The Court of Arbitration for Sport ("CAS") has upheld the World Anti-Doping Agency's ("WADA") decision to declare the Russian Anti-Doping Agency ("RUSADA") non-compliant with the World Anti-Doping Code (the "Code"). As a result, Russian athletes will only be able to compete as neutrals in next year's Olympic and Paralympic games, and in other world championship events organised by WADA signatories including the 2022 FIFA World Cup.
The background to the dispute can be found in our previous post here, but in short, RUSADA was initially suspended by WADA in 2015 following an investigation which reported a widespread programme of state sponsored doping within Russia.
RUSADA was reinstated in September 2018, on the basis of a number of conditions, including that the Russian Government grant access to RUSADA's Moscow laboratory in order that stored samples and electronic data could be retrieved and reviewed by WADA.
WADA was granted full access to the Moscow laboratory on 10 January 2019 (10 days after the deadline it had set), but a report from WADA's Intelligence and Investigations department later concluded that data from the lab had been intentionally altered prior to WADA being provided access.
WADA therefore declared RUSADA in breach of the Code in December 2019. This carried a number of sanctions, including that Russian athletes could only compete in major events in the following four years up to 2023 under a neutral flag. RUSADA was also ordered to pay all of WADA's costs incurred since January 2019, and an additional fine of 10% of its 2019 income or USD 100,000 (whichever is lower) - the maximum fine available.
RUSADA disagreed with WADA's decision, and on 9 January 2020, WADA referred the decision to CAS for determination.
The CAS award contains a number of sanctions.
These include that (unless a number of very limited exceptions apply), for the next two years:
- representatives of the Russian Government may not sit as members of the boards of committees of any WADA signatory, be issued accreditation for, or be permitted to participate in or attend, the Olympic and Paralympic Games, and any World Championship organised or sanctioned by any WADA Signatory (together, the "Major Events");
- the Russian Federation may not host, bid for, or be awarded the right to host any Major Event;
- the flag of the Russian Federation must not be flown or displayed in any official venue or area controlled by a WADA Signatory or Major Event organiser at any Major Event; and
- Russian athletes and their support personnel may only participate in or attend any Major Event as neutral athletes. Their uniform must not feature the Russian flag, nor any national emblem of the Russian Federation, and the Russian national anthem must not be officially sung at any official Major Event venue, or other area controlled by a WADA Signatory or Major Event organiser.
However, the colours of the Russian flag will still be allowed to be featured on athletes' uniforms, and fans will not be prevented from bringing the Russian flag into venues.
The CAS Order also provides that if RUSADA is to be reinstated as a WADA signatory, it must comply with a number of further conditions during the two year sanction period, including:
- paying a contribution of USD 1,270,000 in respect of costs incurred by WADA in investigating the authenticity of data retrieved by the Moscow laboratory;
- conducting supervised investigations into the deletions and alterations of the data, including doing everything possible to rectify in full the tampering of that data;
- providing any other support required by WADA to assist in determining whether Russian athletes accused of doping have any case to answer; and
- allowing an independent observer to remain on its Supervisory Board, and report regularly to WADA to confirm no attempts have been made to interfere with its operations.
This is certainly a landmark decision in the context of upholding and maintaining sporting integrity, as demonstrated the fact that 50 different parties (including the International Olympic Committee, International Paralympic Committee, Russian Olympic Committee, Russian Paralympic Committee, and 43 Russian athletes) applied to intervene in the proceedings.
No doubt the sporting community will be relieved that WADA's decision to declare RUSADA non-compliant with the Code has been upheld. WADA itself has heralded the decision as sending a clear message that "institutionalised cheating and concerted efforts to subvert the global anti-doping system will not be tolerated".
However, whilst the sanctions imposed by the CAS are considerable, they are actually more lenient than those previously imposed by WADA, which had extended for four years from December 2019, and also proposed that Russian athletes only be allowed to compete if they were able to conclusively demonstrate that they were in no way implicated with RUSADA's non-compliance with the Code. This is no longer a requirement under the CAS Order, meaning that, whilst Russian athletes who are currently serving periods of ineligibility are not able to compete in any Major Events until their ban has been fully served, those who were implicated in the MacLaren report, but who have not (for whatever reason) received formal bans, will remain able to compete.
Although sports organisations will be disappointed that the more extensive sanctions from WADA's orginal decision were not completely upheld, the CAS was keen to stress that this should not to be read as any validation of the conduct of RUSADA or the Russian authorities. Rather, in making its decision, the Panel considered itself to be limited by the powers granted to it under applicable law, including the Code. The basis of this limitation is not currently clear, as WADA's International Standard for Code Compliance by Signatories provides that where a National Anti-Doping Organisation such as RUSADA is declared to be non-compliant, WADA can exclude the relevant Olympic Committee, its representatives, and affiliated athletes from Major Events for any specified period. The detailed reasons as to why the CAS was prepared to reduce the sanctions imposed on RUSADA may become more evident should the parties agree to the publication of the decision in full. In the interests of transparency and open justice, it is to be hoped that they will do so.
However, in any event, the CAS considered the consequences imposed by its order to be proportionate, considering in particular, the need to "effect cultural change and encourage the next generation of Russian athletes to participate in clean international sport".
In theory, either party could appeal the CAS panel's decision to the Swiss Federal Tribunal, although this appears unlikely given that there are only a very limited number of grounds on which such appeals are admissible (such as lack of jurisdiction, violation of elementary procedural rules such as the right to a fair hearing, or incompatibility of a decision with public policy).
Going forwards then, the challenge for sports organisations will be to ensure that the CAS' order is implemented consistently and effectively within their rules and regulations.