Fifteen-year-old Russian figure skater Kamila Valieva helped the Russian Olympic Committee take the team gold at the 2022 Beijing Winter Olympics, but then a drug test from Christmas day came back positive for trimetazidine (TMZ). TMZ is listed on the World Anti-Doping Agency (WADA) Prohibited List, which lays out which substances and methods of using substances are banned and when.[2] Under this list, TMZ is explicitly listed as a metabolic modulator that is banned at all times.[3]
Following normal procedure after the positive test, Valieva was provisionally, or temporarily, suspended by the Russian Anti-Doping agency (RUSADA) but RUSADA lifted the suspension after a hearing.[4] Figure skating’s international federation (ISU), the WADA, and the International Olympic Committee (IOC) appealed the case to the Court of Arbitration for Sport (CAS), effectively the supreme court for sports arbitration.[5] The only question before CAS was whether to temporarily suspend Valieva before her hearing that will determine whether she has committed an anti-doping violation and what, if any, punishment she faces. Although this is not a criminal matter, you can think of it as deciding whether to suspend her before her later trial which will determine her guilt. Per industry regulation, a positive test does not automatically make an athlete guilty, though it does shift the burden of proof onto the athlete. There is still due process through a hearing and there are defenses an athlete can raise. Here, CAS ultimately affirmed RUSADA’s decision to lift the provisional suspension, allowing Valieva to continue competing at the 2022 Beijing Winter Olympics.[6] The CAS decision exposes ambiguity in the World Anti-Doping Code (the Code) that WADA should consider amending if they do not want CAS to decide similar cases the same way in the future. But what is this ambiguity?
Under Article 7.4.1 of the Code, a provisional suspension is mandatory after an athlete tests positive for a banned substance.[7] This mandatory temporary suspension can be lifted under two circumstances.[8] First, the mandatory suspension is lifted if the athlete claims the violation likely occurred due to a contaminated product.[9] A contaminated product is “a product that contains a Prohibited Substance that is not disclosed on the product label or in information available in a reasonable Internet search.”[10] Supplements, for example, are at the heart of many contaminated product cases. Valieva’s legal team is claiming she likely accidentally consumed her grandfather’s heart medication (the TMZ)[11], not that she consumed a contaminated product, so this exception to a mandatory temporary suspension does not apply.
Second, a mandatory temporary suspension is lifted if the positive test involves (1) a substance of abuse; and (2) the athlete establishes that he/she will be entitled to a reduced period of ineligibility under Article 10.2.4.1 of the Code. [12]Substances of abuse are categorized as such because “they are frequently abused in society outside the context of sport.”[13] The only designated substances of abuse are heroin (diamorphine), MDMA/ecstasy (methylenedioxymethamphetamine) and THC (tetrahydrocannabinol).[14] TMZ is not a substance of abuse so this exception fails on its face.
CAS, however, seems to have found ambiguity in these exceptions. The second part of the substance of abuse exception illustrates that an important reason for lifting a mandatory provisional suspension in substance of abuse cases is because of the possibility of the final sanction being reduced. This possibility of reduced final sanctions also exists in contaminated product cases. Valieva is not claiming a contaminated product and TMZ is not a substance of abuse, but due to Valieva’s age there is a strong possibility of her final sanction being reduced. Although not explicitly listed as an exception, Valieva’s age injects reasoning into her case following that of the explicit exceptions and is a large part of why CAS authorized the exception to the mandatory provisional suspension.[15]
What does Valieva’s age have to do with it? Since Kamila Valieva is under the age of sixteen, she is a “protected person” under the Code.[16] The presence of TMZ in a drug test would typically warrant a four-year suspension that could be reduced if it is determined that the athlete was not significantly at fault.[17] The maximum penalty is reduced however, when the athlete is a protected person. For protected persons testing positive for a non-specified substance like TMZ, the maximum suspension is two years, and the minimum is a reprimand and no suspension, depending on their degree of fault.[18] Like contaminated substances and substances of abuse, protected person status introduces a possibility of a reduced sanction. Although protected person status is not explicitly mentioned in the mandatory provisional suspension exceptions, CAS found this to be an oversight since the reasoning matches, if not exceeds, that of both enumerated exceptions.[19]
While the minimum penalty for a protected person can be as little as no suspension and a reprimand, the minimum penalty for a substance of abuse is one month.[20] It would be odd for WADA to provide an exception for a reduction to thirty days and not an exception for a reduction to zero days. . . unless its true concern does not lie with the reduced suspension lengths. WADA issued a statement on February 18th, in response to the CAS’s decision stating,
“The reasoned award confirms the CAS Panel decided to ignore the clear and unambiguous terms of the 2021 World Anti-Doping Code regarding the criteria for lifting a mandatory provisional suspension. In effect, by making this award, the CAS Panel has re-written the Code to say that mandatory provisional suspensions for ‘protected persons’ shall now be considered as optional provisional suspensions. This is not what the Code says, not what the Code drafters intended and was never proposed by any of WADA’s stakeholders during the three rounds of Code consultation.”
