By Dolf Segaar, Partner, and Tim Wilms, Associate, CMS Amsterdam, The Netherlands
On 20 September 2018, the Executive Committee of the World Anti-Doping Agency (WADA) decided to reinstate the Russian Anti-Doping Agency (RUSADA) as compliant with the World Anti-Doping Code (WADA Code), subject to certain conditions.
RUSADA was declared non-compliant with the WADA Code by WADA on 18 November 2015.
WADA has been working with RUSADA ever since to rebuild a credible and sustainable anti-doping system in Russia and has set conditions which had to be fulfilled for reinstatement. Until this month, two remaining conditions had not yet been met:
- the responsible authorities for anti-doping in Russia (i.e. RUSADA, the Ministry of Sport and the National Olympic Committee) had to publicly accept the reported outcome of the McLaren Investigation; and
- the Russian Government had to provide access to the stored samples and electronic data in the former Moscow Laboratory (see RUSADA: Roadmap to Compliance dated 2 August 2017 and published by WADA).
The letter of 13 September 2018 of the Russian Minister of Sport, Pavel Kolobkov, provided enough comfort for WADA to reinstate RUSADA subject to post-reinstatement conditions. This decision was in line with the recommendation of 14 September 2018 of WADA's independent Compliance Review Committee
In this letter, Kolobkov stated that the Russian Federation "fully accepted the decision of the IOC Executive Board of December 5, 2017, that was made based on the findings of the Schmid Report
He also stated that, after re-instatement and consent of the Russian Investigation Committee, access to data of the Moscow Laboratory would be provided to an independent expert and that re-testing would be allowed if the data would provide adverse analytical findings (this, to a large extent, was in line with a previous letter of WADA of 22 June 2018 that offered a compromise in relation to the outstanding condition regarding access to the Moscow Laboratory).
WADA decided that this letter was sufficient to reinstate RUSADA, subject strictly to the following post-reinstatement conditions:
- RUSADA and the Russian Ministry of Sport must procure that the authentic Information Management System (LIMS) data and underlying analytical data of the former Moscow Laboratory set out in the WADA President's letter of 22 June 2018 are received by WADA (via access to the data by an independent expert agreeable to both WADA and the Russian authorities) by no later than 31 December 2018;
- RUSADA and the Russian Ministry of Sport must procure that any re-analysis of samples required by WADA following review of such data is completed by no later than 30 June 2019; and
- In accordance with the RUSADA Roadmap to Compliance, a successful audit of RUSADA must be carried out within four months to ensure RUSADA continues to meet compliance standards.
This decision of WADA allows RUSADA, amongst others, to test its own athletes again and to issue therapeutic use exemption certificates.
The WADA decision, taken by a majority in favour of 9-3 of its executives, has resulted in a lot criticism, throughout the world, from stakeholders such as athletes, anti-doping agencies and sports federations, in which WADA was blamed for not adhering to the original conditions but agreeing to some form of "compromise". The former Director-General of WADA, David Howman, described the WADA decision as “a triumph for money over clean sport!”
WADA stated that it chose this "pragmatic approach" to avoid the impasse and to receive laboratory data, which could otherwise have remained out of WADA's reach indefinitely, depriving investigators of potentially critical information.
The question may be asked whether the decision of WADA came too early, given the fact that WADA decided not to strictly enforce the set conditions; the criticism of stakeholders; and the fact that the athletes were not involved in the decision at all.
In view of the interests of the whole sporting community and the nature and seriousness of the violations of the WADA Code by Russia, the voice of the stakeholders should have been considered important in making the decision to agree the compromise and reinstate RUSADA.
It is quite surprising, therefore, that WADA took this decision only two weeks after the letter of the Russian Minister; six days after the recommendation of the CRC; and – more importantly – without any involvement of or any discussions with athletes or other interested stakeholders!