmed that post the two-year ban, the condition for reinstatement will depend on WADA’s satisfaction of RUSADA’s operational independence and zero state interference.
Although this decision implements majority of WADA’s recommendations, there are some concessions for Russia which were quite unexpected. CAS removed a provision which required Russian athletes to prove they were not a party to the state sponsored doping scandal, which means that there is a possibility that the athletes who are not banned but whose data was manipulated can still compete in international sporting events. Additionally, official Russian teams are still not permitted to represent Russia in the upcoming Summer Olympics, 2022 Winter Olympics and the 2022 FIFA World Cup, but athletes wearing red shirts with the words ‘Russia’ and ‘Neutral Athlete’ written on them can do so. These athletes could essentially compete as neutrals under international competitions, for example- Nikita Mazepin, a Formula One Driver with a Russian driving license, is racing this season under a neutral flag. Moreover, the ban on Government officials from attending sporting events can be relaxed if they are personally invited by the head of the state of the host country.
Conclusion
Both WADA and RUSADA have accepted the CAS decision and will not be challenging the same. According to most sports personalities and related officials, CAS and WADA have done an awful job by inappropriately punishing a visible and rampant state sponsored doping system, which has been infecting the sporting community for years. Despite the proof of doping fraud, corruption and obstruction of justice, the Russian Federation has gotten away with perhaps the biggest scandal in sports history. This decision would not only set an incorrect precedent but will not at all deter other sporting federations from following in Russia’s footsteps.
*For any query, feedback or discussion, the Author can be contacted at [utkarshmishra0109@gmail.com]
PREFERRED CITATION: Utkarsh Mishra, The Russian Doping Scandal, SLPRR, <https://sportslawandpolicyreviewreporter.com/?p=1465> May 16, 2021.
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