The long-awaited ruling has arrived, but questions remain about medals and accountability
This article was orginally published January 31 and updated February 9th. It may be further updated as additional information emerges.
On Monday, January 29th, the Court for Arbitration for Sport (CAS) issued a ruling in the case of Kamila Valieva, RUSADA, WADA, and the ISU.
“Ms Valieva is found to have committed an Anti-Doping Rule Violation (ADRV) under Clause 4.1 of the All-Russian Anti-Doping Rules of 24 June 2021 (the Russian ADR). A period of four (4) years ineligibility is imposed on Ms Valieva, starting on 25 December 2021. All competitive results of Ms Valieva from 25 December 2021 are disqualified, with all the resulting consequences (including forfeiture of any titles, awards, medals, profits, prizes, and appearance money).”
The CAS Panel’s decision is final and binding, except for the parties’ right to file an appeal to the Swiss Federal Tribunal within 30 days on limited grounds.
Valieva’s results being disqualified impacts the 2022 European Championships (with Anna Scherbakova becoming the champion, and Alexandra Trusova and Loena Hendrickx taking silver and bronze) as well as the Beijing Olympics. The biggest questions surround the team event, where Valieva won both the short program and free skate.
What is the impact on the Team Event medals?
The CAS ruling deferred the decision on awarding of medals to the ISU. The ISU on Tuesday, January 30th shared this release.
According to the ISU’s calculation, the medals would be gold for the United States, silver for Japan, and bronze for the Russian Olympic Committee (ROC).
This decision was celebrated by the United States and Japanese athletes, and criticized by Russia and by Canada. The Russian Olympic Committee has said they plan to appeal the ISU decision to CAS, saying they believe sanctions against an individual athlete cannot be the basis for reviewing the results of a team event. Many sources in Russia continue to deny that Valieva bears any responsibility for doping.
Two major questions are being posed to the ISU about its decision: why not disqualify the ROC team completely, and why not fill the place vacated by Valieva by the next skater in the event (thereby giving Canada enough points for the Bronze)?
Why not disqualify the whole ROC team
There is precedent both for and against disqualifying the whole team of an athlete with a violation. In the 2020 Youth Olympics, the Ukrainian team Sofiia Nesterova and Artem Darenskyi were disqualified after the mixed NOC pairs event, but the results of their team were allowed to stand, and they earned bronze. However, there are other cases, for example, the Tokyo Olympic relay, where the whole team was disqualified after the positive result of one team member.
According to the ISU Anti-Doping Rules: (Emphasis added)
11.2 Consequences for Teams
11.2.1 An anti-doping rule violation committed by a member of a team, including substitutes, in connection with an In-Competition test automatically leads to Disqualification of the result obtained by the team in that Competition, with all resulting Consequences for the team and its members, including forfeiture of any medals, points, and prizes.
11.2.2 An anti-doping rule violation committed by a member of a team, including substitutes, occurring during or in connection with an Event may lead to Disqualification of all of the results obtained by the team in that Event with all consequences for the team and its members, including forfeiture of all medals points and prizes, except as provided in Article 11.2.3.
11.2.3 Where a Skater who is a member of a team committed an anti-doping rule violation during or in connection with one (1) Competition in an Event, if the other member(s) of the team establish(es) that he/they bear(s) No Fault or Negligence for that violation, the results of the team in any other Competition(s) in that Event shall not be Disqualified unless the results of the team in the Competition(s) other than the Competition in which the anti-doping rule violation occurred were likely to have been affected by the Skater’s anti-doping rule violation.
According to these rules, if Valieva’s violation had occurred at the Olympics, the ROC team would have been disqualified. The team would have been disqualified from all the individual events as well, unless those athletes could prove that they didn’t bear any fault for the violation.
However, because Valieva’s positive test took place at the Russian Nationals, it is not an “in-competition” violation at the Olympics. The ISU Anti-Doping regulations are silent on the question of how prior violations impact team qualification, and without that clarity, the ISU is interpreting these rules to not disqualify the full ROC team.
Why not adjust the results after disqualifying Valieva’s scores?
The more pressing question, at least for Canadian athletes, is why the ISU did not adjust the results after voiding Valieva’s team event scores.
