On Monday 18 July 2016, Canadian lawyer Richard McLaren presented the Independent Person Report to the World Anti-Doping Agency (WADA), regarding the alleged Russian
doping program surrounding the 2014 Sochi Winter Olympics. The report was expected
to seriously threaten the participation of Russian Athletes to the rapidly
approaching Rio Games, starting on 5
August. In the weekend prior to the report’s publishing, Reuters obtained a leaked
letter drafted by the CEO’s of the US and Canadian anti-doping agencies,
which according to the New York Times was backed by “antidoping officials from at least 10 nations— including
those in the United States, Germany, Spain, Japan, Switzerland and Canada — and
20 athlete groups”, urging the International Olympic Committee (IOC) to
ban all Russian athletes from the upcoming Olympics.
Source: http://ww4.hdnux.com/photos/50/23/01/10563667/3/920x920.jpg
During the press conference, McLaren listed his main
findings, which are shocking, interesting and peculiar at same time. First,
“the Moscow Laboratory operated, for the protection of doped Russian athletes,
within a State-dictated failsafe system”. Second, “the Sochi Laboratory
operated a unique sample swapping methodology to enable doped Russian athletes
to compete at the Games”. Third, “the Ministry of Sport directed, controlled
and oversaw the manipulation of athlete’s analytical results or sample swapping,
with the active participation and assistance of the FSB (Russian federal
security service), CSP (Centre of Sports Preparation in Russia), and both
Moscow and Sochi Laboratories”.
Though the recent findings of the Independent Person
Report should not be underestimated, yet it is only one piece of a complex
jigsaw puzzle constituted by many reports and disciplinary decisions involving systemic
doping in Russia over the last few years. One could compare it to a snowball
rolling down the mountain continuously gaining speed and mass. The ball started
rolling in December 2014 with an ARD broadcasted documentary titled Geheimsache Doping: Wie Russland seine Sieger macht (“Top Secret
Doping: How Russia makes its Winners”). Less than two years later, Russian
athletes might be excluded from participating at the Rio Olympic Games all
together. The information now available on
Russia’s systematic doping program would make an excellent movie script (one
that has probably already been set in motion at a Hollywood studio). This blog,
however, will more modestly provide a recap of the events leading up to the Independent
Person Report, and assess its potential (short term) legal consequences.
Episode 1: German
investigative journalism and WADA’s response
As stated above, the unravelling of this doping story began
in December 2014, with an ARD documentary, Geheimsache Doping: Wie Russland seine Sieger macht (“Top Secret
Doping: How Russia makes its Winners”). Filmmaker Hajo Seppelt investigated rumors on
widespread doping use by Russian athletes in preparation of and during the
Winter Olympics held in Sochi. The film showed athletes, coaches and civil
servants testifying, secret camera footage, audio recordings, and official
documents, all pointing towards: systemic doping use within the All-Russia Athletics Federation (ARAF),
corrupt practices regarding results management and the collection of samples. Implicated
parties included athletes, coaches, trainers, doctors, the Russian State, the
IAAF, the Moscow accredited laboratory and the Russian Anti-Doping Agency
(RUSADA).
In response to the international stir, WADA, in December
2014, launched an Independent Commission to investigate the allegations made.
The Commission consisted of former WADA chairman Richard Pound, Richard McLaren
and WADA’s Chief Investigations Officer Jack Robertson. The first part of this commission’s findings was published on 9
November 2015.[1]
In August 2015 the commission’s mandate was extended following the release of
another Seppelt documentary “Doping – Top Secret: The Shadowy World of Athletics”. This resulted in a second report which was published on 14 January 2016.[2]
Especially the former of the two “Pound Reports” is of particular interest.
First and foremost, it addresses the existence of “a
deeply rooted culture of cheating”. The report insinuates that this culture of
cheating existed since well before the Sochi Games. The coaches active in 2014 appear
to be the crucial transferors of the knowledge they acquired at the time they
were athletes themselves. Medical connections cultivated during their
professional careers were passed on to the current generation of athletes.
