WADA statement on CAS award confirming the lifting of the provisional suspension of a ROC figure skater
The reasoned award confirms that the Court of Arbitration for Sport (CAS) Panel decided to ignore the clear and unambiguous terms of the 2021 World Anti-Doping Code (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.
This re-writing of the Code, which would apparently allow ‘protected persons’ to continue competing after testing positive for non-specified substances without any clarification of the circumstances, risks undermining the integrity of sporting competition and the confidence of athletes that they are competing on a level playing field.
The Panel also takes into account that if the athlete’s case had been heard before the CAS Appeals Division rather than the CAS Ad Hoc Division, she could have sought provisional relief (based on different criteria) and therefore competed. WADA does not accept this argument for two fundamental reasons. First, the criteria for lifting a mandatory provisional suspension, under the Code, simply do not include the criteria for the grant of provisional relief. Second, in a scenario where WADA (and/or others) had appealed against the decision of the RUSADA Disciplinary Committee to the CAS Appeals Division, the athlete would have had no need to seek provisional relief given the provisional suspension would have been already lifted. Furthermore, if the RUSADA Disciplinary Committee had decided not to lift the mandatory provisional suspension, that decision would not have been appealable under the Code at all.
It is surprising and of serious concern to WADA that a CAS Panel would see fit to depart from the clear terms of the Code, which was subject to three consultation phases involving all anti-doping stakeholders, including athletes, over a period of two years before being unanimously adopted in November 2019. This sets a dangerous precedent, which WADA hopes and expects will be corrected by future CAS Panels.
In relation to the delay between the sample being collected and the anti-doping laboratory in Stockholm reporting the positive test result, as stated on 14 February, WADA reiterates that it is the clear responsibility of the Anti-Doping Organization that initiated the test, in this case RUSADA, to communicate effectively with the laboratory to ensure the timely analysis of samples, especially in the lead-up to a major event. Unfortunately, RUSADA did not flag the high-priority nature of the sample despite being informed by the laboratory of delays being caused by a COVID-19 outbreak among its staff.