[21] As written, CAS has determined that the emphasis on the possibility of reduced suspension length brings protected person status under the umbrella of mandatory provisional suspension exceptions. WADA has stated that this was not and is not the intention of the Code.[22] If WADA wants CAS to rule differently in future cases, it should amend Article 7.4.1 of the Code to state explicitly that protected person status is not grounds for an exception to a mandatory provisional suspension. This will clear up the ambiguity and take the ball out of CAS’s court. Unfortunately for WADA, a statement saying the Code is unambiguous does not make it so. Valieva’s Olympic results might be disqualified in the future depending on the final outcome of her case but allowing her to continue competing in these circumstances under the Code as written, was not as unreasonable as the media made it out to be.
References:
[2] World Anti-Doping Code: International Standard: Prohibited List 2022, WADA, https://www.wada-ama.org/sites/default/files/2022-01/2022list_final_en_0.pdf
[3] Id. at 11.
[4] AlBaroudi, Wajih, Winter Olympics: Explaining the Kamila Valieva Doping Scandal that is Clouding Russian Figure Skating, CBS Sports (Feb. 27, 2022), https://www.cbssports.com/olympics/news/2022-beijing-olympics-a-timeline-of-the-doping-scandal-clouding-russian-figure-skater-kamila-valieva/
[5] Gray, James, Kamila Valieva: Russian Skater to Compete for Gold as CAS Rules in Her Favour Over Failed Drugs Test, i Newspaper (Feb. 14, 2022), https://inews.co.uk/sport/olympics/kamila-valieva-doping-drugs-test-court-of-arbitration-for-sport-russian-figure-skater-1459345
[6] CAS Ad Hoc Division, Media Release: Olympic Winter Games Beijing 2022: The CAS Ad Hoc Division Declines to Impose a Provisional Suspension on the Russian Figure Skater Kamila Valieva, Court of Arbitration for Sport (Feb. 14, 2022), https://www.tas-cas.org/fileadmin/user_upload/CAS_Ad_Hoc_Media_Release_Beijing_8.pdf
[7] World Anti-Doping Code 2021, WADA, (effective date: Jan. 1, 2021), at Art. 7.4.1 at 56-57, https://www.wada-ama.org/sites/default/files/resources/files/2021_wada_code.pdf
[8] Id.
[9] Id.
[10] Id. at 167
[11] Keh, Andrew, An I.O.C. Official Suggests Valieva May Have Ingested A Banned Drug by Mistake, New York Times (Feb. 15, 2022), https://www.nytimes.com/2022/02/15/sports/olympics/olympic-committee-russian-figure-skater.html
[12] World Anti-Doping Code, supra at Art. 7.4.1 at 56-57.
[13] Id. at Art. 4.2.3 at 33.
[14] World Anti-Doping Code: International Standard: Prohibited List 2022, supra at p. 3.
[15] CAS Ad Hoc Division, supra.
[16] World Anti-Doping Code, supra at p. 174.
[17] Id. at Art. 10.2.1 at 65.
[18] Id. at Art. 10.6.1.3 at 71.
[19] CAS Ad Hoc Division, supra.
[20] World Anti-Doping Code, supra at Art. 10.2.4 and 10.6.1.3.
[21] WADA Statement on CAS Award Confirming the Lifting of the Provisional Suspension on a ROC Figure Skater, WADA (Feb. 18, 2022), https://www.wada-ama.org/en/news/wada-statement-cas-award-confirming-lifting-provisional-suspension-roc-figure-skater
[22] Id.