ISU Rules Rule 353.4.a (page 20):
“Disqualified Competitors will lose their placements and be officially noted in the intermediate and final results as disqualified (DSQ). Competitors having finished the competition and who initially placed lower than the disqualified Competitor(s) will move up accordingly in their placement(s).”
If this rule was followed, the skaters in 2nd after the short program and free skate would become the new first place, and receive 10, rather than 9 points. Since Valieva placed first in both segments, voiding her scores should result in an additional 2 points for each of the other 4 teams in the final. This would mean Canada received 55 points, more than the ROC’s 54, and therefore the bronze medal.
Skate Canada noted Rule 353 in their statement on January 30th and has said they are investigating the options for an appeal.
US Anti-Doping Agency head Travis Tygart and former IOC member Dick Pound also criticized the ISU’s handling of the medals. Pound told USA Today’s Christine Brennan, “The math is not rocket science. An error was made & needs to be corrected asap. The longer it goes on, the worse the ISU looks.”
On Friday, February 9th, the ISU issued a second release:
“The decision of the ISU Council with regard to the consequences to the official results of the Team event of Beijing 2022, clearly expressed in the ISU Statement of January 30, 2024, was based on a comprehensive evaluation from legal experts. This evaluation was, in turn, founded on the applicable rules and principles that are specific to this OWG Team event and is, therefore, the only decision that complies with the CAS Panel’s award. For the sake of clarity Rule 353 para 4 in the ISU Special Regulations is not applicable in this case.
In any complex and extraordinary situation like this, the reallocation of points could negatively affect the relative team ranking, adversely impacting teams that had nothing to do with the incident in question. Therefore, we have to abide by the rules and principles. In light of this case, we will further clarify the rules and principles moving forward to ensure any such cases are dealt with more efficiently in the future.
The CAS decision itself may be subject to appeal, therefore the ISU will not be discussing this matter in further detail in public at this stage.”
This statement is unlikely to quell criticism of the ISU, as it did not cite any specific set of rules it was following, only “applicable rules and principles that are specific to this OWG Team Event”. The only rules of the team event that are available (via ISU Communication 2443) are those from 2019, which specifiy that rule 353 should be followed.
The clarification that reallocating points could “negatively affect the relative team ranking, adversely impacting teams that had nothing to do with the incident in question” is also curious, given that the only team whose ranking would be reduced is the ROC – and it is hard to argue that the ROC had nothing to do with the incident. It also fails to address the fact that not reallocating points adversely affects the Canadian team.
More is at stake than a medal; funding for figure skating in Canada via Own the Podium (OTP) also was substantially reduced after Beijing.
Adjusting the points would not help the German federation, however, whose 9th place finish cost them the funding from the German government that goes with placing 8th or above. If the ROC was disqualified, however, the German team would assume 8th in the team event.
Will Valieva’s coaches and entourage face consequences?
As a minor, Valieva has status as a protected person. CAS ruled that protected status did not impact the consequences she would face, and that the burden of proof that the violation was not intentional still rests with the athlete. However, the question remains of who else – coaches, team doctor, federation – were complicit in the violation.
In their Jan 29th statement, WADA urged: “Doctors, coaches or other support personnel who are found to have provided performance-enhancing substances to minors should face the full force of the World Anti-Doping Code. Indeed, WADA encourages governments to consider passing legislation – as some have done already – making the doping of minors a criminal offense.”
In 2019, the United States passed the Rodchenkov Act, which criminalizes the doping of a minor and gives US law enforcement extensive powers to investigate potential doping violations at events with US athletes or broadcast to US audiences. In practice, this investigation may depend heavily on the cooperation of other nation’s law enforcement.
However, even without criminal penalties, Valieva’s team could face sports sanctions through the IOC and/or ISU, depending on the findings from WADA and RUSADA.
The Dutch publication Knack reported that WADA is continuing to investigate. WADA spokesperson James Fitzgerald said “The first phase was for WADA’s Intelligence & Investigations (I&I) Department to supervise and monitor the Russian Anti-Doping Agency’s investigation into the involvement of Valieva’s accompanying staff. This was made more complicated by the fact that the I&I researchers could not travel to Russia and had to supervise remotely. The second phase depends on what the TAS [CAS] verdict exactly means. WADA will study this closely and determine whether further investigation is possible.”
