The Court of Arbitration for Sport’s decision to allow a Russian teenage figure skater to continue to compete at the Olympics — despite finding out this week she had failed a drugs test back in December — is not popular.
But the law, even sports law, is not designed to be popular, rather it is supposed to be just.
The decision does not even sit well with the International Olympic Committee (IOC).
Following Monday’s decision, the IOC has ordered that should the skater finish with a medal in the women’s singles this week no ceremony will be conducted in Beijing, but rather, a ‘dignified’ medal ceremony will be held sometime in the future.
The IOC has also instructed figure skating officials to allow an extra competitor into the draw of the event, as though the Russian competitor does not exist.
When she takes to the ice on Tuesday evening in Beijing for the women’s singles short program, she’ll be the equivalent of a cancelled person performing in front of a global television audience, a teenage sporting prodigy who has become the face of international sport’s latest drug scandal.
So, what’s the story?
Fifteen-year-old Kamila Valieva was the star of the show when she helped the Russian Olympic team win gold a week ago.
Less than 24 hours later, on February 8, she was told by the Russian anti-doping agency RUSADA that a doping sample she provided on December 25 had come back positive and she was being provisionally suspended.
The following day, on February 9, she appealed the suspension — as all athletes have the right to do if they believe they have grounds on which to fight a doping charge.
RUSADA’s disciplinary anti-doping committee upheld her appeal, clearing the way for her to remain at the Games and contest the women’s singles, where she is favourite to win gold.
Without seeing the reasoned decision for overturning her suspension it is impossible to measure the legitimacy – or illegitimacy – of that decision.
RUSADA informed all the sports heavies of the decision – the International Olympic Committee (IOC), the World Anti-Doping Agency (WADA), the International Skating Union (ISU) and the International Testing Authority (ITA). Someone, at one of the organisations who knew the details, leaked the story to the reputable online portal insidethegames.biz.
The reaction was predictable. As were the questions at the daily IOC media briefings that have followed.
Suddenly, another Olympic Games was being tarnished with another doping story, and again it involved Russia.
'Anti-doping malpractice'
The reason athletes from Russia are competing as the "Russian Olympic Committee" in Beijing, and not under their nation’s flag and name, is because of continued repercussions from the massive doping scandal at the Sochi 2014 Winter Olympics.
In Sochi, doped athletes from the host nation had their urine samples swapped for clean samples in an elaborate state-sanctioned program built around a hole in a lab wall.
The former general counsel for the US Anti-Doping Agency (USADA), Bill Bock, told ABC Sport that because regulators failed to deal harshly with Russia when they needed to, everybody is now paying a price.
“The entities at the top of the World Anti-Doping Agency and the IOC simply haven’t taken the situation seriously enough.
“They were far too lenient in the way they treated Russian doping and now one 15-year-old has become the scapegoat for the entire situation, and that’s not right either.”
"We demand that RUSADA completes a strong investigation into the entourage. We will also look into that and make sure that a proper investigation is carried out," Mr Banka said.
"Of course, what is very important, is that the culture in Russia must be changed in terms of entourage," he added.
"We still have the old generation of coaches and doctors who are working with the minors, with the athletes, so it's our strong demand that ... the Russian ministry of sports change this situation."
Tough talk. Perhaps too late. It also doesn't give the full picture.
Currently, there are 20 support personnel serving bans issued by RUSADA; seven are serving life bans, 14 of them have been charged in the years since 2016. Change is happening in Russia, just not fast enough.
A number of questions remain
There are several aspects to this story that remain unresolved.
Why did it take until February 8 to get a result on a urine sample taken on December 25? The WADA-accredited laboratory in Stockholm that did the testing allegedly had staffing issues due to COVID.
When was the Russian anti-doping agency informed by the lab, and was there a delay in informing the skater herself? All queries put to RUSADA have gone unanswered.
When athletes are selected for the Games why aren’t any outstanding drug tests finalised, with appropriate oversight by the various sports bodies involved – such as the ITA, WADA, even the IOC itself?
It is reasonable to ask whether gaps in reporting and a breakdown in inter-agency communication is not just an oversight but a management tool, left in place to allow each to absolve themselves from blame.
It might be unfair, but not unreasonable given past events, that information coming out of Russia’s sports bodies is not immediately believed. That requires every international body with any involvement in the oversight of the remodelling of Russia’s anti-doping system to be particularly vigilant.
In the absence of any blame being apportioned at the level it should be, it is being born by a teenaged figure skating prodigy, with no regard to her reduced level of culpability, her wellbeing, nor the lifelong repercussions of forever having her name associated with a label that in sporting terms is the equivalent of a life sentence, that of "drug cheat".
The fact that she is Russian should be secondary.
The World Anti-Doping Code has built in protections for minors since they have a reduced level of responsibility. Those protections were ignored in this case. Why?
Facing a tsunami of criticism the IOC, WADA and the ITA all filed appeals with the Court of Arbitration for Sport (CAS) to have the skater’s original suspension reinstated. The case was heard through Sunday night in Beijing and into the early hours of Monday morning. The skater herself appeared via video link.
Exceptional circumstances
In its decision on Monday afternoon CAS determined the provisional suspension should not be reinstated and the athlete was free to compete based on four "exceptional" circumstances.
The first was that the athlete was a "protected person" under the World Anti-Doping Code.
Secondly, there are no specific provisions for the suspension of protected persons, but there are specific provisions for different standards of evidence and lower sanctions in the case of such persons.
Thirdly, the panel considered "fundamental principles of fairness, proportionality, irreparable harm, and the relative balance of interests between the Applicants [IOC, WADA, ISU] and the athlete".
The decision noted the athlete still faces a disciplinary procedure for the positive test, but to prevent her from competing in Beijing "would cause irreparable harm in these circumstances".
And finally, the CAS panel emphasised that there were serious issues of untimely notification of the athlete's positive test which was not her fault and impinged on her ability to mount any legal arguments in her defence.
There is no shortage of those shouting from the balconies that the Russian skater should be sanctioned, suspended and expelled from the Games.
If the CAS panel had only the balcony to listen to their job would be far easier.
Instead, CAS can only refer to the rules governing anti-doping as laid out in the 184-page World Anti-Doping Code, where it states in article 10.3.1:
“In a case involving a protected person … the period of ineligibility shall be in a range between a maximum of two years and at a minimum, a reprimand and no period of ineligibility depending on … degree of fault.”
When the full legal process has been completed the teenage skater may be served with a reprimand only.
If that’s the case the IOC could yet find itself at a "respectful ceremony" somewhere down the track presenting a medal to a teenage prodigy from Russia, something they are trying desperately to avoid doing in Beijing.