Athletes not wishing to be part of this system were likely to be “excommunicated”
from top-level coaches and support.[3]
The second issue addressed is the exploitation of
athletes. “Unethical behaviours and practices” by the people involved have
become the norm. Coercion has been employed on athletes to make them
participate in the doping program, for instance by informing them that “they
would not be considered as part of the federation’s national team for
competition”.[4]
The report’s third finding is a blatant unwillingness
of Russian athletes to cooperate in the investigation. Nonetheless, the Pound Commission
confirms a “consistent and systematic use of performance enhancing drugs by
many Russian athletes”.[5]
Fourthly, it confirmed that, next to coaches, some
Russian doctors and laboratory personnel equally acted as “enablers for
systematic cheating”. It also pointed out “inadequate testing and poor
compliance around testing standards”, as well as the malicious destruction of
over 1400 samples, which were explicitly requested by WADA to be preserved.[6]
A fifth major discovery was the identification of
corruption and bribery within the IAAF. The severity of the corruption
allegations involving several highly placed members and officials of IAAF and
the ARAF was such that this part of the investigation had to be transferred to
the competent authorities for “potential criminal prosecutions”, i.e. Interpol
(see the second Pound Report).[7]
The first Pound Report recommended provisional
suspensions in respect of five athletes, four coaches and one medical doctor
and identified some additional suspicious cases. It further asked WADA to declare
both ARAF and RUSADA to be “code noncompliant” and to withdraw WADA’s
accreditation of the Moscow laboratory, as well as to permanently remove the lab’s
director from his position. The Report also recommended that the IAAF should suspend
ARAF.[8]
A mere four days after the publication of the first Pound
Report (13 November 2015) the IAAF provisionally suspended the Russian ARAF as an IAAF Member. As a result of this decision,
athletes, and athlete support personnel from Russia could not compete in
International Competitions expected, the Russian Olympic Committee (ROC) as
well as its athletes did not take the decision lightly. In a request for
arbitration filed at the Court of Arbitration for Sport (CAS) on 3 July 2016,
the ROC and the 68 Russian Athletes asked the CAS 1) to review specific legal
issues surrounding IAAF’s decision to suspend ARAF, and 2) to order that any
Russian athlete who was not currently the subject of any period of
ineligibility for the commission of an anti-doping rule violation be declared
eligible to participate at the 2016 Olympic Games in Rio.[9]
The outcome of the appeal will be discussed further below.
Episode 2: The Independent
Person Report
Meanwhile, on 8 May 2016, new far-reaching allegations
concerning Russia’s doping program were made by newsmagazine 60 Minutes, and subsequently on 12 May, by the New York Times.[10]
The primary source behind these articles was whistle-blower Grigory Rodchenkov, the former director
of the Moscow and Sochi doping control laboratories who found refuge in an
undisclosed location in the USA. This time around, the allegations were not
limited to athletics, but involved all Russian athletes that competed at the
Sochi Olympics.[11] In
response to these claims, WADA announced that it would
immediately probe the new Russian doping allegations brought forward, once
again, by the press, and appointed an Independent Person (i.e. Richard McLaren)
supported by a multidisciplinary team to conduct an investigation of the
allegations made by Dr. Rodchenkov.[12]
McLaren was presented with a five-point investigation
mandate:
“1. Establish whether there has been manipulation of
the doping control process during the Sochi Games, including but not limited
to, acts of tampering with the samples within the Sochi Laboratory.
2. Identify the modus operandi and those involved in such manipulation.
3. Identify any athlete that might have benefited from those alleged
manipulations to conceal positive doping tests.
4. Identify if this Modus Operandi was also happening within Moscow
Laboratory outside the period of the Sochi Games.
