by Dr Rafael Braegger, Attorney at Law, Pachmann Law Firm, Zurich, Switzerland
It was the biggest excitement away from the sports at the recently concluded Olympic Winter Games 2022 in Beijing: Russian figure skater Kamila Valieva, aged 15 years and gold medalist with the team, on 7 February 2022, had tested positive for the prohibited substance trimetazidine, on the eve of the Games (on 25 December 2021).
According to anti-doping rules, this generally results in an automatic provisional suspension. However, the Russian Anti-Doping Disciplinary Commission lifted this ban on 9 February 2022, allowing Valieva to continue competing in Olympic events.
However, the International Olympic Committee, the World Anti-Doping Agency and the International Skating Union objected to this and lodged an appeal against the Russian Commission's decision with the Court of Arbitration for Sport (CAS).
CAS dismissed these appeals on 14 February 2022, allowing Valieva to compete in the individual event (on 15 February 2022).
An outcry went through the public and the media: there was talk of distortion of competition, clean sport was seen to be in danger, and memories of Russian state doping at the 2014 Olympic Winter Games in Sochi were awakened.
In fact, however, the CAS decision was completely correct: The CAS arbitrators weighed Valieva's interest in taking part in the Games, which is extremely important for any top athlete, higher than maintaining the provisional suspension based on the positive analytical result, although, and this also spoke in Valieva's favour, the B-sample had not even been analysed yet.
This does not imply anything about her guilt or innocence, and a definitive verdict will only be reached later.
As things stand today, an unintentional contamination of Valieva with the prohibited substance seems to be the most likely explanation, as only tiny traces of the substance were found in her urine sample and apparently her grandfather, with whom she has regular close contact, takes this drug to treat a heart disease.
Although it may be unsatisfactory that, in such a constellation, the final result of the competition may only be available weeks or even months after the competition; in a case like the present one there is no alternative if the legal protection of athletes accused of doping offences is not to become illusory.
In Valieva's case, CAS also – rightly so – put considerable emphasis on her young age, which makes her a so-called "protected person" under the World Anti-Doping Code. For such persons, the Code does not explicitly provide for provisional suspensions. In addition, a different standard of proof and generally lower sanctions apply to such persons than to adult athletes. Against this background, CAS, in my view, made both a courageous and correct decision and did not impose a provisional suspension on Valieva.
For Valieva, however, the case came to a disappointing end: she fell in the final of the individual competition and thus, in fourth place, narrowly missed out on a medal that was considered practically certain.
It seems that all the excitement about a feared retrospective medal award was, ultimately, in vain.
Dr Rafael Braegger may be contacted by e-mail at ‘
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