On Wednesday, January 31st, RUSADA Director Veronika Loginova told Russian outlet RIA Novosti: “‘WADA stated that it is possible that the investigation will be resumed after studying the full text of the CAS decision. We are ready to provide them with the necessary assistance within the framework of our competencies and capabilities. There were no complaints about the investigation previously conducted by RUSADA; everything was done in accordance with WADA recommendations and the best practices of leading anti-doping organizations.”‘
What did we learn from the Arbitral Award?
The full CAS report was released on February 7th, and referred to the difficulties faced in the WADA investigation due to the Russian invasion of Ukraine. The RUSADA/WADA investigation did not find any evidence of Valieva having been prescribed TMZ. The CAS panel did find however: “The Athlete’s evidence is that she took what her medical team prescribed for her; she had a “blind relationship” with her sports doctors. She does not appear to have inquired of her doctors whether the substances they prescribed were legal or not.”
In the WADA code, the burden of proof lies with the athlete, who must provide evidence that their violation was not intentional. In the absense of a credible alternative explanation – an explanation that is more likely that the violation being intentional – the athlete receives the full punishment. “An athlete must provide actual evidence to support his protestations of innocence; he or she must provide “concrete and persuasive evidence…The burden in this respect is solely on the athlete. It is not for the anti-doping organisations or for the panel.”
The panel dissected Valieva’s explanation – the scenario involving her grandfather’s heart medication getting into a desert he made for her – and showed that it was both “inherently implausible” and not supported by evidence.
Therefore the panel choose to emphasize in the conclusion, “The Panel has decided that the Athlete did not discharge her burden of proving, pursuant to Clause 12.2.1 of the Russian ADR, that her ADRV was not intentional on the balance of probabilities. It is, as the Panel has said, difficult to prove a negative and so it has been the case here. It does not follow, and the Panel most certainly has not concluded, that Ms Valieva is a cheat or that she cheated on 25 December 2021 at the Russian National Championships or that she cheated when she won gold at the Beijing Olympics (or at any other time).
The Appellants have not established that the Athlete committed the ADRV intentionally, and nor do they have any obligation to do so. It must be recognised, however, that the conclusion of the investigation conducted by RUSADA (and to a lesser extent by WADA) was that there was no evidence that she had acted intentionally.”
Where, then, does that leave the question of complicity? We learned that Valieva was, and perhaps is, taking as many as 60 different medications and supplements, chosen for her by the team doctors. The most likely explanation is that TMZ was also included. However, because the RUSADA/WADA investigation was not able (and not required) to prove that scenario, no sanctions are likely to be levied against the doctors or coaches, unless a whistleblower steps forward, or new evidence emerges.
Is the investigation over? WADA has not yet responded to requests for comment.
Under the World Anti-Doping Code, the IOC and ISU also have the responsibility to investigate Valieva’s entourage:
20.1 Roles and Responsibilities of the International Olympic Committee
20.1.9 To vigorously pursue all potential anti-doping rule violations within its authority including investigation into whether Athlete Support Personnel or other Persons may have been involved in each case of doping
20.3 Roles and Responsibilities of International Federations
20.3.12 To vigorously pursue all potential anti-doping rule violations within their authority including investigation into whether Athlete Support Personnel or other Persons may have been involved in each case of doping, to ensure proper enforcement of Consequences, and to conduct an automatic investigation of Athlete Support Personnel in the case of any anti-doping rule violation involving a Protected Person or Athlete Support Person who has provided support to more than one Athlete found to have committed an anti-doping rule violation.
One question, therefore, is: has the IOC or ISU investigated the Athlete Support Personnel, or is this pending completion of the WADA investigation?
Failure to cooperate with an investigation could itself be punished.
ISU rule 21.5 lists the responsibilities of Skater Support Personnel, including “To cooperate with Anti-Doping Organizations investigating anti-doping rule violations. Failure by any Skater Support Personnel to cooperate in full with Anti-Doping Organizations investigating anti-doping rule violations may result in a charge of a disciplinary or ethical offense under the ISU Code of Ethics.”
Many are understandably skeptical of the ability of WADA, the IOC, and the ISU to hold these coaches and officials accountable, given the weakness of the international response to documented state-sponsored doping in Russia. However, the 4-year ban on Valieva cannot be seen as a victory for Clean Sport if the responsible adults in her team avoid all punishment. Even once the medals are awarded, the pressure to investigate must continue.