5. Determine other evidence or information held by Grigory Rodchenkov.”[13]
The Report first mentions the time constraints faced
in drafting it. It explains, in relation to the third paragraph of the mandate,
that the “compressed timeline” of the investigation (57 days) “did not permit
compilation of data to establish an antidoping rule violation”, consequently
that third paragraph should be deemed of lesser importance. This shortage of
time also resulted in the fact that McLaren had to be selective in examining
the large amount of data and information available to it. In other words, it
could “only skimmed the surface of the extensive data available”.[14]
Be that as it may, McLaren considered the found evidence to be established “beyond
a reasonable doubt”.[15]
With due respect to both its mandate and its
investigative limitations, McLaren made three key findings[16]:
A) The Moscow Laboratory operated,
for the protection of doped Russian athletes, within a State-dictated failsafe
system, described in the report as the Disappearing Positive Methodology;
B) The Sochi Laboratory operated a
unique sample swapping methodology to enable doped Russian athletes to compete
at the Games;
C) The Ministry of Sport directed,
controlled and oversaw the manipulation of athlete’s analytical results or
sample swapping, with the active participation and assistance of the FSB, CSP,
and both Moscow and Sochi Laboratories.
The Independent Person Report makes account of a
systemic state directed doping program, incentivized by the “very abysmal” medal
count of the Russian Olympic athletes participating in the 2010 Vancouver
Olympic Winter Games. A system where, under direction and control of Yuri
Nagornykh, Russia’s deputy minister of sport, the laboratory was forced to change
any positive result into a negative analytical finding, a method named by the
McLaren team the “disappearing positive”.[17]
Nagornykh was informed of every positive analytical
finding arising in the Moscow laboratory from 2011 onwards, which in itself is
a violation of the WADA International Standard for Laboratories. The deputy minister was the linchpin that decided which athlete would
benefit from a cover up and thus be protected and which athlete would not. If
ordered to do so, laboratory personnel were required to report the sample as
being negative in WADA’s anti-doping management system. Next, the laboratory
personnel had to falsify the screen result in the laboratory information management
system to show a negative laboratory result.[18]
Conclusion, the shielded athlete could continue to compete.
However, at international events independent observers
would prevent Russian athletes from slipping through the net. That is why the FSB
developed a method for covertly removing the caps of tamper evident sample
bottles containing the urine (“without any evidence visible to the untrained
eye”). This technique was used to replace positive dirty samples during the
Sochi Olympic Games and in December 2014 to cover up some dirty samples out of
the Moscow Laboratory, which WADA had aimed to confiscate.[19]
The McLaren team subsequently found evidence that this sample swapping also
occurred after the 2013 IAAF World Championships in respect of positive
samples.
The coordinating role of Irina Rodionova in this
sample swapping method is remarkable. She was a staff member of the Russian
Olympic Committee during the Sochi Games. During the Games, she served as the
head of the Monitoring and Management of Medical Anti-doping Programs
Department and is currently deputy director of the “Center of Sports Preparation
of National Teams of Russia, a subordinate organisation of the Russian Ministry
of Sport”.[20] As
the report shows, Rodionova would receive and freeze storage samples, which the
athletes thought were “clean urine samples outside of the wash out periods for
any PEDs they were using”. The investigation’s main informant, Grigory Rodchenkov
would test the samples to make sure they were negative. These samples were then
secretly transported to the FSB storage freezer, which coincidentally happened
to be in the building located next to the Sochi Laboratory.[21]
The actual swapping occurred by passing the A and B bottles
through the “mouse hole” located between the “aliquoting room” inside the Sochi
Laboratory secure perimeter into an adjacent operations room, outside that
secure perimeter. While an FSB officer would take the B bottles somewhere else,
the athlete’s stored clean urine would be taken out of the FSB freezer and
brought over to the operations room. The FSB officer would return with B sample
bottle to the operations room. The B sample bottle’s cap would be removed. The
dirty urine would be replaced by clean urine and put in the A and B bottles.
Then, the stopper in the A bottle would be replaced and the B bottle cap
screwed back on. Ultimately, the bottles would be brought back to the
“aliquoting room” via the mouse hole.[22]
Subsequently, Rodchenkov had to manipulate the substituted sample to as closely
as possible match the “specific gravity” indicated on the original doping
control form. He did this by “adding table salt to raise the clean urine SG or distilled
water to dilute the clean urine sample so as to closely match the SG number on
the DCF”. A laboratory analysis of the salt content of selected samples revealed
that six had “salt contents higher than what should be found in urine of a
healthy human”.[23] As
the Independent Person Report elucidates: “The Sochi sample swapping
methodology was a unique situation, required because of the presence of the
international community in the Laboratory. It enabled Russian athletes to
compete dirty while enjoying certainty that their antidoping samples would be
reported clean”.[24]
The Report notes another incident following a WADA
request giving notice to the Moscow laboratory of a forthcoming collection of
samples stored in the laboratory for further analysis. This resulted in the
laboratory quickly destroying thousands of dirty samples that had been
collected and reported negative (use of the Disappearing Positive Methodology).
Deputy minister Nagornykh then arranged the FSB to fix the problem of the
samples collected between 10 September 2014 and 10 December 2014, which could
not be destroyed (as a result of the minimal 90-day period of storage following
the ISL). When the WADA investigators came to the laboratory, they found sample
bottles without their caps and, moreover, that these samples all had negative
findings recorded on WADA’s Anti-Doping Management System. Furthermore, forensic
examination confirmed tampering and “a urine examination of 3 of the samples
showed that the DNA was not that of the athlete involved”.[25]
Episode 3: The ball
is in the IOC’s corner…
In a statement released shortly
after Richard McLaren’s press conference, WADA president Craig Reedie conveyed
WADA executive committee’s vision on the Independent Person Report. First it condemned
the “public speculation made by certain national anti-doping organizations as to
the investigation’s outcome in the days leading up to the report’s publication”.
More importantly however, it recommended the IOC (and the International
Paralympic Committee, IPC) to decline entry for the 2016 Rio Olympic Games to all
athletes wishing to compete under the Russian Olympic Committee banner. Moreover,
he added that “any exceptional entry of a Russian athlete should be considered
by the IOC and IPC for participation under a neutral flag and in accordance
with very strict criteria”.
The IOC responded on 19 July
by implementing some provisional measures. It decided amongst others: not to organise
or give patronage to any sports event or meeting in Russia, not grant any
accreditation to any official of the Russian Ministry of Sport or any person
implicated in the Independent Person Report for the Rio Games, and “initiate a
full inquiry into all Russian athletes who participated in the Olympic Winter
Games Sochi 2014 and their coaches, officials and support staff”.
The key question, however, was whether the IOC would follow WADA’s
recommendation and decline entries to all athletes under the Russian Olympic
Committee banner to the Rio Games. Even though its president Thomas Bach stated
that “the findings of the report show a shocking and unprecedented attack on
the integrity of sport and on the Olympic Game” and that “the IOC will not
hesitate to take the toughest sanctions available against any individual or
organisation implicated”[26],
it did not actually do so (yet). Instead, it announced that it would carefully
evaluate the Independent Person Report and “explore the legal options” weighing
a collective ban against the right to compete of individual athletes. Moreover,
the IOC was adamant that it would “take the CAS decision of 21 July 2016
concerning the IAAF rules into consideration”.
Episode 4: Now the
CAS has ball possession…
Hence, the IOC’s final decision regarding Russia’s
participation at this summer’s Olympic Games depended on a large extent on the CAS
decision regarding the ROC and 68 Russian athletes’ appeal against the IAAF ban.
On 21 July, the CAS Panel confirmed the validity of the
IAAF’s decision to suspend the ARAF from participating at the Games as well as
the Russian athletes who do not satisfy the conditions set by IAAF Competition
Rule 22.1(A).[27] Nonetheless,
the CAS expressed its concern about “about the immediate
application with retroactive effect of such Rule [IAAF Rule 22.1(A)],
implemented by the IAAF on 17 June 2016, providing for exceptional criteria to
grant eligibility to athletes whose national federation is suspended. Since
such Rule involves criteria based on long-term prior activity, it left no
possibility in practice, and as applied, for the Claimant Athletes to be able
to try to comply with them.”
Yet, it clearly refused to weigh in directly on the IOC’s pending
decision regarding all Russian athletes. Indeed, “since the IOC was not a party
in the arbitrations, the CAS found that it had no jurisdiction to determine
whether the IOC is entitled generally to accept or refuse the nomination by ROC
of Russian track and field athletes to compete at the Rio 2016 Olympic Games”.
In other words, the ball is neatly passed back to the IOC, who will now need to
make a definite decision on whether Russian athletes, both for athletics and
all the other sports, can compete at the upcoming Games or not. As the public
pressure is mounting on the IOC, it is now doomed to decide whether to block
the entry of all Russian athletes or to leave this decision to the
International Federations on a case-by-case basis, like the IAAF has done in
the case of athletics. A story to be continued…
Conclusion: Who is to
blame for the systemic failures of the World Anti-Doping System?
Russian athletes are currently bearing the brunt of
the blame for the State-sponsored doping system in place in Russia, they are being
placated in the media and by the World Anti-Doping Agency as cheats, they are
being excluded from the Rio Olympics (and potentially many more international
competitions), and they are the ones suffering dire economic losses. Yet, are
they truly the main responsible for their unenviable fate?
The first key culprit that comes to mind is obviously
the Russian State and its political leaders, who have constructed a demonic system
imposed on athletes in their young age to ensure that Russia shines on the
global sporting scene. They have done so with the implicit (and in the case of
the IAAF explicit) support of the international sports governing bodies, which
preferred to look away rather than challenge the Russian political clout inside
their executive bodies. One has to remember, for example, that Russia’s sports
minister Vitaly Mutko, currently decrying
the politicization of sport, is a member of FIFA Council (formerly the FIFA Executive Committee).
Furthermore, this is also the failure of WADA. It was
supposed to be the independent global gendarme
of the world anti-doping fight. Yet, it comes out of these episodes at best as
a toothless paper tiger, at worse as a complacent window dresser. A recent piece in the New York
Times highlights very well its passive complicity in maintaining the
invisibility of the Russian state doping system. WADA is now front and centre in
calling for the harshest sanctions on athletes, but for years it has been
ignoring the warning signs and refusing to do its homework as far as the
implementation of the WADA Code is concerned. It is only because of the public
outrage over Hajo Seppelt’s documentary that WADA finally decided to act. What
is the Code worth if its implementation at the local level, where it is
supposed to apply on a day-to-day basis, is not closely monitored? Only the
paper (or the computer code) on which it is written. The general hypocrisy of
having a global set of rules, but very little biting enforcement mechanisms
underlies the failure of the current world anti-doping system.
[1] The
Independent Commission Report #1, Final Report, 9 November 2015 (Pound report #1).
[2] The
Independent Commission Report #2, 14 January, Amended 27 January 2016 .
[3] Pound report #1, p. 10.
[4] Ibid, p. 11.
[5] Ibid.
[6] Ibid.
[7] Pound report #1, p. 12 and 124.
[8] Ibid, p. 9.
[9] Media Release of the
CAS of 21 July 2016, Athletics
– Olympic Games Rio 2016 - The Court of Arbitration for Sport (CAS) rejects the
claims/appeal of the Russian Olympic Committee (ROC)
and
of 68 Russian athletes.
[10] Rebecca
R. Ruiz and Michael Schwirtz, “Russian Insider Says State-Run Doping Fueled
Olympic Gold”, New York Times, 12 May
2016 < http://www.nytimes.com/2016/05/13/sports/russia-doping-sochi-olympics-2014.html >
accessed 21 July 2016.
[11] In this regard, it
is also worth mentioning that Russia ended first in the medal table with 33
medals, including 13 gold medals.
[12] The
Independent Person Report, p. 2.
[13] Ibid, p. 3.
[14] Ibid, p. 4.
[15] Ibid, p. 6.
[16] Ibid, p. 1.
[17] Ibid, p. 10.
[18] Ibid, p. 11.
[19] Ibid, p. 12.
[20] Ibid, p. 13.
[21] Ibid.
[22] Ibid, p. 14.
[23] Ibid, p. 15.
[24] Ibid.
[25] Ibid, p. 17.
[26] Statement
of the executive board of the International Olympic Committee of 19 July 2016
on the WADA Independent Person Report.
[27] IAAF Competition Rule
reads as follows: “Any athlete, athlete support personnel or other person shall
be ineligible for competitions, whether held under these Rules or the rules of
an Area or a Member, whose National Federation is currently suspended by the
IAAF”.